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West v. Bell Helicopter Textron, Inc.

United States District Court, D. New Hampshire

April 10, 2017

Kurt West
Bell Helicopter Textron, Inc., Goodrich Pump and Engine Control Systems, Inc., and Rolls-Royce Corp. Opinion No. 2017 DNH 017

          Joan A. Lukey, Esq. Justin J. Wolosz, Esq. John P. O'Flanagan, Esq. L. Robert Bourgeois, Esq. Brian M. Quirk, Esq. James M. Campbell, Esq. Kathleen Marie Guilfoyle, Esq. Jason L. Vincent, Esq. Phillip S. Bixby, Esq. Marie J. Mueller, Esq. Martha C. Gaythwaite, Esq. R. Matthew Cairns, Esq.


          Joseph N. Laplante United States District Judge

         Before the court is plaintiff Kurt West's motion for a new trial, after a remand of the initial denial of that motion, followed by newly-disclosed instances of improperly withheld discovery. The question is whether these violations of the defendants' obligations to supplement their discovery responses, see Fed.R.Civ.P. 26(e)(1), discovered both before and after the appeal, entitle West to a new trial. The court finds that a new trial is warranted under the applicable precedent of the Court of Appeals, and thus orders a new trial.

         In December 2008, a helicopter piloted by West suffered a hard landing in Bow, New Hampshire.[1] He brought this action against the helicopter's manufacturer, Bell Helicopter Textron, Inc., the engine's manufacturer, Rolls-Royce Corporation, and Goodrich Pump and Engine Control Systems, Inc. (“Goodrich” or “GPECS”), the corporate successor to the entity that manufactured two components central to this litigation -- the engine's electronic control unit (ECU) and full authority digital engine control (FADEC).

         West claimed that the ECU of his Bell 407 falsely registered 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 lose power or “flame out, ” forcing West to land the helicopter unexpectedly on a residential street through a technique known as “autorotation, ” resulting in his injuries. The defendants agreed that the engine flamed out, but contended that it did so because it ingested ice or snow that West and a co-worker had failed to properly clean from the helicopter before West's flight. After extensive discovery and a three-week trial, the jury returned a verdict for the defendants. The court entered judgment accordingly.

         After the trial, West sought relief from that judgment and a new trial, invoking, inter alia, Federal Rule of Civil Procedure 60(b)(3). That rule provides in pertinent part: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . fraud . . . misrepresentation, or misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(3). As the alleged misconduct on which he based his request for relief from the judgment, West complained that the defendants withheld documents and information concerning and leading up to “product alerts issued by Bell and Rolls-Royce about [the Bell 407] helicopter model on January 23, 2014, ” some four months after trial concluded. West I, 2014 DNH 208, 34. Though issued after trial, West contended that the bulletins (1) disclosed a previously unreported FOSSA mechanism, leading to a higher probability of FOSSA events; and (2) revealed knowledge about the Bell 407's faults, which defendants possessed before trial but did not disclose. See Id. at 45-49. Assuming (without, at that juncture, deciding) that West could prove the defendants' culpability in withholding that information, the court concluded that he could not “prove[] by a preponderance of the evidence that this misconduct ‘substantially interfered with [his] ability fully and fairly to prepare for, and proceed at, trial.'” West I, 2014 DNH 208, 50-51 (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988)).

         West appealed that decision.[2] As discussed more fully infra, the First Circuit Court of Appeals decided that the court erred in its Rule 60(b)(3) analysis “by placing the burden on West to prove substantial interference in spite of [this court's] assumption that the defendants culpably withheld materials that should have been produced in discovery.” West II, 803 F.3d at 72-73. Given this court's assumption of misconduct, the Court of Appeals concluded, that burden ought to have rested with the defendants. Id. at 69.

         Upon remand, the court granted West's motion for additional, targeted discovery into two issues, specifically: “1) whether additional documents responsive to West's first production request related to the January 2014 FOSSA bulletin were in defendants' possession yet withheld from production; and 2) West's eventual obligation to respond to defendant's likely effort to rebut a presumption of substantial interference with West's case.”[3] Based on that discovery, West again moved for a new trial.[4]

         Because the defendants have not carried their burden of demonstrating that certain of these previously-withheld materials did not substantially interfere with West's case, the court grants West's motion. Specifically, the defendants have not demonstrated that West was not prejudiced by the withholding, by the defendants, of information they possessed before trial.

         I. Applicable legal standard

         As discussed supra, Rule 60(b)(3) allows a party to obtain relief from a judgment on the basis of misconduct by an opposing party. The First Circuit Court of Appeals “take[s] an expansive view of ‘misconduct', ” concluding that, “depending upon the circumstances, relief on the ground of misconduct may be justified ‘whether there was evil, innocent or careless, purpose.'” Anderson, 862 F.2d at 923 (internal citations omitted). In order to obtain such relief, “the moving party must demonstrate misconduct . . . by clear and convincing evidence, and must then show that the misconduct foreclosed full and fair preparation or presentation of its case.” Id. The error in question “must have been harmful -- it must have ‘affect[ed] the substantial rights' of the movant.” Id. at 924 (quoting Fed.R.Civ.P. 61). Furthermore, the misconduct must have “substantially . . . interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial.” West II, 803 F.3d at 67 (quoting Anderson, 862 F.2d at 924).

         The aggrieved party need

not prove that the concealed material would likely have turned the tide at trial. Substantial impairment may exist, for example, if a party shows that the concealment precluded inquiry into a plausible theory of liability, denied it access to evidence that could well have been probative on an important issue, or closed off a potentially fruitful avenue of direct or cross examination.

Anderson, 862 F.2d at 925.

         Intentional misconduct, such as “where concealment was knowing and purposeful, ” raises the presumption that “the suppressed evidence would have damaged the nondisclosing party.” Id. That presumption comes into play “where discovery material is deliberately suppressed, ” because the absence of that evidence “can be presumed to have inhibited the unearthing of further admissible evidence adverse to the withholder, that is, to have substantially interfered with the aggrieved party's trial preparation.” Id. Once such a presumption is raised by intentional misconduct, the Anderson court made clear, the burden shifts to the non-disclosing party to refute the presumption “by clear and convincing evidence demonstrating that the withheld material was in fact inconsequential.” Id. That “threshold becomes easier to climb” where “the documents have been intentionally withheld but not destroyed, ” because “the documents themselves may constitute clear and convincing proof that no prejudice inured.” Id. at 926.

         Though this court “[a]ssum[ed] that West could prove the defendants' culpability by clear and convincing evidence” for purposes of its Rule 60(b)(3) analysis, West I, 2014 DNH 208, 50, it did not assume that he could prove intentional misconduct, and so did not shift the burden to the defendants to prove that the withheld evidence was inconsequential. Id. at 50-51. Indeed, the court is still not convinced that the defendants' behavior amounts to misconduct under Rule 60(3)(b), let alone that it amounts to the intentional misconduct contemplated by the Anderson court in crafting its burden-shifting presumption.[5]

         Nevertheless, the Court of Appeals concluded that this court erred in failing to shift that burden to the non-disclosing parties in light of an assumption of any misconduct at all. See West II, 803 F.3d at 69. And, as discussed in its Order on Remand, the court views the inquiry into defendants' misconduct as closed by West II, [6] and is bound to follow the law as set forth in that opinion.

         Accordingly, presuming intentional misconduct, the court considers whether the defendants have carried their burden of rebutting the presumption that their behavior substantially interfered with West's ability fully and fairly to prepare for and proceed at trial. It concludes that they have not.

         II. Analysis

         West now contends that several categories of documents or information, previously withheld, prevented him from fully and fairly preparing for and proceeding at trial on his claims for negligence and strict liability.[7] These include: (1) an opinion by a Bell employee, Michael Vautour, made two weeks before jury selection, concerning the cause of West's helicopter crash; (2) evidence from investigations into other Bell 407 helicopters that experienced FOSSA events, resulting in the January 2014 bulletins and in proposed remedial measures, suggesting that (a) FOSSA was the result of a systematic defect, and (b) a FOSSA event could occur without being recorded by the helicopter's incident recorder. Concluding that a new trial is warranted in light of the Vautour opinion evidence, the court need not address the other categories of documentation here.[8] It will, however, at the appropriate time, entertain the appropriate motions with respect to any evidence that the parties seek to exclude from that trial and whether the evidence supports allowing the jury to consider plaintiff's failure-to-warn theory.

         To the court's (and presumably counsel's) great surprise, Bell disclosed the existence of Vautour's opinion after remand, when the court considered, and ultimately granted, West's request for additional, “targeted” discovery.[9] The court was therefore unable to consider this evidence in its initial analysis of whether undisclosed discovery warranted a new trial. The discussions surrounding Vautour's opinion, however, place that evidence squarely into the defendants' consideration of the causes -- or potential causes -- of hard landings experienced by other Bell helicopters, which resulted in the remedial measures outlined by the January 2014 bulletins.[10] Accordingly, it falls within the categories of evidence requested by the plaintiffs as discussed by the Court of Appeals as the potential basis for relief from judgment under Rule 60(b)(3), see West II, 803 F.3d at 70-72, and ultimately enhances the potential probative value of that other evidence.

         As discussed supra Part I, the defendants bear the burden of demonstrating, by clear and convincing evidence, that the Vautour opinion evidence was inconsequential, such that its absence did not prejudice West at trial. See West II, 803 F.3d at 67-68. They attempt to meet this burden in two ways. First, defendants argue, Vautour's lack of professional and technical expertise to diagnose the cause of West's hard landing rendered his opinion inadmissible for failure to qualify as an expert's opinion, see Fed.R.Evid. 702, or as unduly prejudicial, see Fed.R.Evid. 403.[11] At oral argument, Bell's counsel further argued that Vautour's statements constitute inadmissible hearsay, see Fed.R.Evid. 802, because he did not make those statements in a manner consistent with the exception for statements of an opposing party's agent, see Fed.R.Evid. 801(d)(2)(D).[12] Second, the defendants contend, even were it admissible, Vautour's lack of expertise and the fact that Rolls-Royce, which manufactured the FADEC, purportedly disabused him of his opinion not a month later, would render evidence of his opinion inconsequential to the outcome of the trial.[13]

         None of the defendants' challenges to the evidence's admissibility succeeds, however; nor can the court conclude that the defendants have “adduce[d] clear and convincing evidence demonstrating that the withheld material was in fact inconsequential, ” and as such did not “substantially interfere[] with [West's] ability fully and fairly to prepare for and proceed at trial.” West II, 803 F.3d at 67-68 (quoting Anderson, 862 F.2d at 924-25).

         A. The Vautour evidence

         On July 31, 2013, two weeks before jury selection and unbeknownst to this court at that time or at the time of West's motion for a new trial, Bell employee Michael Vautour circulated a chart that he described as “a high level summary of the ‘known' ECU failures caused by the Tantalum Capacitor.”[14] He circulated this chart in response to a request from another Bell employee, Ryan Weeks, for “a high-level summary of all the known and potential incidents . . . .”[15] This chart included West's hard landing. Accompanying Vautour's inclusion of the plaintiff's accident as a capacitor-caused ECU failure, he noted that West's event “[h]as not been confirmed yet as a capacitor failure incident, but I am involved in litigation where the plaintiff's [sic] are claiming it was. . . . All indications of data I have reviewed points to a capacitor failure.”[16] Such a failure, Vautour posited, may have “caus[ed] in-flight FALSE OVERSPEED SYSTEM TRIP (FOST) events . . . .”[17] As Vautour noted, his opinion was consistent with the plaintiff's theory of the case. That theory was specifically contested during the pretrial litigation and the trial that followed.

         A little over a month later, on the third day of trial, Vautour reiterated to his colleagues that the event concerning West's aircraft “is suspected to be a Tantalum Capacitor failure, but due to the ongoing litigation RRC/TECS have never confirmed that. I personally am stating that because I am directly involved in the litigation.”[18] He further theorized that “the event may be contributed to two different factors, one was the Ta[ntalum] capacitor which cause[d] the FOST event and the second was the crystal oscillator, as similar to other crystal failure events, nothing was recorded on the ECU data (i.e. no FADEC faults.)”[19]

         At his deposition taken during the reopened period of discovery, Vautour testified that he formed his opinion that West's hard landing was the result of a FOSSA event caused by a faulty tantalum capacitor after seeing a graph of data from the incident recorder, showing that “the fuel flow suddenly dropped off for no apparent reason.”[20] At that time, he testified, he was aware of previous events involving the same failure mode, [21] and was not aware of any “other reasons why fuel flow would diminish like that.”[22] Hence, he included the West incident on a list of “known” FOSSA events.

         On the last day of the trial, October 1, 2013, Tony Randall, Bell's Chief of Flight Safety, forwarded Vautour's chart to Doug Cook, a Chief Service Engineer for Rolls-Royce.[23]Randall characterized the chart as “count[ing] all suspect [tantalum capacitor] issues.”[24] This chart included Vautour's observation that West's hard landing “[h]as not been yet confirmed as a capacitor failure incident, ” and that “[a]ll indications of data I have reviewed points to a capacitor failure, ” but excludes Vautour's commentary on the litigation.[25]Cook responded, noting that Vautour's list was “very disconnected to our records, ” and attaching “the list [he] sent to Mike Vautour that was supposed to clear things up, ” which did not include the West event.[26] The next day, the engineer who performed Rolls-Royce's internal investigation of West's accident, Thomas Ronan, noted that “[o]f the 7 events listed [by Bell] as involving [tantalum capacitors], only three were actual [tantalum capacitor] issues, ” and concluded that Bell was relying on “incorrect data.”[27]

         B. Rule 802

         “Out-of-court statements, not made under oath, are generally regarded as hearsay evidence and, thus, are presumptively inadmissible to prove the truth of the matter asserted.” Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 42 (1st Cir. 2015) (citing Fed.R.Evid. 801(c), 802). The Federal Rules of Evidence exclude from the definition of hearsay, and therefore from this rule, statements “offered against an opposing party” that were “made by the party's agent or employee on a matter within the scope of that relationship and while it existed.” Fed.R.Evid. 801(d)(2)(D).

         The defendants argue that Vautour's statements as to the cause of West's hard landing contained in the “high-level summary” chart he prepared were made outside of the scope of his employment with Bell. The evidence strongly suggests otherwise. Here, Vautour prepared his chart at the request of Ryan Weeks, a director of program management for Bell.[28] Weeks requested that Vautour set forth “all the known and potential [ECU failure] incidents”, and that he include “[m]odel, tail number, incident dates, owner/customer names, the outcome of accident, the known or assumed failure, and anything else that is relevant.”[29]Vautour complied.

         Quoting Vautour's deposition testimony taken during the reopened discovery period, Bell argues that the opinions offered in Vautour's chart were not within the scope of his employment because “the determination of the cause of accidents” was not “part of [Vautour's] job at Bell”[30] and that his opinion that West's hard landing was “possibly” a FOSSA event was only his “personal opinion.”[31] Such a conclusion requires an exceedingly narrow construction of the scope of an employee's employment, and one that is unsupported by the caselaw. See Woodman v. Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir. 1995) (“Rule 801(d)(2)(D) does not contemplate . . . that the statement be shown to have been made by the employee at the instance of [his] employer . . . but only that the declarant's statement concern matters within the scope of [his] agency or employment.”); cf. Shervin, 804 F.3d at 44 (statements made by doctor inadmissible against medical center under Fed.R.Evid. 801(d)(2)(D) when made outside the scope of his role on its executive committee).

         The court is disinclined to parse Vautour's statements so finely when they were so clearly made in response to a request from his employer for information he was reasonably expected to possess as part of his employment -- specifically, as Bell's counsel explained during oral argument, because he was expected to maintain regular communications with Rolls-Royce about known events. Accordingly, it concludes that the defendants have not ...

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