Younan v. Rolls-Royce Corp.

• Decision Date: 07 May 2013
• Docket Number: CASE NO. 09cv2136-WQH-BGS
• Parties: DALOUR YOUNAN, CHAD HESSENFLOW, NANCY RUTH BELL and VICKI HESSENFLOW, Plaintiffs, v. ROLLS-ROYCE CORPORATION, a wholly owned subsidiary of Rolls Royce, PLC; and MD HELICOPTERS, INC. (MDHI), a foreign corporation, Defendants.
• Court: U.S. District Court — Southern District of California

DALOUR YOUNAN, CHADHESSENFLOW, NANCY RUTHBELL and VICKI HESSENFLOW, Plaintiffs,

v. ROLLS-ROYCE CORPORATION,a wholly owned subsidiary of RollsRoyce, PLC; and MD HELICOPTERS,INC. (MDHI), a foreign corporation, Defendants.

CASE NO. 09cv2136-WQH-BGS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: May 7, 2013

ORDER

HAYES, Judge:

The matters before the Court are two Motions in Limine filed by Plaintiffs (ECF Nos. 161, 162) and eight Motions in Limine filed by the sole remaining Defendant, MD Helicopters, Inc. ("MDHI") (ECF Nos. 163-170).

I. Background

On November 17, 2010, Plaintiffs filed the Second Amended Complaint, which is the operative pleading. (ECF No. 33). The Second Amended Complaint seeks damages for injuries Plaintiffs sustained as a result of a 2009 helicopter accident in San Clemente, California. Only the Second Amended Complaint's fourth cause of action against MDHI remains to be tried. The fourth cause of action alleges "negligence,negligence per se, and failure to warn." Id. at 11. Plaintiffs allege that, as successive manufacturer of the accident helicopter and holder of the accident helicopter's Type Certificate, MDHI was responsible for the safe operation and continued airworthiness of the helicopter, including informing owners, operators, and the Federal Aviation Administration ("FAA") of any design defects and limitations on the performance capabilities of the helicopter.

On February 11, 2013, Plaintiffs filed the following Motions in Limine: (1) Motion to Exclude Evidence of Negligence of Rolls-Royce and Boeing (ECF No. 161), and (2) Motion to Exclude Reference at Trial to Alleged Negligence by and/or Apportionment of Fault to Customs and Border Patrol and Office of Air and Marine (ECF No. 162). On February 11, 2013, MDHI filed the following Motions in Limine: (1) Motion to Exclude Evidence or Reference to Non-Training-Related Duty to Warn Other than Duty to Comply with 14 C.F.R. §§ 27.1581-27.1589 (ECF No. 163); (2) Motion to Exclude Evidence of or Reference to Other Accidents (ECF No. 164); (3) Motion to Exclude Evidence of or Reference to Expansion of MD600N Flight Envelope (ECF No. 165); (4) Motion to Exclude Evidence of or Reference to Department of Labor's Adjustment After Recovery from a Third Party (ECF No. 166); (5) Motion to Exclude Evidence of or Reference to December 18, 1998 Letter from Tom Crosby to Duncan Hunter (ECF No. 167); (6) Motion to Exclude Reference to MDHI as "McDonnell Douglas" (ECF No. 168); (7) Motion to Exclude Testimony of Donald E. Sommer Regarding Helicopter Flight Training (ECF No. 169); and (8) Motion to Exclude Testimony of William Lawrence Regarding (a) Missing Instructions or Warnings, and (b) Causation (ECF No. 170).

On March 29, 2013 and April 25, 2013, the Court heard oral argument on the Motions in Limine. (ECF Nos. 195, 200).

II. Discussion

A. Motion in Limine to Exclude Evidence of Negligence of Rolls-Royce and Boeing

1. Contentions of the Parties

Plaintiffs "move in limine for an order excluding all evidence, testimony, reference, mention, or argument relating to negligence of Rolls-Royce and Boeing." (ECF No. 171 at 2). Plaintiffs contend:

This case is only about failure to train and failure to warn of inadequate and dangerous handling qualities and characteristics of the MD600N helicopter in auto-rotation, a condition that occurs only after engine failure and exists solely because engine failure is a foreseeable condition that has already occurred. MDHI cannot establish that the engine failure stipulated to herein was a 'substantial factor' or a proximate cause at all in its failure to adequately train and warn. The causes of engine failures and even the frequency of engine failures are irrelevant to the issue of inadequacy of training in auto-rotation and the inadequacy of warnings associated with the handling qualities of the helicopter while it is being autorotated.

(ECF No. 161 at 2). Plaintiffs contend:

Any reference at trial to the cause of the engine failure and any attempt to ascribe fault for the engine failure will inject into the trial issues that are irrelevant and will cause undue confusion to the trier of fact. If the proofs are open for MDHI on the cause of the engine failure, proofs should open for Plaintiffs on rebuttal (or in their case in chief) as to the extent of knowledge that MDHI possessed or should have possessed about the airworthiness and reliability of the engine installed in its MD600N helicopter and its legal obligations as holder of the airworthiness certificate. Certainly if MDHI were allowed to proffer evidence on the reason the engine failed (requiring the initiation of an auto-rotation, the maneuver here at issue) for the purpose of ascribing fault to a non-party, then Plaintiffs should be afforded evidentiary latitude to establish the degree of knowledge of MDHI and its legal obligations as holder of the type certificate to investigate and obtain knowledge of problems associated with the engine, including failings of #2 bearings.

Id. at 5-6.

MDHI contends that "the Court should deny Plaintiffs' motion in limine to exclude evidence of Rolls-Royce's negligence and defer its ruling regarding evidence of negligence committed by Boeing." (ECF No. 177 at 7). With respect to the alleged fault of Rolls-Royce, MDHI contends:

Before the settlement with Rolls-Royce, Plaintiffs and their liability experts repeatedly stated that the failure of the Rolls-Royce engine contributed to the February 19, 2009 accident.... The question is not whether the engine failure contributed to MDHI's alleged negligence; instead, the question is whether the engine failure contributed to the accident, itself.

Id. at 3, 5. With respect to the alleged fault of Boeing, MDHI contends that "MDHI remains uncertain about Plaintiffs' claims," and if Plaintiffs argue to the jury that MDHIhad a statutory duty to notify the FAA about issues related to the helicopter, then MDHI "is entitled to explain ... [that] any duty to provide information to the FAA ... belonged to Boeing, not MDHI." Id. at 6.

2. Analysis

Under California law, a defendant is liable only for its proportionate share of a plaintiff's noneconomic damages. See Cal. Civ. Code § 1431.2(a) ("In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault...."). "[A] defendant's liability for noneconomic damages cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff's injuries, not merely that of defendants present in the lawsuit." DaFonte v. Up-Right, Inc., 2 Cal. 4th 593, 603 (1992) (quotation omitted). "Neither the allocation of fault, nor the amount of a joint and several damage award, varie[s] by virtue of the particular defendants who happen[] to be before the court." Id. (quotation omitted).

In its Answer to the Second Amended Complaint, MDHI raised an affirmative defense that "[t]he doctrine of comparative fault and the Fair Responsibility Act of 1986, codified at California Civil Code Section 1431.1 et seq., limits any damages governed thereby which are awarded to Plaintiffs and against MDHI to that portion of Plaintiffs' non-economic damages, if any, that are attributable to MDHI's percentage of fault or liability, if any." (ECF No. 36 at 19; see also id. at 16, 18 ("Plaintiffs' claims against MDHI are barred completely or must be reduced in proportion to the fault attributable to such other third parties as are found liable"; "Plaintiffs' claims and damages are barred or should be reduced by the comparative or contributory negligence or responsibility of Plaintiffs and other persons or entities.")). MDHI may present evidence relevant to the potential fault of Boeing and/or Rolls-Royce, assuming theevidence is otherwise admissible. See DaFonte, 2 Cal. 4th at 603. To the extent Plaintiffs wish to introduce evidence of the "knowledge of MDHI and its legal obligations as holder of the type certificate to investigate and obtain knowledge of problems associated with the engine" (ECF No. 161 at 6), Plaintiffs may move for the admission of such evidence at trial, and the Court will rule at that time on the admissibility of that evidence. To the extent Plaintiffs contend that "evidence of Rolls-Royce's negligence is duplicative and redundant" (ECF No. 188 at 6), Plaintiffs may raise that objection at trial. The Motion in Limine to Exclude Evidence of Negligence of Rolls-Royce and Boeing is denied without prejudice to object to any specific evidence at trial.

B. Motion in Limine to Exclude Reference at Trial to Alleged Negligence by and/or Apportionment of Fault to Customs and Border Patrol and Office of Air and Marine

1. Contentions of the Parties

Plaintiffs "move in limine for an order excluding all evidence, testimony, reference, mention, or argument relating to the alleged negligence by and/or apportionment of fault to Customs and Border Patrol ('CBP') and Office of Air and Marine ('OAM')." (ECF No. 172 at 2). Plaintiffs contend:

[T]hroughout the course of the final flight and throughout the crash sequence itself, the helicopter was at all times indisputably within the

operating envelope prescribed and published by Defendant, MDHI…. If the helicopter was operated within its certificated and manufacturer's approved flight envelope, there is no legal or factual basis to ascribe fault to CBP/OAM, the owner of the helicopter and employer of Plaintiffs.

(ECF No. 162 at 2). Plaintiffs also move for the exclusion of the testimony of Merton Cox, CBP Executive Director of Training, and a post-crash email written by Cox on the basis that "Cox expresses expert opinions in his email he is not qualified to give" because he...