Desrosiers v. Flight Intern. of Florida Inc.

• Decision Date: 15 September 1998
• Docket Number: No. 97-16062,97-16062
• Citation: 156 F.3d 952
• Parties: 98 Cal. Daily Op. Serv. 7182, 98 Daily Journal D.A.R. 9928 Herbert DESROSIERS; Gene Desrosiers, Guardian Ad Litem for Herbert Desrosiers, Plaintiffs-Appellees, v. FLIGHT INTERNATIONAL OF FLORIDA INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 952

156 F.3d 952

98 Cal. Daily Op. Serv. 7182, 98 Daily Journal

D.A.R. 9928

Herbert DESROSIERS; Gene Desrosiers, Guardian Ad Litem for

Herbert Desrosiers, Plaintiffs-Appellees, v. FLIGHT INTERNATIONAL OF FLORIDA INC., Defendant-Appellant.

No. 97-16062.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 12, 1998.

Decided Sept. 15, 1998.

Mark A. Dombroff, Dombroff & Gilmore, Washington, D.C., for defendant-appellant.

Patrick G. Vastano, Vastano & Angarella, Los Angeles, California, for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-93-05707-OWW(DLB).

Before: LAY, ^* KOZINSKI and T.G. NELSON, Circuit Judges.

LAY, Circuit Judge:

Flight International ("Flight") appeals the judgment of the district court in favor of Herbert Desrosiers and Joshua Rodriguez in a diversity action arising out of a plane crash at Edwards Air Force Base, California. The jury assessed Flight's comparative fault for the crash to be forty-two percent. Flight filed a motion for new trial asserting several errors occurred during the trial. The district court denied the motion for new trial and entered judgment on the verdict. This appeal follows.

I. Factual and Procedural Background

Flight International ¹ had a three-year, $2.5 million contract with the U.S. government to provide and maintain three aircraft at the U.S. Naval Air Weapons Station in China Lake, California. Under the terms of the contract, Flight was required to provide on-site maintenance and to ensure that personnel assigned to perform maintenance tasks on the aircraft and related components were licensed and qualified.

Equipment required to be maintained under the contract included a dual-display navigational instrument known as the Distance Measuring Equipment ("DME"). The DME is an instrument used to inform the pilot of the distance between the aircraft and a transmitter at the airport. Information from the DME is displayed on both the pilot's side and on the co-pilot's side of the cockpit.

On May 18, 1992, Navy Lieutenant David Garnett piloted a Mitsubishi MU-2 aircraft, owned and maintained by Flight, from China Lake to Edwards AFB. The flight covered forty-five miles and normally took less than twenty minutes. The MU-2 is a ten-seat, twin-engine turboprop airplane. The plane was carrying nine people, including the pilot. Weather conditions for the flight were excellent; there were no visibility problems.

During the trial, Flight admitted the DME system in the MU-2 was not reliable. Evidence was produced to show that the DME was not working on certain frequencies and gave incorrect readings, thus giving a pilot inaccurate distance information. Flight also admitted that the DME was not maintained in a proper working condition on the day of the accident. Normally, if equipment was not working, an "inoperative" placard would be affixed to the instrument panel. The Federal Aviation Administration provides a Minimum Equipment List which requires an inoperative sticker to be placed on the equipment in order to inform the crew of the equipment condition. No placard was placed on the DME. Instead, a "can" placard was placed in a maintenance log, stating: "Number 1 DME inop. on various frequencies." ER at 111. However, Flight's maintenance engineer based at China Lake testified that the placard did not mean the DME could not be used.

There also was substantial evidence from which the jury could infer the pilot was using the No. 1 DME as he flew toward Edwards AFB. The DME switch positions at impact were set to receive information on the No. 1 DME through the NAV1 radio. The switch positions indicate Lt. Garnett flew directly toward the Edwards TACAN (TACtical Aero Navigation) radio transmitter, and was using the instrument for direction instead of navigating by sight.

The flight was uneventful until shortly before the plane reached Edwards AFB. At that time, Lt. Garnett radioed the Edwards control tower and reported his plane was fifteen miles northeast of the landing field. In reality, the plane was only about eight miles from the field. Shortly after reporting he was fifteen miles out, Lt. Garnett flew over the Edwards TACAN radio transmitter and realized he had misreported his position to the control tower. The MU-2 was flying directly toward Edwards' main runway and into the flight path of military aircraft.

In an effort to correct his position, Lt. Garnett made a 360-degree turn into the high-speed, tower fly-by line. ² The turn placed the MU-2 directly in front of a descending F-16 fighter aircraft, which flew over the top of the slower-moving airplane. A "wake turbulence" from the F-16 hit the MU-2 a few seconds later, causing Lt. Garnett to lose control of the airplane and crash into the desert. Lt. Garnett was killed in the crash.

Desrosiers, a Navy enlisted man, suffered brain injury in the accident; Airman Lorenzo Rodriguez was killed. Desrosiers and Joshua Rodriguez, the son of Airman Rodriguez, filed actions through their respective guardians ad litem against several parties, including Flight. A consolidated trial on liability was held in November 1996 in district court, in which the jury assessed Lt. Garnett's contributory fault for the crash to be fifty-eight percent, and Flight's contributory fault to be forty-two percent.

A trial on damages was held a month later, resulting in a $20 million award for Desrosiers, and a $1.4 million judgment in favor of Rodriguez. ³ The district court in May 1997 denied the defendant's motion for new trial on liability, and in June 1997 denied its motion for a new trial on damages.

II. Proximate Cause

Under California law, the proximate cause of an injury is a cause which is a substantial factor in bringing about the injury. See Mitchell v. Gonzales, 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872, 878-79 (1991) (in bank) (endorsing a "substantial factor" test for proximate cause). "Generally causation is a question of fact for the jury. However, it may be determined as a matter of law when reasonable persons could not dispute the absence of causation." Bockrath v. Aldrich Chem. Co., 74 Cal.Rptr.2d 774, 784, 64 Cal.App.4th 1 (1998).

Flight argues that, as a matter of law, an inaccurate DME reading "cannot be the proximate cause of the accident because the risk of harm from an inoperative DME was not the risk that caused the accident." Flight Br. at 48. Instead, Flight argues, "[t]he risk of harm from a DME that gave a misleading distance report would be that it would lead to confusion among other pilots and the tower as to his position resulting in his aircraft being mis-sequenced for landing." Id.

Because the risk of foreseeable harm--the mis-sequencing of aircraft--did not actually occur, Flight concludes, "the alleged error from [the DME] could not be a proximate cause of the accident." Id. at 49. The defendant now asks this court to reverse the jury's determination, and enter a judgment as a matter of law in their favor.

The defendant's request for a judgment as a matter of law from this court, however, is procedurally problematic. Under Federal Rule of Civil Procedure 50(a), a defendant may request the trial court to grant a judgment as a matter of law at the close of plaintiff's evidence, or at the close of all of the evidence, if "there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party...." After a jury verdict, the moving party may renew its request for a judgment as a matter of law under Rule 50(b).

According to the trial record submitted to this court, Flight did not at any time move for a judgment as a matter of law at the close of the plaintiff's case, or at the close of all the evidence. In order to preserve the right to move for a judgment notwithstanding the verdict under Rule 50(b), a motion under Rule 50(a) first must be made. See, e.g., Pierce v. Southern Pac. Transp. Co., 823 F.2d 1366, 1369 (9th Cir.1987); Farley Transp. Co. v. Santa Fe Transp. Co., 786 F.2d 1342, 1345-46 (9th Cir.1985).

However, more importantly, in the absence of a Rule 50(b) motion, it is clear this court does not have the power to grant such a judgment. See Johnson v. New York, New Haven & Hartford R.R. Co., 344 U.S. 48, 50, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217-18, 67 S.Ct. 752, 91 L.Ed. 849 (1947). As the Supreme Court stated in Cone:

The respondent failed to submit a motion for judgment notwithstanding the verdict to the trial judge in order that he might exercise his discretionary power to determine whether there should be such a judgment, a dismissal or a new trial. In the absence of such a motion, we think the appellate court was without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.

330 U.S. at 217-18, 67 S.Ct. 752. (our emphasis).

The only motion filed by Flight following the verdict was a motion for a new trial under Rule 59, on the ground that the verdict for liability was against the greater weight of the evidence. This motion was denied by the district court, which found that "[n]o miscarriage of justice will occur if the jury's liability verdict stands." Desrosiers v. Mitsubishi Aircraft Int'l, Inc., Nos. 93-5707, 95-5598, (E.D. Calif. May 16, 1997) (Memorandum Opinion and Order Re: Defendants' Motions for New Trial), at 8; ER at 158.

Because Flight failed to make a Rule 50(b) motion, this court has no power to grant, and therefore cannot consider, a judgment as a matter of law. See Johnson, 344 U.S. at 50, 73 S.Ct. 125; Cone, 330 U.S. at 217-18, 67 S.Ct. 752. For this reason, the only issue properly before us regarding causation is the district court's denial of a motion for a new trial under Rule 59. While we would review de novo a district court's denial of a motion for judgment as a matter of law, see,...