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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0546%3A1. Public record. Not legal advice.