In re Cessna 208 Series Aircraft Products Liab.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: Kathryn H. Vratil
• Citation: In re Cessna 208 Series Aircraft Products Liab., 546 F.Supp.2d 1153 (D. Kan. 2008)
• Decision Date: 07 March 2008
• Docket Number: No. 05-md-1721-KHV.,MDL No. 1721.,05-md-1721-KHV.
• Parties: In re CESSNA 208 SERIES AIRCRAFT PRODUCTS LIABILITY LITIGATION This Document Relates Only To Silvey, et al. v. Cessna Aircraft Company, et al., D. Kan. No. 06-CV-2261-KHV.

546 F.Supp.2d 1153

In re CESSNA 208 SERIES AIRCRAFT PRODUCTS LIABILITY LITIGATION This Document Relates Only To Silvey, et al. v. Cessna Aircraft Company, et al., D. Kan. No. 06-CV-2261-KHV.

MDL No. 1721.

No. 05-md-1721-KHV.

United States District Court, D. Kansas.

March 7, 2008.

Heather S. Woodson, John C. Nettels, Jr., Stinson Morrison Hecker LLP, Overland Park, KS.

Donald J. Nolan, Paul R. Borth, Nolan Law Group, Chicago, IL, J. Walter Sinclair, Mark S. Geston, Stoel Rives LLP, Boise, ID, Jerome L. Skinner, Nolan Law Group, Cincinnati, OH, Ladd C. Sanger, Slack & Davis, Dallas, TX, Colin P. King, Dewsnup King & Olsen, Martha Knudson, Richards Brandt Miller & Nelson, Salt

Lake City, UT, Stuart W. Smith, Timothy E. Miller, Miller & Associates, Lake Oswego, OR, Gregory L. Murphy, Paul W. Mengel, III, Vorys, Sater, Seymour and Pease, LLP, Alexandria, VA, Scott J. Gunderson, Nelson, Gunderson & Lacey, Wichita, KS, for Plaintiffs.

Dale W. Storer, Holden Kidwell Hahn & Crapo, Idaho Falls, ID, Don G. Rushing, Erin M. Bosman, Morrison & Foerster, LLP, San Diego, CA, Fred J. Meier, Jr., Jonathan Jay Cunningham, William F. Carroll, Winstead P.C., Bryan S. David, Charles H. Smith, Smith & Moore, Steven E. Dewolf, Bellinger & Dewolf, Dallas, TX, Kamie F. Brown, Tracy H. Fowler, Snell & Wilmer, Michael P. Zaccheo, Richards Brandt Miller & Nelson, Salt Lake City, UT, Laurie A. Hand, Morrison and Foerster, LLP, Jill D. Rosa, U.S. Department of Justice-Civil Division, Jeffrey N. Luthi, Clerk of the MDL Panel, Washington, DC, Patrick Matthew Graber, Stephen Donald Koslow, Mccullough, Campbell & Lane, Chicago, IL, Craig L. Meadows, Jason D. Scott, Hawley, Troxell, Ennis & Hawley, LLP, Boise, ID, Jarod G. Goff, John W. Cowden, Baker, Sterchi, Cowden & Rice, L.L.C., Jonathan M. Stern, Schmitt Manz Swanson & Mulhern PC, Kansas City, MO, Paul E. Moran, Mendes & Mount LLP, New York, NY, Stephen Clark Howell, Brown, Dean, Wiseman, Proctor, Hart & Howell, John S. Jose, Jose Henry Brantley Maclean & Alvarado, Ft. Worth, TX, Don Swaim, Kern & Wooley, Irving, TX, Bryan A. McKenna, Robert S. Murphy, Murphy & McKenna, LLC, Garden City, NY, for Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On November 8, 2002, Wade Silvey, the pilot of a Cessna Model 208B airplane died with three others on board when the plane crashed approximately three miles south of Parks, Arizona. In the District Court of Tarrant County, Texas, Mr. Silvey's family filed suit against Cessna Aircraft Company, Inc. ("Cessna"), Goodrich Corporation, FlightSafety International, Inc. ("FlightSafety") and Brown County Financial Services, L.L.C. Defendants removed the action to federal court and the Judicial Panel on Multidistrict Litigation transferred it to this Court. This matter is before the Court on Defendant FlightSafety's Motion For Summary Judgment And Brief In Support (Doc. # 212) filed April 25, 2007. For reasons stated below, the Court sustains defendant's motion in part.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving parties to demonstrate that genuine issues remain for trial as to those dispositive matters for which they carry the burden of proof. Applied Genetics Int'l Inc. v. First Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving parties may not rest on their pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving parties' evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following material facts are uncontroverted, deemed admitted or where controverted viewed in the light most favorable to plaintiffs.

On November 8, 2002, Wade Silvey (the pilot), Robert Fry (the co-pilot), James Randolph, Jr., and Bradford Galaway died in the crash of a Cessna 208B airplane (also known as a "Cessna Caravan"). The flight originated in Las Vegas, Nevada and was scheduled to end in Midland, Texas. Just before the plane left, Silvey contacted the Automated Flight Service Station ("FSS") in Fort Worth, Texas to file an instrument flight plan. As the FSS employee entered the flight plan, Silvey asked about a weather advisory regarding icing. The FSS employee told Silvey of an advisory for moderate mixed and rime icing from the freezing level up to 24,000 feet along his flight path.¹ The freezing level was forecast to be at 12,500 feet over Arizona and at 10,500 feet east of Arizona.

According to the Federal Aviation Administration ("FAA"), the airplane left Las Vegas at about 9:19 a.m. Mountain Standard Time, and after obtaining a clearance, the airplane climbed to a cruising altitude of 13,000 feet. At 10:13 a.m., Silvey contacted the Albuquerque FSS to report that the plane was west of Flagstaff, Arizona at 15,000 feet and that it had encountered light mixed icing. At 10:15 a.m., Silvey contacted Albuquerque Air Traffic Control, reported "getting ... mixed ... right ... now" and requested authority to climb to 17,000 feet. At 10:16 a.m., the air traffic controller cleared the plane to climb to 17,000 feet. During this conversation, the air traffic control radar showed the plane climbing to 15,200 feet and then rapidly descending. The aircraft crashed in a wooded area three miles south of Parks, Arizona.

Silvey and Fry were licensed pilots. Silvey held a commercial pilot certificate with airplane single-engine and multi-engine ratings. He also held a flight instructor certificate for single-engine aircraft. Silvey had about 1,880 hours of total flight time with about 77 hours in the Cessna Caravan. Fry held a private pilot certificate with an airplane single-engine land rating. He had accumulated about 650 hours of total flight time.

Beginning in June of 2002, Silvey and Fry attended FlightSafety's Cessna Caravan Pilot Initial Course at the FlightSafety Cessna Learning Center in Wichita, Kansas. The FAA has certified and approved the FlightSafety Cessna Learning Center, the Cessna Caravan Pilot Initial Course, and the simulators used in the course for pilot training under 14 C.F.R. Part 142 and other regulations. Because Silvey was an instrument rated pilot and Fry was not, the two pilots received slightly different instruction. Even so, both pilots received instruction in FlightSafety's Cessna Caravan flight simulator and instruction on how to handle icing conditions in the Cessna Caravan.

As noted, plaintiffs filed suit against Cessna, Goodrich Corporation, FlightSafety and Brown County Financial Services in the District Court of Tarrant County, Texas. On February 27, 2006, Cessna removed the case to the United States District Court for the Northern District of Texas. On June 19, 2006, the Judicial Panel on Multidistrict Litigation transferred the case to this Court as part of the multidistrict litigation involving the Cessna 208 Series aircraft.

Plaintiffs allege that ice accumulation on the aircraft was a factor in the crash. Plaintiffs allege that (1) FlightSafety negligently failed to properly instruct the pilots of the Cessna Caravan on how to avoid ice accumulation, the unusual dangers of airframe icing associated with the Cessna Caravan and how to control the Cessna Caravan should ice accumulation occur, and FlightSafety failed to exercise reasonable care in performing flight training services; (2) FlightSafety fraudulently failed to disclose information about icing conditions with the Cessna Caravan; and (3) FlightSafety breached express and implied warranties to plaintiffs concerning FlightSafety's training and safety instructions and the aircraft itself. See Silvey Plaintiffs' Second Amended Original Petition at 8-11, attached as Exhibit # 144 to Notice of Removal (Doc. # 1) filed February 27, 2006 in Fry v. Cessna Aircraft Co., No. 0-4cv-00155 (N.D.Tex.). FlightSafety seeks summary judgment on all claims.

Analysis

I. Educational Malpractice

FlightSafety argues that plaintiffs' negligent instruction claims are claims of educational malpractice, which Texas courts do...