IN RE AIRCRAFT CRASH LIT. FREDERICK, MD.

• Decision Date: 21 August 1990
• Docket Number: No. C-3-82-195.,C-3-82-195.
• Citation: 752 F. Supp. 1326
• Parties: In re AIRCRAFT CRASH LITIGATION FREDERICK, MARYLAND, MAY 6, 1981.
• Court: U.S. District Court — Southern District of Ohio

752 F. Supp. 1326

In re AIRCRAFT CRASH LITIGATION FREDERICK, MARYLAND, MAY 6, 1981.

No. C-3-82-195.

United States District Court, S.D. Ohio, W.D.

August 21, 1990.

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Marc S. Moller, Kreindler & Kreindler, New York City, Joseph M. Juergens, Springfield, Ohio, Robert Farquhar, Arthur Ames, Carmine Garofalo, Thomas A. Hansen, Dayton, Ohio, John J. Kennelly, Chicago, Ill., Robert A. Marcis, Craig Spangenberg, Spangenberg, Shilbey, Traci & Lancione, Cleveland, Ohio, Thomas M. Green, Green & Green, Richard G. Snell, Jeffrey, Snell, Rogers & Greenberg, Dayton, Ohio, William R. Coen, Kettering, Ohio, George B. Herndon, Jr., Fayetteville, N.C., for plaintiffs.

David C. Greer, Howard Krisher, Bieser, Greer & Landis, Dayton, Ohio, Richard C. Coyle, Perkins Coie, Seattle, Wash., for defendant Boeing Co.

Craig D. Andrew, James M. Wiles, Wiles, Doucher, Van Buren, Boyle & Casey, Columbus, Ohio, Neil F. Freund, Freund, Freeze & Arnold, Dayton, Ohio, for defendant Lear Siegler, Inc.

Herbert L. Lyons, Sr. Aviation Counsel, Dept. of Justice, Torts Branch, Civ. Div., Major Derrence Fivehouse, Aviation/Admiralty Law Section, Washington, D.C., Patrick Quinn, Asst. U.S. Atty., Dayton, Ohio, for defendant U.S.

RICE, District Judge.

DECISION AND ENTRY SUSTAINING MOTIONS FOR SUMMARY JUDGMENT FILED IN CONSOLIDATED CASE; MOTION FOR SUMMARY JUDGMENT OF DEFENDANT BOEING (DOC. # 150) SUSTAINED; RENEWED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT McDONNELL DOUGLAS (DOC. # 215) SUSTAINED; RENEWED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT LEAR (DOC. # 217) SUSTAINED; JUDGMENT TO BE ENTERED IN FAVOR OF MOVING DEFENDANTS AND AGAINST PLAINTIFFS IN CONSOLIDATED CASE AND IN ALL CASES CONSOLIDATED THEREIN (Darling v. The Boeing Co., et al., C-3-82-195; Hodge v. The Boeing Co. et al.,-C-3-82-196; Wetzel v. The Boeing Co., et al., C-3-82-197; Resides v. The Boeing Co., et al., C-3-82-198; Frederick v. The Boeing Co., et al., C-3-82-199; Middleton v. The Boeing Company, et al., C-3-82-200; Harris v. The Boeing Company et al., C-3-82-201; Bayliss v. The Boeing Company, et al., C-3-82-202; Ross v. The Boeing Company, et al., C-3-82-206; Presley v. The Boeing Company, et al., C-3-82-208; Fonke v. The Boeing Company, et al., C-3-82-365; (in behalf of David Fonke estate); Masters v. The Boeing Co., et al., C-3-82-785; Juergens v. The Boeing Company, et al., C-3-83-407; Bernhold v. Boeing Co., et al., C-3-82-204; Riley v. Boeing Co., et al., C-3-82-211; Fonke v. Boeing Co., et al., C-3-82-366, (on behalf Linda Fonke estate); FOLLOWING ENTRY OF JUDGMENT, CASES C-3-82-204, C-3-82-211, AND C-3-82-366 ARE TO BE SEVERED FROM THE OTHER 13 CASES; TRIAL UPON THE MERITS OF THE SEVERED CASES REMAINS SET FOR FEBRUARY 19, 1991; FINAL JUDGMENT TO BE ENTERED IN CASE NOS. C-3-82-195; C-3-82-196; C-3-82-197; C-3-82-198; C-3-82-199; C-3-82-200; C-3-82-201; C-3-82-202; C-3-82-206; C-3-82-208; C-3-82-365; C-3-82-785; AND C-3-83-407 These consolidated cases are the result of a true catastrophe—the crash of an Air Force EC-135N jet aircraft, and the loss of all on board, on May 6, 1981. The Plaintiffs, who are the personal representatives of certain military and civilian decedents, have filed suit on alternative theories of strict liability, breach of express and implied warranty and negligence in connection with the design and testing process for the aircraft, and seek damages from the Boeing Company ("Boeing"), which designed and manufactured the aircraft pursuant to an Air Force contract, Lear Siegler, Inc. ("Lear"), which, also pursuant to an Air Force contract, designed and manufactured the aircraft's autopilot system, and McDonnell Douglas Corporation ("MDC"), which modified the aircraft under an Air Force contract some six years after its original construction.¹ The United States is also a Defendant in three cases filed by the representatives of civilian decedents (Case Nos. C-3-82-204, C-3-82-211, and C-3-82-366).

This case is currently before the Court on Boeing's Motion for Summary Judgment (Doc. # 150) and the renewed Memorandum of Law in support thereof (Doc. # 221) ("Boeing Memorandum"), on MDC's Renewed Motion for Summary Judgment and Memorandum in support thereof (Doc. # 215) ("MDC Memorandum"), and on Lear's Renewed Motion for Summary Judgment and Omnibus Memorandum in Support thereof ("Lear Memorandum") (Doc. # 217). All three Defendants have invoked the government contractor defense set forth in Boyle v. United Technologies Corp, 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), as grounds for their respective motions.²

I. BACKGROUND

A. The Accident

On May 6, 1981, at 10:05 a.m., an Air Force EC-135N aircraft departed Wright Patterson Air Force Base, Dayton, Ohio, on a round-trip training flight scheduled to last approximately five hours. On board were a crew of seventeen, and four authorized observers, including two wives of crewmembers participating in the Air Force Systems Command's Have Partner spouse orientation program. The pilot in command was Captain Joseph C. Emilio. No stressful or unusual training requirements were planned for the flight. Air Force Systems Command Press Briefing, June 12, 1981, Plaintiffs' Exhibit # 2.

The aircraft was cruising eastward near Walkersville, Maryland, at approximately 29,000 feet when, at 10:49 a.m. (some 45 minutes into the flight) Federal Aviation Administration air traffic control lost radar contact with it. No distress calls or emergency transmissions were received from the aircraft, which crashed at approximately 10:51 a.m. There were no survivors. USAF Aircraft Accident Investigation IAW AFR 110-14, Plaintiffs' Exhibit # 1 hereinafter AF Investigation Report.

At the time of the crash the left pilot seat was occupied by Mrs. Peggy Emilio, one of the participants in the Have Partner spouse program, and the right pilot seat was occupied by Captain Emilio. Two navigators and two passengers were also in the crew compartment. The locations of other persons in the aircraft could not be determined. Id. Examination of the wreckage resulted in the recovery of the actuator which controlled the stabilizer trim, the moveable leading edge of the horizontal portion of the aircraft's tail which, in conjunction with the elevators located at the trailing edge of the horizontal tail section, controls the aircraft's "pitch," or nose-up/nose down position. The position in which the actuator was found corresponded to the full aircraft nose-down position. Id. at Tab 2.5; Boeing Memorandum at 8. The cockpit pitch trim indicator and the horizontal stabilizer trim jackscrew were also recovered from the wreckage, and each was found to indicate full nose-down trim. AF Investigation Report, at Tab. 3.2.1.³

The position of the aircraft's horizontal stabilizer can be adjusted in three ways. It can be controlled electrically, by means of an AC motor, which is in turn controlled by identical switches located on each pilot's control wheel. Id. It can also be controlled manually, by means of a pitch trim wheel. Id. In the EC-135N this wheel is located on the left side of the aisle console placed between the two pilot's seats. Boeing Memorandum, Doc. # 221, at 10 and Appendix 1. Use of the trim wheel is a "laborious" process requiring the pilot to turn the wheel thirty-five full revolutions to retrieve the trim from full nose down to zero. AF Investigation Report at Tab 3.2.1. It is undisputed that the horizontal stabilizer can also be controlled by an autopilot such as the one with which the aircraft in this case was equipped.

The Air Force's analysis of possible causes of the crash led it to conclude that

for undetermined reasons, the aircraft pitch trim moved to the full nose down position. The aircraft then rapidly pitched over, most likely upon release of the auto-pilot, and induced sufficient negative "G" forces to cause its AC generators to trip off line, resulting in the loss of all AC electrical power. The pitch trim could not then be moved electrically. This condition, while unusual, can be controlled manually, by use of the trim wheel if prompt corrective action is taken; however, if corrective action is delayed approximately 8 seconds, the aircraft pitch angle will be greater than 30 degrees nose-down and the airspeed in excess of 350 knots indicated airspeed. Under these conditions, the aircraft cannot be controlled until the pitch trim is moved toward neutral.⁴ While it is evident that recovery was delayed, the reason for the delay is unknown. The aircraft became uncontrollable and entered a steep descent. During the rapid descent, an explosion occurred at approximately 1300 feet above ground level followed immediately by catastrophic failure, and complete break-up of the aircraft.

AF Investigation Report at "Synopsis" and Tab 3.3. It is not disputed that rapid pitchover of the aircraft could and did result in loss of AC electrical power so that the pitch trim could not be corrected electrically. It is also not disputed that after approximately eight seconds of full nose-down pitch, the aircraft pitch angle and airspeed would be such as to make manual recovery of the aircraft impossible.

B. The Parties' Contentions Concerning the Accident's Cause

The parties to the instant Motions differ markedly in their theories of the cause of the aircraft's pitch-over and succeeding events leading to loss of the airplane. Plaintiffs contend that the aircraft's sudden pitch-over was the result of a "flight control system malfunction," most probably in the autopilot. Plaintiffs' "Omnibus" Memorandum of Law in Opposition to Defendants' Motions for Summary Judgment hereinafter Plaintiffs' Memorandum, Doc. # 219, at 3-5. They claim that the aircraft's automatic flight control system was designed to be capable on its own (i.e., without a command from the flight crew) of moving the pitch trim to the full nose down position while the autopilot is in altitude hold mode....