MEMORANDUM & ORDER
Presently pending before the Court in this wrongful death and survival action is the Motion for Partial Summary Judgment (Doc. 220) and the Motion for Summary Judgment (Doc. 252) of Defendant AVCO Corporation on behalf of its Lycoming Engines Division (collectively “Lycoming”). The Motions have been fully briefed (Docs. 223, 235, 249, 257, 269, 276, 292, 296) and are therefore ripe for our review. For all of the reasons fully articulated herein, we will grant in part and deny in part Lycoming’s Motions.
I. PROCEDURAL HISTORY
The parties and the Court are intimately familiar with the lengthy and complex procedural and factual predicate of this litigation and we thus recite only the most pertinent procedural points here. Plaintiff initiated this action on May 16, 2007 with the filing of a Complaint that asserted claims for strict liability, negligence, breach of warranty, concert of action, and misrepresentation against seventeen different Defendants
Several Defendants filed, or eventually joined in, a Motion for Judgment on the Pleadings on March 17, 2009. (Doc. 107). We granted in part and denied in part said motion after finding that the field of aviation safety is preempted by federal law and regulation. We thus dismissed Plaintiffs claims which were based on alleged
On August 31, 2010, within the prescribed twenty (20) day period, Plaintiff filed her First Amended Complaint. On September 17, 2010, Defendants AVCO and Lycoming Engines filed a Motion to Dismiss and/or Strike, (Doc. 165), Defendant Textron filed a Motion to Dismiss, (Doc. 166), and Defendants Precision Air-motive Corporation and Precision Airmotive LLC filed a Motion to Dismiss and/or Strike. (Doc. 167). On October 15, 2010, the Kelly Defendants filed their Motion to Dismiss. (Doc. 175).
On April 8, 2011,
On July 22, 2011, Lycoming filed a Motion for Determination of Applicable Law, (Doc. 219), seeking application of North Carolina law to all matters concerning liability in this litigation. On August 5, 2011, Lycoming filed the instant Motion for Partial Summary Judgment, seeking summary judgment on Count IV and Count VI to the extent that those causes of action relate to alleged defects in certain carburetor replacement components. (Doc. 220). On October 3, 2011, Lycoming filed a Motion for Summary Judgment on the remainder of the claims in Count IV and Count VI relating to alleged defects in the subject aircraft engine. (Doc. 252).
On October 14, 2011, Plaintiff filed a Motion to Supplement the Record with several recently-discovered AVCO admissions. (Doc. 256). By Order dated December 21, 2011, the Court granted the Motion to Supplement. (Doc. 279). Consistent with the Order’s mandate, on January 10, 2012, the Plaintiff filed a supplemental statement of facts (Doc. 280), and on February 3, 2012, Lycoming filed a responsive statement of facts. (Doc. 284).
On March 13, 2012, the Court ruled on Lycoming’s Motion to Determine Applicable Law and concluded that Pennsylvania law will apply to the liability portion of this action. (Doc. 288). In the Memorandum and Order denying the Motion, the Court noted that Lycoming had relied considerably on the application of North Carolina law in its Motions for Summary Judgment and thus granted the parties leave to supplement their briefs in light of
II. STANDARD OF REVIEW
Summary judgment is appropriate if the record establishes “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
In opposing summary judgment, the non-moving party “may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). The non-moving party “cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial.” Jones v. United Parcel Serv.,
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw therefrom. Peterson v. Lehigh Valley Dist. Council,
III. STATEMENT OF MATERIAL FACTS,
The following facts are derived from the record and viewed in the light most favorable to the Plaintiff in accordance with the standard of review applicable to a motion for summary judgment. Due to the factual complexity of this litigation and the familiarity of the parties and the Court with the record, we briefly state the pertinent facts herein and supplement them as necessary with additional facts throughout our analysis.
This action arises out of an aircraft accident involving a 1976 Cessna 172N airplane on July 10, 2005 at the Transylvania County Airport in Brevard, North Carolina. The accident resulted in the death of David Sikkelee (“the decedent”), hus
Lycoming designed and manufactured a certain 0-320-D2C aircraft engine, bearing serial number L-6590-39A (“engine S/N L-6590-39A” or “the subject engine”), in Williamsport, Pennsylvania. (Doc. 253, ¶ 1). Lycoming shipped the subject engine to Beagle Aircraft, Inc., on September 4, 1969. (Id. ¶ 2). The Lycoming 0-320 engine, S/N L-6590-39A, was installed on the Cessna 172N aircraft when it crashed on July 10, 2005. (Id. ¶ 3). Plaintiff admits that the carburetor that was installed on the Cessna 172N was not the same carburetor Lycoming shipped with the subject engine in 1969 but was instead a different carburetor. (Doc. 221, ¶ 5). The carburetor installed in the subject engine on the accident aircraft (“replacement carburetor”), a Precision MA-4SPA carburetor, was manufactured by the Precision Defendants and was completely overhauled by the Kelly Defendants on or about August 3-5, 2004. (Id. ¶ 6; Doc. 253, ¶ 5).
Lycoming holds the FAA-issued Type Certificate for the MA-4SPA model carburetors and the MA-4SPA carburetor at issue here was manufactured pursuant to Lycoming design, which cannot be modified or altered without approval from Lycoming (Doc. 234, ¶ 5). Defendant Precision and its predecessors were permitted to manufacture the carburetor pursuant to a licensing agreement with Lycoming. (Id.). The MA-4SPA carburetor design is not approved separately and is part of the Lycoming engine type design. (Id.).
As the holder of the Type Certificate for the engine, Lycoming approved and implemented the engineering change which effected the throttle body to bowl screw design at issue here in lieu of a safety wire assembly. (Id. ¶ 5, 22). This change was made in 1965. (Id. ¶ 22). Since 1972, Lycoming has been made aware of various reports of malfunctions and defects related to its 0-320 series engines and the MA-4SPA carburetors, specifically concerning loosening throttle body to bowl assemblies. (Id. ¶¶ 24-25).
The 2004 overhaul of the subject engine, including the overhaul of the carburetor, was accomplished pursuant to and required by Lycoming’s continued airworthiness instructions, which the FAA mandates Lycoming, as the Type Certificate holder for the entire engine design, maintain in compliance with federal aviation regulations. (Id. ¶¶ 5-6). The Kelly Defendants further complied with Lycoming’s Service Bulletin 366, which was intended to alleviate the known throttle body to bowl assembly defects. (Id. ¶ 6). Lycoming’s continued airworthiness instructions recommend that the carburetor be replaced at the time of the engine overhaul, and its Type Certificate Data Sheet (“TCDS”) instructs mechanics to use MA-4SPA replacement carburetors when overhauling this engine. (Id.). Accordingly, as required by Lycoming’s design, an MA-4SPA carburetor was installed on the subject engine during the 2004 overhaul.
The replacement carburetor on the subject engine at the time of the crash was a Lycoming-approved Marvel Schebler MA-4SPA model 10-5135 carburetor, which bore Lycoming part number, LW-13659. (Id.). Plaintiffs three experts conclude that the carburetor design was and is defective and dangerous. (Docs. 234-4, 234-
IV. DISCUSSION
As stated above, the only remaining causes of action sound in negligence and strict liability. As a threshold matter, Lycoming contends that both of these claims fail because the Plaintiff is unable to establish that Lycoming either manufactured, sold, or distributed a defective product. We first address this critical preliminary issue and, because we find that a reasonable jury could conclude that Lycoming was a de facto manufacturer of a defective product, proceed next to analyzing the remaining elements of the Plaintiffs negligence and strict liability claims.
A. Is There a Genuine Issue as to Whether Lycoming Manufactured, Distributed, or Sold an Allegedly Defective Product?
Under both of the Plaintiffs remaining causes of action, her burden of proof requires that she establish that Lycoming is a manufacturer, distributor, or seller of the allegedly offending product. See Mellon v. Barre-Nat’l Drug Co.,
Lycoming contends that it is entitled to summary judgment because, while it admittedly sold the subject engine in 1969, the allegedly defective replacement parts installed during the engine’s overhaul in 2004 were manufactured and sold by others, thus failing the prehminary requirement of a Pennsylvania products liability action. Indeed, Lycoming submits that its last physical “contact” with the product was in 1969. Lycoming asserts that the evidence is entirely “one-sided” and establishes that it did not manufacture, sell, distribute, or otherwise “place[] an allegedly defective product into the stream of commerce,” thus requiring entry of summary judgment in its favor on both of Plaintiffs remaining claims. (Doc. 249, pp. 10-11). Indeed, Lycoming submits that the facts are undisputed that it did not manufacture, distribute, sell, or otherwise cast into the stream of commerce the allegedly defective replacement carburetor and its component parts.
In support of this argument, Lycoming points to the following facts: that it manufactured the subject engine, S/N L-659039A, in 1969 (Doc. 253, ¶ 1); that said engine was installed on the subject Cessna 172N aircraft when it crashed on July 10, 2005 (Id. ¶ 3); that the carburetor installed at the time of the 2005 crash was not the
In sum, Lycoming contends, and Plaintiff does not dispute, that the Kelly Defendants manufactured, replaced, and shipped the carburetor and its component parts. (Docs. 221, ¶¶ 7-17). Lycoming asserts that its last physical contact with the product was in September of 1969 when it was shipped and placed in long-term storage and that Plaintiff has failed to prove that a defect existed at that time. On this point, we agree with Plaintiff, and will grant summary judgment to the limited extent that Plaintiffs claims may be construed to allege a defect in the engine in 1969. Plaintiff has offered no evidence, expert or otherwise, demonstrating that the engine was defective when it left the Lycoming’s Williamsport manufacturing plant in 1969 or that a defect existing at that time caused the 2005 aircraft accident.
However, while Plaintiff does not contest Lycoming’s factual recitation thus far, she does disagree with its ultimate legal conclusion — that Lycoming cannot possibly be deemed a manufacturer, seller, or distributor subject to liability for injuries purportedly caused by the allegedly defective carburetor in light of Defendant Precision’s manufacture and the Kelly Defendant’s overhaul of said product. As she must to satisfy her burden at the summary judgment level, Plaintiff points to several substantial facts of record which Lycoming omits in making its arguments seeking summary disposition of both claims and submits to the Court that they sufficiently support her claims and warrant submission of the case to a jury.
Specifically, Plaintiff points to the following: that the replacement carburetor on the subject engine at the time of the crash was a Lycoming-approved Marvel Schebler MA-4SPA model 10-5135 carburetor (Doc. 234, ¶ 5); that the MA-4SPA carburetor was manufactured by Defendant Precision and its predecessors pursuant to a licensing agreement with Lycoming (Id.); that MA-4SPA carburetors are assigned a Lycoming part number, LW-13659 (Id.); that Lycoming holds the FAA Type Certificate for the MA-4SPA model carburetors and that the MA-4SPA carburetor at issue here was manufactured pursuant to Lycoming design drawings, which cannot be modified or altered without approval from Lycoming (Id.); that Lycoming approved the allegedly defective throttle body to bowl screw design at issue here (Id.); that the subject engine and carburetor were overhauled in 2004 pursuant to Lycoming’s manual and Service Bulletin 366 (Id. ¶ 6); that Lycoming, in its continued airworthiness instructions, recommends that MA-4SPA carburetors be replaced when an engine is serviced or overhauled (Id.); and that Lycoming’s Type Certificate Data Sheet (“TCDS”) instructs mechanics to use MA-4SPA replacement carburetors when overhauling this engine. (Id.).
Lycoming’s argument, at first blush, appears sound. A tunnel vision approach to this case — considering Lycoming’s limited factual summary — indeed would likely conclude that Lycoming is not possibly a “manufacturer, distributor, or seller.” See Mellon,
In this Court’s opinion, it would entirely defy concepts of fairness and justice and run counter to the considered history of products liability policy to hold that a Type Certificate holder who exclusively controls the design and manufacture of replacement component parts and mandates the installation of said parts during an overhaul of its engine could escape liability for a defect in a component part simply because it is not physically involved in the manufacture and installation process. Indeed, in our opinion, sufficient evidence has been submitted from which a reasonable jury could find that, while Lycoming’s hands were not physically present in the plant during the manufacture or in the shop during the overhaul, its invisible
In an instructive and factually similar case, the Pennsylvania Supreme Court held that “the status of type certificate holder and/or designer fall under the umbrella of manufacturer for purposes of GARA.” See Pridgen v. Parker Hannifin Corp. (Pridgen I), 588 Pa.405,
Finally, we would be remiss to turn a blind eye to the public policy rationales which support products liability causes of action. Products liability actions grew out of the need to protect the public from harms most appropriately borne by the manufacturer and to apportion the burden of compensating for that harm to the party most able to bear the loss which, in the great majority of cases, is the negligent manufacturer. See, e.g., Polius v. Clark Equipment Co.,
A consideration of this public policy ultimately undermines Lycoming’s argument and highlights our conclusion that an injustice would be accomplished by permitting a company such as Lycoming to exercise so much control over the manufacturing process while at the same time immunizing itself from liability for defects resulting from its process. Lycoming does not deny that it designed the MA-4SPA carburetor, that its design must be complied with by the manufacturer to which it granted the design license, that the overhauling mechanic must comply with its design, or that the 2004 overhaul of its engine, including manufacture and installation of an MA-4SPA carburetor allegedly known to have been defective, was in fact accomplished pursuant to its binding designs and mandatory directives.
Ultimately, we agree with Sikkelee that questions of fact abound regarding whether or not Lycoming was the manufacturer of the overhauled engine in 2004. Indeed, to hold otherwise would be to immunize Lycoming from liability arising from defects within its own design. This Court declines to permit Lycoming to shift liability for a defective engine to its physical component part manufacturers and overhauling mechanics simply by physically removing itself from the overhaul process even though its directives control every aspect of said process. Such a decision would fly in the face of justice and defeat the long-established purposes of products liability actions. It is clear to this Court that the record contains ample evidence from which a reasonable finder of fact could conclude that Lycoming is, in essence, a de facto manufacturer of the allegedly defective engine upon its 2004 overhaul, subjecting it to products liability under Pennsylvania law.
B. Strict Liability
Our inquiry does not end with the determination that a reasonable jury could find that Lycoming is a manufacturer with regard to the 2004 engine overhaul. Strict liability also requires a showing that the product was defective and that the defect was the proximate cause of the plaintiffs injuries. However, as exemplified by the parties fervid briefing of the issue, the parameters of the strict liability requirements in Pennsylvania have, for some time, been in a state of flux.
As Lycoming correctly observes, the Third Circuit has twice predicted that the Pennsylvania Supreme Court, when presented with the opportunity to do so, will adopt the Restatement (Third) of Torts (“Restatement Third”) to supplant the Restatement (Second) of Torts (“Restatement Second”). See Covell v. Bell Sports, Inc.,
In Bugosh v. I. U. North Am., Inc.,
Shortly after Berrier was decided, the Supreme Court of Pennsylvania, after extensive argument, dismissed the Bugosh appeal as improvidently granted; it thus did not decide whether the Restatement Third should definitively become the governing law in Pennsylvania. Not long thereafter, this Court was presented with the question of whether the Restatement Third or Restatement Second should be applied in a diversity action governed by Pennsylvania law in light of the Berrier and Bugosh actions. In Milesco v. Norfolk S. Corp.,
As we made clear in our decision in Milesco in addressing the conflicting interpretations of the Bugosh and Berrier interplay, the Third Circuit’s prediction in Covell is binding upon federal district courts sitting in diversity absent an affirmative indication from the Pennsylvania Supreme Court that it intends to retain the Restatement Second as the law in Pennsylvania. In our opinion, this indication was provided in Beard v. Johnson &
Consistent with our rationale in Milesco, we believe that the Pennsylvania Supreme Court, by again declining to take advantage of the opportunity to adopt the Restatement Third, has indicated that the Restatement Second remains the law in Pennsylvania. Indeed, Justice Baer, in a concurring opinion, expressly observed the same, stating that “the current law of Pennsylvania ... is Section 402A of the Restatement Second.” Id. at 839 (Baer, J., concurring). Accordingly, we will apply the dictates of the Restatement Second in resolving the strict products liability questions in this action.
In Pennsylvania, a manufacturer “is effectively the guarantor of his products’ safety.” Salvador v. Atlantic Boiler Co.,
Under Pennsylvania’s interpretation of the Restatement Second, “the jury may find a defect where the product left the’ supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Azzarello v. Black Bros. Co.,
1. Design Defect
In Azzarello v. Black Bros. Co.,
Lycoming first submits that Plaintiff cannot prevail on her design defect allegations because Lycoming did not manufacture the allegedly defective part. Having already determined that Lycoming might
Lycoming’s argument not only blatantly mischaracterizes Plaintiffs contentions, but also treads dangerously on the precipice of disingenuity. A review of the record and Plaintiffs submission clearly evidences that the Plaintiffs contention has continually been that the throttle body to bowl system incorporated in the carburetor renders the entire engine defective, that alternative options such as a safety wire would have been safer than the throttle body to bowl system, and that three experts have opined that the defect was not the mere fact of a carburetor system as opposed to a fuel-injected system, but the loosening of the throttle body to bowl assembly utilized by that carburetion system. Accordingly, Lycoming’s only argument in this respect is without merit.
Plaintiff, on the other hand, provides abundant evidence to satisfy her burden at the summary judgment stage. Plaintiffs experts have concluded that the defective throttle body to bowl assembly— installed pursuant to Lycoming’s Type Certificate design for its 0-320 engine— was the cause of the accident.
Mr. Donald E. Sommer, P.E., also reviewed the history of the loosening throttle body to bowl assemblies. (Doc. 234-6, pp. 15-20). He investigated the subject engine after the crash and noted that the carburetor bowl screws were indeed loose. (Id.). After investigation, Mr. Sommer concluded that “[t]he accident 0-320 MA-4SPA carburetor is unreasonably- dangerous and caused the death of David Sikkelee,” that Lycoming “failed to exercise reasonable care in the design, manufacture, and support of the accident aircraft’s engine and carburetor,” and that Lycoming’s 0-320-
Lycoming has thus failed to present any law or evidence to this Court which requires summary dismissal of the Plaintiffs design defect claim. Plaintiff has established by expert and other evidence that a design defect existed which a jury could reasonably conclude was the proximate cause of the accident. Plaintiff has further demonstrated that alternative designs were feasible and contemplated but, ultimately, rejected by Lycoming in favor of the defective throttle body to bowl assembly herein at issue. Thus, as Plaintiff has overcome her burden and presented evidence which, viewed in a light most favorable to her, creates genuine issues of fact to be determined by a jury, we will deny summary judgment on the Plaintiffs design defect claims.
2. Failure to Warn
A manufacturer is subject to failure to warn liability where a product contains a defect and “was distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product.” Donoughe v. Lincoln Elec. Co.,
Lycoming again relies on its contention that it is not a “manufacturer” and thus fails to offer any evidence to disprove or dispute Plaintiffs allegation that it should have, and failed to, provide warnings regarding the defective carburetor design incorporated in its 0-320 series engines advising potential users of the known dangers associated with the loosening throttle body- to bowl assembly. Instead, Lycoming maintains only that it did not “manufacture” the product, an argument disposed of above.
Plaintiff cites to Lycoming’s continuing airworthiness instructions and manual, void of any warning with respect to the defective carburetor design, as proof that Lycoming has failed to warn of a dangerous defect. Further, Plaintiff notes a complete lack of reports to the FAA regarding the various defects and malfunctions regarding the throttle body to bowl assembly. Without any argument or contradictory evidence presented by the Defendant to prove otherwise, ample evidence exists to put this issue to the jury. The evidence, viewed in a light most favorable to the Plaintiff, establishes a dearth of warnings from Lycoming with respect to an allegedly defective product, sufficient to survive summary judgment on her failure to warn claim.
C. Negligence
As with the strict liability claim, our negligence analysis is not complete simply because genuine issues of material fact remain with respect to Lycoming’s manufacturer status. Lycoming additionally contends that the Plaintiff has failed to establish the remaining elements of its negligence claim- — that is, Lycoming asserts that Plaintiff has failed to submit evidence from which a jury could conclude that it breached an applicable standard of care and that said breach resulted in defects that proximately caused Plaintiffs injuries. (Doc. 276, pp. 7-9).
Lycoming states, correctly, that the Plaintiffs burden of proof on a strict liability negligence claim is to “show
We have previously held that federal standards of care promulgated by the FAA apply in aviation cases such as this one and accordingly granted the Plaintiff leave to amend her negligence claims in order to fully state the federal standards which she believes control. See Sikkelee v. Precision Airmotive Corp.,
— by not submitting truthful submissions to the FAA, including mandated reports of malfunctions and defects, in violation of 14 C.F.R. §§ 21.2, 21.3, 21.14, 21.21, 33.35, and 33.4;
— by incorporating design features or details which experience has shown to be hazardous or unreliability in violation of 14 C.F.R. § 33.15 and CAR § 13.100, 13.101, and by willfully concealing the same from the FAA in violation of mandatory reporting requirements
— knowingly designing or constructing an engine part which permits an unsafe condition of the engine between overhaul periods in violation of 14 C.F.R. § 33.19 and Civil Air Regulation (“CAR”) § 13.104
— by designing and constructing a fuel supply system which did not ensure an appropriate mixture of fuel to the cylinders under all flight and atmospheric conditions in violation of 14 C.F.R. § 33.35 and CAR § 13.110
— by issuing continued airworthiness instructions which were defective as to the throttle body to bowl assembly for the MA-4SPA carburetor in violation of 14 C.F.R. § 33.4
— by holding the Type Certificate for a defective product and failing to report known malfunctions to the FAA regarding that defective product within twenty-four (24) hours after it discovered said malfunctions in violation of 14 C.F.R. §§ 21.3, 21.303;
— by operating as an FAA licensed and certified repair facility and failing to make known to the FAA the defect in the carburetor design within ninety-six (96) hours of discovery of the defect in violation of 14 C.F.R. § 145.221(a);
— and by knowingly misrepresenting and willfully concealing the defect in the throttle body to bowl screws and attachment problems to the FAA in violation of 14 C.F.R. § 21.3.
The Plaintiff contends that, as an entity causing a product to be cast into the stream of commerce, Lycoming had the duty to abide by the above regulations. The parties’ briefs focus primarily on the issue of whether or not Lycoming is a
To establish breach of the above standards, Plaintiff cites to the following facts: Lycoming approved the design change to the throttle body to bowl screw and assembly at issue while there were feasible design alternatives available (Doc. 268, ¶ 15); Lycoming required the defective throttle body to bowl screw and assembly at issue to be utilized by overhaulers such as the Kelly Defendants when overhauling the 0-320 engine (Id. ¶ 17); Lycoming issued SB 366 in attempt to alleviate the problem of loosening throttle body to bowl screws on MA-4SPA carburetors in its 0-320 engines (Id. ¶ 19; Doc. 234-10); and Lycoming did not report this known defect to the FAA (Doc. 268, ¶¶ 7-8). Further, Plaintiff’s experts, including an aircraft certification consultant and licensed mechanical engineers involved in forensic engineering and aircraft accident reconstruction, concluded that the 0-320 engine at issue in this case was rendered defective by the mandated inclusion of a carburetor known to be defective. (Id. ¶ 20 (citing Doc. 234-5, pp. 22-26; Doc. 234-6, pp. 15)).
To prove that Lycoming was aware of the defect, Plaintiff points to two letters from Precision Airmotive to Mr. Rick Moffett at Lycoming on September 8, 2004 and November 8, 2004 advising Lycoming, as the Type Certificate holder for MA-4SPA carburetors, of loose throttle body to bowl issues related specifically to the Lycoming 0-320 engine which had been occurring since Lycoming made the design change in 1965; the letter asked that Lycoming, as the Type Certificate holder, help research and alleviate the problem. (Doc. 268, ¶ 19 (quoting Doc. 234-14, pp. 3-4)). During his deposition, Mr. Moffett confirmed receipt of these letters; he stated that he may have forwarded the letter to the legal department, but took no other action. (Id. ¶ 22-23 (citing Doc. 234-7, pp. 74-75, 86-87)).
This evidence, viewed in the light most favorable to Plaintiff as it must be at this stage, creates a genuine issue of material fact with respect to Lycoming’s alleged breach of federal standards of care governing it. A reasonable trier of fact could find from this evidence that Lycoming manufactured a defective product in violation of the FAA’s regulations and that it was aware of the defect and failed to remedy it or notify the FAA as mandated by federal law.
Finally, we reach the question of causation. Based on the evidence presented to the Court by the Plaintiff, it is clear that questions of fact remain with respect to the issue of causation and that the question is thus undisputably within the province of the jury and not the Court. Plaintiff has provided ample evidence from which a reasonable trier of fact could conclude that the defective engine was the cause of the 2005 aircraft accident from which Plaintiffs injuries arose, most specifically, the following.
Plaintiffs experts have concluded that the defective throttle body to bowl assembly installed pursuant to Lycoming’s instructions on Lycoming’s 0-320 engine was the cause of the accident. Richard H. McSwain, Ph.D., P.E., concludes in his report that the “Lycoming LW-13659, Model MA-4SPA, carburetor has multiple failure modes that are related to design, materials selection, and construction that have the potential to cause in-service carburetor and engine malfunction” and that the
The report of Mr. Donald E. Sommer, P.E., is perhaps the most inculpative. Mr. Sommer reviewed the considerable history of the loosening throttle body to bowl assemblies and Lycoming’s decades-long knowledge thereof. (Doc. 234-6, pp. 15-20). In addition, he investigated the subject engine and crash site, noting that the carburetor bowl screws were indeed loose at the time of the accident and concluding that “[t]he accident 0-320 MA-4SPA carburetor is unreasonably dangerous and caused the death of David Sikkelee.” (Id. pp. 15-20, 34). He further reports that Lycoming’s continued airworthiness instructions for the carburetor were defective, that Lycoming “failed to exercise reasonable care in the design, manufacture, and support of the accident aircraft’s engine and carburetor,” and that the 0-320-D2C engine “is a defective engine due to the incorporation of the Precision MA-4SPA carburetor.” (Id.).
By presenting this evidence to the Court, the Plaintiff has created a genuine issue of material fact for the jury with respect to whether Lycoming breached the applicable federal standards of care by negligently designing a defective product that proximately caused the death of the Plaintiffs decedent and substantial injury to the Plaintiffs brother. Accordingly, we will deny Lycoming’s Motion as it pertains to Plaintiffs negligence claim.
V. CONCLUSION
For all of the reasons articulated above, we will grant Lycoming’s Motions to the extent that they relate to the 1969 engine manufacture as the Plaintiff has failed to present any evidence which indicates that the engine as it left Lycoming’s plant in 1969 was defective. All the same, for the reasons detailed at length above, the Court finds that genuine issues of material fact remain with regard to whether Lycoming is a manufacture relative to the defective carburetor and overhaul of the engine in 2004, whether a defect existed, and whether said defect proximately caused the Plaintiffs injuries. We will thus deny the Motions to the extent they relate to the 2004 overhaul of the subject engine.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Lycoming’s Motion for Partial Summary Judgment (Doc. 220) and Motion for Summary Judgment (Doc. 252) are GRANTED to the extent that they seek judgment as a matter of law with respect to the condition of the engine in 1969.
2. Lycoming’s Motion for Partial Summary Judgment (Doc. 220) and Motion for Summary Judgment (Doc. 252) are DENIED in all other respects. The case shall proceed on the negligence and strict liability design defect theories asserted by the Plaintiff as they relate to the 2004 engine overhaul.
3. The parties SHALL FILE a stipulation identifying new case management deadlines in accordance with the Court’s calendar, as attached hereto, within twenty (20) days of today’s date.
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Notes
. The Complaint places the seventeen Defendants into three different groups: the Precision Defendants, the Kelly Defendants, and the Lycoming Defendants. The Precision Defendants include: Precision Airmotive, LLC; Precision Airmotive Corporation; Precision Aerospace Corporation; Precision Aerospace Services fk/a Precision Aerospace Group, LLC; Precision Aviation Products Corporation and Precision Products, LLC; Former Fuel Systems, Inc. fk/a Facet Fuel Systems, Inc.; and Mark IV Industries, Inc. The Kelly Defendants include: Kelly Aerospace, Inc., Kelly Aerospace Power Systems, Inc., Consolidated Fuel Systems, Inc., and Electrosystems, Inc., which merged with Consolidated Fuel Systems, Inc. The Lycoming Defendants include: Textron, Inc.; AVCO Corporation; and Textron Lycoming Reciprocating Engine Division, a division of AVCO Corporation.
. Throughout the pendency of the litigation and the above-noted motion practice, all Defendants, with the exception of Defendant AVCO, on behalf of Defendant Lycoming Engines, have been terminated from the action. On July 13, 2010, the Court approved a settlement between Plaintiff and the Kelly Defendants. (Doc. 146). Defendant Textron was terminated from the action on November 2, 2010, pursuant to a Stipulation of Dismissal. (Doc. 184). Defendants Precision Aerospace Corporation, Precision Aerospace Services, LLC, Precision Aviation Products Corporation, Precision Products LLC, Zenith Fuel Systems LLC, Former Fuel Systems, Inc., and Mark IV Industries, Inc., were terminated on April 20, 2011.
. Likewise compelling language is found in a 1972 letter the FAA provided to Lycoming with reports of malfunctions within its Marvel Schebler carburetor designs. That letter notes the following: “Marvel Schebler carburetors are a part of the engine type design and
. Relatedly, Plaintiff contends that Lycoming’s continued airworthiness instructions, which specifically require the defective throttle body to bowl screws and lock tab washers, and which Defendant Kelly was required to follow in overhauling the engine, are also defective and independently support a products liability action. Based upon our analysis herein, we find that the instructions themselves, including Lycoming's overhaul manuals, continued airworthiness instructions, and service bulletins, are part of the design defect itself which led to the ultimate "manufacture” of the defective engine upon its overhaul in 2004. Accordingly, we find it unnecessary to distinguish between the instructions and the product as the ultimate design defect is a culmination of the two.
. Indeed, Beard makes it abundantly clear that there remains an ideological split within the Pennsylvania Supreme Court relative to adoption of the Restatement Third. The Third Circuit's prediction in Coveil assumed the formation of a consensus that has not yet crystalized.
. In its brief in Brief in Support of Motion for Summary Judgment (Doc. 257), Lycoming contends that Plaintiff's expert reports consist entirely of legal conclusions and that their opinions are thus inadmissible. See, e.g., Berckeley Inv. Grp. v. Colkitt,