Hetzer-Young v. Elano Corp., Appellate Case No. 2013-CA-32
| Decision Date | 21 March 2014 |
| Docket Number | Appellate Case No. 2013-CA-32,Trial Court Case No. 2011-CV-597 |
| Citation | 2014 Ohio 1104 |
| Parties | REBECCA HETZER-YOUNG, et al Plaintiffs-Appellants v. ELANO CORPORATION, et al. Defendants-Appellees |
| Court | Ohio Court of Appeals |
(Civil Appeal from
Common Pleas Court)
BRADLEY STOLL, Atty. Reg. No. 2263, 1710-12 Locust Street, Philadelphia, Pennsylvania 19103, MARY JANE TRAPP, Atty. Reg. No. 0005315, 1400 West Sixth Street, Suite 400, Cleveland, Ohio 44113, THOMAS INTILI, Atty. Reg. No. 0036843, 130 West Second Street, Suite 310, Dayton, Ohio 45402
ELIZABETH B. WRIGHT, Atty. Reg. No. 0018456, ANDREW H. COX, Atty. Reg. No. 0071459, STACEY A. GREENWELL, Atty. Reg. No. 0077909, CONOR A. McLAUGHLIN, Atty. Reg. No. 0082524, 3900 Key Center, 127 Public Square, Cleveland, Ohio 44114
{¶ 1} The Plaintiffs-Appellants in this case are Rebecca Hetzer-Young, individually and as personal representative of the Estate of Michael Young; Anise Nash, individually and as personal representative of the Estate of Ginny Young, deceased; and Elizabeth Lampe, individually and as personal representative of the Estate of Charles Lampe, deceased (collectively, "Plaintiffs"). The Defendants-Appellees are Elano Corporation and Unison Industries, LLC (collectively, "Unison").
{¶ 2} Plaintiffs contend that the trial court erred in granting summary judgment in favor of Unison. The decision was based on the court's earlier ruling, which excluded all of Plaintiff's expert testimony on causation as a sanction for spoliation of evidence. Plaintiffs further contend that the trial court abused its discretion in relying solely upon the testimony of a defense expert without first ruling on a pending Daubert challenge to the expert's testimony. In addition, Plaintiffs maintain that the trial court abused its discretion by striking spoliation rebuttal affidavits, and in failing to consider arguments supporting equitable relief from the court's spoliation judgment.
{¶ 3} We conclude that the trial court abused its discretion in awarding sanctions for alleged spoliation of evidence and precluding Plaintiffs from presenting expert testimony on causation. Because the trial court based its summary judgment decision on the lack of evidence of causation, summary judgment was also not properly rendered in favor of Unsion.
{¶ 4} We further conclude that the remaining assignments of error are moot, due to the disposition of the assignment of error relating to spoliation and summary judgment.Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.
{¶ 5} On March 13, 2005, Dr. Michael Young took his daughter, Ginny Young, and Ginny's boyfriend, Charles Lampe, for a short flight in his 1974 Grumman AA-5 Traveler airplane. Dr. Young had previously purchased the airplane in November 2003.
{¶ 6} After briefly cruising in the area of the Lawrence County Airport in Chesapeake, Ohio, Dr. Young made two approaches to Runway 26, but did not land the airplane. On the second attempt, the airplane cleared some trees at the end of the runway, went into an aerodynamic stall, and crashed. The airplane then caught on fire. All three occupants of the plane were killed as a result of the crash.
{¶ 7} Initially, the National Safety Transportation Board (NTSB) had custody of the wreckage. After NTSB released the wreckage, Plaintiffs first inspected the wreckage on November 7, 2005, at storage facilities at the Sandusky Regional Airport. At that time, the components of the aircraft engine were visually inspected and photographed. According to Allan Fielder, one of Plaintiffs' experts, the entire exhaust system was distorted by impact forces.
{¶ 8} The next inspection occurred at Anglin Aircraft Recovery ("Anglin") on December 14, 2005, after the wreckage had been transported to Anglin's facility. Among those present were various representatives of Plaintiffs, including Fielder. Also present were a representative of Lycoming Engineers, which had manufactured the airplane engine (a Lycoming O-329-E2G), and a representative (Hope Alexander) of Aviation Adjusting Associates, anindependent adjusting firm that had been retained by Global Aerospace ("Global"). Global insured the airplane and was the custodian of the wreckage.
{¶ 9} At the time of the initial inspection, no muffler manufacturer had been identified. Both Fielder's and Lycoming's experience was that any identifying marks would be on the muffler assembly itself. However, the muffler did not contain any identifying marks. The muffler had been replaced in 1987, but the shroud on the muffler was original to the airplane's manufacture in 1974. In a subsequent inspection, the shroud of the muffler was cleaned and was found to contain the Elano name (Unison's predecessor), with a part number and manufacture date.
{¶ 10} The inspection in December 2005 indicated that the shroud, outer case, header pipe, and tailpipe of the muffler had all been deformed by impact damage. The inspection further revealed that deformation of the outlet stack for the muffler impaired the participants' ability to view the internal flame tube of the muffler. Accordingly:
After discussions with the representatives of the insurer of the aircraft (custodian of the wreckage) and the engine manufacturer a decision was made to remove the outlet stack for a better view of the internal flame tube of the muffler. * * * The internal flame tube fragments were lodged in place in the area of the muffler outlet; however, the entire flame tube could not be viewed through the outlet stack. A pressure or flow test of the muffler was not feasible and would not have reliable results due to the damaged state of the muffler assembly. It was agreed by the parties present at the inspection to use a precision milling machine to cut open the muffler canister. This equipment would reduce the possibility ofdamaging the internal components of the muffler. * * * Doc. #16, Exhibit D, June 30, 2010 Affidavit of Allen Fieldler, p. 4, ¶ 12.
{¶ 11} Subsequently, on August 21, 2006, McSwain Engineering received the propeller, engine, and engine accessories, including the muffler, from Anglin. McSwain had been retained to provide expert opinions to Plaintiffs. In March 2007, Plaintiffs filed suit against Lycoming and various other defendants, including Unison, in the Cuyahoga County Court of Common Pleas. Unsion did not assert spoliation as an affirmative defense at that time.
{¶ 12} After Unison requested an inspection of the muffler assembly, an inspection was held at McSwain Engineering on October 9, 2007. At that inspection, Unison did not ask that the muffler housing be re-secured for purposes of performing muffler air flow testing.
{¶ 13} On June 24, 2008, representatives of the defendants in the court action, including Unison, attended another joint inspection. At that time, small pieces of the internal baffle of the muffler were sectioned, or cut, so that optical and electron microscopic examination and chemical analysis could be performed. This would not have affected the ability to perform muffler air flow analysis, and Unison did not object to this process. Unison also did not ask that the muffler housing be re-secured for purposes of air flow testing prior to the sectioning of the baffle.
{¶ 14} In a report dated July 15, 2008, Plaintiffs' expert, Dr. Donald Sommer, stated that the crash was caused by the aircraft's inability to remain airborne after departure due to a power loss. Sommer attributed the power loss to a plugged muffler exit due to deterioration of internal components, exacerbated by a carburetor float that was of an "old, composite style incapable of producing the correct fuel/air ratio." Doc. #16, Exhibit C, Affidavit of DonaldSommer, p. 1, ¶ 1, and Exhibit B attached to the Sommer Affidavit, p. 15.
{¶ 15} Pursuant to Unison's request, the muffler parts were shipped to Unison's expert, Fowler, Inc., and a further inspection was held at that facility on September 4-5, 2008. Previously, on August 4, 2008, Unison had alerted Plaintiffs' counsel to a potential spoliation defense, but did not assert the specific nature of the claim. Despite this assertion, Unison did not attempt to reseal the muffler for purposes of air flow testing; instead, Unison cut the muffler into separate parts, which precluded resealing of the muffler to allow air flow testing.
{¶ 16} Subsequently, Unison's experts issued several reports regarding the cause of the accident. On October 7, 2008, Dr. Gary Fowler, of Fowler, Inc., concluded that there was no evidence of a metallurgical defect in the muffler components. He further concluded that oxidation of the baffle walls and end caps occurred gradually during engine operation, causing likely separation of small pieces that would have passed out from the exhaust (meaning, therefore, that the pieces would not have plugged the muffler). Doc. #137, Exhibit A, p. 4.
{¶ 17} In a report dated September 30, 2008, Dr. Lee Swanger, of Exponent, Inc., concluded that the material used to construct the muffler (type 321 stainless steel), was an acceptable choice for the construction of mufflers on the type of aircraft involved, subject to periodic inspections to detect impending failure, and that the thickness of deposits on the baffle indicated that the baffle did not fracture during the March 13, 2005 flight, but was fractured for some period of time prior to the accident. Doc. #137, Exhibit C, p. 4.
{¶ 18} In addition, in a report dated October 1, 2008, defense expert, Dr. C. Dennis Moore, noted that a slow-turning engine, like the one used on the subject airplane, would not be greatly affected by exhaust back pressure. Doc. #137, Exhibit D, p. 6. Moore also concludedthat Dr. Sommer's exemplar testing, which produced a back pressure of 3.9...
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