*3 N2743E, number owned Petroleum ROGERS, Before COLE and Circuit (PHI) Helicopters, Inc. piloted by and de- COHN, Judges; and Judge.* District (Greene), cedent Donald Greene crashed Jackson, into a wooded hillside near Ken- COHN, Judge, District delivered the Greene, tucky. In pilot-in-com- addition court, ROGERS, opinion for the in which (Jones) mand Ernest Jones and two medi- COLE, Judge, joined. Circuit Circuit cal passengers, technician Sheila Zellers 795-98), Judge (pp. separate delivered Harden, and Brian died in the accident. opinion concurring part dissenting The helicopter took off from Julian Car- part. Airport just roll p.m. heavy after 8:00 fog. visibility Because approximately OPINION one-quarter mile, one-eighth of a COHN, Judge. District rely Greene was forced to almost exclu- a products liability arising This is case sively helicopter’s on the in- navigational out of a helicopter accident. Defendants struments. Less than two minutes after * Cohn, The Honorable United terminology Avern States Dis- Rule 50 was amended and Judge trict for Eastern District of Michi- changed to refer to these motions as a motion gan, sitting by designation. judgment as a matter of law and a re- parties 1. The refer to the motions made under judgment newed motion for as a matter of "judgment Fed. R. Civ. P. 50 as motions for as law. We hereafter refer to these motions "judgment a matter of law” and notwith- using language the current of Rule 50. 1991, however, standing the verdict.” In liftoff, the district court’s denial of exchange an between Goodrich’s the aircraft’s cockpit summary judgment on the motion on the manu- recorded Jones (CVR) (2) claim; facturing that Jones recorder indicated the district voice helicopter was in a judgment that the court’s denial of its motion for as told Greene descending. The ex- turn and a matter of law at the end of right-hand Greene’s case case; (3) and Jones contin- change between Greene and at the end of the entire ued as follows: the district court’s denial of its renewed gyro just I think “Okay my 8:08:05 Greene: p.m. judgment motion for a matter of law. quit.” cross-appeals, challenging the dis- “You have the controls?” 8:08:10 Greene: p.m. in a left hand turn and Jones: ‘You’re 8:08:11 p.m. grant summary trict court’s judgment descending ... turn turn, back on her failure to warn claim and the and “Right level us off.” level, *4 right turn ... hand Jones: hand 8:08:18 p.m. court’s exclusion of evidence of turn.” [Initial CVR 8:08:24 sound impact; p.m. failures that occurred more than six ceased operation] prior months to the crash. helicopter Background B. Procedural wife, Greene, Judy Donald Greene’s Background on the C. suit, claiming that brought this Product at Issue defectively designed or manufactured the proceeding analysis, to it Before our is portion helicop- of the prudent first to have an overview of the navigation system and that Goodrich ter’s product Greene claims Goodrich defective- failing in to of its negligent was warn ly gyroscopes the vertical manufactured: product. defective helicopter. helicopter on board the The summary a motion for Goodrich filed equipped Display with two Attitude granted court judgment. The district (ADIs), Standby Indicators one Attitude it in The part part. motion in and denied Indicator, and two Horizontal In- Situation summarily court dismissed district (HSIs). an air- dicators ADIs indicate claim she design defect because Greene’s in position craft’s relation to the earth’s of a in the produced no evidence flaw help pilot posi- horizon and control the' to manu- design. respect With to the earth. tion of the aircraft relative claim, facturing defect the district court helicopter displayed ADI in the Each produce that Greene did not evidence held roll, pitch, and turn-rate data. The verti- it negligence theory, of fault under a but gyroscopes, cal model number VG-204 manufacturing held that Greene’s defect A/B, Goodrich, by provided manufactured sounding liability go claim in strict could (which helicopter’s were data to the ADIs jury genuine issues of material because Goodrich). by The ver- not manufactured respect fact remained with to causation. were housed inside the gyroscopes tical The district court also held that Greene helicopter and not visible nose of the not maintain a state-law failure to could during flight. Each ADI re- pilots regarding law warn claim because federal pitch independently and roll data ceived any duty im- preempted aviation standards Each gyroscope. own vertical its by state law. posed ADI turn-rate data from two also received by manufactured gyroscopes other not At trial on the The vertical claim, for and Goodrich. jury found any oth- provide did not data damages. her The awarded substantial helicopter. Pilots In- er instrument on jury damages also awarded to Wausau deviation Co., to determine course paying had been use HSIs surance which The magnetic heading information. compensation on her hus- Greene workers’ (1) helicopter received informa- appeals HSIs in the death. Goodrich now band’s gyroscopes. Standby against tion from other ment as a matter of law Attitude Indicator is a self-contained unit both at the close of Greene’s case and gyroscope. with its own again at the close of trial. As discussed below, we find that the district court erred
II. ANALYSIS granting Goodrich’s motion for Because this case went to trial and re- judgment as a matter of law at the close of Greene, jury sulted in a verdict in favor of Greene’s case. unnecessary we find it whether address failing grant court erred in district Manufacturing a. Defect summary judgment entirety its to Good- Legal Standard Rather, analysis begin by rich. our will law, Kentucky Under a manufac addressing motion judg- Goodrich’s for turing product defect exists in a it ment as a matter of law at the end Greene’s case. leaves the hands the manufacturer in a defective condition because was not man A. the District Whether Court Erred ufactured or assembled accordance with Denying Motions Goodrich’s specifications. its See Ford Motor Co. v. Judgment as a Matter of Law McCamish, (Ky. 559 S.W.2d 509-11 *5 Judg- Renewed Motion A App.1977). manufacturing defect claim ment as a Matter of Law requires jury the to determine whether the We review a district court’s deni product failed because of an error in the judgment al of as a matter of law de novo. process of assembly. manufacture or Id. Welding Sys. Moore v. KUKA & Robot respect With liability Greene’s strict (6th Cir.1999). 1073, Corp., 171 F.3d 1078 theory, Kentucky has adopted Restate In cases like this one invoking diversity of § 402A. See Deal (SeCONd) ment of ToRts citizenship jurisdiction, applies the Court Co., Transport Battery ers Co. v. Distrib. the state law’s substantive standard for 441, 402 (Ky.App.1965). S.W.2d 446-47 determining judgment as a matter of 402A, § Under the defendant is held law is appropriate. Morales v. Am. Hon strictly plaintiff liable if the proves the Co., (6th 500, da Motor 506 Cir. product was “in a defective un condition 1998); Inc., Tempglass Darwish v. Group, reasonably dangerous to the user or con Cir.2002). 477, (6th 26 Fed.Appx. 482 Un sumer.” Montgomery Elevator Co. v. law, Kentucky der judgment as a of matter McCullough by McCullough, 676 S.W.2d granted only law should be when “there is 776, (Ky.1984). Proceeding 780 under a a complete absence of proof on a material liability theory strict not require does action, issue in the if disputed no issue plaintiff prove part fault on the of defen of fact upon exists which reasonable minds must, however, plaintiff dant. The estab Goodman, could Washington differ.” lish causation under the “substantial fac 398, (Ky.App.1992). 830 S.W.2d 400 “[E]v Co., King tor” test. v. Ford Motor 209 ery may favorable inference which reason (6th Cir.2000). F.3d “[P]laintiff ably be drawn from the evidence should be prove must that the defendant’s conduct party against accorded the whom the mo was a in bringing substantial factor about Baylis tion is made.” Hosp., v. Lourdes Inc., 122, 125 harm.” plaintiffs Nothing precludes Id. a (Ky.1991). S.W.2d plaintiff using circumstantial evi Judgment as a Matter of Law prove products liability dence case so says long as the that the district evidence is “sufficient to tilt court granting erred judg- its motion for possibility the balance from to probabili- (Second) Third, Transportation the National Safe- The Restatement ty.” Id. “unreasonably danger- (NTSB) provides ty Torts Board retrieved from the crash “dangerous to product that is ous” means faceplate helicopter’s site a of one of the would beyond that which be an extent ADIs. The NTSB determined from the ordinary consumer by the contemplated that, faceplate impact, at the time of it, ordinary with the knowl- purchases who ADI helicopter indicated’ community common its edge “pointing position flight to a between level ”3 (Seoond) characteristics.” Restatement 2-degree and a roll.... right (1965). i § cmt. “Defective” 402A ToRts investigation ground NTSB’s on-site of the product “that the does not meet the means damage, including pattern treetop expectations ordinary of the reasonable leveling pilot-in-command Jones’s last safety.” to its Worldwide consumer as words, that, impact, both indicated at Mullins, Inc. v. Equip., S.W.3d actually “in helicopter was a left hand turn (Ky.App.1999). descending.” As the district court stated, oversimplify, Cockpit “[t]o Trial The Evidence at b. tape Voice Recorder and the crash kine- destroyed The vertical match reading matics did not of the crash; accordingly, there was no recovered ADI.” fail- evidence of vertical direct Fourth, expert, major on four ure. instead relied Douglas Herlihy (Herlihy), testified in an to circum- pieces attempt of evidence likely was more that a vertical defect in stantially prove manufacturing failure, rather than a failure of other in- pilot’s gyroscope:2 struments, was the cause of the crash. First, relied on her husband’s *6 that, Herlihy Wiring failure testified be- that seconds before the crash he statement gyroscope tween a and its ADI vertical just thought quit.” his “gyro typical gyroscope was not as as a failure Second, that proffered Greene evidence , testified, it itself.4 He that was his also the period preceding in the six-month opinion that “the accident was a result of crash, forty vertical there had been cockpit instrument confusion in the creat- on fifteen of the scope replacements twen- by gyro input the of vertical to the ed loss ty-four Sikorsky helicopters .76-A owned gyro pilot’s A.D.I. horizon.” flying operated by There also had been PHI. ADI PHI replacements eleven on seven Challenge c. Goodrich’s helicopters during period. that same time Statement Greene’s crashed had three ver- helicopter that n matter, an initial main- As and two ADIs Goodrich gyroscopes replaced tical oral-argument during tained on brief and during preceding the six months the crash. concluded that Although in the rec- because the district court Her- 2. there is no distinction gyroscopes gyroscope expert. in the lihy qualified ord between the vertical was not as helicopter, indicates, however, that manufac- it is clear Greene’s during a The record turing pilot defect claim relates to Greene's hearing, Daubert the district court concluded gyroscope. vertical testify Herlihy competent as an was give opinion investigator his accident examining the record 3. It is unclear why gyroscope regarding the caused vertical exactly faceplate ADI's how the shows the We the district court did the crash. find that reading impact. on admitting Herlihy's testimony. not err in says that the district court erred Goodrich testimony Herlihy’s expert when it admitted recorded on made before there is time to contrive or that Greene’s as statement CVR, just And, third, “Okay my gyro I think misrepresent. the the statement hearsay. quit,” was inadmissible Goodrich person be made while the is under must says gyroscopes feeding that the vertical by the stress of the excitement caused the helicopter’s ADIs were located Warden, Haggins Fort Pillow event.” Thus, helicopter. of the Farm, (6th nose Goodrich State Cir. argues, it for impossible would be Greene 1983). to see a vertical or to know that note, As an initial it is unclear from the rather, quit; only it he would be able record if Greene’s out-of-court statement cockpit see the ADIs inside the that re- prove was even offered at trial to the truth supplied by gyroscopes. flected data of the matter asserted —the definition of Additionally, argues that there Goodrich was, however, if hearsay. Even it gyroscopes were at six heli- least admitting district court did not err and that it did not manufacture all copter present Greene’s statement as either a them, admitting so Greene’s statement impression sense or as an exited utterance. requires speculation as to which respect present impres- With to a sense may referring. Greene have been sion, certainly personally could At the time the district court ad observe in the nose statement, mitted Greene’s it did not clear of the argues. Goodrich ly hearsay articulate the exception on However, undisputed it is that Greene it relying. which was The district court could see the ADIs in cockpit did, however, speci address this issue with reflected data supplied gy- the vertical ficity denied Goodrich’s motions roscopes in the Al- helicopter. nose of the judgment a matter of law. The as. though argues that it is unclear if district court at that time found that the to his referring ADI in his statement was admissible under two ex statement or another ADI in cockpit, (1) ceptions hearsay present rule: my gyro just fact that he said “I think (2) impression sense excited utterance. added) quit” (emphasis appears to indicate We review whether the district court’s referring Indeed, that he was to his ADI. determination was an of discretion. abuse Herlihy, expert, testified that it *7 Corp., Xomox 275 Mitroff v. would make no difference to an experi- (6th Cir.1986). Under the Federal Rules pilot enced like that Greene the Evidence, hearsay is defined as a “state inis the nose of the helicopter. Herlihy ment, other than one made the declar- pilot testified that if a like Greene said ant testifying hearing, while at the trial or “my gyro just quit,” he knows that the offered in prove evidence to the truth of displayed information ADI the is com- the matter asserted.” Fed.R.Evid. 801(c). ing from the nose of helicopter. To 803(1), hearsay Under Fed.R.Evid. rule suggest that a pilot experiencing who is not describing does exclude statement “[a] problems with an ADI display physi- must explaining or an event or condition made cally view the to reliably detect
while the declarant perceiving was a malfunction is untenable. condition, event or immediately or thereaf The district court also did not err ter.” The excited utterance exception to 803(2) that concluding Greene’s statement was hearsay rule under Fed.R.Evid. “[fjirst, an requires Certainly there an excited utterance. must be event startling enough to cause made the statement nervous excite while under stress of Second, ment. the statement must be the event that nineteen seconds later re-
791 gyro replacements helicopters, that cal on 15 To the extent in his death. suited that Greene could total of 11 attitude indicator re- argues again and a Goodrich alleg- gyroscope that see the physically placements helicopters. on 7 On Advisory *8 helicopters in in the six paired PHI-owned Goodrich; solely to orders were not sent helicopter accident. preceding months facilities, rather, PHI sent them to various differing us with parties presented The Goodrich; Masco; Helicopter including of this data. The NTSB interpretations Textron; Inc.; Helicopter Support, Bell report states Honeywell, Inc.5 records, in company the 6 [ajccording in No. 21 does not The Exhibit accident, evidence fleet- preceded months that manufacturing there was wide, suggest a total of 40 verti- there had been gyro- by Goodrich because that all manufactured 5. It is if Exhibit No. 21 shows unclear repair facilities. scopes to various gyroscopes were sent that PHI removed vertical Indeed, gyroscope. fancy gyroscope. defect in a vertical of a vertical As counsel removals, including ADIs the list of correctly within during noted oral repairs nothing replacements, and does argument, the failure to adduce such evi- attributable to Greene— n support Greene’s claim that there was a correctly dence is gyro- defect in a vertical party prove with the burden to a man- in scope. The evidence the exhibit could ufacturing Simply put, defect. Greene’s equally suggest problem that there awas removal, regarding statistics replace- Indeed, an with ADI. counsel for Good- ment, repairs gyroscopes of vertical argument rich at oral told that nothing us in meaningless and ADIs the PHI fleet are proofs possibility ruled out the not, more, and are probative without of a that an ADI signifi- malfunctioned. More manufacturing defect.7 cant, however, fact that prof- is the Greene’s evidence Ex- also consisted of fered no evidence that the reason for the 6, comprising pages hibit No. of work repairs removal or of the vertical inspection orders and reports Good- Likewise, scopes prof- was unusual. she Austin, repair rich’s station in Texas. This fered no evidence that the replace- rate of exhibit documented work orders Goodrich of gyroscopes ment vertical in the PHI from PHI for received model VG-204 A/B replacement fleet differed from the rate of gyroscopes along vertical with details of gyroscopes by made other manu- actually performed the work Goodrich facturers. each vertical submitted to the uncertainty study- Because our after repair station for evaluation. The docu- record, ing expressed concern to ments Exhibit No. 6 detail work orders argument counsel at oral use about the from PHI period to Goodrich for the No- regarding Greene’s data vertical gyroscope vember through April 1999. Two of removals, ADI replacements, and re- the work orders and inspection reports pairs. directly We asked counsel for both within six months of the accident show Goodrich and Greene to direct tous that PHI sent two model VG-204 A/B place in the record that would inform us as vertical gyroscopes from the to the expected useful life of a vertical piloting, registration Greene was number counsel, however, gyroscope. Both in- N2743E, facility. to Goodrich’s Texas The formed us that the record is devoid of such order, FK956, first work number was re- information.6 This conspic- strikes us as a by January ceived Goodrich on 1999. omission, uous given the fact that without The reason listed on the work order for such a benchmark it impossible is to deter- gyroscope being the vertical removed was mine whether the vertical re- moved, “# 2 pitch flight.” kicks The final in- replaced, repaired PHI spection fleet occurred at a statistically significant report January Goodrich on compared 29, 1999, rate average expec- with the life lists as the reason for failure is, mind, parties opportunity post-argu- argument my had an considerable.... respond ment to to our concerns about the argument opportunity [0]ral offers an for a information, lack of this but we received no interchange direct of ideas between court and response. play significant counsel.... Counsel can responding role in concerns of presents important example 7. This case an judges, always concerns that counsel won’t be argument how the value of oral cannot be *9 anticipate preparing able to in the briefs.” argument understated. Oral allowed us to Rehnquist, Advocacy: William H. Oral A Dis- further delve into issues of concern that were Art, 1015, appearing 35 Mercer L. Rev. adequately by parties addressed the (1984). intangible their briefs. "The value of oral build-up slip rings “carbon on and brushes Given the evidence that it pos- would be inspection due to electrical contact.” The pilot sible for a navigate helicopter report repaired states that Goodrich failed; if an ADI that multiple events gyroscope vertical and that it met manu- could accident; have caused helicopter specifications facturer it was re- replacements and that of vertical 29, January turned to PHI on 1999. The scopes on PHI’s helicopters, including the order, FT858, second work number was piloted one by Jones, Greene and six by received April Goodrich on prior not, months to the crash do standing The reason listed on the work order for alone, defect, indicate a was, the vertical gyroscope being removed proofs Greene’s simply insufficient to again, pitch “#2 in flight.” kicks show that there awas manufacturing de- inspection final report by Goodrich on Indeed, fect a vertical gyroscope. at no 16, 1999, April verify states “couldn’t cus- any time did identify witness a defect in complaint, tomer unit performs normally.” manufacture of model VG-204 vertical A/B Before the vertical was re- gyroscopes. 16, 1999, turned to PHI April the work performed on the unit was listed on the e. Conclusion final inspection report “open checked unit, Viewing the totality of the slip ring cleaned all evidence at brushes as a precaution, calibrated, tested the conclusion of inspect- proofs leads us ” ed mfg spec.... to current This exhibit to conclude that the evidence amounted to probative likewise is not aof manufactur- generality.” “featureless See OliveR Wen- ing defect because it nothing sug- does Holmes, JR., The Common Law dell gest any model VG-204 vertical A/B (Mark ed., Little, DeWolfe Howe Brown gyroscope listed in the series of work or- 1963) (1881). In the absence of evidence ders was defective at the time it left Good- possible explanation one was more rich’s manufacturing plant. probable another, than jury was re-
Another piece of sup- quired evidence further speculate as to whether there ports our conclusion that Greene failed to was a defect. It is well established that a prove that there was a manufacturing de- jury verdict speculation, based on supposi- fect gyroscope. Herlihy vertical testi- tion, impermissible: or surmise is fied at trial that opinion was his Although jury may draw reasonable “the accident was a result of instrument inferences from the evidence a of defect confusion in cockpit created the loss in manufacturing, it is incumbent on the gyro input vertical flying pilot’s plaintiff to introduce evidence that will gyro A.D.I. or horizon.” PHI pilot lead support a reasonable inference that the Methvin, however, Thomas testified that defect “probable” was the cause even if one ADI failed or was receiving distinguished accident as “possi- from a information, incorrect pilot- and/or among ble” cause other possibilities; in-command Jones should have upon relied otherwise, jury verdict upon is based the other cockpit safely fly ADIs speculation or surmise. or land the aircraft. testimony Additional Midwestern Corp. Ringley, V.W. by Herlihy provided that the accident “had (Ky.1973). S.W.2d Our view of number factors that caused it.” Her- that, best, the evidence indicates at lihy testified that “the factors include two only causes,” showed at trial that it primary possible including the weather Herlihy’s opinion that “the there was in a experienced an gyroscope. instrument failure.” simply She failed to *10 reaching In its should maintain. a Goodrich there was such that
satisfy her burden
on Ab
conclusion,
district court relied
defect.
Airlines, Inc.,
F.3d 363
v. Am.
dullah
that
the district
conclude
Because we
Cir.1999).
Abdullah,
(3d
of
In
the Court
grant
to
Goodrich’s
failing
erred
court
joined other
law at
for the Third Circuit
Appeals
a matter of
judgment
for
as
motion
case, Goodrich's
in
Congress
of
that
recognizing
conclusion Greene’s
circuits
denial of
court’s
challenge to the district
exclusively
safety to be
aviation
tended
mat-
as a
judgment
motion for
Goodrich’s
at
The Su
in nature.
Id.
371.
federal
trial and
at the
of
of law
close
ter
preemption
that
has
preme Court
stated
Goodrich’s re-
denial of
court’s
district
pervasiveness
“the
inferred where
may be
as a matter of
for judgment
motion
newed
precludes supple
regulation
federal
of the
law is moot.
States,
federal
by the
where the
mentation
sufficiently
is
domi
interest
in the field
Court Erred
the District
B. Whether
nant,
object sought to
be
or where
Summary Judgment
Granting
law and the char
by the
obtained
federal
Failure
on Greene’s
to Goodrich
by it reveal
obligations imposed
of
acter
to
Claim
Warn
purpose.”
Schneidewind
the same
cross-appeal that
in her
argues
Greene
Co.,
293, 300,
485 U.S.
Pipeline
ANR
granted
district court erred
(1988) (internal
99 L.Ed.2d
S.Ct.
summary judgment
Goodrich
omitted). The Abdullah court
quotations
claims.
failure to warn
adju
courts that
that “[t]he
noted
federal
breached
argued
Goodrich
Greene
that
major
involving
cases
dicated the first
aircraft
that
duty
users of
to warn
its
interpreted
leg
its
Aviation Act]
[Federal
about the
a vertical gyroscope
contained
history
evincing Congress’s in
islative
defects.
gyroscope’s
the field
supremacy over
tent to exercise
that
Herlihy’s opinion
relied on
Abdullah,
at
safety.”
of aviation
database struc-
“had no central
history of the Federal
legislative
369.
malfunctions,
register
...
track
ture
Aviation Act notes that:
system weak-
gyro
concerns of
employee
nesses,
horizontally be-
or to communicate
the Federal Aviation
purpose of
[The
manufacturing, quali-
Rapids
Grand
tween
Administrator of
give]
Act was to
[t]he
facilities.”
ty
repair
and its field
assurance
Agency
Aviation
full
the new Federal
any
violations
allege
did
authority for the ad-
responsibility and
failure to
respect
to the
federal law with
of civil
promulgation
vancement
any
did not cite
claim. She
warn
also
including promul-
generally,
aeronautics
that encour-
authority regarding standards
safety regula-
gation and enforcement
require
company
like Goodrich
age or
tions.
maintain such database.
2360, reprinted in
No.
H.R.Rep.
motion for
granting
In
Goodrich’s
Report
The House
U.S.C.C.A.N.
respect
summary judgment with
that
is essential
one
noted
“[i]t
also
claim, the district court
to warn
failure
agency
and one
government,
agency
any state-
preempts
law
held
federal
safety
alone,
issuing
responsible
be
realm of avia
imposed duties in the
law
timely
if we
to have
regulations
are
significant
found it
The district court
tion.
safety in aviation.”
guidelines for
effective
Administration
Federal Aviation
legisla-
analyzing
After
this
Id. at 3761.
(FAA)
or man
guidelines
propose
do not
court concluded:
history, the Abdullah
Herlihy suggested
tive
a database like
date
*11
It follows from the evident
intent of
III. CONCLUSION
supervi-
that there be federal
Congress
An appellate court does not set aside a
safety
sion of air
and from the decisions
jury
Indeed,
verdict with ease.
previ-
in
courts have found
pre-
which
federal
ously
recognized
have
that a reviewing
discrete,
emption
safety-related
mat-
court should not lightly overturn a jury
ters, that federal
preempts
gen-
law
See, e.g.,
verdict.
Pratt v. Nat’l Distillers
safety.
eral field of aviation
(6th
1329,
Corp.,
& Chem.
853 F.2d
Abdullah,
Cir.1988).
agree
by excluding gyroscope repairs evidence of Greene’s manufacturing defect claim and replacements on occurred PHI’s respectfully to majority’s dissent from the helicopters more than prior six months opinion regarding Greene’s failure to warn examining challenge the crash. When claim. evidence, the exclusion of we will not re the district verse court’s decision “unless I. ” necessary justice.’ to do ‘substantial A product always equ- failure cannot be Heideman, Martin v. defect, this, ated to a product as I see (6th Cir.1997). it, argument. is the fatal flaw in Greene’s does not adequately explain Greene how First, prevail manufacturing on a of gyroscope repairs replace- evidence claim liability theory, under strict beyond ments a six-month period time be- plaintiff must show that a help fore the crash would In- her case. error, resulting in an unreasonably dan- deed, appears as though such evidence is condition, gerous the substantial cause proffered cumulative of the evidence she plaintiffs injury. Worldwide that indicated that there had been several Mullins, Equip., Inc. v. 11 S.W.3d 55- replacements of notes, (Ky.App.1999). majority As the helicopters. cor- PHI’s The district court presented four items of evidence in rectly type limited this evidence to support gyro- of her claim that a vertical period prior time of six months scope probable failure was the cause of the (1) to prevent crash so as the introduction of crash: Mr. Greene’s statement immedi-
unnecessary ately prior “gyro just and cumulative data for the to the crash that his (2) jury’s consideration. has failed to that in quit”; evidence the six-month crash, reversing period demonstrate how the district before the several evidentiary necessary scopes helicopters, including court’s decision is in PHI’s Greene, justice. piloted by do substantial the one Mr. were re- product if the had (3) way unlikely to occur kine- that the crash evidence placed; *12 made, and that no outside helicopter’s properly been match what the matics did not Pros the See forces caused malfunction. reading at the time of instruments (9th Torts, Schwartz, ser, 767 (4) & testimony Wade crash; Herlihy’s and the Dobbs, ed.1994); The Law Dan B. gyroscope that, the vertical opinion, in his (2001). Torts, Unfortunately for because, night of the accident failed on the it Greene, not that was out she did show plate of the ADI face on the remains based to fail. Good crash, ordinary gyroscope for a a the the light panels and gyro that vertical presented rich evidence likely more than a failure gyroscope was any time replaced not on set scopes and are gyroscope the wiring failure between Rather, replaced are gyroscopes ADI, the ADI. With the table. or a failure of its condition,” they evidence, meaning that are re I “on item of exception of the second they discrepancy show a placed once the sum of Greene’s circumstan- find that or failures discrepancies These support sufficient to the failure. tial evidence was usually, during flight, pilots occur jury’s the vertical conclusion that by relying gyro on the other compensate scope failed. uncontro- in the scopes helicopter. However, presented no evidence that failures occur evidence showed verted the result of showing that this failure was rely pilots that are never to trained gy the manufacturing Because a defect. reason. solely gyroscope on one for this crash, destroyed in the roscope was this, a proven not that Given Greene has not it for a manufac Greene could examine an gyroscope unexpected failure is event argument has essen turing defect. Her a inference ipsa loquitur such that res tially gyroscope the failed and been: Accordingly, there would be warranted. there have been a manufac therefore must failure gyroscope no that the was evidence loqui- turing type ipsa defect. of res This defect,” the “manufacturing was a by Ken reasoning tur has embraced been contrary the must be set jury’s outcome to tucky courts aside. Bottling Pepsi-Cola cases. See Embs v. Inc., Although majority goes further Lexington, Kentucky, Co. of may say gyroscope that failure (reversing a dis (Ky.1975) S.W.2d crash, I am not convinced injured by have caused the missal where the was plaintiff bottle, failure, usually a a while beverage the debris of that exploding an event, unrecoverable, fatal in manageable prove did not because bottles which of this crash. It ordinarily unique in the course of circumstances explode do not may that in certain circum- handling); Perkins v. Trailco be normal c.f. Co., unavoidably products, stances are unsafe Mfg. and 613 S.W.2d Sales (Ky.1981) (reversing a and not see Restatement (Second) dismissal of Torts K, however, 402A, § all the evi- evidence was Comment ing that circumstantial are presented a new dence indicates users enough prove a defect where being of their attributes. Without collapsed tractor trailer while was aware unsafe used). Nevertheless, Mr. showing probability Greene’s properly to be enti compared to infer was defective as ipsa loquitur-type tled to this res Goodrich, ence, by gyroscopes produced of show other plaintiff has burden Therefore, claim fail.8 I product malfunctioned in a Greene’s must ing loquitur prove important recognize difficulty proving a inference could I manu- Here, however, facturing prod- defect in situation where the addi- many cases. there is an destroyed. why ipsa uct is This is the res concur in the result reached respectfully to make reasonable the inference that majority as to motion for Goodrich’s Congress left no room for the States a matter of judgment as law. it, supplement if the Congress Act of touches field in which the federal in-
II.
terest
is so dominant that
the federal
I
turn to
cross-appeal
system
now
re-
will
preclude
be assumed to
en-
failure to
garding her
warn claim. The
forcement of state
laws
the same
majority opinion affirms the district court’s
subject, or if
goals sought
to be
*13
Goodrich,
grant
summary judgment
of
to
obtained
obligation
and the
imposed re-
stating that Greene’s state law failure to
veal a purpose
preclude
to
state authori-
preempted by
warn claim is
federal law.
ty ... a court
begin
must
with the as-
A
may preempt
federal
law
a state law
sumption that a state law is valid and
expressly
implicitly.
either
or
v.
Garcia
should be reluctant to resort to the Su-
Labs.,
Wyeth-Ayerst
premacy Clause.
(6th Cir.2004).
Congress
When
enacted Garcia,
Implied preemption lay occurs exist which out the scheme regulation pervasive appropriate federal is so standard of that was care complication, product, tional because the that a therefore defect was the accounts, expected all is sometimes to fail. If may possibility. likeliest have an ar- presented expect- Greene had evidence on the gument that Goodrich has the to col- burden gyroscopes, perhaps ed rate of failure in she provide lect and consumers with information might have been able to show that a user regarding gyroscope's failure rate. See any expectation would not have had that a infra. fail, relatively new would proper- failure to warn claim was by pilots flight passengers owed crews, preempted FAA that the ly concluded dismissed. may that the State of care
any standards Id. at 371. To flight operators.
impose on rely on Ab- choose
the extent authority, I believe persuasive
dullah as readi- of the ease are
that the facts instant truly Abdullah can
ly distinguishable. proposi- on for the limited
only be relied of care for that a standard tion State’s Lynne SIENKIEWICZ, A. preempted by is personnel aviation Plaintiff-Appellant, us is not like FAA. The situation before Abdullah, case, because this lay regulations which there are no federal BARNHART, B. Jo Anne Commis *14 Therefore, standard of care. out the exact Security, De sioner of Social in Ab- expand proposition I would not fendant-Appellee. enterprises commercial apply dullah to equipment. that manufacture aviation No. 04-1542. Furthermore, previously this Court has Appeals, States Court of United narrowly with apply preemption chosen Seventh Circuit. City FAA. In regards to the Gustafson (6th 778, Angelus, Lake of Cir.1996), 17, Argued Nov. 2004. Congress we stated that had Jan. Decided regarding navigable preempted local law control, safety, May aircraft 2005 1. airspace, noise Published FAA but on to hold that the did went
preempt regulations/ordinances local re- used for air-
garding ground space to be Thus, landing Id. at 789. our
craft sites. traditionally proper
circuit has shown a
amount of restraint and caution before preempted by
finding State and local laws I regime,
federal law. Under this cannot implicitly preempts FAA
assume
any law-imposed or common duties State Admittedly, FAA is involved in
here.
overseeing quality control of certain however, neither the equipment;
aviation majority proffered have
appellant nor the
any why stringent reason a State’s more context
duty of care the failure warn rather than frustrate supplement
could not Consequently, respectfully
the FAA. I majority’s
dissent from the conclusion that 58(d)(3). panel granted originally R. has 1. This decision was issued as an Cir. unpublished and now its decision as order. The defendant has since motion reissues requesting publication. published opinion. filed a motion See Notes N2743E[, Committee edly quit, helicopter piloted by that, with re- provide 803 to Fed.R.Evid. Jones], preceding and in the an perception of to a declarant’s spect months, there were attitude indica- two to event, only need ‘relate’ “the statement tors, gyros replaced. and three vertical condition, af- startling event or thus records, According company to fleet- subject scope of matter fording a broader wide, months, preceding in the Overall, the district court did coverage.” maximum number of attitude indicators admitting not abuse its discretion three, replaced on statement. gyros maximum number of vertical re- placed was six. Evidence Was d. Whether Greene’s trial, Greene introduced Exhibit No. at a Manufac- to Prove Sufficient Gyro titled “S-76 Removals” and Vertical turing Defect “S-76 Attitude Director Indicator Remov- argu of Goodrich’s At the heart als,” purports which summarize the that Greene failed position ment is its gyroscopes vertical ADIs PHI’s she proof her because meet burden removed, re- helicopter fleet an issue of fact for the failed to establish facility sent to a be- placed, repair and/or manufacturing defect jury that there awas through tween December June i.e., gyroscope, Good pilot’s in the vertical 14, 1999. review of the data con- Our evidence failed to says rich that Greene’s tained this exhibit does not seem proba possibility “tilt the balance from figures correlate with the recited above was a bility” and thus show there report. review of from the NTSB Our pilot’s vertical suggests that PHI re- Exhibit No. at 893. King, 209 F.3d gyroscope. See and 12 ADIs gyroscopes 32 vertical moved an of the record and exami After review in the rele- helicopters from some of its trial, agree at proofs nation of Greene’s Regardless of the period. vant six-month the evidence Greene with and ADIs gyroscopes total of vertical sum that there was a failed to show proffered removed, replaced, repaired that were gyro in a manufacturing defect the acci- preceding during the six months scope. however, dent, us that Greene it troubles to us Perhaps problematic what is most sug- argues.that the data from this exhibit indicat- heavy reliance on data is Greene’s number” of vertical gest “large gyroscopes the number of vertical ing failures. The vertical scope re- ADIs that had been removed and/or repair and ADIs for which there were