O'Brien v. Cessna Aircraft Co.
298 Neb. 109
| Neb. | 2017Background
- Patrick O’Brien, a Nebraska-based commercial pilot, was seriously injured in 2007 when a Cessna 208B Caravan crashed on approach in instrument meteorological conditions; O’Brien has no memory of the event and alleged an ice-contaminated tail stall (ICTS).
- The Model 208B was certified for flight into known icing and used pneumatic deicing boots (pilot-activated); O’Brien alleged specific design and testing defects in the aircraft and its pneumatic deicing system (insufficient boot coverage, lack of water separator/filter, choice of boots over TKS anti-icing, inadequate warnings/instructions).
- Defendants Cessna and Goodrich denied defect and causation, arguing the crash was controlled flight into terrain due to pilot error (descent below minimum descent altitude) and presented evidence boots likely were not cycled and ice accretion was minimal.
- After a 4-week jury trial, the jury returned a general verdict for defendants; the district court entered judgment for defendants and taxed costs against O’Brien; O’Brien appealed raising 65 assignments of error (consolidated into 10 principal issues).
- The Nebraska Supreme Court reviewed evidentiary rulings, discovery disputes, admissibility of prior accidents and regulatory documents, admissibility of expert testimony, choice-of-law for punitive damages, jury instructions, and taxation of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of "malfunction theory" / proof of unspecified defect | O’Brien sought to prove Model 208B was generally "susceptible to ICTS" via circumstantial evidence and other accidents | Cessna argued plaintiff pleaded specific defects and the susceptibility theory was vague and improper | Court held malfunction (indeterminate defect) theory unavailable here: plaintiff did not plead it and cannot invoke it when alleging specific defects |
| Discovery — production/formatting of historical flight test data | O’Brien argued trial court failed to enforce order to compel conversion of raw flight test tapes and was prejudiced | Cessna produced raw tapes; court ordered a converted CD and invited follow-up which plaintiff did not pursue | No abuse of discretion; plaintiff failed to follow up and therefore was not prejudiced |
| Admissibility of other-accident evidence (32 incidents) | O’Brien offered 32 prior incidents to show defect/ICTS susceptibility | Defendants argued prior incidents were not substantially similar | Court excluded them for lack of substantial similarity; exclusion not an abuse of discretion |
| Admissibility of FAA Airworthiness Directive and agency materials | O’Brien argued AD and other agency materials were admissible or non-hearsay and important to jurors | Defendants objected as hearsay or more prejudicial than probative | Court excluded document exhibits but testimony about them was admitted; exclusion harmless because jury heard substantially similar testimony |
| Authentication / hearsay for documents produced under confidentiality | O’Brien argued documents produced and marked "confidential" were authenticated and admissible as business records | Goodrich objected to authentication and hearsay; trial court required proper foundation | Court affirmed exclusion: marking in discovery is not a judicial admission of authenticity and plaintiff failed to lay business-records foundation |
| Expert testimony (radar reconstruction) admissibility | O’Brien sought to admit radar reconstruction opinion | Defendants challenged scientific reliability under Daubert/Schafersman; court ruled in limine to exclude | Exclusion upheld; plaintiff failed to preserve by making an offer of proof at trial |
| Choice of law re punitive damages | O’Brien urged Kansas law (permitting punitive damages) because Cessna is based in Kansas | Defendants argued Nebraska law applies (Nebraska forbids punitive damages) | Applying Restatement (Second) §§145/146, court held Nebraska law governs punitive damages (injury and predominant contacts in Nebraska) |
| Jury instructions — plaintiff's lengthy haec verba instruction | O’Brien argued court should submit his detailed instruction listing many specific acts/defects | Defendants urged streamlined instructions; court worried about redundancy and clarity | Court properly refused haec verba instruction; district court’s summarized instructions were adequate and not misleading |
| Postaccident design changes (subsequent remedial measures) | O’Brien wanted to show Cessna later switched to TKS to prove defect/knowledge | Cessna sought exclusion under rule/statute barring subsequent remedial measures | Issue not preserved for appeal (no offer of proof at trial) and in any event would be subject to exclusion; preserved argument fails |
| Taxation of costs — timeliness and deposition fees | O’Brien argued motion for costs was untimely and some deposition costs were improper | Cessna filed motion after judgment that awarded unspecified costs and sought itemization | Court found motion timely (as motion to calculate/alter unspecified costs) and reasonable taxation of deposition costs; no abuse of discretion |
Key Cases Cited
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (discussing malfunction/indeterminate defect theory and its narrow scope)
- Genetti v. Caterpillar, 261 Neb. 98 (expert testimony as preferred means to prove a product defect)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (trial court gatekeeping role on scientific reliability of expert testimony)
- Schafersman v. Agland Coop, 262 Neb. 215 (Nebraska application of Daubert standards)
- Shipler v. General Motors Corp., 271 Neb. 194 (substantial similarity requirement for other-accident evidence in product cases)
- Salkin v. Jacobsen, 263 Neb. 521 (timing of motions for fees/costs — discussed and distinguished)