Mills v. Beech Aircraft Corp., Inc.

• Decision Date: 26 October 1989
• Docket Number: No. 88-4712,88-4712
• Citation: 886 F.2d 758
• Parties: , 28 Fed. R. Evid. Serv. 1231 Helen Nichols MILLS, Alice Mills Nolley, Mary Mills Corkern, Robyn Mills Olsan, Jody Hart Mills and Raymond Matthew Mills, Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 758

886 F.2d 758

15 Fed.R.Serv.3d 342, 28 Fed. R. Evid. Serv. 1231

Helen Nichols MILLS, Alice Mills Nolley, Mary Mills Corkern Robyn Mills Olsan, Jody Hart Mills and Raymond Matthew Mills, Plaintiffs-Appellants, v. BEECH AIRCRAFT CORPORATION, INC., Defendant-Appellee.

No. 88-4712

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Oct. 26, 1989.

Joseph L. Lemoine, Jr., Lafayette, La., for plaintiffs-appellants.

Thomas C. Gerity, Robert A. Miller, Frank A. Wood, Jr., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE, DAVIS and JONES, Circuit Judges:

GEE, Circuit Judge:

Plaintiffs appeal from the judgment, entered on a jury verdict, for defendant Beech Aircraft Corporation in a wrongful death action arising out of the crash of a private airplane. We affirm.

In July 1983, Alva Ray Mills and Lonnie Bearry took off from Baton Rouge, Louisiana, in a 1961 Model 35 Beech Bonanza, registered as N1317Z, and flew to an airport in McComb, Mississippi, where they performed practice instrument approaches. At mid-morning, the pilot of N1317Z informed the McComb Flight Service Station that they were returning to Baton Rouge. Between five and ten minutes later, the plane crashed, killing both Mills and Bearry.

In March 1985 the plaintiffs, survivors of Alva Ray Mills, filed a products liability action against Beech Aircraft Corporation, alleging that negligent and defective design of the airplane's control assembly caused the crash. Three years later, in March of 1988, the plaintiffs moved to consolidate the action with Bearry v. Beech Aircraft Corp., Civ. No. S87-0530(GN), in the United States District Court for the Southern District of Mississippi. That motion was denied, and the court entered an Order on its own motion changing venue from the Southern Division to the Jackson Division of the Southern District of Mississippi.

At trial, opposing theories of the case were presented: The plaintiffs' was that a turnbuckle on the chain located inside the control arm became jammed against a sprocket, causing the ailerons ¹ to jam, and resulting in loss of control of the airplane. The defendant's was that the airplane simply ran out of fuel. The jury returned a verdict for Beech Aircraft, and final judgment was entered on July 5, 1988. Upon denial of their motion for a new trial, the plaintiffs noticed this appeal.

Venue

The plaintiffs contend that the court abused its discretion in moving venue from the Southern Division to the Jackson Division. This contention is without merit.

The diversity action was filed in the Southern District of Mississippi and assigned to Judge Dan M. Russell. None of the parties objected to this venue. About three years later, Judge Russell, by letter, inquired of both parties as to the propriety of venue in the Southern Division and informed them that he was considering transferring venue to the Jackson Division. Both sides responded to this inquiry by letter. In their letter, the plaintiffs asked that venue not be changed because of 1) anticipated docket problems in the Jackson Division; 2) anticipated hometown sympathy for Beech counsel in the Jackson Division; and 3) more convenient accommodations for the plaintiffs in the Southern Division. Defendants likewise expressed concern over possible docket problems in the Jackson Division, but did assert that Jackson would be more convenient to their counsel, to out-of-town witnesses, and to witnesses from McComb, the site of the crash. Judge Russell then transferred the case pursuant to 28 U.S.C. Section 1404. The plaintiffs did not object to this order. On appeal, the plaintiffs, while conceding that venue in Jackson Division was proper, maintain that their choice of venue should not have been disturbed.

Section 1404 authorizes a district court "[f]or convenience of the parties and witnesses, in the interests of justice" to move venue to any other district or division where the suit might have been brought. 28 U.S.C. Section 1404(a) (1982). "Decisions to effect 1404 transfers are committed to the sound discretion of the transferring judge, and review of a transfer is limited to abuse of that discretion." Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir.1988). Such transfers may be made sua sponte. See id.

The facts of this case do not reveal an abuse of discretion by the district judge. The crash of N1317Z occurred within the Jackson Division. Most of the factual witnesses were from McComb, which is about 56 miles closer to Jackson than to Biloxi. The plaintiffs do not reside in the Southern Division and the change in venue did not appreciably increase the distance they would be required to travel for trial. The change of venue moved this case to a different division within the same district about 150 miles away. It is not as if the case was "consigned to the wastelands of Siberia." See Jarvis Christian College, 845 F.2d at 528.

Consolidation

The plaintiffs maintain that the district court abused its discretion in failing to consolidate this case with Bearry v. Beech Aircraft Corporation, Civ. No. S87-0530(GN), which action arose out of the same airplane crash and was pending in the Southern District of Mississippi at the time of the motion.

Consolidating actions is proper when two or more district court cases involve common questions of law and fact and the district judge finds that consolidation would avoid unnecessary costs or delay. Fed.R.Civ.P. 42; St. Bernard General Hospital, Inc. v. Hospital Service Association of New Orleans, Inc., 712 F.2d 978, 990 (5th Cir.1983), cert. denied, 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984). "A trial court has broad discretion in determining whether to consolidate a case pending before it." Alley v. Chrysler Credit Corp. 767 F.2d 138, 140 (5th Cir.1985). Consolidation may properly be denied in instances where the cases are at different stages of preparedness for trial. St. Bernard, 712 F.2d at 990.

Bearry's survivors filed suit against Beech in the Southern Division of the Southern District of Mississippi in August of 1987, more than two years after the present action was filed. The final pretrial conference for the present action was held on September 9, 1986 with the final pretrial order being filed on July 23, 1987. The plaintiffs in the present action filed a motion for consolidation on March 24, 1988. On May 6, 1988, the court entered a Memorandum Order denying consolidation. In its Order, the court noted that counsel for Bearry had advised the court that "he did not want to be confined to the discovery performed or the pretrial order submitted in Mills; and that he expected the need to designate several experts and depose certain Beech employees which have not and will not be designated or deposed by the Mills' plaintiffs." The district court concluded that Mills was ready for trial and Bearry was not.

We hold that the denial of consolidation in this case was not an abuse of the district court's broad discretion.

Evidentiary Error

The plaintiffs allege that the district court erred in several evidentiary rulings. Evidentiary rulings are accorded considerable deference on appeal; "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Fed.R.Evid. 103(a); see Hardy v. Chemetron Corp., 870 F.2d 1007 (5th Cir.1989). Bearing this standard in mind, we consider each of the contested rulings in turn.

The "French Letter"

The "French letter" is a copy of a letter, written in French and dated June 26, 1969, from the Director of Aeronautical Services for the Bureau Veritas of France (a rough equivalent of the United States Federal Aviation Administration) to Beech Aircraft Corporation and containing a partial English translation of its text in its margin. The letter informed Beech that one of the Bureau's Districts wrote them concerning an error in the installation of the control chains which caused aileron lock-up and accordingly suggested some changes in the airplane shop manual.

The plaintiffs attempted to have the letter admitted during direct examination of Dr. Silver, an expert witness of the plaintiffs who opined that the crash of the airplane was due to control chain misinstallation. ² The plaintiffs purpose in offering the letter was to show that aileron lock-up due to control chain misrigging had occurred in the past and to demonstrate Beech Aircraft's knowledge of the problem. The court determined that the letter would be more prejudicial than relevant and refused its admission into evidence.

In order to obtain the admission of evidence concerning a prior related accident, the proponent must show that the accident occurred under circumstances "substantially similar" to the case at bar. Hardy, 870 F.2d at 1009. In the present case, the letter does not state under what conditions the lock-up occurred, does not say whether an accident resulted, and does not specify on which type airplane the incident occurred. The probative value of the letter to show the possibility of the specific defect alleged or Beech's knowledge of that defect is thus quite faint. The district court did not abuse its discretion in determining the letter to be more prejudicial than relevant.

The Beech Baron Shop Manual

At trial, the plaintiffs attempted to introduce into evidence a 1983 revision of the Beech Baron shop manual. This manual allegedly gives a more detailed explanation of how to install the turnbuckles on the control arm chain than the Beech Bonanza shop manual. The district court excluded the manual as evidence of a subsequent remedial measure under Federal Rule of Evidence 407. That rule states in part: "When, after an event, measures are taken which if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove...