Densberger v. United Technologies Corp.

• Decision Date: 12 March 2002
• Docket Number: Docket No. 00-9512.
• Citation: 283 F.3d 110
• Parties: Kathleen DENSBERGER, Individually and as Executrix of the Estate of Colonel William Densberger, Mary Ann Kelly, Individually and as Executrix of the Estate of Colonel Robert Kelly, Lisa Rhodes Truluck, Individually and as Executrix of the Estate of Specialist Gary Rhodes, Jr., Deborah L. Robertson, Individually and as Executrix of the Estate of Major General Jarrett Robertson, Christopher Mancini, CW2, Wendy Mancini and Eric Johnson, Major, Plaintiffs-Appellees, v. UNITED TECHNOLOGIES CORPORATION, Defendant-Appellant, Aeroquip Corporation, Alcoa Composites Inc. and Brunswick Corp., Defendants.
• Court: U.S. Court of Appeals — Second Circuit

283 F.3d 110

Kathleen DENSBERGER, Individually and as Executrix of the Estate of Colonel William Densberger, Mary Ann Kelly, Individually and as Executrix of the Estate of Colonel Robert Kelly, Lisa Rhodes Truluck, Individually and as Executrix of the Estate of Specialist Gary Rhodes, Jr., Deborah L. Robertson, Individually and as Executrix of the Estate of Major General Jarrett Robertson, Christopher Mancini, CW2, Wendy Mancini and Eric Johnson, Major, Plaintiffs-Appellees, v. UNITED TECHNOLOGIES CORPORATION, Defendant-Appellant, Aeroquip Corporation, Alcoa Composites Inc. and Brunswick Corp., Defendants.

Docket No. 00-9512.

United States Court of Appeals, Second Circuit.

Argued December 21, 2001.

Decided March 12, 2002.

COPYRIGHT MATERIAL OMITTED

Andrew L. Frey, Mayer, Brown & Platt, N.Y., NY, (Catherine M. Sharkey, Mayer, Brown & Platt, and Mark A. Dombroff, Raymond L. Mariani, Dombroff & Gilmore, N.Y., NY, on the brief), for Defendant-Appellant.

Steven R. Pounian (Francis G. Fleming, Brian J. Alexander, Jacqueline M. James, Raafat S. Toss, on the brief), Kreindler & Kreindler, N.Y., NY, for Plaintiffs-Appellees.

William F. Sheehan, Frederick C. Schafrick, Ross E. Davies, Shea & Gardner, Washington, DC, for Amicus Curiae, The Aerospace Industries Association of America, Inc.

Before MESKILL, KEARSE, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Following a $22.9 million jury verdict, the district court entered judgment for the plaintiffs, and denied the defendant's post-trial motions for judgment as a matter of law and for a new trial. Defendant United Technology Corporation ("UTC") appeals. The principal questions presented on appeal are whether the Connecticut Products Liability Act ("CPLA") preempts plaintiffs' common law negligence theory of recovery, whether the Army's alleged knowledge of the relevant dangers defeats plaintiffs' allegations of failure to warn, and whether the government contractor defense applies to situations in which the contractor owes no duty to the ultimate end-users of the product. We affirm the district court.

BACKGROUND

On February 23, 1993, a United States Army UH 60A Blackhawk helicopter returned to the Wiesbaden, Germany airfield following a flight. The helicopter was equipped with the External Stores Support System ("ESSS") kit, a removable system of horizontal supports affixed to the side of the helicopter from which two 230 gallon auxiliary external fuel tanks were suspended.¹

As the helicopter approached the airfield's helipad, it began a shallow right turn to line up with the pad on the parking ramp. When the pilot attempted to level the helicopter out of the turn there was "no response" from the flight controls. The aircraft continued to turn steeply to the right. It completed an approximate 360 degree turn and crashed on its right side causing the right external tank to explode. Four Army officers died and two others — the pilot and an enlisted Army member — were severely injured.

The Blackhawk helicopter and the ESSS kit involved in this accident were manufactured for the U.S. Army by UTC. The Army was heavily involved in the development and testing of the Blackhawk, including testing of the ESSS-equipped version of the aircraft.

Post-accident investigation indicated that the helicopter involved in the crash may have had an unacceptable "asymmetric right lateral Center of Gravity (CG)"² at the time of the crash. This suspected lateral CG imbalance is thought to have resulted at least in part from the presence of unequal fuel loads in the right and left ESSS tanks. At the time of the crash, one auxiliary tank was nearly empty and the other was almost full. After the crash, additional flight tests were conducted. As a result of these tests, UTC developed a new "lateral center of gravity [flight] envelope," and recommended some special piloting procedures that were to be used when a helicopter operated outside of this "envelope." UTC also added a number of specific warnings to the operator's manual in relation to this new CG envelope.

The plaintiffs in this action — the pilot and passenger who survived the crash and the widows of the four deceased Army officers — sued UTC under the Connecticut Products Liability Act, CONN. GEN.STAT. §§ 52-572m-q, and asserted three distinct theories of liability: strict liability, negligence, and breach of implied warranty of merchantability. At the conclusion of an eleven day trial, the jury, answering interrogatories on a special verdict form, found UTC liable in negligence for failing to warn the Army that the helicopter could become uncontrollable during foreseeable flight conditions. The jury rejected all other grounds of liability, including those based on failure to warn under the strict liability and implied warranty theories. The jury also found that UTC had not made out the elements of its various affirmative defenses, one of which was the government contractor defense. The jury awarded plaintiffs $22.9 million in compensatory damages and no punitive damages.

After the district court entered judgment for the plaintiffs, UTC moved for judgment as a matter of law and, alternately, for a new trial. The district court denied UTC's motions on October 25, 2000. Densberger v. United Technologies Corp., 125 F.Supp.2d 585 (D.Conn.2000). On appeal, UTC argues, primarily, (1) that the jury found liability under a negligence-based post-sale duty to warn that is barred by the CPLA and, in any event, does not exist in Connecticut common law; (2) that, as a matter of law, UTC cannot be liable for failure to warn, as the Army knew of the relevant dangers; (3) that UTC is entitled to a new trial because plaintiffs' engineering expert testified as to the legal scope of UTC's duty to warn; and (4) that the government contractor defense protects UTC from liability.

DISCUSSION

I

UTC contends that the jury, by rejecting the plaintiffs' failure to warn claims under the strict liability and implied warranty theories, necessarily found that the warnings provided to the Army at the time of sale were adequate. In finding UTC liable for failure to warn under the negligence theory, therefore, the jury must have based its verdict solely on a violation of a duty to warn post-sale. This is so, because, according to the jury instructions, such a duty exists only in negligence and cannot be the basis for recovery either in strict liability or for breach of an implied warranty.³

UTC further asserts that — contrary to the jury instructions — there is, in fact, no negligence-based post-sale duty to warn in Connecticut common law. And, if there ever had been such a duty, it is now barred by the CPLA, which according to UTC includes no post-sale obligation and is the exclusive source of a manufacturer's duty to warn in Connecticut. On this basis, UTC requests judgment as a matter of law.

We reject UTC's argument, and in so doing affirm the district court's elegant analysis of the Connecticut common law and its relationship to the CPLA. First, it is clear, as the district court held, that the CPLA does not preempt all common law theories of product liability. Rather, as the exclusive basis for product liability claims under Connecticut law, the CPLA bars separate common law causes of action in product liability cases. See, e.g., Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 562 A.2d 517, 521 (1989) (holding that the CPLA bars a separate negligence-based cause of action). Common law theories, however, rather than being preempted by the CPLA, are incorporated into the statute unless they are expressly inconsistent with it. See, e.g., LaMontagne v. E.I. Du Pont de Nemours & Co., Inc., 41 F.3d 846, 855-56 (2d Cir.1994) (LaMontagne II) (holding that because the CPLA does not delineate the specific elements of the claims that it consolidates, the common law continues to provide the bases for, and theories of, recovery under the act, and that "the CPLA ... apparently was not meant to alter the substance of a plaintiff's rights or the facts that a plaintiff must prove in order to prevail"); Lamontagne v. E.I. Du Pont de Nemours and Co., Inc., 834 F.Supp. 576, 587-89 (D.Conn.1993) (Lamontagne I) (holding that the CPLA "certainly retains the plaintiff's right to allege the traditional theories of recovery along with the statutory basis for recovery under one unified count denominated as a `product liability claim'" (internal quotation marks omitted)), aff'd, 41 F.3d 846 (2d Cir.1994); Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829, 839-41 (2001) (holding that the common law "learned intermediary" defense remains available under the CPLA); Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319, 1345 n. 34 (1997) (holding that the admissibility of state-of-the-art evidence in design defect claims remains available under the CPLA); Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 627 A.2d 1288, 1293 (1993) (holding that a common-law claim for loss of consortium can be brought as part of a CPLA action).

UTC's more plausible argument is that even if some common law theories remain available under the CPLA, those that expressly conflict with the statute do not. The language of the CPLA, UTC contends, explicitly rules out any post-sale duty to warn. It is true that the text of the CPLA contains a discussion of duty to warn, which talks about that duty only at the time of manufacture. See § 52-572q(b) ("In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider ... the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk...."). UTC argues that this express discussion necessarily precludes liability based on the absence of post-sale warnings, regardless of the theory of liability.⁴

Again, we disagree. As the Connecticut Supreme Court has recently held in relation to CPLA...