Ballenger v. Sikorsky Aircraft Corporation, et al

Filing 279

OPINION AND ORDER that defendant Aeronautical Accessories, Inc.'s 209 Motion for Reconsideration is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 11/18/2011. (Attachments: # 1 Civil Appeals Checklist) (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ANN L. BALLENGER,
individually and as
Administratrix of the
Estate of Thomas
Ballenger, deceased, and
MARY ANNA WOEPPEL,
Plaintiffs,
v.
SIKORSKY AIRCRAFT
CORPORATION, a foreign
Corporation, et al.,
Defendants.

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CIVIL ACTION NO.
2:09cv72-MHT
(WO)

OPINION and ORDER
On November 4, 2011, this court denied a motion for
summary

judgment

filed

Accessories, Inc. (AAI).

by

defendant

Aeronautical

The court concluded that there

was a genuine dispute of a material fact: whether the
AAI-manufactured windshield fractured after being hit by
a hawk.

Ballenger v. Sikorsky Aircraft Corp., 2011 WL

5358552 (M.D. Ala. Nov. 4, 2011).
reconsideration of that decision.

AAI now moves for

AAI’s primary argument is that the court improperly
relied on a National Transportation Safety Board (NTSB)
“safety recommendation.”
Doc. No. 156-3.

NTSB Safety Recommendation,

The court notes that AAI’s reply brief

did not object to plaintiffs’ submission of the NTSB
safety

recommendation.

While

a

federal

statute,

49

U.S.C. § 1154(b), limits the types of NTSB reports that
may be used in civil litigation and there is a question
as to whether the court relied on it inappropriately,
AAI’s objection comes too late.
Even

if

the

NTSB

safety

recommendation

is

inadmissible, the court would reach the same conclusion.*

* AAI’s second ground for reconsideration is that the
summary-judgment opinion emphasized that the plaintiffs’
expert reports were produced without examination of the
windshield. AAI objects to this true proposition because
it finds the point misleading.
While it is also true
that these same experts subsequently examined the
windshield and concluded that Sikorsky’s throttle design
caused the crash, the court’s purpose in mentioning the
objected-to fact was to put the plaintiffs’ initial
expert reports in context.
AAI’s final objection is to the use of Sikorsky
produced reports as evidence to support plaintiffs’
(continued...)
2

In addition to the reasons given in the summary-judgment
opinion, there is considerable evidence in the record
establishing a genuine dispute about whether the AAImanufactured

windshield

fractured.

To

take

a

few

examples:
!

Christopher
Lowenstein, Sikorsky’s
representative on the accident investigation
team, stated that the cause of the crash was the
“rupture of the windshield.”
Lowenstein
Deposition, Doc. No. 160-6, at 3. Lowenstein
further concluded that the throttle-control
malfunction could have been corrected but for
the windshield rupture. Id. at 3-4. According
to Lowenstein, the windshield failure and
“subsequent on-rush of 140-knot wind ...
disoriented the pilot ... [and] prevented them
from responding as a normal pilot would.” Id.
at 9.

!

Another
Sikorsky
expert,
Rocco DiGenova,
testified that AAI’s cast acrylic windshield is
inferior to the original windshield installed by
Sikorsky. DiGenova Deposition, Doc. No. 160-4,
at 4.

*(...continued)
claims.
But, as the court explained in its prior
opinion, the summary-judgment inquiry is directed at
whether the evidence in the record creates a genuine
dispute of material fact; the identity of the party who
submitted that evidence is immaterial to whether the
evidence can be examined. Ballenger, 2011 WL at *2 n.*.
3

!

Sikorsky
pilot
consultant
Charles
Evans
attributed the accident, in part, to “the
corrupted pilot environment due to wind flow and
noise affecting both pilots.”
Evans Report,
Doc. No. 160-8, at 7.
Evans’s report
hypothesized a crash scenario in which the
“windshield is breeched” following the hawk
strike. Id. at 6.

!

Doctor Moore testified that the AAI windshield
had been improperly approved by the FAA and that
its failure was the cause of the accident.
Moore Deposition, Doc. No. 183-3, at 6.
*

Accordingly,
Aeronautical

it

*

is

Accessories,

*
ORDERED

that

Inc.’s

defendant

motion

reconsideration (Doc. No. 209) is denied.
DONE, this the 18th day of November, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

for