Loftleidir Icelandic Airlines, Inc. v. McDonnell Douglas Corp.

• Decision Date: 03 July 1984
• Parties: LOFTLEIDIR ICELANDIC AIRLINES, INC., a corporation, Plaintiff and Appellant, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant and Respondent. Civ. 68831.
• Court: California Court of Appeals Court of Appeals

Page 358

204 Cal.Rptr. 358

158 Cal.App.3d 83

LOFTLEIDIR ICELANDIC AIRLINES, INC., a corporation, Plaintiff and Appellant, v. McDONNELL DOUGLAS CORPORATION, a corporation, Defendant and Respondent.

Civ. 68831.

Court of Appeal, Second District, Division 7, California.

July 3, 1984.

Certified for Partial Publication. ^*

Condon & Forsyth, Frank A. Silane, Peter James McBreen, and Patrick D. Bingham, Los Angeles, for plaintiff and appellant.

Belcher, Henzie, Biegenzahn, Chertok & Walker, E. Lee Horton and James M. Derr, Los Angeles, for defendant and respondent.

JOHNSON, Associate Justice.

This appeal arises out of the crash of a DC-8 airplane operated by plaintiff, Loftleidir Icelandic Airlines, Inc. ("Loftleidir"), and manufactured by defendant, Douglas Aircraft Company, Inc. ("Douglas"). The jury returned a verdict in favor of Douglas. Loftleidir appeals raising two claims of error, both relating to trial court orders excluding evidence.

Loftleidir first argues the trial court erred by excluding evidence of three of the six prior airplane accidents Loftleider sought to have admitted at trial. In the unpublished portion of this opinion we hold that although evidence of those accidents was relevant the trial court could properly exclude it under Evidence Code section 352.

Loftleidir also argues the court erred by excluding the testimony of one of its expert witnesses. The court excluded the testimony on the ground it was prohibited by 49 C.F.R. 835, et seq. Those regulations govern the permissible scope of a National Transportation Safety Board ("NTSB") employee's testimony. In the published portion of this opinion we hold exclusion of the expert's testimony was prejudicial error. The federal statute prohibits introducing into private litigation evidence of the NTSB's opinions about the probable cause of an airplane accident. Since Loftleidir's expert did not investigate the subject accident while employed by the NTSB there was no chance his testimony would reveal the prohibited matter.

I. Statement of Facts and Proceedings Below

On June 23, 1973, a 1966 model DC-8 airplane operated by Loftleidir crashed while on approach to John F. Kennedy International Airport in New York. The accident occurred because the pilot prematurely extended the ground spoilers ¹ when the airplane was about 30 feet above the runway. There were no deaths among the 119 passengers and 9 crew members, but 2 stewardesses and 36 passengers were injured. ² The crash also resulted in heavy damage to the aircraft.

Loftleidir filed this action against Douglas for property damage and loss of use on June 2, 1976. On August 27, 1981, the case proceeded to trial on theories of strict liability and negligence. ³ Loftleidir's primary contention was the DC-8 should have been designed to preclude in-flight deployment of the ground spoilers. If premature extension of the ground spoilers had been impossible the accident would not have occurred.

According to Loftleidir, Douglas was negligent and/or strictly liable for designing a system capable of in-flight deployment.

Much of the testimony at trial concerned the design history and operation of the ground spoiler system on DC-8 airplanes. The DC-8 was originally designed with what was labelled at trial as the Mark I anti-skid system. Although the ground spoilers were not designed to perform any in-flight function, the Mark I system was capable of in-flight deployment. However, in order to deploy the spoilers in-flight, the crew would have to overcome 65 to 70 pounds of resistance in order to move the spoiler handle. When the plane was on the ground there was only about nine pounds of resistance to overcome in order to move the spoiler handle.

In 1962 the Mark II anti-skid system was introduced to improve some of the features of the Mark I system. As a result of design changes, however, Douglas reduced the amount of resistance to overcome in order to move the spoiler handle in-flight from 65 pounds to 35 pounds. The Mark II design also required the addition of an electric actuator to the spoiler system. If on takeoff the actuator did not coast to the full retract position, or if after takeoff the actuator received a spurious signal, the pilot would encounter only nine pounds of spring resistance before the spoiler handle could be moved in-flight.

There were no accidents involving in-flight deployment of the ground spoilers before 1962 while DC-8's were equipped with the Mark I anti-skid system. However, the record in this case reflects six accidents or incidents involving DC-8's equipped with the Mark II system. Each of the accidents was caused in some form or fashion by the in-flight deployment of ground spoilers.

Three of the six accidents were caused, as in this case, by crew members inadvertently deploying the ground spoilers. The fourth and fifth accidents were caused by an electrical malfunction which in turn caused deployment of the ground spoilers. The cause of the final accident was in dispute. The trial court ruled evidence of the three accidents where crew members deployed the spoilers was admissible. However, the court excluded most of the evidence related to the three other accidents.

On August 4, 1981, Douglas filed another motion in limine, this time to exclude the testimony of Charles O. Miller, one of Loftleidir's expert witnesses and a former employee of the NTSB. Douglas argued Miller's testimony was prohibited by Code of Federal Regulations section 835.7. That statute sets forth the permissible scope of testimony of former employees of the NTSB.

Loftleidir intended to call Miller, an expert on human factors and safety engineering in aviation, and the president and principal consultant of System Safety Incorporated, as its primary expert witness. Miller was to testify extensively regarding the design of the ground spoiler system from an engineering and human factors standpoint. Miller also intended to testify with respect to Douglas' duty to anticipate and to react to safety problems which developed during the design and service life of the DC-8.

Miller was the director of the Bureau of Aviation Safety at the time of the accident. The Bureau of Aviation Safety is responsible for investigating aircraft accidents for the NTSB.

On August 27, 1981, the court indicated it was inclined to permit Miller's testimony provided no reference was made to the opinions contained in the NTSB report of the Loftleidir accident or to Miller's former status as director of the Bureau of Aviation Safety. However, after additional argument by Douglas, the court reserved its ruling until an evidentiary hearing could be held. The hearing was held on September 4, 1981, one week after the trial began. After the hearing, the court again reserved its ruling asking for additional argument by counsel. This argument was heard on September 8, 1981, after which the court On September 24, 1981, after approximately three weeks of trial, the jury returned a verdict in favor of Douglas on both the strict liability and negligence counts. In answer to interrogatories the jury found the DC-8 was not defective and Douglas was not negligent.

granted Douglas' motion to exclude Miller's testimony.

Judgment was entered in favor of Douglas on September 25, 1981. On November 12, 1981, Loftleidir's motion for a new trial was denied. Loftleidir filed a timely notice of appeal.

II. The Court Erred by Excluding Miller's Testimony

Two weeks after the trial began in this case the trial court granted Douglas' motion in limine and excluded Loftleidir's expert, Miller, from testifying. Although the precise grounds for the court's ruling on Douglas' motion to exclude the testimony of Miller are not clear from the record, the court must have concluded either: (1) Miller was prohibited from testifying at trial under the terms of 49 C.F.R. 835.5; (2) Miller was prohibited from testifying under the terms of 49 C.F.R. 835.3; or (3) Miller was precluded from testifying based upon alleged inconsistencies between Miller's contemplated testimony and the opinions and conclusions contained in the NTSB final report. ⁴ As we explain, we do not believe any of these grounds provides a permissible basis for excluding the testimony.

We note at the outset when an appeal involves the scope and applicability of a statute we are not bound by the trial court's determinations. (Southern California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8, 102 Cal.Rptr. 766, 498 P.2d 1014.) Thus the issue before us is a question of law, subject to this court's independent review.

The testimony of current NTSB employees is governed by C.F.R. 835.5. Subsection (a) of that statute provides:

"(a) Testimony of Board employees may be made available for use in actions or suits for damages arising out of accidents through depositions or written interrogatories. Board employees are not permitted to appear and testify in court in such actions."

Thus, although an NTSB employee may be deposed and may respond to interrogatories his live testimony at trial is absolutely prohibited. ⁵ This statute clearly does not apply to Miller as he is not a current NTSB employee. It thus does not provide a legally sufficient basis for excluding his testimony.

The testimony of former NTSB employees is governed by 49 C.F.R. 835.7 which provides as follows:

"It is not necessary to request Board approval for testimony of a former Board employee. However, the scope of testimony of former Board employees is limited to the matters delineated in § 835.3, and use of reports as prescribed in § 835.4."

Section 835.7 specifically incorporates by reference the provisions of sections 835.3 and 835.4 dealing with the scope of permissible testimony and the use of accident reports while testifying. However, section 835.7 does not incorporate the provisions of section 835.5 prohibiting live testimony at trial.

49 C.F.R. 835.3, which governs the testimony of...