Larry Crouch v. Honeywell International, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0139p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

LARRY CROUCH, RHONDA MAE CROUCH,

-

TEDDY LEE HUDSON, and CAROLYN SUE

HUDSON, -

Plaintiffs-Appellants, -

No. 12-5775

,

>

-

-

v.

-

-

HONEYWELL INTERNATIONAL, INC., et al.,

Defendants, -

-

-

Defendant-Appellee. -

AVCO CORPORATION,

N

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 3:07-cv-00638—Charles R. Simpson III, District Judge.

Decided and Filed: May 14, 2013

Before: DAUGHTREY, McKEAGUE and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: William R. Garmer, Jerome P. Prather, GARMER & PRATHER, PLLC,

Lexington, Kentucky, Matthew C. Minner, HARE, WYNN, NEWELL AND NEWTON,

LLP, Birmingham, Alabama, for Appellants. Larry C. Deener, Elizabeth A. Deener,

LANDRUM & SHOUSE LLP, Lexington, Kentucky, for Appellee.

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. This case stems from a plane crash that resulted in

serious injuries to both pilot and passenger. Among various claims against numerous

defendants, plaintiffs allege that the aircraft engine manufacturer is liable for negligently

failing to warn airplane owners and operators, and failing to notify regulatory authorities,

1

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 2

of defects in the engine and its components. In granting the defendant manufacturer’s

motion for summary judgment, the district court held that plaintiffs’ allegations failed

to make out a claim in avoidance of the applicable period of repose. The court also

denied plaintiffs’ post-judgment motion for leave to file a first amended complaint,

concluding the asserted “newly discovered evidence” was not newly discovered. On

appeal, plaintiffs challenge the district court’s application of the General Aviation

Revitalization Act and contend the court improperly denied them opportunity to continue

discovery. For the reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND1

On November 21, 2006, Larry Crouch was piloting his Piper Lance II single-

engine airplane on a trip from Mayfield to Frankfort, Kentucky, with Teddy Lee Hudson

as passenger. After losing engine power at an altitude of 5000 feet, and finding it

impossible to reach an airport, Crouch made a forced landing in a field near Bardstown.

Both occupants survived but suffered serious permanent injuries, including paraplegia.

According to at least one of plaintiffs’ theories, investigation of the crash

indicated the loss of power was caused by detachment of the magneto from the engine,

due to a fractured mounting flange. The magneto generates the electrical charge needed

to fire the spark plugs that power the engine. The engine was manufactured in 1978 by

Lycoming Engines, a subsidiary of defendant AVCO Corporation. The magneto, a

rebuilt component, was installed by John Jewell Aircraft, Inc. during a 2005 overhaul

of the engine.2 According to Jewell Aircraft, the overhaul was performed in accordance

with the Lycoming Overhaul Manual.

Crouch and Hudson, along with their wives, Rhonda Mae Crouch and Carolyn

Sue Hudson, commenced this action in November 2007, suing multiple defendants who

1

Plaintiffs’ version of the facts is essentially accepted as true for purposes of our review of the

relevant legal issues.

2

The rebuilt magneto was manufactured by Teledyne Continental Motors, Inc. Plaintiffs sued

Teledyne in the Southern District of Alabama on defective design and manufacture and failure to warn

claims. Jewell Aircraft is a named defendant in this action. Proceedings on plaintiffs’ claims against Jewell

Aircraft and other defendants are ongoing in the district court.

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 3

were allegedly involved in the manufacture and maintenance of the aircraft and its

engine, including AVCO. Their complaint sets forth a single claim in negligence against

all defendants, in broad, general terms:

Defendants, . . . in the ordinary course of their business, had a duty to

exercise reasonable care in the design, engineering, testing, manufacture,

installation, assembly, maintenance and overhaul of the engine, its

components and accessories, and to generate and publish warnings,

manuals and other product support material relating to the said engine,

its components and accessories.

R.1 Complaint ¶ 24, p.8, Page ID #9. Plaintiffs allege that the defendants breached this

duty by:

a. Failing to reasonably design, engineer, test, manufacture, install,

assemble, maintain and/or overhaul the engine, its components and

accessories;

b. Failing to adequately warn the owners and operators of the defects in

the engine, its components and accessories;

c. Failing to reasonably and adequately notify the regulatory authorities

including the Federal Aviation Administration (“FAA”) of the defects in

the engine, its components and accessories;

d. Failing to correct known defects in the engine, its components and

accessories; and

e. Unreasonably representing, certifying, and/or warranting as airworthy

the aircraft, the engine, its components and accessories.

Id. at ¶ 25, p.9, Page ID #10.

In relation to AVCO’s asserted liability, plaintiffs contend the engine failure

resulted from the separation of the magneto installed during an overhaul performed

according to instructions in a manual AVCO was obliged to publish and update.

Plaintiffs’ theory, not specifically set forth in the complaint, is that the overhaul manual

instructions were flawed due to AVCO’s negligence.

In December 2009, AVCO moved for summary judgment based on the General

Aviation Revitalization Act of 1994 (“GARA”), 49 U.S.C. § 40101 Notes. AVCO

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 4

argued that GARA’s 18-year period of repose bars plaintiffs’ negligence claim against

AVCO based on actions taken in its capacity as manufacturer because the engine was

manufactured in 1978, twenty-eight years before the plane crash. In response, plaintiffs

emphasized that the court had permitted only limited discovery up to that point, which

had handicapped them in their ability to respond to the time-bar defense. They

maintained that AVCO’s motion was premature. Plaintiffs also contended (1) that

GARA does not apply because AVCO is not sued in its capacity as a manufacturer but

as a manual publisher; (2) that even if GARA applies, the revised overhaul manual

represents a replacement “part” or “component,” the issuance of which triggered a new

18-year period; and (3) that incomplete discovery had revealed that another potential

exception to the time-bar may apply (i.e., that AVCO had knowingly misrepresented or

withheld required information from the Federal Aviation Administration).

The district court originally denied AVCO’s motion for summary judgment on

July 12, 2010. In doing so, however, the court narrowed the scope of plaintiffs’

surviving claim against AVCO. The court ruled that the revised overhaul manual is not

a “part” of the aircraft such as would give rise to a new 18-year period. Yet, the court

ruled that the GARA time-bar did not come into play anyway, because AVCO was not

sued in its capacity as a manufacturer, but rather for actions taken as an overhaul manual

publisher. Finally, the court rejected the notion that plaintiffs’ complaint contained

sufficiently specific allegations of knowing misrepresentation or withholding of required

information by AVCO to warrant further proceedings on such a theory. Thus, while

nominally denying AVCO’s motion, the court concluded its ruling in a manner that

limited further proceedings to plaintiffs’ claim of “negligent overhaul-manual

authorship.”

AVCO moved for reconsideration, but plaintiffs did not. On November 1, 2010,

the district court changed its ruling, concluding that because AVCO was required by law

to produce maintenance and overhaul manuals in conjunction with its manufacturing of

aircraft parts, AVCO, for purposes of its alleged liability in this case, was acting in its

capacity as a manufacturer. The court thus held that plaintiffs’ claim against AVCO was

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 5

barred by GARA’s 18-year rule, because the engine for which AVCO published the

overhaul manual was manufactured more than eighteen years prior to the plane crash.

The court expressly noted that this reconsideration did not alter its earlier determination

that the revised overhaul manual is not a “part” that could be deemed to restart the period

of repose.

On November 29, 2010, plaintiffs moved for reconsideration of the court’s order

granting summary judgment to AVCO and moved for leave to file a first amended

complaint so as to specifically set forth their claim for misrepresentation or withholding

of required information. These motions remained under advisement in March 2011,

when plaintiffs moved to supplement the motions with newly discovered evidence

showing that AVCO published a service instruction on February 11, 2011, detailing the

correct procedure for attaching the magneto installation hardware. The district court

finally ruled on August 17, 2011, granting the motion to supplement, but nonetheless

denying the motions for reconsideration and for leave to amend.

Plaintiffs filed their notice of appeal on September 14, 2011, but the appeal was

dismissed sua sponte on January 19, 2012, for lack of proper “final judgment”

certification under Fed. R. Civ. P. 54(b). The district court subsequently issued an

improved Rule 54(b) certification, explaining why its interlocutory summary judgment

order disposing of plaintiffs’ action against AVCO is final and appealable under the

standard prescribed in Corrosioneering v. Thyssen Envitl. Sys., Inc., 807 F.2d 1279, 1282

(6th Cir. 1986). Plaintiffs immediately filed another notice of appeal, challenging

the summary judgment ruling and denial of reconsideration. The district court’s

supplemental Rule 54(b) order is facially sufficient and we are satisfied that appellate

jurisdiction is properly exercised in this case.

II. ANALYSIS

A. Standard of Review

An order granting summary judgment is subject to de novo review. White v.

Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 6

“should be rendered if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Before

ruling on a summary judgment motion, the district court must afford the parties adequate

time for discovery, in light of the circumstances of the case. Plott v. Gen. Motors Corp.,

Packard Elec. Div., 71 F.3d 1190, 1195 (6th Cir. 1995). The reviewing court must view

the evidence in the light most favorable to the non-moving party and draw all reasonable

inferences in its favor. White, 533 F.3d at 390. Not just any alleged factual dispute

between the parties will defeat an otherwise properly supported motion for summary

judgment; the non-movant must do more than simply show there is “some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). The dispute must present a genuine issue of material fact.

A dispute is “genuine” only if based on evidence upon which a reasonable jury could

return a verdict in favor of the non-moving party. Niemi v. NHK Spring Co., Ltd.,

543 F.3d 294, 298 (6th Cir. 2008). A factual dispute concerns a “material” fact only if

its resolution might affect the outcome of the suit under the governing substantive law.

Id. at 298-99.

Likewise, the district court’s denial of plaintiffs’ motion for reconsideration of

the summary judgment ruling is reviewed de novo. Medical Mut. of Ohio v. k. Amalia

Enterprises Inc., 548 F.3d 383, 389-90 (6th Cir. 2008). However, the district court’s

“refusal to consider evidence produced for the first time on a motion to reconsider will

be reversed only if the refusal constitutes an abuse of discretion.” Id. (quoting Sommer

v. Davis, 317 F.3d 686, 691 (6th Cir. 2003)).

B. Relevant GARA Provisions

The relevant provisions of the General Aviation Revitalization Act provide as

follows:

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 7

Section 2. Time limitations on civil actions against aircraft

manufacturers.

(a) In general.—Except as provided in subsection (b), no civil

action for damages for death or injury to persons or damage to property

arising out of an accident involving a general aviation aircraft may be

brought against the manufacturer of the aircraft or the manufacturer of

any new component, system, subassembly, or other part of the aircraft,

in its capacity as a manufacturer if the accident occurred—

(1) after the applicable limitation period beginning on—

(A) the date of delivery of the aircraft to its first purchaser or lessee, if

delivered directly from the manufacturer; or

(B) the date of first delivery of the aircraft to a person engaged in the

business of selling or leasing such aircraft; or

(2) with respect to any new component, system, subassembly, or

other part which replaced another component, system, subassembly, or

other part originally in, or which was added to, the aircraft, and which is

alleged to have caused such death, injury, or damage, after the applicable

limitation period beginning on the date of completion of the replacement

or addition.

(b) Exceptions.—Subsection (a) does not apply—

(1) if the claimant pleads with specificity the facts necessary to

prove, and proves, that the manufacturer with respect to a type certificate

or airworthiness certificate for, or obligations with respect to continuing

airworthiness of, an aircraft or a component, system, subassembly, or

other part of an aircraft knowingly misrepresented to the Federal

Aviation Administration, or concealed or withheld from the Federal

Aviation Administration, required information that is material and

relevant to the performance or the maintenance or operation of such

aircraft, or the component, system, subassembly, or other part, that is

causally related to the harm which the claimant allegedly suffered.

49 U.S.C. § 40101 Notes, § 2.

C. “Capacity as a Manufacturer”

On reconsideration, the district court held that AVCO, by publishing the overhaul

manual, was acting in its “capacity as a manufacturer” within the meaning of GARA.

The court noted that FAA regulations require manufacturers of aircraft and aircraft parts

to follow an extensive certification process requiring them to produce instructions to

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 8

assist in the continuing maintenance and overhaul of the engine. The court viewed

production of the manual as an essential element in the overall process of creating a

product that satisfies FAA regulations. Plaintiffs’ claim against AVCO for negligence

in the publication of the manual was thus held to trigger application of GARA and its 18-

year period of repose.

The district court’s conclusion is in accord with decisions from other

jurisdictions. See Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1157 (9th Cir.

2000) (applying GARA and holding that a flight manual, required by federal regulations,

is an integral part of an aircraft which, if defective, can subject manufacturer to liability

as manufacturer); Schamel v. Textron-Lycoming, a Div. of Avco Corp., 1 F.3d 655, 657

(7th Cir. 1993) (applying analogous Indiana statute of repose and holding publication

of service manual was integral to manufacturer’s duties as manufacturer); Estate of

Grochowske v. Romey, 813 N.W.2d 687, 696-700 (Wis. App. 2012) (manufacturer

fulfilling legal obligation to provide maintenance manual held to be acting in its capacity

as manufacturer under GARA); Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543,

550-51 (Iowa 2002) (holding manufacturer who published maintenance manual acted

in its capacity as manufacturer under GARA, stating, “[a]ny other interpretation would

subject manufacturers to liability on failure-to-warn claims without regard to the statute

of repose, thereby thwarting Congress’s objective in enacting the statute.”); Alter v. Bell

Helicopter Textron, Inc., 944 F. Supp. 531, 540-41 (S.D. Tex. 1996) (recognizing

manufacturer’s provision of maintenance manual to be part of its duty as manufacturer).

Plaintiffs contend the district court erred. They rely primarily on a legislative

report which clarifies the meaning of GARA § 2(a). The report reads:

The latter limitation [i.e., on suits brought against a manufacturer in its

capacity as a manufacturer] is intended to insure that parties who happen

to be manufacturers of an aircraft or a component part are not

immunized from liability they may be subject to in some other capacity.

For example, in the event a party who happened to be a manufacturer

committed some negligent act as a mechanic of an aircraft or as a pilot,

and such act was a proximate cause of an accident, the victims would not

be barred from bringing a civil suit for damages against that party in its

capacity as a mechanic.

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 9

H.R. Rep. 103-525 (II), reprinted in 1994 U.S.C.C.A.N. 1644 (Section-by-Section

Analysis) (June 24, 1994). Plaintiffs argue this legislative history underscores the plain

meaning of GARA’s language, making it clear that manufacturers of aircraft and aircraft

parts are not protected by the period of repose for tortious conduct committed in a

capacity other than as manufacturer. Plaintiffs insist that AVCO’s publication of the

overhaul manual was undertaken in a capacity other than as a manufacturer.

The problem with this argument is that it finds no support in the case law. As

indicated above, it has become generally accepted that performance of a manufacturer’s

federally mandated duty to publish flight and maintenance manuals is conduct

undertaken in the capacity of a manufacturer. Plaintiffs’ legislative-history based

argument was directly addressed and rejected in Mason, 653 N.W.2d at 551-52.

Plaintiffs have cited no contrary authority. A manufacturer who chooses to also conduct

business as a mechanic is different than a manufacturer who is required by federal

regulation to publish maintenance and overhaul manuals for all products that it

manufactures.3

Further support for the proposition that publication of a maintenance or overhaul

manual is action taken in the “capacity as a manufacturer” is derived from the plain

language of GARA itself. One of the exceptions to the operation of the period of repose,

GARA § 2(b)(1), pertains to claims resulting from a manufacturer’s duty to disclose

pertinent information, such as maintenance issues affecting airworthiness, to the FAA.

Disclosure of such information is required and withholding or misrepresentation of such

information may expose the manufacturer to liability under § 2(b)(1) notwithstanding

3

In their reply brief, plaintiffs attempt to distinguish AVCO’s responsibilities as a type certificate

holder from its responsibilities as a manufacturer. They argue that AVCO’s publication of the overhaul

manual was in its capacity as a type certificate holder. This argument, too, has been rejected in the case

law. The federal regulations prohibit the manufacturing of an aircraft or certain parts unless the

manufacturer is the type certificate holder for that model aircraft. By virtue of acquisition of a type

certificate, an entity other than the original manufacturer steps into the shoes of the original manufacturer

in relation to the manufacturer’s obligations under the regulations. See 14 C.F.R. § 21.50 (requiring the

current holder of a type certificate to make available all “changes to the Instructions for Continued

Airworthiness . . . to any person required . . . to comply with those instructions.”). The type certificate

holder is, in the eyes of the FAA, the current manufacturer, and thus the type certificate holder should not

be denied the protections of GARA as a manufacturer. See Burton v. Twin Commander Aircraft LLC,

254 P.3d 778, 784-85 (Wash. 2011); S. Side Trust & Sav. Bank of Peoria v. Mitsubishi Heavy Indus., Ltd.,

927 N.E.2d 179, 203-04 (Ill. App. 2010); Mason, 653 N.W.2d at 548–49; Pridgen v. Parker Hannifin

Corp., 904 A.2d 422, 435 (Pa. 2006).

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 10

the otherwise applicable period of repose. If Congress did not view a manufacturer’s

duty to publish and update maintenance manuals as falling within its “capacity as a

manufacturer,” then there would arguably have been no need for Congress to include

§ 2(b)(1) as an exception.

In sum, the district court’s holding that AVCO is sued in its capacity as a

manufacturer is supported by the extant case law, which we find persuasive.

Accordingly, we find no error.

D. New Period of Repose

If AVCO is deemed to have been sued for conduct in its capacity as a

manufacturer, plaintiffs contend each revision of the overhaul manual is sufficiently

analogous to a replacement part of the aircraft under GARA § 2(a)(2) to trigger a new

18-year period of repose. Under § 2(a)(2), a new 18-year period of repose begins “with

respect to any new component, system, subassembly, or other part which replaced

another component, system, subassembly, or other part originally in, or which was added

to, the aircraft, and which is alleged to have caused such death, injury, or damage,

. . . beginning on the date of completion of the replacement or addition.” 49 U.S.C.

§ 40101 Notes, § 2(a)(2). If the overhaul manual is deemed to be such an integral part

of the aircraft as to render its publication an action taken in the capacity of a

manufacturer, plaintiffs contend the manual must be deemed to be a part of the aircraft

and any revision of the manual that caused plaintiffs’ injuries a replacement part.

The district court rejected this argument in its original summary judgment ruling,

citing Colgan Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 276-77 (4th Cir. 2007)

(holding a maintenance manual, in contrast to a flight manual, is not a “part of the

aircraft.”). When the court later reconsidered and held that AVCO was sued as a

manufacturer, it expressly declined to revisit its earlier ruling that the manual was not

a part of the aircraft. The court characterized the manual as “a required accessory,” not

a “part” whose modification would restart the statute of repose. Further, in denying

plaintiffs’ subsequent motion for reconsideration, the court reasoned that holding the

manual revision to be a replacement part triggering a new period of repose would allow

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 11

plaintiffs to circumvent the 18-year period of repose applicable to a design flaw claim

simply by couching their claim in terms challenging the manual’s adequacy to correct

the flaw.

Importantly, the court added the following:

The plaintiffs do not point to any portion of the manual that contained the

wrong instructions for the overhaul, nor do they point to any previously

existing warning that was negligently deleted. Rather, their entire claim

vis a vis the manual rests on their claim that the manual, and subsequent

service bulletins, failed to provide any warning that the magneto

assembly in Crouch’s plane might come loose. This is precisely the sort

of action that GARA forbids.

R. 247, Memorandum Opinion at 6-7, Page ID # 2549-50 (footnote and citations

omitted). The court thus implied that even if the overhaul manual could be deemed a

part of the aircraft, a new 18-year period would not have been triggered because

plaintiffs had adduced no factual substantiation for their theory that the revised overhaul

manual Jewell Aircraft purportedly relied on was flawed in some specific way, by virtue

of an addition or a deletion, that was causally linked to the plane crash. The overhaul

manual was revised several times within eighteen years prior to plaintiffs’ crash, as

recently as 2002. However, plaintiffs have persistently failed to identify any specific

defect in any particular revision as causally related to the plane crash. Absent such

factual support, the court remained unpersuaded that plaintiffs had established grounds

to alter or amend the summary judgment ruling.

There is little case law addressing whether an overhaul manual is a part of the

aircraft within the meaning of GARA § 2(a)(2). In Caldwell, 230 F.3d at 1156-58, the

Ninth Circuit relied on the text of the statute, specifically the words “originally in, or

which was added to, the aircraft,” in holding that a flight manual, because it is required

by law to be on board the aircraft, is a part within the meaning of GARA. However, in

Alter, 944 F. Supp. at 538-41, the court rejected the argument that a maintenance manual

revision was a replacement part within the meaning of GARA § 2(a)(2). In reaching this

conclusion, the Alter court also relied on the statutory language, holding that the

maintenance manual was not a part “originally in” or “added to” the aircraft. Id. at 538.

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 12

The court noted that its holding was consistent with holdings of several federal courts

applying state statutes of repose similar to GARA, citing Schamel, 1 F.3d at 657;

Alexander v. Beech Aircraft Co., 952 F.2d 1215, 1220-21 (10th Cir. 1991); Kochins v.

Linden-Alimak, Inc., 799 F.2d 1128, 1135 (6th Cir. 1986); Butchkosky v. Enstrom

Helicopter, Inc., 855 F. Supp. 1251, 1257 (S.D. Fla. 1993). See also Colgan, 507 F.3d

at 276-77 (relied on in the district court’s original ruling that the overhaul manual was

not a part).

This case involves an overhaul manual, which is more akin to the maintenance

manual discussed in Alter and dissimilar to the flight manual discussed in Caldwell. The

reasoning employed in both Caldwell and Alter thus tends to support the notion that the

overhaul manual is not a part because it was not “originally in, or . . . added to, the

aircraft.” Furthermore, the duty of a manufacturer to publish and update manuals derives

from its manufacturing of the original aircraft or part. GARA specifically bars lawsuits

arising out of defects in an aircraft part that is more than eighteen years old. This bar

logically includes suits for a failure to warn about latent defects in such parts. If claims

for negligently failing to warn in manual revisions were not barred by GARA’s period

of repose, plaintiffs could artfully plead suits arising out of design defects as “failure to

warn” claims, thereby defeating Congress’s intent. See Lyon v. Agusta S.P.A., 252 F.3d

1078, 1088 (9th Cir. 2001) (rejecting notion that failure to warn of a newly perceived

problem in revised manual is analogous to a replacement part triggering new period of

repose); Mason, 653 N.W.2d 552-53 (same).4

In sum, the available case law authority predominantly supports the district

court’s ruling that the revised overhaul manual relied on by Jewell Aircraft is not a

replacement part of the aircraft. We find this case law persuasive and therefore find no

error in the district court’s refusal to alter this ruling on reconsideration.

4

Moreover, a claim alleging that a manufacturer knowingly misrepresented required information

to the FAA, or concealed or withheld required information from the FAA, and knowingly published an

inaccurate or otherwise inadequate maintenance manual, which alteration or deletion causally contributed

to a subsequent accident) would be exempt from the GARA period of repose under § 2(b)(1).

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 13

Moreover, even accepting the possibility that overhaul manual revisions issued

during the eighteen years immediately prior to plaintiffs’ crash could be deemed

replacement parts of the aircraft, we find, as the district court concluded, that plaintiffs

have neither alleged nor substantiated the existence of any affirmative deletion from or

addition to the revised manual that causally contributed to the crash. Absent such a

causal nexus between the replaced part and the complained of injuries, § 2(a)(2) does not

operate to trigger a new period of repose.

As the court noted in Caldwell, 230 F.3d at 1158, “[a] revision to the manual

does not implicate GARA’s rolling provision, however, unless the revised part ‘is

alleged to have caused [the] death, injury, or damage.’” The language of § 2(a)(2) refers

to the specific “part which replaced another . . . part . . . and which is alleged to have

caused such death, injury, or damage.” Section 2(a)(2) cannot be reasonably construed

as meaning that the 18-year period of repose for the entire engine is reset every time a

single sub-part is replaced. Other courts have likewise held that neither a mere

modification (i.e., something short of replacement) of a part, nor a replacement of less

than the whole part or all components of a system will trigger a new period of repose

under GARA. See Inmon v. Air Tractor, Inc.,74 So.3d 534, 538 (Fla. App. 2011); Hiser

v. Bell Helicopter Textron Inc., 111 Cal. App. 4th 640, 650-51 (2003). In order to

trigger a new period of repose, the facts must show (1) that AVCO made a substantive

change in (i.e., alteration of or deletion from) the overhaul manual instructions relating

to parts and method for attaching the magneto to the engine, and (2) that the change was

the proximate cause of the crash. See Caldwell, 230 F.3d at 1158; Robinson v. Hartzell

Propeller Inc., 326 F. Supp. 2d 631, 661-62 (E.D. Pa. 2004).

The version of the overhaul manual in the record, current through 2007 revisions,

occupies some 174 pages. It is technical and detailed. Yet plaintiffs have not identified

any specific provision, to which language has been added or from which language has

been deleted in the eighteen years prior to 2006, relating to magneto installation

procedures, that caused the crash. Instead, plaintiffs argue that because part of the

manual was revised as recently before the crash as 2002; and Jewell Aircraft purportedly

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 14

followed the then current manual instructions when it installed the rebuilt magneto in

2005; and the installation proved to be somehow defective (in that the flange failed and

the magneto separated from the engine in flight); the manual must have lacked

sufficiently detailed instructions to ensure proper installation. In other words, plaintiffs

have not shown or even alleged that the revised manual contained a substantive

alteration—addition or deletion—that caused harm. Rather, their theory is that a needed

substantive alteration was not included. Plaintiffs find themselves in the awkward

position of arguing that an omission, something that does not exist, should be treated as

something that does exist and was added on as a replacement “part of the aircraft.”

Plaintiffs ask the court to treat something that was not added as though it were something

that was added and as though this fictional something caused the crash.

Section 2(a)(2) only operates to reset the period of repose if a manual revision

including substantively altered magneto installation instructions was a “replacement or

addition.” GARA § 2(a)(2). Plaintiffs have not made this case—either by allegation or

evidence. Accordingly, irrespective of whether a manual revision may properly be

considered part of the aircraft under GARA § 2(a)(2) in the abstract, we find no error in

the district court’s conclusion that plaintiffs have not made out a claim in avoidance of

the 18-year period of repose in this case.

E. Knowing Misrepresentation or Withholding

Finally, plaintiffs challenge the district court’s refusal to recognize their evidence

of AVCO’s knowing misrepresentation or withholding of required information from the

FAA as an exception to the time-bar under GARA § 2(b)(1). Under § 2(b)(1), the

period-of-repose limitation does not apply “if the claimant pleads with specificity the

facts necessary to prove . . . the manufacturer . . . misrepresented to the Federal Aviation

Administration, or concealed or withheld from the Federal Aviation Administration,

required information that is material and relevant to the performance or the maintenance

or operation of such aircraft.” 49 U.S.C. § 40101 Notes, § 2(b)(1).

In its first summary judgment ruling, the district court rejected plaintiffs’ attempt

to invoke this exception to the time-bar, summarily concluding that their complaint did

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 15

not contain sufficiently specific allegations of knowing misrepresentation, concealment

or withholding. Yet, the court reduced this conclusion to the status of dictum when it

went on to rule that GARA was not applicable because AVCO was not sued as a

manufacturer. It was only after the district court reversed itself, held GARA does apply,

and granted AVCO summary judgment, that the § 2(b)(1) exception became potentially

relevant again.

Plaintiffs then moved for reconsideration of the ruling on the § 2(b)(1) exception

based on their proposed amended complaint, which included more specific allegations

of AVCO’s knowledge and withholding of required information from the FAA. The

district court denied the motion, observing that a post-judgment motion for leave to

amend must meet a stringent standard. The court reasoned that the newly discovered

evidence plaintiffs relied on was not newly discovered and their failure to earlier seek

amendment was not excused by any “compelling explanation.”

Plaintiffs’ original complaint clearly failed to plead sufficiently specific facts to

invoke the § 2(b)(1) exception. Paragraph 25(c) alleges generally that AVCO “fail[ed]

to reasonably and adequately notify the regulatory authorities, including the Federal

Aviation Administration, of the defects in the engine, its components and accessories.”

R. 1 Complaint at 9, Page ID # 10. Nowhere in the complaint did plaintiffs plead

specific facts, as required by § 2(b)(1), to support a claim that AVCO was responsible

for knowing misrepresentation, concealment, or withholding of required information.

Hence, the viability of the § 2(b)(1) exception was contingent on plaintiffs’ obtaining

leave to amend the complaint. This was made clear in the district court’s initial

summary judgment ruling. Accordingly, the district court correctly determined that

plaintiffs’ later motion for reconsideration was “intertwined” with their motion for leave

to amend. Absent leave to amend, there would be no basis for concluding that plaintiffs

had pleaded sufficiently specific facts to satisfy § 2(b)(1).

The district court also correctly recognized that plaintiffs’ post-judgment motion

for leave to amend was governed by the same standard as a motion to alter or amend the

judgment under Fed. R. Civ. P. 59(e). Leisure Caviar, LLC v. U.S. Fish & Wildlife

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 16

Serv., 616 F.3d 612, 615-16 (6th Cir. 2010). The court was bound to “consider the

competing interest of protecting the finality of judgments and the expeditious

termination of litigation.” Id. “If a permissive amendment policy applied after adverse

judgments, plaintiffs could use the court as a sounding board to discover holes in their

arguments, then ‘reopen the case by amending their complaint to take account of the

court's decision.’” Id. at 616 (quoting James v. Watt, 716 F.2d 71, 78 (1st Cir.1983)).

The court correctly noted that relief could be warranted upon a showing of “(1) a clear

error of law; (2) newly discovered evidence; (3) an intervening change in controlling

law; or (4) a need to prevent manifest injustice.” R. 247, Memorandum Opinion at 3,

Page ID # 2546 (quoting Leisure Caviar, 616 F.3d at 615). Further, the court noted, “[a]

claimant who seeks to amend a complaint after losing the case must provide a

compelling explanation to the district court for granting the motion.” Id. at 4-5 (quoting

Leisure Caviar, 616 F.3d at 617).

Despite this procedural posture, plaintiffs have not directly challenged the denial

of leave to amend. If they had, review of the district court’s denial of the motion would

be reviewed for abuse of discretion, see Rose v. Hartford Underwriters Ins. Co., 203

F.3d 417, 420 (6th Cir. 2000), and reversal would be appropriate only if we were left

with the “definite and firm conviction that the district court committed a clear error of

judgment in its conclusion.” Lewis v. United Joint Venture, 691 F.3d 835, 839 (6th Cir.

2012) (quoting In re Scrap Metal Litig., 527 F.3d 517, 528 (6th Cir. 2008)). Realizing,

ostensibly, that they could hardly meet this standard, plaintiffs characterize their

challenge to the district court’s handling of the § 2(b)(1) exception as questioning

“whether the district court abused its discretion by failing to explain why certain critical

evidence did not trigger GARA’s 2(b)(1) exception.” Appellants’ Br. at 2. This

question conveniently avoids the rationale for the district court’s denial of leave to

amend. The court declined to reach the merits of the “critical evidence” because

plaintiffs failed to satisfy the threshold requirement of a compelling explanation for not

seeking leave to amend prior to entry of judgment. In doing so, the court gave

controlling weight to the “interest of protecting the finality of judgments and the

expeditious termination of litigation.” Leisure Caviar, 616 F.3d at 615-16.

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 17

This is an interest plaintiffs prefer to ignore. They do not contend that the denial

of leave to amend was based on a clear error of law. Nor do they contend that late leave

to amend was justified by an intervening change in controlling law. Nor do they contend

that reversal is necessary to prevent a manifest injustice. Plaintiffs do not even take

issue with the court’s findings that their evidence was not newly discovered and that they

had no compelling explanation for not trying to amend earlier. Instead, plaintiffs argue

that “for all practical purposes, plaintiffs pled the necessary allegations and evidence

sufficient to trigger GARA 2(b)(1) in a timely manner in their response in opposition to

summary judgment,” which was filed in March 2010, some eight months before the

court’s summary judgment ruling against them. Appellants’ Br. at 45.

Clearly, plaintiffs’ brief in opposition to summary judgment is not part of the

pleadings. And the fact that they were aware of and relied on their “newly discovered

evidence” as early as March 2010 without seeking leave to amend before November

2010 confirms that the evidence was hardly newly discovered when they finally moved

for leave to amend only after receiving the court’s adverse judgment. In short, plaintiffs

have fallen far short of establishing that the district court abused its discretion when it

denied them leave to amend. See Leisure Caviar, 616 F.3d at 616 (stating that a court

acts within its discretion when it denies a post-judgment motion to amend on account of

“undue delay,” including delay resulting from a failure to incorporate previously

available evidence). Without the benefit of the allegations included in the proposed first

amended complaint, plaintiffs lack grounds necessary to successfully challenge the

district court’s refusal to reconsider its rejection of the § 2(b)(1) exception to the time-

bar. We thus find no error in the court’s denial of plaintiffs’ motion for reconsideration

and no error in the court’s failure to explain its assessment of plaintiffs’ “critical

evidence.”5

5

Although the district court did not expressly assess the merits of this “critical evidence,” it did

consider the evidence, as well as additional supplemental evidence submitted by plaintiffs in March 2011.

R. 247 Memorandum Opinion at 3, 6-7 n.1, Page ID # 2546, 2549-50. (The supplemental evidence

consisted primarily of a new Lycoming Service Instruction, No. 1508C, issued on February 10, 2011,

expanding the warning concerning improper installation of magnetos to include all Lycoming engines.

R. 233-3, Page ID # 2502.) The court simply concluded that the additional evidence did not amount to a

“compelling explanation” for plaintiffs’ failure to seek amendment earlier in the game.

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 18

Moreover, the evidence is not as “critical” as plaintiffs would have us believe.

The evidence plaintiffs relied on in their opposition to AVCO’s motion for summary

judgment is a letter between a third party, Teledyne Continental Motors, Inc., and the

FAA, dated July 2, 2009. R.189-5, page ID # 1694. Teledyne is the manufacturer of the

rebuilt magneto that was installed in plaintiffs’ airplane engine by Jewell Aircraft.6 The

letter advises the FAA of findings made by Teledyne after investigating plaintiffs’ plane

crash, reflecting Teledyne’s impressions that the flange failure was due to stress

resultant from use of (1) a gasket different than the Lycoming (AVCO) specified gasket,

and (2) “older, superseded” hold down clamps. The letter further advises that “specified

components, when installed correctly, result in minimal assembly stresses.” Id. The

letter acknowledges that Lycoming (AVCO) had partially addressed this condition by

issuing Service Instructions in 2002, 2003 and 2007, emphasizing the importance of

following service specifications in attaching Teledyne magnetos to certain Lycoming

“300 series” engines installed in certain Mooney and Cessna Cardinal aircraft. Id. See

R. 228-3 thru 228-5, Service Instructions Nos. 1508, 1508A and 1508B, Page ID # 2461-

66. Plaintiffs’ Piper Lance II airplane was equipped with a Lycoming “500 series”

engine. Based on the results of its investigation, Teledyne recommended that

“Lycoming Service Instruction 1508B be upgraded to a Mandatory Service Bulletin and

be expanded to include all Lycoming Engines with TCM Dual magnetos installed.” R.

189-5, Page ID # 1695 (emphasis added).

Plaintiffs contend that Teledyne’s letter, viewed in conjunction with the

“incomplete” Service Instructions issued prior to the 2006 accident, represents evidence

from which the inference could plausibly be drawn that AVCO: (1) knew the risks

associated with improper installation of magnetos in 300 series engines were no less

present in 500 series engines; (2) negligently failed to issue required Service Instructions

6

Teledyne is not a disinterested third party. See note 2, supra.

No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 19

for 500 series engines (like the one in plaintiffs’ Piper Lance II aircraft); and

(3) knowingly withheld this information from the FAA.7

The significance of the facts presented is equivocal at best. Ascribing to AVCO,

as of some time prior to 2006, knowledge of information communicated by Teledyne in

2009, is highly speculative. Moreover, plaintiffs’ response in opposition to AVCO’s

motion for summary judgment also includes copies of Special Airworthiness Information

Bulletins issued by the FAA in June and July 2008. R. 189-6, Page ID # 1698-1702.

The contents of these bulletins are consistent with the Service Instructions referred to

above. The Airworthiness Bulletins suggest that AVCO did not withhold relevant

information regarding problems with magneto installation that had been experienced

with some aircraft engines. The Airworthiness Bulletins also suggest reason to believe

the problems that had been experienced were limited to certain engine models and

certain situations. In other words, these exhibits, attached to plaintiffs’ own brief,

suggest that AVCO did not withhold required information, but reported it as it became

available.

In sum, the critical evidence is not so incriminating as to suggest the denial of

leave to amend and denial of reconsideration were an abuse of discretion or resulted in

manifest injustice.

III. CONCLUSION

Accordingly, we deny plaintiffs’ claims of error. The district court’s judgment

is AFFIRMED.

7

This information regarding the incompleteness of the prior Service Instructions is the “omission”

from the overhaul manual revisions that plaintiffs would have the court treat as an “alteration or deletion”

and therefore a “replacement part” for purposes of restarting the period of repose under GARA § 2(a)(2).

See supra, pp. 11-16. Such Service Instructions are incorporated by reference into, and deemed to be part

of, the overhaul manual. See R. 211-9 Overhaul Manual at p. i, Page ID # 1996. However, as indicated

above, an omission from the overhaul manual, or a failure to issue a Service Instruction, or an

incompleteness in a Service Instruction—i.e., something that does not exist—can hardly be deemed to be

a “replacement or addition” under § 2(a)(2). Nor does such an omission or incompleteness represent

particularly strong evidence that AVCO knowingly withheld required information for purposes of

§ 2(b)(1).