Petroleum Helicopters Inc v. Apical Industries Inc et al

Filing 221

MEMORANDUM RULING re 202 Motion for Partial Summary Judgment and 209 Motion for Leave Requesting Permission to Submit a Confidential Affidavit to the Court for In Camera Review. Considering the evidence, the briefs, the arguments of counsel, an d the applicable law, and for the reasons explained herein, the plaintiff's motion for partial summary judgment is denied, and the defendants' motion for in camera review of a confidential affidavit is denied as moot. Signed by Magistrate Judge Patrick J Hanna on 9/15/2017. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
PETROLEUM HELICOPTERS, INC.

CIVIL ACTION NO. 6:13-cv-00015

VERSUS

MAGISTRATE JUDGE HANNA

APICAL INDUSTRIES, INC., ET AL.

BY CONSENT OF THE PARTIES

MEMORANDUM RULING
Currently pending is the motion for partial summary judgment, which was filed
by the plaintiff, PHI, Inc. (Rec. Doc. 202). The motion concerns three of defendant
Apical Industries, Inc.’s affirmative defenses and the value of the helicopter that was
lost in the incident underlying this lawsuit The motion is opposed. Also pending is
the related motion for leave to submit a confidential affidavit to the court for in
camera review, which was filed by the defendants Apical Industries, Inc. and
Offshore Helicopter Support Services, Inc. (Rec. Doc. 209). The motion for leave
has to do with the defendants’ opposition to the plaintiff’s motion for partial summary
judgment concerning the value of the helicopter. The motion for leave is also
opposed. Considering the evidence, the briefs, the arguments of counsel, and the
applicable law, and for the reasons explained below, the plaintiff’s motion for partial
summary judgment is denied, and the defendants’ motion for in camera review of a
confidential affidavit is denied as moot.

FACTUAL BACKGROUND
On December 1, 2011, engine failure forced a helicopter owned and operated
by PHI to make an emergency landing in the Gulf of Mexico. During the emergency
landing, the pilot inflated skid-mounted floats that were designed to keep the
helicopter from sinking. The float system failed, and the helicopter was lost.
Defendant Apical Industries, Inc. allegedly designed, manufactured, and sold the float
system. PHI seeks to recover from Apical and others for the loss of the helicopter.
ANALYSIS
A.

THE APPLICABLE STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

is appropriate when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the
applicable governing law.1 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.2

1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000).
2

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252); Hamilton v. Segue Software, Inc., 232 F.3d at 477.
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The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
demonstrate the absence of genuine issues of material fact.3 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the
existence of a genuine issue of a material fact.4 All facts and inferences are construed
in the light most favorable to the nonmoving party.5
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's
claim.6 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.7

3

Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
4

Washburn v. Harvey, 504 F.3d at 508.

5

Brumfield v. Hollins, 551 F.3d at 326 (citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986)).
6

Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. at 325).
7

Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).
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B.

GENUINELY DISPUTED MATERIAL FACTS PRECLUDE SUMMARY JUDGMENT
WITH REGARD TO APICAL’S WARRANTY DEFENSES
The first issue presented in PHI’s motion is whether Apical should be permitted

to maintain its defense that its warranty obligations to PHI with regard to the subject
float system are limited in accordance with written warranty documents (Thirteenth
Defense), contracts or writings between the companies (Fourteenth Defense), or
purchase orders or invoices for the subject float system (Fifteenth Defense). Apical
claims that its obligations to PHI are limited in accordance with the terms and
provisions of the “Apical Industries Emergency Float Raft System Warranty.” (Rec.
Doc. 202-7 at 2). In particular, the written warranty document places twelve-month
and eighteen-month time limits on Apical’s warranty obligations. Since the float
system at issue in the lawsuit was purchased by PHI in 2005 and the helicopter was
lost in 2011, application of the time limits in the warranty document would preclude
PHI’s recovery against Apical. The warranty document also contains other provisions
limiting the scope of the warranty.
Under Louisiana law, a defendant may rely on the exclusion or limitation of a
warranty, including a warranty against redhibitory defects, if the waiver is written in
clear and unambiguous terms, set forth in a contract of sale or similar document, and

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brought to the attention of the buyer at the time of the sale.8 Apical has the burden
of establishing the existence of an applicable and valid warranty waiver.9 Whether
there is an effective waiver of warranty is a question of fact.10
PHI argued that the deposition testimony of Tom Yakubovich and Bob
DesRosiers established that the warranty document relied upon by Apical was never
provided to PHI and its terms and provisions consequently were unknown to PHI.11
Apical countered that argument by directing this Court to inconsistent portions of Mr.
Yakubovich’s and Mr. DesRosiers’s deposition testimony and submitting evidence
that PHI made warranty claims against Apical and therefore must have been aware
of both the existence of the warranty and the terms of the warranty. Additionally,
Apical submitted the affidavit of its vice president and general manager, Gordon Hill,
who stated that all sales of Apical emergency floatation systems and individual
components of such systems are subject to the terms of the Apical Industries
Emergency Float Raft System Warranty.12

Based on the competing evidence

8

Louisiana Civil Code Article 2548; see, also, e.g., Fontenot v. F. Hollier & Sons, 476
So.2d 1379, 1386 (La. App. 3 Cir. 1985).
9

Tucker v. Petroleum Helicopters, Inc., 2008-CA-1019 (La. App. 4 Cir. 03/23/09), 9
So.3d 966, 970, writ denied, 2009-C-0901 (La. 06/19/09), 10 So.3d 736.
10

Tucker v. Petroleum Helicopters, Inc., 9 So.3d at 970.

11

Rec. Doc. 202-8; Rec. Doc. 202-9; Rec. Doc. 202-10.

12

Rec. Doc. 208-4 at 1-2.
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submitted, this Court finds that there is a genuine issue of material fact concerning
whether an effective waiver of warranty exists. Therefore, to the extent that PHI’s
motion seeks partial summary judgment with regard to Apical’s thirteenth, fourteenth,
and fifteenth affirmative defenses, the motion is denied.
C.

GENUINELY DISPUTED FACTUAL ISSUES PRECLUDE SUMMARY JUDGMENT
WITH REGARD TO THE VALUE OF THE HELICOPTER
This case is scheduled for a jury trial in November 2017. After hearing the

testimony presented at the trial, the jury will decide whether PHI should be
compensated by Apical for the loss of the helicopter, and if so in what amount.
Evidence will likely be presented at trial concerning the value of the helicopter at the
time of the crash. In its briefing, PHI explained that it intends to present an expert
witness, Sharon Desfor, to testify at trial as to her opinion of the value of the
helicopter at the time it was lost. Ms. Desfor was deposed in the companion lawsuit,13
and she stated that, in her opinion, the helicopter had a value of $2.18 million. PHI
argues that Ms. Desfor’s opinion should be accepted as undisputed fact because
Apical has not engaged the services of an expert to provide a different valuation of
the helicopter and because Apical has not offered any facts supporting a different
valuation. Apical countered that the helicopter’s value is disputed and that it intends

13

This Court declines the opportunity to consider whether the deposition was noticed
in this action as well as in the companion suit.
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to cross-examine Ms. Desfor at trial regarding the methodology she used to calculate
the value of the helicopter and the assumptions that she relied upon when employing
that methodology.
An expert’s opinion is not a fact; it is merely an opinion. The purpose of expert
testimony is to assist the factfinder in understanding the evidence or determining a
fact in issue.14 To accomplish that purpose, an expert’s opinion should be relevant15
and it should be reliable, meaning that the testimony is: (1) based upon sufficient
facts or data; (2) the product of reliable principles and methods; and (3) offered by
a witness who has applied the principles and methods reliably to the facts of the
case.16 The opposing party has the right to cross examine an expert and to explore the
assumptions, facts, and methodology underlying the expert’s opinion, and a jury is
free to weigh an expert’s credibility and to accept or reject an expert’s opinion
testimony.17
“[A]t the summary judgment stage the judge's function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is

14

Fed. R. Evid. 702(a).

15

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993).

16

Fed. R. Evid. 702.

17

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th 2002).
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a genuine issue for trial.”18 This Court finds that there is a genuinely disputed factual
issue concerning the helicopter’s value and further finds that the appropriate way to
resolve that dispute will be to have Ms. Desfor testify at trial where she can be
examined and cross-examined and the jury can decide whether and to what extent her
opinions should be credited. Accordingly, to the extent that PHI’s motion seeks in
its motion for partial summary judgment to have Ms. Desfor’s opinion accepted as the
value of the helicopter, the motion is denied.
D.

THE DEFENDANTS’ MOTION
AFFIDAVIT

FOR

LEAVE

TO

SUBMIT

A

CONFIDENTIAL

Apical and OHS seek permission to submit an affidavit for in camera review
concerning Ms. Desfor’s valuation of the helicopter. In their briefing, they argued
that if this Court were to deny PHI’s motion with regard to Ms. Desfor’s opinion, this
motion could be denied as moot. Have already concluded that PHI’s motion
regarding Ms. Desfor’s valuation of the helicopter should be denied, this Court denies
the defendants’ related motion as moot.

CONCLUSION

18

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
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For the foregoing reasons, the plaintiff’s motion for partial summary judgment
(Rec. Doc. 202) is DENIED, and the defendants’ motion for leave (Rec. Doc. 209)
is DENIED AS MOOT.
Signed at Lafayette, Louisiana, this 15th day of September 2017.

___________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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