O'Brien v. Cessna Aircraft Co.
903 N.W.2d 432
Neb.2017Background
- Patrick O’Brien, a Nebraska commercial pilot, was seriously injured in Feb 2007 when his Cessna 208B Caravan crashed on approach in night instrument meteorological conditions; O’Brien has no memory of the accident and alleges an ice-contaminated tail stall (ICTS).
- The Model 208B was FAA‑certified for flight into known icing and used pneumatic deicing “boots” (pilot‑activated); O’Brien alleged design defects in the deicing system (insufficient boot coverage, lack of water separator/filter) and inadequate testing/warnings.
- O’Brien sued Cessna (aircraft) and Goodrich (deicing system) for strict liability, negligence, and fraudulent misrepresentation; defendants contended pilot error (controlled flight into terrain) and that evidence did not support ICTS or defective boots.
- At a 4‑week jury trial, the jury returned a general verdict for defendants; district court entered judgment and later taxed costs against O’Brien; O’Brien appealed raising multiple evidentiary, discovery, choice‑of‑law, instruction, and costs objections.
- The Nebraska Supreme Court consolidated O’Brien’s many assignments into core issues (malfunction theory use, discovery enforcement, multiple evidentiary exclusions, expert exclusion, punitive‑damages choice of law, jury instructions, and taxation of costs) and reviewed for abuse of discretion or de novo as appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of malfunction (malfunction/indeterminate defect) theory to prove nonspecific susceptibility to ICTS | O’Brien sought to prove the Caravan had a general propensity 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 theory is unavailable where plaintiff pleads specific defects (and plaintiff failed to plead the malfunction theory); excluded related evidence |
| Exclusion of 32 "similar" accidents | O’Brien argued accidents showed model susceptibility to ICTS and supported defect/notice | Defendants and trial court argued lack of substantial similarity across circumstances and causes | Court affirmed exclusion for lack of demonstrated substantial similarity; prior‑accident evidence must be substantially similar to be admissible |
| Discovery: conversion of raw flight test data / sanctions | O’Brien claimed prejudice because Cessna did not convert older flight test data used by O’Brien’s experts | Cessna produced raw tapes and some converted CD; court invited follow‑up which O’Brien did not pursue | Court found no abuse of discretion; no enforcement/sanctions error because court ordered production, produced converted data, and O’Brien failed to follow up |
| Exclusion of FAA/NTSB documents and FAA Airworthiness Directive (AD) | O’Brien argued AD and safety documents were admissible or at least non‑hearsay or covered by exceptions; jury asked for AD copy during deliberations | Defendants objected on hearsay, relevance, and prejudice; trial court admitted testimony about AD but excluded the document | Court held exclusion of AD and some documents was not reversible because testimony about the AD and substantially similar evidence was presented; no unfair prejudice shown |
| Exclusion of Goodrich "confidential" discovery documents | O’Brien claimed production markings authenticated documents and fit business‑records exception | Goodrich and trial court required authentication and hearsay foundation; documents lacked proper foundation/authentication | Court affirmed exclusion: producing and labeling documents as confidential does not authenticate them; proponent must lay business‑record foundation |
| Exclusion of radar reconstruction expert testimony | O’Brien sought to admit expert reconstruction evidence | Cessna moved under Daubert/Schafersman to exclude for unreliable methodology | Court excluded pretrial; O’Brien failed to make an offer of proof at trial to preserve the issue; appellate review denied |
| Choice of law for punitive damages (Nebraska v. Kansas) | O’Brien urged Kansas law (Cessna based in Kansas; culpable conduct there) | Cessna argued the injury and strongest contacts were in Nebraska, so Nebraska law applies (which precludes punitive damages) | Court applied Restatement (Second) §145/§146 factors, found Nebraska had most significant relationship, and held Nebraska law governs punitive damages |
| Jury instructions (refusal of lengthy haec verba instruction) | O’Brien argued the court should have given his detailed statement of the case listing many specific defects/negligence theories | Defendants and court argued the tendered instruction was repetitious, overly long, and that the court should summarize issues for clarity | Court upheld its summarized instructions (not required to instruct in haec verba); instructions as a whole correctly stated law and covered issues |
| Taxation of costs and timeliness of costs motion | O’Brien claimed the motion for costs was untimely and some deposition costs were improper | Cessna sought costs after judgment requested unspecified costs; trial court held motion timely and awarded reasonable deposition costs | Court affirmed: motion was timely as a motion to calculate/alter unspecified costs; taxation of deposition costs was within trial court discretion |
Key Cases Cited
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (malfunction theory/indeterminate defect explained and cautioned)
- Genetti v. Caterpillar, 261 Neb. 98 (expert testimony as preferred proof of defect)
- Shipler v. General Motors Corp., 271 Neb. 194 (substantial similarity requirement for other‑accident evidence)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (gatekeeping on scientific reliability of expert testimony)
- Schafersman v. Agland Coop, 262 Neb. 215 (Nebraska standard for admissibility of expert methodology)
- Salkin v. Jacobsen, 263 Neb. 521 (timing of postjudgment fee/cost motions discussed)