Opposition Brief — Jade Schiewe, et al., Petitioners v. Cessna Aircraft Company

No. 23-1305

In the

Supreme Court of the United States

JADE SCHIEWE, et al.,

Petitioners,

v.

CESSNA AIRCRAFT COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Oklahoma

RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

James K. Secrest, II,

Michael G. Jones, OBA #18506

OBA #8049

Martin, Pringle, Oliver,

(Counsel of Record)

Wallace & Bauer, L.L.P.

James K. Secrest, III,

645 East Douglas

OBA #18828

Suite 100

Edward J. Main,

Wichita, KS 67202

OBA #11912

mgjones@martinpringle.com

Secrest, Hill,

(316) 265-9311

Butler & Secrest

7134 South Yale

Attorneys for Respondent

Suite 900

Cessna Aircraft Company

Tulsa, OK 74136

jsecrest@secresthill.com

jsecrest3@secresthill.com

emain@secresthill.com

(918) 494-5905

116934

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1.

Whether the 18-year statute of repose in the General

Aviation Revitalization Act of 1994 (GARA) PL103298, August 17, 1994, 108 Stat. 1552, 49 U.S.C.

§40101, note, applies to a Maintenance or Service

Manual issued by the manufacturer of a general

aviation aircraft in its capacity as a manufacturer?

2.

Whether a Maintenance or Service Manual, issued

by the manufacturer of a general aviation aircraft in

its capacity as a manufacturer, must be a “part” of

the aircraft in order for the 18-year statute of repose

in GARA to apply to it?

3.

Whether the alleged omission of an instruction in

a Maintenance or Service Manual issued by the

manufacturer of a general aviation aircraft in its

capacity as a manufacturer, is an exception to GARA

such that the 18-year statute of repose would not

apply to it?

ii

PARTIES TO THE PROCEEDINGS

Petitioners, whose names appear in the style of this

case, are Jade Schiewe and Zach Pfaff, who were Plaintiffs

in the District Court of Tulsa County, State of Oklahoma,

and Appellants in the Oklahoma Supreme Court.

Respondent, Cessna Aircraft Company, whose name

appears in the style of this case, subsequently merged into

Textron Aviation Inc.; it was a Defendant in proceedings in

the District Court of Tulsa County, State of Oklahoma, and

Appellee in proceedings before the Oklahoma Supreme

Court.

Respondent, Spartan Aviation Industries, Inc., which

does not appear in the style of this case, was joined as a

Defendant in the District Court of Tulsa County, State of

Oklahoma, but was dismissed with prejudice in 2013, and

was not a party to the appeal to the Oklahoma Supreme

Court.

Eaton Corporation, which does not appear in the style

of this case, was joined as a Defendant in the District

Court of Tulsa County, State of Oklahoma, but was

dismissed with prejudice in 2013, and was not a party to

the appeal to the Oklahoma Supreme Court.

Kelly Aerospace Turbine Rotables, Inc., which does

not appear in the style of this case, was a Defendant in

the District Court of Tulsa County, State of Oklahoma,

but was dismissed with prejudice in 2013, and was not a

party to the appeal to the Oklahoma Supreme Court.

iii

CORPORATE DISCLOSURE STATEMENT

Textron Aviation Inc. is the successor-by-merger to

Respondent, Cessna Aircraft Company; Textron Aviation

Inc. is a wholly owned subsidiary of Textron Inc., a publicly

traded corporation.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR DENYING A WRIT . . . . . . . . . . . . . . 2

I.

Petitioners Do Not Ra ise A n Issue

Warranting Review On Certiorari . . . . . . . . . . . . 2

II. Whether Cessna’s Maintenance Manual

Was A “Par t” Is Ir relevant To The

Application Of GARA In The Present Case . . . . 5

III. GARA Precludes Petitioners’ Claim From

Arising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

v

TABLE OF CITED AUTHORITIES

Page

CASES

Agape Flights v. Covington Aircraft Engines,

2011 WL 2560281 (E.D. Okla., June 28, 2011) . . . . . 13

Alter v. Bell Helicopter Textron,

944 F.Supp. 531 (S.D. Tex., 1996) . . . . . . . . . . . . . . . 13

Arvest Bank v. Spirit Bank,

2008 OK CIV APP 55, 191 P.3d 1228 . . . . . . . . . . . . 10

Burroughs v. Precision Airmotive Corp.,

78 Cal.App.4th 681, 93 Cal.Rptr.2d 124 (2000) . . . . 13

Burton v. Twin Commander Aircraft,

254 P.3d 778 (Wash., 2011) . . . . . . . . . . . . . . . . . . . . . 13

Butchkosky v. Enstrom Helicopter Corp.,

855 F.Supp. 1251 (S.D. Fla., 1993) . . . . . . . . . . . . . . . 13

Chandler v. Denton,

1987 OK 38, 741 P.2d 855 . . . . . . . . . . . . . . . . . . . . . . 10

Crouch v. Honeywell International, Inc.,

720 F.3d 333 (6th Cir., 2013) . . . . . . . . . . . . 8, 11, 12, 13

Estate of Grochowske v. Romey,

813 N.W.2d 687 (Wis. App. 2012) . . . . . . . . . . . . . . . . 13

Fletcher v. Cessna Aircraft Co.,

412 N.J. Super. 530, 991 A.2d 859 (App. Div., 2010) . 13

vi

Cited Authorities

Page

Inmon v. Air Tractor,

2011 WL 5061345 (Fla. App. 4 Dist., 2011) . . . . . . . 13

Kremer v. Chemical Construction Corp.,

456 U.S. 461 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lucky Brand Dungarees, Inc. v.

Marcel Fashions Group, Inc.,

590 U.S. 405 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lunn v. Continental Motors, Inc.,

Appeal No. 119,394

(Okla. Ct. Civ. App., Mar. 4, 2022) . . . . . . . . . . . . . . . 13

Lunn v. Hawker Beechcraft Corp.,

2018 OK CIV APP 12, 417 P.3d 1206 . . . . . . . . . . . . 13

Lyon v. Agusta S.P.A.,

252 F.3d 1078 (9th Cir.2001) . . . . . . . . . . . . . . . . . . . . 12

Mason v. Schweizer Aircraft Corp.,

653 N.W.2d 543 (Iowa, 2002) . . . . . . . . . . . . . . . . . . . 12

Moyer v. Teledyne Continental Motors,

2009 PA Super 124, 979 A.2d 336 . . . . . . . . . . . . . . . 13

Quinn v. Avco Corporation,

2022 WL 621610 (D. Dela., Mar. 3, 2022) . . . . . . . . . 13

Robinson v. Hartzell Propeller, Inc.,

326 F.Supp.2d 631 (E.D. Pa. 2004) . . . . . . . . . . . . . . 13

vii

Cited Authorities

Page

Rogers v. Bell Helicopter Textron, Inc.,

185 Cal.App. 4th 1403, 112 Cal.Rptr.3d 1 (2010) . . . . 4

Scott v. MD Helicopters, Inc.,

834 F.Supp.2d 1334 (M.D. Fla., 2011) . . . . . . . . . . . . . 4

South Side Trust & Savings Bank of Peoria v.

Mitsubishi Heavy Industries, Ltd.,

927 N.E.2d 179 (Ill. App. 2020) . . . . . . . . . . . . . . . . . 13

Theobald v. Piper Aircraft, Inc.,

309 F.Supp.3d 1253 (S.D. Fla., Mar. 30, 2018) . . . . . 13

United States v. Tohono O’Odham Nation,

563 U.S. 307 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wilson v. Harlow,

1993 OK 98, 860 P.2d 793 . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES, RULES AND OTHER AUTHORITIES

49 U.S.C. §40101 note (GARA) . . . . . 1, 4, 5, 6, 8, 9, 10, 11,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 15

Restatement (2nd) of Judgments, §24, comment b,

p. 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rule 10, Rules of the United States Supreme Court . . 4, 5

H.R. Rep. 103-525(II),

reprinted in 1994 U.S.C.C.A.N. 164,

(Section by Section Analysis) (June 24, 1994) . . . . . . 8

1

STATEMENT OF THE CASE

As Petitioners indicate, underlying this matter is

an aircraft accident occurring September 28, 2010,

and involving a Cessna Model 172RG (hereinafter the

“Aircraft”). There is no dispute that the Aircraft was a

general aviation aircraft as that term is used in the General

Aviation Revitalization Act of 1994, PL 103-298, August 17,

1994, 108 Stat. 1552, 49 U.S.C. §40101, note (hereinafter

“GARA”). The Aircraft, serial no. 172RG 0258, registration

no. N5145U, was manufactured in January, 1980, and sold

to its first purchaser, Avico South, Ltd., on February 1,

1980. Cessna has not supplied any new component, system,

subassembly, or other part for that Aircraft subsequent

to its delivery to its first purchaser in February, 1980.

Cessna ceased manufacturing Model 172RG Aircraft by

1986, and never resumed the manufacture of that model.

Petitioners focus on a hydraulic power pack which

raises and lowers landing gear as the source of the fire

involved in the accident of September 28, 2010. The cause

of the fire was disputed and no finding regarding that

cause was made by the District Court of Tulsa County

or by the Oklahoma Supreme Court. For purposes of

Petitioners’ Petition for Certiorari, it is sufficient to note

that a hydraulic power pack was included in the Aircraft

when delivered to its first purchaser in 1980 and that

Cessna never replaced or refurbished that power pack

since then. Cessna last manufactured a hydraulic power

pack such as that used in the Aircraft in 1988. Cessna has

not included a hydraulic power pack in general aviation

aircraft since the mid-1980s.

2

Petitioners also focus on the instructions for the

removal and installation of a hydraulic power pack on

Model 172RG series aircraft. Cessna issued both a Parts

Catalog and a Service Manual for that model aircraft

from 1980 through 1985, but the instructions for the

removal and replacement of a hydraulic power pack were

unchanged from 1985, at the latest, through September

28, 2010 (the date of Petitioners’ accident), or for some time

thereafter. While ultimately irrelevant to the legal issue at

hand, it is the case, as Petitioners contend, that, by 1985,

the Parts Catalog showed a covering to be placed on the

terminal lug of the hydraulic power pack, although the

Service Manual did not contain instructions addressing

the installation of that terminal cap. Nevertheless, those

portions of both the Parts Catalog and the Service Manual

remained unchanged from 1985, at the latest, through the

date of the accident upon which Petitioners’ claim is based.

Accordingly, the Aircraft had been manufactured and

sold to its first customer over 30 years prior to September

28, 2010, and the relevant portions of both the Parts

Catalog and the Service Manual remained unchanged for

25 years through the date of Petitioners’ accident.

REASONS FOR DENYING A WRIT

I.

Petitioners Do Not Raise An Issue Warranting

Review On Certiorari

The Rules of this Court provide examples of the kinds

of questions this Court might consider as warranting

certiorari review. However, Petitioners do not raise such

a question. This Court’s Rule states:

3

Review on a writ of certiorari is not a matter

of right, but of judicial discretion. A petition

for a writ of certiorari will be granted only for

compelling reasons. The following, although

neither controlling nor fully measuring the

Court’s discretion, indicate the character of the

reasons the Court considers:

(a) a United States court of appeals

has entered a decision in conflict with the

decision of another United States court of

appeals on the same important matter; has

decided an important federal question in a

way that conflicts with a decision by a state

court of last resort; or has so far departed

from the accepted and usual course of judicial

proceedings, or sanctioned such a departure

by a lower court, as to call for an exercise of

this Court’s supervisory power;

(b) a state court of last resort has decided

an important federal question in a way that

conflicts with the decision of another state

court of last resort or of a United States court

of appeals;

(c) a state court or a United States court

of appeals has decided an important question

of federal law that has not been, but should

be, settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this Court.

4

A petition for a writ of certiorari is rarely

granted when the asserted error consists of

erroneous factual findings or the misapplication

of a properly stated rule of law.

Rule 10. Considerations Governing Review on Certiorari,

pp. 5-6. The first consideration is inapplicable; Petitioners

do not seek review of a decision of a United States court

of appeals. Rule 10(a).

The second consideration is also inapplicable, but

it exposes why certiorari review is unwarranted in the

present case. Petitioners do seek review of an opinion

of “a state court of last resort”, that is, the Oklahoma

Supreme Court, but that opinion does not “conflict[ ] with

the decision of another state court of last resort or of a

United States Court of Appeals”, Petitioners recognize

that “the majority of courts have held that a manufacturer

supplies a maintenance manual ‘in its capacity as a

manufacturer’ and therefore any claim relating to the

maintenance manual is subject to the ‘limitation period’ in

GARA.” Petition for Certiorari, p. 13 (citations omitted).

This “majority” rule supports Cessna’s position in this

matter. Petitioners state “a minority of courts” have

taken a position which Petitioners endorse, citing only

two aberrant decisions: Scott v. MD Helicopters, Inc.,

834 F.Supp.2d 1334 (M.D. Fla., 2011) and Rogers v. Bell

Helicopter Textron, Inc., 185 Cal.App. 4th 1403, 112 Cal.

Rptr.3d 1 (2010). Petition for Certiorari, p. 13. Scott is not

a decision of a United States court of appeals, but one of

a district court, and Rogers is not an opinion of a “state

court of last resort” but of an intermediate state appellate

court. These isolated holdings might be better described

as a “minimal” position.

5

The “consideration” in Rule 10(c) is also inapplicable.

Petitioners do not suggest that the Oklahoma Supreme

Court’s Opinion “conflicts with relevant decisions of this

Court” nor is there any reason for this Court to address

GARA as interpreted by the overwhelming majority of

cases considering the issue, which might best be called

the “maximal” rule. “GARA, a relatively simple and short

act, is not vague.” Petition for Certiorari, p. 19. Petitioners

admit:

In the thirty years since GARA was enacted,

this Court has been asked to accept certiorari

of several cases involving GARA, including

those presenting the very issue for appeal in

this case. . . .

Petition for Certiorari, p. 20. There is no reason for this

Court to accept certiorari this time.

The facts are undisputed; GARA has been properly

stated by the Oklahoma Supreme Court. At most,

Petitioners (mistakenly) argue a “misapplication” of

GARA, and request this Court to accept the position of

only two extreme outlier holdings.

II. Whether Cessna’s Maintenance Manual Was A

“Part” Is Irrelevant To The Application Of GARA

In The Present Case

The GARA statute of repose may apply in two ways.

First, the period of repose is measured from the date

an aircraft is sold and protects the manufacturer “in its

capacity as a manufacturer” 18-years afterwards. Second,

GARA also has a “rolling” provision which is measured

6

from the date a new part or component is installed in the

aircraft. Only the basic principle is at issue in this case;

the “rolling” provision is inapplicable.

The text of GARA may be broken down to illustrate

this distinction:

[N]o civil action for damages or 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 - . . . after the applicable limitation

period. . . .

GARA, Sec.2(a). “[T]he term ‘limitation period’ means

18 years with respect to general aviation aircraft and the

components, systems, subassemblies, and other parts of

such aircraft;. . . .” GARA, Sec.3(3). The only function of

Section 3(3) is to define “limitation period” as 18 years

both for “general aviation aircraft” (calculated from

the date of sale) as well as for “components, systems,

subassemblies, and other parts” (calculated from the

date of installation). Section 3(3) does not limit or alter

how that “limitation period” applies to a “manufacturer

. . . in its capacity as a manufacturer” under Section 2(a).

Petitioners’ suggestion that Section 3(3) would need to be

7

revised to support Cessna’s protection under Section 2(a)

is misguided. Petition for Certiorari, p. 19.

Whether an item is a “new component, system,

subassembly, or other part of the aircraft” is only relevant

to the “rolling” provision although the manufacturer

of the new “part” is also protected “in its capacity as a

manufacturer. . . .” Because Cessna did not provide “any

new component, system, subassembly, or other part of

the aircraft” after it was delivered to its first purchaser

on February 1, 1980, the so-called “rolling” provision is

inapplicable.

The only question is whether Cessna published its

maintenance manual for the Aircraft “in its capacity as a

manufacturer”, which Petitioners do not appear to contest.

Instead, Petitioners would have this Court ignore the

phrase “in its capacity as a manufacturer”, but Congress

clearly intended that phrase to have some meaning:

The latter limitation [i.e., on suits brought

against a manufacturer in its capacity as

a manufacturer] is intended to ensure 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.

8

Crouch v. Honeywell International, Inc., 720 F.3d 333,

340 (6th Cir., 2013), quoting H.R. Rep. 103-525(II),

reprinted in 1994 U.S.C.C.A.N. 164, (Section by Section

Analysis) (June 24, 1994) (bracketed material added by

court). The Sixth Circuit then noted:

The 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.

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) notw ithstanding the other w ise

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.

Crouch v. Honeywell, 720 F.3d at 340-341 (italics original).

9

In the present case, Cessna published its maintenance

manual in its capacity as a manufacturer, and Petitioners

do not suggest otherwise.

In sum, the basic GARA 18-year period of repose

runs from the date of the Aircraft’s delivery on February

1, 1980; Petitioners’ claim against Cessna is barred and

there is no reason for this Court to look further.

III. GARA Precludes Petitioners’ Claim From Arising

The GARA statute of repose prevents a claim from

arising against a manufacturer, acting in its “capacity as

a manufacturer”, 18 years after a general aviation aircraft

was delivered to its first purchaser, lessee or distributor

(or “new part” installed). Cessna’s Aircraft was sold to its

first purchaser February 1, 1980; GARA barred a claim

based on that aircraft 18 years later, or by February 1,

1998. Cessna issued its Maintenance or Service Manual for

the Aircraft in its “capacity as a manufacturer” and last

revised it no later than 1985. Petitioners’ “civil action” is

based upon an accident occurring September 28, 2010, 12

years after GARA barred their “civil action” based on the

manufacture and delivery of the Aircraft,. Therefore, no

“civil action” arose in favor of the Petitioners based upon

the accident of September 28, 2010.

GARA, as a statute of repose, prevents a “civil action”

from arising after the period of repose has elapsed.

However, GARA does not itself create a “civil action”; that

will depend entirely upon the law invoked by Petitioners

when they commenced the underlying action.

Petitioners, who were residents of the State of

Oklahoma, brought their action in a district court of

10

the State of Oklahoma, based upon an aircraft accident

occurring in the State of Oklahoma. Accordingly, the

nature of a “civil action” available to them, for purposes of

the GARA statute of repose, will depend upon the law of

the State of Oklahoma, which adheres to a “transactional”

definition of a cause of action: the underlying circumstances

determine the cause of action, although alternative

theories of liability might be applicable to the claim. See,

Chandler v. Denton, 1987 OK 38, ¶12, 741 P.2d 855, 862863. The particular name or label a party might assign

to its claim is not controlling:

The character of an action is determined by the

nature of the issues made by the pleadings and

the rights and remedies of the parties, and not

alone by the form in which the action is brought

or by the prayer for relief.

Wilson v. Harlow, 1993 OK 98, ¶25, 860 P.2d 793, 800

(citations omitted); see, Arvest Bank v. Spirit Bank, 2008

OK CIV APP 55, ¶20, 191 P.3d 1228, 1233. This Court

recognizes the same principle:

Suits involve the same claim (or “cause of

action”) when they arise from the same

transaction, or involve a common nucleus of

operative facts.

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group,

Inc., 590 U.S. 405, 412 (2020) (some internal quotation

marks and bracketing omitted), citing United States v.

Tohono O’Odham Nation, 563 U.S. 307, 316 (2011); Kremer

v. Chemical Construction Corp., 456 U.S. 461, 482, n. 22

(1982); Restatement (2nd) of Judgments, §24, comment b,

p. 199.

11

In the present matter, Petitioners contend their “claim

alleg[ed] negligence in the preparation and maintenance

of the maintenance manual for the subject aircraft”,

and try to distinguish their “claims . . . based on simple

negligence”, from “a products liability claim”, a claim

“the design of the Model 172RG was defective”, a claim

of “any defect in the manufacture of the Model 172RG”,

and a claim that “Cessna failed to warn them of any defect

or the potential for the landing gear assembly to catch

fire during operation.” Petition for Certiorari, pp. 5, 6,

7. Petitioners do not explain why the GARA statute of

repose would not bar a claim labeled “negligence” although

it would bar claims under any alternative theory, and

indeed uses the clear phrase “no civil action” in barring all

types of claims that qualify. In particular, the case law is

uniform that the GARA statute of repose will bar a claim

for “failure to warn” and Petitioners’ “negligence” label

is merely another name for the same set of underlying

circumstances, and will necessarily be barred by the

statute of repose as well.

For example, the Sixth Circuit held that claims for

“negligence in the publication of the manual” triggered

application of GARA and protected the manufacturer.

Crouch v. Honeywell, supra, 720 F.3d at 339. The court

stated:

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

12

assembly in Crouch’s plane might come loose.

This is precisely the sort of action that GARA

forbids.

Crouch v. Honeywell, 720 F.3d at 341 (italics original;

quoting District Court ruling). The Sixth Circuit then

held:

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 [v. Schweizer Aircraft Corp.],

653 N.W.2d [543,] at 552–53 [(Iowa, 2002)]

(same).

....

. . . 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

13

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.

Crouch v. Honeywell, 720 F.3d at 342-343 (italics original;

footnote omitted); see, Quinn v. Avco Corporation, 2022

WL 621610 (D. Dela., Mar. 3, 2022); Theobald v. Piper

Aircraft, Inc., 309 F.Supp.3d 1253, 1267 (S.D. Fla., Mar.

30, 2018); Agape Flights v. Covington Aircraft Engines,

2011 WL 2560281 (E.D. Okla., June 28, 2011); Robinson v.

Hartzell Propeller, Inc., 326 F.Supp.2d 631, 661 (E.D. Pa.

2004); Alter v. Bell Helicopter Textron, 944 F.Supp. 531,

539-540 (S.D. Tex., 1996); Burton v. Twin Commander

Aircraft, 254 P.3d 778 (Wash., 2011); Lunn v. Continental

Motors, Inc., Appeal No. 119,394 (Okla. Ct. Civ. App., Mar.

4, 2022); Lunn v. Hawker Beechcraft Corp., 2018 OK CIV

APP 12, ¶¶16 & 20, 417 P.3d 1206, 1211, 2012; Estate of

Grochowske v. Romey, 813 N.W.2d 687, 696-697 (Wis.

App. 2012); Inmon v. Air Tractor, 2011 WL 5061345, *3

(Fla. App. 4 Dist., 2011); South Side Trust & Savings

Bank of Peoria v. Mitsubishi Heavy Industries, Ltd., 927

N.E.2d 179, 196-197 (Ill. App. 2020); Fletcher v. Cessna

Aircraft Co., 412 N.J. Super. 530, 538, 991 A.2d 859, 862

(App. Div., 2010); Moyer v. Teledyne Continental Motors,

2009 PA Super 124, ¶9, 979 A.2d 336, 344; Burroughs v.

Precision Airmotive Corp., 78 Cal.App.4th 681, 694, 699702, 93 Cal.Rptr.2d 124, 133-134, 138-139 (2000); see also,

Butchkosky v. Enstrom Helicopter Corp., 855 F.Supp.

1251, 1257 (S.D. Fla., 1993) (a pre-GARA opinion decided

under a state statute of repose but cited in many cases

discussing GARA).

14

An overwhelming number of cases in addition to

those cited above, demonstrate that Petitioners do not

have a claim against Cessna which will survive the GARA

statute of repose. Petitioners describe their claim as

“negligence in failing to correct an erroneous provision of

a maintenance manual”, “fail[ure] to update or annotate

the Cessna Model 172RG service manual”, and “negligent

failure to update or annotate the official service manual”

and “negligence in preparation and maintenance of the

maintenance manual for the subject aircraft” all of which

presume that the Cessna Maintenance or Service Manual

was issued by Cessna “in its capacity as a manufacturer”,

from which it follows that any claim based upon it is barred

by the 18-year period of repose under GARA. Petition for

Certiorari, pp. i, 4, 5, 8. The Oklahoma Supreme Court

correctly recognized that the GARA statute of repose

is a complete bar to Petitioners’ claim against Cessna,

regardless of how they try to phrase it or the label they

try to affix to it. Petitioners’ Petition for Certiorari must

be denied.

CONCLUSION

WHEREFORE, premises considered, the Respondent,

Cessna Aircraft Co., subsequently merged into Textron

Aviation, Inc., prays this Court to deny Petitioners’

Petition for Writ of Certiorari. The District Court of

Tulsa County, State of Oklahoma, correctly entered

summary judgment holding that Petitioners’ action was

barred by the 18-year statute of repose in GARA, and

the Oklahoma Supreme Court correctly affirmed that

decision. The Aircraft involved in Petitioners’ accident of

September 28, 2010, was manufactured and delivered to

its first owner on February 1, 1980, 30 years prior to the

15

date of the accident. Clearly, the 18-year period of repose

in GARA barred any claim from arising long before the

date of Petitioners’ accident.

Respectfully submitted,

James K. Secrest, II,

OBA #8049

(Counsel of Record)

James K. Secrest, III,

OBA #18828

Edward J. Main,

OBA #11912

Secrest, Hill,

Butler & Secrest

7134 South Yale

Suite 900

Tulsa, OK 74136

jsecrest@secresthill.com

jsecrest3@secresthill.com

emain@secresthill.com

(918) 494-5905

Michael G. Jones, OBA #18506

Martin, Pringle, Oliver,

Wallace & Bauer, L.L.P.

645 East Douglas

Suite 100

Wichita, KS 67202

mgjones@martinpringle.com

(316) 265-9311

Attorneys for Respondent

Cessna Aircraft Company