Four Corners Helicopters, Inc. v. Turbomeca, S.A.

• Decision Date: 17 November 1992
• Docket Number: No. 91-1295,91-1295
• Citation: 979 F.2d 1434
• Parties: 37 Fed. R. Evid. Serv. 225, Prod.Liab.Rep. (CCH) P 13,373 FOUR CORNERS HELICOPTERS, INC., a Colorado corporation; Jenny R. Paton, as surviving spouse and as personal representative of the Estate of William Paton, deceased, Plaintiffs-Appellees, v. TURBOMECA, S.A., a French corporation, Defendant-Appellant, and Societe Nationale Industrielle Aerospatiale, a French corporation; Aerospatiale Helicopter Corporation, a Delaware corporation; Avialle, Inc., a Delaware corporation; Roberts Aircraft, Inc., an Arizona corporation, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1434

979 F.2d 1434

37 Fed. R. Evid. Serv. 225, Prod.Liab.Rep. (CCH) P 13,373

FOUR CORNERS HELICOPTERS, INC., a Colorado corporation Jenny R. Paton, as surviving spouse and as personal representative of the Estate of William Paton, deceased Plaintiffs-Appellees, v. TURBOMECA, S.A., a French corporation, Defendant-Appellant and Societe Nationale Industrielle Aerospatiale, a French corporation; Aerospatiale Helicopter Corporation, a Delaware corporation; Avialle, Inc., a Delaware corporation; Roberts Aircraft, Inc., an Arizona corporation, Defendants.

No. 91-1295.

United States Court of Appeals Tenth Circuit.

Nov. 17, 1992.

Mary A. Wells (J. Mark Smith and Stephen J. Baity, with her on the briefs), of Weller, Friedrich, Ward & Andrew, Denver, Colo., for appellant.

James A. Cederberg (Douglas E. Bragg, with him on the brief), of Bragg, Baker & Cederberg, P.C., and Chris A. Mattison (Alan Epstein, with him on the brief), of Hall & Evans, Denver, Colo. for plaintiffs-appellees.

Before LOGAN, HOLLOWAY and BARRETT, Circuit Judges.

BARRETT, Senior Circuit Judge.

Turbomeca, S.A. (Turbomeca) appeals from a judgment entered in favor of plaintiffs Jenny Paton and Four Corners Helicopters, Inc. (Four Corners).

Factual Background

This case arises from a helicopter crash which resulted in the death of pilot William Paton (Paton), husband of Jenny Paton. At the time of the accident, Paton was operating an Aerospatiale SA 315 B "Lama" helicopter for his employer, Four Corners. The helicopter was powered by an Artouste IIIB turbine engine, designed and manufactured by defendant Turbomeca.

The Artouste IIIB is a constant-speed engine which maintains the same revolutions per minute (RPMs) during operational maneuvers by sensing deviations in RPMs and adjusting the amount of fuel delivered to the engine. This process produces additional heat, and if the engine temperature limits are exceeded, the engine will burn itself up.

At the time of the accident, Paton was using the helicopter to transport a compressor by long-line. Although this maneuver placed substantial demands on the engine, it was within the engine's limits. Prior to the accident, this helicopter had been used extensively for this type of mission and, in fact, following the accident, was replaced by a similar aircraft. In the instant case, it is undisputed that the helicopter engine overheated, causing the aircraft to crash. The issue at trial was the cause of overheating.

The National Transportation Safety Board (NTSB) investigated the accident at the scene, during engine dismantling, and at Turbomeca's facility in France. The NTSB discovered that a loose labyrinth screw had backed out of position and contacted the compressor impeller. In its report, the NTSB noted that an abnormal squeal, caused by the screw rubbing the diffuser-holder plate, had been witnessed prior to the crash of the aircraft. The NTSB's report also documented twenty-one previously reported instances where, during the course of engine repair or maintenance, it was discovered that the labyrinth screw had rubbed the impeller. In each instance, the engine was removed either because of abnormal noise which occurred during engine rundown, later discovered to be the screeching of the screw on the impeller, or because of a slightly slower rundown time.

Turbomeca also participated in the investigation, conducting loose screw tests upon a similar engine and then transmitting the results to the NTSB and the Federal Aviation Administration (FAA). In its report, Turbomeca reviewed the same twenty-one prior loose screw incidents but concluded that the friction between the screw and the impeller was a minor anomaly which had no effect on the correct operation of the engine. Turbomeca had previously issued Service Bulletin TU133, labelled "URGENT," which outlined a modification procedure to "improve locking of front labyrinth fastening screws on diffuser cover." The company recommended that the modification be performed as soon as possible on both the production line and when repairing engines. The modification consisted of "staking" the screw heads to the surrounding metal, and was performed on the subject engine in 1979 at Turbomeca's factory in France. During Turbomeca's final testing of the engine in question, the engine "seized" during rundown. This seizure was the subject of a second report by Turbomeca which was never provided to the NTSB, the FAA, or Four Corners.

Plaintiffs proceeded to trial on strict liability in tort and negligence theories. They asserted that the helicopter engine failed when a loose labyrinth housing screw backed out of position and contacted the rear face of the compressor impeller. They claimed that this contact reduced the engine's RPMs, causing additional amounts of fuel to be injected into the engine. The additional fuel produced an increase in temperature beyond the engine's limits, resulting in the engine's destruction.

Turbomeca asserted that the loose labyrinth screw could not have caused the engine failure. Turbomeca presented evidence that when a helicopter is required to hover and place a load in a confined area, a collective pitch change results, increasing the engine's temperature, over which the pilot has control. Turbomeca argued that in the instant case, the pilot's demands on the aircraft, namely pulling up too much on the collective pitch control, caused the engine to overheat and ultimately fail. Although Turbomeca's accident reconstructionist opined that no mechanical failure caused the accident, he nevertheless conceded that if there had been a mechanical problem, his theory on pilot error would not be appropriate.

The jury found Turbomeca liable under strict liability only. The district court entered judgment on the jury's verdict, including interest and costs, in favor of Paton in the amount of $959,926.20 and in favor of Four Corners in the amount of $306,204.37.

On appeal, Turbomeca contends that the district court erred in: (1) instructing the jury on a rebuttable presumption that the decedent acted with reasonable care at the time of the accident which caused his death; (2) admitting evidence of sixteen incidents involving labyrinth seal screw backouts; (3) excluding evidence of an experiment conducted by Turbomeca's expert; (4) permitting recovery of economic damages under a strict liability theory; and (5) awarding prejudgment interest on future damages, discounted to the date of trial rather than the date of the decedent's death.

Discussion

I. PRESUMPTION OF REASONABLE CARE INSTRUCTION

Turbomeca contends that the district court erred in instructing the jury on a rebuttable presumption that the decedent acted with reasonable care at the time of the accident which caused his death.

In instructing the jury, the district court directed the jurors to "consider only evidence admitted in the trial," which included, among other things, "all presumptions stated in [the] instructions." The court indicated that "[p]resumptions are rules based on experience or public policy and are established om [sic] the law to assist the jury in ascertaining the truth." Then, over Turbomeca's objection, the court instructed that "[w]hen a person is dead and cannot testify concerning his actions, the law presumes, unless there is evidence to the contrary, that the decedent acted with reasonable care."

A.

Citing Simpson v. Anderson, 33 Colo.App. 134, 517 P.2d 416, 417 (1973), rev'd on other grounds, 186 Colo. 163, 526 P.2d 298 (1974), Turbomeca asserts that under Colorado's comparative fault law, the decedent in a wrongful death action is not presumed to have acted with reasonable care. In Simpson, the Colorado Court of Appeals noted that the presumption of due care was "created primarily to ameliorate the harsh effect of a complete denial of recovery resulting from a finding of contributory negligence...." Id. Because under comparative negligence a plaintiff's fault will not entirely defeat his recovery, "the rationale behind [the] presumption is therefore no longer persuasive." Simpson, 517 P.2d at 417. The Simpson court concluded "that a rule that presumes exercise of due care by a decedent is inapplicable in wrongful death actions tried under [the] comparative negligence statute." Id.

Simpson is determinative on this issue, even though the presumption of due care was later reaffirmed by the Colorado Supreme Court in City and County of Denver v. DeLong, 190 Colo. 219, 545 P.2d 154 (Colo.1976). DeLong indicates that an instruction on the rebuttable presumption of due care is appropriate in a personal injury action where a party's injury results in amnesia. The court in DeLong intended that the reader compare the presumption discussed in DeLong with its discussion in Simpson. The DeLong court cited five cases supporting the presumption, followed by this reference: "cf., Simpson v. Anderson," (citation omitted), "which prohibits the use of the presumption in a wrongful death action when comparative negligence is the issue." DeLong, 545 P.2d at 156-57. DeLong cites Simpson as authority which supports a proposition different from that espoused in DeLong.

The instant case is brought under Colorado's comparative fault statute. As such, decedent's fault, if any, will not completely bar recovery. Therefore, the rationale behind application of the presumption does not exist. Following Simpson, we hold that the presumption is inapplicable in a wrongful death action where comparative negligence is at issue. Though the district court gave an erroneous jury instruction, this does not end our inquiry.

B.

"[A]n error in jury instructions will mandate reversal of a judgment only if the error is determined to have been prejudicial, based on a review of the record as a whole." Street v. Parham, 929 F.2d 537, 539-40 (10th Cir.1991) (citations omitted). Turbomeca claims that the giving of a jury instruction on a presumption which is not available under state...