Engebretsen v. Fairchild Aircraft Corp.

• Decision Date: 09 June 1994
• Docket Number: No. 93-5079,93-5079
• Citation: 21 F.3d 721
• Parties: 39 Fed. R. Evid. Serv. 9, Prod.Liab.Rep.(CCH)P. 13,847 David ENGEBRETSEN, Plaintiff-Appellant, Hartford Insurance Company, Intervening Plaintiff, v. FAIRCHILD AIRCRAFT CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 721

21 F.3d 721

39 Fed. R. Evid. Serv. 9, Prod.Liab.Rep.(CCH)P. 13,847

David ENGEBRETSEN, Plaintiff-Appellant Hartford Insurance Company, Intervening Plaintiff, v. FAIRCHILD AIRCRAFT CORPORATION, Defendant-Appellee.

No. 93-5079.

United States Court of Appeals Sixth Circuit.

Argued March 7, 1994.

Decided April 14, 1994.

Rehearing Denied June 9, 1994.

Stephen L. Black (argued and briefed), Cincinnati, OH, Barbara S. Bison, Cincinnati, OH, for plaintiff-appellant.

Edward R. Goldman (briefed), Ralph F. Mitchell (argued), Rendigs, Fry, Kiely & Dennis, Cincinnati, OH, for defendant-appellee.

Before: KENNEDY and MILBURN, Circuit Judges, and ALDRICH ^*, District Judge.

KENNEDY, Circuit Judge.

Plaintiff David Engebretsen appeals the judgment entered after a jury verdict for defendant Fairchild Aircraft Corporation in this airplane products liability action. On appeal, plaintiff first argues that the District Court erred in denying his motion for judgment as a matter of law. Further, plaintiff argues that the District Court erroneously denied his motion for a new trial because of the admission of two reports by defendant's expert witnesses that contained inadmissible and prejudicial hearsay; the admission of expert testimony regarding post-incident tests; and the District Court's refusal to admit certain government reports offered by plaintiff. For the reasons stated below, we affirm.

I.

This case concerns an emergency landing of a Metro III aircraft manufactured by defendant. Plaintiff, a captain for Comair, alleges that, while attempting to land the plane, he sustained a back injury as a result of the plane's allegedly defective Stall Avoidance System ("SAS"). During the incident in question, plaintiff and First Officer Sean Belcher were flying a Metro III aircraft, a small plane with a capacity for eighteen passengers and two crew members. The Metro III has a flight control known as the elevator, which controls the pitch attitude of the aircraft. The elevator or pitch trim system is used to adjust the elevator and thereby relieve some of the pressure felt by the pilot on the control column or "yoke." The plane is also equipped with an SAS. The SAS senses an impending stall and serves to warn the pilot of the stall and attempts to avoid the stall by causing a forward or nose-down pressure on the control yoke.

Plaintiff and Belcher testified to the following events. On September 14, 1986, plaintiff and Belcher were flying the Metro III en route from Indianapolis to the Greater Cincinnati International Airport in Covington, Kentucky. While on their final approach for landing, Belcher, who was operating the plane, noticed a forward pressure in the control yoke. Plaintiff assumed control, aborted the landing procedure, and initiated a go- around procedure. Believing the yoke pressure was caused by the SAS, plaintiff turned the SAS clutch switch to "off" but the forward pressure was not alleviated. At first, Belcher assumed they were still attempting to land and so continued to push forward on the first-officer yoke, while plaintiff was pulling back on his yoke. Plaintiff continued to climb the aircraft, declared an emergency, and requested landing. As plaintiff proceeded to land, he felt an increasing forward pressure on the yoke, requiring both pilots to fly the plane. Plaintiff also attempted to complete the SAS malfunction checklist, which requires pulling the SAS circuit breakers while maintaining back pressure on the control yoke. After pulling two of the four circuit breakers, the pilots felt another increase in the yoke's nose-down pressure. Plaintiff added power to overcome the yoke pressure and turned for final approach. They felt yet another increase in the nose-down force. Belcher advised the passengers of the emergency and told them to assume crash positions. Unable to fully control the rate of descent, plaintiff had to maintain a high speed in order to reach the runway. He managed to land the plane at 155 knots, approximately fifty-percent faster than normal landing speed. The forward pressure continued on the yoke until all the SAS circuit breakers were pulled. Plaintiff taxied the plane to the gate and the passengers deplaned. Although not then apparent, plaintiff later experienced back pain which he attributes to the incident. At the time of trial, plaintiff was on disability flight status due to his back injury.

Shortly after landing, plaintiff contacted David Wahn, a Comair avionics mechanic, and told him that the SAS pusher had engaged on final approach. Upon inspection of the aircraft, Comair mechanics discovered approximately one inch of water in the aircraft's belly in the environs of the servo motor and clutch. The water build-up was caused in part by the failure of the fuselage drainage plugs. The electrical connector which joined the servo motor to the aircraft's wiring had moisture and corrosion in it. By shorting out certain pins on the electrical connector, the mechanics were able to activate the SAS. The incident was reported to the Federal Aviation Administration (FAA). Because no injuries to person or property were reported, the National Transportation Safety Board ("NTSB") did not fully investigate the incident, leaving it to the FAA. Several other tests were eventually performed by Comair and Fairchild which are discussed at relevant times below.

Plaintiff filed suit in the District Court for the Eastern District of Kentucky seeking damages for personal injury. The court bifurcated the issues of liability and damages. A jury trial was held on the issue of liability. The jury returned a verdict in defendant's favor. The verdict form required the jury to answer three questions:

Question No. 1:

Did the Plaintiff prove by a preponderance of the evidence that the airplane was "unreasonably dangerous" in design and that the unreasonably dangerous condition was a substantial factor in causing the incident which he claims caused the accident referred to in the evidence?

The jury answered this question in the negative.

Question No. 2:

Did Plaintiff, David Engebretsen, prove by a preponderance of the evidence that the Stall Avoidance System (SAS) continued to exert force on the controls after the clutch switch was turned off?

The jury answered this question in the negative.

Question No. 3:

Did the Defendant, Fairchild Aircraft Corp., prove by a preponderance of the evidence that the Plaintiff, David Engebretsen, was guilty of negligence which was a substantial factor in causing the plaintiff's injury referred to in the evidence?

The jury answered this question in the negative. The District Court entered judgment in accordance with the verdict. Plaintiff's post-judgment motions were denied.

II.

Plaintiff first assigns error in the denial of plaintiff's motion for judgment as a matter of law. He argues that the undisputed eye-witness testimony establishes that the aircraft experienced a malfunctioning of the SAS; that the pilots took all reasonable steps to disconnect the SAS; and that the SAS continued to exert a nose-down pressure after plaintiff took all such reasonable steps to disconnect it.

The issue raised by a motion for judgment as a matter of law is whether there is sufficient evidence to raise a question of fact for the jury. Warkentien v. Vondracek, 633 F.2d 1, 6 (6th Cir.1980). This Court must apply the same standard on review. Id. at 6-7. Furthermore, "[i]n reviewing the grant of a judgment [as a matter of law], this circuit has long held that the state law standard controls in a diversity case." Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th Cir.1984). This case is governed by the laws of Kentucky. Under Kentucky law, in reviewing a trial court's refusal to enter judgment notwithstanding the verdict, "[a]ll evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact." Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky.1990). We must give the non-moving party the benefit of all favorable inferences. See Calhoun v. Honda Motor Co., 738 F.2d 126, 133 (6th Cir.1984). In a products liability case, the plaintiff must prove that the product was defective and that "the defect was the 'probable' cause of the accident as distinguished from a 'possible' cause among other possibilities." Calhoun, 738 F.2d at 133 (quoting Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745, 747 (Ky.1973)).

Turning to this case, plaintiff disputes the conclusions reached by the jury on the first two interrogatories. The jury found that the airplane was not unreasonably dangerous and that the SAS did not continue to exert force on the controls after the clutch switch was turned off. Plaintiff argues that the evidence clearly shows that the sole cause of the accident was a malfunctioning of the SAS, which exerted forward pressure on the control yoke; that this malfunction was caused by moisture in the aircraft's belly; and that the accumulation of such moisture was foreseeable to defendant.

Defendant, conceding that the SAS was unintentionally activated by exposure to moisture, defended on the ground that the amount of water in the belly was unforeseeable and/or detectable by proper maintenance inspection, and that the continued increase in the yoke pressure resulted from water-shifting in the belly and the pilots' misapplication of the pitch trim. Defendant also argues that there was ample evidence to support the jury's answer as to the second interrogatory that the SAS was deactivated when switched "off."

We find evidence in the record to support defendant's position. First, evidence supported a finding that the amount of water in plaintiff's airplane was unforeseeable. Comair mechanic David Wahn testified on cross-examination that he had never seen that much water in the belly of one of these aircraft...