O'Brien v. Cessna Aircraft Co.
298 Neb. 109
| Neb. | 2017Background
- Patrick O’Brien, a Nebraska-based commercial pilot, was seriously injured when a Cessna 208B Caravan crashed on approach in heavy fog and icing conditions in February 2007; he has no memory of the flight and theorized an ice-contaminated tail stall (ICTS).
- O’Brien sued Cessna (aircraft) and Goodrich (pneumatic deicing system) for strict liability, negligence, and fraudulent misrepresentation, alleging specific design defects (insufficient boot coverage, no water separator, no bleed-air filter) and later asserting a broader “susceptibility to ICTS.”
- Defendants contended the crash resulted from pilot error (controlled flight into terrain due to descent below minimum altitude at night) and that weather/ice accumulation did not require or show use of deicing boots.
- At a 4-week jury trial, the jury returned a general verdict for the defendants; the district court awarded defendants costs of $35,701.68; O’Brien appealed raising 65 assignments of error condensed into 10 principal issues.
- The Nebraska Supreme Court affirmed, addressing admissibility/discovery rulings, the inapplicability of the malfunction (indeterminate defect) theory where specific defects are pled, choice-of-law for punitive damages, jury instructions, expert exclusion, and taxation of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of evidence of 32 similar accidents | O’Brien: prior accidents show Caravan’s general susceptibility to ICTS (circumstantial proof of defect) | Cessna: accidents are not substantially similar and cannot prove unspecified defect | Court: excluded — plaintiff failed to show substantial similarity; cannot use malfunction theory when specific defects are alleged |
| Reliance on malfunction (indeterminate defect) theory | O’Brien: may prove unspecified defect (susceptibility to ICTS) circumstantially | Cessna: theory is vague and inapplicable here | Court: malfunction theory unavailable because not pleaded and plaintiff alleged specific defects; expressly barred when specific defects are alleged |
| Discovery — flight test data conversion | O’Brien: trial court failed to enforce order compelling conversion of raw flight-test data, causing prejudice | Cessna: produced raw data and some converted data; court acted within discretion | Court: no abuse of discretion; O’Brien failed to follow court’s invitation to seek further relief after receiving converted CD |
| Exclusion of FAA AD and other agency documents | O’Brien: AD and agency materials admissible (hearsay exceptions or non-hearsay); exclusion prejudiced him | Defendants: exhibits are hearsay, irrelevant, or more prejudicial than probative | Court: exclusion not reversible — relevant substance was admitted through testimony; no unfair prejudice shown |
| Exclusion of Goodrich documents marked confidential | O’Brien: production and confidentiality marking authenticate documents and fit business-record exception | Goodrich: documents not authenticated; hearsay; protective order does not establish authenticity | Court: upheld exclusion for lack of authentication and failure to lay business-record foundation |
| Exclusion of radar reconstruction expert | O’Brien: expert’s reconstruction was reliable and admissible | Cessna: methodology unreliable under Daubert/Schafersman | Court: exclusion affirmed; O’Brien failed to preserve issue by making offer of proof at trial |
| Choice of law re: punitive damages | O’Brien: Kansas law should govern punitive damages (Cessna based in KS; conduct in KS) | Defendants: Nebraska law applies (injury occurred in NE; parties and contacts primarily NE) | Court: Nebraska law applies under Restatement (Second) §§145–146 — Nebraska has most significant relationship; punitive damages unavailable in NE |
| Jury instructions — plaintiff’s lengthy haec verba instruction | O’Brien: court should have given his detailed statement of the case and listed each alleged defect/act | Defendants: instructions as given sufficiently and fairly summarized issues | Court: no error — trial court appropriately summarized and avoided repetitious haec verba instructions |
| Postaccident design-change evidence (switch to TKS) | O’Brien: evidence of Cessna’s later adoption of TKS is probative of defect and notice | Cessna: subsequent remedial measure; inadmissible under §27-407; not preserved | Court: error not preserved — no proper offer of proof at trial; motion in limine ruling not final |
| Taxation of costs | O’Brien: motion for costs was untimely and some deposition costs improper | Cessna: motion timely; deposition costs recoverable under §25-1710 | Court: motion was timely (court previously awarded unspecified costs); award of deposition costs not an abuse of discretion |
Key Cases Cited
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (discussing malfunction/indeterminate defect theory and its limits)
- Genetti v. Caterpillar, 261 Neb. 98 (expert testimony as primary means to prove specific product defect)
- Shipler v. General Motors Corp., 271 Neb. 194 (prior-accident substantial-similarity test for admissibility)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (methodology reliability standard for expert testimony)
- Salkin v. Jacobsen, 263 Neb. 521 (timeliness of motions for fees/costs — cited in costs discussion)
- Shuck v. CNH America, LLC, 498 F.3d 868 (Eighth Circuit discussion of Nebraska strict liability law)