McLean v. Ontario

• Decision Date: 14 June 2000
• Docket Number: Nos. 99-1663,99-1664,s. 99-1663
• Citation: 224 F.3d 797
• Parties: (6th Cir. 2000) John D. McLean, Personal Representative of the Estate of Lisa Irene Jiggens, Deceased, Plaintiff-Appellant, v. 988011 Ontario, Ltd., d/b/a Plane Perfection; William Allen Ball Enterprises, Ltd., d/b/a B&B Aircraft, Defendants-Appellees. Alberta M. Jiggens and David Buckner, as Personal Co-Representatives of Brian E. Jiggens, deceased, and Kaleb Jiggens, a minor, deceased, Plaintiffs-Appellants, v. Piper Aircraft Corporation, et al.,Defendants, 988011 Ontario, Ltd., d/b/a Plane Perfection, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 797

224 F.3d 797 (6th Cir. 2000)

John D. McLean, Personal Representative of the Estate of Lisa Irene Jiggens, Deceased, Plaintiff-Appellant, v. 988011 Ontario, Ltd., d/b/a Plane Perfection; William Allen Ball Enterprises, Ltd., d/b/a B&B Aircraft, Defendants-Appellees.

Alberta M. Jiggens and David Buckner, as Personal Co-Representatives of Brian E. Jiggens, deceased, and Kaleb Jiggens, a minor, deceased, Plaintiffs-Appellants, v. Piper Aircraft Corporation, et al.,Defendants, 988011 Ontario, Ltd., d/b/a Plane Perfection, Defendant-Appellee.

Nos. 99-1663, 99-1664

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 14, 2000

Decided and Filed: August 24, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. Nos. 95-73141; 95-75944--Paul D. Borman,District Judge. [Copyrighted Material Omitted]

Richard E. Shaw, Barbara H. Goldman, LOPATIN, MILLER, FREEDMAN, BLUESTONE & HERSKOVIC, Southfield, Michigan

Seth H. Barsky, Andrew S. Fowler, BARSKY & FOWLER, Birmingham, Michigan, for Appellants.

Janet Callahan Barnes, KOHL, SECREST, WARDLE, LYNCH, CLARK & HAMPTON, Farmington Hills, Michigan, Scott R. Torpey, JAFFE, RAITT, HEUER & WEISS, Detroit, Michigan, for Appellees.

Before: JONES, BOGGS, and MOORE, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

This negligence action arises out of three deaths in the crash of a private plane. Michigan resident Brian Jiggens purchased a used Piper Cherokee airplane in March 1994 from American Flight & Technology. After purchasing the 18-year-old plane, Jiggens hired Plane Perfection of Goderich, Ontario, Canada to paint and refurbish it. Plane Perfection stripped, refinished, and applied new paint, replaced the stabilator tips, dorsal fin fairing, tail cone and patches on the wings, and installed a screw kit. In addition to painting the aircraft, Plane Perfection spent over 50 hours repairing the wing tips, cowlings, and fuselage. Allen Ball and Don White of B&B Aircraft inspected and certified the aircraft, because Plane Perfection was not itself an approved maintenance organization.

Jiggens picked up the finished plane on April 15, 1994 and flew it to Romeo, Michigan, where his wife, Lisa Jiggens, and their son, Kaleb Jiggens, joined him for a trip to Leesburg, Virginia. Since obtaining his visual flight rules pilot's license, Jiggens had approximately 110 flight hours, including two hours flying the make and model of his plane. On the evening of the crash, Jiggens did not file a flight plan, though instrument meteorological conditions prevailed. Jiggens flew to Elyria, Ohio for refueling, then proceeded toward Leesburg. At approximately 1:02 a.m., the Cleveland Air Traffic Control Center provided a traffic advisory to Jiggens, to which he responded. At 1:04 a.m. the center lost radio and radar contact with Jiggens's plane. Later that morning, investigators from the National Transportation Safety Board (NTSB) and the Ohio State Highway Patrol found pieces of Jiggens's plane scattered in a mile-long path near Salem, Ohio. The aircraft allegedly broke apart in flight and crashed, killing all three occupants. Defendants argue that these facts permit an inference that pilot error caused the crash, while plaintiffs claim that negligent servicing of the craft by Plane Perfection caused the crash.

Following discovery, the district court granted defendants' motion for summary judgment in an August 21, 1998 order, reasoning that plaintiffs had failed to establish the causation element sufficiently to take their negligence action to a jury. Specifically, the court held that the plaintiffs' two expert witnesses contradicted each other as to the cause of the crash, relied on circumstantial evidence whose factual basis was undermined on key points by defendants' evidence, and offered an explanation for the crash no more plausible than that of the defendants. Hence, the district court held that the plaintiffs did not demonstrate substantial evidence forming a reasonable basis for the inference that negligence by the defendants caused the injury. We reverse and remand for trial.

I

This court reviews a grant of summary judgment de novo, using the same Rule 56(c) standard as the district court. See Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995), citing Hansard v. Barrett, 980 F.2d 1059 (6th Cir. 1992). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, this court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party. See Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 616 (6th Cir. 1998). To prevail, the nonmovant must show sufficient evidence to create a genuine issue of material fact. See Klepper v. First Am. Bank, 916 F.2d 337, 341-42 (6th Cir. 1990), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A mere scintilla of evidence is insufficient, because "there must be evidence on which the jury could reasonably find for the [nonmovant]." Ibid, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

II

To establish a prima facie case of negligence under Michigan law, plaintiffs must prove: 1) that the defendant owed a duty to the plaintiffs; 2) that the defendant breached that duty; 3) that the defendant's breach was a proximate cause of the plaintiffs' damages, and 4) that the plaintiffs suffered damage. See Swan v. Wedgwood Christian Youth and Family Servs., Inc., 583 N.W.2d 719 (Mich. App. Ct. 1998), leave denied, 591 N.W.2d 39 (1999). Only the middle two of these requirements are at issue in this case. The district court never reached the question whether the alleged breach by defendants here was a proximate cause of the crash, because the court decided that the plaintiffs did not sufficiently establish that any negligence on the part of the defendants was a contributing cause of the crash at all.

The plaintiff in a Michigan negligence action need only provide proof of "a reasonable likelihood of probability" that his explanation of the injury is correct. Skinner v. Square D Co., 516 N.W.2d 475 (Mich. 1994).

The evidence need not negate all other possible causes, but such evidence must exclude other reasonable hypotheses with a fair amount of certainty. Absolute certainty cannot be achieved in proving negligence circumstantially; but such proof may satisfy where the chain of circumstances leads to a conclusion which is more probable than any other hypothesis reflected by the evidence. However, if such evidence lends equal support to inconsistent conclusions or is equally consistent with contradictory hypotheses, negligence is not established.

Id. at 481.

Circumstantial evidence in a products liability case should "fairly indicate 'a logical sequence of cause and effect' . . . ." Schedlbauer v. Chris-Craft Corp., 160 N.W.2d 889, 893 (Mich. 1968). The plaintiffs contend that though the experts differed on where the problem originated, both presented a logical sequence of cause and effect between Plane Perfection's negligence and the aerodynamic instability known as flutter that each concludes caused the crash.

"[A]n expert's opinion must be supported by 'more than subjective belief and unsupported speculation' and should be supported by 'good grounds,' based on what is known." Pomella v. Regency Coach Lines, Ltd., 899 F. Supp. 335, 342 (E.D. Mich. 1995), quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993). The expert's conclusions regarding causation must have a basis in established fact and cannot be premised on mere suppositions. See Skinner, 516 N.W.2d at 484. An expert's opinion, where based on assumed facts, must find some support for those assumptions in the record. See Shaw v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990). However, mere "weaknesses in the factual basis of an expert witness' opinion . . . bear on the weight of the evidence rather than on its admissibility." United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993).

III

The aircraft section in controversy in this case was the tail section, known collectively as the empennage. It includes the vertical stabilizer (or fin), the rudder, and the horizontal stabilizer (or stabilator), the ends of which are called stabilator tips or tail tips. The rudder has a drag-reducing plastic fairing and a rudder horn balance weight that sits on top of the tail. The stabilator is hinged behind the vertical fin, and contains 3-inch-round balance weights, which the stabilator tips cover.

A Plane Perfection employee named Kenneth Popp, who was not a licensed aircraft mechanic, performed the primary maintenance work on Jiggens's aircraft. He was assisted by Drew Anderson, an unlicensed apprentice mechanic. Popp was supposed to be supervised by licensed mechanics from B&B Aircraft. Popp and Anderson removed the wing tips, ailerons, wing flaps, rudder, gear doors and cowl. Popp put on new stabilator tips, a dorsal fin, dorsal wing fairing, and tail cone. He also installed stainless steel screws and washers on the wing tips, tail tips, tail cone, top of the fin, top of the rudder, dorsal fin and inspection panels. Reinstallation of the rudder and stabilator required balancing them. A Piper Cherokee's stabilator should be balanced to between 0 and -40 inch-pounds of force. Plane Perfection's Maintenance Work Report indicates that Popp balanced the stabilator to "20.125 LBS," without a minus sign. Other balance figures on the same form include a minus sign where there should be one. The maintenance report also includes a note that "(+) = T.E. [tail end] Heavy." However, in his deposition, Popp referred to other parts that he balanced as "tail...