O'Brien v. Cessna Aircraft Co.
298 Neb. 109
| Neb. | 2017Background
- Patrick O’Brien, a Nebraska-based commercial pilot, was seriously injured in Feb 2007 when a Cessna 208B Caravan crashed on approach in heavy fog and freezing temperatures; he has no memory of the accident and hypothesizes an ice-contaminated tail stall (ICTS).
- The Model 208B was certified for flight into known icing and equipped with pneumatic deicing boots (pilot-activated); O’Brien alleged the boots and related systems were defectively designed (insufficient coverage, lack of water separator/filter) and that Cessna and Goodrich were negligent and fraudulently misrepresented safety in icing.
- Defendants (Cessna and Goodrich) argued the crash was controlled flight into terrain caused by pilot error (descent below minimum descent altitude) and presented evidence the deicing boots were not required or not cycled; photo and expert evidence showed only light ice accumulation.
- At a 4-week jury trial, the jury returned a general verdict for defendants; district court entered judgment and taxed costs against O’Brien; O’Brien appealed raising numerous evidentiary, discovery, choice-of-law, instruction, and costs errors.
- The Nebraska Supreme Court condensed 65 assignments into ten categories and reviewed issues including admissibility of other-accident evidence, use of the malfunction (indeterminate defect) theory, discovery enforcement (flight-test data), exclusion of FAA/NTSB documents and an Airworthiness Directive, expert exclusions, choice of law for punitive damages, jury instructions, and taxation of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 32 other-accident incidents | O’Brien: prior incidents show Model 208B "susceptible to ICTS" and prove defect/notice | Cessna: prior incidents are not substantially similar; admission would be prejudicial and unsupported | Excluded: plaintiff failed to prove substantial similarity; exclusion not an abuse of discretion |
| Use of malfunction (indeterminate defect) theory | O’Brien: may prove unspecified defect via circumstantial evidence of propensity to ICTS | Cessna: plaintiff pleaded specific defects; malfunction theory is vague and inapplicable | Malfunction theory unavailable where specific defects are alleged and plaintiff did not plead it |
| Discovery—compelled conversion of raw flight-test data | O’Brien: trial court failed to enforce order to force Cessna to convert and produce usable data, prejudicing experts | Cessna: produced raw data and some converted data; court invited follow-up; plaintiff did not pursue further | No abuse of discretion: court ordered production, produced converted CD, invited follow-up which plaintiff did not seek |
| Exclusion of FAA/NTSB documents and Airworthiness Directive | O’Brien: documents admissible (nonhearsay or under exceptions); exclusion prejudiced him (jury asked for AD) | Defendants: documents hearsay, prejudicial, or irrelevant; trial testimony already covered AD contents | Exclusion not reversible: testimony presented substantially similar information; plaintiff not unfairly prejudiced |
| Exclusion of Goodrich "confidential" documents | O’Brien: production/"confidential" label authenticated and makes them business records | Goodrich: lack of foundation, authentication, hearsay | Excluded: plaintiff failed to authenticate or satisfy business-record foundation; labeling in discovery not a judicial admission |
| Exclusion of radar reconstruction expert | O’Brien: expert offered flight-path/performance analysis | Cessna: methodology unreliable under Daubert/Schafersman | Excluded pretrial; plaintiff failed to preserve by making an offer of proof at trial; no reviewable error |
| Choice of law for punitive damages | O’Brien: Kansas law applies (Cessna located there; conduct occurred in Kansas) | Cessna: Nebraska law applies as injury and major contacts are in Nebraska | Nebraska law applies to punitive damages under Restatement approach; court affirmed summary judgment |
| Jury instructions—refusal of plaintiff’s long tendered instruction | O’Brien: instructions omitted detailed allegations and haec verba submissions | Defendants: court may summarize allegations to avoid redundancy and confusion | No error: court properly summarized, avoided repetitious haec verba, instructions correct when read as a whole |
| Admission of postaccident design change (switch to TKS) | O’Brien: admissible to show defect/notice | Defendants: subsequent remedial measures excluded; motion in limine preserved issue | Not preserved for appeal (no offer of proof at trial); not reviewed |
| Taxation of costs | O’Brien: motion for costs untimely and some deposition costs improper | Cessna: motion timely as request to calculate previously awarded unspecified costs; deposition costs recoverable under statute | No abuse of discretion: motion timely; district court reasonably taxed deposition and related costs under § 25-1710 |
Key Cases Cited
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (discusses malfunction/indeterminate defect theory)
- Genetti v. Caterpillar, 261 Neb. 98 (expert testimony as primary means to prove defect)
- Shipler v. General Motors Corp., 271 Neb. 194 (substantial-similarity test for other-accident evidence)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (methodology reliability standard for expert testimony)
- Salkin v. Jacobsen, 263 Neb. 521 (timing of motions for costs/attorney fees)