Petition for Writ of Certiorari — Aladdin v. Grumman American Aviation Corp.

Cour, U.S.

FILED

- ~ 841699 APR 10 1995

Merce UF tint UctakK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

DIANE ALADDIN, et al,

Petitioners,

GRUMMAN AMERICAN AVIATION CORPORATION, et al.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

Arthur Alan Wolk*

WOLK & GENTER

1710-12 Locust Street

Philadelphia, PA 19103

(215) 545-4220

Counsel for Peiitioners

*Counsel of Record

PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

J

LA )

GaSe ke. prt ns Hus oa

QUESTIONS PRESENTED FOR REVIEW

1. Whether a court of appeals may rubberstamp a district

court’s evidentiary rulings in the guise of applying an abuse of

discretion standard, where the record on appeal conclusively

established, ten pages into the transcript of trial testimony, the

entry of a blanket preclusion order by the trial court.

2. Whether, as a matter of federal evidence law, a more

relaxed standard of substantial similarity is implicated where

other accidents are offered to show notice of a defect or dan-

gerous condition, than when other accidents evidence is

offered as direct proof of defect or causation.

. . * .

PARTIES TO THE PROCEEDING BELOW

The following persons and entities were parties before the

United States Court of Appeals for the Third Circuit: Diane

Aladdin, a Pennsylvania citizen, individually and as adminis-

tratrix of the estate of Ziad Aladdin, and Donna Dunlap, a

Pennsylvania citizen, individually and as executrix of the

estate of Carl Dunlap (appellants); Grumman American Avia-

tion and Grumman Aerospace Corporation, which purchased

certain aviation assets from Grumman American Aviation

(appellees).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... i

PARTIES TO THE PROCEEDING BELOW.......... ul

pe Ge Sas. 65 5 | > SP re Vv

EE pwc nk ch cee asabanaveccasesscesess 1

EE eee ere ee eee 2

SE MUU EMEIEERY «sees ceeceassreccecencssceesoess 2

EPUEMMEMIETE GE BREE CASE 2c ccc re ccccncccsecccass 2

REASONS FOR GRANTING THE WRIT............ 8

I.

Ii.

THE IMPRIMATUR OF THE THIRD CIR-

CUIT ON THE DISTRICT COURT’S

REFUSAL TO ALLOW PETITIONERS TO

LAY A FOUNDATION TO SHOW SUBSTAN-

TIAL SIMILARITY GOES TO THE VERY

UNDERPININGS OF OUR ADVERSARIAL

SYSTEM AND REQUIRES THE COURT'S

THERE IS A CONFLICT AMONG THE CIR-

CUITS AS TO THE QUANTUM OF PROOF

REQUIRED FOR SHOWING SUBSTANTIAL

SIMILARITY, THEREBY REQUIRING THE

COURT’S INTERVENTION AND GUID-

ANCE AS TO THE APPROPRIATE STAN-

DARD OF PROOF AND IF THE STAN-

DARD MAY BE RELAXED WHERE

NOTICE IS THE ISSUE SOUGHT TO BE

APPENDIX

Order of the United States Court of Appeals for the

Third Circuit on Petition for Rehearing dated

EE TE EP 6 et kGAG SDC e Kd eenedadeneasscceses

TABLE OF CONTENTS—(Continued)

Page

Judgment Order of the United States Court of Appeals

for the Third Circuit dated December 9, 1994 ...... 2a

Memorandum and Order of the United States District

Court for the Eastern District of Pennsylvania dated

Pe re ine ies .. 4a

Ni kann ge eee 18a

al is, scp cunciceeasicd eee 18a

a a NIN NE eR NILE OS A OT I

TABLE OF AUTHORITIES

Cases: Page

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)..... 14

Bowen v. American Hospital Association, 476 U.S. 610

SN Ritncdacwed chabesh eras ein bie eck eateckes 13

Brooks v. Chrysler Corp., 786 F.2d 1191 (D.C. Cir.), cert.

SE, GFW Bs Tee CAE 0 5 6 ok de ekscses ceaevess 10

Carey v. Hy-Temp Manufacturing, Inc., 929 F.2d 1229 (7th

SS 60054-6400 Ki cane eh sie enen sae 14, 16

Christianson v. Colt Industries Operating Corp., 486 U.S.

bien Shen bb a edee nets keke wad eeea 13

DiFrancesco v. Excam, Inc., 424 Pa. Super. 173, 642 A.2d

Se Stk noha Greek be. vasbieddedhesddaebes 13

Erie Railroad Co. v. Tomkins, 304 U.S. 64 (1938)....... 9

Exum v. General Electric Co., 819 F.2d 1158 (D.C. Cir.

Es Seth Gor hb ba sae wend keineeuansees passim

Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979

Fee Se Ee Ge SP ha 0h chews cnecdeksndes 10

Gumbs v. International Harvester, Inc., 718 F. 2d 88 (3d

a Sid ob ce dons hw cdkdosoderasceeksedn nck 16

Hanna v. Plast, FOO US. (25GB) 2... ccc cccnccccecccss 9

Jackson v. Firestone Rubber & Tire Co., 788 F.2d 1070

SC EE Siete paces ge tu pee h suns eeau 15

Johnson v. Colt Industries Operating Corp., 797 F.2d 1530

EE cdadavedtndusdssbineiasennees 10, 11

Jones v. Laughlin Steel Corp. v. Matherne, 348 F.2d 394

St 6 dncebevieed a cungedawkereeedsewas 11

Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549 (D.C.

DE Hen At cham bh phe tekbaeee ckeeKken 6008 15

Karns v. Emerson Electric Co., 817 F.2d 452 (10th Cir.

GRIEG Ean: ree Penn ro peer Pera ne paren eee eee 10

TABLE OF AUTHORITIES—(Continued)

Cases: Page

Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir. 1993)... 13

Natchtsheim v. Beech Aircraft Corp., 847 F.2d 1261 (7th

SO, SHES vddn vevevonnccvaccvetsesceteonsteeens 11

Ponder v. Warren Tool Corp., 834 F.2d 1553 (10th Cir.

Ra das wea sesctvecnsesvetbasnehenceeuséenns passim

Prashker v. Beech Aircraft Corporation, 258 F.2d 602 (3d

Cir.) cert. denied, 358 U.S. 910 (1958) ...........-- 16

Shields v. Sturm, Ruger & Co., 864 F.2d 379 (Sth Cir.

EE sah ebsenseyndinaeee bean ehasceeeeens eras 14

Walker v. Messersschmitt Bolkow Blohm GmbH, 848 F.2d

496 (Sth Cir. 1968)... cence ccccccccvcvcccececs 10

Yoffee v. Pennsylvania Power & Light, 385 Pa. 520, 123

IE GE CROs vc ccecaccccnereccescenvesessewes 13

Statutes and Rules:

PEE, DEED cc cccncscadceccocssnecessednvaves 2

i CE (ss oincseccn cused dveucvessenseweeaes 10

EE Mss co cccnnesvondeccdosbenesecaceees 2,8

ee ee | PPPPPPTeTTErererrerer eter 2,14

Sup. Ct. Rule 10.1(a) .........cccccccscccceccvececes 9

Other Authorities:

2 J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE

GOOTTIG) IGET wc ccccccccccvccvccscnnsegeses 11, 15

a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

DIANE ALADDIN, et ai.,

Petitioners,

GRUMMAN AMERICAN AVIATION CORPORATION, et al.,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The final order of the United States Court of Appeals for

the Third Circuit, on petition for rehearing, appears in the

appendix to this petition, as well as the judgment order of the

Court of Appeals (per Jane R. Roth, CJ.). Also appearing in

the appendix is the opinion and order of the United States

District Court for the Eastern District of Pennsylvania (Har-

1

2

vey Bartle III, D.J.), denying petitioners’ motion for judgment

as a matter of law or, in the alternative, for a new trial.

JURISDICTION

On January 9, 1995, the United States Court of Appeals

for the Third Circuit denied petitioners’ petition for rehearing

of its December 9, 1994 judgment. The jurisdiction of the

Court is invoked pursuant to 28 U.S.C. § 1254(1).

RULES INVOLVED

The rules involved in this case, Rules 403 and 404 of the

Federal Rules of Evidence, appear in the appendix to this

petition.

STATEMENT OF THE CASE

This civil action arises out of the fatal crash of a Grum-

man AA-IB flight training aircraft on July 29, 1990 in Spring-

field, New Jersey, which took the lives of Carl Dunlap, a flight

instructor, and Ziad Aladdin, a student pilot. Wrongful death

and survival actions were brought on behalf of the estates and

statutory heirs of these two gentlemen, which were tried

before a jury in November of 1993.

Plaintiffs, the widows and personal representatives of the

estates of the flight instructor and student pilot, filed suit

against the manufacturer of the AA-1B aircraft, Grumman

American Aviation Corporation, and its successor in interest,

Gulfstream Aerospace Corporation (hereinafter “Grum-

man”). (J.A. at 14-23). The Grumman defendants filed a third-

party complaint for contribution against Hortman Aviation,

Inc., the owner of the accident aircraft and the operator of the

flight school which employed Mr. Dunlap. (J.A. at 29-52).

Plaintiffs proceeded to trial on theories of strict liability

and negligence, and offered testimony that the accident was a

“stall/spin” accident which occurred when the student and

instructor were practicing emergency landings. (N.T. Nov. 3,

1993 at 41, 71) (J.A. at 784, 814). Plaintiffs offered engineer-

ing and piloting testimony that the AA-1B aircraft was unsuit-

2

able as a primary trainer because of its aerodynamic charac-

teristics, which made it unforgiving and unsuitable for

teaching students how to fly, and that the airplane had insuffi-

cient stall warnings to be used as a primary trainer. (N.T. Nov.

3, 1993 at 115-117; N.T. Nov. 4, 1993 at 17, 127) (J.A. at 858-

60, 1027, 1137). Grumman pyresented testimony that the

AA-IB aircraft was suitable as a primary training airplane,

that there was no problem with the stability or maneuverabil-

ity, that in fact the aircraft was “quite docile”, and that the

Federal Aviation Administration (“FAA”) had conducted

flight tests which indicated that there was nothing about the

aircraft which was unsuitable. (N.T. Nov. 8, 1993 at 178, 226-

228) (J.A. at 1614, 1662-64).

Grumman moved in limine to preclude any reference to

other accidents absent a showing of substantial similarity.

Prior to trial and without reviewing any of the documentary

evidence or hearing any testirnony, the trial judge precluded

plaintiffs from making reference to other AA-1 accidents, cau-

tioning counsel on the first day of trial that he was “not to

mention any other accidents. I’ve ruled on that.” (N.T. Nov. 3,

1993 at 10) (J.A. at 753). The excluded evidence fell into two

general categories: (1) the testimony of Michael N. Antoniou,

an engineering test pilot involved in the certification process,

who had personal knowledge of fifteen accidents; and (2) cor-

respondence by and between Grumman and the FAA con-

cerning a certification review prompted by a number of acci-

dents in the trainer, as weii as the flight test evaluation reports

issued by the FAA after that review.

As for the fifteen accidents of which Mr. Antoniou had

personal knowledge, the trial judge declined to allow plaintiffs

to even lay a foundation before excluding them. The following

colloquy took place at sidebar:

MR. WOLK: One of the areas I wanted to get into

with Mr. Antoniou was the fact that he has been con-

sulted as an expert in 15 prior stall spin accidents involv-

ing both the AAI and the AA1B series of airplanes. |

recognize your order and that’s why I’m here to see you

at sidebar because unlike a situation where the statistics

4

are in, this would be his own, as a factual matter, his own

participation in such accident investigations and actions

as a consultant.

And the purpose of this testimony would be to show

that there was notice to the company of stall spin acci-

dents that he has actual factual knowledge of participa-

tion in and then get into the studies that were done in

connection with the stall spin characteristics including the

NASA film.

MR. McKISSOCK: I object to that, your Honor, this

is just reopening the whole thing of other accidents, other

incidents that I thought was ruled on by the Court previ-

ously and it’s getting into entirely extraneous matters. We

have to basically try everyone of those other accidents

and it’s highly prejudicial to us.

MR. WOLK: The other, if i could just make one

other point to you, if I may, and that is that on the puni-

tive liability issue, the notice of the prior accidents, I

understand your ruling on statistical data. I have no prob-

lem, I can work with that. But on the issue of this man’s

actual knowledge and the actual notice to the company of

the accident histories that he was involved with, that’s 15

of them, it seems to me it’s different.

THE COURT: The problem is I don’t know if they’re

substantial and similar to what has occurred in this case.

MR. WOLK: But he’s saying —

THE COURT: And I’m concerned if we get into 15

other situations then we’re going to be trying 15 other

cases. Mr. McKissock would have the right to cross-

examine him about the nature of the other 15, whether they

were the same or whether they weren’t the same. | think

that’s going to unduly prolong the trial, so I’m going to

sustain the objection.

MR. WOLK: All right, there’s another point —

MR. GENTER: The other, the other thing is per-

haps, and maybe I’m confused about —

THE COURT: Just put your name on the record.

MR. GENTER: Richard Genter. Judge Ludwig, in

the Schofield case and we had submitted the brief to you

—

5

on allowed, since the compensation liability is so inter-

twined with the punitive liability case that the evidence

has to come in, otherwise you’d have to cal! this witness

back again.

THE COURT: Well, you may have to call him back.

I don’t know what, but I don’t have anything, any evi-

dence of this point that they are substantially similar and

we’re not going to try 15 other cases here that will unduly

prolong the trial. So, I will sustain the objection.

(N.T. Nov. 3, 1993 at 237-38) (J.A. at 980-83).

The jury was prevented from hearing not only about

those fifteen accidents, but about other accidents which

prompted a certification re-evaluation by the FAA, an evalu-

ation which tied into testimony the trial court did allow about

pre-certification problems. Mr. Antoniou, the engineering test

pilot, told the jury about a number of evaluation flights he

made in the 1960s while the aircraft was in the prototype

stage, as a result of which he discovered a number of problems

in the AA-1 prototype aircraft. Mr. Antoniou testified that the

prototype was unsuitable as a primary trainer for teaching stu-

dents how to fly because it had problems with controllability;

that is, with its stability control. (N.T. Nov. 3, 1993 at 197).

Mr. Antoniou prepared a flight test evaluation report in

which he reported unbalanced flight conditions prior to stall, a

condition which normally resulted in a spin, and which he

believed merited further evaluation. Mr. Antoniou also found

the aerodynamic stall warning to be negligible to nonexistent

in all configurations tested. (N.T. Nov. 3, 1993 at 198, 199)

(J.A. at 941, 942). Mr. Antoniou determined that there were

several areas — loss of stability as stall was approaching, bilat-

eral directional dynamic stability characteristics, landing char-

acteristics, and sink rate characteristics — which required

re-evaluation as they affected safety of flight and the suitabil-

ity of the airplane to perform its intended role as a primary

trainer for student pilots. (N.T. Nov. 3, 1993 at 202) (J.A. at

945).

Mr. Antoniou’s recommendations for correcting the prob-

lems with the airplane were not heeded. Grumman failed to

take steps recommended by Mr. Antoniou to clean up the

6

drag characteristics of the airplane: the company did not

increase the wing area to reduce the required angles of attack,

did not reshape or clean up the fuselage or other high drag

areas, did not increase the aspect ratio to improve wing effi-

ciency, nor did it do any combination of these steps. (N.T. Nov.

3, 1993 at 226, 228) (J.A. at 971). In other words, though

Grumman could have redesigned the aircraft to correct these

problems to make it suitable for use as a primary trainer, they

did not do so. (N.T. Nov. 3, 1993 at 230-31) (J.A. at 973-74).

After Mr. Antoniou resigned from the company, the air-

craft was signed off for public use by a designated engineering

representative, a company employee who stood in the shoes of

the FAA, and a type certificate was issued. (N.T. Nov. 3, 1993

at 232) (J.A. at 975). Each of the AA-1 series models — the

AA-1, AA-1A, AA-1B, and AA-1C — share a type certifi-

cate, which means that there was no major change in design

for each model in the series. (N.T. Nov. 3, 1993 at 233-34)

(J.A. at 976-77).

A series of stall/spin accidents prompted the FAA to con-

duct a certification review of the AA-1A and AA-1B aircraft

after defendants had certified them under their DER author-

ity to look into the very issues Mr. Antoniou had warned

about while the aircraft was in the production stage. The FAA

“formally notif[ied] American Aviation Corporation of our

desire to conduct a re-evaluation of the stall and spin charac-

teristics of the Models AA-1 and AA-1A”. The “decision to

take this step has been prompted by a relatively high percent-

age of stall/spin related accidents in the AA-1 and AA-1A in

relation to the number of registered aircraft.” (J.A. at 281). In

response to a request by Grumman for additional information

relating to the FAA's decision, the FAA advised “that based

on service history the FAA was attempting to determine if

there was a possible unsafe feature,” and “was becoming

increasingly concerned with the frequency of stall-spin acci-

dents. . . .”, all of which was confirmed by Grumman's own

business records. (P-14) (J.A. at 286).

In fact, the flight test report issued by the FAA stated that

flight test evaluation was conducted for the following reason:

ee

7

During the period of November 2, 1969 to July 1,

1973, there were a total of fourteen stall/spin accidents

involving the American Models AA-1, AA-1A, and AA-

1B Airplanes. Available evidence indicated that seven of

these accidents probably were flat spins. As a result of the

flat spin accidents, the FAA conducted an airworthiness

certification review of these airplanes’ stall-spin character-

istics to determine that they are in compliance with the

provisions of FAR 23.221(a) and (b) as originally certifi-

cated for the Normal and Utility categories.

After reviewing the available accident information

... and spin accident statistics of other similar airplanes,

AGL-210 concluded that it was apparent that spins were

being performed intentionally (spins are prohibited) and

that the only significant grounds for investigating these atr-

planes was the occurrence of four probable flat spin acct-

dents. During the course of this investigation, three more

probable flat spin accidents occurred.

(J.A. at 308, 309, 366, 367, 380, 381). Ignoring the language

that “the only significant grounds for investigating these air-

planes was the occurrence of four probable flat spin acci-

dents,” the trial court reached the conclusion that the FAA's

action was prompted by a concern about pilots performing

intentional spins and, in the court’s view, “did not identify any

problem with the craft’s normal operation.” (App. 15a).

The jury never knew about any of these documents

because the trial court deemed the FAA reports and related

correspondence to be irrelevant to the “issues involved in this

case.” (N.T. Nov. 4, 1993 at 32) (J.A. at 1042). The trial court

precluded any reference to other accidents, ultimately ruling

that this evidence, if it came in, would only be admissible on

the issue of any punitive damages to be awarded, an issue the

trial court bifurcated. (N.T. Nov. 3, 1993 at 237-38) (J.A. at

980-83). In addition to ruling this evidence to be inadmissible

in plaintiffs’ direct case, the trial court also precluded any ref-

erence to any of these documents or to the accident history

during cross-examination of defense witnesses.

After asking the district court whether there were any

other accidents, the jury returned a verdict in favor of defen-

8

dants and against plaintiffs. (N.T. Nov. 10, 1993 at 122,

124)(J.A. at 247, 2037, 2039). The jury answered “no” to the

questions “[w]as the AA1B aircraft defective at the time it

was sold” and “[w]ere defendants Grumman/Gulfstream neg-

ligent”. (N.T. Nov. 10, 1993 at 122) (J.A. at 247). Judgment

was entered based on the answers of the jury to the special

interrogatories. (J.A. at 252).

Plaintiffs filed a motion for new trial and for judgment as

a matter of law because the rulings taking the accident history

away from the jury was legal error, warranting the grant of a

new trial. (J.A. at 253-59). The district court denied the

motion for new trial as to the exclusion of plaintiffs’ proposed

other accidents evidence because “despite the court’s stated

concerns, plaintiffs never submitted any evidence or made an

offer of proof from which the court could have made a deter-

mination of admissibility,” (App. at 7a), and that this testi-

mony was excluded “only after plaintiff was afforded ample

opportunity to make the requisite showing of similarity.”

(App. at 8a). The court reasoned that “allowing the testimony

would have led to a series of ‘mini-trials’ as counsel explored

the circumstances surrounding each of the 15 other accidents”

and concluded that it was therefore properly excluded under

Rule 403. (App. at 8a-9a). The court reached the same conclu-

sion under Rule 403 with respect to the testimony relating to

the FAA’s re-evaluation of the airplane. (App. at 13a).

Plaintiffs took a timely appeal to the United States Court

of Appeals for the Third Circuit. After entertaining oral argu-

ment, the Third Circuit affirmed on December 9, 1994. (App.

at 2a). The subsequent petition for rehearing was denied on

January 9, 1995. (App. at 1a).

REASONS FOR GRANTING THE WRIT

Consideration by the Court is necessary because of the

effect of the blanket preclusion order by the trial court,

entered without first seeing the evidence and without allowing

plaintiffs to lay a foundation, which was rubberstamped by the

court of appeals. The effect of the decision is to create non-

9

uniformity between the federal courts and the state courts in

applying Pennsylvania law because the decision of the trial

court and the court of appeals is given precedential effect — a

federal court sitting in diversity applying Pennsylvania prod-

ucts liability law will not permit evidence of prior accidents,

but state courts required to follow the law of the appellate

courts of Pennsylvania will be required to allow such evidence.

This Court’s decision in Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938), was prompted by a concern that rights

would vary according to whether enforcement was sought in

state or federal court. Jd. at 74-75. The twin aims of the Erie

rule, “discouragement of forum shopping and avoidance of

inequitable administration of the laws,” Hanna v. Plumer, 380

U.S. 460, 468 (1965), are surely implicated here. Petitioners

have been deprived of meaningful review of their state law

claims solely because this case was adjudicated in a federal

forum, contrary to the goals of Erie and its progeny. Litigating

in a federal forum should not be outcome-determinative, and

certainly rulings like those made in this case have rendered

the federal courts a very hostile environment for plaintiffs to

litigate products liability claims. If the federal trial courts

make decisions that evidence will not be allowed in, even

though the same evidence would come in had the case been

litigated in state court, then there is no justice or fairness, the

promise and premise of the federal courts.

Reviewing an evidentiary determination for abuse of dis-

cretion does not mean no appellate scrutiny whatsoever, par-

ticularly where application (or in this case, non-application) of

a legal standard is in question. In upholding the erroneously

based decision of the district court, the Third Circuit, it may

truly be said,

Has so far departed from the accepted and usual

course of judicial proceedings. . .as to call for an exercise

of this Court’s power of supervision.

Sup. Ct. R. 10(a)(1).

Moreover, the federal courts have engrafted a require-

ment that other accidents must be “substantially similar” in

order to be relevant and admissible as a matter of federal evi-

dence law. Four of the courts of appeals — the Fifth, Seventh,

10

Tenth, and District of Columbia Circuits — have relaxed the

degree of similarity requirement where, as here, the other

accidents evidence is being offered to show notice. Not so the

Third Circuit. As a matter of federal evidence law, then, the

Court’s guidance is needed to address the standard where the

other accidents evidence is not introduced to show dangerous-

ness or defect but to show notice or knowledge thereof.

I. THE IMPRIMATUR OF THE THIRD CIRCUIT ON

THE DISTRICT COURT’S REFUSAL TO ALLOW

PETITIONERS TO LAY A FOUNDATION TO SHOW

SUBSTANTIAL SIMILARITY GOES TO THE VERY

UNDERPINNINGS OF OUR ADVERSARIAL SYS-

TEM AND REQUIRES THE COURT’S REVIEW.

“In product liability actions, the occurrence of similar

accidents or failures involving the same product has great

impact on a jury, as it tends to make the existence of the

defect more probable than it would be without the evidence.”

Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d

1434, 1440 (10th Cir. 1992). See also Fed. R. Evid. 401. “A

manufacturer’s knowledge of other similar accidents is proba-

tive of the manufacturer’s knowledge of defect and of whether

the design was inadequate.” Walker v. Messerschmitt Bolkow

Blohm GmBH, 848 F.2d 496, 497 (5th Cir. 1988). “In such

actions, courts routinely permit the introduction of substan-

tially similar acts to demonstrate notice, the existence of a

defect, or to refute testimony given by defense witnesses.”

Four Corners Helicopters, 979 F.2d at 1440.

Generally, the admission of evidence “regarding prior

accidents or complaints is predicated upon a showing that the

circumstances surrounding them were substantially similar to

those involved in the present case.” Karns v. Emerson Electric

Co., 817 F.2d 452, 460 (10th Cir. 1987). Accord Exum v. Gen-

eral Electric Co., 819 F.2d 1158, 1162 (D.C. Cir. 1987); Johnson

v. Colt Industries Operating Corp., 797 F.2d 1530, 1534 (10th

Cir. 1986); Brooks v. Chrysler Corp., 786 F.2d 1191, 1195 (D.C.

Cir.), cert. denied, 479 U.S. 853 (1986). “Whether a reasonable

inference may be drawn as to the harmful tendency or capac-

ity of [a product] from prior failures depends upon whether

11

the conditions operating to produce the prior failures were

substantially similar to the occurrence in question.” 2 J. Wein-

stein & M. Berger, WEINSTEIN’S EVIDENCE { 401[10] (1987)

(quoting Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d

394, 400 (Sth Cir. 1965)).

The underlying theme in the case law is that the party

seeking to offer other accidents evidence has to be given an

opportunity “to establish certain facts about the other acci-

dents that permi[t] a useful comparison to be made.” Nacht-

sheim v. Beech Aircraft Corp., 847 F.2d 1261, 1269 (7th Cir.

1988). “The typical and preferable method of introducing such

evidence is through the testimony of one familiar with the

similar accident or the subsequent litigation.” Ponder v. War-

ren Tool Corp., 834 F.2d 1553, 1560 n.8 (10th Cir. 1987) (quot-

ing Johnson, 797 F.2d at 1534 n.4). “Nonetheless, this proce-

dure is not mandatory provided the evidence proffered by the

plaintiff is sufficiently substantial, probative, and reliable.”

Ponder, 834 F.2d at 1560 n.8.

The uncontroverted record was that:

1. Other accidents evidence of any kind was pre-

cluded as “irrelevant to the issues in this case,” (N.T. Nov.

4, 1993 at 32) (J.A. at 1042), even though other accidents

are relevant to the issue of notice under Pennsylvania

products liability law and federal evidence law and plain-

tiffs informed the trial court this was the reason the evi-

dence was being proffered. (N.T. Nov. 3, 1993 at 238)

(J.A. at 981).

2. The trial court ruled before the trial began that

evidence of other accidents would be prohibited even

though no documents were attached to defendants’

motions in limine nor did defendants make any reference

in their motions to what witnesses were expected to tes-

tify about what other accidents, thus deciding in a vacuum

that other accidents evidence was irrelevant without even

knowing what the other accidents evidence was going to

be. (J.A. at 56-62, 68-87, 96-105).

3. On the first day of trial, before a single witness was

sworn, and before any testimony was taken or a single

document received into evidence, the trial court cau-

12

tioned plaintiffs’ counsel that his witnesses were not to

“mention any other accident. I’ve ruled on that.” (N.T.

Nov. 3, 1993 at 10) (J.A. at 753).

4. The trial court precluded plaintiffs from offering

testimony from one of their experts about fifteen acci-

dents he personally investigated because “we’re not going

to try 15 other cases here that will unduly prolong the

trial,” a judgment made without hearing what the witness

had to say. (N.T. Nov. 3, 1993 at 237-38) (J.A. at 980-83).

5. The trial court precluded the plaintiffs from intro-

ducing, referring to, or otherwise using a flight test evalu-

ation report prepared after a certification review by the

Federal Aviation Administration, which was prompted by

a number of stall and spin accidents, or any other evi-

dence relating to the certification review, concluding that

the FAA was concerned with intentional spins, although

to do so the court had to disregard the plain language of

the report which indicated that the FAA was concerned

about the safety-of-operation characteristics of the air-

craft because of the unusually high number of accidents,

and plaintiffs’ witnesses would have so testified had the

court permitted them to do so. (J.A. at 281- 434).

6. The trial court did not allow plaintiffs to use any

evidence of other accidents on cross-examination, even

though defense witnesses were permitted to testify that

the aircraft had no accident history whatsoever and that

the FAA had given the aircraft a clean bill of health, the

FAA flight test evaluation report notwithstanding. (N.T.

Nov. 8, 1993 at 228-230, 233, 238-39, 243-44, 247-48, 253)

(J.A. at 1664-66, 1669, 1674-75, 1679-80, 1683-84, 1687).

7. The trial court did not allow plaintiffs to use other

accidents or the FAA flight test evaluation report on redi-

rect after defendants opened the door during the cross-

examination of plaintiffs’ witnesses by inviting compari-

son to training airplanes manufactured by other aircraft

manufacturers. (N.T. Nov. 3, 1993 at 165-66; N.T. Nov. 4,

1993 at 37, 137-39, 140) (J.A. at 908-09, 1047, 1147-49,

1150).

13

8. The first question the jury asked as it deliberated

was whether there were any other accidents. (N.T. Nov.

10, 1993 at 120-21) (J.A. at 2037-38).

What the trial court did was to issue a blanket preclusion

order prohibiting other accidents for any purpose, an order

from which the court would not stray, not only in disallowing

this evidence in plaintiffs’ direct case, but in repeatedly rebuff-

ing plaintiffs’ efforts to use any of this evidence to cross-

examine defense witnesses or rehabilitate plaintiffs’ witnesses

on redirect. The effect of so sanitizing the trial was reflected

not only in tue verdict but in the jury’s own inquiry into the

accident history of the AA-1 series airplane.

The blanket preclusion order likewise deprived plaintiffs

of the ability to prove negligence and strict liability theories

under Pennsylvania law. Evidence of other accidents is admis-

sible in negligence and products cases to show notice and as a

matter of substantive proof. Yoffee v. Pennsylvania Power &

Light, 385 Pa. 520, 123 A.2d 636, 648-49 (1956); DiFrancesco

v. Excam, Inc., 434 Pa. Super. 173, 642 A.2d 529, 537 (1994).

The Third Circuit uses the familiar abuse of discretion

standard in reviewing evidentiary rulings, and while eviden-

tiary rulings are viewed under an abuse of discretion standard,

the failure to apply a legal standard is reviewed is subject to

plenary review. Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir.

1993). Had the Third Circuit applied its own standard here, it

could not and would not have affirmed the trial court. A trial

court which does not allow a plaintiff to lay a foundation of

substantial similarity or to otherwise utilize evidence neces-

sary to sustain the burden of proof has not abused its discre-

tion but, rather, has failed to exercise any discretion at all. A

reviewing court which rubberstamps abusive discretion with a

judgment order has departed from the duty of responsible

appellate review.

A petition for writ of certiorari exposes the entire case for

review. Christianson v. Colt Industries Operating Corp., 486

U.S. 800, 817 (1988). The Supreme Court reviews judgments,

not opinions. Bowen v. American Hospital Association, 476

U.S. 610, 626 (1986) (plurality opinion). Mrs. Aladdin and

Mrs. Dunlap are entitled to review, and not simply to an

14

appellate court summarily disposing of another diversity case

in order to clear its docket. The Court has in the past granted

certiorari to review evidentiary determinations by trial courts

and has found abuse of discretion, Beech Aircraft Corp. v.

Rainey, 488 U.S. 153 (1985), being a recent example. The

Court should grant certiorari in this case to review the whole

case and the discretion abused here.

Il. THERE IS A CONFLICT AMONG THE CIRCUITS

AS TO THE QUANTUM OF PROOF REQUIRED

FOR SHOWING SUBSTANTIAL SIMILARITY,

THEREBY REQUIRING THE COURT’S INTER-

VENTION AND GUIDANCE AS TO THE APPRO-

PRIATE STANDARD OF PROOF AND IF THE

STANDARD MAY BE RELAXED WHERE NOTICE

IS THE ISSUE SOUGHT TO BE PROVEN.

Rule 404 of the Federal Rules of Evidence, which governs

other accidents evidence, says nothing about other accidents

evidence being substantially similar to the accident at issue in

a particular case. See Fed. R. Evid. 404(b). The substantial

similarity requirement has been engrafted on to the rule as a

matter of federal evidence law. The substantial standard is not

applied rigidly but is subject to a sliding scale of similarity

based upon the reason why the evidence is being offered.

Several courts of appeals, although not the Third Circuit,

apply a relaxed standard where other accidents evidence is

offered to show notice. See, e.g., Carey v. Hy-Temp Manufac-

turing, Inc., 929 F.2d 1229, 1235 n.2 (7th Cir. 1991) (“Substan-

tially similar” does not mean “identical” and range between

“substantially similar” and “identical” is specifically broad-

ened when similar events are used to show notice to manufac-

turer as opposed to showing defect in product); Shields v.

Sturm, Ruger & Co., 864 F.2d 379, 381 (Sth Cir. 1991) (rule

that other accidents must be substantially similar to one at

issue is relaxed where evidence is introduced to show notice of

a dangerous condition); Ponder v. Warren Tool Corp., 834 F.2d

1553, 1560 (10th Cir. 1987) (where evidence of other accidents

is used to show notice of awareness of dangerous condition,

rule requiring substantial similarity of other accidents should

15

be relaxed); Exum v. General Electric Co., 819 F.2d 1158 (D.C.

Cir. 1987) (if accident is offered to prove notice, lack of exact

similarity of condition will not cause exclusion provided acci-

dent was of a kind which should have served to warn defen-

dant). The District of Columbia Circuit, in fact, has gone so

far as to hold that the substantial similarity standard is relaxed

where the unrelated accidents are offered for any purpose

other than to prove the product was unreasonably dangerous.

Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 555 (D.C.

Cir. 1993).

The courts which have applied this relaxed standard have

stated that the quantum of proof necessary to lay a foundation

of substantial similarity depends upon the reason(s) why the

evidence is being offered:

In determining whether accidents are “substantially

similar,” the factors to be considered are those that relate

to the particular theory underlying the case. Differences

in the nature of the defect alleged may affect a determi-

nation whether the accidents are substantially similar. See,

e.g., Jackson, 788 F.2d at 1083 (“[T]he ‘substantially simi-

lar’ predicate for the proof of similar accidents is defined

... by the defect. . .at issue.”) Moreover, “[h]ow substan-

tial the similarity must be is in part a function of the pro-

ponent’s theory of proof.” Exum, 819 F.2d at 1162. “If

dangerousness is the issue, a high degree of similarity will

be essential. . . .If the accident is offered to prove notice,

a lack of exact similarity of conditions will not cause

exclusion provided the accident was of a kind which

should have served to warn the defendant.”

Exum, supra, 819 F.2d at 1162-63 (quoting 2 J. Weinstein & M.

Berger, Weinstein’s Evidence J 401[10], at 401-66-67 (1987)).

When evidence of other accidents is used to prove notice or

awareness of a dangerous condition, the rule requiring sub-

stantial similarity of those accidents to the one at issue should

be relaxed. Jackson, supra, 788 F.2d at 1083. Once a court has

determined that accidents are substantially similar, “[a]ny dif-

ferences in the circumstances surrounding those occurrence go

merely to the weight to be given the evidence.” Ponder v.

Warren Tool Corp., supra, 834 F.2d at 1560 (footnote omitted).

16

“Substantially similar” does not mean “identical.” Carey

v. Hy-Temp Manufacturing, Inc., 929 F.2d 1229, 1235 n.2 (7th

Cir. 1991). Rather, “[t]he range between similar and identical

is a matter to be addressed on cross-examination.” Jd. at 1235.

The types of factors necessary to show sufficient similar-

ity as to plaintiffs’ theory of defect here include the type of

spin, weather conditions, altitude, and instructional or pilci

practice. To show notice or knowledge of the propensities of

the product, on the other hand, plaintiffs need not have shown

that the accidents occurred in precisely the same manner, any

differences going to the weight of the evidence. Jackson,

supra, 788 F.2d at 1083. “How substantial the similarity must

be is in part a function of the proponent’s proof.” Exum,

supra, 819 F.2d at 1162.

Unlike the other courts of appeals, the Third Circuit has

not developed a body of other accidents case law. The two

most frequently cited other accidents cases, Gumbs v. Interna-

tional Harvester, Inc., 718 F.2d 88 (3d Cir. 1983) and Prashker

v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir.), cert. denied, 358

U.S. 910 (1958), involved the law of the Virgin Islands and

pre-strict liability Pennsylvania negligence law, respectively,

and pre-date the developing body of federal evidence law

employing the relaxed standard in notice cases.

Certainly the evidence of record, showing actual notice to

Grumman from the government of the dangerous aerody-

namic characteristics of the airplane, meets this relaxed stan-

dard. The Court should grant certiorari to resolve the question

whether a relaxed standard of proof is implicated in notice

cases.

17

CONCLUSION

For the reasons set forth above, petitioners urge that this

petition for writ of certiorari be granted.

Respectfully submitted,

Arthur Alan Wolk*

WOLK & GENTER

1710-12 Locust Street

Philadelphia, PA 19103

(215) 545-4220

Counsel for Petitioners

*Counsel Of Record

APPENDIX

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-1552

DIANE ALADDIN, Administratrix of the Estate of

Ziad Aladdin, Deceased and DIANE ALADDIN,

In Her Own Right, and DONNA DUNLAP,

Executrix of the Estate of Carl Dunlap, Deceased

and DONNA DUNLAP, In Her Own Right,

Appellant,

v.

GRUMMAN AMERICAN AVIATION CORPORATION and

GULFSTREAM AEROSPACE CORPORATION,

Third-Party Plaintiffs

v.

HORTMAN AVIATION, INC.,

Third-Party Defendant.

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,

COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE,

and SAROKIN, Circuit Judges

SUR PETITION FOR REHEARING

The petition for rehearing filed by appellants in the

above-entitled case having been submitted to the judges who

participated in the decision of this Court and to all th. other

available circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.

By the Court,

/s/ Jane R. Roth

Circuit Judge

Dated: JAN 9 1995

2a

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 94-1552

DIANE ALADDIN, Administratrix of the Estate of

Ziad Aladdin, Deceased and DIANE ALADDIN,

In Her Own Right, and DONNA DUNLAP,

Executrix of the Estate of Carl Dunlap, Deceased

and DONNA DUNLAP, In Her Own Right,

Appellant,

V.

GRUMMAN AMERICAN AVIATION CORPORATION and

GULFSTREAM AEROSPACE CORPORATION,

Third-Party Plaintiffs

Vv.

HORTMAN AVIATION, INC.,

Third-Party Defendant.

Appeal from the United States District Court for the Eastern

District of Pennsylvania (D.C. Civil Action No. 92-cv-03918)

(District Judge: Honorable Harvey Bartle, III)

Argued on December 6, 1994

Before: STAPLETON, ROTH and LEWIS, Circuit Judges

3a

JUDGMENT ORDER

After consideration of all contentions raised by appellant,

IT Is ADJUDGED AND ORDERED that the judgment

of the District Court entered April 22, 1994, be and is hereby

affirmed.

Costs to be taxed against appellants.

BY THE COURT:

/s/ Jane R. Roth

Circuit Judge

Attest:

/s/ PB. Douglas Sisk

P. Douglas Sisk, Clerk

Dated: DEC 9 1994

Certified a true copy and issued in lieu

of a formal mandate on January 17, 1995

Teste: /s/ P. Douglas Sisk

Clerk, United States Court of Appeals

for the Third Circuit

4a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DIANE ALADDD, et al. : CIVIL ACTION

v.

GRUMMAN AMERICAN AVIATION : NO. 92-39 18

CORPORATION, et al. ;

MEMORANDUM

Bartle, J. April 22, 1994

This case arises out of the fatal crash of a two seat, single

engine aircraft, in which Ziad Aladdin and Carl Dunlap were

killed.

Plaintiffs, the widows of the decedents, brought wrongful

death and survival actions against the designer and manufac-

turer of the aircraft, defendants Grumman American Aviation

Corporation (“Grumman”) and Gulfstream Aerospace Cor-

poration (“Gulfstream”), the corporate successor to Grum-

man. The case proceeded to trial before a jury on theories of

strict liability and negligence. The jury returned a verdict in

favor of defendants on both theories. Before the court is the

plaintiffs’ motion for judgment as a matter of law pursuant to

Rule 50(b) of the Federal Rules of Civil Procedure? or, in the

alternative, for a new trial pursuant to Rule 59 of the Federal

Rules of Civil Procedure.

The accident occurred on July 29, 1990, in Springfield,

New Jersey, while Ziad Aladdin, a student pilot, was receiving

training and instruction from pilot Carl Dunlap. Plaintiffs

alleged that the Grumman AA-1B aircraft in which the dece-

dents were flying was defective in design in that it was unsuit-

1. Rule 50(b) provides in pertinent part that: Whenever a motion for

a judgment as a matter of law made at the close of all the evidence is denied

or for any reason is not granted, the court is deemed to have submitted their

action to the jury subject to a later determination of the legal questions

raised by the motion. Such a motion may be renewed by service and filing

not later than 10 days after entry of judgment. A motion for a new trial

under Rule 59 may be joined with a renewal of the motion for judgment as

a matter of law, or a new trial may be requested in the alternative. . ..

Sa

able as a primary training vehicle.” Specifically, plaintiffs con-

tended that the airplane stalled easily without sufficient

warning to the student pilot.> According to plaintiffs, once the

aircraft stalled it had a tendency to go into an unintentional

spin before the instructor could correct the problem. Defen-

dants contended that the airplane was suitable for use as a

trainer and that the accident resulted from reckless flying.

Plaintiffs’ motion for judgment as a matter of law merits

little discussion. Judgment as a matter of law is appropriate

only where the court finds that “the record is critically defi-

cient of that minimum quantity of evidence from which a jury

might reasonably afford relief.” Aloe Coal Co. v. Clark Equip-

ment Co., 816 F.2d 110, 113 (3d Cir. 1987), Cert. denied, 484

US. 853 (1987) (citations omitted). In making this determina-

tion, the court must view the evidence in the light most favor-

able to the non-moving party and may not weigh evidence,

pass on the credibility of witnesses, or substitute its judgment

of the facts for that of the jury. Jd. In this case, plaintiffs sim-

ply assert, without any analysis of the evidence adduced at

trial, that a reasonable jury could not reach a finding for the

defense. To the contrary, the record contains sufficient evi-

dence, including expert and eyewitness testimony, to support

the jury verdict. That evidence included expert opinion that

the aircraft was not defective and testimony from which the

jury could find that the accident resulted from reckless low

flying. An eyewitness, on the ground, who was unrelated to

any of the parties, testified that just prior to the accident the

aircraft twice “buzzed” her, once as low as 20-30 feet above

ground. N.T. 11/9/93, pp. 59-67. Consequently, the motion for

judgment as a matter of law will be denied.

>. Evidence a trial showed that the AA-1B was part of a series of air-

craft which included the AA-1, AA-1A and AA-1B. These airplanes shall

be referred to collectively as the “AA-1 series”.

3. A stall occurs where the airplane, in gaining altitude, exceeds the

critical angle of attack and loses the air pressure which creates lift. Students

are generally taught how to anticipate and prevent stalls.

6a

In addition, plaintiffs move for a new trial pursuant to

Rule 59 of the Federal Rules of Civil Procedure because of

alleged errors the court made during trial. Rule 59(a) provides

in pertinent part:

A new trial may be granted to all or any of the par-

ties and on all or part of the issues (1) in an action

in which there has been a trial by jury, for any of the

reasons for which new trials have heretofore been

granted in actions at law in the courts of the United

States.

A new trial in appropriate where the jury’s verdict is against

the great weight of the evidence or where errors at trial have

meant that substantial justice was not accomplished. See e.g.

Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988);

Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied 455

U.S. 1008 (1982). The mere existence of error is not sufficient

to warrant the granting of a new trial. Rather, the error must

have been so prejudicial that refusal to grant the motion

“appears to the court inconsistent with substantial justice,”

Fed. R. Evid. 61; Bhaya v. Westinghouse Electric Corp., 709 F.

Supp. 600, 601 (E.D. Pa. 1989).

Plaintiffs first contend that the court erred in excluding

evidence of other accidents involving the same or similar air-

craft. Evidence of other accidents is admissible to show both

notice and the existence of a defect. Gumbs v. International

Harvester, Inc., 718 F.2d 88, 92 (3d Cir. 1983). However, other

accidents may not be admitted unless the party seeking to

introduce such evidence makes a threshold showing of sub-

stantial similarity between the evidence sought to be admitted

and the accident at issue in the underlying case. Gumbs, supra;

4. Rule 61 provides:

No error in either the admission or the exclusion of evidence and no

error or defect in any ruling or order or in anything done or omitted by

the court or by any of the parties is ground for granting a new trial...

unless refusal to take such action appears to the court inconsistent with

substantial justice. The court at every stage of the proceeding must dis-

regard any error or defect in the proceeding which does not affect the

substantial rights of the parties.

7a

Prashker v. Beech Aircraft Corporation, 258 F.2d 602, 607 (3d

Cir. 1958), cert. denied 358 U.S. 910 (1958). Even where evi-

dence is technically admissible, this court has broad discretion

to exclude it pursuant to Rule 403 of the Federal Rules of

Evidence.’ See e.g. John McShain, Inc. v. Cessna Aircraft Co.,

563 F.2d 632, 636 (3d Cir. 1977); Johnson v. Ford Motor Co.,

988 F.2d 573, 579 (Sth Cir. 1993).

Plaintiffs assert that this court imposed a blanket prohibi-

tion against evidence of other accidents on relevance grounds

and failed to permit plaintiffs the opportunity to lay a founda-

tion for the introduction of such evidence. Specifically, plain-

tiffs contest the exclusion of testimony by their expert, Mr.

Michael Antoniou, concerning 15 other stall-spin accidents

involving the AA-1 series. Plaintiffs state that this evidence

would have been relevant to show notice to Grumman of stall-

spin problems. The court excluded the testimony because

plaintiffs failed to provide the court with any information from

which it could determine that the other accidents were suffi-

ciently similar to the accident involved in this case. The court

alerted plaintiffs to the fact that such evidence was lacking.

N.T. 11/3/93 pp. 238-39. However, despite the court’s stated

concerns, plaintiffs never submitted any evidence or made an

offer of proof from which the court could have made a deter-

mination of admissibility.

Plaintiffs now suggest that if the court “had misgivings

about substantial similarity” it should have held an in camera

hearing to resolve the question. Plaintiffs, however, did not

request such a hearing. It is not the province of this court to

advise the parties as to how to present evidence. Furthermore,

the court did in fact give plaintiffs the opportunity to argue

the admissibility of other accidents and to present evidence on

the question:

5. Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation uf cumulative evidence.

8a

COURT: Also, I want to hear you at the end of the

day on the — on whether or not you can introduce

the fact that there were other spin accidents. There

were some that were inadvertent or indicated to be

inadvertent and I will hear you at the end of the day

on that ... as to whether that should be admissible

or those accidents should be admissible.

MR. WOLK [counsel for plaintiffs]: Okay. I won't

have a witness because my witness — I had two wit-

nesses on the subject. Ray Conway, who's gone,

although I guess I can bring him back, and the sec-

ond one was Mike Antoniou who has got to go back

to California today.

COURT: Well, there are a number of ways of intro-

ducing them, to read to the jury the fact that these

occurred and the dates. So —

MR. WOLK: All right.

THE COURT: — I don’t know —

MR. WOLK: That’s something we can — I'll worry

about that. That really my problem to worry about.

N.T. 11/4/93, p. 4.

As the record indicates, this court heard extensive argu-

ment concerning the admissibility of other accident evidence

after the close of testimony on November 4, 1993. See N.T.

11/4/93, pp. 260-88. Plaintiffs’ counsel did not seek to intro-

duce testimony of his expert at that time, nor did he request

that such testimony be heard at a different time. Thus, this

court excluded Mr. Antoniou’s testimony only after plaintiff

was afforded ample opportunity to make the requisite show-

ing of similarity.

Additionally, as the court pointed out, allowing the testi-

mony would have led to a series of “mini-trials” as counsel

explored the circumstances surrounding each of the 15 other

accidents. Rule 403 of the Federal Rules of Evidence grants

the trial court broad discretion to exclude evidence which,

though relevant, may cause “undue delay, waste of time, or

Sa

needless presentation of cumulative evidence.” The exclusion

of plaintiffs’ expert testimony concerning other accidents was

proper.

Plaintiffs also object to the exclusion of a summary of

accidents involving the AA-1 series compiled by the Federal

Aviation Administration (“FAA”), marked as Exhibit P-40,

attachment V.° Plaintiffs argue that the summary was relevant

to show that defendants had notice of other stall-spin acci-

dents and that it qualified for the “public records” hearsay

exception set forth in Rule 803(8)(C). That rule provides that

the following are not excluded:

(8) Public Records and Reports.

Records, reports, statements, or data compilations,

in any form, of public offices or agencies, setting

forth ... (C) in civil actions and proceedings . . . fac-

tual findings resulting from an investigation made

pursuant to authority granted by law, unless the

sources of information or other circumstances indi-

cate lack of trustworthiness.

The FAA summary lists 16 spin accidents. It provides the

date, type of spin, location, altitude and a very abbreviated

description of each accident. A note at the end of the sum-

mary states that the “cause” is a summary of the facts listed in

the applicable accident report. Plaintiffs did not provide the

related accident report. Given the cursory nature of the infor-

mation provided, the FAA summary did not permit this court

6. Plaintiffs also complain of the exclusion of a list of spin accidents

involving the AA-1 series of aircraft compiled by the National Transporta-

tion Safety Board (the “NTSB”) marked as Exhibit P-113. Plaintiffs fail to

point to any discussion of this document or to any objection to its exclusion

on the record. This court has found none. Regardless, the NTSB list merely

states the location, registration number, date and model of the aircraft

involved. It contains no information regarding the type of accident or the

cause. Clearly this document fails to meet the threshold requirement of sub-

stantial similarity and would not have been admissible in any case.

10a

to make the requisite finding of substantial similarity.” In

excluding these documents, the court explained that in addi-

tion to the summary nature of the accident descriptions, it had

no way of knowing how the underlying reports were prepared

or who prepared them. Consequently, the court properly

found that the lack of information undermined the trustwor-

thiness of the document. N.T. 11/5/93, pp. 49-50. See John

McShain, Inc., 563 F.2d at 636.

Plaintiffs also sought to introduce a spin accident sum-

mary which defendant produced in discovery and was cap-

tioned, “Spin Accident Summary,” marked as Exhibit P-38.

The second page was titled, “Grumman American Summary

of Incident.” Plaintiffs contend that the document was an

admission by defendants and therefore did not constitute hear-

say pursuant to Rule 801(d)(2) of the Federal Rules of Evi-

dence. That section provides that a statement of a party oppo-

nent is not hearsay if:

The statement is offered against a party and is (A)

the party’s own statement in either an individual or

a representative capacity or (B) a statement of

which the party has manifested an adoption or belief

in its truth, or (C) a statement by a person autho-

rized by the party to make a statement concerning

the subject, or (D) a statement by the party’s agent

or servant concerning a matter within the scope of

the agency or employment, made during the exist-

ence of the relationship. ...

In order to introduce a statement of a party opponent as

an admission, the party seeking to introduce it must produce

at least prima facie proof that the statement was made by the

party opponent or by someone whose statements may legally

affect him. 31A. C.J.S. Evidence, 371 (1964). See also, Vockie

v. General Motors Corporation, 66 F.R.D. 57, 63 (E.D. Pa.

1975), aff’d 523 F.2d 1052 (3d Cir. 1975); White Industries, Inc.

7. Furthermore, of the 16 accidents listed in the summary, 2 listed the

cause as unknown and 5 others concerned accidents resulting from inten-

tionally induced spins. Plaintiff conceded that accidents involving intentional

spins would not be relevant to the present case.

lla

v. Cessna Aircraft Co., 611 F. Supp. 1049, 1065 (W.D. Mo.

1985). The mere fact that a document is found in the files of a

corporation or is produced in discovery does not, without

more, constitute evidence of authorship or adoption by that

corporation. See White Industries, supra at 1059.

This court conducted an extensive inquiry, which included

in camera testimony of Gulfstream Aerospace Corporation's

deputy general counsel, Thomas Ramee, in an attempt to

adduce the origin of the document. See N.T. 11/5/93, pp. 39-48.

Defendant’s attorney stated, and Mr. Ramee testified, that

they believed that the document came from a law firm that

had previously represented Grumman in other cases. See N.T.

11/5/93, pp. 37-38, 45-58. Plaintiffs’ attorney conceded that the

document most likely came from the files of another law firm.

Id. at 38. After hearing the testimony, this court correctly con-

cluded that the document was inadmissible hearsay:

The document itself does not indicate who prepared

it, under what circumstances it was prepared. It has

not been proved that this is a document that was

adopted by Grumman or a document where they

admitted the nature of the accidents. Therefore, it

will not be admitted into evidence at this time. The

fact that a document may have appeared in some-

one’s files does not mean that it is necessarily

adopted or conceded to be true by the person or

company in whose files it may be found ...

Furthermore, this summary suffers from the same lack of

detail as did the FAA summary. It provides only a cursory

description of the type of accident involved. Consequently, it

did not establish that the accidents involved were substantially

similar to the accident in this case.

Plaintiff also objects to this court’s exclusion of an evalu-

ation of the Model AA-1 series conducted by the FAA during

1973-74, marked as Exhibit P-40. The FAA report was issued

on January 1, 1974. Although the FAA found that the AA-1

series complied with the applicable certification rules, the

report contained the following language which plaintiffs

sought to introduce:

12a

Although the subject airplanes in this report were

found to be in compliance with the applicable FAR

23 certification criteria for the Normal Utility Cat-

egories, the airplanes were considered to reflect a

safety of operation problem as a result of their being

marketed and defined as a “Trainer” and as air-

planes used extensively by pilot trainees and instruc-

tors. It is quite conceivable to expect these particu-

lar types of users to experiment with the entire flight

envelope including the aspects of uncontrolled flight

(spin indoctrination) even though prohibited.

(emphasis added). The report then proceeded to make several

recommendations for future action. The FAA subsequently

reissued the report on April 30, 1974, deleting the recommen-

dations section.®

Plaintiffs assert that the FAA report was admissible as a

public record under Rule 803(8)(C) of the Federal Rules of

evidence. They further contend that the above language illus-

trates that the AA-1B was unsuitable for use as a primary

trainer. After reviewing the FAA report the court concluded

that it was irrelevant to the issues in the case and therefore

inadmissible. Specifically, the safety problem identified in the

report resulted from the probability that student pilots were

likely to experiment with prohibited maneuvers. It stated as a

recommendation for future action, “[s]ince it appears prob-

able that these particular airplanes will be operated illegally in

an aerobatic environment .. . it is suggested that a placard...

be installed that warns the operator of the limitations on

spins.”? In other words, the report reflected the drafters’ con-

8. At trial plaintiff asserted that the reissuance was the result of

improper pressure from Grumman, and in support of this contention pro-

duced a letter from Grumman’s president Russell W. Meyer, Jr. in which he

complained that “certain phrases . . . are unnecessarily damaging to the com-

pany, since someone who did not know all the facts might make the wrong

assumption.” Because this court’s determination of the admissibility of the

document at issue does not turn on the fact that it was subsequently with-

drawn, we need not address this issue here.

9. It is uncontested that the airplane at issue contained such a warning

against spins.

13a

cern that students were likely to misuse the aircraft. It did not

identify any problem with the craft’s normal operation.

The deposition of Charles Arnold, who performed the

tests on the AA-1 series and prepared the FAA evaluation

reports, further supports this court’s conclusion concerning the

irrelevance of the document.’° Arnold stated that the recom-

mendations were not specific to the Grumman aircraft but

were based on his evaluation of numerous airplanes in its

class, and his belief that a “spinnable airplane” should be

available to the general public. With regard to the decision to

remove the recommendation section, he stated:

we felt that this was not the place to put this mate-

rial since we made a specific finding on the airplane

that the airplane itself was satisfactory to ail of the

existing regulations and rules. We elected to delete

the material and present it in another form.”

(Arnold Deposition at 23).

Because plaintiffs never asserted that the accident in this

case involved an intentional spin or any other prohibited aero-

batic maneuver, the report had no relevance to the issues at

hand. The court further found that even if relevant, the preju-

dice outweighed any possible probative value. N.T. 11/4/93, pp.

2-4. As other courts have recognized, the danger of unfair

prejudice is magnified where government documents are con-

cerned, as the “official” nature of the documents may cause

the jury to give the evidence inordinate weight. Johnson v.

Ford Motor Co., 988 F.2d at 580, citing Fowler v. Firestone Tire

& Rubber Co., 92 ER.D. 1, 2 (N.D. Miss. 1980). Clearly, the

exclusion of the report was a valid exercise of the court’s dis-

cretion pursuant to Rule 403 of the Federal Rules of Evi-

dence.

10. The court is not bound by the rules of evidence when considering

information in aid of a determination of the admissibility of evidence. Fed.

R. Evid. 104.

11. He further testified that the substance of the recommendation sec-

tion was subsequently submitted as part of the FAA rule making process

and became part of the routine rules review conference.

14a

Plaintiffs next complain of the exclusion of certain corre-

spondence between defendants and the FAA and of Grum-

man internal memoranda. The excluded documents concerned

the FAA's desire to conduct a re-evaluation of the stall and

spin characteristics of the AA-1 series. See Exhibits P-11-P-19.

The court excluded these documents, finding that they consti-

tuted hearsay and were irrelevant. N.T. 11/8/93, p. 11. Letters

from the FAA to defendants are clearly hearsay. The docu-

ments authored by executives of Grumman may qualify as

admissions. However, the documents are only admissible if

relevant. Plaintiffs assert that all the documents were relevant

to show notice to the defendants.

None of the documents contains any admission that the

product was defective. They merely discuss the FAA's request

for a re-evaluation and the possibility that further testing may

be necessary. Exhibit P-14, for example, is an internal memo-

randum written by Russell Meyer, a Grumman executive.

Meyer states that he received a call from the FAA concerning

the frequency of stall- spin accidents involving the AA-1 series

and adds, “in summary, I believe this is a very, very high pri-

ority item. We need to review our data on the spin character-

istics of the Trainer and put this program at the top of our pri-

ority list.”

Even assuming, however, that the documents were admis-

sible to show notice to defendants of the existence of a defect,

the exclusion of these documents is harmless. As stated above,

after the re-evaluation, the FAA determined that the AA-1

series met all relevant certification requirements. Further-

more, the jury made a factual determination that the aircraft

was not defective. Notice can only be relevant where there

exists a defect which defendant could have prevented or cor-

rected. Consequently, the issue of notice is now moot.

Plaintiffs also assert that the exclusion of certain articles

which appeared in a publication called Aviation Consumer was

error. These articles were highly critical of the AA-1 series

and contained extensive discussions of other accidents. Plain-

tiffs provide no analysis concerning the admissibility of these

obviously hearsay documents. They simply make a blanket

statement that this and other excluded evidence was relevant

15a

to show that “defendants had actual notice of the accidents

and ... was [sic] aware of recommendations to improve the

safety of the aircraft.” (Plaintiff's memorandum at 18). As

stated above, given the jury’s findings in the case, notice is

irrelevant. Furthermore, given the highly prejudicial discus-

sion of other unrelated accidents contained in the articles,

exclusion was proper under Rule 403 of the Federal Rules of

Evidence.

Plaintiffs next assert that evidence which may have been

inadmissible on direct examination was nonetheless admissible

on cross-examination. Specifically, plaintiffs contend that they

should have been able to use the excluded FAA report to

rebut testimony that the aircraft was certified as suitable by

the FAA. See N.T. 11/8/93, pp. 238-39, 244. However, as

explained above, the disputed portion of the FAA report did

not concern unintentional spins and therefore had no rel-

evance to the present case. It did not become relevant merely

because defendants’ witness stated accurately that the aircraft

met certification requirements.

Plaintiffs also state that defendants opened the door to

evidence of other accidents involving the AA-1 series by elic-

iting testimony concerning the suitability of the aircraft. Plain-

tiffs have not demonstrated, and this court fails to see, how

evidence concerning unrelated accidents, absent a showing of

substantial similarity, could be relevant to the issues in this

case either on direct or cross-examination. However, even

assuming that such evidence may have been admissible, the

court was within its discretion to exclude it in order to prevent

a lengthy and unfairly prejudicial excursion into collateral

matters.

Finally, plaintiffs contend that the court committed error

by charging the jury on the affirmative defense of “highly

reckless conduct.” Plaintiffs assert that the charge was not

warranted by the evidence adduced at trial. The court charged

the jury as follows:

Furthermore, the designer of a product is not liable

if the decedents’ action was so reckless that dece-

dents would have been injured despite the curing of

16a

any alleged defect or is so extraordinary and unfore-

seeable as to constitute a superseding cause.

N.T. 11/10/94, p. 102.

The language of the charge was taken directly from the

recent decision of the Court of Appeals of this Circuit, Dil-

lenger v. Caterpillar, 959 F.2d 430, 446 (3d. Cir. 1992). Given

the eyewitness testimony from a person not connected with

any of the parties that defendants were engaging in dangerous

low altitude flying known as “buzzing” at the time of the acci-

dent, the charge was warranted. However, even if the charge

was error, such error is harmless because the jury did not

reach the special interrogatory to which that portion of the

charge was directed. As stated above, the jury found neither a

defective product nor negligence on the part of the defen-

dants. Consequently, the jury was never required to consider

the conduct of plaintiffs’ decedents. See Tigg Corp. v. Dow

Corning Corp., 962 F.2d 1119 (3d Cir. 1992).

Plaintiffs’ motion for judgment as a matter of law or for a

new trial will be denied.

aPC ae sti Rs LI iL ag Ean,

17a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DIANE ALADDIN, et al. : CIVIL ACTION

v.

GRUMMAN AMERICAN AVIATION : NO. 92-39 18

CORPORATION, et al. :

ORDER

AND NOW, this 22nd day of April, 1994, for the reasons

set forth in the accompanying Memorandum, it is hereby

ORDERED that the motion of plaintiffs for judgment as a

matter of law or for new trial is DENIED.

BY THE COURT:

/s/ Harvey Bartle, III

18a

FEDERAL RULES OF EVIDENCE

Rule 403 of the Federal Rules of Evidence provides:

Exclusion of Relevant Evidence on Grounds of

Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its proba-

tive value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.

Fed. R. Evid. 403.

Rule 404 of the Federal Rules of Evidence provides, in

pertinent part, as follows:

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admis-

sible to prove the character of a person in order to show

action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, iden-

tity, or absence of mistake or accident, provided that upon

request by the accused, the prosecution in a criminal case

shall provide reasonable notice in advance of trial, or dur-

ing trial if the court excuses pretrial notice on good cause

shown, of the general nature of any such evidence it

intends to introduce at trial.

Fed. R. Evid. 404(b).

ee

a a en eh