Opposition Brief — Turbomeca, S. A. v. Barnett

No. 97-2072 UL 16

In The

Supreme Court of the United States

—~¢

October Term, 1997

TURBOMECA, S.A., and TURBOMECA ENGINE COMPANY,

Petitioners,

VS.

KYONG JU BARNETT, Individually and as Guardian Ad Litem

and Next Friend of JESSIE MORGAN BARNETT and MIA

KYONG BARNETT, minor children; JAMES S. BARNETT, SR.;

WANDA BARNETT; and STATE OF MISSOURI,

Respondents.

On Petition for Writ of Certiorari to the

Missouri Court of Appeals, Western District

BRIEF IN OPPOSITION FOR RESPONDENTS

JAMES S. BARNETT, SR. AND WANDA L. BARNETT

JOHN J. WILLIAMS, III DUKE W. PONICK, JR.

GEORGE M. BOCK 2800 City Center Square

Counsel of Record 1100 Main Street

SLAGLE, BERNARD Kansas City, Missouri 64105

& GORMAN, P.C. (816) 842-1130

600 Plaza West Building

4600 Madison Avenue

Kansas City, Missouri 64112

(816) 410-4600

Attorneys for Respondents

James S. Barnett, Sr. and Wanda L. Barnett

ervices, inc.

147351 (800) 274-3321 * (800) 359-6859 Uap llate

A DIVISION OF COUNSEL PRESS S.

TABLE OF CONTENTS

Page

pe PT eee rere error oeL rere ill

fe PT eer ene l

RU CE ID GOD ks von chee ns eb ek Ca l

A. The Petitioners and Their Relationship ....... I

B. Relevant Background Facts ................ 2

C.. SURSCQMORt FIOCOOUINES 6. os kc cece eens 6

Summary of Reasons for Denying the Writ ......... 7

measons for Dewyines Gis Wi occ ccceccsacecs, 8

I. The Writ Should Be Denied Because There Is No

Longer A Case Or Controversy For The Supreme

Court To Resolve Based On The Following

CGI ads wedean dco RKekaS ye keekkees 8

A. The Execution Of The Sworn Release

Discharging Petitioners From All Other

Obligations To Respondents For The

Wrongful Death Of Their Son And Their

Acceptance Of Payment Of The Judgment

Make This Action Moot. .............. 8

B. The Case Is Moot Because The Petitioners

Have Accepted The Benefit Arising From

The Release And Payment Of The Judgment

Contents

Page

In This Case By Asserting To The Supreme

Court Of Missouri In Letz v. Turbomeca

Engine Corporation, et al., No. 80558 That

They Are Entitled To A $26,500,000 Credit

Against The Punitive Damages In That Case

Under Section 510.263.4, R.S. Mo. ..... 1]

II. The Petitioners Have Not Been Denied Due

Process As A Result Of The Punitive Damage

Judgment Of $26,500,000. ................ 12

A. Petitioners Knew That Their Tortious Conduct

Involving A Conscious Disregard For Human

Safety Could Subject Them To Punitive Or

Aggravating Circumstances Damages For

Causing A Wrongful Death In Missouri. ..... 12

B. The Petitioners’ Long-Term Wilful Conduct Was

Not Lawful In Any State In The United States Or

Elsewhere And Is Not Shielded By The Due

FORRES AION. | s < 6ks2 ides dn nheweekaeens 14

C. Neither Petitioners’ Business Operations Nor Their

Finances Have Been Affected By The Punitive

Damages Assessed Against Them. ........... 16

D. There Is No Live Issue In This Case That

Petitioners Have Been Subjected To Any

Impermissible Cumulative Punishment Based On

FRO GONE CA: ois ni hdceeeeses Ree 17

EE

ili

Contents

Page

Ill. The Excess Fines Clause Of The Eighth

Amendment Does Not Apply To Civil Actions

For Damages Brought And Maintained By Private

DINING. 5 hss 6 he WS ap aos Has ss es 18

SI ise aig cay ae ib we bay bw k ea baa’ 19

TABLE OF CITATIONS

Cases Cited:

Bennett v. Owens-Corning Fiberglass Corp., 896 S.W.

ee Gs NS ROUSE idk cw ekce oe wagusacs 5

Blum v. Airport Term. Serv., Inc., 762 S.W. 2d 67 (Mo.

IE o hdga os Oa cu Wiws wh oe ee cae ae a eas 13

BMW of North America vy. Gore, 517 U.S. 559 (1996)

(ee pe Ma keane Kee eke ¥, tay 83, 94, 95, 16, 17, 18

County of Dakota v. Glidden, 113 U.S. 222 (1885) .. 9, 10

Farmer v. Arnold, 371 S.W. 2d 265 (Mo. 1963) ..... 8, 9

Haehl v. Wabash R. Co., 24 S.W. 737 (Mo. 1893) ... 13

Letz v. Turbomeca Engine Corporation, et al., No.

No 545 eb vied aa ao bk Nek KaO kee wee St 42.47

Lugena v. Hanna, 420 S.W. 2d 335 (Mo. 1967) ..... 9

iv

Contents

Page

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991)

ey PO rey Sere Or TES ery Te eee rere 5

Tech Hills II Associates v. Phoenix Home Life Mut. Ins.

Co., 5 Fae SOS CO TFG G) svc hie nknebn deenss 1]

United States v. Bajakajian, __ U.S. __, 118 S. Ct. 2028

CRD cs Wee is pr ee ee 18

Weast v. Festus Flying Serv., 680 S.W. 2d 262 (Mo. App.

SWS oicck cases essa ccd eeekeee tie eee 13

Statutes Cited:

Be A PRE iio 8s eevee se beth ed ease Pe

oe eo & OF Sep ee rer ce 6, 11, 12, 17

eS ate oa eh eee canes rave e es irene 13

United States Constitution Cited:

Eiigttts ARORGROME oon n ec iek ce cccntnawer cesses 7, 18

APPENDIX

Appendix A — Acknowledgment Of Satisfaction Of

Judgment And Waiver Of Attorney’s Liens Filed April

BG BO hp PEN aS RL Os Aa ee WEE RE eee la

Appendix B — Excerpts Of Transcript Of Proceedings,

oe ee eer ere ere errr rere 6a

iia

Contents

Page

Appendix C — Substitute Brief For Appellants, Filed

Biay G, 1906 ces ciccncetbcsanscewseinvatesne 12a

Appendix D — Excerpts Of Declarations Page For

Liability Insurance Policy No. 93/14313 With Liability

a 5: MPP ieer rr er ee ee ee 16a

Appendix E — Excerpts Of Transcript Of Proceedings,

Pete May 3, 1908 onc skein ce be dereees vanes 18a

l

JURISDICTIONAL STATEMENT

Petitioners have invoked the jurisdiction of the Supreme Court

under 28 U.S.C. § 1257(a) without advising the Court of the facts

and circumstances which demonstrate that there is no actual case

or controversy for this Court to resolve. This case is moot for the

particular reasons that will be set forth in Point I of this brief.

STATEMENT OF THE CASE

~ A. The Petitioners and Their Relationship

Petitioner Turbomeca, S.A. (“TSA”) and Turbomeca Engine

Corp. (“TEC”) are closely affiliated corporations. TSA designs,

manufacturers, sells and services turboshaft (gas turbine) engines

through a worldwide network which includes North America. TEC

was the corporate affiliate of TSA that sold, serviced and overhauled

Turbomeca engines in the United States. (Ex. 281). Both TSA

and TEC are owned by Societe Labinal, a holding company. (Tr.

Cocheteux 9-11).

At all material times, TSA exercised de facto control over the

business operations of TEE as evidenced by the following testimony

of Jean Cocheteux, its chief executive officer:

A. ... But, in fact, if you look at the operations of

TEC, the-the flow of directives comes from

Turbomeca France.

Q. All right so Turbomeca France exercises control

and direction over the business of Turbomeca

Engine Corporation of Texas?

| a

(Tr. Cocheteux 10).

2

Both TSA and TEC were covered by the same policy of

liability insurance that had liability limits of approximately

$1,000,000,000. (App. D - pp. 17a-18a). In a proceeding before

the trial court, TSA’s and TEC’s attorney regarded that sum as

a surrogate for the net worth of the two companies for purposes

of the Barnett case. (App. E - pp. 19a-21a). The payment of the

$40,000,000 judgment in this case and the posting of the

supersedeas bond in the sum of $134,000,000,000 to secure

payment of the judgment were done under that insurance policy.

B. Relevant Background Facts

James Barnett, Jr., the only son of Respondents James

Barnett, Sr. and Wanda Barnett, died on May 27, 1993 as a

direct result of the explosive in-flight failure of the Turbomeca

engine that powered the air ambulance he was piloting. That

helicopter known as Life Flight 2 (N728LF) was operated under

a joint venture between two hospitals in Kansas City, Missouri.

The patient being transported to the hospital in the helicopter

was killed and the other two members of the flight crew were

permanently and totally disabled.

The engine failure in Life Flight 2 was caused by a

defectively designed part known as TU76. TSA and TEC had

known that this part was defective since June, 1986, based on

an intensive failure mode and effects analysis conducted by

TSA in France known as the “Saviot” report. That analysis

proved that the design geometry and metallic composition were

defective. The analysis further proved that the failure of the

part could occur at any time during the rated use or time between

overhaul (TBO) of the whole engine which was at that time

2000 hours. (P.Ex.6). TSA and TEC recognized that these

defects presented a serious safety problem because the failure

of the part could cause an explosive in-flight engine failure. '

1. Based on the analysis, TSA’s chief engineer, Alain Calemard, testified

they knew that they had “a serious safety problem on our hands” constituting

“a rather alarming situation.” (Tr. Calemard 441; 443-444),

3

Instead of re-designing TU76 or adequately and honestly

warning consumers of the defects, TSA continued business as usual

and for competitive, commercial reasons actually increased the TBO

from 2000 to 2500 hours. (Tr. Meliet 160-161; Calemard 91: 481-

482). It was undeterred by a series of TU76 induced in-flight

failures, one of which resulted in serious (“grave”) injuries to at

least four persons in a single crash. Before the crash of Life Flight

2 on May 27, 1993, there had been at least seven accidents as a

result of TU-76 in-flight failures, several with total destruction of

the helicopter.’

TSA's corporate attitude concerning TU76 was summarized

in the following testimony of Mr. Jean Meliet, world-wide customer

support technical manager:

Q. Now notwithstanding the fact you know you have

a serious problem with TU76, you still keep

manufacturing Arriel engines with TU76

modifications in them without making changes,

isn’t that true, in design?

Yes.

Q. And you keep manufacturing them and selling

them without changing the metal, correct?

A. Yes.

Q. And that goes out on new aircraft and when

people bring their engines back for overhaul, TU76

with this weak metal gets put right back in them,

correct?

2. Dr. Alan Epstein, the Director of MIT’s turbine engine laboratory

with experience with military and civilian aircraft, described this as an

“enormous number” in the field of aviation. (Tr. 1507).

A. Yes.

* * *

Q. And during that period of time the number of

these cracks and the ruptures and the incidents

and accidents starts mounting, doesn’t it?

A. Yes.

* * *

Q. Nonetheless, the production line keeps rolling

and we keep making TU76 modified engines

for use in the world, correct?

A. Yes.

Q. Including these United States?

A. Yes.

* * *

Q. Okay so we know a third of these engines with

this part in it with a bad metal are coming here

to this country, correct?

A. Yes.

(Tr. Meliet 69-70: 73-74). The effects of this admitted serious

safety problem mounted to the point that in the same week of

the Life Flight 2 crash there were two other serious TU76 in-

flight failures in the United States. (Tr. Cocheteux 79).

Wei ete.

5

When Mr. Meliet was asked why TSA made a conscious

decision not to disclose the precise nature and seriousness of

the dangers of TU76 and its alarming safety history to

Turbomeca engine users, he stated that he “did not want to

disturb them” with such information because he knew it might

affect engine sales. (Tr. Meliet 163-164; 310-313).3

Ironically, the same day of the crash of Life Flight 2, TSA

completed its second numerical count of TU76 failures and

cracks in engines examined in France. (P.Exs.7 and 8). These

Studies showed a defect rate of approximately 6% for TU76

equipped engines. In the subsequent NTSB and FAA

investigation of the Life Flight 2 crash, neither TSA nor TEC

disclosed the results of either analysis to the U.S. safety

authorities although they had been asked to furnish “all details

of any known incidents, accidents or problems and any history

of discrepancies discovered at overhaul related to this part of

the engine.” (P.Ex. 172). Likewise, the “Saviot” report was not

disclosed to the U.S. authorities.

The jury hearing the evidence in this case found that TSA

and TEC’s conduct evidenced a conscious disregard for human

Safety under appropriate instructions‘ and assessed punitive

damages. Those damages were subsequently reduced and

3. Nodisclosure by any means of the existence of the built-in TU76 defects

was ever made. The deceptive and misleading service letters sent out to users

simply advised them to listen for any “rubbing noise”, a procedure known by

TSA and TEC to be wholly ineffective. No in-flight failure had been preceded

by any perceptible rubbing noise. Moreover, the defective part was housed in a

sealed module and could only be visibly inspected by TSA or TEC at overhaul.

No disclosure was made that TU76 broke apart in flight and caused explosive

engine shutdowns resulting in several crashes and injuries

4. See Bennett v, Owens-Corning Fiberglass Corp., 896 S.W. 2d 464 (Mo.

banc 1995) conforming Missouri instructional practice to the requirements of

Pacific Mut. Life Ins. Co. y, Haslip, 499 U.S. 1 (1991).

6

remitted by the trial court and were further reduced and remitted

by the Missouri Court of Appeals, Western District as set forth

in its opinion appended to Petitioners’ Brief. The Respondents

accepted the remittitur ordered by that court.

C. Subsequent Proceedings

On April 28, 1998, the Petitioners, without first requesting

a stay or seeking a reduction and continuation of their

supersedeas bond, paid the remitted judgment plus interest

thereon totaling $40,554,745 in Separate checks to the

Respondents as allocated by the Court.

As a condition for this payment, Petitioners required all

Respondents to execute in Open court the appended

Acknowledgment of Satisfaction and Waiver of Attorney’s Liens.

(App. A - pp. la-Sa; App. B - pp. 6a-l 1a). By that document,

which was prepared and approved by Petitioners’ attorneys,

the Respondents acknowledged that the “tender of payment

shall forever release and discharge defendants [TSA and TEC}

from any further obligations in this case except court costs...”

(Emphasis added).

After paying the judgment in this case and receiving the

foregoing release of all claims and satisfaction of judgment, the

Petitioners then filed their new brief in the Supreme Court of

Missouri in Letz v. Turbomeca Engine Corporation, et al., No.

80558. In support of that brief they attached the judgment

entered in this case on April 28, 1998 and expressly took the

position that their payment of the Barnett judgment entitled

them to an absolute credit against the Letz judgment in the sum

of $26,500,000 under the provisions of § 510.263.4, R.S. Mo.

(See Apdx. pp. A-10-12).

7

SUMMARY OF REASONS FOR DENYING THE WRIT

This case is moot. The underlying cause of action has been

extinguished by the execution of the release and satisfaction of

judgment appended hereto in which the Respondents released

and discharged the Petitioners from any further liability in this

case. In recognition of the finality of the release and the

satisfaction of judgment in this case and before filing the Petition

herein, the Petitioners claimed the benefit of all sums paid in

this case as an absolute credit against the punitive damages

awarded in a companion case now on appeal to the Supreme

Court of Missouri. There is thus no case or controversy

remaining to support this Court’s jurisdiction under 28 U.S.C.

§ 1257(a).

Apart from those considerations, there is no novel or

legitimate constitutional issue presented in the Petition. The court

below made a straightforward analysis of this case under the

due process principles set forth recently in BMW of North

America v. Gore, 517 U.S. 559 (1996), and correctly concluded

that the reprehensible and egregious conduct of Petitioners

shown of record warranted the imposition of substantial punitive

damages under the Missouri wrongful death statute. The

Petitioners had full advance notice that their persistent willful

and reckless conduct affecting the health and safety of Missouri

citizens could subject them to punitive damages when people

were killed or injured as a result of that type of conduct.

Petitioners’ tortious conduct was unlawful in every state in the

Union and elsewhere. The payment of the award did not

impermissibly affect the financial condition of the Petitioners

and in no way was violative of the Excess Fines Clause of the

Eighth Amendment.

8

REASONS FOR DENYING THE WRIT

I.

THE WRIT SHOULD BE DENIED BECAUSE THERE

IS NO LONGER A CASE OR CONTROVERSY FOR THE

SUPREME COURT TO RESOLVE BASED ON THE

FOLLOWING GROUNDS:

A. The Execution Of The Sworn Release Discharging

Petitioners From All Other Obligations To Respondents For

The Wrongful Death Of Their Son And Their Acceptance

Of Payment Of The Judgment Make This Action Moot.

The Petitioners did not bring to this Court’s attention the

appended Acknowledgment of Satisfaction of Judgment and

Waiver of Attorney’s Liens executed on April 28, 1998 by which

the Respondents released their claims against Petitioners. (App.

A - pp. la-Sa) . That release destroys any jurisdiction in this

Court. Under settled Missouri law, instigating the execution of

a general release from an opposing party without a reservation

of rights operates as an estoppel as a matter of law and constitutes

a settlement of all claims precluding further judicial action.’

Farmer v. Arnold, 371 S.W. 2d 265, 269 (Mo. 1963) makes

the point this way:

When the plaintiff Farmer paid Arnold $50 for a

release, and regardless of whether the release

5. By executing the general release and accepting payment in full

satisfaction of the judgment the Respondents did not simply extinguish their

cause of action against the Petitioners. Respondents’ acceptance of their

allocated portion of the judgment caused them to incur immediate income

tax liability for the punitive damage component of that judgment. They clearly

have detrimentally relied on the finality created by the general release and

payment of the judgment.

9

constituted the entire contract, the release was

executed at the instigation of Farmer for his own

immediate needs and benefit and he is now estopped

after rendering Arnold all but defenseless from

prosecuting one side of a tort action arising out of

a single transaction.

(Emphasis added).

Similarly, the Supreme Court of Missouri in Lugena v.

Hanna, 420 S.W. 2d 335, 341 (Mo. 1967), recognized that

litigation is ended when a party instigates and accepts a release

in his favor whether it be based on grounds of estoppel, waiver,

accord and satisfaction or other legal doctrines. Under Missouri

law, a release and payment precludes further action between the

parties as a matter of law because the cause of action has been

extinguished.° There is thus no longer a viable or justiciable

case or controversy between Petitioners and Respondents to

support this Court’s jurisdiction. The underlying cause of action

has been extinguished at the instigation of the Petitioners. This

case is moot.

Petitioners attempt to evade the mootness issue by citing

the dicta in County of Dakota v. Glidden, 113 U.S. 222, 224

6. Both Farmer v. Arnold and Lugena v. Hanna, supra, affirmed

summary judgments giving full preclusive effects to the releases in those

cases. Lugena v. Hanna at 341 captures the essence of the effect of the release

as follows:

in the absence of words in the operative part of a general release

which indicate an intention to limit or restrict its effect, it must

be concluded that the instrument was contemplated and

intended to be a complete settlement of all matters between the

parties to the release.

(Emphasis added).

10

(1885), stating the general rule that payment of a judgment,

standing alone, does not waive the payor’s right to appeal.

Petitioners’ reliance on that case is misplaced in view of the fact

that Petitioner’s sought and obtained a release and discharge of

all of their liability to Respondents in addition to paying the

judgment.

The Petitioners in this case thus stand on the same footing

as the Appellant in County of Dakota v. Glidden, supra. There

the court determined that the parties had effectively settled their

dispute which extinguished the cause of action and the judgment

based on it. The Court therefore dismissed the appeal as moot

when it was brought to its attention that the underlying cause

of action was extinguished.

In this case the general release executed by the Respondents

constituted a complete settlement of this case under Missouri

law. The resulting extinguishment of their cause of action

mooted this case. There is thus no case or controversy left for

this Court to resolve and the writ should be denied on the

authority of County of Dakota v. Glidden at 225 and the cases

cited therein.’

7. In County of Dakota v. Glidden at 224-225 the Court saw through

the argument that the appellant had merely paid the judgment to stay an

execution and noted: “But what was done was a different thing than that.”

That is also true in this case.

relist

11

B. The Case Is Moot Because The Petitioners Have Accepted

The Benefit Arising From The Release And Payment Of The

Judgment In This Case By Asserting To The Supreme Court

Of Missouri In Letz v. Turbomeca Engine Corporation, et

al., No. 80558 That They Are Entitled To A $26,500,000

Credit Against The Punitive Damages In That Case Under

Section 510.263.4, R.S. Mo.

The Petitioners also did not disclose to this Court that

following the execution of the general release and the payment

of the judgment, Petitioners on May 6, 1998 filed a new brief

in the Supreme Court of Missouri in the Letz case asserting as a

matter of law that they were entitled to a $26,500,000 credit

against the Letz judgment under Section 510.263.4, R.S. Mo.

by virtue of the payment and satisfaction of the Barnett

judgment.®

The acceptance of the benefits of the finality and satisfaction

of the Barnett judgment in the Letz case has adverse

jurisdictional consequences for Petitioners in this case. Dismissal

of the writ for certiorari is fully warranted based upon the

recognized jurisdictional principle that one who accepts the fruits

or benefits of a judgment may not appeal from it. See Tech

Hills II Associates v. Phoenix Home Life Mut. Ins. Co., 5 F.3d

963, 970 (6th Cir. 1993) and the cases cited therein.

Petitioners cannot simultaneously attack the Barnett

judgment in this Court and rely on it in the Supreme Court of

Missouri to be relieved of the $26,500,000 judgment for punitive

damages in that case. Petitioners legally bought out and

8. Petitioners’ baseless argument that it is subject to a “double whammy”

under Section 510.263.4, R.S. Mo. will be dealt with under Point II.D., below.

Suffice it here to point out that Petitioners are seeking the protection and

benefit of that statute in Letz based on the payment and finality of the Barnett

judgment.

|

12

extinguished the Barnetts’ interest in this case so that they could

perfect their right to a credit under Section 510.263.4, R.S.

Mo. in the Letz case with the consequence that the jurisdiction

of this Court has been similarly extinguished.

Il.

THE PETITIONERS HAVE NOT BEEN DENIED DUE

PROCESS AS A RESULT OF THE PUNITIVE DAMAGE

JUDGMENT OF $26,500,000.

There are no important due process issues presented in this

case nor any Rule 10 considerations present to justify granting

a writ of certiorari. The court below expressly applied the Due

Process standards recently enunciated by this Court in BMW of

North America v. Gore, 517 U.S. 559 (1996) and related decisions

to an unique, egregious case of tort liability involving a persistent

course of wilful conduct occurring over a seven year period. The

Missouri Court of Appeals’ analysis of the facts under BMW

overwhelmingly supports the reduced punitive award in this case.

A. Petitioners Knew That Their Tortious Conduct Involving

A Conscious Disregard For Human Safety Could Subject

Them To Punitive Or Aggravating Circumstances Damages

For Causing A Wrongful Death In Missouri.

Stripped to the essentials, the Petitioners argue that as far back

as 1986 that they have believed they could get away with what the

Missouri Court of Appeals determined was “unparalleled” tortious

conduct without suffering significant punitive consequences.’ They

9. TU76’s were known by Petitioners to break apart in-flight, detonate,

| stop engines and cause crashes and injuries. The continuing manufacture,

sale and servicing for almost seven years of such a known, dangerous product

and the active concealment of its dangerous characteristics from users and

(Cont'd)

el

a ,

13

now claim ignorance of a long line of Missouri cases holding

damages for “aggravating circumstances” under Section 537.090,

R.S. Mo. are punitive in character.’ In view of those cases there is

no substance to their claim that they had no notice that they could

(Cont'd)

safety authorities makes this case unique in U.S. product liability experience.

In no case has non-disclosure of a serious safety defect been so closely linked

to sales. In no case has a deliberate decision been made to substantially

increase the risk of product failure and injury by extending the time between

overhaul or repair for brutally commercial or competitive reasons. Cf. BM W

of North America v. Gore, supra, involving no such reckless disregard for

the health and safety of others, concealment or improper motives.

10. For at least 100 years before the Life Flight 2 crash it was

recognized that punitive or exemplary damages were recoverable under the

Missouri wrongful death statute if aggravating circumstances were shown to

exist. In Haehl v. Wabash R. Co., 24 S.W. 737, 741 (Mo. 1893) the Supreme

Court of Missouri stated:

It needs no argument to show that under this law, in a proper case,

exemplary damages may be given. It has been so held or assumed

as a self-evident proposition in every case in which the attention

of this Court has been called since the law was first enacted in

1855.

Under this law, damages akin to punitive damages were previously upheld in

crashes of aircraft upon the requisite showing of aconscious disregard or reckless

indifference to human safety. Weast v. Festus F lying Serv., 680 S.W. 2d 262, 267

(Mo. App. 1984) (removal of an anti-ice pump three weeks before the crash,

failure to record the removal and dispatch into potentially icy conditions), Blum

v. Airport Term. Serv., Inc., 762 S.W. 2d 67, 74 (Mo. App. 1988) (misfueling of

aircraft by use of jet fuel ina piston engine by an employee who was on the job

for only one week and received inadequate training). TSA and TEC were thus

on notice that isolated acts of misconduct, much less a nearly seven year continuing

course of tortious conduct, would subject them to the equivalent of punitive

damages when that conduct resulted in a wrongful death in Missouri. Missouri

was not a “safe harbor” for Petitioners’ reprehensible conduct that directly

impacted the health and safety of its citizens.

~~

14

be subjected to when people were killed in Missouri as a result of

a long running course of life-endangering tortious conduct.

Petitioners further equivocally state at page 10 of the brief

that TSA “may not even been aware that any of its engines had

found their way into Missouri.” That is a misstatement of fact.

TSA's advertising and promotional brochure used to promote

sales in the U.S. (P.Ex. 281) contains a photograph of a

helicopter in use as an air ambulance. The identifying number

on that helicopter is N728LF. That helicopter was Life Flight 2

shown flying in the State of Missouri.

B. The Petitioners’ Long-Term Wilful Conduct Was Not

Lawful In Any State In The United States Or Elsewhere

And Is Not Shielded By The Due Process Clause.

In an effort to trivialize the effects of their wilful conduct,

Petitioners equate their self-described “minimal” tortious

behavior with that shown in the BMW case. Petitioners suggest

that not all states or jurisdictions would regard its life-

endangering conduct as illegal or unlawful. Accordingly, they

argue that the Missouri courts did not accord them due process

by allowing evidence of the world-wide, harmful effects of their

centralized decision to keep selling a known defective part

common to all engines wherever sold or used in the world.

They cite no authority which even remotely suggests that the

following conduct is lawful anywhere in the world, much less

in France:

1. Continued sale and servicing for almost seven years of

a known, defective part that could unpredictably,

prematurely, and explosively fail in flight.

2. Continued sale and servicing of such a defective part

with knowledge of an increasing rate of failures resulting

15

in crashes involving serious personal injuries and total

destruction of helicopters.

3. Deliberate concealment and failure to warn buyers and

users of what Turbomeca management regarded as a

“serious safety problem” because such warning might

adversely affect sales.

4. Extension of the TBO from 2000 hours to 2500 hours

to keep up with their competition with knowledge of

the serious TU76 product defect that was literally built

into its engines.

5. Deliberate concealment of the true frequency and

magnitude of the TU76 produce failures and

consequences from U.S. safety authorities after the crash

of Life Flight 2.

There is obviously a vast difference between universally

condemned tortious conduct that can kill and injure people and

the repainting or touch-ups of luxury automobiles. BMW cannot

reasonably be stretched to shield the reprehensible conduct

shown of record in this case. Business decisions taken in the

executive offices of TSA with a conscious disregard for human

safety had a direct and foreseeable effect on the life of James

Barnett, Jr., and the other victims in Life Flight 2. Those

corporate decisions resulted in identically caused engine failures,

injuries and crashes in the U.S. and elsewhere.

Those corporate decisions produced the only truly unlawful

extraterritorial effect in this case, not the punitive damages

merited by those decisions.

16

C. Neither Petitioners’ Business Operations Nor Their

Finances Have Been Affected By The Punitive Damages

Assessed Against Them.

The Petitioners have failed to bring to the Court’s attention

that both of them were protected by a liability insurance policy

with liability limits of approximately $1,000,000,000 for all

damages arising out of this case. It is clear from the record

below that Petitioners’ considered this liability insurance as a

component of the net worth of both of the closely related

entities. In resisting the production of net worth information

by way of discovery, here is what one of their witnesses had to

Say at a hearing held below at page 37 of the hearing transcript

following a request for net worth information.'' (App. E - p.

21a):

THE WITNESS: Your Honor, I wonder if we

could cut through this if I get information from the

broker which shows that the — instead of it being

five billion french francs its 4.99 billion, is there

any point in chasing this net worth question around?

(Emphasis added).

The net worth issue presented on this appeal is, in any

event, makeweight.'? Contrary to Petitioners’ brief, the award

below has not been “financially ruinous” for them nor have

they been put out of business. They were fully protected by

11. This hearing was applicable in all Life Flight 2 cases based on the

case consolidation order for discovery purposes.

—_

12. The concurring opinion in BMW of North America v. Gore, supra

at 591, recognized that consideration of a defendant’s wealth or net worth is

not necessarily intended to act as a significant constraint on punitive awards

in any event.

17

insurance. The net worth point raised by Petitioners is calculated

solely to divert the Court’s attention away from the recognized

controlling factor in this case — the judicially determined

reprehensibility of their conduct under BMW in relation to other

appropriate factors. (Petitioners’ Apdx. pp. A-39-50). The

enormity of Petitioners’ conduct fully supports the judicially

reduced punitive award in this case.

D. There Is No Live Issue In This Case That Petitioners

Have Been Subjected To Any Impermissible Cumulative

Punishment Based On The Letz Case.

As noted above, the Petitioners are in fact seeking the

available protection of a statutory credit of $26,500,000 against

the punitive damages in the Letz judgment by virtue of the

payment and satisfaction of the Barnett judgment under the

very same Missouri statute they erroneously claim subjects them

to “a double whammy”, Section 510.263.4, R.S. Mo. Their

entitlement to such a statutory credit is now before the Supreme

Court of Missouri. The asserted issue of “cumulative

punishment” can only arise appropriately in that case; it is a

non-issue in this one. They have paid the judgment in this case

and taken a release which has extinguished the Respondents’

cause of action. If they do not obtain a credit from the Supreme

Court of Missouri in the Letz case in these circumstances, the

asserted issue of “cumulative punishment” will then, but only

then, be ripe for a petition to this Court in that case.

18

Il.

THE EXCESS FINES CLAUSE OF THE EIGHTH

AMENDMENT DOES NOT APPLY TO CIVIL ACTIONS

FOR DAMAGES BROUGHT AND MAINTAINED BY

PRIVATE LITIGANTS.

This Court has never applied the Eighth Amendment’s

Excess Fines Clause to a civil action. There is no compelling

reason to do so in a civil action for actual and punitive damages

brought by private litigants where due process and fairness is

already afforded under the standards articulated in BMW of North

America v. Gore, supra, and Pacific Mut. Life Ins. Co. v. Haslip,

499 U.S. 1 (1991). That is true notwithstanding the fact that a

State may be a passive beneficiary of a portion of punitive

damages. The Eighth Amendment’s Excess Fines Clause should

appropriately be reserved for fines levied directly by the

Government as punishment for a criminal offense. See United

States v. Bajakajian, __ U.S. __, 118 S. Ct. 2028 (1998).

The Petitioners implicitly concede the correctness of this

analysis by simply re-arguing their due process contentions

under this point.

19

CONCLUSION

For each of the reasons set forth in Respondents James

Barnett, Sr. and Wanda Barnett’s Brief, this Court should deny

the Petition for Writ of Certiorari filed by TSA and TEC.

Respectfully submitted,

JOHN J. WILLIAMS, III

GEORGE M. BOCK

Counsel of Record

SLAGLE, BERNARD

& GORMAN, P.C.

600 Plaza West Building

4600 Madison Avenue

Kansas City, Missouri 64112

(816) 410-4600

DUKE W. PONICK, JR.

2800 City Center Square

1100 Main Street

Kansas City, Missouri 64105

(816) 842-1130

Attorneys for Respondents

James §. Barnett, Sr. and

Wanda L. Barnett

APPENDIX

*

la

APPENDIX A — ACKNOWLEDGMENT OF

SATISFACTION OF JUDGMENT AND WAIVER OF

ATTORNEY’S LIENS FILED APRIL 28, 1998

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

AT KANSAS CITY

CASE NO.: CV93-24644

DIVISION 8

KYONG JU BARNETT, et al.,

PLAINTIFFS

V.

LA SOCIETE ANONYME TURBOMECA FRANCE

A/K/A TURBOMECA, S.A.., et al..

DEFENDANTS.

ACKNOWLEDGMENT SATISFACTION OF

JUDGMENT AND WAIVER OF ATTORNEY’S LIENS

Plaintiffs James Barnett, Sr. and Wanda Barnett, and their

attorneys of record, and each of them, pursuant to Supreme Court

Rule 74.11, RSMo 511.570 and RSMo 537.675, do hereby

acknowledge that the final money judgment entered in their favor

against the defendants herein on April 28, 1998, in this matter has

been fully and finally satisfied and that no further action in this

case is required of defendants for any purpose. Defendants’ tender

2a

Appendix A

of payment shall forever release and discharge defendants from

any further obligations in this case except payment of court costs

as determined in the ordinary course by the office of the Clerk of

the Circuit Court of Jackson County, Missouri. Said plaintiffs

and their attorneys further state that all liens for attorney’s fees

and expenses be and hereby are expressly waived in this matter.

APPROVED AND ACKNOWLEDGED:

Dated: 4-28-98 s/ James S. Barnett, Sr.

James Barnett, Sr.

Dated: 4-28-98 s/ Wanda L. Barnett

Wanda L. Barnett

Dated: 4-28-98 s/ Duke Ponick, Jr.

Duke Ponick, Jr.

Dated: 4/28/98 s/ John J. Williams III

John J. Williams, III for himself and

Slagle Bernard & Gorman, LLC

ATTORNEYS FOR PLAINTIFFS

JAMES BARNETT, SR. AND

WANDA BARNETT

STATE OF MISSOURI )

a

COUNTY OF JACKSON _ )

On this 28 day of April, 1998, before me, appeared James

Barnett, Sr., to me personally known, who being by me duly

sworn, did say that he has read the foregoing Acknowledgment

of Satisfaction of Judgment and Waiver of Attorney’s Liens, that

Dg at Nin Ds OCZLNADY a asi pce cl Ap ds PRahcn ANN Ds a Bol

3a

Appendix A

the facts set forth therein are true and correct and that he has

signed the same as his free act and will.

IN WITNESS WHEREOF, I have hereunto set my hand and

affixed my notarial seal at my office the day and year last above

written.

s/ Teresa A. Shell

Notary Public

My Commissions Expires:

[stamp] TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000 [stamp]

STATE OF MISSOURI )

) ss

COUNTY OF JACKSON)

On this 28 of April, 1998, before me, appeared Wanda

Barnett, to me personally known, who being by me duly sworn,

did say that she has read the foregoing Acknowledgment of

Satisfaction of Judgment and Waiver of Attorney’s Liens, that

the facts set forth therein are true and correct and that she has

signed the same as her free act and will.

IN WITNESS WHEREOF, I have hereunto set my hand and

affixed my notarial seal at my office the day and year last above

written.

_

eee EE

4a

Appendix A

s/ Teresa A. Shell

Notary Public

My Commission Expires:

[stamp] TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

Platte County

My Commission Expires: April 9, 2000 [stamp]

STATE OF MISSOURI )

) ss

COUNTY OF JACKSON __)

On this 28 day of April, 1998, before me, appeared John J.

Williams, III, to me personally known, who being by me duly

sworn, did say that he has read the foregoing Acknowledgment

of Satisfaction of Judgment and Waiver of Attorney’s Liens, that

the facts set forth therein are true and correct and that she has

signed the same as his free act and will.

IN WITNESS WHEREOF, I have hereunto set my hand and

affixed my notarial seal at my office the day and year last above

written.

s/ Teresa A. Shell

Notary Public

My Commission Expires:

[stamp] TERESA A. SHELL

Notary Public — Notary Seal

STATE OF MISSOURI

My Commission Expires: April 9, 2000 [stamp]

Sa

Appendix A

STATE OF MISSOURI )

) ss

COUNTY OF JACKSON __)

On this 28 day of April, 1998, before me, appeared Duke

Ponick, Jr., to me personally known, who being by me duly sworn,

did say that he has read the foregoing Acknowledgment of

Satisfaction of Judgment and Waiver of Attorney’s Liens, that

the facts set forth therein are true and correct and that he has

signed the same as his free act and will.

IN WITNESS WHEREOF, I have hereunto set my hand and

affixed my notarial seal at my office the day and year last above

written.

s/ Teresa A. Shell

Notary Public

My Commission Expires:

[stamp] TERESA A. SHELL

Notary Public — Notary Seal

Platte County

STATE OF MISSOURI

My Commission Expires: April 9, 2000 [stamp]

6a

APPENDIX B — EXCERPTS OF TRANSCRIPT OF

PROCEEDINGS, DATED APRIL 28, 1998

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

SIXTEENTH JUDICIAL CIRCUIT, DIVISION 8

HONORABLE LEE E. WELLS, JUDGE

No. CV93-24644

KYONG JU BARNETT, et al.,

Plaintiffs,

VS.

TURBOMECA ENGINE CORPORATION, et al.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

On Tuesday, the 28th day of April, 1998, the above-entitled

cause came on regularly for hearing before the honorable Lee E.

Wells, Judge of Division 8 of the Sixteenth Judicial Circuit, at Kansas

City.

APPEARANCES

Mr. Gary C. Robb Mr. Craig S. O’ Dear

Ms. Anita Porte Robb Mr. Nicholas L. DiVita

Robb & Robb, L.L.C. Bryan Cave, L.L.P.

Attorneys at Law Attorneys at Law

900 One Kansas City Place Suite 3500

6 senile

Ta

Appendix B

200 Main Street 1200 Main Street

Kansas City, Missouri 64105 Kansas City, Missouri 64105

Attorneys for plaintiffs Attorneys for defendants

Kyong Ju, Jesse, and Mia Barnett

Mr. John J. Williams, II]

Slagle, Bernard & Gorman, P.C.

Attorney at Law

600 Plaza West Building

4600 Madison

Kansas City, Missouri 64112

and

Mr. Duke W. Ponick, Jr.

Attorney at Law

1100 Main Street

Kansas City, Missouri 64105

Attorneys for plaintiffs James and Wanda Barnett

Mr. Edward F. Downey

Mr. Douglas E. Nelson

Office of Attorney General

Supreme Court Building

P.O. Box 899

Jefferson City, Missouri 65102

* * *

[9] Honor, we’ve now signed and executed and are in the

process of notarizing the acknowledgments.

8a

Appendix B

At this time we would like to present to counsel for the

defendants a fully executed and signed acknowledgment of

satisfaction of judgment and waiver of attorneys’ liens signed by

Mrs. Barnett on behalf of minor child, Mia Barnett, and myself,

and my law partner on behalf of our law firm, Your Honor.

MR. O’DEAR: We acknowledge receipt of this document.

MR ROBB: Also on behalf of Mrs. Kyong Ju Barnett, her

son, Jesse Barnett, myself, and my law partner, Anita Robb, for

our law firm, we present to counsel for defendant Turbomeca the

acknowledgment of satisfaction of judgment and waiver of

attorneys’ liens, Your Honor.

MR. O’DEAR: Again, we acknowledge receipt of this

document as well.

MR. WILLIAMS: If you will, we'll dispense with this

ceremony of doing it in this fashion. I think Mr. and Mrs. Barnett

are keeping in mind the reason that we’re here in the first place

was occasioned by the death of their son. They have executed

the acknowledgment, and I think we can handle this in the routine

fashion as far as exchanging the [10] checks.

THE COURT: You want the acknowledgment on the record

of course?

MR. O’DEAR: Yes.

Your Honor, at this time the Turbomeca defendants would

tender to Mr. Williams and Mr. Ponick on behalf of their clients,

James Barnett, Sr. and Wanda Barnett, a check for $5,603,117,

Check No. 2189581.

9a

Appendix B

We also acknowledge on the record the receipt of an

acknowledgment of satisfaction of judgment and waiver of

attorneys’ liens signed by James Barnett, Sr. and Wanda L. Barnett.

Duke Ponick, Jr., and John Williams for himself. and Slagle,

Bernard & Gorman, L.L.C. Is that correct, Mr. Williams?

MR. WILLIAMS: That’s right. It’s a professional association

but I think we’ve done all right.

MR. O’DEAR: Your Honor, the last check that we have is

to the State of Missouri.

Whoever is going to accept this on behalf of the State of

Missouri, could you identify yourself?

MR. NELSON: Douglas E. Nelson for the State of Missouri.

Your Honor.

Teresa, if you would be so kind to notarize ours, I would

appreciate it.

[14] THE COURT: Yes.

MR. ROBB: Another administrative matter. We ask counsel

for defendant to supply us with a copy of the executed

satisfactions of judgment.

MR. O’DEAR: We would be happy to do so, and we’ll

make copies as soon as the hearing is over.

10a

Appendix B

I would like to say too for the record, I’m presuming

everybody is going to go to the bank this afternoon. There

shouldn’t be any reason why anybody doesn’t have the money

by this afternoon.

MR. ROBB: On behalf of our client, that’s our intention,

Your Honor.

MR. WILLIAMS: Weare too, but I’m unfamiliar with the

banking rules for clearing these checks.

MR. O’DEAR: All right.

MR. ROBB: Your Honor, on behalf of our clients, Kyong

Ju, Jesse, and Mia Barnett, we ask this Court to sign the final

judgment indicating that there has been satisfaction of that

judgment in full, and then release and discharge the defendants

other than the payment of court costs as reflected in the document.

THE COURT: Judgment has been executed and the costs

will be taken care of by the cost department.

MR. WILLIAMS: Your Honor, if I may, I take it [15] the

defendants have approved the form and content of the satisfaction

of judgment since you supplied it to is that correct?

MR. O’DEAR: Oh, yes. Yes.

THE COURT: Are you going to file those with the Court?

MR. O’DEAR: Yes.

lla

Appendix B

THE COURT: I want to thank everybody for the cooperation

that’s been shown in obtaining a final closure on this matter. It’s

been exceptional and I’ve appreciated all of the help that was

received from all sides, and I’m delighted we’ re finally able to

conclude matter.

Thank you.

We'll be in recess.

(Adjournment. )

12a

APPENDIX C — SUBSTITUTE BRIEF FOR

APPELLANTS, FILED MAY 6, 1998

IN THE

SUPREME COURT OF MISSOURI

No. 80558

JODIE A. LETZ, Individually and as Guardian Ad Litem

and Next Friend of ERIC DAVID LETZ and

CHRISTOPHER SCOTT LETZ, Minor children, and as

Representative and Administratrix of the Estate of

SHERRY ANN LETZ, Deceased,

Plaintiffs-Respondents,

Vv.

TURBOMECA ENGINE CORPORATION and

TURBOMECA, S.A.,

Defendants-Appellants,

and

ROCKY MOUNTAIN HELICOPTERS, INC.,

Defendant.

Appeal from the Circuit Court of Jackson County,

Division 8

Hon. Lee E. Wells

—

SUBSTITUTE BRIEF FOR APPELLANTS

13a

Appendix C

BRYAN CAVE LLP

Thomas C. Walsh #18605

David S. Slavkin #21712

Elizabeth C. Carver #34328

One Metropolitan Square

211 N. Broadway

St. Louis, Missouri 63102

314-259-2000

Attorneys for Appellants

Following 17 days of trial, the case was submitted to the

jury on theories of strict liability, negligence, and failure to warn.

Defendants objected to the submission of damages for aggravating

circumstances (L.F. 478, 487; Tr. 3015), but the court submitted

all theories of recovery and aggravating circumstances ona single

verdict form, a practice condemned by this Court just two weeks

later in Bennett v. Owens-Corning Fiberglas Colp., 896 S.W.2d

464 (Mo. banc 1995).?

2. In the Barnett case, which was tried after Bennett, the same judge

submitted compensatory damages separately from aggravating circumstances

damages. The total verdict in that case was $175,000,000 for compensatory

damages and $1 75,000,000 for aggravating circumstances damages. On post-

trial motions in Barnett, the trial court ordered a remittitur to $77.5 million. The

Court of Appeals further reduced the judgment to $3,500,000 for compensatory

and $26,500,000 for aggravating circumstances. This Court denied transfer in

Barnett (No. 80559), and the plaintiffs in that case consented to the remittitur.

This Court may take judicial notice of the final judgment in that case, which is

reproduced in the Addendum to this brief. That judgment has now been satisfied,

as the Circuit Court's records reflect.

14a

Appendix C

~

After plaintiffs and RMH had solemnly stipulated before the

jury that the TU-76 was defective (Tr. 911-12), plaintiffs’ counsel

told the jury in closing not to award any damages against RMH

(Tr. 3120). The jury was also asked to assume that decedent had

died instantly and not to award any damages for her pain and

suffering (Tr. 3109).

We respectfully urge that the present case, if not reversed, is

a textbook candidate for application of the principals underlying

the doctrine of remittiur. And if this Court does not order a new

trial, defendants are entitled to a credit of $26,500,000 against

the punitive component of any surviving judgment under

§ 510.263.4 RSMo. by reason of the payment of that sum as

punitive damages in Barnett.

CONCLUSION

For the reasons stated, the judgment of the Circuit Court of

Jackson County should be reversed and the case remanded with

directions to enter judgment for defendants on the issue of

aggravating circumstances and to conduct a new trial on all other

issues.

15a

Appendix C

Respectfully submitted,

s/ Thomas C. Welsh

BRYAN CAVE LLP

Thomas C. Welsh #18605

David S. Slavkin #21712

Elizabeth C. Carver #34328

One Metropolitan Square

211 N. Broadway

St. Louis, Missouri 63102

314-259-2000

Attorneys for Appellants

May 6, 1998

16a

APPENDIX D — EXCERPTS OF DECLARATIONS PAGE

FOR LIABILITY INSURANCE POLICY NO. 93/14313

WITH LIABILITY LIMITS PAGE

FAUGERE & JUTHEAU

FAUGERE & JUTHEAU, S.A.

Société Anonyme de Couverage d’ Assurance

* . *

NOTE DE COUVERTURE

Nous soussignés, FAUGERE & JUTHEAU S.A. confirmons

avoir procédé au placement des risques defines d’aprés

SOUSCRIPTEUR-ASSURE: Société LIBINAL

5 Avenue Newton

MOTIGNY

LE BRETONNEUX — 78000

Agissant lant pour son compte

que pour le compte des

Sociétés qui loi sont affiliées et/

ou dans lesquelles elle

dériendrail des intéres, et

notamment:

— TURBOMECA

— TURBOMECA ENGINE

CORPORATION

PERIODE: 12 Mois in effet du ler Janvier

1993 (O heure)

RISQUES GARANTIS: (a) PARTIE A: 75 % Partie

de 100 “%:

17a

Appendix D

— lere Ligue: 250.000.000 de

Francs par occurrence et/

ou par année d’assurance,

y compris la contrevaleur

de US$ 100 Millions pour

le risque d’ Arrét des Vols:

* REUNION AERIENNE/

UAP: 75 % partie de

100%.

Cette Assurance s’exerco

suivant les Clauses.

Conditions et Exclusions de

la Police

N° 93 14313 énuse par la

REUNION AERIENNE

— Zéine Kugye (Excess):

4.750.000.000 de Francs

par occurrence et/ou par

année d’assurance, en

complément et/ou aprés

epuisement de 250.000.000

FF par occurrence et/ou par

année d’assurance.

* REUNION AERIENNE/

UAP: 32.50% partie de

100%

* AXA (AVIAFRANCE):

10.00% partie de 100%

18a

APPENDIX E — EXCERPTS OF TRANSCRIPT OF

PROCEEDINGS, DATED MAY 3, 1995

IN THE CIRCUIT COURT OF

JACKSON COUNTY, MISSOURI

SIXTEENTH JUDICIAL CIRCUIT, DIVISION 8

HONORABLE LEE E. WELLS, JUDGE

CV93-19156

JODIE LETZ, et al.,

Plaintiffs,

VS.

TURBOMECA ENGINE CORPORATION, et al.,

Defendants.

TRANSCRIPT OF PROCEEDINGS

On Wednesday, the 3rd day of May, 1995, the above-entitled

cause came on regularly for hearing before the Honorable Lee E.

Wells, Judge of Division 8 of the Sixteenth Judicial Circuit, at

Kansas City (Jackson County)

APPEARANCES

Mr. Gary C. Robb Mr. Randy W. James

Ms. Anita Robb Attorney at Law

Attorneys at Law Suite 100

3900 One Kansas City Place 10680 Barkley

Appendix E

1200 Main Street

Kansas City, Missouri 64105

Attorneys for plaintiffs

Letz

Mr. John Edward Chick, Jr.

Attorney at Law

2601 Kendallwood Parkway

Kansas City, Missouri 64119

Attorney for plaintiff

Roth

Mr. Dougias N. Ghertner

Mr. Lee M. Baty

Attorneys at Law

210 Plaza West Building

4600 Madison Avenue

Kansas City, Missouri 64112

Attorneys for defendants

Turbomeca, S.A. and

Turbomeca Engine Corporation

Mr. Paul V. Herbers

Attorney at Law

2400 City Center Square

P.O. Box 26770

Kansas City, Missouri 64196

Attorneys for defendant

Rocky Mountain Helicopters

Overland Park, Kansas 66212

Attorney for plaintiff

Hedrick

Mr. John J. Williams, III

Attorney at Law

600 Plaza West Building

4600 Madison Avenue

Kansas City, Missouri 64112

Attorney for plaintiffs

Barnett

20a

Appendix E

Mr. Michael R. Thiessen

Attorney at Law

1200 Main Street

Suite 1700

Kansas City, Missouri 64105

Conservator for Letz children

[6])* * *

THE COURT: I think you should provide them with a net

worth statement that is certified by some audit.

THE WITNESS: Your Honor’s goal is to get this done

expeditiously. I don’t know who their auditors are. I wouldn't

know how to go about getting that done expeditiously. I don’t

know who they are. I don’t know how to get it expeditiously. It

seems the expeditious way of resolving this net worth question is

the way that I thought you and I understood one another before

and that is if we have an annual report of Labinal which breaks

out Turbomeca, S.A. and Turbomeca Engine Corporation, we'll

give them the picture or give them a copy of the annual report if

we have an extra one around. If we don’t, we'll give them a

picture of the pertinent portions.

MR. WILLIAMS: If, Your Honor, I may get my [37] two

cents worth in. I assume the certified financial statements are a

part of the auditing process which I assume applies in Europe as

well as here. They have subsidiary balance statements for each

of the family of the Labinal companies; and, again, it should be

either in their hands or among the work papers of their auditors

that have to certify the financial statements of the parent, and I’m

confident that it would be in those records.

aaa LLL

2la

Appendix E

THE COURT: I would imagine they have that.

THE WITNESS: Your Honor, I wonder if we could cut

through this if I get information from the broker which shows

that the — instead of it being five billion French francs it’s 4.99

billion, is there any point in chasing this net worth question around?

* x *