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West v. Bell Helicopter Textron, Inc.

United States District Court, D. New Hampshire

September 30, 2014

Kurt West
v.
Bell Helicopter Textron, Inc. et al. Opinion No. 2014 DNH 208.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

This products liability action presents a staggering disconnect between the severity of the plaintiff's claimed injuries-for which he claimed only $7, 000 in recoverable medical expenses and no other monetary damages-and the resources expended in his pursuit of compensation for those injuries.[1] Among other things, the plaintiff, Kurt West, brought claims against four different defendants (one of whom was dismissed from the case in the early stages for lack of personal jurisdiction, see Fed.R.Civ.P. 12(b)(2)); subjected the remaining defendants to requests for the production of documents, see Fed.R.Civ.P. 34, which, they say, cost more than $800, 000 to answer in total; took numerous depositions; filed a dozen pre-trial motions in limine, including challenges to the defendants' designated expert witnesses; and, ultimately, proceeded to trial before a jury, which took three weeks.

At the end of the trial, the jury found in favor of the defendants on West's claims, which arose out of an accident that occurred in a helicopter he was piloting on behalf of his employer in December 2008. West's claims alleged that the helicopter had crashed due to its defective design by the defendants: Bell Helicopter Textron, Inc., which manufactured the helicopter, a Bell 407 model; Rolls Royce Corporation, which manufactured the engine; and Goodrich Pump & Engine Control Systems, Inc. ("Goodrich" or "GPECS"), the corporate successor to the entity that manufactured the helicopter's electronic control unit ("ECU"), part of the engine's full authority digital engine control ("FADEC"). Because West is a citizen of a different state than any of these corporations, this court has jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity).

At trial, West argued that the ECU falsely registered a short circuit in one of its electronic components as an "overspeed" event (i.e., the rotor was spinning too fast), triggering the closure of a fuel shutoff valve, or solenoid-a phenomenon known as "false overspeed solenoid activation, " or "FOSSA." This in turn, caused the engine to "flame out" (i.e., lose power), forcing West, a professional pilot, to land the helicopter through a technique known as "autorotation"-which he did, on a residential street in Bow, New Hampshire, resulting in physical and psychological injuries to himself.

The defendants, for their part, agreed that the engine in West's helicopter had flamed out and necessitated what they termed his "hard landing, " but argued that the flame-out was not the result of any defect in the ECU. Instead, they maintained, the engine flamed out because it ingested ice or snow that West and a co-worker had failed to properly clean from the helicopter before West's flight.

The defendants also disputed the nature and extent of West's claimed injuries. West was diagnosed with post-traumatic stress disorder, and testified that this has manifested itself in (among other symptoms) reliving the accident through a vivid and disturbing dream he had experienced nearly every night since. But the defendants emphasized that West had resumed working as a commercial helicopter pilot shortly after the accident-which required him to, among other things, practice the same autorotation procedure he had used in the accident at a training course just three weeks later-and had not sought medical attention for his alleged nightmares and other psychological problems until September 2010, some 20 months after he said the daily nightmares had begun, and nearly 3 months after he had filed this lawsuit. West also continued flying, as a professional pilot, the very same model of helicopter that was involved in his accident and that, accordingly, was the subject of his daily nightmare, and photographs were introduced at trial (having been posted on his Facebook account) of West apparently enjoying himself while flying. Ultimately, West claimed just $7, 000 or so in recoverable medical expenses, and nothing in lost wages or other special damages, due to the accident.

Over the fifteen days of trial, the jury heard testimony from several designated expert witnesses, as well as other evidence, supporting the parties' conflicting theories as to the cause of West's accident. After nearly two full days of deliberations, the jury returned with a verdict for the defendants, as noted at the outset, finding that West had failed to prove his claims of negligence and strict liability by a preponderance of the evidence. This court then entered judgment for the defendants on the jury's verdict, together with the entry of judgment for the defendants as a matter of law, see Fed.R.Civ.P. 50(a)(1), on West's claims for breach of the implied warranty of fitness for a particular purpose and West's negligence claim against Bell, as well as any theory that the defendants had failed to warn him of the risks of a FOSSA event.

Nevertheless, West's dogged pursuit of compensation for his injuries continues. He now seeks a new trial, see Fed.R.Civ.P. 59, as well as relief from the judgment against him, see Fed.R.Civ.P. 60(b). West does not claim that the verdict was against the weight of the evidence. But these motions raise a number of other issues, and their breadth (together with the length of the trial and the complexity of the subject-matter) has necessitated the overall lengthy discussion here. Yet there is less to West's motions than meets the eye. Specifically:

• West claims that this court erred by redacting, from memoranda from Goodrich to Rolls Royce that were admitted into evidence, statistics as to the anticipated rate at which FOSSA would occur, even though it deviated from the rate specified by Rolls Royce. But West provided no evidence that this deviation had anything to do with his accident, so the statistics were irrelevant and, in any event, were testified to by one of West's expert witnesses, see infra Part II.A.1;
• West claims that Rolls Royce improperly cross-examined his employer about the provisions in his company's operations manual for cleaning ice and snow from a helicopter. But the manual was not admitted into evidence and the witnesses answered only one question about it-to which West did not object, see infra Part II.A.2;
• West claims that this court improperly excluded opinion testimony from two of his witnesses that the absence of fuel spatter on West's helicopter after the accident meant that it could not have resulted from ice or snow. But West did not adequately proffer that testimony at or before trial and it would have been properly excluded as undisclosed expert testimony in any event, see infra Part II.A.3;
• West claims that counsel for Rolls Royce made three statements in her closing argument that were unsupported by the evidence. But the court instructed the jury to disregard any such comments, and West cannot show any prejudice from the fact that these instructions were given as part of the final charge rather than just after Rolls Royce's closing argument, see infra Part II.B;
• West claims that Goodrich failed to disclose information about a crash of another Bell 407 in August 2013, just before trial started. But West has not shown that Goodrich culpably withheld what little information it had about that accident before the end of trial, or that having that information earlier would have helped his case, since he has provided no evidence that the accident was a FOSSA event or otherwise relevant, see infra Part II.C.1;
• West claims that Bell and Rolls Royce failed to disclose, prior to the end of trial, what they announced in product alerts they issued in late January 2014, months after the end of trial, i.e., that the model of Bell 407 involved in his accident was susceptible to FOSSA from the failure of components in the ECU circuit boards. But West knew, from documents he received in discovery, that the defendants were indeed aware of this problem, and, in fact, that the defendants were negligent in correcting the problem was his theory of liability at trial, see infra Part II.C.2;
• West claims that this court improperly declined to instruct the jury on his failure-to-warn theory. But, because West was warned and admittedly knew of the danger he encountered, i.e., that the engine could flameout in mid-air necessitating an autorotational landing, he could not show any causal connection between the alleged failure to warn and his accident, see infra Part II.D.1;
• West claims that this court improperly declined to instruct the jury on the res ipsa loquitur doctrine. But he could not show, as that doctrine requires, that the instrumentality causing his injury was in the defendants' exclusive control, since the helicopter was in fact in the control of him and others at his employer prior to the accident, see infra Part II.D.2;
• West claims that this court improperly received ex parte memoranda from the parties at the start of trial in support of their anticipated motions for judgment as a matter of law, see Fed.R.Civ.P. 50(a). But West agreed, and availed himself of, this procedure, which was discussed and ordered prior to trial and, in any event, West was given, and availed himself of, the opportunity to respond to all of the defendants' Rule 50 arguments before the case went to the jury, see infra Part II.E; and
• insofar as West claims that this court hindered his attempt to prove his case by its "declination" to rule on the parties' discovery or scheduling disputes, that claim is misplaced. It was West's counsel who decided to resolve those disputes by negotiated agreement and, in any event, West cannot show that, had he instead stuck to his guns and awaited relief from the court, that he would have obtained it or that the resulting information would have been helpful to his case, see infra Part II.F.

As set forth fully below, then, West's motions for a new trial and for relief from the judgment against him are denied.

I. Applicable legal standards

A. Rule 59

Under Rule 59, this court "may set aside a jury's verdict and order a new trial only if the verdict is against the demonstrable weight of the credible evidence or results in a blatant miscarriage of justice." Sanchez v. P.R. Oil Co. , 37 F.3d 712, 717 (1st Cir. 1994). Again, West does not argue that the verdict was against the weight of the evidence, so, insofar as he bases his motions on claimed errors by the court, he must show not only that they were in fact errors, but that they affected his substantial rights.[2] See Fed.R.Civ.P. 61. "The burden of proving substantial prejudice lies with the party asserting error." Cabral v. Dep't of Justice , 587 F.3d 13, 22 (1st Cir. 2009).

West faces an even higher hurdle as to alleged errors he identifies now but did not raise at trial. "A principle that strikes very deep is that a new trial will not be granted on grounds not called to the court's attention during trial unless the error was so fundamental that a gross injustice would result." 11 Charles Alan Wright et al., Federal Practice & Procedure § 2805, at 73 (3d ed. 2012).

B. Rule 60

West's motions also seek relief for the defendants' alleged withholding of information under both Rule 60(b)(2) and Rule 60(b)(3). Rule 60(b)(2) authorizes relief from judgment on the basis of "newly discovered evidence, " requiring "proof of the following elements: (1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; (3) the evidence is not merely cumulative or impeaching; and (4) the evidence is of such a nature that it would probably change the result if a new trial is granted." Mitchell v. United States , 141 F.3d 8, 18 (1st Cir. 1998) (quotation marks omitted; formatting altered). "The moving party bears the burden of meeting each of the four Mitchell criteria." U.S. Steel v. M. DeMatteo Constr. Co. , 315 F.3d 43, 52 (1st Cir. 2002).

Rule 60(b)(3), meanwhile, authorizes a court to grant a party relief from an adverse judgment on the basis of "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party." As West points out, the "[f]ailure to disclose or produce materials requested in discovery can constitute misconduct'" under this rule, even without "proof of nefarious intent or purpose." Anderson v. Cryovac, Inc. , 862 F.2d 910, 923 (1st Cir. 1988).

Nevertheless, to obtain relief under Rule 60(b)(3), the moving party must both (A) "prove the adverse party's culpable misconduct by clear and convincing evidence" and (B) "show by a preponderance of the evidence that the culpable misconduct substantially interfered with her ability fully and fairly to prepare for, and to proceed to judgment." Nansamba v. N. Shore Med. Ctr., Inc. , 727 F.3d 33, 40 (1st Cir. 2013) (quotation marks and bracketing omitted).

II. Analysis[3]

A. Evidentiary rulings

West seeks a new trial based on three of the court's evidentiary rulings during the fifteen days of trial. As fully explained below, however, those rulings were either correct or not the subject of any contemporaneous objection by West (who has failed to show that those previously unchallenged rulings worked a "gross injustice"). Moreover, the evidence admitted or excluded as a result of the rulings West challenges here "cannot reasonably be understood as the pivotal evidence that tipped the verdict in favor of" the defendants, making these evidentiary decisions no basis for a new trial in any event. Gay v. Stonebridge Life Ins. Co. , 660 F.3d 58, 64 (1st Cir. 2011).

1. Exclusion of reliability data

West argues that this court erred in excluding "evidence about [Goodrich's] ECU reliability data" as set forth in "documents" that West tried to introduce while cross-examining their author, Bruce Millar, a Goodrich employee who testified at trial. Mem. Supp. Mot. New Trial at ___. While West's motion does not identify these "documents, " by exhibit number or otherwise, it refers to a portion of the trial transcript where the court sustained the defendants' objection to West's proffered exhibits 372, 398, and 552. Tr. Trans. Sept. 23 a.m. at 61-62. So the court has assumed that these are the "documents" on which West is basing his argument. These documents are memoranda from Millar (and others at Goodrich) to Rolls Royce, dated January 2007, December 2007, and October 2008, about the model of ECU that was installed in West's helicopter at the time of his accident. Pl's Exs. 372, 398, 552.

West argues that the "reliability statistics" in these memoranda "demonstrated that [Goodrich] and Rolls Royce deviated from Rolls Royce's own reliability standards." Mem. Supp. Mot. New Trial at 5-6. But West (who, as just noted, does not even identify the documents he claims should have been admitted) does not specify the "statistics" he has in mind, and the court's review of exhibits 372, 398, and 552 reveals that just one, exhibit 552, contains "Rolls Royce's own reliability standards." That memorandum, from December 2007, says in relevant part:

if the current design configuration is changed to replace the 22 uF [tantalum] capacitor, using the actual failure rates of the [military] grade 0.1 uF. SMT capacitors, the failure mode effect analysis (FMEA) calculated probability of a false [overspeed] solenoid activation estimate is 1.55e-7 and does not quite reach the recommended safety specification of 1.0e-7.

Pl's Ex. 552, at 2 (capitalization omitted).[4] This and other passages from the memorandum were redacted from the version that was admitted at trial, as exhibit 552b.

West argues that these "statistics" should have been admitted on the theory that a manufacturer's own standards "may be admissible as evidence of negligence or defectiveness of the product, if it is shown that the manufacturer failed to meet such standards.'" Mem. Supp. Mot. New Trial at 5 (quoting 3 David G. Owen et al., Madden & Owen on Products Liability § 27:6, at 827 (3d ed. 2008)). The problem with this argument, as the court ruled at trial, Tr. Trans. Sept. 23 a.m. at 61-62, was that there was no evidence linking the failure of the ECU to meet Rolls Royce's reliability standard, as articulated in the December 2007 memorandum (i.e., no more than one occurrence of FOSSA per 10 million flight hours), to West's accident.

Before revisiting this ruling, it is important to note that West does not argue that the "reliability statistics" had any probative value on the issue of whether FOSSA caused his accident.[5] To the contrary, West's new trial motion asserts that the "reliability statistics" are relevant to what he sees as "a separate inquiry" from the cause of his accident, i.e., whether "the design was unreasonable or defective." Mem. Supp. Mot. New Trial at 6. But the questions of defect and causation are not "separate inquiries" because, of course, to recover in a products liability action, the plaintiff must prove that a defect in the product caused, or substantially contributed to cause, his injury. See, e.g., Vatour v. Body Masters Sports Indus., Inc. , 147 N.H. 150, 154 (2001). It follows that, as this court noted in its order on the parties' pre-trial motions in limine, "[a]ny alleged defect which had nothing to do with plaintiff's injury is irrelevant.'" West v. Bell Helicopter Textron, Inc. , 967 F.Supp.2d 479, 502 (D.N.H. 2013) (quoting and adding bracketing to Weir v. Crown Equip. Corp. , 217 F.3d 453, 461 (7th Cir. 2000)).[6]

West's theory at trial was not that the ECU was defective because it allowed FOSSA events to occur more often than Rolls Royce had specified or, for that matter, with any particular frequency. Rather, West's liability experts testified that the ECU was defectively designed because, as reflected in exhibit 552 (as well as other documents admitted at trial), Goodrich had tried to reduce the incidence of FOSSA by upgrading the capacitors in the ECU, rather than addressing the "root cause" of the phenomenon, i.e., that the ECU recognized an electrical failure in any of its components as an overspeed event triggering the closure of the overspeed fuel valve. See Tr. Trans. Sept. 10, a.m., at 5-7; Tr. Trans. Sept. 11, a.m., at 124-27, 136-38.

To properly address the "root cause, " one of those experts testified, the ECU should have been programmed to recognize FOSSA as a "false event" that turned control of the fuel system over to the pilot, rather than automatically cutting the fuel flow-a design which, had it been in place in West's helicopter, would have enabled him to avoid his accident. Tr. Trans. Sept. 11, a.m., at 135-38. Accordingly, the "defect" evidenced by the "reliability statistics" that West sought to introduce at trial was not the "defect" that he claimed to have caused his accident. So this court properly excluded the "reliability statistics" as irrelevant. See Weir , 217 F.3d at 460-61.

West also argues that the "reliability statistics" were "relevant to the credibility of [the] defendants' expert witnesses, " specifically, Millar, who "claimed not to have relied on his own documents in arriving at the conclusion that FOSSA was not the cause of [West's] accident."[7] Mem. Supp. Mot. New Trial at 6. Thus, West maintains, "[h]ad the jury received the unredacted documents, which demonstrated that the ECU was not meeting Rolls-Royce's standards with regard to the prevalence of FOSSA, the jury may well have rejected Millar's testimony." Id . The court does not follow West's logic.

Again, as West has acknowledged in his new trial motion, the ECU's failure to meet Rolls Royce's specifications for the frequency of FOSSA has no relevance to the cause of the accident. The court is at a loss, then, to see how that fact has any relevance to the reliability of Millar's opinion as to the cause of the accident. Indeed, West's own designated expert witnesses on that subject did not, as support for their contrary opinions that a defect in the ECU was the cause of the accident, rely on the fact that the ECU fell short of the specifications.[8] Because that fact simply had no bearing on the reliability of Millar's opinion as to the cause of West's accident, this court acted properly by ordering the redaction of exhibit 552 insofar as it referred to the deficient "reliability statistics."[9] See MMG Ins. Co. v. Samsung Elecs. Am., Inc., 293 F.R.D. 58, ...


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