Larson v. Cessna Aircraft Co.

• Decision Date: 22 February 2001
• Docket Number: VOOHRIES-LARSON,No. 99-15916,99-15916
• Citation: 241 F.3d 707
• Parties: (9th Cir. 2001) LINDA N., surviving mother of Torrence Justin Voohries; BETSY KEILEN, surviving mother of Brad Keilen; CHARLENE TOWNSEND, surviving mother of Ronald Sean Townsend, Plaintiffs-Appellants, v. CESSNA AIRCRAFT CO., Defendant-Appellee, and BLACK CORPORATIONS; JOHN DOES; JANE DOES, Defendants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 707

241 F.3d 707 (9th Cir. 2001)

LINDA N. VOOHRIES-LARSON, surviving mother of Torrence Justin Voohries; BETSY KEILEN, surviving mother of Brad Keilen; CHARLENE TOWNSEND, surviving mother of Ronald Sean Townsend, Plaintiffs-Appellants, v. CESSNA AIRCRAFT CO., Defendant-Appellee and BLACK CORPORATIONS; JOHN DOES; JANE DOES, Defendants.

No. 99-15916

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 4, 2000

Filed February 22, 2001

[Copyrighted Material Omitted] Bruce E. Meyerson, Sandra K. Sanders, and Anthony J. Blackwell, Steptoe & Johnson, LLP, Phoenix, Arizona, for the plaintiffs-appellants.

Ronald P. Williams and Lynn D. Preheim, Morrison & Hecker, LLP, Wichita, Kansas, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Court Judge Presiding. D.C. No.CV-95-02574-ROS

Before: Stephen Reinhardt, Melvin Brunetti, and Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Brunetti; Dissent by Judge Reinhardt

BRUNETTI, Circuit Judge:

Appellants Linda Voohries-Larson, Betsy Keilen, and Charlene Townsend, the mothers of three individuals killed in the crash of an airplane manufactured by the appellee Cessna Aircraft Company, appeal the judgment entered following a jury verdict for Cessna in their diversity action alleging wrongful death and product liability. Appellants contend that the district court erred in its instructions to the jury regarding superseding cause and wilful and wanton conduct. We have jurisdiction under 28 U.S.C. S 1291, and we dismiss in part and affirm in part.

I.

On July 4, 1993, a twin-engine Cessna airplane crashed in Prescott, Arizona, killing all five people on board. The three men who died in the crash were subsequently identified as Brad Keilen, Torrence Voohries, and Ronald Townsend, children of the three appellants. The two women on board, Megan Campbell and Stacy Stephenson, met the men the night of the crash and had accepted an offer to ride in the airplane. Because there were no eyewitnesses to the crash, the wreck-age and bodies were discovered after five hours had elapsed.

During the course of the sixteen-day trial, the parties presented starkly different theories as to the cause of the crash. The appellants claimed that the crash was caused by a defect or defects in the Cessna airplane, whereas Cessna claimed the accident was solely due to pilot error and negligence. The jury heard from twenty-six witnesses, including ten experts, and had to analyze the relative merits of two competing accident reconstruction theories.

The appellants presented evidence at trial to prove that the type of airplane in which the decedents crashed, a Cessna T-303, is defectively designed and unreasonably dangerous. This evidence included expert testimony that the T-303's fuel tank is constructed in a manner that permits air to enter the fuel lines in some circumstances, causing an unexpected interruption in the flow of fuel to an engine despite the presence of fuel in the tank. When the airplane's rate of turn and angle of bank are not balanced (a condition called "uncoordinated flight"), the construction of the T-303's fuel tank creates a risk not present with other airplanes. If gravity pushed the fuel outboard, as it would during uncoordinated flight, air would be drawn into the fuel system and interrupt the flow of fuel to the engine. According to the appellants' theory, the pilot must have flown in uncoordinated flight for at least one minute and forty seconds, the amount of time sufficient to interrupt the flow of fuel. This interruption would then have caused the pilot to shut down the left engine; this, in turn, caused the plane to experience asymmetrical thrust which eventually began a spin to the left from which the plane could not recover.

The appellants supported their theory with a demonstration by an expert witness, in which he filled a T-303 wing tank with 30 gallons of liquid, set the wing (no longer attached to the aircraft) on two sawhorses, tilted it downward and timed how long it would take for the inboard fuel inlets to unport as the liquid ran downhill. The test was performed with 30 gallons of fuel, although the National Transportation Safety Board found the left wing tank of the accident aircraft contained approximately 38 gallons of fuel at the time of the accident. The demonstration had a force of one G, or the force of gravity, operating on the liquid. Cessna repeatedly challenged the demonstration as not representative of what actually occurred in flight.

On cross-examination, the appellants' expert acknowledged that, not only was flying in uncoordinated flight for the length of time suggested by their demonstration a violation of Federal Aviation Regulations and the Cessna Pilots' Operating Handbook for the T-303, but also such uncoordinated flight resulting in a 1 G force outboard would cause the passengers and crew to be pressed toward the left side of the airplane and, if seated on the left side, they would be forced against the bulkhead.

Appellants' experts further acknowledged that a stall caused by fuel interruption would only affect one engine and that the T-303 was designed and certified by the Federal Aviation Administration (FAA) as capable of being flown on one engine. Voohries and Keilen were required to demonstrate their ability to fly and land the aircraft on one engine in order to obtain the pilot certificates they held. Appellants' experts testified that they knew of no reason why the pilots could not have completed the flight on one engine.

Cessna also presented expert testimony regarding the design of the Cessna airplane. Cessna's expert conducted a test to disprove the uncoordinated flight theory, in which he actually flew the T-303 in uncoordinated flight for the length of time that the decedents were alleged to have flown it that night, to mimic the forces of actual flight. Cameras were mounted inside the fuel tank showing the fuel inlets and on the cockpit instruments indicating the extent of uncoordinated flight. He also used a force gauge to measure the amount of pressure he placed on the right rubber pedal with his leg in order to achieve and maintain uncoordinated flight. The gauge measured approximately 100 pounds, demonstrating to the jury the unreasonableness of flying the aircraft in this manner.

Cessna also presented the testimony of the primary test pilot for the FAA certification of the T-303. The FAA required certain test flights be performed on the T-303 to demonstrate unusable fuel. During these tests, the FAA mandated that the pilot fly the plane in uncoordinated flight to attempt to intentionally uncover the fuel ports in the wing of the plane. In one demonstration, the aircraft was flown in uncoordinated flight for one minute, then coordinated for one minute, then uncoordinated for one minute, and so on until the first sign of fuel interruption. When fuel interruption occurred, the engine was shut down and the plane returned to the ground on one engine. Then the fuel was measured to determine how much remained. The fuel remaining in the tank following these tests was .79 gallons, as compared to the 38 gallons in the tank of the airplane at the time of the crash. This evidence demonstrated how extreme the uncoordinated flight would have to have been to unport the fuel inlets with 38 gallons in the tank.

Cessna theorized that the stall was attributable solely to pilot error, due to fatigue and sleep deprivation, alcohol, night flying, the airport environment, failure to wear corrective lenses, and the cockpit circumstances. First, Cessna presented evidence that it could have been either Voohries or Keilen flying the plane, as both men were commercial multi-engine pilots and both had licenses that would allow them to fly a T-303. Although Keilen rented the aircraft and was pilot in command for purposes of FAA regulations, this alone did not mean that Keilen actually piloted the aircraft. The T-303 haddual controls and could be operated from either the left front or right front seats, which were occupied by Keilen and Voohries respectively. Evidence pointed to the possibility that Voohries may have assumed some pilot responsibilities during flight, as one of the horns was broken off on Voohries' yoke, indicating his hand may have been on it at the time of the crash.

Cessna introduced evidence that showed both Keilen and Voohries had consumed alcohol during the evening prior to the accident. One witness, an airport employee, testified that one of the men had a beer in his hand when he deplaned in Prescott that evening. Another witness, who drove the men to the bar in the town of Prescott from the airport, testified that they were drinking alcohol en route. Rosemary Guadiana, a friend of the two women killed in the plane crash who was with them that evening, testified that Keilen had joked about violating the FAA regulation that prohibits consumption of alcohol within eight hours before piloting an aircraft. Postmortem tests revealed traces of alcohol in Keilen's body fluids. The plaintiffs disputed these findings, arguing that other tests performed on other fluids from Mr. Keilen's body yielded negative results for evidence of alcohol use and that the positive results could have been caused by the creation of alcohol by Keilen's body as it began to decompose.

Cessna also introduced evidence at trial to show that Keilen and Voohries may have been suffering from fatigue at the time of the accident, due to a lack of sleep in the days prior to the crash. Two days before the accident, on July 2, 1993, Keilen and Voohries flew to Laughlin, Nevada, and Keilen's girlfriend testified that they did not return home until 2:00 a.m. on Saturday, July 3, 1993. Keilen went to work at 6:00 a.m. that Saturday morning, only four hours later, and worked until 2:00 p.m. At 3:00 p.m., Keilen called a friend who invited him...