Appendix — Haas v. United Technologies Corp.

Supreme Court brief1983

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FILED

ALEXANOER L. STEVAS,

OCTOBER TERM, 1982

LILLIAN M. HAAS, Personal Representative of the Estate

of and parent and next of kin of John V. Cataldi,

deceased; CHERYL RuFF, personal representative of the

Estate of and widow of and next of kin of Edwin J.

Ruff, Jr., deceased; Berry Lou SCHLECTIC BAHE, as

guardian and next friend of Ginger Schlectic, minor

child of Ralph C. Schlectic, deceased; and JULIA

KATHLEEN MCDONALD LAMASCUS, personal represent-

ative of the Estate of and widow of and next of kin

of Mark Lamascus, deceased; and JULIA KATHLEEN

McDONALD LAMASCUS as guardian and next friend of

Sarah Laine Lamascus and Mark David Lamascus,

minor children of Mark Lamascus, deceased,

y, Appellants,

UNITED TECHNOLOGIES CORPORATION,

a Delaware corporation,

Appellee.

On Appeal from the Supreme Court of Delaware

APPENDIX TO

JURISDICTIONAL STATEMENT

BEN T. CASTLE

(Counsel of Record)

YOUNG, CONAWAY, STARGATT

& TAYLOR

1401 Market Tower

P.O. Box 891

Wilmington, Delawaro 19899

(802) 671-6618

Attorney for Appellants

WILGOn + Erae Printing Co,, Inc, « 760-0006 « WAsnineTon, D.C, 20001

Office Supreme Court, U.S.

APPENDIX

TABLE OF CONTENTS

Opinion of the Delaware Supreme Court dated Au-

gust 26, 1982, superseding previous — dated

| Ree BE Ee A

Opinion of the Delaware ere Court dated March

15, 1982 . »

Mandate of the Delaware paar Court dated 1 Sep

tember 27, 1982 ..............

Order of the Delaware Supreme Court giniadile Re-

argument of August 25, 1982 Opinion dated Septem-

SOE Gite UID secstacsher. vinahenchotnsinciecleiadaeaiventbaapaeeiuiannents

Notice of Appeal from Delaware Supreme Court to

United States Supreme Court dated December 15,

EE EER A! 1 MAIR SREY bah

1 982 seeee seuteeee CERESEE CERES SE SRERER SERRE ESSERE SERRE ET SR CEREEREE EERE RRR C EERE EES

Memorandum of Justice McNeilly, undated, amending

pages 25 and 26 of Opinion of Auguat 26, 1982........

Order of the Delaware — Court dated March 11,

TITTIIET ih sacclinidbeinigtncnteundidicicemnaditntctciceidalemsniiaindaiiaiae test seanssds

Order of Delaware Supreme Court dated October 29,

1981 ordering reargument en bANC ...........6....

Notice of Appeal from Delaware Superior Court to

Delaware Supreme Court dated April 15, 1981........

Defendants’ Bill of Costs dated October 5, 1982 ............

Defendants’ Motion to Treat Expenses as Costa filed

I BO, TTI ccciecsetssecsesthicsenscnbtanbiatuilagetieaetboes

Defendants’ Bill of Costa dated February 6, 1981.......

Opinion of the Superior Court of the State of Delaware

Ga TERUG AF, BOGE .accccatsansbgsinvecitiestacitabbinicscticianchans

Sla

TABLE OF CONTENTS—Continued

Plaintiffs’ Motion for New Trial dated January 28,

1981 (attaching copy of Plaintiffs’ Motion to Pro-

hibit Impaneling of Special Jury) .................00..000.....

Affidavit of Court Administrator, Frederick Kirch,

CII’ TO a sa canansiacinenmeatnencdaiesesabe

Defendants’ Application for Special Jury dated Sep-

NE INE WIE o2tsissticokaonnpedciosebdanscasonnnachbatoeebedbesestaren

Opinion of the Superior Court of the State of Delaware

dated November 26, 1980 ...0...........cccccccccccceesesceeeeeneneeees

Delaware Superior Court Civil Rule 8(e) ...........0000000...

Delaware Superior Court Civil Rule 40 ..........00.0000000......

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Page

{OPINION OF THE DELAWARE SUPREME COURT

Dated August 25, 1982]

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No. 114, 1981

LILLIAN M. HAAS, et al.,

Plaintiffs Below, Appellants,

UNITED TECHOLOGIES CORPORATION,

a Delaware Corporation,

Defendant Below, Appellee.

Submitted on reargument before

the Court en banc: June 21, 1982 *

Decided: August 25, 1982

Before MCNEILLY, QUILLEN, HORSEY and Moore,

Justices, constituting the Court en banc

Upon appeal and cross-appeal from Superior Court.

Affirmed.

Arthur Inden, Ben T. Castle (Argued), Craig A. Kars-

nitz and Barry M. Willoughby, of Young, Conaway, Star-

gatt & Taylor, Wilmington; and Francis A. Ferrara of

Kassab, Cherry, Curran & Archbold, Media, Pa., for

piain‘iffs below, appellants.

Edmund N. Carpenter, II (Argued), Allen M. Terrell

and Helen L. Winslow, of Richards, Layton & Finger,

Wilmington, for defendant below, appellee.

MCNEILLLY, Justice:

In this product liability case, we consider an appeal and

cross appeal ' from a jury verdict and judgment adverse to

* This opinion supercedes a previous opinion, issued by the Court

en banc on March 15, 1982, which is hereby withdrawn.

1 Defendant cross appeals from the Trial Court’s denial of a

Motion for a Directed Verdict with respect to certain issues bear-

plaintiffs in the Superior Court. Two principal issues are

presented for our view: (1) Did the Trial Judge, in his

instructions to the jury, improperly preclude the jury from

determining whether a helicopter manufactured by the de-

fendant was defective for failure of its design to incorpo-

rate an in-cockpit instrument which could warn a pilot,

while in flight, that a helicopter rotary blade was losing

pressure and in danger of cracking; and(2) Was the ap-

plication of the Special Jury statute a violation of 10

Del.C. §§ 4501 and 4503 and the Due Process and Equal

Protection clauses of the Federal and State Constitutions?

We affirm.

This case, as with many products liability cases, has its

origins in tragedy. On January 8, 1975, while enroute

from New River, North Carolina to McGuire Air Force

Base in New Jersey, a CH-538D Sea Stallion helicopter,

manufactured by defendant’s Sikorsky division, crashed

near Salisbury, Maryland killing all five servicemen on

board. Four of the men were Marine Corps crewmen.’

The fifth serviceman was a member of the Air Force who

was hitching a ride to the air base. Plaintiffs are the

surviving spouses, children and personal representatives

of the decedents. The parties agree that the helicopter

crashed when one of its six rotors fractured in flight.

Before we focus on the issues, some background infor-

mation about defendant’s aircraft is needed. The rotors

on the Sea Stallion helicopter were hollow and were pres-

surized with nitrogen. If a crack developed in one of the

rotor blades, or spars, the nitrogen would cep out leaving

the spar depressurized. Of course, a loss in blade pressure

ing upon liability. In view of our conclusions herein, we do not

reach the issues raised by defendant in its cross-appeal.

2 The death of one of these airmen, the co-pilot, is not at issue

in this case.

while the aircraft was flying could be, and in this unfor-

tunate case was, symptomatic of a crack, thus resulting

in a crash and loss of life.

To forestall such occurrences, Sikorsky equipped the

CH-53D helicopter with a safety device called a “BIM”—

short for “Blade Inspection Method.” The BIM utilized a

gauge located at the base of each spar. If the rotor was

fully pressurized, the gauge registered white; if the rotor

was not fully pressurized, the gauge registered black. The

gauge could only be inspected when the helicopter was

on the ground with its blades stationary. Operation of

the helicopter normally included a pre-flight check of all

gauges. No inspection of the gauges was possible while

the aircraft was airborne. The helicopter was not equip-

ped with an in-cockpit warning device that would signal

a blade crack while the helicopter was in flight.

The parties agree that since the deaths of the service-

men occurred in Maryland, the law of that State is con-

trolling. See Maryland Wrongful Death Act, Md. Code

Ann., Cts & Jud. Proc. § 3-901 et seq. (1980). In Phipps

v. General Motors Corp., Md. Ct. App., 363 A.2d 955

(1976), Maryland’s highest Court adopted Restatement

(Second) of Torts $402 A (1965) and its rationale of

strict liability in tort for defective products. See Single-

ton v. International Harvester Co., 4th Cir., —— F.2d

—— (1981) (applying § 402 A as law of Maryland in

defective design case).

Section 402 A reads:

“Special Liability of Seller of Product for Physical

Harm to User or Consumer

(1) One who sells any product in a defective con-

dition unreasonably dangerous to the user or con-

sumer or to his property is subject to liability for

physical harm thereby caused to the ultimate user

or consumer, or to his property, if

(a) the seller is engaged in the business of

sel.ing such a product, and

(b) it is expected to and does reach the user

or consumer without substantial change in the

condition in which it is sold.

(2) The rule stated in Subsection (1) applies

although

(a) the seller has exercised all possible care

in the preparation and sale of his product, and

(b) the user or consumer has not bought the

product from or entered into any contractual

relation with the seller.” Jd.

The Maryland Court of Appeals adopted a seven factors

test for determining whether a product was defectively

designed under § 402 A. Those factors are:

“*(1) the usefulness and desirability of the product.

(2) the availability of other and safer products to

meet the same need, (3) the likelihood of injury and

its probable seriousness, (4) the obviousness of the

danger, (5) common knowledge and normal public

expectation of the danger (particularly for estab-

lished products), (6) the avoidability of injury by

care in use of the product (including the effect of in-

structions or warnings), and (7) the ability to elimi-

nate the danger without seriously impairing the use-

fulness of the product or making it unduly expen-

sive,’ ”

Phipps v. General Motors Corp., 363 A.2d at

959, quoting Wade, Strict Tort Liability of Man-

ufacturers, 19 Sw. L.J. 5, 17 (1965).

After Phipps, then, a balancing test weighing the advan-

tage and disadvantages of the allegedly defective design

vis-a-vis an alternate design must be performed.

The theory of plaintiffs’ case at trial was that defend-

ant’s helicopter was defective in design under Restate-

ment (Second) 402A, supra, because it !acked an in-

cockpit warning device and that this design defect ren-

dered the helicopter fundamentally unsafe and ultimately

caused the deaths of plaintiffs’ decedents. We summarize

the evidence bearing upon this contention.

Plaintiffs introduced evidence showing that an in-

cockpit warning device for blade pressure was a neces-

sary component of a helicopter designed for long-range

flights and that such a system was available for use in

certain other helicopter models. Although there was evi-

dence that the CH-53D model in question was only de-

signed with short range flights in mind, (i.e. flights of

less than 5 hours) plaintiffs presented evidence that long

range flights were contemplated by virtue of fuel exten-

sion tanks and a “hot refueling” technique. Provisions

for the use of the fuel extension tanks were included in

the specifications. “Hot refueling” was a method by

which the helicopter cculd take on fuel while on the

ground without the pilot having to shut off the engines,

but precluding an inspection of the BIM gauges even

though the aircraft was on the ground.

Defendant countered with evidence: (1) that cockpit

BIMs were unreliable and dangerous because a false

warning of loss of blade pressure might cause a pilot to

bail out or attempt to land his aircraft in rough terrain

unnecessarily damaging or destroying it in the process;

and (2) that defendant repeatedly recommended installa-

tion of cockpit BIMs in the Sea Stallions upon learning

that they were being used for long range flights exceed-

ing two hours, but that those recommendations were un-

heeded by military authorities.

Defendant’s defense of plaintiff’s allegation of defective

design by showing that the helicopter BIM system was an

adequate safety device and that the negligence of both the

air and maintenance crews resulted in the crash. To that

end, defendant introduced evidence that the helicopter

BIM showed black on each of the four days prior to the

helicopter’s ill-fated flight, and that the crew failed to

remove and replace the depressurized spar despite such

warnings and despite the mandate of the maintenance

instruction manual. Instead, the spar was simply repres-

surized and the spars left in the at rest position during

which there would normally be no depressurization

through loss of nitrogen even though a crack in the spar

itself was evident. There was also a lack of evidence con-

cerning the ground crew’s performance of a preflight

“start up and stop” blade pressure check. Defendant also

relied on the testimony of a Marine Corps officer, who, on

the issue of the maintenance crew’s failure to heed four

days of black BIM warnings, conceded that “we had just

missed it.”

To parry defendant’s argument and buttress their

own claim that the helicopter without a cockpit BIM was

fatally defective, plaintiffs presented testimony concern-

ing the inability of the helicopter’s BIM system to dis-

tinguish between a loss of pressure due to a cracking

blade and a drop in pressure resulting from a defect in

the BIM system itself, such as a leaking pressure gauge.

Plaintiff claimed that a “boy crying wolf” attitude de-

veloped among the maintenance crews because of re-

peated false warnings caused by the defective pressure

gauges themselves.

Upon reviewing the sufficiency of the evidence, the

Trial Judge found that there was a jury question

presented on whether the absence of a cockpit warning

device constituted a design defect and necessarily denied

defendant’s Motion for a Directed Verdict on the issue

of liability.” We agree that there was a jury question

on this issue. Restatement (Second) of Torts § 402A,

supra. Compare Roy v. Star Chopper Co., Inc., D.R.L,

442 F.Supp. 1010, 1020 (1977), aff'd, 5th Cir., 584 F.2d

1124 (1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1284

8The Trial Judge directed a verdict for defendant on certain

other issues; however, that ruling is not contested in this appeal.

(1978); Foster v. Ford Motor Co., 6th Cir., 616 F.2d

1804, 1809-11 (1980); Schnell v. AMG, Ine., 8rd Cir.,

567 F.2d 1259, 1261 (1977); Dorsey v. Yoder Co., B.D.

Pa,, 331 F.Supp. 758, 760 (1971); Azzarello v. Black

Bros. Co., Ine., Pa. Supr., 891 A.2d 1020, 1027 (1978);

Bewiga v. Havis Mfg. Corp., N.J. Supr., 290 A.2d 281,

285 (1972). The question remains, however, whether

the Trial Court, in its jury instructions, properly sub-

mitted the issue of design defect for lack of a cockpit

BIM to the jury or whether, as plaintiff asserts, the

Court effectively precluded the jury from considering

that issue by those same instructions,

Plaintiffs proposed the following jury instructions on

the design defect issue:

“Even had the visual ‘BIM’ system worked prop-

erly, Plaintiffs allege, it was inadequate and unsafe

as a warning device since there was no ‘inside-the-

cockpit BIM’ indictor to warn the helicopter’s crew

in flight of a crack in the blade, Since there was no

system for warning the crew in flight of an im-

pending blade fracture, Plaintiffs contend that the

Sikorsky-built helicopter was defective.

If you find that the Sikorsky-built helicopter re-

quired a warning system for potential blade frac-

tures in order for it to be operated safely, and if

you find that the visual ‘BIM’ system was defective

in this regard, either because it did not work as a

warning system or because there was no ‘inside-the-

cockpit BIM’ then you should find that the helicopter

was defective,”

The instructions actually given to the jury by the Trial

Judge read, in pertinent part, as follows:

“Plaintiffs’ claim of strict liability against De

fendant Sikorsky is based on their contention that

the crash was caused by an unreasonably dangerous

defective condition in the helicopter. When I refer

to “the helicopter” in this context, I also mean its

warning system and the flight and maintenance

manuals that accompany—accompanied it.

In order to recover against Defendant Sikorsky

on this claim, the Plaintiffs must establish, by a

preponderance of the evidence, the following four

essential elements:

(1) the product was in a defective condition at

the time that it left the possession or control of the

manufacturer ;

(2) that it was unreasonably dangerous to the

users;

(8) that the defect was a proximate cause of the

deaths; and

(4) that the product was expect [sic] to and did

reach the user without substantial change in its

condition.

A ‘defect,’ as I will use that term in these in-

structions, is a condition not contemplated by the

ultimate user, which will be unreasonably dangerous

to him.

In this connection, I call to your attention that

certain witnesses have been asked whether their

product did or did not have a defect. Their use of

the term may or may not have coincided with the

definition of that term that I have just given you.

In your deliberations, you must of course apply the

legal definition of the term, as just given,

An ‘unreasonably dangerous’ product is one which

is dangerous to an extent beyond that which would

be contemplated by the ordinary user of the product.

In order to determine that the helicopter in ques-

tion was unreasonably dangerous in design, you must

find that, at the time of manufacture, the likelihood

that it would cause harm, and the seriousness of the

harm, outweighed the burden on the manufacturer

to design a product that would have prevented such

harm, and the adverse effect that alternative design

would have on the usefulness of the product.

Examples of factors that you may consider in

making this evaluation include:

—any warnings and instructions provided with

the product;

—the tehnological [sic] and practical feasibility

of a product designed and manufactured so ss to

have prevented the harm while substantially serving

the likely user’s expected needs. In considering this

you may coi ‘ider the state of the art at the time

that the proauct was designed and manufactured.

—the effect of any proposed alternative design on

the usefulness of the product;

—the comparative costs of producing, distributing,

selling, using, and maintaining the product as de-

signed and as alternatively designed;

—the new or additional harms that might have

resulted if the product had been so alternatively

designed ;

—the usefulness and desirability of the product;

—the availability of other and safer products to

meet the same need;

—the likelihood of injury and its probable seri-

ousness ;

—the obviousness of the danger;

—the avoidability of injury by care in use of

the product (including the effect of instructions or

warnings) ;

10a

—the ability to eliminate the danger without seri-

ously impairing the usefulness of a product and

making it—that is, or making it unduly expensive.

The Plaintiffs contend that the visual BIM warn-

ing system was inadequate because it did not incor-

porate any warning in the cockpit, it lost credibility

as a result of warnings that did not indicate a crack

in the blade, and the instructions and warnings in

the flight and maintenance manuals were inadequate.

The Defendant disputes each of these contentions.

In order to prevent the helicopter from being un-

reasonably dangerous, Sikorsky was required to de-

sign an adequate warning system and to give ade-

quate directions as to its maintenance and use. Al-

though a manufacturer is required to design a prod-

uct that is not defective and unreasonably dangerous,

this does not mean that it is required to include every

possible safety device. Thus, if you find that the

visual BIM system and applicable manuals were

adequate, you may not find Sikorsky liable for

failure to install an indicator in the cockpit.

In order to determine that the product was defec-

tive and unreasonably dangerous because adequate

warnings and instructions were not provided about

a danger connected with the helicopter or its proper

maintenance or use, you must find that, at the time

of manufacture, the likelihood that the product would

cause harm and the seriousness of the harm rendered

the manufacturer’s instructions inadequate, and that

the manufacturer should and could have provided

the instructions or warnings which the Plaintiffs

allege would have been adequate,

Examples of factors that you may consider in

making this evaluation include the intended or rea-

sonably anticipated use of the product; the manu-

facturer’s ability, at the time of manufacture, to be

lla

aware of the product’s danger and the nature of

the potential harm; the manufacturer’s ability to

anticipate that the likely product user would be

aware of the product’s danger and the nature of the

potential harm; the technological and practical feasi-

bility of providing adequate warnings and instruc-

tions; the clarity and conspicuousness of the warn-

ings or instructions that were provided; the ade-

quacy of the warnings or instructions that were

provided; whether reasonably prudent persons who

are likely to maintain and use the product should

be expected to understand and follow the warnings

and instructions.

If you find that the warnings and instructions at

the time of manufacture were not adequate, and

that this was a proximate cause of the crash, then

your verdict should be for the Plaintiffs. On the

other hand, if you find that the warnings and in-

structions at the time of manufacture were adequate,

and that the crash would have been avoided if they

had been followed, then your verdict should be for

the Defendant.”

After the jury was so instructed, plaintiffs excepted

to the “language which makes Sikorsky liable for failure

to install an indicator in the cockpit contingent upon a

finding that the visual BIM was inadequate.” Plaintiffs

repeated this objection in a Motion for a New Trial. The

Trial Judge viewed his instructions as a correct state-

ment of the substantive law of Maryland in design defect

cases and as a proper submission of the cockpit BIM

issue to the jury and denied the motion.

Plaintiffs complain in this appeal that the instructions

given improperly predicated jury consideration of the

cockpit BIM upon a finding by the jury that the “visual

BIM system and applicable manuals” were inadequate.

In other words, the plaintiffs argue that the jury was

12a

erroneously instructed to disregard any consideration of

the cockpit BIM at all unless it found, initially, that the

visual BIM system was an inadequate safety device.

Plaintiffs single out the following sentence of the above

quoted instructions as the culprit in allegedly leading the

jury astray in its deliberations: “Thus, if you find that

the visual BIM system and applicable manuals were ade-

quate, you may not find Sikorsky liable for failure to in-

stall an indicator in the cockpit.”

We do not accept plaintiffs’ construction of the jury

charge and find to the contrary that the Trial Judge’s

instructions did not effectively confuse or withdraw the

cockpit BIM question from the jury.

The test for determining the propriety of a jury in-

struction does not demand perfection. In general, a trial

court’s instructions will not be the basis for reversible

error if they “are reasonably informative and not mis-

leading, judged by common practices and standards of

verbal communication.” Baker v. Reid, Del. Supr., 57

A.2d 103, 109 (1947). See also Storey v. Castner, Del.

Supr., 314 A.2d 187, 194 (1973). But if the alleged

impropriety in the jury instructions “undermined .. .

the jury’s ability to ‘intelligently perform its duty in

returning a verdict,’” this Court will reverse. Newman

v. Swetland, Del. Supr., 388 A.2d 560, 562 (1975),

quoting Storey v. Castner, 314 A.2d at 194. In judging

the propriety of a jury charge, the entire instruction is

considered with no statement to be viewed out of con-

text. Spahn v. People’s Ry. Co., Del. Supr., 92 A. 727,

729 (1912); Baker v. Reid, 57 A.2d at 109. See also

Franklin v. Salminen, Del. Supr., 222 A.2d 261, 263

(1966). “[Slome inaccuracies and inaptness in state-

ment are to be expected in any charge.” Baker v. Reid,

57 A.2d at 109.

Viewed in its entirety, as it must, the jury charge is

an accurate reflection of Maryland law applicable to de-

13a

fective design cases. See Singleton, supra; Phipps, supra.

The jury was directed to undertake the balancing test

and weigh those factors, approved by the Phipps Court

and reiterated in Singleton, bearing upon the safety of

the helicopter as designed with the helicopter alternately

designed, 7.e., with a cockpit BIM. Thus, the jury charge

squarely presents the issue of cockpit BIM to the jury.

Those passages from the instructions which we have

quoted above direct the jury to look at other safety de-

vices in evaluating the adequacy of the visual BIM as a

safeguard for human life. The only alternative safety

device discussed throughout the course of the trial and,

therefore, the only alternative to be considered by the

jury was the cockpit BIM. Thus, the Trial Judge was

commanding the jury to consider the availability, safety,

feasibility and cost of the cockpit BIM at the same time

that it was reviewing the adequacy of the visual BIM

system. As is evident from the instructions the Trial

Court also reminded the jury of plaintiffs’ contention

on the cockpit BIM question. In light of the instructions

taken as a whole, it would not be fair or reasonable to

focus in on one passage of the charge and stretch it

into a basis for reversal. Indeed, under the Delaware

authorities cited above, we cannot do so. Maryland law

is the same. See Beahm v. Shortall, 368 A.2d 1005

(1977); Clayborne v. Mueller, 291 A.2d 443 (1972);

Nora Cloney & Co. v. Pistorio, 248 A.2d (1968); West

v. Belle Isle Cab Co., 100 A.2d 17 (1953); Rabmovitz v.

Kilner, 112 A.2d 488 (1955). We read the word “ade-

quate” in the line which plaintiffs assail as requiring the

jury necessarily to evaluate the cockpit BIM factor in

connection with their evaluation of the visual BIM. The

jurors were not instructed to focus their attention on the

visual BIM only excluding all consideration of the cock-

pit BIM. In our view the instructions did not prohibit

the jurors from reaching the cockpit issue unless, as

plaintiffs believe, they first ascertained that the visual

BIM by itself was inadequate.

l4a

Moreover, it is difficult for this Court to believe that

the jury did not consider the cockpit BIM issue when

the bulk of counsel’s efforts and reams of testimony over

the course of the two week trial were specifically di-

rected to the respective virtues and disabilities of the

cockpit and visual BIMs. The jurors were reminded

repeatedly in the opening arguments of counsel, through

the presentation of evidence (summarized above at

length), in the closing arguments of counsel, and in the

charge itself that cockpit BIM was a factor to be taken

into account in deciding whether defendant’s helicopter

was defective. Hence, we stand convinced that the in-

structions did not mislead nor withdraw that issue

from the jury. Any impreciseness in the one line of

the jury charge complained of was cured by the instruc-

tions viewed as a whole and is not the basis for a reversal

here.

III

We now turn to the second issue, namely, whether the

application of the Delaware Special Jury Statute to the

facts of this case violated 10 Del.C. § 4501* and 4503 °

and the Due Process and Equal Protection clauses of the

Federal and State Constitutions.

#10 Del.C. § 4501 provides:

“It is the policy of the State that all litigants in state courts

entitled to trial by jury shall have the right to grand and petit

juries selected at random from a fair cross section of the

county wherein the court convenes, It is further the policy of

the State that all citizens shall have the opportunity to be

considered for service on grand and petit juries in the courts

of the State, and shall have an obligation to serve as jurors

when summoned for that purpose.”

Id.

5 10 Del.C. § 4508 provides:

“No citizen shall be excluded from service as a grand or petit

juror in the courts of the State on account of race, color, re-

ligion, sex, national origin or economic status.”

Id.

15a

Specifically, plaintiffs contend that the application of

the Special Jury Statute (Statute) in this case deprived

them of due process and equal protection of the law be-

cause the Statute does not contain objective criteria for

selection of the pool of individuals from which the special

jury was drawn and because the Prothonotary allegedly

excluded certain identifiable groups (women and young

people) from the pool arbitrarily. Plaintiffs also ask

that we overrule this Court’s decision in Nance v. Rees,

Del. Supr., 161 A.2d 795 (1960), wherein the constitu-

tionality of the Delaware Special Jury Statute was up-

held against a challenge on due process grounds. Second,

plaintiffs argue that the Statute must be reexamined in

light of the enactment of 10 Del.C. §§ 4501 and 4503

which call for non-discriminatory and random selection

of grand and petit juries to ensure representation of

a fair cross section of the county in which the court

convenes.

Defendant Sikorsky asserts that both the United States

Supreme Court and this Court have upheld the constitu-

tionality of special] juries, that §§ 4501 and 4503 apply

only to grand and petit juries and not to special juries,

and that the Statute as applied below was fair to all

parties and violated neither the Due Process nor Equal

Protection clauses of the Federal and State Constitutions.

Provision for special juries is made in 10 Del.C.

§ 4541. The Delaware Special Jury Statute reads:

“(a) A special jury for the trial of a cause, shall

be ordered by the Court upon the application of

either party.

(b) The party applying for the special jury under

this section shall give due notice to the opposite

party, and to the Prothonotary, of the time and place

16a

of striking such jury. At such time and place the

Prothonotary, or his deputy, or if the Prothonotary

is not indifferent between the parties, then 2 proper

persons indifferent between the parties, appointed

by the Superior Court, shall attend with a list of 48

indifferent and judicious citizens of the county, qual-

ified to serve as jurors, showing their names and

places of abode.

this section, his agent or attorney, shall first strike

out one of the names, and then the opposite party,

his agent or attorney, shall strike out another; and

so on, until each shall have struck out 12. If the op-

posite party, or any person on his behalf, shall not

attend, or shall refuse to strike, the Prothonotary

or his deputy, or the persons appointed to strike the

jury, as the case may be, shall strike for the party

not attending, or refusing to strike.

(d) After each party shall have struck 12 names

under this section, the remaining 24 persons on the

list shall be the jury to be returned for the cause.

The Prothonotary, or his deputy, or the persons ap-

pointed to strike the jury, as the case may be, shall

thereupon deliver to the sheriff a certified list of the

names of such persons, with their places of abode,

as the jurors to be summoned for the cause, annexed

to a venire facias commanding him to summon them.

The sheriff shall, thereupon, summon the persons

named, according to the command of the writ, and

shall return the list with the venire.”

Id.

A special jury is impanelled as follows:

“At the trial of the cause, a special jury shall be

drawn from the list, returned under § 4541 of this

title, in the manner provided in this chapter for

other cases. In the selection of a special jury, if

17a

any of the 24 persons remaining on the list as pro-

vided in § 4541 of this title, are unable to sit as

jurors, for any reason satisfactory to the Court, the

Court may in its discretion limit the challenges by

each party to not less than 3. If the panel is re-

duced, however, to less than 18, the Court shall dis-

miss the jury, unless the party requesting the special

jury waives sufficient of his challenges to permit a

jury to be selected. The costs of the special jury so

dismissed in such case shall be borne by the party

requesting the special jury.”

Id. § 4542.

The procedure for requesting a special jury is governed

by Superior Court Rule 40(b) which provides:

“Application for a special jury shall be made at

or before the marking of the case for trial. A party

who has applied for a special jury may withdraw

such application and have the case tried by the gen-

eral jury, provided that the granting of such with-

drawal will not unduly prejudice or inconvenience

an opposing party.”

Id.

In Nance, supra, this Court, after reviewing the his-

tory of special juries in Delaware and England before

1776, concluded that the Statute violated neither the Due

Process clause of the Federal Constitution nor the right

to trial by jury provision of Article I, § 4 of the Dela-

ware Constitution. In considering plaintiffs’ request that

Nance be overturned, we draw liberally from our discus-

sion on the development of the special jury procedure

contained therein.

Special juries, commonly referred to as “blue ribbon”

or “struck” juries, were first provided for in Delaware

in An Act for Regulating the Trial of Causes by Special

Juries, 4 Del. Laws ¢, CXX, at 322 (1810). The practice

18a

of using special juries, however, existed before enact-

ment of this law. For example, struck juries were Jis-

cussed in Rule 17 of the Delaware Supreme Court, 1 Del.

Cas. XL (1790), briefly referred to in An Act For

More Certainly Obtaining Returns of Special Juries,

And Their Better Regulation, 2 Del. Laws ¢. VIIIe, at

1071 (1793) and are noted in several of Delaware’s

oldest reported cases decided shortly after the American

Revolution. See Burton’s Lessee v. Prettyman, Del. Supr.,

1 Del. Cas. 11 (1793) ; Newbold’s Lessee v. Stokley, Del.

Supr., 1. Del. Cas. 10 (1793) ; Polk’s Lessee v. Ross, Del.

Com. Pl., 1 Del. Cas. 40 (1794). The procedure for

selecting a special jury has also been discussed by Dela-

ware courts in more recent times. See Robelen Piano Co.

v. DiFonzo, Del. Supr., 172 A.2d 568 (1961); Sharpe v.

Thompson, Del. Super., 147 A.2d 649 (1958); and

O’Mallie v. Harlan & Hollingsworth, Del. Super., 99 A.

428 (1916).’

The special jury is not an American invention. It was

well known in English common law and one scholar has

traced it back to the 14th century. Thayer, The Jury and

Its Development, 5 Harv. L. Rev. 295 (1889). The Nance

Court placed the probable origin of the 1810 Delaware

statute in an English statute, 2 Geo. II. ¢.25, and stated

that “the Act of 1810 did no more than codify into

statutory law a practice long followed in Delaware

courts as a part of the legal heritage from England.”

Nance v. Rees, 161 A.2d at 799.

Special juries were originally struck in cases “of too

great nicety” for an ordinary panel and to prevent sus-

® Under the Delaware Constitutions of 1776 and 1792, the Dela-

ware Supreme Court was a Court of original jurisdiction. Del.

Const. art. VI, §8 (1792); Del. Const. art. XVII (1776).

7 For a discussion of past Delaware procedure with respect to

requesting a special jury, see 1 Wooley, on Delaware Practice,

§ 561, at 402-03.

19a

pected partiality. III Blackstone’s Commentaries § 357

(Sharswood ed.) Although they have been the subject of

much debate in scholarly literature * and have suffered a

certain amount of judicial criticism,’ the special jury

as an institution is ensconced in Delaware law and is

not constitutionally infirm.

Having reiterated our belief that the Delaware Special

Jury Statute is constitutional on its face, we now con-

sider whether the Statute is constitutional as applied.

The United States Supreme Court has heard many

challenges to Federal and state jury selection practices.

Typically, such challenges were founded upon allegations

that the selection procedures purposefully and intention-

ally excluded a certain group of qualified jurors and,

consequently, the jury panel did not represent a fair

cross section of the community. Those challenges have

been brought under: the Sixth Amendment (right to a

speedy and public trial in criminal actions before an

impartial jury), see eg. Duren v. Missouri, 489 U.S.

357, 99 S.Ct. 664 (1979), and Taylor v. Louisiana, 419

U.S. 522, 95 S.Ct. 692 (1975); the Fifth Amendment

(right to indictment by a grand jury in Federal felony

actions, see, e.g., Casterada v. Partida, 430 U.S. 482,

508-18, 97 S.Ct. 1272, 1287-92 (1977) (Powell, J., dis-

senting); Peters v. Keff, 407 U.S. 4938, 92 S.Ct. 2163

8 See, e.g., Luneburg & Nordenberg, Specially Qualified Juries and

Expert Non Jury Tribunals: Alternatives for Coping With the

Complexities of Modern Civil Litigation, 67 Va.L.Rev. 887 (1981);

Baker, In Defense of the “Blue Ribbon” Jury, 35 Iowa L. Rev. 409

(1950) ; Thatcher, Why Not Use the Special Jury’? 31 Minn. L.

Rev. 232 (1947) ; Note, The Case for Special Juries in Complex Civil

Litigation, 89 Yale L.J. 1155 (1980).

® See Moore v. New York, 333 U.S. 565, 569-70, 68 S.Ct. 705, 707

(1948) (Murphy, J., dissenting); Fay v. New York, 332 U.S. 261,

296-300, 67 S.Ct. 1613, 1632-34 (1947) (Murphy, J., dissenting) ;

Robelen Piano Co. v. DiFonzo, 172 A.2d at 571.

20a

(1972); and the Due Process and Equal Protection

clauses of the Fourteenth Amendment, see e.g., Alex-

ander v. Louisiana, 405 U.S. 625; 92 S.Ct. 1221 (1972),

and Aikens v. Texas, 325 U.S. 398, 65 S.Ct. 1276 (1945).

The Supreme Court has reiterated the basic principle

that a jury must be drawn from a pool that is truly

representative of a cross-section of the community. See

Taylor v. Louisana, 419 U.S. at 527-28; Thiel v. Southern

Pacific R.R., 328 U.S. 217, 220, 66 S.Ct. 984, 985 (1946) ;

Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457,

471 (1942). The absence of any cognizable or identifi-

able group from the jury or jury pool, however, does

not offend the Constitution unless it is the result of a

systematic exclusion of that group. Apodaca v. Oregon,

406 U.S. 404, 92 S.Ct. 1628 (1972) (White, J., plurality

opinion) ; Thiel, supra, 328 U.S. at 220 or purposeful dis-

crimination. City of Mobile v. Boulden, —— U.S, ——,

n.24, 100 S.Ct. 1490, 1505 n.24 (1980); Akins v. Texas,

325 U.S. 398, 65 S.Ct. 1276 (1945).

The United States Supreme Court has examined and

upheld the constitutionality of state special jury statutes

on several occasions. See Moore v. New York, 333 U.S.

565, 68 S.Ct. 705 (1948); Fay v. New York, 382 U.S.

261, 67 S.Ct. 1613 (1947); Brown v. New Jersey, 175

U.S. 172, 20 S.Ct. 77 (1899). However, these cases

involved challenges to the special jury statute by a de-

fendant in a criminal context. The Supreme Court has

not yet reviewed the constitutionality of a special jury

statute in a civil setting. The one Supreme Court case

dealing specifically with a challenge to a civil jury did

not involve a blue ribbon jury and was decided not on

constitutional grounds, but upon the supervisory power

of the Court over the administration of justice in the

Federal] system. Thiel v. Southern Pacific R.R., supra.”

1 It should be noted that the Supreme Court has heard and de-

cided two class action civil suits brought by persons who alleged

that state jury selection procedures unconstitutionally excluded

2la

Moreover, cases based upon the Fifth and Seventh

Amendments do not apply here because those Amend-

ments have not been held applicable to the States under

the Fourteenth Amendment (and the Fifth Amendment

right to a Grand Jury is clearly not applicable in a civil

case). See Peters v. Kiff, 407 U.S. 498, 92 S.Ct. 2163

(1972) (Marshall, J., plurality opinion); McLancon v.

McKeithen, E.D.La., 345 F.Supp. 1025 (1972), aff'd sub

nom., Davis v. Edwards, 409 U.S. 1098, 98 S.Ct. 908

(1973). Furthermore, it is not clear that the same Due

Process and Equal Protection standards applicable to

jury selection in a criminal trial would be applicable in

a civil trial. Luneburg & Nordenberg, Specially Qualified

Juries and Expert Non Jury Tribunals: Alternatives

for Coping With the Complewities of Modern Civil Liti-

gation, 67 Va.L.Rev. 887, 922-26 (1981)."" And the most

recent Supreme Court case upholding a state special jury

selection procedure in a criminal context is more than

thirty years old, and its validity today, in light of recent

cases, is questionable.”

them from grand and petit jury service and from service on the

County Board of Education (because the Board was selected by the

grand jury). Carter v. Jury Comm'rs, 396 U.S. 320, 90 S. Ct. 518

(1970); Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 582 (1970).

Although not specifically attacks on the selection of a civil jury,

arguably they were challenges to the procedure for selecting civii

and criminal juries. In Carter, the Court found as a constitutional

right that the source of the jury selection list reasonably reflect

“ ‘a cross section of the population suitable in character and intelli-

gence for that civil duty.’” 396 U.S. at 333-34, quoting Brown v.

Allen, 344 U.S. 448, 474, 73 8. Ct. 397, 416 (1953).

The Supreme Court has stated that the reasons for trial by

jury in a criminal context and in a civil context are different. For

example, in Colgrove v, Battin, 413 U.S. 149, 93 S. Ct. 2448 (1973),

the Court stated that the purpose of trial by jury in a criminal case

is to prevent oppression by the government, and in a criminal and

civil case to assure fair and equitable resolution of factual issues.

12 For example, in Fay v. New York, supra, the Supreme Court

did not find a constitutional problem with selecting only those

22a

To support their contention of intentional, purposeful,

arbitrary and systematic exclusion of women and young

people from the jury pool, plaintiffs rely on statistics

which show that the population of New Castle County

was 58% female, that the jury pool was only 33.9%

female, that the jury panel in this case was only 16%

female, and that the youngest member of this struck

jury was 37. Assuming, for the sake of argument, that

the standards discussed above are applicable to this civil

special jury case, we conclude that plaintiffs have not

made out a case for unconstitutional exclusion of iden-

tifiable groups from the special jury. The figures sub-

mitted by plaintiffs may be suspect but do not show in-

tentional and systematic exclusion. And as we stressed

earlier, a criminal defendant is not constitutionally en-

titled to proportional representation of any particular

group on the jury or in the venire from which it is

drawn. Only purposeful or intentional exclusion is

barred. See Taylor v. Louisiana, 419 U.S. at 539; Cassel

v. Texas, 389 U.S. 282, 289-90, 70 S.Ct. 629, 633 (1950) ;

Neal v, Delaware, 108 U.S. 370, 394 (1880). Moreover,

in light of our conclusion which follows, we do not

determine whether the Statute as applied operated to

exclude women and young people from the special jury

below.

The procedure for selecting special juries in Delaware

has the potential for abuse and this Court cannot permit

that potential from ever being realized. Neither the

Statute nor the Superior Court Rule contain guidelines

or criteria for the selection of special jury pools, An

affidavit by the Superior Court Administrator, relied

upon by plaintiffs, indicated, among other things, that

there were no articulable guidelines used in special jury

women who had volunteered or whose names had been submitted

by the League of Women Voters. Cf. Duren v. Missouri, supra.

selection by Jury Commissioners, that the Commissioners

“elected to use education and age as their criteria,” and

that they “selected persons with more than 12 years of

formal education and intentionally avoided selecting per-

sons either in their twenties or seventies.” Consequently,

there is no basis from which we can conclude that a

constitutional violation has occurred.

In 1976 our Legislature undertook a broad reform of

the “trial by jury” statute. Recognizing that “the Ameri-

can tradition of trial by jury ... necessarily contem-

plates an impartial jury drawn from a cross section of

the community,” Thiel, 328 U.S. at 220, the Delaware

General Assembly enacted 10 Del.C. §§ 4501 and 4503,

supra. Section 4501 embodies State policy “that all liti-

gants in state courts entitled to trial by jury shall have

the right to grand and petit juries selected at random

from a fair cross section of the county wherein the court

convenes.” Jd, Section 4503 prohibits the exclusion of a

person from service as a grand or petit juror “on account

of race, color, religion, sex, national origin or economic

status.” Id. The legislative revision left untouched the

provisions of the Special Jury Statute, and we are satis-

fied that the Legislature intended to preserve the special

jury practice when it did not repeal the statutory an-

thority for it at the time that the reforms were made.

We have already referred to the long history of the spe-

cial jury practice in Delaware and, when properly se-

lected, the practice has much to commend it. See Lune-

burg v. Nordenberg, supra; Note The Case for Special

Juries in Complex Civil Litigation, 89 Yale L. J. 1155

(1980). However the present practice may not produce

a jury pool that is representative of the community or

consistent with the public policy announced in 10 Del.C.

§§ 4501 and 4508.

Thus, we resort to our power under the Constitution

to supervise the administration of justice in Delaware

and to promulgate rules of procedure. Del. Const. art.

24a

IV, §18 (1897); State v. Terry, Del. Supr., 148 A.2d

102 (1959). Pursuant to that power and drawing upon

the deference traditionally accorded to the states in the

establishment of juror qualifications and selection proce-

dures, see Taylor v. Louisiana, supra; Carter v. Jury

Comm'rs, 396 U.S. 820, 90 S.Ct. 518 (1970); Brown v.

New Jersey, supra; Jugiro v. Brush, 140 U.S. 291, 11

S.Ct. 770 (1891), we may authorize the revision of

arbitrary or potentially discriminatory court procedures

and practices to comport with constitutional principles.

Exercising such power, we commend to the Superior

Court the delicate and difficult task of drafting a Rule

of Court stating criteria and guidelines for the selection

of special juries to ensure “a cross section of the popula-

tion suitable in character and intelligence for that civil

duty.” Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397,

416 (1953).

In drawing up criteria for the special jury selection

nrocess, the Superior Court should be mindful of the

twin goals of achieving a fair representation of the com-

munity on the jury panel while providing for intelligent,

educated and competent jurors for the adjudication of

complex cases. See 10 Del.C. § 4503; ABA Standards

Relating to Trial by Jury § 2.1 (approved draft 1968).

We offer as a suggestion, and without fettering the Su-

perior Court’s discretion in this matter, that jurors be

randomly selected from a special jury pool comprised of

individuals meeting specified age, intelligence and educa-

tional requirements and, to the extent deemed legally

permissible by the Superior Court, possessing special oc-

cupational skills. Perhaps a minimum educational re-

quirement of a bachelor’s degree from an accredited

college or university might be one of those criteria.

In response to this Court’s directive contained in our

earlier Opinion in this matter, now superceded, the

Superior Court has submitted a proposed plan and Rule

for Selection of Special Juries which is now pending for

25a.

further study and approval of this Court. Until the

proposed Rule or an alternative Rule is approved and

the selection process is in place, the Superior Court shall

not schedule any trial by special jury.

AFFIRMED.

26a

[OPINION OF THE DELAWARE SUPREME COURT

Dated March 15, 1982]

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No. 114, 1981

LILLIAN M, HAas, et al.,

Plaintiffs, Appellants,

Vv.

UNITED TECHNOLOGIES CORPORATION,

a Delaware corporation,

Defendant, Appellee.

Submitted: December 18, 1981

Decided: March 15, 1982

Before DuFFYy, MCNEILLY, QUILLEN and Horsey,

Justices, constituting the Court en Banc

Upon appeal from Superior Court.

Affirmed in part, reversed and remanded.

Arthur Inden, Ben T. Castle (argued), Craig A.

Karsnitz and Barry M. Willoughby, of Young, Conaway,

Stargatt & Taylor, Wilmington; and Francis A. Ferrara

of Kassab, Cherry, Curran & Archbold, Media, Pa., for

plaintiffs-appellants.

Edmund N. Carpenter, II (argued), Allen M. Terrell

and Helen L. Winslow, of Richards, Layton & Finger,

Wilmington, for defendant-appellee.

DurFy, Justice:

In this product liability case, plaintiffs appeal from a

judgment of the Superior Court entered upon a verdict

for defendant. We reverse the judgment in part and

remand the case for a new trial.

27a

Four United States servicemen were killed when a

CH-53D, “Sea Stallion,” helicopter crashed near Salis-

bury, Maryland, on January 8, 1975. The flight had

originated at New River, North Carolina. Three of the

dead were Marine Corps crewmen, and one was a mem-

ber of the Air Force who was hitching a ride to McGuire

Air Force Base in New Jersey.” This action was filed

by the surviving spouses, children and personal repre-

sentatives of the deceased men (plaintiffs against United

Technologies Corporation (defendant), a Delaware cor-

poration, which had manufactured the helicopter in its

Sikorsky Division. On Sikorsky’s motion and over plain-

tiffs’ objection, a special jury was impaneled and, after

it returned a verdict for defendant, plaintiffs docketed

this appeal.

The parties agree that the crash occurred after one of

six rotary wing blades fractured while the helicopter

was in flight. The cause of the crash is the central issue

in this litigation.

Two principal questions are submitted for our consid-

eration in the appeal: (1) Did the Trial Judge, in his

charge, improperly prohibit the jury from considering

whether the helicopter was defective because the design

thereof did not incorporate an inflight instrument (“cock-

pit BIM”) which would have warned the pilot that a

rotary blade was losing “pressure” and thus was subject

to in-flight fracture; and (2) did use of the special jury

violate 10 Del.C. §§ 4501 and 4503 and the Due Process

and Equal Protection Clauses of the Federal and State

Constitutions?

Other questions have also been argued and we will

refer briefly to them in this opinion; but the cockpit

* A fifth serviceman, the co-pilot, also died in the crash but his

death is not in issue in this litigation.

28a

BIM and special jury issues are the main centers of

controversy.

As to the cockpit BIM issue, the deaths occurred in

Maryland and the parties agree that the law of that

State governs. See Maryland Wrongful Death Statutes,

Md.Code Ann.Cts. and Jud. Proc. § 3-901 et seq.

The procedural aspects of the litigation are governed

by Delaware law and so we apply it in reviewing the

contentions relatiny to use of a special jury.

III

The rotary wing blades on a Sea Stallion aircraft pro-

vide the lift necessary for flight. Each is a hollow alu-

minum spar or tube filled with pressurized nitrogen. If

a crack occurs in a blade, nitrogen escapes and the re-

sulting reduction in pressure inside the spar is measura-

ble.

The helicopter which crashed was manufactured by

Sikorsky in 1969 and sold to the Marine Corps in that

year. Prior thereto, Sikorsky had developed a system

for measuring changes in blade pressure which, if func-

tioning properly, signaled a crack in a rotary blade. The

procedure was a “Blade Inspection Method” and was

generally known by its acronym: “BIM.” It utilized a

small gauge, about three inches in diameter, which was

placed at the base of each of the rotary blades. Normally,

when the blade was properly pressurized, each gauge was

white but, if a loss of (nitrogen) pressure occurred, the

gauge turned black. A white reading thus signaled that

the pressure was within acceptable levels, a black gauge

signaled trouble.

The gauges could be inspected only when the helicopter

was on the ground and when the blades were not rotat-

ing. Pre-flight inspection of the aircraft thus included a

check of all BIMs before the engines were started.

29a

The Sea Stallion which crashed was equipped with

Sikorsky’s BIM system and much of the evidence at trial

was directed to that system, its virtues and its defects,

its reliability and its malfunctioning, the true and false

warnings given by BIM gauges, nitrogen leakage from

the (Schrader) valves on the gauges, and so on.

Sikorsky contends that the crash resulted solely from

the negligence of both the Marine air crew and the

ground crew which had maintained the aircraft. Defend-

ant relies on evidence showing that there had been four

recent “black BIM” warnings on the blade which failed,

that the maintenance manual called for replacement of

a blade if “spar pressure” was lost, and on the testimony

of a Marine Corps officer who said (in discussing Corps

maintenance with respect to the crash) that we “just

missed it.”

Some maintenance problems were experienced with the

BIM system which did not distinguish between a loss of

pressure resulting from a defect in the system itself

(such as a leaking valve) and a loss of pressure resulting

from a cracking blade. In any event, we may assume

for present purposes that maintenance by Marine Corps

personnel was sometimes not reliable and that Corps

maintenance personnel were negligent in not replacing

the blade which cracked in flight on the Sea Stallion that

crashed.

But negligence of Marine Corps personnel, even if

assumed, is not determinative of the issue which plaintiffs

have raised, namely, an alleged design defect that resulted

from the failure of Sikorsky to install an on-board system

for monitoring spar cracks during flight.

As we have said, the BIM system was, by design, a

check of blade pressure made on the ground before the

30a

engines on the helicopter were started. After start-up,

the check could not be made because the BIMs could be

inspected only when the blades were at rest. .And, of

course, a BIM check could not be made when the heli-

copter was airborne. Plaintiffs focus on the latter limi-

tation. They contend that Sikorsky’s failure to include

a continuous monitoring system for blade crack, that is,

one which would inform a pilot while in flight of an

incipient crack, was a design defect which should have

been submitted to the jury for its consideration.

On that issue, plaintiffs submitted the following re-

quest for instructions to the jury:*

“Even had the visual ‘BIM’ system worked prop-

erly, Plaintiffs allege, it was inadequate and unsafe

as a warning device since there was no ‘inside-the-

cockpit BIM’ indicator to warn the helicopter’s crew

in flight of a crack in the blade. Since there was no

system for warning the crew in flight of an im-

pending blade fracture, Plaintiffs contend that the

Sikorsky-built helicopter was defective.

If you find that the Sikorsky-built helicopter re-

quired a warning system for potential blade frac-

tures in order for it to be operated safely, and if

you find that the visual ‘BIM’ system was defective

in this regard, either because it did not work as a

warning system or because there was no ‘inside-the-

cockpit BIM’, then you should find that the helicopter

was defective.”

The Trial Judge, however, charged the jury as follows:

“In order to prevent the helicopter [which was

defined to include the warning system and the flight

and maintenance manuals] from being unreason-

* We quote the request only to show that plaintiffs had requested

a charge on cockpit BIM; we do not decide whether it is a complete

statement of the Maryland law.

3la

ably dangerous, Sikorsky was required to design an

adequate warning system and to give adequate direc-

tions as to its maintenance and use. Although a

manufacturer is required to design a product that

is not defective and unreasonably dangerous, this

does not mean that it is required to include every

possible safety device. Thus, if you find that the

visual BIM system and applicable manuals were

adequate, you may not find Sikorsky liable for fail-

ure to install an indicator in the cockpit.”

After the jury was so instructed, plaintiffs excepted to

the “language which makes Sikorsky liable for failure to

install an indicator in the cockpit, contingent upon a

finding that the visual BIM system was inadequate.”

And plaintiffs repeated that objection on this issue in a

motion for a new trial.

The Trial Judge denied plaintiffs’ motion for a new

trial and his ruling indicates that he viewed his instruc-

tion as giving the jury the opportunity to independently

consider whether an indicator in the cockpit was neces-

sary in order to make the warning system safe. After

quoting the instruction which he had given, the Court

said this:

“In order to prevail, the plaintiffs must prove that

the helicopter was defectively designed. If the jury

found that the warning system designed by Sikorsky,

with the indicator on the rotor blade, was adequate,

it could not find Sikorsky liable for failing to put

an indicator in the cockpit. In other words, the

plaintiffs could prevail on this contention only if the

jury found that an indicator in the cockpit was nec-

essary in order to make the warning system ade-

quate.”

But the jury was given a quite different test, that is,

the jury was told that if the visual BIM system and the

applicable manuals were found to be adequate, then,

32a

“you may not find Sikorsky liable for failure to install

an indicator in the cockpit.” (Emphasis added.) In

short, independent examinations of the systems were

prohibited: the jury’s right to consider the cockpit issue

was made contingent on a finding of inadequacy of the

“visual BIM system and applicable manuals.” And, under

the evidence in the case, that was reversible error.

The Court’s instruction was erroneous because it failed

to distinguish between a warning system for pre-flight

or on-the-ground inspection and a system which warns

of a defect while the aircraft is in flight. We certainly

do not mean to suggest that an on-the-ground inspection

system is inadequate as a matter of law if there is not

an airborne supplement. But we do say that, under the

circumstances of this case, the visual BIM system, which

may have given an adequate warning of a defect while

the helicopter was on the ground, was not necessarily

an adequate system for all purposes. Clearly, while in

flight the Sea Stallion was operating in an entirely dif-

ferent environment than it was while on the ground when

the wheels carry the weight of the aircraft. But, in

flight, as the maintenance manual states, the blades

“provide the lift necessary for flight” and, implicitly,

without such lift, flight cannot be sustained. The test

for an adequate warning system for a blade defect under

that circumstance may present the jury with a different

question, if plaintiffs’ evidence was sufficient to raise it.

We refer briefly to some of the evidence on whether

in-flight instrumentation was necessary to provide an

adequate warning system. But before doing so, we note

that, although it appears that the helicopter was manu-

factured by Sikorsky to Government specifications, the

Trial Judge instructed the jury as follows:

“There has been evidence in this case that this

helicopter was manufactured by defendant Sikorsky

pursuant to government specifications. Since

33a

Sikorsky participated in the preparation of these

specifications and, in fact, exercised some discretion

in the design and manufacture of this helicopter,

particularly with regard to its main rotor blade

assembly’s visual BIM system, I instruct you that

the existence of such specifications does not consti-

tute a valid defense to plaintiffs’ strict liability

claim.”

That ruling is not contested in this appeal.

There was evidence at trial showing that Sikorsky had

developed an in-flight warning system before the heli-

copter which crashed had been manufactured. There was

evidence that the normal flight time of the Sea Stallion

was designed to be two hours or less.* But there was

also evidence from which the jury could have inferred

that the design permitted and contemplated flights which

lasted longer than two hours because fuel extension

(wing) tanks were provided for and so was a “hot fuel-

ing” technique, that is, a ground refueling procedure

accomplished while the rotor blades are operating (usu-

ally at a low speed) ;** in short, it means taking on

———

* A two-hour inspection interval for inspection of the BIM

gauges was deemed by Sikorsky to be adequate because propagation

time from crack to fracture of a rotary blade was calculated to take

longer than two hours. In other words, an engine shutdown after

not more than two hours of operation, followed by a visual inspec-

tion of the BIMs, was deemed to provide an ample margin of safety

for detecting any incipient crack in a blade.

** For example, the cross-examination of Mr. Dixon, one of the

defendant's experts reads, in part, as follows:

“Q When it left Sikorsky, it could be hot refucled? You

will agree with me, will you not, sir?

A Yes.

Q_ In fact, pressure refueling is listed in the specifications,

is it not, sir?

A Itis. Not for that purpose of hot refueling.

34a

fuel without stopping the engines. In addition, there was

evidence that an in-flight warning system should be pro-

vided if the helicopter was to be under power for more

than two consecutive hours.

Q Well, does it say what the purpose for it is?

A No. But the purpose of it is, as I discussed with you

before, such that you can refuel the aircraft faster, that you

don’t have fumes floating around the aircraft where you have

electrical equipment running.

Q_ Lunderstand that.

But in December of 1969, that aircraft could be hot refueled,

and it was so designed in the specifications so that it could be

hot refueled, whether it was intended or not intended for hot

refueling?

A_ If you add that to it, yes.

Q You will agree with me there, sir?

A Yes.

* * &

Now, did the specifications, sir, say anything about extra

fuel?

A_ It did not.

Q Are you certain of that?

A It has, I think, in there something possibly about provi-

sions for connections or something like that. I don’t recall what

it does say, frankly.

Well, let’s be sure, Mr. Dixon.

Let me see the spec, then, please?

What paragraph have I just turned to, sir?

3.12.9.3.3.

And what does that say, sir?

Says, ‘Fuel tanks (range extension).’

I wonder if you would read that to the ladies and gentle-

men of the jury, sir.

A ‘Provisions shall be made for the installation of 300 gal-

lon fiberglass fuel tanks for extended range use. The tanks, in

accordance with specification MIL-T-6396 (ASG)-1, shall be

part of the range extension kit which shall be included in Use-

ful Load, when carried, The tanks, when used, shall be located

in the cabin, secured in place with cargo tie-down fixtures, and

connected to the engine fuel system vent line and pressure

refueling line.’

OPrOroref

85a

Since evidence was elicited that indicated a hot fueling

capability and wing tanks were included in the design

of the aircraft, and since flights of more than two hours,

or continuous engine operation for a period in excess of

two hours were contemplated for the helicopter, it fol-

lows, in our opinion, that there was a jury issue as to

whether the absence of a cockpit BIM was a design

defect. Restatement of Torts, Second, § 402A. Compare

Schnell v. AMG, Inc., 8 Cir., 567 F.2d 1259, 1261 (1977) ;

Foster v. Ford Motor Co., 5 Cir., 616 F.2d 1804, 1809-

1811 (1980) ; Roy v. Star Chopper Co., Inc., D. R.1., 442

F.Supp. 1010, 1020 (1977); aff’d, 584 F.2d 1124, cert.

denied, 440 U.S. 916, 99 S.Ct. 1124; Dorsey v. Yoder

Company, E.D. Pa., 381 F.Supp. 753, 760 (1971) ; Bexiga

v. Havir Manufacturing Corp., N.J.Supr., 290 A.2d 281,

285 (1972); Azzarello v. Black Bros, Co., Inc., Pa.Supr.,

891 A.2d 1020, 1027 (1978).

Sikorsky argues that a cockpit BIM was unreliably

dangerous because a “false” warning of an emergency

might lead a pilot to attempt a landing in an unsafe

Q Does that refresh your recollection, sir?

A Yes, it does. That’s why I mentioned before that the fuel

tanks are not in the aircraft but says there are provisions for it.

Q Well, Dr. Cunitz was here and said that he saw them in

the aircraft.

A He may very well have. They are not used all the time;

but they’re used occasionally.

Q_ So, there were provisions for range extension for these

aircraft made in the documents and the specifications, were

there not, sir?

A Tobe used for ferry purposes, only.

Q Does that say ‘to be used for ferry purposes only?

A No. But if you look up the change that incorporates the

fuel tank, they’re used for ferrying purposes only. I suspect

it’s also in the flight manual.

Q Mr. Dixon, didn’t the helicopter that crashed in this case

have a range extension tank in it?

A It had one in it, but I don’t know if it was used or not.”

86a

place. And so it might. But the merits of a cockpit

BIM (that is, whether its disadvantages were greater

than its virtues) presented an issue to be determined by

the jury.

Sikorsky also contends that, when it discovered that

CH-58Ds were being used on flights lasting longer than

two hours, it repeatedly recommended to the Navy that

cockpit BIMs be installed, and those recommendations

were rejected. Had such a recommendation been accepted

and had the helicopter which fell been so equipped (“ret-

rofitted”), the crash might have been prevented. But

that, too, presents a matter for the jury’s consideration.

Specifically, Sikorsky is charged with a design defect at

the time of manufacture and its efforts with respect to

retrofitting took place thereafter. While such evidence

may have a place in the fact-finding process, it is not

determinative nor a conclusive defense in this appeal.

Sikorsky argues that it was entitled to a directed ver-

dict on the liability issue* but, since we conclude that

plaintiffs are entitled to have the absence of an air-

borne warning system placed before the jury on the

design-defect issue, it follows that Sikorsky is not en-

titled to a directed verdict.

Sikorsky also argues that it was entitled to a directed

verdict on certain other issues which the Trial Court had

retained in the case for consideration by the jury.

Specifically, Sikorsky says that it was entitled to judg-

ment on all counts relating to defects in the visual BIM

system and defective manuals, but the evidence as to

both issues is in conflict and the Trial Judge’s ruling was

proper.

As to the alleged contributory negligence of the air

crewmen, it is undisputed that on the morning of the

“The Trial Judge directed a verdict for defendant as to certain

issues and that ruling is not contested in this appeal.

87a

final flight, all BIMs on the Sea Stallion were white

before the engine was started, and any failure to make a

further check before takeoff was a fact for the jury to

consider. A charge of such contributory negligence, of

course, cannot be asserted against the Airman who was

riding only as a passenger.

While the parties agree that Maryland law governs,

they differ as to the consequence thereof when applied to

this case in which the product was delivered by Sikorsky,

pursuant to contract, to the Marine Corps for military

purposes. The Trial Judge charged the jury on strict

liability and negligence.

In Phipps v. General Motors Corporation, Md.Ct.App.,

363 A.2d 955 (1976), Maryland’s highest court adopted

the rationale of the Restatement (Second) of Torts,

§ 402A and concluded that an allegation of a defective

condition, which rendered an automobile not reasonably

safe for its intended use, stated a cause of action under

Maryland law.

Sikorsky argues that § 402A is applicable only to goods

intended for “consumption” by the general public and

that Maryland would not apply it to the manufacture of

a military product. Specifically, Sikorsky says that

Maryland would follow a New Jersey ruling in Sanner

v. Ford Motor Company, N.J.Super., 364 A.2d 43 (1976),

aff’d, N.J.Super.Ct.App.Div. 381 A.2d 805 (1977); cert.

denied, N.J.Supr., 384 A.2d 846 (1978). That case in-

volved a failure to install seat belts (or a roll bar) in a

military jeep but there, clearly, as the Appellate Division

said, “seat belts would be incompatible with the intended

use of the vehicle.” 381 A.2d at 806. No such showing

has been made in this case in which blade safety was

certainly not incompatible with military use of the air-

craft.

88a

Sikorsky also argues that, under Maryland law, strict

liability in tort is not applicable to a military contractor.

While the issue is not free from doubt, given Sikorsky’s

participation in the design of the helicopter and the

emphasis in Phipps on the “unreasonably dangerous”

aspect of the rule, we are not persuaded that Marylan?

would accord any less protection to personnel in the mili-

tary service than that given to civilian users of the

product. Foster v. Day & Zimmerman, Inc., 8 Cir., 502

F.2d 867, 874-875 (1977); O’Keefe v. Boeing Company,

8.D.N.Y., 3385 F.Supp. 1104 (1971). See also North

American Aviation, Inc. v. Hughes, 9 Cir., 247 F.2d 517

(1957), cert. denied, 255 U.S. 914; Boeing Airplane

Company v. Brown, 9 Cir., 291 F.2d 310 (1961) ; Glad-

stone v. Grumman Aircraft Engineering Corp., N.Y.

Supr.App.Div., 5 N.Y.S8.2d 252 (1938); Montgomery v.

Goodyear Tire & Rubber Company, (S.D. N.Y.), 281

F.Supp. 447 (1964) (applying admiralty law), aff’d, 2

Cir., 392 F.2d 777 (1968), cert. denied, 393 U.S. 841.

Sikorsky argues that it was entitled to a directed ver-

dict with respect to the claim made on behalf of Ginger

Schlectic, a daughter of one of the Marines, Plaintiffs

failed to respond to that argument and, given the evi-

dentiary record called to our attention, we agree that it

is insufficient to support the claim. In short, the motion

should have been granted.

We now consider the second question, which concerns

the validity of the application of the Delaware Special

Jury Statute to the facts in this case, 10 Del.C. § 4541.

That Statute reads as follows:

“(a) A special jury for the trial of a cause, shall

be ordered by the Court upon the application of

either party.

(b) The party applying for the special jury under

this section shall give due notice to the opposite

party, and to the Prothonotary, of the time and place

of striking such jury. At such time and place the

Prothonotary, or his deputy, or if the Prothonotary

is not indifferent between the parties, then 2 proper

persons indifferent between the parties, appointed

by the Superior Court, shall attend with a list of 48

indifferent and judicious citizens of the county,

qualified to serve as jurors, showing their names

and places of abode.

(ec) The party applying for the special jury under

this section, his agent or attorney, shall first strike

out one of the names, and then the opposite party,

his agent or attorney, shall strike out another; and

so on, until each shall have struck out 12, If the

opposite party, or any person on his behalf, shall

not attend, or shall refuse to strike, the Prothono-

tary or his deputy, or the persons appointed to

strike the jury, as the case may be, shall strike for

the party not attending, or refusing to strike.

(d) After each party shall have struck 12 names

under this section, the remaining 24 persons on the

list shall be the jury to be returned for the cause.

The Prothonotary, or his deputy, or the persons ap-

pointed to strike the jury, as the case may be, shall

thereupon deliver to the sheriff a certified list of

the names of such persons, with their places of

abode, as the jurors to be summoned for the cause,

annexed to a venire facias commanding him to sum-

mon them, The sheriff shall, thereupon, summon the

persons named, according to the command of the

writ, and shall return the list with the venire.”

The procedure for impaneling a special jury is stated

at 10 Del.C, § 4542, which reads:

40a

“At the trial of the cause, a special jury shall be

drawn from the list, returned under § 4541 of this

title, in the manner provided in this chapter for

other cases. In the selection of a special jury, if any

of the 24 persons remaining on the list as provided

in § 4541 of this title, are unable to sit as jurors,

for any reason satisfactory to the Court, the Court

may in its discretion limit the challenges by each

party to not less than 3, If the panel is reduced,

however, to less than 18, the Court shall dismiss the

jury, unless the party requesting the special jury

waives sufficient of his challenges to permit a jury

to be selected. The costs of the special jury so dis-

missed in such case shall be borne by the party re-

questing the special jury.”

The procedure for requesting a special jury is also gov-

erned by Superior Court Rule 40(b) which provides:

“Application for a special jury shall be made at

or before the marking of the case for trial. A party

who has applied for a special jury may withdraw

such application and have the case tried by the

general jury, provided that the granting of such

withdrawal will not unduly prejudice or inconven-

ience an opposing party.”

In Nance v, Rees, Del.Supr., 161 A.2d 795 (1960), this

Court reviewed the history of special juries both in this

State and in England before 1776 and concluded that the

practice violated neither the Due Process Clause of the

Federal Constitution nor the right to trial by jury pro-

vision of the Delaware Constitution, Art. J § 4. We draw

liberally from that opinion in reviewing the history of

special juries in considering plaintiffs’ request that we

overrule the constitutional decision in Nance,

4la

A “special” jury* is not an American invention. The

special jury was well known in English common law and

one scholar has traced it back to the 14th Century.**

Thayer, The Jury and Its Development, 5 Harv. L. Rev.

295 (1889). Similarly, the special jury concept is firmly

rooted in the history of Delaware law and practice. For

example: “struck” juries are noted in several of Dela-

ware’s oldest reported cases decided shortly after the

American Revolution; see Burton’s Lessee v, Prettyman,

Del.Supr., 1 Del. Cas. 11 (1798); Newbold’s Lessee v.

Stokley, Del.Supr., 1 Del. Cas, 10 (1798); and Polk’s

Lessee v. Ross, Del. Com, Pl., 1 Del, Cas. 40 (1794).*

The procedure for selecting a special jury has also been

discussed by Delaware Courts in more recent times, See

Robelen Piano Co, v, DiFonzo, Del.Super., 172 A.2d 568

(1961); Sharpe v. Thompson, Del.Super., 147 A.2d 649

(1958); and O’Mallie v. Harlan & Hollingsworth, Del.

Super., 99 A, 428 (1916).** In sum, the special jury as

an institution is firmly established in Delaware law and

practice and its constitutionality has been upheld. Nance

v. Rees, supra.

* A special jury is also commonly referred to as “Blue ribbon” or

“struck” jury. See 47 Am. Jur, 2d Jury §§ 153, 164; Luneburg &

Nordenberg, Specially Qualified Juries and Expert Non Jury Tri-

bunals: Alternatives for Coping With the Complexities of Modern

Civil Litigation. 67 Va, L, Rev, 887 (1981),

** Special juries are also discussed by Blackstone, See III Black-

stone's Commentaries § 357 (Sharswood Ed.)

* In addition to early Delaware decisional law, the practice is dis-

cussed in Rule 17 of the Supreme Court promulgated in 1790 (1

Del, Cas, XL) and in 4 Del, Lawa c, CXX, p, 822 (1810) (entitled,

An Act for Regulating the Trial of Causes by Special Juries), It

should be noted that under the Delaware Constitutions of 1776 and

1792, the Supreme Court was a Court of original jurisdiction, simi-

lar to the present Superior Court,

** For a discussion of past Delaware procedure with respect to

requesting a special jury, see 1 Wooley, On Delaware Practice,

§ 561, pp. 402, 408 (1906),

42a

In this case, plaintiffs contend that the Special Jury

Statute, as applied, violates the Due Process and Equal

Protection Clauses of the Fourteenth Amendment in that

it fails to provide objective criteria for selection of the

pool from which the special jury was drawn, and that

the Prothonotary arbitrarily excluded certain identifiable

groups (especially women and young people) from the

pool; thus, say plaintiffs, the list did not represent a

fair cross section of the community. Second, plaintiffs

argue that the Statute (and the ruling in Nance v. Rees,

supra) must be reexamined in light of the enactment of

10 Del.C. ch. 45 which, in essence, provides that litigants

in Delaware Courts are entitled to grand and petit

juries selected at random so that a jury will represent

a fair cross section of the county in which the court

convenes.

Sikorsky argues that the constitutionality of special

juries has been upheld by the Supreme Court of the

United States and by this Court; that the amendment to

the Delaware Code is applicable only to petit and grand

juries and not to special juries, and that the Special Jury

Statute and the procedure were fuir to all parties.

We first consider the constitutional issue.

During the last Century, the United States Supreme

Court has considered many challenges to Federal and

state grand and petit jury selection practices. Generally,

such challenges were based upon allegations that the

selection practices purposefully and intentionally ex-

cluded a certain group of qualified jurors and, conse-

quently, the jury panel did not represent a fair cross

section of the community. Those challenges have been

brought under: the Sixth Amendment (right to a speedy

and public trial in criminal] actions before an impartial

43a

jury), see e.g. Duren v. Missouri, 439 U.S. 357, 99 S.Ct.

664 (1979), and Taylor v. Louisiana, 419 U.S. 522, 95

S.Ct. 692 (1975); the Fifth Amendment (right to indict-

ment by a grand jury in Federal felony actions, see e.g.,

Peters v. Kiff, 407 U.S. 498, 92 S.Ct. 2163 (1972);

Castenada v. Partida, 480 U.S. 482, 97 S.Ct. 1272 (1977)

(Powell, dissenting opinion); and the Due Process and

Equal Protection Clauses of the Fourteenth Amendment,

see e.g., Alexander v. Louisiana, 405 U.S. 625; 92 S.Ct.

1221 (1972), and Aikens v. Texas, 325 U.S. 398, 66

S.Ct. 1276 (1945).

While the decisions were grounded upon different con-

stitutional bases, the Supreme Court has made certain

broad observations concerning the American jury sys-

tem. Thus, the Court,

“{hjas unambiguously decided that the American

concept of jury trial contemplates a jury drawn from

a fair cross section of the community. A unanimous

Court stated in Smith v. Texas ... ‘(i]t is part of

the established tradition in the use of juries as

instruments of public justice that the jury be a body

truly representative of the community.’ ”

Taylor v. Louisiana, 95 S.Ct. at 696. And the Court has

also stated that,

“(t]he American tradition of trial by jury, consid-

ered in connection with either criminal or civil pro-

ceedings necessarily contemplates an impartial jury

drawn from a cross section of the community.”

Thiel v. Southern Pacific R.R., 328 U.S. 217, 66 S.Ct.

984, 985 (1946). And,

“folur notions of what a proper jury is have de-

veloped in harmony with our basic concepts of a

democratic society and a representative government.”

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 472

(1942).

44a

The absence of any cognizable or identifiable group

from the jury or jury pool, however, does not offend the

Constitution unless it is the result of systematic exclu-

sion of that group, Apodaca v. Oregon, 406 U.S, 404, 92

S.Ct. 1628 (1972) (J. White, plurality opinion) ; Thiel,

supra, 66 S.Ct. at 985, or purposeful discrimination.

City of Mobile v. Boulden, US. , 100 8.Ct. 1490,

1505 n.24 (1980); Akins v. Texas, 325 U.S. 398, 65

8.Ct. 1276 (1945).

In addition to challenges to petit and grand jury selec-

tion practices, the Court on several occasions has ex-

amined state special jury statutes to determine constitu-

tionality and, on each occasion, has upheld constitution-

ality in a criminal context. See Moore v. New York, 333

U.S. 565, 68 S.Ct. 705 (1948); Fay v. New York, 332

U.S. 261, 67 S.Ct. 1613 (1947), and Brown v, New

Jersey, 175 U.S. 172, 20 S.Ct. 77 (1899).

It is not clear that the standards applied in the cited

cases are particularly helpful in the resolution of this

case because, with one exception, each case involved a

challenge to jury selection procedures by a criminal

defendant.” The one Supreme Court case dealing specifi-

cally with a challenge to a civil jury was decided, not

*It should be noted that the Supreme Court has heard and de-

cided two class action civil suits brought by persons who alleged

that state jury selection procedures unconstitutionally excluded

them from grand and petit jury service and from service on the

County Board of Education (because the Board was selected by the

grand jury). Carter v. Jury Comm'rs of Green Co., 396 U.S. 320,

90 8. Ct. 518 (1970); Turner v. Fouc,.., 396 U.S. 346, 90 S. Ct. 532

(1970). Although not specifically an attack on the selection of a

civil jury, arguably that was an attack on the procedure for select-

ing civil and criminal juries. In Carter, the Court found a constitu-

tional right that the source of the jury selection list reasonably

reflect “a cross section of the population suitable in character and

intelligence for that civil duty.” 90 S. Ct. at 525.

45a

on constitutional grounds, but upon the supervisory

power of the Court over the administration of justice in

the Federal System. Thiel v. Southern Pacific R.R.,

supra. Moreover, cases based upon the Fifth and Sev-

enth Amendments do not apply here because those

Amendments have not been held applicable to the States

under the Fourteenth Amendment (and the Fifth

Amendment right to a Grand Jury is clearly not ap-

plicable in a civil case). See Peters v. Kiff, 407 U.S. 493,

92 S.Ct. 2163 (1972) (J. Marshall plurality) ; McLancon

v. McKeithen, 345 F.Supp. 1025, E.D. La. (1972), aff’d

sub nom Davis v. Edwards, 409 U.S. 1098, 98 S.Ct. 908

(1973). Furthermore, it is not clear that the same Due

Process and Equal Protection standards applicable to jury

selection in a criminal trial would be applicable in a

civil trial. Luneberg v. Nordenberg, supra at 922-926."

And the most recent Supreme Court case upholding a

state special jury selection procedure in a criminal con-

text is more than thirty years old, and its validity today,

in light of recent cases, is questionable.**

Even assuming, for the sake of argument, that these

standards are applicable in this context, we doubt that

plaintiffs have met their burden of proving what they

argue, that is, the intentional, purposeful and systematic

exclusion of women, and other identifiable groups, from

"The Supreme Court has stated that the reasons for trial by

jury in a criminal context and in a civil context are different. For

example, in Colgrove v. Battin, 413 U.S. 149, 98 S. Ct. 2448 (1973),

the Court stated that the purpose of trial by jury in a criminal

case is to prevent oppression by the government, and in a criminal

and civil case to assure fair and equitable resolution of factual

issues.

** For example: In Fay v. New York, supra, the Court did not

find a constitutional problem with selecting only those women who

had volunteered or whose names had been submitted by the League

of Women Voters. Cf. Duren v. Missouri, supra.

46a

the special jury pool. They rely only on statistical com-

putations which show that the population of New Castle

County was approximately 53% female, that the jury

pool was only 33.9% female, that the jury in this case

was 16% female, and that the youngest member of this

special jury panel was 37. Such figures may be suspect

but that does not necessarily prove intentional and sys-

tematic exclusion. It is well settled that a criminal de-

fendant does not have a constitutional right to propor-

tional representation of any particular group on the

jury list or on the jury which tries him; he has only

a right not to have any group purposefully or systemati-

cally excluded. See Taylor v. Louisiana, supra, 95 S.Ct.

at 702; Cassel v. Texas, 339 U.S. 282, 70 S.Ct. 629

(1950). In light of the conclusion which follows, how-

ever, we need not determine whether such exclusion oc-

curred.

Whether or not systematic exclusion of women (or any

other particular group) occurred in this case, the poten-

tial for unfair and discriminatory jury selection practices

is present in the present special jury system and it

should not be permitted to continue. Neither the Statute

nor the Rule states guidelines or criteria to be followed

in obtaining the master list or pool of special jurors and,

here, indeed, the Prothonotary was unable to articulate

the juror qualifications or criteria which were used by

his offic’ to assemble the special jury master list before

October 1980. Consequently, there is no way to deter-

mine whether the selection process used was non-

discriminatory and provided a pool that reflected a fair

cross section of the community.

As a starting point for the selection of special juries

in Delaware, we recognize that the American tradition of

trial by jury “contemplates an impartial jury drawn

from a cross section of the community.” Thiel, supra,

66 S.Ct. at 985. That policy was adopted by Delaware

47a

when the General Assembly enacted 10 Del.C. § 4501

which states that, “[i]t is the policy of the State that all

litigants in state courts entitled to trial by jury shall

have the right to grand and petit juries selected at ran-

dom from a fair cross section of the county wherein the

court convenes.” Furthermore, 10 Del.C. § 4503 prohibits

the exclusion of a person from service as a grand or

petit juror “on account of race, color, religion, sex, na-

tional origin or economic status.”

We are satisfied that the Legislature clearly intended

to preserve the special jury practice when it did not

repeal the statutory authority for it at the time when a

broad reform of the “trial by jury” Statute was under-

taken in 1976. We have already referred to the long

history of the special jury practice in Delaware and,

when properly selected, the practice has much to com-

mend it.” See Note: The Case for Special Juries in

Complex Civil Litigation, 89 Yale L. Rev. 1155 (1980) ;

Luneburg v. Nordenberg, supra.

Historically, the Supreme Court has shown a great

deal of deference to the states in the establishment of

juror qualifications and selection procedures. Carter v.

Jury Commr’s, supra; Brown v. New Jersey, 175 U.S.

172, 20 S.Ct. 77 (1899); Jugiro v. Brush, 140 U.S. 291,

11 S.Ct. 770 (1891). For example, the Court has stated,

“Our holding does not augur or authorize the

fashioning of detailed jury selection codes by federal

courts. The fair cross-section principle must have

much leeway in application. The States remain free

to prescribe relevant qualifications for their jurors

and to provide reasonable exemptions so long as it

* The special jury practice has not escaped criticism. See Nance

v. Rees, supra, 161 A.2d at 801; Robelen v. DiFonzo, 172 A.2d at

571. See also the vigorous dissents in Fay v. New York, supra, and

Murphy v. New York, supra,

48a

may be fairly said that the jury lists or panels are

representative of the community.”

Taylor v. Louisiana, 95 §.Ct. at 701.

We are, then, at this point: The special jury practice

has long been followed in Delaware, the General Assem-

bly has never repealed the Statute authorizing it (in spite

of judicial criticism), under proper management the prac-

tice may be useful in the administration of justice, and

there are, as presently construed, no constitutional pro-

visions which prevent it. But the present practice may

not produce a jury pool which is representative of the

community and/or which is consistent with the public

policy announced in 10 Del.C. § 4501.

This Court has the power to supervise the administra-

tion of justice in Delaware and to promulgate rules of

procedure. State v. Terry, Del.Supr., 148 A.2d 102

(1959); Del.Const., Art. IV, §18. Pursuant to that

power, we may require that arbitrary or potentially dis-

criminatory court procedures and practices be changed.

Exercising such power, we direct the Superior Court to

undertake the delicate and difficult task of drafting a

Rule of Court stating criteria and guidelines for the

selection of special juries.

In setting forth the qualifications and standards for

juror qualification selection procedures, the Superior

Court should carefully consider the competing policy

goals, i.e., to provide intelligent, educated and competent

jurors for the adjudicauon of difficult and complex cases,

yet insuring, as far as possible, that the jury represents

a fair cross selection of the community and does not dis-

criminate on the basis of race, color, religion, sex, na-

tional origin, or economic status. See 10 Del.C. § 4503;

ABA Standards Relating to Trial by Jury §2.1 (ap-

proved draft 1968). Without limiting the discretion of

the Superior Court, we suggest that the Rule provide for

the random selection of jurors and for selections from

49a

the random pool based on specified criteria including, but

not limited to, age, intelligence and education, and to the

extent deemed to be legally permissible, on occupation

and/or special skills. For example, compare Carter v.

Jury Comm’rs of Green Co., supra, wherein the Court

stated:

“The states remain free to confine the selection to

citizens, to persons meeting specified qualifications of

age and educational attainment, and to those pos-

sessing good intelligence, sound judgment, and fair

character.”

90 S.Ct. at 525.

The Superior Court is directed to submit a proposed

Rule to this Court within sixty days from the date of

this Opinion. Until the Rule is approved and the selec-

tion process is in place, the Court shall not schedule any

trial by special jury.

Affirmed in part, reversed and remanded for proceed-

ings consistent herewith.

50a

THE SUPREME COURT

OF THE STATE OF DELAWARE

MANDATE

TO THE HONORABLE THE JUDGES OF The Su-

perior Court of the State of Delaware in and for New

Castle County:

GREETING:

WHEREAS, before you or some of you in a cause en-

titled as follows:

1441 C, A. 1976

LILLIAN M. HAAS, et al.,

Vv.

UNITED TECHNOLOGIES CORPORATION, et al.

a certain judgment or order was entered on the 6th day

of April 1981, to which reference is hereby made; and

WHEREAS, by appropriate proceedings the said cause

was duly appealed to this Court, and after hearing has

been finally determined, as appears from the opinion of

this Court filed in the cause on August 25 1982, a certi-

fied copy of which is attached hereto;

ON CONSIDERATION WHEREOF IT IS ORDERED

AND ADJUDGED that the said judgment or order be

and it is hereby affirmed.

WITNESS the Honorable D. L. Herrmann, our Chief

Justice, at Dover, the First day of January, A.D. 19—

Issued September 27, 1982

Supreme Court No. 114, 1981

/s/ T. Edgar Townsend, Jr.

Clerk of the Supreme Court.

5la

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No, 114, 1981

LILLIAN M. HAAS, et al.,

Plaintiffs Below, Appellants,

UNITED TECHNOLOGIES CORPORATION,

a Delaware Corporation,

Defendant Below, Appellee.

Submitted: September 9, 1982

Decided: September 27, 1982

Before MCNEILLY, QUILLEN, HORSEY, and MOorE,

Justices, constituting the Court en banc

ORDER

This 27th day of September 1982,

Upon Motion of Plaintiffs Below, Appellants for re-

argument pursuant to Supreme Court Rule 18 of the

Court’s Opinion dated August 25, 1982, the Motion be

and is hereby DENIED.

By THE CouRT:

/s/ John J. MeNeilly

Justice

52a

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No. 114, 1981

LILLIAN M. HAAS, Personal Representative of the Estate

of and parent and next of kin of John V. Cataldi,

deceased; CHERYL RUFF, personal representative of the

Estate of and widow of and next of kin of Edwin J.

Ruff, Jr., deceased; BeTry LOU SCHLECTIC BAHE, as

guardian and next friend of Ginger Schlectic, minor child

of Ralph C. Schlectic, deceased; and JULIA KATHLEEN

MCDONALD LAMASCUS, personal representative of the

Estate of and widow of and next of kin of Mark

Lamascus, deceased; and JULIA KATHLEEN MCDONALD

LAMASCUS as guardian and next friend of Sarah Laine

Lamascus and Mark David Lamascus, minor children

of Mark Lamascus, deceased,

Plaintiffs-Below, Appellants,

UNITED TECHNOLOGIES CORPORATION,

a Delaware corporation,

Defendant-Below, Appellee.

NOTICE OF APPEAL TO THE

UNITED STATES SUPREME COURT

TO: Mr. T. Edgar Townsend, Jr. Clerk

Supreme Court of Delaware

Supreme Court Building

Dover, Delaware 19901

Edmund N. Carpenter, II, Esquire

Allen M. Terrell, Jr., Esquire

Helen L. Winslow, Esquire

Richards, Layton & Finger

One Rodney Square

P. 0. Box 551

Wilmington, Delaware 19899

Notice is hereby given that Lillian M. Haas, Cheryl

Ruff, Betty Lou Schlectic Bahe, and Julia Kathleen

McDonald Lamascus, in their individual and representa-

tive capacities as above stated, Appellants herein. Plain-

tiffs Below, hereby appeal to the Supreme Court of the

United States of America from the final judgment of the

Supreme Court of the State of Delaware entered in this

action on September 27, 1982 affirming the judgment of

the Superior Court of the State of Delaware in Civil Ac-

tion No. 1441, 1976 denying Plaintiffs-Below, Appellants’

motion for a new trial by a decision dated March 17,

1981 and order dated April 6, 1981; and from the ver-

dict and judgment of the special jury on January 20,

1981; and from the decision dated November 26, 1980

denying Plaintiffs-Below, Appellants’ motion to prevent

impaneling of special jury.

This appeal is taken pursuant to 28 U.S.C. § 1257(2).

/s/ Arthur Inden

ARTHUR INDEN

/s/ Ben T. Castle

BEN T. CASTLE

/s/ Barry M. Willoughby

BARRY M. WILLOUGHBY

Young, Conaway, Stargatt & Taylor

1401 Market Tower

P. 0. Box 391

Wilmington, Delaware 19899

Attorneys for Plaintiffs-Below,

Appellants

FRANCIS A. FERRARA, Esq.

Kassab, Cherry, Curran & Archold

Media, Pennsylvania 19063

Of Counsel

Dated: December 15, 1982

54a

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No. 114, 1981

LILLIAN M. HAAS, Personal Representative of the Estate

of and parent and next of kin of John V. Cataldi,

deceased; CHERYL RUFF, personal representative of the

Estate of and widow of and next of kin of Edwin J.

Ruff, Jr., deceased; Berry Lou SCHLECTIC BAHE, a8

guardian and next friend of Ginger Schlectic, minor child

of Ralph C. Schlectic, deceased; and JULIA KATHLEEN

McDONALD LAMASCUS, personal representative of the

Estate of and widow of and next of kin of Mark

Lamascus, deceased; and JULIA KATHLEEN MCDONALD

LAMASCUS as guardian and next friend of Sarah Laine

Lamascus and Mark David Lamascus, minor children

of Mark Lamascus, deceased,

Plaintiffs-Below, Appellants,

Vv.

UNITED TECHNOLOGIES CORPORATION,

a Delaware corporation,

Defendant-Below, Appellee.

PROOF OF SERVICE

AND NOW, this 15th day of December, 1982, I hereby

certify that all parties required to be served have been

served copies of the foregoing Notice of Appeal and that

service was made on Appellee pursuant to United States

Supreme Court Rule 28.3, 28 U.S.C.A. by mailing three

copies via United States mail, with first-class postage

prepaid, to Appellee’s counsel of record: Edmund N.,

Carpenter, II, Esquire, Richards, Layton & Finger, One

55a

Rodney Square, P. O. Box 551, Wilmington, Delaware

19899.

/8/ Ben T. Castle

BEN T. CASTLE

Young, Conaway, Stargatt & Taylor

1401 Market Tower, P. 0. Box 391

Wilmington, Delaware 19899

Attorneys for Plaintiffs-Below,

Appellants

STATE OF DELAWARE)

) ss:

COUNTY OF KENT )

I, T. EDGAR TOWNSEND, JR., Clerk of the Supreme

Court of the State of Delaware, do hereby certify that

the foregoing are true and correct copies of the judg-

ment (mandate) entered by the Supreme Court of the

State of Delaware on September 27, 1982 and the Notice

of Appeal to the United States Supreme Court filed on

December 15, 1982 in Haas, et al. v. United Technologies,

No. 114, 1981 as the same remains on file and of record

in this Court.

IN WITNESS WHEREOF, I have set my hand and

affixed the Seal of the Supreme Court of the State of

Delaware at Dover, Delaware this 15th day of Decem-

ber, 1982.

/s/ T. Edgar Townsend, Jr.

T. EDGAR TOWNSEND, JR.

Clerk

Supreme Court of Delaware

56a

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No, 114, 1981

LILLIAN M. HAAS, et al.,

Plaintiffs Below, Appellants,

Vv.

— TECHOLOGIES CORPORATION,

a Delaware Corporation,

Defendant Below, Appellees.

MOTION OF PLAINTIFFS BELOW,

APPELLANTS FOR REARGUMENT,

PURSUANT TO SUPREME COURT RULE 18

OF THE COURT’S OPINION DATED AUGUST 25, 1982

Plaintiffs Below, Appellants (hereafter ‘“Plaintiffs’’),

by and through their undersigned counsel, respectfully

request the Court to grant reargument on its Opinion

dated August 25, 1982, which supersedes the Court’s

previous en banc Opinion dated March 15, 1982. In sup-

port of this motion Plaintiffs represent as follows.

I, PRELIMINARY

(a) The Court’s Opinion of August 25, 1982, indicates

on its cover page and in the first footnote that there was

a cross-appeal filed by United Technologies Corporation,

Defendant Below, Appellee (hereafter “Defendant’’), and

that this cross-appeal was from the denial of its motion

for a directed verdict with respect to certain issues.

Although the Defendant argued, and in fact devcted 40

pages of its answering brief to the point that it was

error for the Trial Court to deny its motion for a

directed verdict, no cross-appeal was ever taken.

(b) The Court’s Opinion of August 25, 1982 discusses

only the Cockpit BIM issue and the special jury issue.

57a

However, there were four other arguments advanced on

behalf of Plaintiffs, any one of which if credited would

require reversal of the judgment below. These arguments

were made at Pages 58 through 60 of Plaintiffs’ Opening

Brief and were rejected in the Court’s Opinion of

March 15, 1982 but are nowhere mentioned in the Opin-

ion of August 25, 1982.

(ec) More importantly, the Court’s Opinion of Au-

gust 25, 1982 creates the anomalous situation of accept-

ing the essential validity of the Plaintiffs’ two principal

arguments, i.e. the Cockpit BIM argument and the spe-

cial jury argument by two en banc opinions (a total of

five different justices), and yet unjustly fails to reverse

the judgment below and order a new trial. The anomaly

is even more curious, at least in the context of the Cock-

pit BIM issue, when the Court has decided in its most

recent Opinion that the jury (albeit a special jury) was

not confused by the Trial Court’s erroneous instruction

on this point, yet three justices of this Court apparently

experienced sufficient uncertainty to reverse themselves

after study of the issues presented over a period of ten

months, extensive briefing, and three oral arguments.

If, as this Court’s August 25, 1982 Opinion indicates,

the instruction was not so misleading as to deprive the

jury of its ability to “intelligently perform its duty in

returning a verdict”, Newman v. Swetland, Del. Supr.,

838 A.2d 560, 562 (1975) ; Storey v. Camper, Del. Supr.,

814 A.2d 187, 199 (1973); Wyatt v. Clendaniel, Del.

Supr., 320 A.2d 738 (1977), why then did four justices

of this Court unanimously agree in this Court’s

March 15, 1982 decision that the Cockpit BIM instruction

was erroneous and constituted reversible error? Yet,

after additional deliberation and further oral argument

before a differently constituted court that the Court re-

versed itself, finding that although the Cockpit BIM

instruction was “imprecise,” the Plaintiffs were not

thereby entitled to a new trial.

58a

This result is unfair and anomalous, particularly in

view of this Court’s failure to even mention its prior

holding and rationale on the Cockpit BIM issue [i.e.,

“The [Trial] Court’s instruction was erroneous because

it failed to distinguish between a warning system for

pre-flight or on-the-ground inspection and a system which

warns of a defect while the aircraft is in flight”. Opin-

ion of March 15, 1982 at pages 7-8], nor to explain how

it is that three justices of the current panel could at first

agree that the instruction was clear error, then reverse

themselves, and still conclude that the jurors with a few

hours’ deliberation somehow clearly understood and cor-

rectly applied the instruction.

(d) This Court specifically finds in its August 25,

1982 Opinion, as it did in its March 15, 1982 Opinion,

that the special jury procedure as applied in this case

was arbitrary, with representation of women and young

people “suspect,” and was so irrational that this Court

has prohibited the impanelling of future special juries

until new and fair selection procedures are developed.

Yet, at the same time the Court denies these Plaintiffs

a new trial even though their case was actually heard

under this (at a minimum) arbitrary and “potentially

discriminatory” system. The Court failed to consider

that, constitutional arguments aside, its supervisory

power provides ample authority for relief here.* And,

the August 25, 1982 Opinion likewise fails to address

Plaintiffs’ statutory argument that 10 Del. C. §§ 4501-

4503 applies to “all litigants” including cases involving

special juries and that the Jury Commissioners’ ad-

mitted failure to comply with the statute is, in and of

itself, ground for reversal. Finally, it is, at best, unusual

to rule that all future plaintiffs will be protected from

the arbitrary and potentially discriminatory system while

those who suffered from it and came to this Court for

relief will be turned away without a remedy.

* See Argument III, A, infra at pages 11-12.

59a

II. THE COCKPIT BIM ISSUE

Throughout the case Plaintiffs took the position that

the visual BIM warning system and the Cockpit BIM,

that is, in-flight, warning system were separate and dis-

tinct warning systems. They gave different warnings to

different personnel at different times, the in-flight warn-

ing of course being the far more crucial and effective

warning. This was clearly and concisely recognized by

the Corrt’s first Opinion of March 15, 1982. The De-

fendant itself treated the Cockpit BIM warning as sepa-

rate and distinct from the visual BIM in the litigation

(see, for instance, Defendant’s request for instruction

on Cockpit BIM which appears at Page A-80 of Plain-

tiffs’ Appendix). And Sikorsky treated the system as

separate in its internal technical documents (A-139-140).

Despite these facts, counsel for Defendant in the course

of oral argument on June 21, 1982, in response to a

direct inquiry from the Bench, asserted without any

equivocation that the Cockpit BIM and the visual BIM

were part and parcel of the same warning system.

This argument coincided with the sua sponte instruc-

tion that was given by the Trial Court lumping the

two warning systems together and thus _ prohibiting

independent consideration of the in-flight system. Because

this point is so crucial it bears repeating. The Trial

Court mentioned Cockpit BIM in only two places in the

following objected-to language:

“The Plaintiffs contend that the visual BIM warn-

ing system was inadequate because it did not incor-

porate any warning in the cockpit

if you find that the visual BIM system and applica-

ble manuals were adequate, you may not find Sikor-

sky liable for failure to install an indicator in the

cockpit.”

60a

Jury instructions are designed to provide ordinary lay-

men with a clear and accurate statement of the law they

are expected to apply in reaching a verdict. McPhee v.

Reichel, 461 F.2d 947 (3d Cir., 1972). There is only one,

erroneous, meaning that can be attached to the above-

quoted language, i.e., the jury was prohibited from even

considering the Cockpit BIM issue unless it first found

the visual BIM inadequate.

In inexplicably sharp contrast to the Opinion of

March 15, 1981, this Court’s Opinion of August 25, 1982

perpetuates the Trial Court’s error by stating:

“As is evident from the instruction, the Trial Court

also reminded the jury of plaintiffs’ contention on

the cockpit BIM question. In light of the instruc-

tions taken as a whole, it would not be fair or rea-

sonable to focus in on one passage of the charge and

stretch it into a basis for reversal * * * In our view

the instructions did not prohibit the jurors from

reaching the cockpit issue unless, as plaintiffs be-

lieve, they first ascertained that the visual BIM by

itself was inadequate.” (Page 15)

Undeniably, this particular language flatly contradicts

the instruction that the jury in fact was given. It also

stands in stark contrast to the Opinion written by Jus-

tice Duffy on March 15, 1982 in which he repeatedly dis-

tinguished between an on-the-ground inspection system

and an in-flight warning system and declared the

obvious:

“The [Trial] Court’s instruction was erroneous

because it failed to distinguish between a warning

system for pre-flight or on-the-ground inspection and

a system which warns of a defect while the aircraft

is in flight. We certainly do not mean to suggest

that an on-the-ground inspection system is inade-

quate as a matter of law if there is not an airborne

supplement. But we do say that, under the circum-

6la

stances of this case, the visual BIM system, which

may have given an adequate warning of a defect

while the helicopter was on the ground, was not nec-

essarily an adequate system for all purposes.

Clearly, while in flight the Sea Stallion was operat-

ing in an entirely different environment than it was

while on the ground when the wheels carry the

weight of the aircraft. But, in flight, as the main-

tenance manual states, the blades ‘provide the lift

necessary for flight’ and, implicitly, without such

lift, flight cannot be sustained. The test for an ade-

quate warning system for a blade defect under that

circumstance may present the jury with a different

question, if plaintiffs’ evidence was sufficient to raise

it.” (Pages 7-8 of Opinion dated March 15, 1982)

As Justice Duffy in effect held, a party is entitled

to have his theories of the case presented to the jury

by proper instruction if there is evidence to support

them. Blassingill v. Waterman S. S. Corp., 336 F.2d 367

(9th Cir., 1954). To now say that the special jury re-

fused to follow the Trial Court’s erroneous instruction

and in fact did consider the Cockpit BIM issue as a

separate issue, not only constitutes unlawyerlike specula-

tion on what the jury did, but also makes a mockery

of the special jury’s, or any jury’s, ability to follow

the Trial Court’s instructions. Indeed, the special jury

here even had a written copy of the instructions in hand

during the course of their deliberations.

This Court’s Opinion of August 25, 1982 proceeds to

override the erroneous Trial Court instruction, saying:

“* * * we stand convinced that the instructions did

not mislead nor withdraw that issue from the jury.

Any impreciseness in the one line of the jury charge

complained of was cured by the instructions viewed

as a whole and is not the basis for a reversal here.”

(Page 16)

62a

What the Court now labels euphemistically as one

“imprecise” line of the jury charge was one of only two

lines in the entire charge that referred to Cockpit BIM.

And both those lines were misleading and erroneous, even

based on the Defendant’s own requests for instructions

to the jury. Thus, much more than mere “impreciseness”

is involved. Instead, a critical theory of Plaintiffs’ case

was excised by the Trial Court’s wrong, sua sponte in-

struction.

This Court refers to the portion of the Trial Judge’s

instruction to which we make vigorous objection as being

a one-sentence “culprit”. The tenor of this remark and

the rest of the opinion seems to suggest that the Trial

Court’s instruction was inadvertently erroneous. This is

simply not the case. The Trial Court throughout treated

the Cockpit BIM warning system and the visual BIM

system as a single system. The Trial Judge never was

able to treat the two systems as separate and distinct

systems; consequently, his instruction to the jury treated

them as a single system with the resulting charge that

the jury could not possibly find Sikorsky liable on a

Cockpit BIM theory. For instance, in the course of one

of the prayer conferences Judge Balick said the fol-

lowing:

“T will instruct on the contention on Cockpit BIM,

but my plan is to do that in connection with the

contention on the effectiveness of the visual BIM

system. I don’t understand the Dorsey case to sup-

port the proposition for which it was argued, which

I understand to be that even if the jury finds that

visual BIM system was not defective, it can find

the defendant liable because it did not design a

Cockpit BIM system.” (B-313)

This Court’s opinion of August 25, 1982 has perpetu-

ated this fundamental error which stripped the Plaintiffs

63a

of one of their basic contentions. Apart from the in-

struction that was submitted by the Defendant treating

the visual BIM and the Cockpit BIM systems as separate

and distinct, and in contrast to what was said to this

Court in the course of oral argument, Sikorsky’s own

documents which are contained in the appellate record

illustrate the separate nature of these two warning sys-

tems. For instance, in a letter describing an engineering

change proposal (ECP) the assistant secretary of Sikor-

sky Aircraft wrote on August 2, 1968:

«“* * * this ECP recommends the incorporation of a

Cockpit BIM warning system in all HH-53B/T heli-

copters. The proposed system would provide an in-

flight indication of main rotor blade spar integrity,

which under long-range flight operations will pro-

vide enhanced mission reliability, offer an increased

confidence level by the air crew and allow corrective

action should the ‘blade pressure’ light become illu-

minated.” (A-139)

And again in a memo dated November 11, 1974, prior to

the accident in this case, a Sikorsky representative, cor-

responding with no less than 16 other Sikorsky engineer-

ing and technical personnel, refers to the “incorporation

of Cockpit BIM,” states that it would provide informa-

tion

“that pilots have not had before. In the past, BIM

information was available only on the ground before

or after a flight,”

and further says, “With the advent of Cockpit BIM,

however, pilots now know that blade pressure has been

lost while they are in the midst of a mission.” (A-140)

And even more graphically, in the chart that one of

the Sikorsky officers used to explain the advantages of

Cockpit BIM to a gathering of commercial helicopter rep-

64a

resentatives, the Sikorsky document, obviously carefully

prepared, described the following:

“VISUAL BIM—NO IN FLIGHT MONITORING”

“COCKPIT BIM—CONTINUOUS IN FLIGHT

MONITORING” (A-320)

The decision by this Court to endorse the error that

was committed by the Trial Court may, we recognize,

eventually stand as the final word in this litigation.

However, if that were to occur it would stand the facts

of this case on their head because the record shows that

the Defendant clearly considered these critical warnings

to be separate and distinct.* To now uphold the Trial

Court’s sua sponte instruction would be to exalt judicial

error** regardless of the cost to the victims of the crash.

It would also be out of step with this Court’s recent

decision in Hochberg v. Keiser, Del. Supr., 447 A.2d 425

(1982), in which a jury verdict for the defendant in an

auto collision case was reversed because of an instruction

(which appears to be comparably innocuous) that was

“general in nature”’:

“In short, asuming contributory negligence should be

charged at all, this is a case which cannot be fairly

given to the jury on an instruction on contributory

* Although it nowhere appears in the Court's latest decision, each

of the prior visual BIM warnings was heeded and responded to by

Marine Corps maintenance personnel. That, in hindsight, it ap-

pears the maintenance personnel, following the Sikorsky-prescribed

troubleshooting procedure, failed to catch the real cause of the blade

pressure loss is no reason to conclude that the helicopter was A-1

in terms of providing warnings of blade pressure loss, especially

when the aircraft was in flight.

** This Court has frequently held that even if otherwise correct,

a trial court opinion may be reversed if the court fails to state the

grounds for its decision. Husband M, v. Wife D., Del. Supr., 399

A.2d 847 (1979). Yet, in the case at bar the Court has found the

Trial Court’s instruction, at least, “imprecise” and the jury panel

drawn by an “arbitrary and potentially discriminatory” process and

not granted Plaintiffs relief.

65a

negligence which is general in nature and not related

to the facts of this case. Beck v. Haley, Del. Spur.,

239 A.2d 699, 702 (1968)” 447 A.2d at 427

This Court’s Opinion further indicates that “it is diffi-

cult for this Court to believe that the jury did not con-

sider the Cockpit BIM issue”. While that may or may not

be true, it is sheer sophistry to suggest that they could

have considered it other than as directed by the Trial

Court. For this Court to assume (contrary to the ver-

dict) that the special jury deliberately overrode or

ignored the Court’s instruction on this key point is to

say that this special jury violated its oath to faithfully

apply the facts to the law as given it by the Trial Court.

Before this, it has always been well-established that this

Court, from its appellate vantage point, will not specu-

late on a jury’s deliberations, but, instead, will presume

that the jury acted as instructed by the Trial Court.

See, e.g., Yaskowski v. Wallis, Del. Supr., 205 A.2d 825,

827 (1964) wherein this Court stated: “Since there is

no way of knowing what effect the [erroneous] instruc-

tion had upon the amount of the verdict, a new trial must

be granted... .” Beggs v. Wilson, Del. Supr., 272 A.2d

718, 715 (1970); Newman v. Swetland, Del. Supr., 338

A.2d 560, 561-62 (1975).

In addition, we must respectfully point out that counsel

were advised prior to summation about the details of

the Trial Court’s charge and were specifically enjoined

from arguing that the helicopter was defective for failure

to incorporate as a separate warning system the in-flight

or Cockpit BIM warning. For this Court, in effect to

say that the special jury ignored and refused to follow

the Trial Court’s instruction on a key point in the case

and to further hold that the instructions were overridden

(by the jury) as a result of testimony that was intro-

duced in the course of the trial but which could not be

66a

argued consistent with Plaintiffs’ theory of the case,

constitutes rather explicit judicial cynicism about the

function of a jury. It is ironic, indeed, that the Delaware

Supreme Court takes that tack in the same Opinion that

extols the virtues of special juries.

III. THE SPECIAL JURY ISSUE

While the Court’s Opinion of August 25, 1982 closely

parallels the discussion of special juries which appeared

in the Opinion of March 15, 1982, it declines to state

whether or not the frailties and inadequacies of the spe-

cial jury system as put into practice in this State con-

stitute a ground for reversal in this case. Nevertheless,

the Court goes to considerable lengths to criticize the

special jury procedure as applied heretofore and specifi-

cally to direct the Superior Court not to schedule any

trials by special jury until an acceptable method of selec-

tion is put into place. Given that the Plaintiffs in this

case had their very substantial interests adversely af-

fected by a special jury selected in what can only be de-

scribed as a wholly arbitrary and shabby process, it is

difficult to articulate why these Plaintiffs should be sad-

dled with the result of a poorly selected, male-dominated,

defense-oriented special jury, but no other plaintiffs will

have to suffer that same injustice.

First, even putting aside arguments as to the constitu-

tionality, either on its face or as applied, of the special

jury system, this Court’s supervisory power provides am-

p'e authority to reverse and remand this case for a new

trial. Thus, in Thiel v. Southern Pacific Railroad,* 328

U.S. 217, the U.S. Supreme Court held that:

«“* * * we cannot sanction the method by which the

jury panel was formed in this case. The trial court

* Thiel, supra, is a civil action for damages for wrongful death

of the plaintiff’s decedent.

67a

should have granted petitioner’s motion to strike the

panel. That conclusion required us to reverse the

judgment below in the exercise of cur power of

supervision over the administration of justice in the

Federal courts. See McNabb v. United States, 318

U.S. 332, 340, 87 L.Ed. 819, 823, 63 S.Ct. 608.” **

Moreover, to grant Plaintiffs’ relief this Court need

not consider what effect the improperly drawn panel had

on the case since it is:

“* * * unnecessary to determine whether the peti-

tioner was in any way prejudiced by the wrongful

exclusion or whether he was one of the excluded

class. See Glasser v. United States, 315 U.S. 60,

86 L.Ed. 680, 62 S.Ct. 457, supra; Walter v. County

Bd., 171 Minn. 177, 2138 N.W. 545, 52 ALR 916. It

is likewise immaterial that the jury which actually

decided the factual issue in the case was found to

contain at least five members of the laboring class.

The evil lies in the admitted wholesale exclusions of

a large class of wage earners in disregard of the

high standards of jury selection. To reassert those

standards, to guard against the subtle undermining

of the jury system, requires a new trial by a jury

drawn from a panel properly and fairly chosen.”

Thiel, supra at 225.

Second, the record amply demonstrates intentional and

purposeful discrimination. This Court at Page 25 of its

Opinion states:

we conclude that plaintiffs have not made

out a case for unconstitutional exclusion of identifi-

able groups from the special jury. The figures sub-

mitted by plaintiffs may be suspect but do not show

intentional and systematic exclusion.”

** On two occasions prior to the impanelling of the jury in this

case, Plaintiffs moved to prohibit impanelling of the special jury.

68a

How then, does this Court account for this uncon-

tradicted statement by the Superior Court Administra-

tor:

“10. The Jury Commissioners elected to use edu-

cation and age as their criteria. They selected per-

sons with more than 12 years of formal education

and intentionally avoided selecting persons either in

their twenties or seventies.” (Emphasis added)

(A-174; A-175)

This intentional exclusion was inaugurated by the

Jury Commissioners in October of 1980, and was in effect

at the time the special jury in this case was selected for

the trial to commence in December of 1980. There is no

blinking the fact that there was intentional exclusion

of an identifiable group of persons, that this intentional

exclusion bore absolutely no relationship to the ability

of a person to decide so-called technical or complex issues

(and this was even a subject of specific inquiry from the

Bench in the course of oral argument on December 18,

1981, with the defense arguing that it was no different

than setting age requirements for U.S. Senators and

Presidents). Such a system at a minimum smacks of

unfairness, especially in a situation in which all of

the decedents and their survivors are young. It bears

repeating that the youngest juror who sat on this case

was 37 years old.

This Court’s action in declaring that special juries

shall not be implemented until new rules are drafted

by the Superior Court in order to prevent the “poten-

tial for abuse” from the arbitrary system applied in this

case, yet simultaneously denying these Plaintiffs a new

trial, is an unusual “purely” prospective application of a

judicial decision. At common law, all decisions were

given retroactive application. Linkletter v. Walker, 381

U.S. 618, 622, 14 L.Ed. 601, 604 (1967) (and authori-

ties therein). The U.S. Supreme Court has declared,

69a

however, that in extraordinary circumstances decisions

may be given either a limited retroactive effect or applied

only prospectively. Linkletter, supra; see also Stovall v.

Denno, 388 U.S. 2938, 18 L.Ed. 2d 1199 (1967).

In determining whether the Court will apply a rule

retroactively, give it a limited retroactive effect, prospec-

tively, or purely prospectively (i.e., not including the

case before it), the U.S. Supreme Court has held that

it “weigh the merits and demerits in each case by look-

ing to the prior history of the rule in question, its pur-

pose and effect, and whether retroactive application will

further or retard its operation”. Linkletter, supra at 14

L.Ed. 608. See also Annotation Supreme Court Decision

—Retroactivity, 22 L.Ed 821, 832-839.

In the present case it is respectfully submitted that a

purely prospective application is inappropriate. First,

the purpose of this Court’s Opinion in directing the lower

court to draft guidelines for the special jury is to pre-

vent an “arbitrary or potentially discriminatory” pro-

cedure, to make the special jury practice comport with

constitutional principles, and to insure a fair cross-

section of the community. Here, it is undeniable that

these Plaintiffs’ case was tried by a jury panel drawn

through an arbitrary process and that they, more than

anyone else, suffered from the system used. Thus, at the

least, this case should be included in the relief given by

the Court since the purpose of the new rules announced

is to prevent the very injustices suffered by these Plain-

tiffs from being repeated. Since it is these Plaintiffs

who were the parties to bring the improper special jury

procedure to the Court’s attention and whose case was

actually heard by the improper system, it stands to rea-

son that the purpose of this Court’s decision can only be

fulfilled by including them in the relief.

Moreover, the effect on the administration of justice

in applying the new rules to the current case would be

minimal. Since this is a civil matter and there are no

70a

other pending special jury actions, only this case will be

affected and the courts will not thereby be required to re-

examine numerous other judgments or pending cases (as

may be the case in the criminal field). Accordingly, we

respectfully submit that this Court’s purely prospective

application of its ruling in this case is not appropriate.

Indeed, we submit, to apply this decision in a purely pro-

spective fashion is unfair to the point of constituting a

denial of Plaintiffs’ rights to due process and equal pro-

tection of the laws guaranteed by the U.S. Constitution,

Amendment XIV. If, as this Court has on two occasions

declared, the jury panel here were the product of an

arbitrary and potentially discriminatory process which

required the exercise of this Court’s supervisory powers,

then surely, like Thiel, supra, these Plaintiffs should be

included in the remedy.

This Court’s August 25, 1982 Opinion further fails to

address or resolve Plaintiffs’ contention that the special

jury drawn here violates 10 Del. C. §§ 4501-4503 which

provides “that all litigants in State Courts entitled to

trial by jury shall have the right to grand and petit

juries selected at random from a fair cross-section of the

county wherein the Court convenes’. While the Court’s

Opinion points out that the statute embodies the strong

public policy of requiring jurors to represent a fair cross-

section of our State and admits that “the present [special

jury] practice may not produce a jury pool that is repre-

sentative of the community or consistent with the public

policy announced in 10 Del. C. §§ 4501 and 4503”, the

Court does not say whether the Jury Commissioners ad-

mitted failure to follow the mandate of the statutes is

grounds for reversal.

As pointed out in our opening brief at pages 38-41 and

our reply brief at pages 18-20, we respectfully submit

that in enacting 10 Del. C. §§ 4501-4503 the General As-

Tla

sembly either impliedly repealed the special jury statute

or, at the very least, intended that the special jury stat-

ute be subject to the same requirements for fair repre-

sentation as other juries. Indeed, 10 Del. C. §§ 4501

states in sweeping terms that “all litigants . . . shall

have the right to grand and petit juries selected at ran-

dom from a fair cross-section of the country”. As pointed

out in our reply brief at page 19 this Court has said that

“all” plainly means “all” unless special exceptions are

made. Robert C. S. v. Barbara J. S., Del. Supr., No. 211,

1980 (August 18, 1980). And, this Court’s Opinion ex-

plicitly states that the Court is “satisfied that the legis-

lature intended to preserve the special jury practice when

it did not repeal the statutory authority for it at the time

that the reforms [of 10 Del. C. §§ 450!.4503] were

made’. It follows that the legislature must also have had

the special jury statute in mind in 10 Del. C. § 4501

when it chose the words “all litigants”. Thus, because

10 Del. C. § 4501 is mandatory (i.e., litigants shall have

the right) and the statute plainly includes “all litigants”,

including these Plaintiffs, reversal is required in view of

the Jury Commissioners’ admitted failure to comply with

the fair cross-section requirements of the statute. Ac-

cordingly, regardless of the constitutional issues,* Plain-

tiffs are entitled to a new trial on statutory grounds,

based upon the admitted statutory violation of 10 Del. C.

§§ 4501-4503.

We submit that simple concepts of equity and fairness

require that a new trial be granted to these Plaintiffs

where this Court has declared, on two occasions, that the

special jury panel selected here was by an arbitrary and

* Since 10 Del. C. §§ 4501-4503 speaks in sweeping terms, it was

plainly intended to provide more protection than the minimal con-

stitutional protection afforded by requirements of due process or

equal protection. Indeed, to hold otherwise would be to reduce the

statute to a nullity since it would thereby be redundant to the

previously existing constitutional requirements.

12a

potentially discriminatory process, from 4 pool of jurors

which, at the very least, we may “suspect” had been the

product of intentional and purposeful discrimination, and

which this Court has emphatically declared cannot con-

tinue in the future.

This Court’s proclamation that it “cannot permit that

potential [of abuse and discrimination] from ever being

realized” has, we suggest with candid deference, a hollow

ring when it sits idly by and allows these Plaintiffs who

suffered from that abuse and who came to it for relief

to go without remedy while those who follow shall (may)

not.

We can only remind this Court that as the highest court

in this State, it is charged with the duty of leading the

bench and bar to the fair, practical, and equitable ad-

ministration of the judicial process. Surely, to deny these

Plaintiffs a retrial before a fairly selected jury under

appropriate instructions when the Court itself has de-

clared that the system which tried their case was “arbi-

trary and potentially discriminatory” and the jury in-

structions, at least, “imprecise,” fosters, regrettably, a

discouraging and cynical view of the judicial process.

Respectfully submitted,

/s/ Arthur Inden

ARTHUR INDEN

/s/ Ben T. Castle

BEN T. CASTLE

/s/ Craig A. Karsnitz

CRAIG A. KARSNITZ

73a

/s/ Barry M. Willoughby

BARRY M. WILLOUGHBY

Young, Conaway, Stargatt & Taylor

1401 Market Tower

P.O. Box 391

Wilmington, Delaware 19899

Attorneys for Plaintiffs Below,

Appellants

Dated: September 9, 1982

74a

SUPREME COURT OF DELAWARE

MEMORANDUM

From: Justice McNeilly

To:

Re: Lillian M. Haas, Et al.

United Technologies Corporation, Et al.

No. 114, 1981

Please substitute the amended pages 25 and 26 in the

Opinion of this Court in captioned matter dated August

25, 1982.

/s/ Justice McNeilly

75a

Haas, Et al. v. United Technologies Corporation, Et al.,

No. 114, 1981 Opinion decided August 25, 1982—Revised

pages 25 and 26 Sept. 24, 1982

To support their contention of intentional, purposeful,

arbitrary and systematic exclusion of women and young

people from the jury pool, plaintiffs rely on statistics

which show that the population of New Castle County

was 53% female, that the jury pool was only 33.9%

female, that the jury panel in this case was only 16%

female, and that the youngest member of this struck jury

was 37. Assuming, for the sake of argument, that the

standards discussed above are applicable to this civil spe-

cial jury case, we conclude that plaintiffs have not made

out a case for unconstitutional exclusion of identifiable

groups from the special jury. The figures submitted by

plaintiffs may be suspect but do not show intentional and

systematic exclusion. And as we stressed earlier, a crimi-

nal defendant is not constitutionally entitled to propor-

tional representation of any particular group on the jury

or in the venire from which it is drawn. Only purposeful

or intentional exclusion is barred. See Taylor v. Loui-

siana, 419 U.S. at 5389; Cassel v. Texas, 339 U.S. 282, 289-

90, 70 S.Ct. 629, 683 (1950) ; Neal v. Delaware, 103 U.S.

370, 394 (1880). Hence, we hold that plaintiffs have not

established that the special jury statute, as applied in this

case, was in violation of their constitutional rights.

Nevertheless the procedure for selecting special juries

in Delaware has the potential for abuse and this Court

cannot permit that potential from ever being realized.

Neither the Statute nor the Superior Court Rule contain

guidelines or criteria for the selection of special jury

pools. An affidavit by the Superior Court Administrator,

relied upon by plaintiffs, indicated, among other things,

that there were no articulable guidelines used in special

jury selection by Jury Commissioners, that the Commis-

76a

sioners “elected to use education and age as their cri-

teria,” and that they “selected persons with more than

12 years of formal education and intentionally avoided

selecting persons either in their twenties or seventies.”

In 1976 our Legislature undertook a broad reform of

the “trial by jury” statute. Recognizing that “the Ameri-

can tradition of trial by jury . .. necessarily contemplates

an impartial jury drawn from a cross section of the com-

munity,” Thiel, 328 U.S. at 220, the Delaware General

Assembly enacted 10 Del.C. §§ 4501 and 4503, supra.

Section 4501 embodies State policy “that all litigants in

state courts entitled to trial by jury shall have the right

to grand petit juries selected at random from a fair cross

section of the county wherein the court convenes.” Z/d.

Section 4503 prohibits the exclusion of a person from

service as a grand or petit juror “on account of race,

color, religion, sex, national origin or economic status.”

Id. The legislative revision left untouched the provisions

of the Special Jury Statute, and we are satisfied that the

Legislature intended to preserve the special jury practice

when it did not repeal the statutory authority for it at

the time * * *

77a

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

IN RE REHEARING OR

REARGUMENT IN CERTAIN CASES

ORDER

This 11th day of March, 1982,

It Appearing to the Court that:

(1) The cases listed in paragraph (a) hereof have

been submitted for decision ;

(2) Justice Duffy is a member of the Court en banc

or the panel to which each case has been submitted and

he will retire from the Court, effective March 31, 1982;

and

(3) In order to assure completion of adjudication of

each case before Justice Duffy’s retirement becomes effec-

tive, it is necessary to shorten the time in which a motion

for reargument or rehearing may be filed under Rule 18,

or Rule 4(f),

NOW, THEREFORE, IT IS ORVERED That:

(a) The time periods provided in Rule 4(f) for filing

of a motion for rehearing en banc and in Rule 18 for

filing a motion for reargument are suspended, and such

periods are hereby reduced to seven (7) days after filing

of the Court’s opinion or order, in each of the following

cases:

Case No. Caption

3, 1981 Patricia M. d. v. Alexis I. d.

75, 1980 Roane v. Williams

337, 1979 Waters v. State

107, 1981 B. v. B.

219, 1980 Harrison v. State

119, 1981 Whaley v. McClure

161, 1980 Norton v. Poplos

114, 1981 Haas v. United Tech.

285, 1980 Allstate v. Spinelli

77, 1981 Gregory J.M. v. Carolyn A.M.

238, 1981 Bosch v. Papendick

270, 1981 Newton v. Nationwide

221, 1981 Darley Liquor v. Smith

78a

All other provisions of the said Rules remain applicable

to the cases.

(b) A copy of this Order shall be docketed in each

case listed in paragraph (a) and shall be delivered to

counsel with a copy of the opinion or order determining

the matter under submission.

BY THE COURT:

/s/ Daniel L. Herrman

Chief Justice

19a

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No. 114, 1981

LILLIAN M. HAAS, et al.,

Plaintiffs Below, Appellants,

vs.

UNITED TECHNOLOGIES CORPORATION, et al.,

Defendants Below, Appellees.

ORDER

This 29th day of October, 1981,

IT IS ORDERED pursuant to Rule 4(d) of this Court:

(1) That the case be and it is hereby scheduled for re-

hearing and determination by the Court en Banc, without

further briefing and upon a priority basis; and

(2) That the case be scheduled for rehearing by the

Court en Banc during the December 1981 Session of the

Court.

/s/ Daniel L. Herrman

Chief Justice

80a

IN THE SUPREME COURT

OF THE STATE OF DELAWARE

No. 114, 1981

LILLIAN M. HAAS, Personal Representative of the Estate

of and parent and next of kin of John V. Cataldi,

deceased; CHERYL RUFF, personal representative of the

Estate of and widow of and next of kin of Edwin J.

Ruff, Jr., deceased; Betty Lou SCHLECTIC BAHE, as

guardian and next friend of Ginger Schlectic, minor child

of Ralph C. Schlectic, deceased; and JULIA KATHLEEN

McDONALD LAMASCUS, personal representative of the

Estate of and widow of and next of kin of Mark

Lamascus, deceased; and JULIA KATHLEEN MCDONALD

LAMASCUS as guardian and next friend of Sarah Laine

Lamascus and Mark David Lamascus, minor children

of Mark Lamascus, deceased,

Plaintiffs-Below, Appellants,

Vv.

UNITED TECHNOLOGIES CORPORATION, a Delaware corpora-

tion, UNITED AIRCRAFT CORPORATION, a Delaware cor-

poration, UNITED AIRCRAFT CORPORATION OF NEW YORK

City, a Delaware corporation, and THE Sikorsky Dt-

VISION OF UNITED TECHNOLOGIES CORPORATION,

Defendants-Below, Appellees.

NOTICE OF APPEAL

TO: Edmund N. Carpenter, II, Esq.

Allen M. Terrell, Jr., Esq.

Helen L. Winslow, Esq.

Richards, Layton & Finger

One Rodney Square

P.O. Box 551

Wilmington, Delaware 19899

PLEASE TAKE NOTICE that Lillian M. Haas, Cheryl

Ruff, Betty Lou Schlectic Bahe, and Julia Kathleen Mc-

8la

Donald Lamascus, Plaintiffs-Below, Appellants, do hereby

appeal to the Supreme Court of the State of Delaware

from the decision of The Hon. Bernard Balick of the

Superior Court of the State of Delaware, in and for New

Castle County, denying plaintiffs’ motion for a new trial

in Civil Action No. 1441, 1976, which decision was dated

March 17, 1981, along with the Order entered thereon by

The Hon. Bernard Balick on April 6, 1981, and from the

verdict and judgment rendered by the jury on January

20, 1981, in Civil Action No. 1441, 1976, and from the

decision and Order rendered by The Hon. Bernard Balick

of the Superior Court of the State of Delaware dated No-

vember 26, 1980, denying Appellants’ Motion to Prevent

Impaneling of Special Jury at Request of Defendants And

To Order Trial By Ordinary Jury, rendered in the pro-

ceedings in Civil Action No. 1441, 1976, in the Superior

Court.

The names of the attorneys below for Appellees are

Edmund N. Carpenter, II, Esq., Allen M. Terrell, Jr.,

Esq., and Helen L. Winslow, Esq., at the address listed

above.

DIRECTIONS TO COURT REPORTER OF

PROCEEDINGS BELOW TO BE TRANSCRIBED

PURSUANT TO RULE 9(e)

TO: Prothonotary

Public Building

Wilmington, Delaware 19801

Appellants do hereby direct the proceedings in Lillian

M. Haas, et al. v. United Technologies Corporation, et al.,

Civil Action No. 1441, 1976, in the Superior Court of the

State of Delaware, In and For New Castle County, to

be transcribed as set forth below:

(a) The appropriate docket entries in the above-

captioned cause, including the Court’s Order of November

26, 1980, the Court’s decision of March 17, 1981, and the

Order thereon dated April 6, 1981.

(b) The complete transcript of the trial before The

Hon. Bernard Balick beginning December 1, 1980, and

continuing through January 20, 1981. Trial transcripts

for this case were prepared on a daily basis and are on

file. No further transcripts are necessary at this time.

fore The Hon. Bernard Balick on November 26, 1980, on

Appellants’ foregoing Motion to Prevent Impaneling of

Special Jury.

We hereby certify that transcription of the above-listed

portions of the proceedings below is essential to the prose-

cution of this Appeal.

/s/ Arthur Inden

ARTHUR INDEN

/s/ Ben T. Castle

Young, Conaway,

Stargatt & Taylor

1401 Market Tower

P.O. Box 391

Wilmington, Delaware 19899

Attorneys for Plaintiffs

Below, Appellants, Lillian

M. Haas, Chery] Ruff,

Betty Lou Schlectic Bahe

and Julia Kathleen

McDonald Lamascus

Of Counsel:

FRANCIS A. FERRARA, Esq.

Kassab, Cherry, Curran

and Archbold

214 North Jackson St.

Media, Pennsylvaia 19063

The undersigned, attorneys of record for the Appellees

above named, hereby signify their acknowledgement of

service of the foregoing Notice of Appeal, in duplicate,

this 15th day of April, 1981.

EDMUND N. CARPENTER, II

ALLEN M, TERRELL, JR.

HELEN L. WINSLOW

TO:

84a

IN THE SUPERIOR COURT

OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

Civil Action

LILLIAN M. HAAS, et al.,

v. Plaintiffs,

UNITED TECHNOLOGIES CORPORATION, et ai.,

Defendants.

BILL OF COSTS PURSUANT TO § 5107

Prothonotary

Superior Court

Public Building

Wilmington, DE 19801

Pursuant to 10 Del. C. § 5107, please enter the Bill

of Costs herein by defendant to be taxed to the plaintiffs,

as listed below and itemized on the attached schedule.

These costs are in addition to the costs itemized in the

Bill of Costs filed by defendants on February 6, 1981.

1. The fees for duplicating and velobinding defendants’

briefs on appeal.

2. Filing fees incurred by defendants on appeal.

8. Special exhibit costs.

/s/ Helen L. Winslow

E. N. CARPENTER, II

ALLEN M. TERRELL, JR.

HELEN L. WINSLOW

Richards, Layton & Finger

One Rodney Square

P.O. Box 551

Wilmington, DE 19899

Attorneys for Defendants

85a

ec: Arthur Inden, Esquire

Young, Conaway, Stargatt & Taylor

1401 Market Tower

Wilmington, DE 19801

Attorneys for Plaintiffs

Dated: October 5, 1982

SCHEDULE OF COSTS

Duplicating and Velobinding

Filing Fees

Special Exhibit

TOTAL:

$2,951.90

$ 11.25

315.10

$3,278.25

86a

IN THE SUPERIOR COURT

OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

Civil Action No. 1441, 1976

LILLIAN M. HAAS, et al.,

Plaintiffs,

Vv.

UNITED TECHNOLOGIES CORPORATION, et al.,

Defendants.

MOTION TO TREAT THE EXPENSES OF THE

SPECIAL JURY AS PART OF THE COSTS

IN THE CASE

Defendant hereby moves that this Honorable Court cer-

tify pursuant to 10 Del. C. § 4543 that the above-captioned

cause was proper to be tried by a special jury and that

the expenses occasioned by the trial of the cause by such

special jury shall be treated as part of the costs in the

case, to be taxed against the losing party. The grounds

for this motion are as follows:

Upon motion the Court in its discretion may order pay-

ment of the costs and expenses of the special jury, includ-

ing the costs of striking and summoning and other ex-

penses occasioned by trial of the cause by special jury,

to be treated as part of the costs in the case. The Court

naturally must wait until after the case has been tried

and the Court has had an opportunity to hear the evi-

dence, to determine whether or not the cause was properly

tried by special jury, and the expenses of the special jury

treated as costs. Nance v. Rees, Del. Supr., 161 A.2d 795

(1960).

Because of the length of the trial and the volume of

the evidence, the jury in this case has had a heavier bur-

den than is normal in most cases. The case was complex,

87a

not only because of the number of legal issues and ex-

traordinary number of contentions and defenses raised

throughout the trial, but also because it was a case in-

volving technology and a variety of expertise.

Trial began on December 1, and the jury retired to

consider its verdict on January 19. Even the plaintiffs’

counsel in their predictions of the trial’s length, did not

think the trial would last so long. In deliberating, the

jury was confronted by a couple hundred documents in

evidence, many of which are long and technical. The

jury had to consider the testimony of a large number of

witnesses who testified either in person or by depositions.

In his opening (Vol. A, p. 19) and in his closing to

the jury (Vol. Y, p. 35), Mr. Inden conceded that this

was a case appropriate for a special jury. A critical wit-

ness for the plaintiffs, Tannian, treated this as an “ex-

ceptional case”. Defendant agrees and also believes that

only a “special jury” can properly deal with the volume

of evidence and complexity of the issues necessarily raised

in such an unusual case.

For the foregoing reasons, defendant urges the Court

to grant this motion.

Respectfully submitted,

E. N. CARPENTER, II

ALLEN M. TERRELL, JR.

HELEN L. WINSLOW

Richards, Layton & Finger

P.O. Box 551

Wilmington, DE 19899

Attorneys for Defendant

88a

IN THE SUPERIOR COURT

OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

Civil Action No. 1441, 1976

LILLIAN M. HAAs, et al.,

; Plaintiffs,

UNITED TECHNOLOGIES CORPORATION, et al.,

Defendants.

BILL OF COSTS PURSUANT TO § 5112

TO: PROTHONOTARY

Superior Court

Public Building

Wilmington, DE 19801

Pursuant to 10 Del. C. § 5112, please enter the Bill of

Costs herein by defendants to be taxed to the plaintiffs

pursuant to 10 Del. C. § 5101 and Civil Rule 54 of the

Superior Court, as listed below and itemized on the at-

tached schedules:

1. The fees of the Court Reporters for daily tran-

scripts, as itemized in attached Schedule A. Because of

the length, complexity and nature of this case, caused in

part by the large number of issues raised by plaintiffs, it

was necessary and appropriate to have daily transcripts.

In rulings on evidence and motions, such as whether or

not plaintiffs had conceded that corrosion pitting was not

a part of the case or that there was no contention that

the blade was defective for use of aluminum as a ma-

terial, it is submitted that daily transcripts were of use

to the Court. In arguments on evidentiary matters and

on motions, the plaintiffs made use of the daily transcript

by referring the Court to specific portions of the tran-

script. Indeed, the daily transcript was made available

to the plaintiffs during trial. Applying a virtually iden-

tical procedural rule, the federal courts have often treated

89a

trial transcripts as costs in a case to be recovered by the

prevailing party. See, e.g., Perlman v. Feldman, 116 F.

Supp. 102 (D. Conn. 1953); and Manley v. Canterbury

Corp., 17 F.R.D. 284 (D. Del. 1955).

2. The fees for duplicating, printing and preparing

trial exhibits, including blow-ups and transparencies, as

itemized in attached Schedule B. Because of the com-

plexity of the case, the hundreds of documents introduced

principally by plaintiffs, and the direction of the jury’s

attention to specific portions of exhibits, memoranda and

manuals, it was necessary and appropriate to have blow-

ups and transparencies, as well as copies of the exhibits

themselves. A number of federal courts have allowed such

expenses to be treated as costs recoverable by the prevail-

ing party. Wahl v. Carrier Manufacturing Co., 511 F.2d

209 (7th Cir. 1975) ; Freedman v. Philadelphia Terminal

Auction Co., 198 F. Supp. 429 (E.D. Pa. 1961) ; Prashker

v. Beech Aircraft Corp., 24 F.R.D. 305 (D. Del. 1959) ;

Department of Highways v. McWilliams Dredging Co.,

10 F.R.D. 107 (W.D. La.), af’d. 187 F.2d 61 (5th Cir.

1951), and Bennett v. Kiggins, D.C. App., 391 A.2d 236

(1978), cert. denied, 489 U.S. 1072 (1979).

3. The fees for defendants’ expert witness, Dr. Arthur

McEvily, as itemized in attached Schedule C. The actual

fees paid to an expert witness by the prevailing party,

including travel to and from the courthouse and time

spent testifying, are part of the costs. 10 Del. C. § 8906;

Stevenson v. Henning, Del. Supr., 268 A.2d 872 (1970) ;

and Claus v. Babiarz, Del. Ch., 190 A.2d 19 (1963). The

Delaware state rule has been followed in the federal dis-

trict court. Chemical Bank v. Kimmel, 68 F.R.D. 679

(D. Del. 1975).

4. Costs for trial witnesses’ travel and hotel expenses

as itemized in attached Schedule D. All the witnesses

listed on Schedule D, other than Stanko, were called to

testify by plaintiffs, although Dixon was also called by

defendants. Had plaintiffs attempted to subpoena such

witnesses, travel and room expenses might have been re-

90a

quired and certainly such expenses were necessarily in-

curred as a result of plaintiffs’ conduct of this litigation.

See, generally, Farmer v. Arabian American Oil Co., 379

U.S. 227, 85 S. Ct. 411, 18 L. Ed. 2d 248 (1964).

5. The costs incurred in connection with depositions

introduced or referred to during trial, as listed in at-

tached Schedule E. The fees paid to court reporters for

the Court’s copy of transcripts of depositions introduced

into evidence are taxabale costs. Civil Rule 54(f). The

depositions that were actually introduced into evidence

have been designated by an asterisk on Schedule E.

Throughout the trial, from time to time, plaintiffs re-

ferred to deposition testimony of others, such as Baldwin

or Zincone, and accordingly, defendant seeks recovery of

the costs in connection with all depositions. Perlman v,

Feldman, supra; Prashker v. Beech Aircraft, supra;

Manley v. Canterbury Corp., supra; and 20 C.J.S. Costs

§ 194 (1940).

6. The costs of the special jury as listed in Schedule F,

and in accordance with defendant’s motion to tax the costs

of the special jury in this case against plaintiffs.

/s/ Allen M. Terrell, Jr.

E. N. CARPENTER, II

ALLEN M. TERRELL, JR.

HELEN L. WINSLOW

Richards, Layton & Finger

One Rodney Square

P.O. Box 551

Wilmington, Delaware 19899

Attorneys for Defendant

ec: Arthur Inden, Esquire

Young, Conaway, Stargatt & Taylor

1401 Market Tower

Wilmington, Delaware 19801

Attorneys for Plaintiffs

Dated: February 6, 1981

9la

{Schedule A thru E have been omitted in printing, but

are available in the certified record]

SCHEDULE F

To For Coat

Prothonotary Special Jury Initial Fee $ 750.00

Prothonotary Special Jury Costs 7,567.80

Prothonotary Special Jury Questionnaires 48.00

TOTAL: $8,315.80

92a

[OPINION OF THE SUPERIOR COURT OF THE

STATE OF DELAWARE Dated March 17, 1981)

SUPERIOR COURT OF THE

STATE OF DELAWARE

Judge Bernard Balick

March 17, 1981

Edmund N. Carpenter, II, Esq.

Allen M, Terrell, Jr., Esq.

Helen L. Winslow, Esq.

Richards, Layton & Finger

One Rodney Square

P.O. Box 551

Wilmington, DE 19899

Attorneys for Defendant

Arthur Inden, Esq.

Ben T. Castle, Esq.

Young, Conaway,

Stargatt & Taylor

1401 Market Tower

P.O. Box 391

Wilmington, DE 19899

Attorneys for Plaintiffs

Counsel:

Re: Lillian M. Haas, et al. v. United Technologies Cor-

poration, et al.

Civil Action No. 1441, 1976

Submitted: February 9, 1981

This is the opinion on the plaintiffs’ motion for a new

trial.

I will discuss the issues raised under the headings in

which they appear in the plaintiffs’ motion. On the issues

raised at trial, this discussion will supplement the rulings

made at trial.

I, COCKPIT BIM

A. The plaintiffs argue that their contention that the

visual warning system was defective because it failed to

include an indicator in the cockpot was not included in

the instructions to the jury, as requested in exhibit A to

their motion. They argue in particular that it was error

to instruct the jury that the absence of an indicator in

the cockpit is ground for liability only if the warning

system designed by Sikorsky was defective.

The jury was instructed as follows:

“The plaintiffs contend that the visual BIM warn-

ing system was inadequate because it did not incor-

porate any warning in the cockpit, it lost credibility

as a result of warnings that did not indicate a crack

in the blade, and the instructions and warnings in the

flight and maintenance manuals were inadequate.

The defendant disputes each of these contentions.

In order to prevent the helicopter [which was de-

fined to include the warning system and the flight

and maintenance manuals (AA-29)] from being un-

reasonably dangerous, Sikorsky was required to de-

sign an adequate warning system ard to give ade-

quate directions as to its maintenance and use. A\l-

though a manufacturer is required to design a prod-

uct that is not defective and unreasonably danger-

ous, this does not mean that it is required to include

every possible safety device. Thus, if you find that

the visual BIM system and applicable manuals were

adequate, you may not find Sikorsky liable for fail-

ure to install an indicator in the cockpit.

In order to determine that the product was defec-

tive and unreasonably dangerous because adequate

warnings and instructions were not provided about a

danger connected with the helicopter or its proper

maintenance or use, you must find that, at the time

of manufacture, the likelihood that the product would

94a

cause harm and the seriousness of the harm rendered

the manufacturer’s instructions inadequate, and that

the manufacturer should and could have provided the

instructions or warnings which the plaintiffs allege

would have been adequate.” (Instructions to Jury,

p. 9; Transcript, AA-32, 33)

This is a correct statement of the law. In order to pre-

vail, the plaintiffs must prove that the helicopter was de-

fectively designed. If the jury found that the warning

system designed by Sikorsky, with the indicator on the

rotor blade, was adequate, it could not find Sikorsky liable

for failing to put an indicator in the cockpit. In other

words, the plaintiffs could prevail on this contention only

if the jury found that an indicator in the cockpit was

necessary in order to make the warning system adequate.

B. The plaintiffs argue that the instructions do not in-

clude their contention that Sikorsky negligently failed to

notify the Navy of the unreasonable danger of the visual

BIM system after the helicopter was manufactured, as

requested in exhibit C to their motion.

The jury was instructed as follows:

“The manufacturer of a helicopter owes users of

the product a duty to use reasonable care, skill and

diligence in the design and manufacture of the prod-

uct. The manufacturer also has a duty to anticipate

all reasonably foreseeable uses of a product and to

warn users of the risks arising from reasonable fore-

seeable uses of the product, if the manufacturer

knows, or should know, of such risks, and if such

risks would not be obvious to users of the product.

Defendant Sikorsky had a duty to design the heli-

copter properly. The duty to design a product safety

is a duty to use reasonable care to assure that the

product will be safe for its intended or reasonably

anticipated use. The degree of care required in de-

signing a product depends upon the foreseeable risks

involved in the product’s intended or reasonably an-

ticipated use.

In addition to the plaintiffs’ contentions about the

BIM system and instructions and warnings in the

manuals at the time the helicopter was manufac-

tured, the plaintiffs contend that Sikorsky failed to

use reasonable care to improve the warnings and in-

structions after the helicopter was manufactured.

Sikorsky denies this and contends that it acted as

a reasonably prudent manufacturer would under like

circumstances by giving additional warnings or rec-

ommendations and urging the Navy to retrofit or in-

stall a cockpit BIM system after the helicopter was

manufactured, but these matters were then within

the Navy’s control.

In determining whether defendant Sikorsky was

negligent in the design of this helicopter, you must

bear in mind that, when matters of human safety are

involved, a manufacturer has a continuing duty after

manufacture and delivery of the helicopter, to warn

users of dangerous defects in the product and to in-

form them of known dangers in the product or its

use,

In other words, in this case, if you find that Sikor-

sky, as a reasonably prudent manufacturer, should

have learned after the product was manufactured

that the design or use of the helicopter posed a dan-

ger to its operators, then Sikorsky had a duty to act

with regard to the danger as a reasonably prudent

manufacturer in the same or similar circumstances.

This obligation is satisfied if the manufacturer makes

reasonable efforts to inform product users or a per-

son who may be reasonably expected to assure that

action is taken to avoid the harm, or that the risk of

harm is explained to the actual product user.

Examples of factors that you may consider in mak-

ing this evaluation, in addition to the factors listed

on page 9 [|AA-33] above, include:

—the nature of the relationship between the manu-

facturer and the owners and operators after delivery

of the product;

—who had control over the manuals and mainte-

nance procedures ;

—prior similar accidents;

—communications between the manufacturer and

owners or operators.

If you find that there was an unreasonable risk of

harm arising from the use of the BIM system and

related manuals, and that Sikorsky was or should

have been aware of the danger before this crash, it

was Sikorsky’s duty to act reasonably in attempting

to remove that danger. If you find that Sikorsky

failed to do this, and that its failure was a proximate

cause of the crash, then Sikorsky would be liable.

On the other hand, if you do not find that there

was an unreasonable risk of harm arising from the

use of the BIM system and related manuals, or you

find that there was, but Sikorsky was not and should

not have been aware of the danger, or that it acted

reasonably in attempting to remove the danger, but

this was not done because of unreasonable inaction of

the Navy or Marines, then Sikorsky would not be

liable.” (Instructions to Jury, pp. 18, 14, 15; Tran-

script, AA-37, 38, 39, 40)

Since the court did submit the plaintiffs’ connections

about the need for a cockpit BIM system to the jury, I

understand the plaintiffs’ position to be that their con-

tentions on this issue were not submitted in the form

requested in exhibits A and C to their motion.

The plaintiffs’ claim is based on the alleged inadequacy

of the system designed by Sikorsky to warn users when

97a

a rotor blade is going to fracture. They contend not only

that the mechanical warning system was inadequate, but

also that the warnings in the flight and maintenance

manuals were inadequate, and that the defendant negli-

gently failed to warn users of the inadequacy of the sys-

tem based on knowledge gained after the helicopter was

manufactured. There was much evidence and there were

many contentions on the adequacy of these various kinds

of warnings. One of the contentions was that there should

have been an indicator inside the cockpit. There was no

effort in the parties’ requests or in the court’s instructions

to summarize all of the evidence or to state all of the

contentions. As was explained to the jury (AA-25, 26),

the court did not attempt to review the contentions of the

parties in detail, but summarized the contentions and then

listed several specific factors, based on the evidence and

contentions, that the jury could consider in determining

whether the various kinds of warnings were adequate.

This is the method suggested by the Maryland Court of

Appeals in Phipps v. General Motors Corporation, Md.

Ct. App., 363 A.2d 955, 959 at n. 4 (1976) and by the

proposed Model Uniform Product Liability Act. 2A

Frumer & Friedman, Products Liability § 16E, pp. 3E-44,

45, 46.

Thus, if we consider as an example the various conten-

tions on cockpit BIM as stated in the plaintiffs’ motion

for a new trial and the defendant’s response, each of them

relates to one or more of the factors listed in the instruc-

tions, such as the following:

“the technological and practical feasibility of a prod-

uct designed and manufactured so as to have pre-

vented the harm while substantially serving the likely

user’s expected needs. In considering this you may

consider the state of the art at the time that the prod-

uct was designed and manufactured (AA-31) ;

the new or additional harms that might have resulted

if the product had been so alternatively designed

(AA-31) ;

the avoidability of injury by care in use of the prod-

uct (including the effect of instructions or warn

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.