Petition for Writ of Certiorari — Greene v. B.F. Goodrich Avionics Systems Systems, Inc. (No. 05-711)

6

alone, with its fleet of just 24 helicopters, had experienced 29

failures requiring repair in the six-month period immediately

prior to the accident. And one of the gyroscopes that

previously had failed was on board N2743E on June 14,

1999, when it crashed.

Goodrich also was on notice of serious airworthiness

concerns regarding the gyroscope. Pursuant to 14 C.F.R.

§ 145.63(a):

Each certified domestic repair station shall report to

the [FAA] Administrator within 72 hours after it

discovers any serious defect in, or other recurring

unairworthy condition of, an aircraft, power plant, or

propeller, or any component of any of them. The

report shall be made in a form and in a manner

prescribed by the Administrator, describing the defect

or malfunction completely without withholding any

pertinent information.

Goodrich operates such repair stations in Austin, Texas,

Grand Rapids, Michigan and Ft. Lauderdale, Florida. Such

veports are made in the form of a “Service Difficulty Report”

(“SDR”).

On January 21, 1999, six months before N2743E crashed,

PHI filed an SDR regarding a VG-204AB gyroscope removed

from a Sikorsky S-76A helicopter, registration number

N1545K. On April 6, 1999, two and one-half months before

the accident, PHI filed another SDR regarding a VG-204AB

gyroscope, this one removed from N2743E itself. Goodrich

claimed it was not aware of either of these SDRs, or of the

filing of any other SDRs regarding gyroscopes on board PHI

helicopters during 1999. Nor did it file any SDRs with the

FAA regarding VG-204AB gyroscopes.

7

After seven days of trial, during which the trial court

denied Goodrich’s motions for a judgment as a matter of law

at the close of plaintiff's case and at the conclusion of all the

evidence, the jury rendered a verdict in favor of plaintiff for

$1,275,830, finding Goodrich 100% responsible for the

crash. In rendering this verdict, the jury chose between two

proffered explanations as to why Greene and Jones descended

into that “hole” and crashed into a mountainside that was

almost 400 feet lower than their take-off point. Was this a

case of pilot error, as Goodrich claimed? Or was it, as

plaintiff claimed, a case of a pilot (Greene, the pilot-in-

command) flying in “instrument meteorological conditions”

(darkness, heavy fog, quarter-mile visibility), who followed

a critical navigational instrument that was reporting false data

(his ADI), which ted him into a perilous flight situation from

which recovery was not possible, even at full power? The

jury’s determination that the Goodrich-made vertical

gyroscope feeding data to Greene’s ADI was defective

bespeaks two implicit conclusions that jurors drew. They (1)

rejected Goodrich’s “pilot error” theory, and (2) accepted

plaintiff's explanation that Greene unknowingly had followed

a “lying” ADI into a “hole” surrounded by mountains, out of

which neither pilot reasonably could be expected to fly the

helicopter to safety.

After its post-trial motions seeking judgment as a matter

of law or, in the alternative, a new trial were denied,

Goodrich appealed to the Sixth Circuit, challenging the

district court’s denial of its motions for summary judgment,

for judgment as a matter of law, and for a judgment

notwithstanding the verdict. On May 20, 2005, the Sixth

Circuit reversed the decision of the United States District

Court for the Eastern District of Kentucky and remanded the

case with instructions to enter judgment in favor of Goodrich

and dismiss the case, without a new trial. Thereafter, on

8

August 30, 2005, the Sixth Circuit denied plaintiff's petition

for rehearing en banc.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s 2-1 opinion holds that federal aviation

law preempts plaintiff's state law failure to warn claim, which

the district court had dismissed. This holding on a question

of such exceptional importance is contrary to prior decisions

of other Circuits. Cleveland v. Piper Aircraft, Inc. , 985 F.2d

1438 (10" Cir. 1993); Hodges v. United Airlines, Inc., 44

F.3d 334 (5" Cir. 1995). The Sixth Circuit’s decision also

conflicts with prior decisions of this Court and the Sixth

Circuit in that it improperly reweighs the evidence under the

guise Of assessing its legal sufficiency to support the jury

verdict. Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S.

133, 150-51 (2000); Moore v. Kuka Welding Sys., 171 F.3d

1073, 1078 (6" Cir. 1999); Pratt v. National Distillers &

Chem. Corp., 853 F.2d 1329, 1337 (6” Cir. 1988). Review

by this Court is necessary to secure and maintain uniformity

among the lower courts regarding the standard for reviewing

evidentiary sufficiency, particularly as to jury verdicts.

9

I. THE SIXTH CIRCUIT’S HOLDING THAT

PLAINTIFF’S FAILURE TO WARN CLAIM WAS

PREEMPTED BY FEDERAL LAW INVOLVES AN

EXCEPTIONALLY IMPORTANT ISSUE THAT HAS

DIVIDED THE CIRCUITS ADDRESSING IT. THE

CIRCUIT SPLIT ON THIS ISSUE WARRANTS

REVIEW BY THIS COURT IN ORDER TO BRING

CONSISTENCY AMONG THE CIRCUITS AND THE

DISTRICT COURTS.

In addressing plaintiff's cross-appeal, the Sixth Circuit

decision holds that plaintiff's state-law claim for failure to

warn was properly dismissed by the district court based on

federal preemption. With little elaboration, the opinion

states, “We agree with the Third Circuit’s reasoning in

Abdullah [v. American Airlines, Inc., 181 F.3d 363 (3° Cir.

1999)} that federal law establishes the standard of care in the

field of aviation safety and thus preempts the field from state

regulation.” Greene, 409 F.3d at 795, Appendix B, p. 23a.

The opinion thus adopts the views expressed by the First

and Third Circuits. French v. Pan Am. Express, 869 F.2d |

(1* Cir. 1989) (state law governing pilot drug testing

preempted by the Federal Aviation Act [“FAA”]); Abdullah,

supra, 181 F.3d 363 (legislative history of FAA shows

congressional intent to federally regulate aviation safety; any

State claim relating to aviation safety is federally preempted).

Two other Circuits have reached the opposite conclusion.

The Tenth and Fifth Circuits have held that federal law does

not preempt all tort claims related to aviation safety.

Cleveland v. Piper Aircraft, Inc., 985 F.2d 1438 (10" Cir.

1993) (the FAA does not preempt the field of aviation safety

since Congress did not indicate a “clear and manifest” intent

to exclude state common law and the savings clause

specifically called for federal regulations and state law to

10

“stand side by side”); Hodges v. United Airlines, Inc., 44

F.3d 334 (5" Cir. 1995) (the Airline Deregulation Act

{“ADA”] does not preempt state law claim for negligence

because it did not relate to “rates, routes, or services,” the

areas that the ADA expressly preempts, and the express

preemption provision precludes any implied preemption).

Moreover, many district courts have ruled against federal

preemption in the context of aviation tort claims. Cartegena

v. Continental Airlines, Inc., 10 F.Supp.2d 677 (S.D. Texas

1997); Margolis v. United Airlines, Inc., 811 F.Supp. 318

(E.D. Mich. 1993); Hoagland v. Town of Clear Lake, 2004

WL 2634353 (N.D. Ind. 2004); Levy v. Delta Airlines, Inc.,

2004 WL 2222149 (S.D.N.Y. 2004); Alshrafi v. American

Airlines, Inc., 321 F.Supp.2d 150 (D. Mass. 2004); see also

Schumacher v. Amalgamated Leasing, Inc, 806 N.E.2d 189

(Ohio Ct. App. 2004); Shupert v. Continental Airlines Inc.,

2004 WL 784859 (S.D.N.Y. 2004).

The Sixth Circuit’s holding belies its traditional reluctance

to recognize federal preemption of state and local laws. As

Judge Cole of the Sixth Circuit pointed out in his dissent,

[O]ur circuit has traditionally shown a proper amount

of restraint and caution before finding State and local

laws preempted by federal law. Under this regime, I

cannot assume that the FAA implicitly preempts any

State or common law-imposed duties here.

Admittedly, the FAA is involved in overseeing the

quality control of certain aviation equipment,

however, neither the appellant nor the majority have

proffered any reason why a State’s more stringent

duty of care in the failure to warn context could not

supplement rather than frustrate the FAA.

11

Greene, 409 F.3d at 798, Appendix B, p. 29a-30a. When an

exceptionally important issue such as this is decided

inconsistently by the Circuits addressing it, petitioner submits

that review by this Court should be granted, particularly given

the prominent role that aviation plays in the everyday lives of

Americans.

Il. IN HOLDING THAT THE EVIDENCE WAS

LEGALLY INSUFFICIENT TO SUPPORT A

FINDING OF DEFECT, THE SIXTH CIRCUIT

IMPROPERLY REWEIGHED THE EVIDENCE

UNDER THE GUISE OF ASSESSING ITS LEGAL

SUFFICIENCY TO SUPPORT THE JURY

VERDICT, IN VIOLATION OF PRECEDENTS

ESTABLISHED BY THIS COURT, THE OTHER

CIRCUITS, AND THE SIXTH CIRCUIT ITSELF.

The Sixth Circuit’s holding that there was insufficient

evidence to support the jury’s verdict was based on three

conclusions that the court drew from the evidence. The

opinion states that the evidence showed (1) “that it would be

possible for a pilot to navigate the helicopter if an ADI

failed,” (2) “that multiple events could have caused” the

crash, and (3) that the failure and repair history for

Goodrich’s vertical gyroscopes did not “indicate a gyroscope

defect... .” /d. at 793, Appendix B, p. 20a. Based on these

three conclusions about the state of the evidence, the Court of

Appeals’ opinion holds, as a matter of law, that there was no

defect in Goodrich’s vertical gyroscope.

In determining if judgment as a matter of law was

required, a reviewing court may not reweigh the evidence, for

that is exclusively the province of the jury and not part of a

court’s consideration of judgment as a matter of law. Zenith

Radio Corp. v. Hazeltine Research, Inc. , 395 U.S. 100, 123

12

(1969). Instead, the court construes the evidence in a light

most favorable to the party who prevailed under the verdict,

giving that party the benefit of all reasonable inferences from

the evidence. Weisgram v. Marley Company, 528 U.S. 440,

453 (1975).

Each of the three conclusions mentioned above, which

comprise the articulated basis of the Sixth Circuit’s holding

that there was insufficient evidence of defect, is the product

of that court improperly reweighing the evidence under the

guise of assessing its legal sufficiency to support the jury’s

verdict. First, the opinion states that the jury could not

reasonably have found that the Goodrich gyroscope feeding

inaccurate data to Greene’s ADI was in a defective condition

unreasonably dangerous to the user because the evidence

demonstrated “that it would be possible for a pilot to navigate

the helicopter if an ADI failed.” Greene, 409 F.3d at 793,

Appendix B, p. 20a. The opinion states that PHI lead pilot

Thomas Methvin “testified that even if one ADI failed or was

receiving incorrect information, Greene and/or pilot-in-

command Jones [sic] should have relied upon the other ADIs

in the cockpit to safely fly or land the aircraft.” /d. at 793,

Appendix B, p. 19a. The opinion in essence holds that, based

on Methvin’s testimony, there was one only reasonable

conclusion that the jury could have drawn from the evidence

- i.e., that Greene and Jones should have been able to fly the

helicopter out of the “hole” to safety. In other words, the

opinion holds with pilot error as the only reasonable

explanation.

The opinion gives far more credit to Methvin’s testimony

than it demands or deserves. Counsel for Goodrich merely

asked Meihvin, hypothetically, to assume “that everythmug is

okay when the takeoff occurs,” “that you were a pilot up in

the air,” and “that your ADI that receives information from

13

one of the gyros isn’t working right.” Based on these

assumptions, Goodrich’s counsel asked Methvin, “And you

would use - expect the other ADI and/or the standby indicator

to go ahead and safely fly or land the aircraft, right?”

Methvin responded, “Yes, sir.” Not only did Methvin’s

response to this obtuse hypothetical question not require the

jury to find that Greene and Jones should have been able to

fly the helicopter out of the “hole” to safety, it would not

even support such a finding. In posing his hypothetical

question to Methvin, Goodrich’s counsel made no attempt to

replicate the actual perilous situation that Greene and Jones

were in that night - i.e., flying in darkness, heavy fog, and

quarter-mile visibility four hundred feet below their take-off

point, three thousand feet below their intended altitude, and

surrounded on all sides by mountains, while hurtling at 200

miles per hour (80 yards per second) toward an unseen

mountainside, with only nineteen seconds to climb out.

Contrary to the opinion’s conclusion, Methvin’s testimony

in no way addressed whether it would be reasonable to expect

pilots flying in such perilous conditions “to safely fly or land

the aircraft.” /d. Contrary to the precedents of this Court and

of the Circuits, the Sixth Circuit improperly reweighed

Methvin’s testimony, inappropriately construing it against

plaintiff. The Sixth Circuit also disregarded other evidence

on which the jury reasonably relied, which showed that,

under the actual prevailing conditions on June 14, 1999, the

pilots cannot be faulted for failing to fly the helicopter safely

out of the “hole” into which the “lying” ADI had led them.

Second, the opinion states that the jury could not

reasonably have found that the Goodrich-made gyroscope

feeding inaccurate data to Greene’s ADI was defective

because the evidence demonstrated “that multiple events could

have caused” the crash. /d. at 793, Appendix B, p. 20a. The

14

Opinion states that plaintiff's expert, Douglas Herlihy, who

has decades of experience determining the causes of aircraft

crashes, attributed the crash to multiple causes. This

mischaracterizes Herlihy’s testimony. In standard-of-review

parlance, the opinion fails to construe Herlihy’s testimony and

the reasonable inferences therefrom in a light most favorable

to plaintiff. Construed in that light, Herlihy’s testimony

substantiated plaintiff's claim that an in-flight failure of the

Goodrich-made vertical gyroscope caused an erroneous ADI

reading. His testimony also confirmed and complemented the

substantial physical evidence, which established that the ADI

found at the crash site was providing an inaccurate reading on

impact. The recovered ADI’s faceplate demonstrated that on

impact the ADI was reading 2 degree roll right - i.e., almost

“wings level” - even though the crash kinematics

(principally, the tree cuts on the mountainside) established

that the aircraft actually was in a 10-15 degree left roll with

its nose still down - 1.e., descending - on impact.

Herlihy took into account the evidence normally used in

determining the cause of aircraft crashes. Accord. ¢ to his

testimony, all available signs pointed toward the Goodrich-

made gyroscope and away from other factors (e.g., an

electrical failure) as the cause of the inaccurate ADI reading.

His testimony further demonstrated that, in heavy fog and

darkness and at low altitude, where a split-second of

disorientation could make all the difference, the inaccurate

ADI reading was enough to cause cockpit confusion that took

the helicopter off-course and into the mountainside. It is true

that Herlihy acknowledged the role that the weather

conditions played in this crash. While he acknowledged that

weather conditions made flying dangerous that night and

forced Greene and Jones to follow their instruments, including

the “lying” ADI, Herlihy consistently maintained that the

15

inaccurate ADI reading led the pilots into the “hole” out of

which they could not safely fly.

At bottom, this is 2 case in which the defective component

triggered an unbroken chain of quickly cascading events

leading directly to the crash. Though there be multiple links

in that chain, the jury reasonably concluded that it started

with the failure of Goodrich’s vertical gyroscone, as Herlihy

had opined. If a pilot flying in instrument ,neteorological

conditions such as this follows an instrument into a dangerous

flight path or situation because the instrument was providing

false data, and the aircraft crashes, the instrument failure

logically is the probable cause of the accident. If a pilot

follows a “lying” instrument’s direction to within 19 seconds

of a controlled impact with a mountainside and, even after

noting a failure, becomes irretrievably confused about his

actual position and situation, that instrument failure still is the

probable cause of the accident. If two pilots with three such

instruments do not know which is trustworthy and which is

not, and crash as a result, the accident flowed from the

original instrument failure.

Even if one assumes, without evidence, that not all of the

three ADIs in the subject helicopter were malfunctioning, the

jury still had to choose between two scenarios: either (1) the

pilots understandably were unable to determine their actual

attitude and position in the 19 seconds they had left, in the

dark, foggy, disorienting conditions in which they were

flying, or (2) although they were spatially disoriented in dark,

foggy conditions and had only 19 seconds to correct their

course, the pilots still retained the ability to recover and avoid

the crash. The jury had to make that choice. It judged the

credibility of the witnesses, considered all of the evidence,

and reached its verdict. The jury’s conclusion that the failure

of Goodrich’s vertical gyroscope was the probable cause of

16

this crash was a reasonable, well-supported choice that should

not be second-guessed, as the Sixth Circuit improperly has

done.

Third, the Sixth Circuit opinion states that the jury could

not reasonably have found that the Goodrich-made gyroscope

feeding inaccurate data to Greene’s ADI was defective

because the failure and repair history for Goodrich’s vertical

gyroscopes did not “indicate a gyroscope defect... .” /d.

In reaching this conclusion, the court of appeals improperly

substituted its view of the failure and repair history of

Goodrich’s vertical gyroscopes, completely overlooking a

very significant part of this evidence. The district court

permitted the admission of two SDRs that PHI had filed with

the FAA concerning these gyroscopes. This evidence

revealed that, within six months prior to this accident, the

same type of Goodrich-made gyroscope, installed in the same

type of helicopter (in one case, the very same helicopter),

owned by the same company (PHI), had malfunctioned and

been repaired or replaced by Goodrich. The existence of the

two SDRs reporting the subject gyroscope to the FAA

represents very significant evidence of defect. The reason is

that the filing of an SDR, by definition, is an official “red

flag” meant to alert manufacturers, repair facilities, and the

FAA that a particular aircraft component has been found to

have a “serious defect” or “other recurring unairworthy

condition.” 14 C.F.R. § 145.63(a) (1999). Title 14, Section

145.63 of the Code of Federal Regulations provides in

relevant part that repair stations (such as Goodrich’s) must

report to the FAA administrator “any serious defect in, or

other recurring unairworthy condition of, an aircraft, power

plant or propeller or any component of them, . . describing

the malfunction completely without withholding any pertinent

information.” /d. It also requires that repair stations submit

a form prescribed by the FAA Administrator when making

17

such a report (i.e., the SDR) and states that, “[i}f the defect

or malfunction could result in an imminent hazard to flight,

the repair station shall use the most expeditious manner it can

to inform the Administrator.” 14 C.F.R. § 145.63(b) (1999).

The essential facts relating to the two SDRs in question

are clear. Plaintiff requested all SDRs relating to the

allegedly defective gyroscope during discovery. Goodrich

responded by claiming that no SDRs existed. Prior to trial,

however, plaintiff discovered the existence of the requested

SDRs from a publicly accessible source, the FAA’s internet

database. The district court admitted the SDRs that PHI had

filed because Goodrich opened the door. In admitting this

evidence, the district judge characterized the SDR as “the

report of a defect in a gyroscope.” He added, “If there was

a service difficulty report on this gyroscope and they sent it

in, then that is a defect.” Thus, by definition, the SDRs

pertaining to Goodrich’s vertical gyroscope came into

evidence as direct and positive proof of a defect in this

component. 14 C.F.R. § 145.63(a) (1999). Defendant’s

failure to produce the SDRs during discovery was either

willful or the result of a lack of due diligence in answering

plaintiff's material discovery requests. When taken with the

other evidence offered by plaintiff, the SDRs substantiate the

defect that the jury found. Contrary to the Sixth Circuit’s

conclusion, the SDRs stand as properly admitted “failure and

repair” evidence showing defect.

The fact that these SDRs were filed by the customer, PHI,

rather than the manufacturer, Goodrich, does not diminish

their impact as evidence of defect. Given the definitions of

“defective” and “unreasonably dangerous” under Kentucky

law, it is difficult to imagine better “failure and repair”

evidence of defect than the SDRs filed by PHI. As the court

of appeals opinion notes, “defective” means that the product

18

does not meet the reasonable expectations of the ordinary

consumer as to its safety and “unreasonably dangerous”

means that the product is dangerous to an extent beyond that

which would be contemplated by the ordinary consumer who

purchases it, with the ordinary knowledge common to the

community as ‘o its characteristics. Greene, 409 F.3d at 788-

89, Appendix B, p. 9a-10a. As a customer operating medevac

helicopters, PHI knew its pilots were often required to fly in

suboptimal conditions. By filing SDRs on the exact Goodrich

gyroscope involved here, this customer clearly expressed its

safety expectation of this gyroscope - i.e., that it operate

properly and not fail in flight, lest PHI’s pilots be placed in

peril. In the end, Goodrich’s gyroscope did not meet that

expectation.

It was reasonable for the jury to conclude that an aircraft

component significant enough to have led two very

experienced pilots into that “hole,” out of which they could

not safely fly their helicopter, was in a defective unreasonably

dangerous condition. This conclusion was reasonable, despite

the absence of evidence concerning “the useful life” or “rate

of replacement” of Goodrich gyroscopes, on which the court

of appeals opinion heavily relies. For that opinion to hold

otherwise is to reward Goodrich for making “useful life” or

“rate of replacement” evidence impossible by failing to

maintain the records needed to derive it. (Goodrich keeps no

Statistics and thus has no capability to retrieve complete

history of repairs for “on condition” gyroscopes, i.e.,

gyroscopes repaired as they fail.)

Nothing in Kentucky products liability law suggests that

there cannot be a finding that a product was defective without

Statistics showing the product’s useful life or rate of

replacement. The plaintiff need only prove that the product

that caused the accident did not meet the reasonable

19

expectations of the ordinary consumer as to its safety and was

dangerous to an extent beyond that which would be

contemplated by the ordinary consumer who purchased it,

with the ordinary knowledge common to the community as to

its characteristics. As this case shows, this can be proven

without statistics showing the product’s useful life or rate of

replacement. No statistic showing how often other Goodrich

gyroscopes failed or were replaced could diminish the

causative link between this particular in-flight failure and this

crash. Simply because other helicopters experienced an in-

flight failure of a Goodrich gyroscope without crashing does

not mean that no Goodrich gyroscope could ever be the root

cause of an aircraft crash. Such a hard and fast rule would be

unprecedented in the law of strict product liability. The

evidence presented in this case established a direct link

between the gyroscope failure and the erroneous reading on

the ADI, which caused the pilots to become so disoriented

while flying in dark, foggy conditions and at low altitude that

they could not recover in time to avoid hitting the

mountainside.

Viewed in the context of this evidence, the jury’s

determination that Goodrich’s gyroscope was defective and a

substantial factor in causing this crash was amply supported

by the evidence and eminently reasonable. This is not a

situation in which there was a complete absence of fact and

the jury was left to speculate. The Sixth Circuit’s

unprecedented reweighing of the evidence cries out for review

by this Court.

At the very least, review should be granted to address the

Sixth Circuit’s draconian entry of judgment as a matter of

law, instead of a new trial order or a remand for the district

court to consider a new trial. Fed. R. Civ. P. 50(d). As

petitioner argued in + + rehearing petition, should the

20

defendant’s appeal be granted, then she is entitled to a new

trial. In short, consistent with precedents established by this

Court, the Sixth Circuit should not have entered judgment as

a matter of law, but instead should have ordered a new trial

or remanded for the district court to consider a new trial.

Neely v. Martin K. Eby Const. Co., 386 U.S. 317, 329

(1967).

Respectfully submitted,

Stanley M. Chesley

Paul M. De Marco

Counsel of Record

Jean M. Geoppinger

WAITE, SCHNEIDER, BAYLESS

& CHESLEY CO., L.P.A.

1513 Fourth & Vine Tower

One West Fourth Street

Cincinnati, Ohio 45202

Telephone: (513) 621-0267

Facsimile: (513) 621-0262

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 03-5017/5018

[Filed August 30, 2005]

JUDY GREENE, EXECUTRIX OF

THE ESTATE OF DONALD GREENE,

DECEASED,

Plaintiff-Appellee,

WAUSAU INSURANCE COMPANY,

Intervening Plaintiff-Appellee (03-5017),

Intervening Plaintiff (03-5018),

v.

B.F. GOODRICH AVIONICS SYSTEMS, INC.,

DOING BUSINESS AS B.F. GOODRICH

AEROSPACE, ETC.,

Defendant/Third-Party Plaintiff,

Appellant/Cross-Appellee,

UNITED TECHNOLOGIES CORPORATION,

DOING BUSINESS AS SIKORSKY AIRCRAFT,

Defendant,

PETROLEUM HELICOPTERS, INC.,

Third-Party Defendant.

New Ne Ne Nee eee eee ee Se”

2a

BEFORE: COLE and ROGERS, Circuit Judges; and COHN’,

District Judge.

ORDER

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision cf the

cases. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

* Hon. Avern Cohn, Senior United States District Judge for the

Eastern District of Michigan, sitting by designation.

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 03-5017/5018

[Filed May 20, 2005]

JUDY GREENE, EXECUTRIX OF

THE ESTATE OF DONALD GREENE,

DECEASED,

Plaintiff-Appellee,

WAUSAU INSURANCE COMPANY,

Intervening Plaintiff-Appellee (03-5017),

Intervening Plaintiff (03-5018),

v.

B.F. GOODRICH AVIONICS SYSTEMS, INC.,

DOING BUSINESS AS B.F. GOODRICH

AEROSPACE, ETC.,

Defendant/Third-Party Plaintiff,

Appellant/Cross-Appellee,

UNITED TECHNOLOGIES CORPORATION,

DOING BUSINESS AS SIKORSKY AIRCRAFT,

Defendant,

PETROLEUM HELICOPTERS, INC.,

Third-Party Defendant.

ee ee ee el ee ee ee ee ee a ed

4a

On Appeal From

The United States District Court

For the Eastern District of Kentucky

Civil Action No. 02-8-JMH

Joseph M. Hood, Judge

BEFORE: COLE and ROGERS, Circuit Judges; and COHN’,

District Judge.

OPINION

AVERN COHN, District Judge. This is a products

liability case arising out of a helicopter accident. Defendant-

Appellant B.F. Goodrich Avionics Systems, Inc. (Goodrich)

appeals the district court’s denial of Goodrich’s motion for

summary judgment of Plaintiff-Appellee Judy Greene’s

(Greene) manufacturing defect claim and the district court’s

subsequent denials of Goodrich’s motions for judgment as a

matter of law and motion for judgment notwithstanding the

verdict after a jury returned a verdict in favor of Greene.’

Greene cross-appeals a pre-trial order granting partial

summary judgment to B.F. Goodrich and an evidentiary

ruling by the district court. Because we find that Greene failed

* Hon. Avern Cohn, Senior United States District Judge for the

Eastern District of Michigan, sitting by designation.

' The parties refer to the motions made under Fed. R. Civ. P.

50 as motions for “judgment as a matter of law” and “judgment

notwithstanding the verdict.” In 1991, however, Rule 50 was

amended and the terminology changed to refer to these motions as

a motion for judgment as a matter of law and a renewed motion for

judgment as a matter of law. We hereafter refer to these motions

using the current language of Rule 50.

Sa

to produce sufficient evidence to create an issue of fact for the

jury that there was a manufacturing defect, we REVERSE the

judgment of the district court and REMAND for proceedings

consistent’ with this opinion.

I. BACKGROUND

A. Factual Background

‘On the night of June 14, 1999, a Sikorsky 76-A

helicopter, aircraft registration number N2743E, owned by

Petroleum Helicopters, Inc. (PHI) and piloted by decedent

Donald Greene (Greene), crashed into a wooded hillside near

Jackson, Kentucky. In addition to Greene, pilot-in-command

Ernest Jones (Jones) and two medical technician passengers,

Sheila Zellers and Brian Harden, died in the accident.

The helicopter took off from Julian Carroll Airport just

after 8:00 p.m. in heavy fog. Because visibility was

approximately one-quarter to one-eighth of a mile, Greene

was forced to rely almost exclusively on the helicopter’s

navigational instruments. Less than two minutes after the

aircraft’s liftoff, an exchange between Greene and Jones

recorded on the cockpit voice recorder (CVR) indicated that

Jones told Greene that the helicopter was in a right-hand turn

and descending. The exchange between Greene and Jones

continued as follows:

8:08:05 p.m. Greene: “Okay I think my gyro just

quit.”

8:08:10 p.m. Greene: “You have the controls?”

8:08:1lp.m. Jones: “You’re in a left hand turn and

descending...turn, turn back and level, level us off.”

6a

8:08:18 p.m. Jones: “Right hand turn...right hand

turn.”

8:08:24 p.m. [Initial sound of impact; CVR ceased

operation}

B. Procedural Background

Donald Greene’s wife, Judy Greene, brought this suit,

claiming that Goodrich defectively designed or manufactured

the vertical gyroscope portion of the helicopter’s navigation

system and that Goodrich was negligent in failing to warn of

its defective product.

Goodrich filed a motion for summary judgment. The

district court granted the motion in part and denied it in part.

The district court summarily dismissed Greene’s design defect

claim because she produced no evidence of a flaw in the

design. With respect to Greene’s manufacturing defect claim,

the district court held that Greene did not produce evidence of

fault under a negligence theory, but it held that Greene’s

manufacturing defect claim sounding in strict liability could

go to a jury because genuine issues of material fact remained

with respect to causation. The district court also held that

Greene could not maintain a state-law failure to warn claim

because federal law regarding aviation standards preempted

any duty imposed by state law.

At trial on the manufacturing defect claim, the jury found

for Greene and awarded her substantial damages. The jury

also awarded damages to Wausau Insurance Co., which had

been paying Greene workers’ compensation on her husband’s

death. Goodrich now appeals (1) the district court’s denial of

Goodrich’s summary judgment motion on the manufacturing

defect claim; (2) the district court’s denial of its motion for

7a

judgment as a matter of law at the end of Greene’s case and

at the end of the entire case; and (3) the district court’s denial

of its renewed motion for judgment as a matter of law.

Greene cross-appeals, challenging the district court’s grant of

summary judgment on her failure to warn claim and the

court’s exclusion of evidence of gyroscope failures that

occurred more than six months prior to the helicopter crash.

C. Background on the Product at Issue

Before proceeding to our analysis, it is first prudent to

have an overview of the product Greene claims Goodrich

defectively manufactured: the vertical gyroscopes on board

the helicopter. The helicopter was equipped with two Attitude

Display Indicators (ADIs), one Standby Attitude Indicator,

and two Horizontal Situation Indicators (HSIs). ADIs indicate

an aircraft’s position in relation to the earth’s horizon and

help a pilot control the position of the aircraft relative to the

earth. Each ADI in the helicopter displayed pitch, roll, and

turn-rate data. The vertical gyroscopes, model number VG-

204 A/B, manufactured by Goodrich, provided data to the

helicopter’s ADIs (which were not manufactured by

Goodrich). The vertical gyroscopes were housed inside the

nose Of the helicopter and were not visible to the pilots during

flight. Each ADI received pitch and roll data independently

from its own vertical gyroscope. Each ADI aiso received

turn-rate data from two other gyroscopes not manufactured by

Goodrich. The vertical gyroscopes in the helicopter did not

provide data to any other instrument on the helicopter. Pilots

use HSIs to determine course deviation and magnetic heading

information. The HSIs in the helicopter received information

from other gyroscopes. The Standby Attitude Indicator is a

self-contained unit with its own gyroscope.

8a

Il. ANALYSIS

Because this case went to trial and resulted in a jury

verdict in favor of Greene, we find it unnecessary to address

whether the district court erred in failing to grant summary

judgment in its entirety to Goodrich. Rather, our analysis will

begin by addressing Goodrich’s motion for judgment as a

matter of law at the end of Greene’s case.

A. Whether the District Court Erred in Denying

Goodrich’s Motions for Judgment as a Matter of Law

and Renewed Motion for Judgment as a Matter of Law

We review a district court’s denial of judgment as a matter

of law de novo. Moore v. KUKA Welding Sys. & Robot

Corp., 171 F.3d 1073, 1078 (6th Cir. 1999). In cases like this

one invoking diversity of citizenship jurisdiction, the Court

applies the state law’s substantive standard for determining

when judgment as a matter of law is appropriate. Morales v.

Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998);

Darwish v. Tempgiass Group, Inc., 26 Fed. Appx. 477, 482

(6th Cir. 2002). Under Kentucky law, judgment as a matter

of law should be granted only when “there is a complete

absence of proof on a material issue in the action, or if no

disputed issue of fact exists upon which reasonable minds

could differ.” Washington v. Goodman, 830 S.W.2d 398,

400, 39 5 Ky. L. Summary 23 (Ky. App. 1992). “Every

favorable inference which may reasonably be drawn from the

evidence should be accorded the party against whom the

motion is made.” Baylis v. LourdesHosp., Inc., 805 S.W.2d

122, 125 (Ky. 1991).

9a

1. Judgment as a Matter of Law

Goodrich says that the district court erred by not granting

its motion for judgment as a matter of law against Greene

both at the close of Greene’s case and again at the close of

trial. As discussed below, we find that the” district court

erred by not granting Goodrich’s motion for judgment as a

matter of law at the close of Greene’s case.

a. Manufacturing Defect Legal Standard

Under Kentucky law, a manufacturing defect exists in a

product when it leaves the hands of the manufacturer in a

defective condition because it was not manufactured or

assembled in accordance with its specifications. See Ford

Motor Co. v. McCamish, 559 §.W.2d 507, 509-11 (Ky. App.

1977). A manufacturing defect claim requires the jury to

determine whether the product failed because of an error in

the process of manufacture or assembly. /d. With respect to

Greene’s strict liability theory, Kentucky has adopted

RESTATEMENT (SECOND) OF TORTS § 402A. See

Dealers Tramp. Co. v. Battery Distrib. Co., 402 S.W.2d 441,

446-47 (Ky. 1965). Under § 402A, the defendant is held

strictly liable if the plaintiff proves the product was “in a

defective condition unreasonably dangerous to the user or

consumer.” Montgomery Elevator Co. v. McCullough by

McCullough, 676 S.W.2d 776, 780 (Ky. 1984). Proceeding

under a strict liability theory does not require the plaintiff to

prove fault on the part of defendant. The plaintiff must,

however, establish causation under the “substantial factor”

test. King v. Ford Motor Co., 209 F.3d 886, 893 (6th Cir.

2000). “Plaintiff must prove that the defendant’s conduct was

a substantial factor in bringing about plaintiffs harm.” /d.

Nothing precludes a plaintiff from using circumstantial

evidence to prove a products liability case so long as the

10a

evidence is “sufficient to tilt the balance from possibility to

probability.” /d. The Restatement (Second) of Torts provides

that “unreasonably dangerous” means a product that is

“dangerous to an extent beyond that which would be

contemplated by the ordinary consumer who purchases it,

with the ordinary knowledge common to the community as to

its characteristics.” RESTATEMENT (SECOND) OF

TORTS § 402A cmt. i (1965). “Defective” means “that the

product does not meet the reasonable expectations of the

ordinary consumer as to its safety.” Worldwide Equip., Inc.

v. Mullins, 11 S.W.3d 50, 55, 466 Ky. L. Summary 10 (Ky.

App. 1999).

b. The Evidence at Trial

The vertical gyroscopes were destroyed in the crash;

accordingly, there was no direct evidence of vertical

gyroscope failure. Greene instead relied on four major pieces

of evidence in an attempt to circumstantially prove a

manufacturing defect in the pilot’s vertical gyroscope:’

First, Greene relied on her husband’s statement seconds

before the crash that he thought his “gyro just quit.”

Second, Greene proffered evidence that in the six-month

period preceding the crash, there had been forty vertical

gyroscope replacements on fifteen of the twenty-four Sikorsky

76-A helicopters owned and operated by PHI. There also had

been eleven ADI replacements on seven PHI helicopters

2 Although there is no distinction in the record between the

vertical gyroscopes in the helicopter, it is clear that Greene’s

manufacturing defect claim relates to pilot Greene’s vertical

gyroscope.

lla

during that same time period. The helicopter that crashed had

three vertical gyroscopes and two ADIs replaced during the

six months preceding the crash.

Third, the National Transportation Safety Board (NTSB)

retrieved from the crash site a faceplate of one of the

helicopter’s ADIs. The NTSB determined from the faceplate

that, at the time of impact, the ADI indicated that the

helicopter was “pointing to a position between level flight and

a 2-degree right roll . . . .”*» The NTSB’s on-site

investigation of the ground damage, including the pattern of

treetop leveling and pilot-in-command Jones’s last words,

both indicated that, at impact, the helicopter was actually “in

a left hand turn and descending.” As the district court stated,

“to oversimplify, the Cockpit Voice Recorder tape and the

crash kinematics did not match the reading of the recovered

ADI.”

Fourth, Greene’s helicopter expert, Douglas Herlihy

(Herlihy), testified that it was more likely that a vertical

gyroscope failure, rather than a failure of other instruments,

was the cause of the crash. Herlihy testified that a wiring

failure between a vertical gyroscope and its ADI was not as

typical as a gyroscope failure itself.* He also testified that it

> It is unclear from examining the record exactly how the

faceplate shows the ADI’s reading on impact.

* Goodrich says that the district court erred when it admitted

Herlihy’s expert testimony because the district court concluded that

Herlihy was not qualified as a gyroscope expert. The record

indicates, however, that during a Daubert hearing, the district court

concluded that Herlihy was competent to testify as an accident

investigator and to give his opinion regarding why the vertical

12a

o—_-

was his opinion that “the accident was a result of instrument

confusion in the cockpit created by the loss of vertical gyro

input to the flying pilot’s A.D.I, or gyro horizon.”

c. Goodrich’s Challenge to Greene’s Statement

As an initial matter, Goodrich maintained on brief and

during oral argument that Greene’s statement as recorded on

the CVR, “Okay I think my gyro just quit,” was inadmissible

hearsay. Goodrich says that the vertical gyroscopes feeding

the helicopter’s ADIs were located in the nose of the

helicopter. Thus, Goodrich argues, it would be impossible for

Greene to see a vertical gyroscope or to know that it quit;

rather, he only would be able to see the ADIs inside the

cockpit that reflected data supplied by the gyroscopes.

Additionally, Goodrich argues that there were at least six

gyroscopes on the helicopter and that it did not manufacture

all of them, so admitting Greene’s statement requires

speculation as to which gyroscope Greene may have been

referring.

At the time the district court admitted Greene’s statement,

it did not clearly articulate the hearsay exception on which it

was relying. The district court did, however, address this

issue with specificity when it denied Goodrich’s motions for

judgment as a matter of law. The district court at that time

found that the statement was admissible under two exceptions

to the hearsay rule: (1) present sense impression and (2)

excited utterance.

We review whether the district court’s determination was

gyroscope caused the crash. We find that the district court did not

err in admitting Herlihy’s testimony.

13a

an abuse of discretion. Mitroff v. Xomox Corp., 797 F.2d

271, 275 (6th Cir. 1986). Under the Federal Rules of

Evidence, hearsay is defined as a “statement, other than one

made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”

Fed. R. Evid. 801(c). Under FED. R. EVID. 803(1), the

hearsay rule does not exclude “[{a] statement describing or

explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafter.”

The excited utterance exception to the hearsay rule under

FED. R. EVID. 803(2) requires “first, there must be an event

startling enough to cause nervous excitement. Second, the

statement must be made before there is time to contrive or

misrepresent. And, third, the statement must be made while

the person is under the stress of the excitement caused by the

event.” Hoggins v. Warden, Fort Pillow State Farm, 715 F.2d

1050, 1057 (6th. Cir. 1983).

As an initial note, it is unclear from the record if Greene’s

out-of-court statement was ever: offered at trial to prove the

truth of the matter asserted -- the definition of hearsay. Even

if it was, however, the district court did not err in admitting

Greene’s statement as either a present sense impression or as

an exited utterance. With respect to a present sense

impression, certainly Greene could not personally observe the

vertical gyroscopes in the nose of the helicopter as Goodrich

argues. However, it is undisputed that Greene could see the

ADIs in the cockpit that reflected data supplied by the vertical

gyroscopes in the nose of the helicopter. Although Goodrich

argues that it is unclear if Greene was referring to his ADI in

his statement or another ADI in the cockpit, the fact that he

said “I think my gyro just quit” (emphasis added) appears to

indicate that he was referring to his ADI. Indeed, Herlihy,

Greene’s expert, testified that it would make no difference to

an experienced pilot like Greene that the gyroscope is in the

l4a

nose of the helicopter. Herlihy testified that if a pilot like

Greene said “my gyro just quit,” he knows that the

information displayed on the ADI is coming from the nose of

the helicopter. To suggest that a pilot who is experiencing

problems with an ADI display must physically view the

gyroscope to reliably detect a malfunction is untenable.

The district court also did not err in concluding that

Greene’s statement was an excited utterance. Certainly

Greene made the statement while under stress of the event

that nineteen seconds later resulted in his death. To the extent

that Goodrich argues again that Greene could not physically

see the gyroscope that allegedly quit, the Advisory Committee

Notes to FED. R. EVID. 803 provide that, with respect to a

declarant’s perception of an event, “the statement need only

‘relate’ to the startling event or condition, thus affording a

broader scope of subject matter coverage.” Overall, the

district court did not abuse its discretion in admitting Greene's

statement.

d. Whether Greene’s Evidence Was Sufficient to

Prove a Manufacturing Defect

At the heart of Goodrich’s argument is its position that

Greene failed to meet her burden of proof because she failed

to establish an issue of fact for the jury that there was a

manufacturing defect in the pilot’s vertical gyroscope, i.e.,

Goodrich says that Greene’s evidence failed to “tilt the

balance from possibility to probability” and thus show that

there was a manufacturing defect in the pilot’s vertical

gyroscope. See King, 209 F.3d at 893. After a review of the

record and an examination of Greene’s proofs at trial, we

agree with Goodrich that the evidence Greene proffered failed

to show that there was a manufacturing defect in a vertical

gyroscope.

15a

Perhaps what is most problematic to us is Greene’s heavy

reliance on data indicating the number of vertical gyroscopes

and ADIs that had been removed and/or repaired in PHI-

owned helicopters in the six months preceding the helicopter

accident. The parties presented us with differing

interpretations of this data. The NTSB report states that

according to company records, in the 6 months that

preceded the accident, fleetwide, there had been a

total of 40 vertical gyro replacements on 15

helicopters, and a total of 11 attitude indicator

replacements on 7 helicopters. On N2743E[, the

helicopter piloted by Greene and Jones], in the

preceding 6 months, there were two attitude

indicators, and three vertical gyros replaced.

According to company records, fleetwide, in the

preceding 6 months, the maximum number of attitude

indicators replaced on a helicopter was three, and

maximum number of vertical gyros replaced was six.

Greene introduced Exhibit No. 21 at trial, titled “S-76

Vertical Gyro Removals” and “S-76 Attitude Director

Indicator Removals,” which purports to summarize the

vertical gyroscopes and ADIs from PHI’s helicopter fleet that

were removed, replaced, and/or sent to a repair facility

between December 15, 1998 through June 14, 1999. Our

review of the data contained in this exhibit does not seem to

correlate with the figures recited above from the NTSB

report. Our review of Exhibit No. 21 suggests that PHI

removed 32 vertical gyroscopes and 12 ADIs from some of its

helicopters in the relevant six-month period. Regardless of the

sum total of vertical gyroscopes and ADIs that were removed,

replaced, or repaired during the six months preceding the

accident, however, it troubles us that Greene argues that the

16a

data from this exhibit suggest a “large number” of vertical

gyroscope failures. The vertical gyroscopes and ADIs for

which there were repair orders were not sent solely to

Goodrich; rather, PHI sent them to various facilities,

including Goodrich; Masco; Helicopter Support, Inc.; Bell

Helicopter Textron; and Honeywell, Inc.°

The evidence in Exhibit No. 21 does not suggest that there

was a manufacturing defect in a vertical gyroscope. Indeed,

including ADIs within the list of removals, replacements, and

repairs does nothing to support Greene’s claim that there was

a manufacturing defect in a vertical gyroscope. The evidence

in the exhibit could equally suggest that there was a problem

with an ADI. Indeed, counsel for Goodrich at oral argument

told us that nothing in Greene’s proofs ruled out the

possibility that an ADI malfunctioned. More significant,

however, is the fact that Greene proffered no evidence that

the reason for the removal or repairs of the vertical

gyroscopes was unusual. Likewise, she proffered no evidence

that the rate of replacement of vertical gyroscopes in the PHI

fleet differed from the replacement rate of vertical gyroscopes

made by other manufacturers.

> It is unclear if Exhibit No. 21 shows that all vertical

gyroscopes that PHI removed were manufactured by Goodrich

because the gyroscopes were sent to various repair facilities.

17a

Because of our uncertainty after studying the record, we

expressed concern to counsel at oral argument about the use

of Greene’s data regarding vertical gyroscope and ADI

removals, replacements, and repairs. We directly asked

counsel for both Goodrich and Greene to direct us to the place

in the record that would inform us as to the expected useful

life of a vertical gyroscope. Both counsel, however, informed

us that the record is devoid of such information.° This strikes

us aS a Conspicuous omission, given the fact that without such

a benchmark it is impossible to determine whether the vertical

gyroscopes removed, replaced, or repaired in the PHI fleet

occurred at a statistically significant rate compared with the

average life expectancy of a vertical gyroscope. As counsel

for Goodrich correctly noted during oral argument, the failure

to adduce such evidence is correctly attributable to Greene --

the party with the burden to prove a manufacturing defect.

Simply put, Greene’s statistics regarding the removal,

replacement, and repairs of vertical gyroscopes and ADIs in

° The parties had an opportunity post-argument to respond to

our concerns about the lack of this information, but we received no

response.

18a

the PHI fleet are meaningless and are not, without more,

probative of a manufacturing defect.’

Greene’s evidence also consisted of Exhibit No. 6,

comprising 211 pages of work orders and inspection reports

from Goodrich’s repair station in Austin, Texas. This exhibit

documented work orders Goodrich received from PHI for

mode! VG-204 A/B vertical gyroscopes along with details of

the work Goodrich actually performed on each vertical

gyroscope submitted to the repair station for evaluation. The

documents in Exhibit No. 6 detail work orders from PHI to

Goodrich for the period November 1994 through April 1999.

Two of the work orders and inspection reports within six

months of the accident show that PHI sent two model VG-204

A/B vertical gyroscopes from the helicopter Greene was

piloting, registration number N2743E, to Goodrich’s Texas

facility. The first work order, number FK956, was received

by Goodrich on January 25, 1999. The reason listed on the

work order for the vertical gyroscope being removed was “#2

pitch kicks in flight.” The final inspection report by Goodrich

on January 29, 1999, lists as the reason for failure “carbon

build-up on slip rings and brushes due to electrical contact.”

The inspection report states that Goodrich repaired the

’ This case presents an important example of how the value of

oral argument cannot be understated. Oral argument allowed us to

further delve into issues of concern that were not adequately

addressed by the parties ir. their briefs. “The intangible value of

oral argument is, to my mind, considerable... Oral argument offers

an Opportunity for a direct interchange of ideas between court and

counsel... Counsel can play a significant role in responding to the

concerns of the judges, concerns that counsel won't always be able

to anticipate in preparing the briefs.” William H. Rehnquist, Oral

Advocacy: A Disappearing Art, 35 MERCER L. REV. 1015, 1021

(1984).

19a

vertical gyroscope and that it met manufacturer specifications

when it was returned to PHI on January 29, 1999. The second

work order, number FT858, was received by Goodrich on

April 13, 1999. The reason listed on the work order for the

vertical gyroscope being removed was, again, “#2 pitch kicks

in flight.” The final inspection report by Goodrich on April

16, 1999, states “couldn’t verify customer complaint, unit

performs normally.” Before the vertical gyroscope was

returned to PHI on April 16, 1999, the work performed on

the unit was listed on the final inspection report as “open

checked unit, cleaned all slip ring and brushes as a

precaution, calibrated, tested and inspected to current mfg

spec. . . .” This exhibit likewise is not probative of a

manufacturing defect because it does nothing to suggest that

any model VG-204 A/B vertical gyroscope listed in the series

of work orders was defective at the time it left Goodrich’s

manufacturing plant.

Another piece of evidence further supports our conclusion

that Greene failed to prove that there was a manufacturing

defect in a vertical gyroscope. Herlihy testified at trial that it

was his opinion that “the accident was a result of instrument

confusion in the cockpit created by the loss of vertical gyro

input to the flying pilot’s A.D.I, or gyro horizon.” PHI lead

pilot Thomas Methvin, however, testified that even if one

ADI failed or was receiving incorrect information, Greene

and/or pilot-in-command Jones should have relied upon the

other ADIs in the cockpit to safely fly or land the aircraft.

Additional testimony by Herlihy provided that the accident

“had a number of factors that caused it.” Herlihy testified that

“the factors include two primary causes,” including the

weather and Herlihy’s opinion that “the helicopter

experienced an instrument failure.”

20a

Given the evidence that it would be possible for a pilot to

navigate the helicopter if an ADI failed; that multiple events

could have caused the helicopter accident; and that

replacements of vertical gyroscopes on PHI’s helicopters,

including the one piloted by Greene and Jones, six months

prior to the crash do not, standing alone, indicate a gyroscope

defect, Greene’s proofs were simply insufficient to show that

there was a manufacturing defect in a vertical gyroscope.

Indeed, at no time did any witness identify a defect in

manufacture of model VG-204 A/B vertical gyroscopes.

e. Conclusion

Viewing the totality of the evidence at the conclusion of

Greene’s proofs leads us to conclude that the evidence

amounted to “featureless generality.” See OLIVER

WENDELL HOLMES, JR., THE COMMON LAW 89

(Mark DeWolfe Howe ed., Little, Brown 1963) (1881). In the

absence of evidence that one possible explanation was more

probable than another, the jury was required to speculate as

to whether there was a defect. It is well established that a jury

verdict based on speculation, supposition, or surmise is

impermissible:

Although the jury may draw reasonable inferences

from the evidence of a defect in manufacturing, it is

incumbent on the plaintiff to introduce evidence that

will support a reasonable inference that the defect was

the “probable” cause of the accident as distinguished

from a “possible” cause among other possibilities;

otherwise, the jury verdict is based upon speculation

or surmise.

Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745, 747

(Ky. 1973). Our view of the evidence indicates that, at best,

21a

Greene only showed at trial that it was possible there was a

manufacturing defect in a vertical gyroscope. She simply

failed to satisfy her burden that there was such a defect.

Because we conclude that the district court erred in failing

to grant Goodrich’s motion for judgment as a matter of law at

the conclusion of Greene’s case, Goodrich’s challenge to the

district court’s denial of Goodrich’s motion for judgment as

a matter of law at the close of trial and the district court’s

denial of Goodrich’s renewed motion for judgment as a matter

of law is moot.

B. Whether the District Court Erred in Granting

Summary Judgment to Goodrich on Greene’s Failure

to Warn Claim

Greene argues in her cross-appeal that the district court

erred when it granted summary judgment to Goodrich on

Greene’s failure to warn claims.

Greene argued that Goodrich breached its duty to warn

users of aircraft that contained a vertical gyroscope about the

gyroscope’s manufacturing defects. Greene relied on

Herlihy’s opinion that Goodrich “had no central database

structure . . . to track malfunctions, to register employee

concerns of gyro system weaknesses, or to communicate

horizontally between Grand Rapids manufacturing, quality

assurance and iis field repair facilities.” Greene did not allege

any violations of federal law with respect to the failure to

warn claim. She also did not cite any authority regarding

standards that encourage or require a company like Goodrich

to maintain such a database.

In granting Goodrich’s motion for summary judgment

with respect to the failure to warn claim, the district court

22a

held that federal law preempts any state-law imposed duties

in the realm of aviation. The district court found it significant

that Federal Aviation Administration (FAA) guidelines do not

propose or mandate a database like Herlihy suggested

Goodrich should maintain. In reaching its conclusion, the

district court relied on Abdullah v. Am. Airlines, Inc., 181

F.3d 363 (3d Cir. 1999). In Abdullah, the Court of Appeals

for the Third Circuit joined other circuits in recognizing that

Congress intended aviation safety to be exclusively federal in

nature. /d. at 371. The Supreme Court has stated that

preemption may be inferred where “the pervasiveness of the

federal regulation precludes supplementation by the States,

where the federal interest in the field is sufficiently dominant,

or where the object sought to be obtained by the federal law

and the character of obligations imposed by it reveal the same

purpose.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293,

300, 108 S. Ct. 1145, 99 L. Ed. 2d 316 (1988) (internal

quotations omitted). The Abdullah court noted that “the

federal courts that adjudicated the first major cases involving

the [Federal Aviation Act] interpreted its legislative history as

evincing Congress’s intent to exercise supremacy over the

field of aviation safety.” Abdullah, 181 F.3d at 369. The

legislative history of the Federal Aviation Act notes that:

{The purpose of the Federal Aviation Act was to give]

[t}he Administrator of the new Federal Aviation

Agency full responsibility and authority for the

advancement and promulgation of civil aeronautics

generally, including promulgation and enforcement of

safety regulations.

H.R. Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. 3741.

The House Report also noted that “it is essential that one

agency of government, and one agency alone, be responsible

for issuing safety regulations if we are to have timely and

23a

effective guidelines for safety in aviation.” /d. at 3761. After

analyzing this legislative history, the Abdullah court

concluded:

It follows from the evident intent of Congress that

there be federal supervision of air safety and from the

decisions in which courts have found federal

preemption of discrete, safety-related matters, that

federal law preempts the general field of aviation

safety.

Abdullah, 181 F.3d at 371. We agree with the Third Circuit’s

reasoning in Abdullah that federal law establishes the

standards of care in the field of aviation safety and thus

preempts the field from state regulation. The district court did

not err in concluding that federal law preempted Greene’s

state-law failure to warn claim.

C. Whether the District Court Erred in Excluding

Evidence of Gyroscope Repairs and Replacements

Beyond a Six-Month Timeframe

Greene also argues in her cross-appeal that the district

court erred by excluding evidence of gyroscope repairs and

replacements that occurred on PHI’s helicopters more than six

months prior to the crash. When examining a challenge to the

exclusion of evidence, we will not reverse the district court’s

decision “unless necessary to do ‘substantial justice.’” Martin

v. Heideman, 106 F.3d 1308, 1311 (6th Cir. 1997).

Greene does not adequately explain how evidence of

gyroscope repairs and replacements beyond a six-month time

period before the crash would help her case. Indeed, it

appears as though such evidence is cumulative of the evidence

she proffered that indicated that there had been several

24a

replacements of vertical gyroscopes on PHI’s helicopters. The

district court correctly limited this type of evidence to a time

period of six months prior to the crash so as to prevent the

introduction of unnecessary and cumulative data for the jury’s

consideration. Greene has failed to demonstrate how reversing

the district court’s evidentiary decision is necessary to do

substantial justice.

Ill. Conclusion

An appellate court does not set aside a jury verdict with

ease. Indeed, we previously have recognized that a reviewing

court should not lightly overturn a jury verdict. See, e.g.,

Pratt v. Nat’l Distillers & Chem. Corp., 853 F.2d 1329, 1337

(6th Cir. 1988). Not all questions, however, can be put to a

jury, and after a review of the record in this case we conclude

that we have an obligation to REVERSE the decision of the

district court and REMAND this case with instructions to

enter judgment in favor of Goodrich and to dismiss this case.

R. GUY COLE, JR., concurring in part and dissenting in

part.

Regarding all but one of the claims presented in this

appeal, I concur in the judgment of the Court. However, I

write separately to clarify my concerns with Greene’s

manufacturing defect claim and to respectfully dissent from

the majority’s opinion regarding Greene’s failure to warn

claim.

A product failure cannot always be equated to a product

defect, and this, as I see it, is the fatal flaw in Greene’s

argument. First, to prevail on a manufacturing defect claim

25a

under a strict liability theory, the plaintiff must show that a

manufacturing error, resulting in an unreasonably dangerous

condition, was the substantial cause of the plaintiffs injury.

Worldwide Equip., Inc. v. Mullins, 11 $.W.3d 50, 55-58, 46

6 Ky. L. Summary 10 (Ky. App. 1999). As the majority

notes, Greene presented four items of evidence in support of

her claim that a vertical gyroscope failure was the probable

cause of the crash: (1) Mr. Greene’s statement immediately

prior to the crash that his “gyro just quit”; (2) evidence that

in the six-month period before the crash, several gyroscopes

in PHI’s helicopters, including in the one piloted by Mr.

Greene, were replaced; (3) evidence that the crash kinematics

did not match what the helicopter’s instruments were reading

at the time of the crash; and (4) Herlihy’s testimony that, in

his opinion, the vertical gyroscope failed on the night of the

accident because, based on the remains of the ADI face plate

and light panels from the crash, a vertical gyroscope failure

was more likely than a wiring failure between the gyroscope

and its ADI, or a failure of the ADI. With the exception of

the second item of evidence, | find that the sum of Greene’s

circumstantial evidence was sufficient to support the jury’s

conclusion that the vertical gyroscope failed.

However, Greene presented no evidence showing that this

failure was the result of a manufacturing defect. Because the

gyroscope was destroyed in the crash, Greene could not

*xamine it for a manufacturing defect. Her argument has

wssentially been: the gyroscope failed and therefore there must

have been a manufacturing defect. This type of res ipsa

loquitur reasoning has been embraced by Kentucky courts in

manufacturing defect cases. See Embs v. Pepsi-Cola Bottling

Co. of Lexington, Kentucky, Inc., 528 S.W.2d 703, 706 (Ky.

App. 1975) (reversing a dismissal where the plaintiff was

injured by an exploding beverage bottle, the debris of which

was unrecoverable, because bottles do not ordinarily explode

26a

in the course of normal handling); c.f. Perkins v. Trailco Mfg.

and Sales Co., 613 S.W.2d 855, 858 (Ky. 1981) (reversing

a dismissal and noting that cifcumstantial evidence was

enough to prove a defect where a new tractor trailer collapsed

while it was being properly used). Nevertheless, to be entitled

to this res ipsa loquitur-type inference, the plaintiff has the

burden of showing that the product malfunctioned in a way

unlikely to occur if the product had been properly made, and

that no outside forces caused the malfunction. See Prosser,

Wade & Schwartz, Torts, 767 (9th ed. 1994); Dan B. Dobbs,

The Law of Torts, 1003 (2001). Unfortunately for Greene, she

did not show that it was out of the ordinary for a gyroscope

to fail. Goodrich presented evidence that vertical gyroscopes

are not replaced on any set time table. Rather, gyroscopes are

replaced “on condition,” meaning that they are replaced once

they show a discrepancy or failure. These discrepancies or

failures occur during flight, and usually, pilots compensate by

relying on the other gyroscopes in the helicopter. The

uncontroverted evidence showed that failures occur and that

pilots are trained never to rely solely on one gyroscope for

this reason. Given this, Greene has not proven that a

gyroscope failure is an unexpected event such that a res ipsa

loquitur inference would be warranted. Accordingly, there

was no evidence that the gyroscope failure was a

“manufacturing defect,” and the jury’s outcome to the

contrary must be set aside.

Although the majority goes further to say that the

gyroscope failure may not have caused the crash, I am not

convinced that a gyroscope failure, while usually a

manageable event, did not prove fatal in the unique

circumstances of this crash. It may be that gyroscopes in

certain circumstances are unavoidably unsafe products, see

RESTATEMENT (SECOND) OF TORTS § 402A, Comment

K, however, all the evidence presented indicates that users are

27a

aware of their unsafe attributes. Without showing a

probability that Mr. Greene’s gyroscope was defective as

compared to other gyroscopes produced by Goodrich,

Greene’s claim must fail.* Therefore, I respectfully concur in

the result reached by the majority as to Goodrich’s motion for

judgment as a matter of law.

Il.

I now turn to Greene’s cross-appeal regarding her failure

to warn claim. The majority opinion affirms the district

court’s grant of summary judgment to Goodrich, stating that

Greene’s state law failure to warn claim is preempted by

federal law. A federal law may preempt a state law either

expressly or implicitly. Garcia.v. Wyeth-Ayerst Labs., 385

F.3d 961, 965 (6th Cir. 2004). When Congress enacted the

Federal Aviation Act (“FAA”), it chose several specific areas

in which to explicitly prohibit the States from enacting

regulations relating to aviation safety. See 49 U.S.C.

§ 41713(b)(1) (preempting the States from enacting

regulations regarding the “price, route, or service of an air

carrier that may provide air transportation”); 49 U.S.C.

® I recognize the difficulty of proving a manufacturing defect

in a Situation where the product is destroyed. This is why the res

ipsa loquitur inference could prove important in many cases. Here,

however, there is an additional complication, because the product,

by all accounts, is sometimes expected to fail. If Greene had

presented evidence on the expected rate of failure in gyroscopes,

she perhaps might have been able to show that a user would not

have had any expectation that a relatively new gyroscope would

fail, and therefore that a manufacturing defect was the likeliest

possibility. Greene may have an argument that Goodrich has the

burden to collect and provide consumers with information regarding

the gyroscope’s failure rate. See infra.

28a

§ 44703(i)(2) (preempting the States from enacting regulations

imposing liability on any person for “furnishing or using

records” of employment); 49 U.S.C. § 44921(f)(2)

(preempting the States from regulating when a flight deck

officer may carry a firearm). I can find no congressional

language in the FAA which would expressly preempt

Greene’s state law-based failure to warn claim in this case.

When Congress fails to use express preemption language,

a federal law may still preempt state law if the federal law

thoroughly occupies the legislative field in question. This

Court has previously held that:

Implied preemption occurs if a scheme of federal

regulation is sO pervasive as to make reasonable the

inference that Congress left no room for the States to

supplement it, if the Act of Congress touches a field

in which the federal interest is so dominant that the

federal system will be assumed to preclude

enforcement of state laws on the same subject, or if

the goals sought to be obtained and the obligation

imposed reveal a purpose to preclude state

authority . . . a court must begin with the assumption

that a state law is valid and should be reluctant io

resort to the Supremacy Clause.

Garcia, 385 F.3d at 965.

Under this implied preemption reasoning, the district court

determined that federal law preempted state law on the issue

of aviation safety duties. The district court cited Abdullah v.

American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999) in

support of this proposition. As the majority notes, the Third

Circuit in Abdullah did a close study of the legislative history

of the FAA. In Abdullah, passengers who were injured during

29a

a flight sued the airline for operating the aircraft in a manner

that resulted in severe turbulence. 181 F.3d at 365. The court

stated that:

To effectuate this broad authority to regulate air

safety, the Administrator of the FAA has implemented

a comprehensive system of rules and regulations,

which promotes flight safety by regulating pilot

certification, pilot pre-flight duties, pilot flight

responsibilities, and flight rules.

Id. at 369. The court, noting that federal regulations already

exist which lay out the appropriate standard of care that was

owed to passengers by pilots and flight crews, concluded that

the FAA preempted any standards of care that the State may

impose on flight operators. /d. at 371. To the extent that we

choose to rely on Abdullah as persuasive authority, I believe

that the facts of the instant case are readily distinguishable.

Abdullah can truly only be relied on for the limited

proposition that a State’s standard of care for aviation

personnel is preempted by the FAA. The situation before us

is not like that in Abdullah, because in this case, there are no

federal regulations which lay out the exact standard of care.

Therefore, | would not expand the proposition in Abdullah to

apply to commercial enterprises that manufacture aviation

equipment.

Furthermore, this Court has previously chosen to apply

preemption narrowly with regards to the FAA. In Gustafson

v. City of Lake Angelus, 76 F.3d 778, 786 (6th Cir. 1996),

we stated that Congress had preempted local law regarding

navigable airspace, noise control, and aircraft safety, but went

on to hold that the FAA did not preempt local

regulations/ordinances regarding ground space to be used for

aircraft landing sites. /d. at 789. Thus, our circuit has

30a

traditionally shown a proper amount of restraint and caution

before finding State and local laws preempted by federal law.

Under this regime, I cannot assume that the FAA implicitly

preempts any State or common law-imposed duties here.

Admittedly, the FAA is involved in overseeing the quality

control of certain aviation equipment; however, neither the

appellant nor the majority have proffered any reason why a

State’s more stringent duty of care in the failure to warn

context could not supplement rather than frustrate the FAA.

Consequently, I respectfully dissent from the majority’s

conclusion that Greene’s failure to warn claim was properly

dismissed.

3la

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO 02-8-JMH

[Filed November 19, 2002]

JUDY GREENE, EXECUTRIX OF

THE ESTATE OF DONALD GREENE,

DECEASED,

PLAINTIFF,

V.

B.F. GOODRICH AEROSPACE,

D/B/A B.F. GOODRICH AVIONIC

SYSTEMS, ET AL.,

DEFENDANTS.

ee ee ee ee ee ee ee

MEMORANDUM OPINION AND ORDER

This matter is before the Court on motion by defendant

B.F. Goodrich Avionics for judgment notwithstanding the

verdict or, in the alternative, for a new trial [Record Nos. 158

& 161]. Fully briefed, defendant’s motion is ripe for review.

32a

INTRODUCTION

The Court on August 26, 2002 granted in part and denied

in part defendant’s motion for summary judgment. Beginning

September 5, 2002 and lasting for seven days, the Court

conducted a trial on plaintiff's sole surviving claim - her strict

liability manufacturing defect claim. At the close of trial -

during the course of which the Court denied plaintiff's motion

for directed verdict and at the end of which the Court denied

plaintiff's motion for judgment as a matter of law - the jury

returned a verdict in favor of plaintiff in the amount of

$1,275,830. Given an apportionment iastruction, the jury

nonetheless attributed 100% fault to defendant B.F. Goodrich.

The Court on October 3, 2002 entered judgment in favor of

plaintiff in the amount of $1,182,674.13 and in favor of

intervening plaintiff Wausau Insurance Co. in the amount of

$93,155.87.

LEGAL STANDARD

Federal Rule of Civil Procedure 50(b) provides for post-

trial motions for judgment as a matter of law, “Rule 50 is one

of the judicial control devices provided by the Federal

Rules . . . so that the district court may enforce rules of law.

It allows the court to take away from the jury’s consideration

cases or issues when the facts are sufficiently clear that the

law requires a particular result.” C. Wright & A. Miller,

Federal Practice and Procedure: Civil 2% § 2521 (1995 &

Supp. 2002). Invocation of Rule 50 is a serious matter,

however, and its provisions should be infrequently applied.

After all, “[sJince judgment as a matter of law deprives the

party opposing the motion of a determination of the facts by

a jury, it should be granted cautiously an sparingly.” /d. at

§ 2524. “The fundamental principle is that there must be a

minimum of judicial interference with the jury.” /d.

33a

In the instant case, defendant is entitled to judgment as a

matter of law only. if there is “no legally sufficient basis for

a reasonable jury” to find for plaintiff. Fed. R. Civ. P. 50(a).

The United Stated Court of Appeals for the Sixth Circuit has

described the appropriate review standard for Rule 50 motions

as follows:

The evidence should not be weighed. The credibility

of the witnesses should not be questioned. The

judgment of this court should not be substituted for

that of the jury. Instead, the evidence should be

viewed in the light most favorable to the party against

whom the motion is made, and that party given the

benefit of all reasonable inferences. The motion

should be granted . . . only if reasonable minds could

not come to a conclusion other than one favoring the

movant.

K & T Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175-

76 (6th Cir. 1996).

With respect to defendant’s alternative request for a new

trial, Rule 59 requires that such a request be granted only in

instances where a jury reached “a seriously erroneous result.”

Holmes v. City of Massillon, 78 F.3d 1041, 1045-46 (6th Cir.

1996). The movant must demonstrate that (1) the verdict was

against the weight of the evidence, (2) damages were

excessive, or (3) the trial was unfair. Jd. “Courts are not free

to reweigh the evidence and set aside the jury verdict merely

because the jury could have drawn different inferences or

conclusions or because judges feel that other results are more

reasonable.” Barnes v. Owens-Corning Fiberglass Corp.,

201 F.3d 815, 820-21 (6th Cir. 2000).

34a

ANALYSIS

Defendant asserts a smattering of errors. Defendant’s

contentions shall be addressed in turn.

Defendant’s first argument is that the Court erred in

admitting evidence respecting repair records and related

testimony because such evidence went to negligence, not strict

liability. As a corollary to its main argument, defendant

argues that repair evidence relating to the “1885” gyroscope

was particularly inappropriate, given that the accident

helicopter was not outfitted with the 1885 model. These

arguments are without merit, however. While it is true that

the repair record evidence could have been used to show

negligence, this is not to say that evidence of repair is

irrelevant to the strict liability theory. To the contrary, strict

liability requires proof of defect, a factual question of which

repair records can be highly probative. As for the 1885

model, defendant’s objection is well-taken - as it was at trial.

Though defendant may “disagree,” a look at the specific

language of the Court’s original admonition to the jury shows

that it covered the 1885 scenario. A second admonition was

unwarranted.

Defendant’s’s second argument is, perhaps, its most

brazen. There was simply no evidence, claims defendant, of

a manufacturing defect. On this point, the Court merely

references its earlier Order passing upon defendant’s motion

for summary judgment. Suffice it to say that there was ample

evidence, albeit circumstantial, to support an award of

damages. Though no one will ever know for sure, the Court

can speculate that among the evidence the jury found

persuasive were (1) the inconsistency between the crash site

kinematics and the recovered ADI needle reading,

(2) evidence of past gyroscope failure in the repair records,

35a

and (3) pilot Greene’s last-second statement that he had lost

his gyroscope. The jury would have acted well within reason

to have relied on this evidence alone.

Defendant’s third argument - that the Court somehow

reduced plaintiff's burden of proof - is as curious as

defendant’s second argument is brazen. The Court shall

discuss plaintiff's “burden of proof” argument in some detail,

however, if only because defendant’s argument in this respect

reflects a fundamental, glaring misunderstanding of the

applicable law. The Court handles defendant’s “burden of

proof” argument with special care because the faulty logic

exemplified therein is emblematic of the ill-founded

arguments pervading defendant’s summary judgment and

post-trial motions.

To paraphrase defendant’s argument in this regard,

defendants argue that under Hersch v. Rockwell Int'l Corp.,

719 F.2d 873 (6th Cir. 1983), a jury finding of design defect

must be supported by direct evidence. Absent direct evidence,

defendants reason, a jury can only speculate or conjecture -

which, the Court agrees, is impermissible. Defendant’s

argument is grounded in the following language from Hersch:

“[A plaintiff must be able] to tilt the scales from possibility to

probability on the causation issue. The court is aware of the

difficulty of establishing causation in this type of disaster

where eyewitness testimony is unavailable and much of the

physical evidence is damaged or destroyed. Nevertheless, a

jury should not be permitted to engage in speculation and

conjecture.” Jd. at 877.

While the Court concedes that the language quoted above

is relevant to the case at bar, the Court submits that

defendant’s “burden of proof” argument is founded on a

twisted, undisciplined reading of it. Defendant would be well

36a

advised to parse the language carefully: critically, the

language references only degrees of proof (“possibility”

versus “probability”) not types of proof. In other words, the

quoted language addresses the necessary quantum of proof,

not its form. Quite simpiy, to deduce from the quoted

language that plaintiffs cannot prove causation by

circumstantial evidence is to engage in faulty reasoning. More

importantly, such deduction amounts to an incorrect statement

of the law. As stated in Perkins v. Trailco Manufacturing and

Sales, 613 S.W.2d 855 (Ky. 1981), the very case on the

Hersch court relied, “Circumstantial evidence has no magic

quality. It is measured by the same standards of probity and

credibility as direct evidence.” Jd. at 857 (quoting Lee v.

Tucker, 365 S.W.2d 849 (1963)). The rule is that “the

existence of a defect in the product itself may be established

by a sufficient quantum of circumstantial evidence... .

[L]egal causation may be established by a quantum of

circumstantial evidence from which a jury may reasonably

infer that the product was a legal cause of the harm.” /d.

(quoting Holbrook v. Rose, 458 S.W.2d 155 (1970)).

Defendant raises several additional, perfunctory

arguments - all of which are without merit. Two relate to

evidentiary issues; specifically, (1) the admissibility of pilot

Greene’s statement that he “lost his gyro” and (2) the

admissibility of the Service Difficulty Reports (“SDI” reports)

filed with the FAA by helicopter owner Petroleum

Helicopters, Inc. As for the former, the Court found the

recorded statement to be admissible under Fed. R. Evid.

803(1) or (2) as a “present sense impression, or “excited

utterance.” As for the SDI Reports, defendant’s claim of

unfair prejudice is undercut by the fact that the documents fell

within the parameters of plaintiff's requested: discovery;

defendant’s failure to produce the documents renders any

objection concerning the SDI reports less than compelling.

37a

Plaintiff's penultimate argument is that no reasonable jury

could have concluded that the pilots were not at least partly to

blame for the accident. The Court disagrees. Given the high-

pressure, split-second decision-making required of the pilots,

it seems eminently reasonable for a jury to understand the

illusory perfection of hindsight vision.

Defendant’s final argument is that a directed verdict was

in order because plaintiff failed to provide expert testimony to

the effect that the specific gyroscopes in question were

defectively manufactured. While it is true that plaintiff did not

introduce such direct evidence, the Court wouid refer the

defendant to the discussion above regarding the role of

circumstantial evidence in proving product defect.

Defendant’s post-trial motions raise two final issues. First,

defendant argues that the Court erred in allowing plaintiff to

recover fringe benefits, and that therefore the Judgment

should be reduced by $258,422.00. Defendant cites no

authority for this proposition, but rather relies on the

argument that fringe benefits are not “earned money.”

Plaintiffs, for their part, rely on austere case law standing for

the proposition that juries in wrongful death actions be given

wide latitude respecting calculation of damages. The Court’s

own independent research reveals that, while it appears that

the Kentucky courts have not had occasion to rule on the

question specifically, fringe benefits are routinely included in

damage calculations. See, e.g., Charash v. Johnson, 43

S.W.3d 274 (Ky. Ct. App. 2001) (permitting award of fringe

benefits and noting that whereas uncertainty as to the fact of

damages is problematic, uncertainty as to the amount of

damages is not). Consequently, the Court finds defendant’s

fringe benefit objection unpersuasive.

38a

Second, defendant argues that it is entitled to a stay of

execution or enforcement of the judgment pending ruling on

defendant’s post-trial motions. Because this Memorandum

Opinion and Order disposes of those motions, defendant’s

request is moot.

Accordingly,

IT IS ORDERED that defendant’s motion for judgment

notwithstanding the verdict or in the alternative for a new trial

[Record Nos. 158 & 161] be, and the same hereby are,

DENIED.

This the 19" day of November, 2002.

/s/

JOSEPH M. HOOD, JUDGE

Date of Entry and Service.

39a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO 02-8-JMH

[Filed August 26, 2002]

JUDY GREENE, EXECUTRIX OF

THE ESTATE OF DONALD GREENE,

DECEASED,

PLAINTIFF,

B.F. GOODRICH AEROSPACE,

D/B/A B.F. GOODRICH AVIONIC

SYSTEMS, ET AL.,

)

)

)

)

)

7 )

)

)

)

)

DEFENDANTS. )

)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on motion by

defendant/third-party plaintiff B.F. Goodrich Avionic Systems

(“B.F. Goodrich”) for summary judgment [Record No. 90].

Fully briefed, the motion is ripe for review.

7 40a

I. INTRODUCTION

This is a wrongful death action in the nature of a products

liability suit in which plaintiff, the estate of the decedent

helicopter pilot (Second-in-Command Donald Greene), alleges

that B.F. Goodrich defectively designed or manufactured a

critical part of the downed helicopter’s navigational system -

specifically, the vertical gyroscope, which is located in the

nose of the aircraft and provides pitch, roll, and angle of bank

information to the Attitude Display Indicator, a crucial

navigational instrument. This litigation arises from the June

14, 1999 crash of a Sikorsky S-76A helicopter into a wooded

hillside near Jackson, Kentucky, just minutes after takeoff in

inclement conditions from Julian Carroll Airport. In addition

to Pilot Greene, the crash claimed the lives of Ernest L.

Jones, Pilot-in-Command, and two medical technician

passengers.

Il. SUMMARY JUDGMENT STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(c), summary

judgment is proper only “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. Pro. 56(c); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986). In reviewing a motion for summary judgment, “this

Court must determine whether ‘the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th

Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. at 251-52). Furthermore, the evidence and all facts

4la

must be viewed in the light most favorable to the nonmoving

party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

Wi.FACTS AS PERCEIVED IN THE LIGHT MOST

FAVORABLE TO PLAINTIFF

On June 14, 1999, A Sikorsky 76-A helicopter owned by

Petroleum Helicopters, Inc. (“PHI”) and piloted by the

decedent, Second-in-Command Greene, crashed into a

wooded hillside near Jackson, Kentucky. In addition to

Greene, Pilot-in-Command Jones and two passengers, both

medical technicians,’ Sheila Zellers and Brian Harden, were

also killed.

The helicopter took off from Julia Carroll Airport at night

and in a heavy fog. Because visibility was approximately

one-quarter to one-eighth of a mile, Greene who was piloting

the aircraft - was forced to rely almost exclusively on the

helicopter’s navigational instruments. After an unexceptional

initial liftoff, the following colloquy took place between

Second-in-Command Greene and Pilot-in-Command Jones

less than two-minutes later:

22:08:03 [Jones]:“Okay, you’re in a right hand turn and

descending.”

22:08:05 [Greene] :“Okay, I think my gyro just quit.”

22:08:10 [Greene] :”You have the controls?”

' The helicopter was a University of Kentucky Hospital

medivac helicopter.

42a

22: 08:11 [Jones]:“You’re in a left hand turn and

descending . . . turn, turn back and level,

level us off.”

22:08:18 [Jones]:”. . . right hand turn, right hand turn

22:08:24 [sound of impact}

{National Transportation Safety Board, Factual Report

(“NTSB Report”), Aviation Transcript of Cockpit Voice

Recorder].

Structurally, the helicopter as equipped with three (3) sets

of Attitude Display Indicators (“ADI”) and directional

gyroscopes. Attitude indicaiors indicate an aircraft's position

in relation to the earth’s horizon, and help a pilot control the

position of the aircraft relative to the earth. ADIs are vitally

important navigational instruments when flying at night and

in inclement weather. As recognized by B.F. Goodrich

operational materials:

The single most important function of an aircraft flight

information system is the display of an artificial

horizon (attitude indicator) which allows the pilot to

control the aircraft's attitude (i.e. pitch and bank). In

@ conventional attitude indicator this information is

provided mechanically by a gyroscope (a spinning

mass similar to a child’s top).

K. Devarasetty & G. Watson, ‘bfgoodrich2 ,” at

www .mth.msu.edu/-maccluer/ProjSummary/bfgoodnch2 .html

(July 26, 2002). In terms of positioning, “[t}he primary

instrument sets were at each pilot station, and a standby set

was located on the center instrument panel. Each cockpit

43a

indicator had its own gyro supplying information to ja

specific] cockpit indicator, and the information could not be

shared with another indicator.” [NTSB Report at Id]. The

vertical gyroscopes - manufactured by B.F. Goodrich - that

provided the data to the helicopter’s ADIs - not manufactured

by B.F. Goodrich - did not provide data to any other

instrumentation on the aircraft. Nor did any other gyroscope

on the helicopter provide pitch, roll, or angle of bank

information to the ADIs.

Unsurprisingly, the vertical gyroscopes were not

recoverable from the crash cite, and therefore could not be

tested. There is, then, no direct evidence of gyroscope

failure.

There was, however, certain material recovered from the

crash cite evidencing circumstantially such failure.

Specifically, a recovered faceplate of one ADI indicated that

the helicopter at impact was within two degrees of wings

level.’ Or using the technical terms, “[e]xamination of the

needle indicator for the attitude direction

indicator . . . showed that it was pointing to a position

between level flight and a 2-degree right roll.” [NTSB Report

at If]. Such a reading, however, contrasts sharply with the

crash-site kinematics’. As reported by the NTSB Report:

* The ADI has a black faceplate. Upon impact, the needle or

display chevron is driven into the faceplate, leaving a “slap” - or

“witness mark” - that demonstrates the instrument reading upon

impact.

> This term refers to the physical scars and marks - such as

those on the surrounding trees - that indicate crash position.

‘ 44a

On-site investigation revealed the helicopter had

impacted rising terrain on a tree-covered slope, at an

elevation of about 1,000 feet. The tops of the trees on

the top of the ridge were estimated to be about 1,200

feet high. The average slope of the terrain was

between 45 degrees and 55 degrees. Broken tree

limbs and branches at the accident site were fractured

ina 10-15 degree downward attitude, with the left side

of the broken branches about 10-15 degrees lower

than the right side.

{NTSB Report at le]. In other words, despite Pilot-in-

Command Jones’s last words indicating that the helicopter

was “in a left hand turn and descending,” Cockpit Voice

Recorder, and the crash kinematics evidencing that the

aircraft impacted left wing down approximately 15 degrees,

NTSB Report at el, the recovered ADI reading was that of

“wings level.” To oversimplify, the Cockpit Voice Recorder

tape and the crash kinematics did not match the reading of the

recovered ADI.

In addition to the inconsistency between the “wings level”

reading of the recovered ADI and the site kinematics, there

exists other circumstantial evidence suggesting vertical

gyroscope failure. Most notably, plaintiff points to the

“documented history of failure” of B.F. Goodrich vertical

gyroscopes in the form of certain maintenance and flight

records. That history - as summarized by the NTSB - reveals

that:

PHI eperated a fleet of 24 S-76s. In the 6 months that

preceded the accident, fleetwide, there had been a

total of 40 vertical gyro replacements on 15

helicopters, and a total of 11 attitude indicator

replacements on 7 helicopters. On [the particular

45a

helicopter in question], in the preceding 6 months,

there were two attitude indicators, and three vertical

gyros replaced.

[NTSB Report at 1d.] While B.F. Goodrich does not dispute

the hard data, the parties differ on its proper interpretation.

Specifically, plainuff suggests that such data indicates a

“history of failure including roll chatters, pitch chatters,

failure to erect, precessing, ratcheting in flight, [and] kicks

and tumbles.” For its part, B.F. Goodrich argues that such a

replacement and maintenance history is unexceptional and

unrevealing.

VI.LEGAL ANALYSIS

Plaintiff asserts three (3) claims against defendant B.F.

Goodrich. First, plaintiff contends that the B.F. Goodrich

vertical gyroscope in question was defectively designed

Alternatively, plaintiff argues that it was defectively

manufactured. Finally, plaintiff argues that B.F. Goodrich

was negligent in failing to warn of their defective product

Plaintiff's claims are discussed in turn.

A. Design Defect

Plaintiff's design defect cause of action must be

summarily dismissed. Simply put, plaintiff has proffered no

evidence of a flawed design. The only expert evidence

respecting the alleged design flaw is the testimony of Douglas

Herlihy, a veteran NTSB field investigator and qualified pilot

After conducting a Daubert hearing, the Court found Mr

Herlihy qualified as an accident investigator - and thus

qualified to testify as to the question of causation - but

46a

unqualified as an expert on vertical gyroscope design.‘

Absent Mr. Herlihy’s testimony, plaintiff has no proof to

support a design defect cause of action. Consequently, B.F.

Goodrich’s motion for summary judgment must be granted as

to this claim.

B. Manufacturing Defect

As an initial matter, it is appropriate to note that plaintiff's

manufacturing defect claim - like its design defect claim - is

grounded in both negligence and strict liability legal theories.

Though the negligence and strict liability theories in products

liability cases tend to overlap, there is a significant difference:

the former theory, but not the latter, requires proof of fault.

This said, the negligence prong of plaintiff's suit can be

dismissed without extended analysis: as plaintiff's design

defect cannot survive absent proof of flawed design, so too

cannot plainuff’s negligence claims survive absent proof of

fault. Because the record is devoid of any evidence that B.F.

Goodrich knew or should have known that the vertical

gyroscope in the particular helicopter in question had been

defectively manufactured, there is no _ such proof.

Consecuently, to the extent plaintiff has cited negligence as a

separate and distinct cause of action. %.F. Goodrich’s motion

to dismiss is likewise granted as , ¢his claim.

There remains, of course, plasntiff’s manufacturing defect

claim sounding in strict liability. As noted, such a claim

requires no proof of fault. It requires only that plainuff prove

* Mr. Herlihy is a licensed airplane pilot, but not a licensed

helicopter pilot. He has decades of experience determining the

causes of aircraft crashes, but has no specific expertise respecting

vertical gyroscopes or their design

47a

that (1) the product - here, the helicopter’s vertical gyroscope

manufactured by B.F. Goodrich - was _ defectively

manufactured, and (2) the defective vertical gyroscope caused

the helicopter crash.

While the individual elements must be separately satisfied,

the evidence in the instant case serves as circumstantial

evidence of both. As to the first point, there can be no doubt

but that plaintiff's evidence’, considered as a whole, is

sufficient (albeit circumstantial) evidence to support a finding

that the helicopter’s vertical gyroscope was defective. To

argue otherwise would be to argue that direct evidence is

required, and such an argument flies in the face of both

common-sense® and the law. See, e.g. Calhoun v. Honda

Motor Co., Ltd., 738 F.2d 126 (6th Cir. 1984). Instead, it is

to the second element of plaintiff's strict liability

manufacturing defect claim - the “causation” element - that

B.F. Goodrich directs the thrust of its argument. The Court

acknowledges that, on this point, the question is much closer.

In this regard, B.F. Goodrich argues that vertical

gyroscope failure is but one among a score of causal

> Plaintiff's evidence amounts, in significant part, to the

following: (1) Second-in-Command Greene's statement that he

thought his “gyro just quit”; (2) the discrepancy between the

reading on the recovered ADI and Pilot-in-Command Jones’s pre-

crash statements, as well as the crash kinematics; and (3) the

vertical gyroscope’s maintenance and replacement records.

® It goes without saying that, because products accidents are

often of the fiery, explosive, destructive variety, direct evidence -

such as the vertical gyroscope here - is often unrecoverable. Were

the law to require such direct evidence, the more destructive the

accident the greater the odds of the manufacturer escaping liability.

48a

possibilities. B.F. Goodrich reminds the Court that, even

assuming that the recovered ADI faceplate was that of the

ADI guiding Second-in-Command Greene (and not the ADI

guiding Pilot-in-Command Jones, or the third ADI) and that

Second-in-Command Greene was relying on his ADI, other

aircraft parts transmitting the data from the vertical gyroscope

to the ADI could be responsible for the apparently-erroneous

ADI “wings level” misread. Specifically, B.F. Goodrich

notes that, instead of the vertical gyroscope, it could have

been the a wiring harness, the wiring itself, a junction box,

the rate gyro (which supplies rate of turn, but not pitch, roll,

or bank data) or even the ADI itself that malfunctioned,

causing the ADI to read as it did. B.F. Goodrich also notes

that Second-in-Command Greene’s pre-crash statement that he

thought his “gyro just quit” cannot be taken at face value,

because the vertical gyroscope - located in the nose of the

helicopter - in fact could not be seen.

Simply stated, B.F. Goodrich contends that plaintiff

cannot prove that, even if defective, its vertical gyroscope

caused the crash. B.F. Goodrich argues that plaintiff's

evidence, consisting largely of the expert testimony of

Douglas Herlihy, establishes no more than that gyroscope

failure is but a possible - though not a probable - cause. This,

B.F. Goodrich maintains, is not enough, and consequently

plaintiff cannot prove causation.

Respecting B.F. Goodrich’s underlying premise - that the

iaw requires probabilities, and not mere possibilities - the

Court is in complete accord. It is quite true that the law is

replete with judicial admonitions rendering crystal clear the

principle that the causation question may not be submitted to

a jury absent objective proof that a purported cause is not just

conceivable, but likely. See, e.g., Arthur v. Chrysler Corp.,

446 F.2d 429, 432 (6th Cir. 1971) (“As a theory of causation,

49a

a conjecture is simply an explanation consistent with known

facts Gr conditions, but not deducible from them as a

reasonable inference. There may be 2 or more plausible

explanations as to how an event happened or what produced

it; yet, if the evidence is without selective application to any

1 of them, they remain conjectures only.”) The law requires

no less even where, as here, direct evidence is wanting.

Hersch v. Rockwell Int'l Corp., 719 F.2d 873, 879 (6th Cir.

1983) (The Court is aware of the difficulty of establishing

causation in this type of disaster where eyewitness testimony

is unavailable and much of the physical evidence is damaged

or destroyed. Nevertheless, a jury should not be permitted to

engage in speculation and conjecture. ”)

The Court disagrees, however, that plaintiff's

circumstantial evidence establishes no more than the possible.

While B.F. Goodrich makes a strong case, a reasonable jury

could find that vertical gyroscope failure, and not another

cause, was responsible for the crash. Plaintiff has not only

pointed to affirmative circumstantial evidence of vertical

gyroscope failure, but has proffered testimony rebutting B.F.

Goodrich’s claim of other possible causes.’ As wel!, while it

is true that Second-in-Command Greene’s pre-crash comment

is far from conclusive, it cannot be discounted entirely.

Furthermore, there is also the matter of the maintenance and

replacement records, the interpretation of which is not the

province of this Court.

’ For example, at the Daubert hearing conducted to determine

the admissibility of Douglas Herlihy’s expert testimony, Mr.

Herlihy opined that - given the circumstantial physical evidence -

wiring failure was not likely. Also, given that the rate gyro does

not supply pitch and bank data, failure of this instrument is less

probable.

50a

All told, and on balance, there is a genuine issue of fact

in this case, and the question of causation is indubitably

material. Because the jury must provide the answer, B.F.

Goodrich’s motion for summary judgment shall be denied on

this point. Plaintiff has proffered ample proof to support its

strict liability manufacturing defect claim.

C. Failure to Warn

Plaintiff's third and final cause of action amounts to the

assertion that B.F. Goodrich was negligent in failing to

maintain a comprehensive database documenting trends of

problems with their vertical gyroscopes. Plaintiff's argument

in this respect hinges on the testimony of Douglas Herlihy,

who posits a tiieoretical database as a form of responsible

corporate oversight. Significantly, Federal Aviation

Administration safety guidelines neither propose nor mandate

such a system.

The Court, however, joins with the majority of other

Courts to have considered the question of state-law-imposed

aviation safety duties and holds that federal law is preemptive

in this respect. Because federal law preempts any purported

state-law-imposed duties, and because plaintiff has not alleged

any violations of federal law, plaintiff's claim cannot stand.

Particularly instructive on this issue is a recent case

decided by the United States Court of Appeals for the Thard

Circuit, Abdullah v. American Airlines, Inc., 181 F.3d 363

(3rd Cir. 1999). The court in Abdullah, also addressing a

state-law failure to warn claim, found federal regulation so

thorough and comprehensive as to preempt impliedly any

additional law. Observed the Third Circuit:

Sla

Our finding of field preemption . . . is based on

our conclusion that the FAA and relevant federal

regulations establish compiete and thorough safety

standards for interstate and international air

transportation that are not subject to supplementation

by, or variation among, jurisdictions. ... [Flederal

law establishes the applicable standards of care in the

field of air safety generally, thus preempting the entire

fieid from state and territorial regulation.

Id. at 367.

Because federal law is preemptive, plaintiff cannot

establish a state-law duty to warn. Consequently, B.F.

Goodrich’s motion for summary judgment must be granted on

this claim.

Vv. CONCLUSION

Because plaintiff has proffered no evidence supporting its

claim that B.F. Goodrich knew or should have known of a

defect in the particular vertical gyroscope installed in the

helicopter in question plaintiff's negligence claim must fail.

Because plaintiff has proffered no (admissible) evidence of

any design flaw, this claim too must fail. Because plaintiff

has proffered sufficient circumstantial evidence to prove that

the helicopter in question contained a_ defectively

manufactured vertical gyroscope, and that the defective

vertical gyroscope caused the crash, plaintiff's strict liability

manufacturing defect claim is viable. Finally, because federal

law preempts state-law aviation safety standards, plaintiff

cannot state a claim for failure to warn.

S2a

Accordingly,

IT IS ORDERED that defendant/third-party plaintiff B.F.

Goodrich’s motion for summary judgment [Record No. 90]

be, and the same hereby is, GRANTED IN PART AND

DENIED IN PART.

This the 26" day of August, 2002.

/s/

JOSEPH M. HOOD, JUDGE

Date of Entry and Service:

/

/

FILED

|

No. 05-711 | oas- an :

|_OFFICE OF THE CLERK |

[ SUPREME COURT U.S.

In The

Supreme Court of the Gnited States

4

JUDY GREENE, EXECUTRIX OF THE

ESTATE OF DONALD GREENE, DECEASED,

Petitioner,

V.

B.F. GOODRICH AVIONICS SYSTEMS, INC., d/b/a

GOODRICH AEROSPACE, AVIONICS AND

LIGHTING DIVISION, n/k/a GOODRICH

AVIONICS SYSTEMS, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

«

BRIEF FOR THE RESPONDENT IN OPPOSITION

¢

JAMES DABNEY MILLER

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Avenue, NW

Washington, D.C. 20006

Telephone: (202) 737-0500

Facsimile: (202) 626-3737

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Was the Sixth Circuit correct to hold that Petitioner's

failure-to-warn claim under state law was preempted by

the Federal Aviation Act?

2. Was the Sixth Circuit correct to hold that the evidence

at trial warranted judgment as a matter of law pursuant

to Fed. R. Civ. P. 50 in favor of Respondents?

ho

ul

PARTIES TO THE PROCEEDINGS

Judy Greene, Executrix of the Estate of Donald

Greene, Deceased (“Greene”), is the Petitioner

B.F. Goodrich Avionics, Systems, Inc. (“Goodrich”), is

the Respondent.

Wausau Insurance Company, was an intervening

Plaintiff-Appellee before the Sixth Circuit below, and

is not a party to the Petition for Certiorari.

ili

DISCLOSURE OF CORPORATE

AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to Supreme Court Rule 29.6, B.F. Goodrich

Avionics, Inc., n/k/a L-3 Communications Avionics Sys-

tems, Inc. makes the following disclosures:

1. B.F. Goodrich Avionics Systems, Inc., is a subsidi-

ary of the publicly owned corporation L-3 Communications

Holdings, Inc.

2. No publicly owned corporation, not a party to the

appeal, has a financial interest in the outcome of this case.

iv

TABLE OF CONTENTS

Page

SP TEE MEIER TT is So cecevvitarisdosscichiodissestisistipivinsasais 1

NE iis cadsesivicbitdiasaiaideaiisusnealapiekaniedooas 1

DTA TMA E OOF BERG CADE vi reivcciccssecsssersecsavsenensucs 1

PANEER iscccn bared iat saiadonrdidaientaleretestsaplianxevipeactiisa 4

5

There Is No Significant Split Among The

Circuits Over The Extent To Which Federal

Law Preempts State Aviation Safety Stan-

GGT sie icicideissineckientdvaseeetisutvdasianisarsidiedenieseainy 4

A. Petitioner Rests Her Allegation Of A

Deep Circuit Split On A Mischaracteri-

zation Of The Third Circuit’s Holding In

PEAR white bdciahiddisnctinieadeeue 5

B. No Disagreement Exists Among The Cir-

cuits On The Viability Of State-Law

Remedies For Violations Of Federal

Aviation Safety Standards; Moreover,

The Sixth Circuit’s Opinion Below Is Not

A Suitable Vehicle With Which To Ad-

OE Ae SINE iiicisiis live dinisteviheniows 6

C. Petitioner Overstates The Extent Of

Disagreement Among The Circuits On

The Question Of Whether Federal Law

Preempts State Aviation Safety Stan-

1. Because The First Circuit Clearly Lim-

ited Its Preemption Holding In French

To The Specific Field Of Pilot Qualifica-

tion, French Is Much Narrower In Scope

Than Abdullah And The Sixth Circuit’s

Opinion Below And Is Therefore Inappo-

site To The Alleged Circuit Split .............. 8

TABLE OF CONTENTS -— Continued

Page

2. Fifth Circuit Law Does Not Conflict

With The Third Circuit’s Decision In

Abdullah On The Question Of

Whether Federal Law Preempts State

Aviation Safety Standards.................. 9

3. Of The Cases Cited By Petitioner,

Only The Tenth Circuit’s Decision In

Cleveland Conflicts With The Law Of

The Third And Sixth Circuits; This

Shallow Split Does Not Warrant The

PRE COE CaP CEO GR os ccctccicecccssesssevesess 11

II. Even If This Court Wishes To Consider The

Preemption Question, The Opinion Below

Does Not Present A Suitable Vehicle Because

The Result Is Supported By Independent

I A oe eundheineael 12

III. The Sixth Circuit’s Decision Below Is Cor-

rect, And A Contrary Result Would Have

Harmful Consequences For Regulation Of

ee FOUR IO CII vic esis sc cnisccesscnnscenvesceensene 14

IV. Petitioner’s Second Question Presented Is A

Highly Factbound Request For Error Correc-

tion And Does Not Merit This Court’s Re-

RNY didcuenasiateiideadukutias tuiieceudpacakaamamihadabesetbies 15

a 306 sand Sjadenstsadkeenanaiorednhdeciestebenteudinawii 16

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d

SANG SEND ssisiensitndabisiinctonessensebatieinkanninsnainantanieaaanie passim

Cleveland v. Piper Aircraft Corp., 985 F.2d 1438

Cry AEE catsststeichicsiviiccaitiaidlnnadabaehinaniasaiinat 5, 6, 7,11

Critical Mass Energy Project v. Nuclear Reg.

Comm’n, 975 F.2d 871 (D.C. Cir. 1992)... eee 12

Dolan v. Roth, 325 F. Supp. 2d 122 (S.D.N.Y. 2004)........ 13

French v. Pan Am. Express, Inc., 869 F.2d 1 (1st

hs EE sccceleenscisckienlatiiehusinieacidinesddabineiincaedaseanmbameass 8, 9,15

Greene v. B.F. Goodrich, Inc., 409 F.3d 784 (6th Cir.

ITED snctistuniasissencbttinnbesevqecitivedilemadnticienie

Groves v. Ring Screw Works, 498 U.S. 168 (1990)............ 11

Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.

BE vatitabicictkiathibspcniabdabictn dan aid rele aed haa 6, 9, 10

Hughes v. Vanderbilt Univ., 215 F.3d 543 (6th Cir.

III siisecastnceiichi sci added sentins ti ecealiadC as loehdeesdaaka seer 13

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984).......... 5

United States v. Young, 470 U.S. 1 (1985)... 15

Viriglio v. Motorola, Inc., 307 F.Supp. 2d 504

a MN cciiediceicinaisaciinbciditesscs ohdiasanmata can cece rst 13

Witty v. Delta Airlines, Inc., 366 F.3d 380 (5th Cir.

SUUTtitiscidinsicdbecnilincadtidioicsts dike sasictie liana nica cacasitiadinivendstikaniesiins 10

STATE CASES

State Farm Automobile Mutual Insurance Co. v.

EEG, BSS Fee Be > BI voce evesinceiecsccessccencsennesses 13

TABLE

vii

OF AUTHORITIES -— Continued

FEDERAL STATUTES

28 U.S.C. § 1254

1

OPINIONS BELOW

The order of the court of appeals denying Petitioner’s

motion for rehearing en banc (Pet. App. A) is unreported

but can be found in the Lexis online database at 2005 U.S.

App. LEXIS 19255. The opinion of the court of appeals

below (Pet. App. B) is reported at 409 F.3d 784. The

opinion of the district court denying Respondent’s Motion

for a Judgment as a Matter of Law as to Petitioner’s

manufacturing-defect claim (Pet. App. C) is unreported.

The opinion of the district court granting Respondent’s

Motion for Summary Judgment as to Petitioner’s negli-

gence, design-defect and failure-to-warn claims, and

denying the motion as to Petitioner’s manufacturing-defect

claims, (Pet. App. D) is unreported.

e

wv

JURISDICTION

The Sixth Circuit Court of Appeals entered final

judgment in this case on May 20, 2005. Greene v. B.F

Goodrich, Inc., 409 F.3d 784 (6th Cir. 2005). The circuit

court denied Petitioner’s motion for rehearing en banc on

August 30, 2005. Pet. App. A. This Court’s jurisdiction is

invoked pursuant to 28 U.S.C. § 1254.

>

bel

STATEMENT OF THE CASE

This case arises from a helicopter crash near Jackson,

Kentucky on June 14, 1999. Petitioner Judy Greene,

Executrix of the Estate of Donald Greene, Deceased,

brought this lawsuit. Because the Petition for Certiorari

makes numerous inaccurate factual representations,

Respondent restates the relevant facts below.

Helicopter pilots Greene and Ernest Jones (“Jones”)

took off from Julian Carroll Airport at approximately 10:00

p.m. in a helicopter owned by Petroleum Helicopters, Inc.

(“PHI”). Greene was piloting the helicopter. Pet. App. D at

41a. Because it was dark, Greene and Jones relied on their

instruments to fly. Jd. This is standard procedure, and

both pilots were well-trained in instrument use. Pet. at 3-

4. After takeoff, Greene experienced trouble with his

instruments and asked Jones to pilot the aircraft. Pet.

App. D at 41la-42a. Shortly thereafter, the helicopter

crashed into the side of a mountain.

The helicopter instruments that are relevant to this

case include Attitude Display Indicators (“ADIs”) and

vertical gyroscopes (“gyroscopes”). While there were other

gyroscopes on board that fed data to the ADIs, Respondent

manufactured only the vertical gyroscopes in Greene’s

helicopter. Jd. at 43a. The National Transportation Safety

Board (“NTSB”) investigated the crash and issued a report

upon which both parties rely. Id. The gyroscopes them-

selves were destroyed in the crash, and the NTSB did not

test any gyroscopes. Jd. Respondent did not manufacture

the ADIs in Greene’s helicopter. Greene v. B.F. Goodrich

Avionics, Inc., 409 F.3d 784, 787 (6th Cir. 2005).

ADIs inform pilots of their aircrafts’ position in

relation to the earth. Pet. App. D at 42a. Each ADI re-

ceives information from its own separate gyroscope, to

which it is connected by a series of wires, a wiring har-

ness, and a junction box. Jd. at 42a-43a, 48a. Greene’s

helicopter was equipped with two ADIs. Greene, 409

F.3d at 787. Each of the two pilot’s instrument panels

contained one ADI. Pet. App. D at 42a-43a. A Standby

Attitude Indicator (“SAI”) was positioned between the

pilots and was readily visible to both. 409 F.3d at 787.

3

Each instrument-panel ADI received information from its

own gyroscope implanted in the helicopter’s nose. Jd. The

SAI received information from a gyroscope within the SAI

itself. Id. at 788. None of the gyroscopes were visible to the

pilots at any time. See id. at 787. Thus, contrary to Peti-

tioner’s contention that Greene knew his gyroscope mal-

functioned (Pet. at 4), Greene could not see any gyroscope,

409 F.3d at 787-88. Only the ADIs and the face of the SAI

were visible to the pilots. Jd.

On June 12, 2002, Petitioner filed a diversity action in

the District Court for the Eastern District of Kentucky in

which she alleged claims for negligence, defective design,

defective manufacturing, failure to warn, and negligent

marketing of gyroscopes. With respect to her failure-to-

warn claim, Petitioner argued that Respondent’s failure to

maintain a “comprehensive database documenting trends

of problems with their vertical gyroscopes” constituted a

negligent failure to warn of the gyroscope’s defects. Pet.

App. D at 50a. On July 18, 2002, Respondent filed a

Motion for Summary Judgment. On August 26, 2002, the

district court entered partial summary judgment in favor

of Respondent and dismissed Petitioner’s claims for

negligence, design defect and failure to warn. Pet. App. D

at 46a-5la. Petitioner’s remaining claim of defective

manufacturing went to trial on the theory of strict liability.

The jury entered a verdict for Pevitioner in the amount of

$1,182,674.13. Pet. App. C at 32a. On September 27, 2002,

Respondent filed a Renewed Motion for Judgment as a

Matter of Law, which the district court denied on Novem-

ber 19, 2002. Pet. App. C at 3la. Respondent timely filed

Notice of Appeal on December 5, 2002.

On appeal, the Sixth Circuit reversed and remanded

the case with instructions to enter judgment in favor of

4

Respondent on Petitioner’s manufacturing-defect claim

and affirmed summary judgment for Respondent on

Petitioner’s failure-to-warn claim. Greene, 409 F.3d at 795.

The Sixth Circuit found that, while Petitioner’s evidence

demonstrated the number of gyroscopes removed from the

PHI helicopter fleet, Petitioner failed to show whether this

removal rate was significant. Jd. at 791-92. Petitioner’s

evidence at trial established several possible causes for the

helicopter crash: weather conditions, instrument failure,

and pilot error. Id. at 792-93. Accordingly, the court found

that Petitioner’s evidence demonstrated only a possibility

and not a probability that gyroscope failure was a “sub-

stantial factor” in causing the helicopter crash. Jd. at 791.

On Petitioner’s failure-to-warn claim, the Sixth Circuit

found that the district court, pursuant to Abdullah v.

American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999),

correctly held that the claim was preempted by the Fed-

eral Aviation Act. 409 F.3d at 794-95.

,

.

ARGUMENT

I. There Is No Significant Split Among The

Circuits Over The Extent To Which Federal

Law Preempts State Aviation Safety Stan-

dards

Contrary to Petitioner’s coni..ii'..., no significant

circuit split currently exists over ‘1e scope of Federal

Aviation Act (“FAA”) preemption. Rather, the disagree-

ment among the circuits is shallow — two-to-one — and not

well developed. Allowing the issue to percolate further

among the lower courts will give this Court the benefit of

more considered approaches to the question. Moreover, the

Sixth Circuit’s opinion below, because that court did not