McLennan v. American Eurocopter Corp.

• Decision Date: 13 March 2001
• Docket Number: No. 99-41036,99-41036
• Citation: 245 F.3d 403
• Parties: (5th Cir. 2001) PETER MCLENNAN, Plaintiff - Appellee-Cross-Appellant, v. AMERICAN EUROCOPTER CORPORATION, INC., Defendant - Appellant-Cross-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 403

245 F.3d 403 (5th Cir. 2001)

PETER MCLENNAN, Plaintiff - Appellee-Cross-Appellant, v. AMERICAN EUROCOPTER CORPORATION, INC., Defendant - Appellant-Cross-Appellee.

No. 99-41036

UNITED STATES COURT OF APPEALS, Fifth Circuit

March 13, 2001

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Appeal from the United States District Court for the Southern District of Texas

Before DUHE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This personal injury case arises from an October 19, 1995, helicopter crash near the Haig Glacier in Western Alberta, Canada. Defendant American Eurocopter Corporation, Inc. (AEC) appeals the district court's final judgment in favor of Peter McLennan (McLennan), which was entered after a bench trial on the relevant issues. McLennan cross-appeals the district court's reducing his damages on the basis that he was 40 percent at fault for the accident that led to his injuries. Concluding that McLennan's proof at trial was plainly inadequate to establish one or more of the essential elements of his substantive claims, we reverse and render judgment in favor of defendant AEC.

FACTUAL BACKGROUND

I.

On the day of the crash, McLennan flew his AEC Model AS-350-B helicopter for longer than the fuel loaded on board would allow, eventually crashing into the side of an embankment not far from his final destination. McLennan, a Canadian resident, suffered serious injuries from the crash, which also destroyed the helicopter. In this lawsuit, McLennan contends that AEC, the manufacturer of the helicopter, is responsible for his injuries and resulting damages under Texas law on theories of both strict products liability and negligence. Both of McLennan's theories focus upon alleged marketing defects in the helicopter. Specifically, McLennan claims that AEC affirmatively marketed the helicopter as suitable for McLennan's intended use, slinging operations,¹ when in fact the helicopter was unreasonably dangerous for that use. McLennan also claims that AEC failed to warn or adequately warn intended users that dirty or worn portions of the fuel measurement system might not accurately reflect the amount of usable fuel in the helicopter when the helicopter is consistently flown at low fuel levels. AEC responds that the helicopter was not unreasonably dangerous for its intended use; that AEC owed no duty to warn users of any risk arising under the circumstances of McLennan's flight; that, assuming there was a duty owed, it was completely satisfied by the issuance of service letters and bulletins before the crash notifying consumers of the risk and recommending that the portion of the fuel measurement system at issue here be replaced; that the alleged marketing defects were neither the producing (strict liability) nor proximate (negligence) cause of the crash; and finally, that the crash was caused instead by improper maintenance or pilot error or both. AEC also raises two alternative arguments challenging the district court's pre-trial rulings denying AEC's motion to dismiss for forum non conveniens and AEC's separate motion seeking the application of Canadian, rather than Texas, law.

AEC seizes upon the fact that the district court adopted plaintiff McLennan's proposed findings of fact and conclusions of law almost verbatim to argue that we must apply a less deferential standard of review to the district court's findings of fact and conclusions of law than would be the case if the district court's order reflected an independent consideration of the relevant issues, citing In re Luhr Brothers, 157 F.3d 333 (5th Cir. 1998), cert. denied, 119 S. Ct. 1357 (1999). We disagree. Luhr Bros., and Anderson v. City of Bessemer City, 105 S. Ct. 1504 (1985), from which it is drawn, make clear that the district court's decision to adopt one party's proposed findings and conclusions without change may cause us to approach such findings with greater caution, and as a consequence to apply the standard of review more rigorously. See Anderson, 105 S. Ct. at 1511 (criticizing verbatim adoption of proposed findings and noting the potential for "overreaching and exaggeration" on the part of counsel for the prevailing party); Luhr Bros., 157 F.3d at 338 (stating that "near-verbatim recitals of the prevailing party's proposed findings and conclusions, with minimal revision" should be approached with "caution" and that the district court's "lack of personal attention to factual findings" is a factor to be considered when applying the clearly erroneous rule) (internal quotations omitted). But Luhr Bros. and Anderson make equally clear that the basic clear error standard governing our review is set by Federal Rule of Civil Procedure 52(a) and remains constant. See Luhr Bros., 157 F.3d at 338 (citing Anderson, 105 S. Ct. at 1510-11, for the proposition that "the trial court's adoption of the prevailing parties' proposed findings, however, does not alter the bedrock principle that the findings may not be overturned on appeal absent clear error"). While the clear error standard is purposefully deferential to the district court, we are not required to rubber stamp the district court's findings simply because they were entered. See Luhr Bros., 157 F.3d at 338 n.14. This would be no review at all. "When, after an examination of the entire evidence, we are left with the definite and firm conviction that a mistake has been committed, clear error exists and it is our duty as the reviewing court to correct this mistake." Id. at 338-39 (internal quotations omitted). The district court's legal conclusions, on the other hand, are reviewed de novo. See Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999)

II.

On October 19, 1995, McLennan was employed as a commercial helicopter pilot by Canadian Helicopters, Ltd. (CHL), one of the largest commercial operators in the world.² On that day, McLennan was contracted to assist with the closing of an industrial base camp near the Haig Glacier. McLennan began his day at CHL's Canmore, Alberta hanger. When McLennan left Canmore hanger at 2:44 p.m., the helicopter's 530 liter fuel tank was 35 percent full. The fuel tank installed on McLennan's helicopter at the time of the crash retained 11 liters of unusable fuel. Therefore, McLennan began work with approximately 175 liters of usable fuel. Pursuant to his training, McLennan verified the amount of fuel on board by visually checking the fuel gauge, the fuel tank level,³ and the meter on the fuel pump dispensing the fuel.

Shortly after the accident, McLennan gave a recorded statement to the Canadian Transportation Safety Board (CTSB). McLennan told the CTSB that CHL pilots use a fuel burn rate of 173 liters per hour for planning such flights, but that the actual burn rate "was quite a bit less than that, probably around 150 liters per hour."⁴ CHL pilot Paul Kendall likewise testified that CHL pilots use a burn rate of about 170 liters per hour for slinging operations, and that he personally trained McLennan to follow that rule when flying the AS-350-B. The CTSB used a mid-range estimate of 160 liters per hour in its report on the accident. Using CHL's planning rate of 173 liters per hour, McLennan left Canmore hanger with about 61 minutes flying time before complete fuel exhaustion. Using McLennan's more optimistic estimate of only 150 liters per hour, McLennan left Canmore hanger with about 70 minutes flying time before complete fuel exhaustion would cause the helicopter to fall from the air.

Canadian Air Regulation 544(b) requires helicopter pilots to plan their flights such that they can land at their destination with a 20 minute reserve fuel supply.⁵ There is a similar regulatory requirement for pilots operating in the United States. CHL likewise had written policies requiring that company pilots comply with the Canadian Air regulation requiring a 20 minute reserve. McLennan was aware of this rule and his obligation to comply with it. Considering the requirement that flight planning allow for a 20 minute reserve upon landing at destination, McLennan actually left Canmore hanger, using the least conservative fuel calculations, with no more than 50 minutes of safe and lawful flying time.

McLennan first flew from Canmore hanger to the Haig Glacier base camp. McLennan was not slinging any external load during this flight. McLennan arrived at 2:59 p.m. This one-way flight should have reduced the least conservative estimate of 70 minutes flight time by 15 minutes, leaving approximately 55 minutes flight time before fuel exhaustion and 35 minutes safe flying time, which equates to slightly more than 28 percent fuel.

McLennan testified at trial that he actually arrived at the Haig Glacier base camp with about 30 percent fuel, which would have afforded him slightly more than 59 minutes total flight time to exhaustion, about four minutes longer that predicted by his fuel level at Canmore hanger. Adhering to our duty to construe the facts in McLennan's favor, we accept McLennan's testimony that he still had 30 percent fuel when he arrived at the Haig Glacier base camp, as well as his estimate of 150 liters per hour fuel burn rate, which would have left him with just over 59 minutes flight time to total exhaustion.⁶

III.

At the Haig Glacier base camp, McLennan shut down, removed and stowed the helicopter doors, tested the slinging equipment, and prepared for slinging operations. According to Michael Just, who helped McLennan secure loads at the Haig Glacier base camp, this shut down lasted from McLennan's 3:00 p.m. arrival time until 3:35 or 3:40 p.m., when McLennan began slinging operations. CHL's Canmore hanger radio log consistently reflects that McLennan began slinging operations at 3:40 p.m. and that McLennan was then in the air continuously until the accident occurred at approximately 5:00 p.m. The CTSB's Aviation Occurrence Report, without referring...