Glazer v. Socata

• Decision Date: 29 March 2022
• Docket Number: Index I2016009655
• Citation: 2022 NY Slip Op 22127
• Parties: Kenneth Glazer, Individually and as Administrator of the Estates of Laurence Glazer and Jane Glazer, Deceased, Plaintiff, v. Socata, S.A.S.; et al., Defendants. Socata SAS; and Socata North America, Inc., Counter claimants, v. Kenneth Glazer, as Administrator of the Estate of Laurence Glazer, Deceased, Counter defendant.
• Court: New York Supreme Court

2022 NY Slip Op 22127

Kenneth Glazer, Individually and as Administrator of the Estates of Laurence Glazer and Jane Glazer, Deceased, Plaintiff, v. Socata, S.A.S.; et al., Defendants.

Socata SAS; and Socata North America, Inc., Counter claimants, v. Kenneth Glazer, as Administrator of the Estate of Laurence Glazer, Deceased, Counter defendant.

Index No. I2016009655

Supreme Court, Monroe County

March 29, 2022

Daniel O. Rose, Esq., and Evan Katin-Borland, Esq., Kreindler &amp Kriendler LLP, attorneys for Plaintiff

Joseph J. Ortego, Esq., Brian C. Dalrymple, Esq., and Tracey B Scarpello, Esq., Nixon Peabody, attorneys for Defendants Socata S.A.S. and Socata North America, Inc. Fred G. Wexler Esq., Brown Gavalas & Fromm, LLP, attorneys for Defendant

Columbia Aircraft Sales, Inc. Paul A. Lange, Esq., Law Offices of Paul A. Lange, attorney for The Estate of Larry, Glazer

Daniel J. Doyle, J.

This case arises out of the crash of a Daher SOCATA TBM 900 aircraft on September 5, 2014, which claimed the lives of Laurence (aka "Larry") Glazer and his wife, Jane Glazer. Plaintiff Kenneth Glazer, individually and on behalf of the estates of Laurence and Janes Glazer, commenced this action alleging that the aircraft's pressurization system was defective in that it allowed an unsafe cabin depressurization to occur due to the allegedly defective design of the aircraft's pressurization system and certain components thereof, setting forth claims for strict products liability, negligence, and implied warranty against Defendants SOCATA (Daher Aerospace SA, sued as and successor-by-merger to Socata, S.A.S., and Daher Aircraft Inc., sued as and formerly known as Socata North America, Inc.) and Defendant Columbia Aircraft Sales, Inc. ^[1]

Before the Court are the following motions: (1) Defendant SOCATA's Notice of Motion seeking exclusion of prior incidents dated September 17, 2021; ^[2] (2) Defendant SOCATA's Notice of Motion to exclude evidence of post-accident remedial measures dated September 17, 2021; ^[3] (3) Plaintiff's Notice of Motion to exclude Defendants' expert Buza dated September 17, 2021; ^[4] (4) Defendant SOCATA's Notice of Motion to exclude Plaintiff's experts Sommer, Bloomfield, Mallak, Carden, and Doss dated September 17, 2021; ^[5] (5) Plaintiff's Notice of Motion to exclude Defendants' expert Downey dated September 17, 2021; ^[6] (6) Plaintiff's Notice of Motion to exclude Defendants' expert Fowler dated September 17, 2021; ^[7] (7) Plaintiff's Notice of Motion to exclude Defendants' expert Wall dated September 17, 2021; ^[8] (8) Defendant SOCATA's Notice of Motion to exclude Plaintiff's experts Moore and Gabinetti dated September 17, 2021; ^[9] (9) Defendant SOCATA's Notice of motion for summary judgment dated September 17, 2021; ^[10] and (10) Defendant Columbia Aircraft Sales, Inc.'s Notice of Cross-Motion for summary judgment dated September 21, 2021. ^[11]

Each motion shall be addressed seriatim.

Defendant SOCATA's motion to exclude prior incidents ^[12]

Plaintiff's theory of the cause of the accident, as it is relevant to the issues herein, is that Defendant SOCATA designed a cabin pressurization system that relied upon an overheat thermal switch (OTSW) to shut down "bleed air" from the engine when that air became too hot (in order protect components of the pressurization system). According to Plaintiff, due to a faulty design, the OTSW in Mr. Glazer's TBM 900 plane became damaged, ^[13] rendering a false signal to the computer controller operating the pressurization system resulting in: (1) a warning message informing Mr. Glazer of the fault, and requiring him to engage in corrective action that would be fruitless; and (2) improperly turning off the bleed air that pressurized the cabin while Mr. Glazer was operating the plane at an ambient air pressure of 25, 000 feet. This resulted in a depressurization of the cabin air pressure from 10, 000 feet to 25, 000 feet over a short period of time, leading to Mr. Glazer suffering hypoxia, loss of consciousness, and eventual death. ^[14]

Defendant SOCATA has moved to preclude the Plaintiff from admitting evidence that on eight (8) occasions prior to the subject accident faulty OTSWs in other SOCATA planes caused a "bleed air" warning light, and/or a bleed air shut-off depressurization event. These prior incidents were memorialized in Technical Trouble Reports ("TTR") ^[15] that were provided to the National Transportation Safety Board as part of their investigation. SOCATA argues that these TTRs, and the information contained therein, are inadmissible as they describe events that are not "substantially similar" to the subject accident, citing Hyde v. County of Rensselaer (51 N.Y.2d 927 [1980]). ^[16]

Defendant SOCATA argues that for a prior incident to be admissible, it must be "virtually identical in nature to the incident at issue" and occurred under the same factual circumstances as the subject incident. SOCATA points to dissimilar facts in each incident outlined in the relevant TTRs (and warranty claim) as compared to the Glazer subject incident, such as the differences in operation of the plane (altitude, engine power settings, weather, etc.), arguing that as these variables do not align with the Glazer accident, the prior incidents are inadmissible. The Court disagrees.

"Substantial similarity depends upon the underlying theory of the case," Four Corners Helicopters, Inc. v. Turbomeca S.A., 979 F.2d 1434 (10th Cir.1992), and is defined by the particular defect at issue, Jackson v. Firestone Tire & Rubber, 788 F.2d 1070, 1083 (5th Cir.1986)." (Guild v. Gen. Motors Corp., 53 F.Supp.2d 363, 367 (W.D.NY 1999.) The relevant question to be determined is whether the incidents described in the TTR reports and warranty claim were "substantially similar" to the Plaintiff's theory of causation in the case at bar- that the OTSW in Mr. Glazer's plane provided a false signal to the air system controller resulting in a false warning ("bleed temp") and eventual shut-down of the cabin air pressure. Under Plaintiff's theory of causation, the variables relied upon by SOCATA to distinguish the prior incidents are immaterial, as the OTSW failures in the prior incidents were not related to how the plane was being operated at the time of the "bleed temp" warning or depressurization event. ^[17]

A review of the TTRs and warranty claim establishes that all involved a "bleed temp" message activation during operation of the planes. Under Plaintiff's theory, these activations were also due to defective OTSWs; indeed, several of the TTRs and the warranty claim note that the relevant OTSW was defective (see TTR 1127; 2196; 2211; warranty claim). Thus, the Court finds that they are "substantially similar" and thus admissible.

SOCATA also argues that as the information contained the TTRs and warranty claim contains hearsay (information about the "temp bleed" warning and depressurization event), they cannot be admitted as business records pursuant to CPLR 4518(a). The Court disagrees.

The TTRs ("Technical Trouble Reports") are clearly business records, as they are forms created by SOCATA's employees, or by the employees of entities servicing SOCATA manufactured planes, and the information contained therein is used by SOCATA to "track technical troubles with its aircraft". (Bivens transcript, NYSCEF Docket No. 396, at page 112.) A review of the TTRs and the warranty claim (also a business record kept by SOCATA) shows that they do contain information gleaned from the pilot of the plane about the event that had necessitated the creation of the TTR. The Court finds that this information is admissible as well.

In Pencom Systems, Inc. v. Shapiro (237 A.D.2d 144 [1st Dept 1997]) the First Department considered whether hearsay information contained in business records kept by the Plaintiff was admissible. The court held:

Plaintiff's recruiters were under a business duty to record contemporaneously statements that were made and events that took place in the course of their contacts with job applicants, and they regularly relied upon such information in matching applicants with possible employers. In addition, the desire of the applicant to secure a better position, the recruiter's reliance on the information provided, and the applicant's awareness of that reliance created an equivalent business duty on the part of the applicant to accurately respond to the recruiter's inquiries regarding his or her reasons for changing jobs, job and salary requirements, and interest in the recruiter's offers of placement. These contemporaneous business duties gave the records in question sufficient indicia of reliability to qualify as business records (citations omitted). The lack of personal knowledge on the part of the person entering the information into the database goes to its weight, not admissibility (CPLR 4518[a]).

(Id.)

The same factors the Court in Pencom considered in determining that the records were admissible in that case are present here. The desire of the pilots of the planes referenced in the TTRs and warranty claim to have the issue raised by them satisfactorily resolved, SOCATA's reliance on that information to troubleshoot the issue, and the pilots' awareness of that reliance created "an equivalent business duty" on the part of the pilot to accurately convey the information contained in the TTRs and warranty claim. (Id.)

Furthermore the information that SOCATA argues is hearsay is clearly information that is incorporated into SOCATA's own records and routinely relied upon by SOCOTA to troubleshoot, and remedy, defects. (See e.g. State v. 158th Street & Riverside Drive Housing Company, Inc., 100 A.D.3d 1293 [3rd Dept. 2012] lv. denied 20 N.Y.3d 858 [2013]: records admissible "if the recipient can...