Damian v. Bell Helicopter Textron, Inc.

• Decision Date: 31 August 2011
• Docket Number: No. 02–08–00210–CV.,02–08–00210–CV.
• Citation: 352 S.W.3d 124
• Parties: Lourdes Maria Vargas de DAMIAN, Individually, as Next Friend to Nicole Denisse Damian Vargas, and as Representative of the Estate of Demetrio Damian Chen, Deceased; Guillermo Jose Gasperi, Individually and as Representative of the Estate of Gloria Gasperi, Deceased; Carla Gasperi, Individually and as Representative of the Estate of Gloria Gasperi, Deceased; Angela Cecilia Lassen de Gasperi, as Legal and Personal Representative of the Estate of Gloria Gasperi; Ricardo Adolfo Garay Barrios; Lorenzo Romagosa Acrich; and Ida Romagosa de Aranjo, Appellants and Appellees, v. BELL HELICOPTER TEXTRON, INC., Appellee and Appellant.
• Court: Texas Court of Appeals

352 S.W.3d 124

Lourdes Maria Vargas de DAMIAN, Individually, as Next Friend to Nicole Denisse Damian Vargas, and as Representative of the Estate of Demetrio Damian Chen, Deceased; Guillermo Jose Gasperi, Individually and as Representative of the Estate of Gloria Gasperi, Deceased; Carla Gasperi, Individually and as Representative of the Estate of Gloria Gasperi, Deceased; Angela Cecilia Lassen de Gasperi, as Legal and Personal Representative of the Estate of Gloria Gasperi; Ricardo Adolfo Garay Barrios; Lorenzo Romagosa Acrich; and Ida Romagosa de Aranjo, Appellants and Appellees,
v.
BELL HELICOPTER TEXTRON, INC., Appellee and Appellant.

No. 02–08–00210–CV.

Court of Appeals of Texas, Fort Worth.

Aug. 31, 2011.

[352 S.W.3d 130]

Benton Musselwhite, Newton B. Schwartz, Sr., Houston, Darrell Keith, Fort Worth, Joe J. Fisher, Mark C. Sparks, Beaumont, for Appellants and Appellees.

Stephen C. Howell, John Sams, Jason C. Moon, Brown Dean Wiseman Proctor Hart & Howell, LLP, Fort Worth, for Appellee and Appellant.

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.OPINION ANNE GARDNER, Justice.I. Introduction

Appellants ¹ filed this lawsuit against Appellee Bell Helicopter Textron, Inc.² on

[352 S.W.3d 131]

January 25, 2002, alleging, among other things, strict products liability and negligence, relating to the crash of a Bell 407 helicopter. The case proceeded to a jury trial in August 2007, and the jury returned its verdict on September 17, 2007. The jury found that there was a design defect in the helicopter; that the negligence of Bell and one of the helicopter pilots, Captain Damian, caused Appellants' injuries; that Bell and Captain Damian were each fifty-percent responsible for causing the accident and resulting injuries; and that Appellants' damages totaled $294,300. The jury also found that Bell did not act with malice. The trial court signed the final judgment on February 28, 2008.

All parties appeal from the judgment. Appellants contend in six issues that the trial court erred by not permitting equitably-adopted children to assert wrongful death claims, that there is insufficient evidence of comparative negligence, that the damage awards are against the great weight and preponderance of the evidence, and that the trial court should have conducted a hearing and ordered a new trial for alleged juror misconduct. In its cross-appeal, Bell contends in six issues that all of Appellants' claims are barred by the Panamanian statute of limitations, that the trial court should have dismissed the survival claims by Gloria Gasperi's estate, that the design-defect and negligence claims submitted to the jury are preempted by federal law, and that there is no evidence of design-defects. We affirm in part and reverse and render in part.

II. Factual Background

Appellant Lorenzo Romagosa testified that he is the manager of the purchasing and export department of Café Duran, a coffee company his family owns in Panama City, Panama. On January 27, 2000, Lorenzo, his father, and two of his aunts, Ida Rebecca and Gloria Gasperi, flew on a Bell 407 helicopter from Panama City to conduct business at one of Café Duran's farms in Sona, Panama. Captains Damian and Garay piloted the helicopter. After the family conducted its business at the company farm, Lorenzo's father stayed in Sona, and Captains Damian and Garay, Lorenzo, Ida, and Gloria boarded the helicopter for the return flight to Panama City. Visibility was good in the area, and they experienced no problems for most of the flight.

Approximately fifty minutes into the flight, and only ten minutes from Panama City, Lorenzo heard Captain Garay say, “birds ahead.” Approximately thirty to sixty seconds later, Lorenzo heard Captain Garay say “watch out” in a high tone of voice. Lorenzo testified the helicopter then made an abrupt maneuver, and he felt the helicopter nose pull up drastically, heard a loud noise, noticed a lot of wind going through the cabin, and saw a bird pass by him and hit Gloria in the right shoulder. The helicopter had struck a bird, which penetrated the windshield and entered into the cabin. Lorenzo testified he was thinking at that point that the helicopter would crash; both of his aunts were screaming, and there were a lot of feathers and wind in the cabin.

Lorenzo testified that Captain Garay called out Captain Damian's name and then asked him for help. The bird had hit Captain Damian in the head, and he had slumped over the helicopter controls; the bird did not hit Captain Garay. Lorenzo unbuckled his seat belt, moved behind Captain Damian's seat, and tried to pull Captain Damian back from the controls so that Captain Garay could fly the helicopter. Lorenzo testified the helicopter was “going fast, down” and Captain Garay was trying to control the helicopter. Lorenzo testified that just after he pulled Captain

[352 S.W.3d 132]

Damian back from the controls, he sat in the seat behind Captain Damian “split seconds” before the helicopter crashed into the mountainous terrain. He said that the helicopter hit the slope and rolled or descended down the hill before stopping. All of the helicopter's occupants were injured in the crash, and Captain Damian's and Gloria's injuries were fatal.

Bobby Ross testified as Appellants' aircraft accident reconstruction and helicopter pilot expert. He testified that the crashed helicopter was a Bell 407 and that the helicopter was manufactured in 1997 and delivered in 1998. Based on his review of the testimony and physical evidence from the accident, Ross prepared an animation reflecting his reconstruction of the flight and the crash, and he described the animation in detail to the jury. Ross testified that the helicopter was flying at 120 knots forward air speed and at 1,500 feet above sea level just before colliding with the bird, a black vulture. Ross testified that Captains Damian and Garay were not negligent, that they did all they could to save the helicopter and its passengers, and that they did not proximately cause the accident.

Ross testified that the helicopter hit the terrain tail-first; that the bottom of the helicopter then hit, pushing the landing gear nineteen inches into the body; that the helicopter slid down the hill; that the doors came off; but that Gloria was still restrained inside the helicopter at the time. Ross averred that the helicopter remained upright for two-thirds of its slide down the hill; that the marks on the wreckage suggest that it slid on its right side where Captain Damian and Gloria were seated; but that the right-side door had separated from the helicopter, allowing Gloria to be partially ejected during the crash sequence.

On cross-examination, Ross acknowledged that the Bell 407 has excellent visibility and maneuverability and that the as-cast acrylic windshield on the Bell 407 gets “high marks” for optical clarity. Ross testified that a clear windshield is important, that windshields are very expensive to replace, and that the down time while waiting for a windshield replacement is unwanted. Ross said that the Bell 407 is a Part 27 helicopter, and he agreed that virtually all Part 27 aircraft have as-cast acrylic windshields like the Bell 407 and that there are no bird-impact resistance requirements under the Federal Aviation Act (FAA) or the Federal Aviation Regulations for Part 27 aircraft. Ross also testified that Part 29 helicopters are larger, that federal regulations require Part 29 helicopters to have 2.2–pound resistant windshields, that the black vulture that hit the Bell 407 weighed significantly more than 3.5 pounds, and that the bird was significantly larger than even Part 29 helicopters are designed to resist.

Billy Hinds, Appellants' windshield expert, is an aircraft structural design engineer with more than thirty years' experience designing aircraft transparencies. He has designed bird-impact resistant windshields for aircraft such as the F–111 fighter jet, the F–17 stealth fighter jet, and the B–1 bomber. He testified at trial that the as-cast acrylic windshield in the Bell 407 was unreasonably dangerous and defectively designed because it was not bird-impact resistant and that the defective design was a proximate and producing cause of the crash. Hinds testified that a 0.14 inch stretched acrylic windshield and a 0.1 inch polycarbonate windshield are safer alternative materials than the as-cast acrylic windshield on the Bell 407 and that both were technologically and economically feasible at the time the Bell 407 was manufactured in 1997. He also testified that the technology existed in 1997 to properly

[352 S.W.3d 133]

“mate” stretched acrylic or polycarbonate windshields to the structure of the helicopter and resist an impact with a bird.

William Muzzy, Appellants' seatbelt expert, testified about the restraint system Gloria was wearing at the time of the crash and how it improperly allowed her to be partially ejected from the helicopter during the crash sequence. Using the animation of the crash sequence, Muzzy demonstrated each of the times that Gloria's restraint would have locked and then unlocked. Muzzy testified that even though Gloria still had her seatbelt on, she was partially ejected from the helicopter during the crash sequence because the locking and unlocking in the restraint system allowed the seatbelt to continually extend to the point where it did not restrain her in her seat or even inside the helicopter. He testified that the restraint system worked as it was designed but that it should have been designed so that it would not lock and unlock. Muzzy testified that the restraint system in the Bell 407 was unreasonably dangerous and that the use of the restraint system in the Bell 407 was negligence. Muzzy also testified that the MA–16 was a safer alternative design than the restraint system in the Bell 407 because the MA–16 has an omni-directional sensing retractor that would not have allowed Gloria's seatbelt to unlock during the crash sequence....