West v. Bell Helicopter Textron, Inc. et al

Filing 411

ORDER denying 349 Motion for New Trial, Re-file of the Motion for a New Trial filed on 10/28/2013, in accordance with this Court's order of 10/30/2013; denying 396 Motion Plaintiff's Motion Pursuant to Fed. R. Civ l P. 60(b)(2) and (3) for Relief from Judgment and for a New Trial, or in the Alternative for a Preliminary Evidentiary Hearing to Determine Whether Information was Improperly Withheld from Plaintiff and the Court Before and During Trial. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kurt West
v.

Civil No. 10-cv-214-JL
Opinion No. 2014 DNH 208

Bell Helicopter
Textron, Inc. et al.
MEMORANDUM ORDER
This products liability action presents a staggering
disconnect between the severity of the plaintiff’s claimed
injuries--for which he claimed only $7,000 in recoverable medical
expenses and no other monetary damages--and the resources
expended in his pursuit of compensation for those injuries.1
Among other things, the plaintiff, Kurt West, brought claims
against four different defendants (one of whom was dismissed from
the case in the early stages for lack of personal jurisdiction,
see Fed. R. Civ. P. 12(b)(2)); subjected the remaining defendants
to requests for the production of documents, see Fed. R. Civ. P.
34, which, they say, cost more than $800,000 to answer in total;
took numerous depositions; filed a dozen pre-trial motions in
limine, including challenges to the defendants’ designated expert
witnesses; and, ultimately, proceeded to trial before a jury,
which took three weeks.
At the end of the trial, the jury found in favor of the
defendants on West’s claims, which arose out of an accident that

1

For a description of the plaintiff’s claimed damages, see
infra at 3-4.

occurred in a helicopter he was piloting on behalf of his
employer in December 2008.

West’s claims alleged that the

helicopter had crashed due to its defective design by the
defendants:

Bell Helicopter Textron, Inc., which manufactured

the helicopter, a Bell 407 model; Rolls Royce Corporation, which
manufactured the engine; and Goodrich Pump & Engine Control
Systems, Inc. (“Goodrich” or “GPECS”), the corporate successor to
the entity that manufactured the helicopter’s electronic control
unit (“ECU”), part of the engine’s full authority digital engine
control (“FADEC”).

Because West is a citizen of a different

state than any of these corporations, this court has jurisdiction
under 28 U.S.C. § 1332(a)(1) (diversity).
At trial, West argued that the ECU falsely registered a
short circuit in one of its electronic components as an
“overspeed” event (i.e., the rotor was spinning too fast),
triggering the closure of a fuel shutoff valve, or solenoid--a
phenomenon known as “false overspeed solenoid activation,” or
“FOSSA.”

This in turn, caused the engine to “flame out” (i.e.,

lose power), forcing West, a professional pilot, to land the
helicopter through a technique known as “autorotation”--which he
did, on a residential street in Bow, New Hampshire, resulting in
physical and psychological injuries to himself.
The defendants, for their part, agreed that the engine in
West’s helicopter had flamed out and necessitated what they

2

termed his “hard landing,” but argued that the flame-out was not
the result of any defect in the ECU.

Instead, they maintained,

the engine flamed out because it ingested ice or snow that West
and a co-worker had failed to properly clean from the helicopter
before West’s flight.
The defendants also disputed the nature and extent of West’s
claimed injuries.

West was diagnosed with post-traumatic stress

disorder, and testified that this has manifested itself in (among
other symptoms) reliving the accident through a vivid and
disturbing dream he had experienced nearly every night since.
But the defendants emphasized that West had resumed working as a
commercial helicopter pilot shortly after the accident--which
required him to, among other things, practice the same
autorotation procedure he had used in the accident at a training
course just three weeks later--and had not sought medical
attention for his alleged nightmares and other psychological
problems until September 2010, some 20 months after he said the
daily nightmares had begun, and nearly 3 months after he had
filed this lawsuit.

West also continued flying, as a

professional pilot, the very same model of helicopter that was
involved in his accident and that, accordingly, was the subject
of his daily nightmare, and photographs were introduced at trial
(having been posted on his Facebook account) of West apparently
enjoying himself while flying.

Ultimately, West claimed just

3

$7,000 or so in recoverable medical expenses, and nothing in lost
wages or other special damages, due to the accident.
Over the fifteen days of trial, the jury heard testimony
from several designated expert witnesses, as well as other
evidence, supporting the parties’ conflicting theories as to the
cause of West’s accident.

After nearly two full days of

deliberations, the jury returned with a verdict for the
defendants, as noted at the outset, finding that West had failed
to prove his claims of negligence and strict liability by a
preponderance of the evidence.

This court then entered judgment

for the defendants on the jury’s verdict, together with the entry
of judgment for the defendants as a matter of law, see Fed. R.
Civ. P. 50(a)(1), on West’s claims for breach of the implied
warranty of fitness for a particular purpose and West’s
negligence claim against Bell, as well as any theory that the
defendants had failed to warn him of the risks of a FOSSA event.
Nevertheless, West’s dogged pursuit of compensation for his
injuries continues.

He now seeks a new trial, see Fed. R. Civ.

P. 59, as well as relief from the judgment against him, see Fed.
R. Civ. P. 60(b).

West does not claim that the verdict was

against the weight of the evidence.

But these motions raise a

number of other issues, and their breadth (together with the
length of the trial and the complexity of the subject-matter) has

4

necessitated the overall lengthy discussion here.
less to West’s motions than meets the eye.

Yet there is

Specifically:

• West claims that this court erred by redacting, from
memoranda from Goodrich to Rolls Royce that were admitted
into evidence, statistics as to the anticipated rate at
which FOSSA would occur, even though it deviated from the
rate specified by Rolls Royce. But West provided no
evidence that this deviation had anything to do with his
accident, so the statistics were irrelevant and, in any
event, were testified to by one of West’s expert witnesses,
see infra Part II.A.1;
• West claims that Rolls Royce improperly cross-examined his
employer about the provisions in his company’s operations
manual for cleaning ice and snow from a helicopter. But the
manual was not admitted into evidence and the witnesses
answered only one question about it--to which West did not
object, see infra Part II.A.2;
• West claims that this court improperly excluded opinion
testimony from two of his witnesses that the absence of fuel
spatter on West’s helicopter after the accident meant that
it could not have resulted from ice or snow. But West did
not adequately proffer that testimony at or before trial and
it would have been properly excluded as undisclosed expert
testimony in any event, see infra Part II.A.3;
• West claims that counsel for Rolls Royce made three
statements in her closing argument that were unsupported by
the evidence. But the court instructed the jury to
disregard any such comments, and West cannot show any
prejudice from the fact that these instructions were given
as part of the final charge rather than just after Rolls
Royce’s closing argument, see infra Part II.B;
• West claims that Goodrich failed to disclose information
about a crash of another Bell 407 in August 2013, just
before trial started. But West has not shown that Goodrich
culpably withheld what little information it had about that
accident before the end of trial, or that having that
information earlier would have helped his case, since he has
provided no evidence that the accident was a FOSSA event or
otherwise relevant, see infra Part II.C.1;
• West claims that Bell and Rolls Royce failed to disclose,
prior to the end of trial, what they announced in product
5

alerts they issued in late January 2014, months after the
end of trial, i.e., that the model of Bell 407 involved in
his accident was susceptible to FOSSA from the failure of
components in the ECU circuit boards. But West knew, from
documents he received in discovery, that the defendants were
indeed aware of this problem, and, in fact, that the
defendants were negligent in correcting the problem was his
theory of liability at trial, see infra Part II.C.2;
• West claims that this court improperly declined to
instruct the jury on his failure-to-warn theory. But,
because West was warned and admittedly knew of the danger he
encountered, i.e., that the engine could flameout in mid-air
necessitating an autorotational landing, he could not show
any causal connection between the alleged failure to warn
and his accident, see infra Part II.D.1;
• West claims that this court improperly declined to
instruct the jury on the res ipsa loquitur doctrine. But he
could not show, as that doctrine requires, that the
instrumentality causing his injury was in the defendants’
exclusive control, since the helicopter was in fact in the
control of him and others at his employer prior to the
accident, see infra Part II.D.2;
• West claims that this court improperly received ex parte
memoranda from the parties at the start of trial in support
of their anticipated motions for judgment as a matter of
law, see Fed. R. Civ. P. 50(a). But West agreed, and
availed himself of, this procedure, which was discussed and
ordered prior to trial and, in any event, West was given,
and availed himself of, the opportunity to respond to all of
the defendants’ Rule 50 arguments before the case went to
the jury, see infra Part II.E; and
• insofar as West claims that this court hindered his
attempt to prove his case by its “declination” to rule on
the parties’ discovery or scheduling disputes, that claim is
misplaced. It was West’s counsel who decided to resolve
those disputes by negotiated agreement and, in any event,
West cannot show that, had he instead stuck to his guns and
awaited relief from the court, that he would have obtained
it or that the resulting information would have been helpful
to his case, see infra Part II.F.
As set forth fully below, then, West’s motions for a new trial
and for relief from the judgment against him are denied.
6

I.

Applicable legal standards
A.

Rule 59

Under Rule 59, this court “may set aside a jury’s verdict
and order a new trial only if the verdict is against the
demonstrable weight of the credible evidence or results in a
blatant miscarriage of justice.”
F.3d 712, 717 (1st Cir. 1994).

Sanchez v. P.R. Oil Co., 37
Again, West does not argue that

the verdict was against the weight of the evidence, so, insofar
as he bases his motions on claimed errors by the court, he must
show not only that they were in fact errors, but that they
affected his substantial rights.2

See Fed. R. Civ. P. 61.

“The

burden of proving substantial prejudice lies with the party
asserting error.”

Cabral v. Dep’t of Justice, 587 F.3d 13, 22

(1st Cir. 2009).
West faces an even higher hurdle as to alleged errors he
identifies now but did not raise at trial.

“A principle that

strikes very deep is that a new trial will not be granted on
grounds not called to the court’s attention during trial unless
the error was so fundamental that a gross injustice would
result.”

11 Charles Alan Wright et al., Federal Practice &

Procedure § 2805, at 73 (3d ed. 2012).
2

A different analysis governs
erred in refusing to instruct the
res ipsa loquitur theories, since
lack of evidence. See infra Part
7

West’s claims that this court
jury on his failure to warn and
those rulings were based on a
II.D.

B.

Rule 60

West’s motions also seek relief for the defendants’ alleged
withholding of information under both Rule 60(b)(2) and Rule
60(b)(3).

Rule 60(b)(2) authorizes relief from judgment on the

basis of “newly discovered evidence,” requiring “proof of the
following elements:

(1) the evidence has been discovered since

the trial; (2) the evidence could not by due diligence have been
discovered earlier by the movant; (3) the evidence is not merely
cumulative or impeaching; and (4) the evidence is of such a
nature that it would probably change the result if a new trial is
granted.”

Mitchell v. United States,

141 F.3d 8, 18 (1st Cir.

1998) (quotation marks omitted; formatting altered).

“The moving

party bears the burden of meeting each of the four Mitchell
criteria.”

U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43,

52 (1st Cir. 2002).
Rule 60(b)(3), meanwhile, authorizes a court to grant a
party relief from an adverse judgment on the basis of “fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.”

As West

points out, the “[f]ailure to disclose or produce materials
requested in discovery can constitute ‘misconduct’” under this
rule, even without “proof of nefarious intent or purpose.”
Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988).

8

Nevertheless, to obtain relief under Rule 60(b)(3), the
moving party must both (A) “prove the adverse party’s culpable
misconduct by clear and convincing evidence” and (B) “show by a
preponderance of the evidence that the culpable misconduct
substantially interfered with her ability fully and fairly to
prepare for, and to proceed to judgment.”

Nansamba v. N. Shore

Med. Ctr., Inc., 727 F.3d 33, 40 (1st Cir. 2013) (quotation marks
and bracketing omitted).
II.

Analysis3
A.

Evidentiary rulings

West seeks a new trial based on three of the court’s
evidentiary rulings during the fifteen days of trial.

As fully

explained below, however, those rulings were either correct or
not the subject of any contemporaneous objection by West (who has
failed to show that those previously unchallenged rulings worked
a “gross injustice”).

Moreover, the evidence admitted or

excluded as a result of the rulings West challenges here “cannot
reasonably be understood as the pivotal evidence that tipped the
verdict in favor of” the defendants, making these evidentiary
decisions no basis for a new trial in any event.

Gay v.

Stonebridge Life Ins. Co., 660 F.3d 58, 64 (1st Cir. 2011).

3

Given the breadth of the issues raised by West’s motions,
this court has foregone a dedicated survey of the background
facts in favor of an argument-by-argument review.
9

1.

Exclusion of reliability data

West argues that this court erred in excluding “evidence
about [Goodrich’s] ECU reliability data” as set forth in
“documents” that West tried to introduce while cross-examining
their author, Bruce Millar, a Goodrich employee who testified at
trial.

Mem. Supp. Mot. New Trial at __.

While West’s motion

does not identify these “documents,” by exhibit number or
otherwise, it refers to a portion of the trial transcript where
the court sustained the defendants’ objection to West’s proffered
exhibits 372, 398, and 552.

Tr. Trans. Sept. 23 a.m. at 61-62.

So the court has assumed that these are the “documents” on which
West is basing his argument.

These documents are memoranda from

Millar (and others at Goodrich) to Rolls Royce, dated January
2007, December 2007, and October 2008, about the model of ECU
that was installed in West’s helicopter at the time of his
accident.

Pl’s Exs. 372, 398, 552.

West argues that the “reliability statistics” in these
memoranda “demonstrated that [Goodrich] and Rolls Royce deviated
from Rolls Royce’s own reliability standards.”
New Trial at 5-6.

Mem. Supp. Mot.

But West (who, as just noted, does not even

identify the documents he claims should have been admitted) does
not specify the “statistics” he has in mind, and the court’s
review of exhibits 372, 398, and 552 reveals that just one,

10

exhibit 552, contains “Rolls Royce’s own reliability standards.”
That memorandum, from December 2007, says in relevant part:
if the current design configuration is changed to
replace the 22 uF [tantalum] capacitor, using the
actual failure rates of the [military] grade 0.1 uF.
SMT capacitors, the failure mode effect analysis (FMEA)
calculated probability of a false [overspeed] solenoid
activation estimate is 1.55e-7 and does not quite reach
the recommended safety specification of 1.0e-7.
Pl’s Ex. 552, at 2 (capitalization omitted).4

This and other

passages from the memorandum were redacted from the version that
was admitted at trial, as exhibit 552b.
West argues that these “statistics” should have been
admitted on the theory that a manufacturer’s own standards “‘may
be admissible as evidence of negligence or defectiveness of the
product, if it is shown that the manufacturer failed to meet such
standards.’”

Mem. Supp. Mot. New Trial at 5 (quoting 3 David G.

Owen et al., Madden & Owen on Products Liability § 27:6, at 827
(3d ed. 2008)).

The problem with this argument, as the court

ruled at trial, Tr. Trans. Sept. 23 a.m. at 61-62, was that there
was no evidence linking the failure of the ECU to meet Rolls
Royce’s reliability standard, as articulated in the December 2007
memorandum (i.e., no more than one occurrence of FOSSA per 10
million flight hours), to West’s accident.

4

Based on other evidence received at trial, the expression
“1.55e-7” translates to 1.55 events per 10 million hours of
flying (so that the expression “1.0e-7” translates to 1 event per
10 million hours of flying).
11

Before revisiting this ruling, it is important to note that
West does not argue that the “reliability statistics” had any
probative value on the issue of whether FOSSA caused his
accident.5

To the contrary, West’s new trial motion asserts that

the “reliability statistics” are relevant to what he sees as “a
separate inquiry” from the cause of his accident, i.e., whether
“the design was unreasonable or defective.”
Trial at 6.

Mem. Supp. Mot. New

But the questions of defect and causation are not

“separate inquiries” because, of course, to recover in a products
liability action, the plaintiff must prove that a defect in the
product caused, or substantially contributed to cause, his
injury.

See, e.g., Vatour v. Body Masters Sports Indus., Inc.,

147 N.H. 150, 154 (2001).

It follows that, as this court noted

in its order on the parties’ pre-trial motions in limine, “‘[a]ny
alleged defect which had nothing to do with plaintiff’s injury is
irrelevant.’”

West v. Bell Helicopter Textron, Inc., 967 F.

5

In a footnote in a different section of his new trial
motion, West says that excluding this evidence “because of the
absence of expert testimony that [Goodrich’s] failure to meet
acceptable failure rates . . . caused [his] accident” was
“improper, and grounds for a new trial in its own right.”
Insofar as this statement is intended to suggest that the
evidence of the deficient FOSSA rate was, in fact, relevant to
causation, the suggestion is insufficiently developed to enable
discussion. See Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 260 (1st Cir. 1999).
12

Supp. 2d 479, 502 (D.N.H. 2013) (quoting and adding bracketing to
Weir v. Crown Equip. Corp., 217 F.3d 453, 461 (7th Cir. 2000)).6
West’s theory at trial was not that the ECU was defective
because it allowed FOSSA events to occur more often than Rolls
Royce had specified or, for that matter, with any particular
frequency.

Rather, West’s liability experts testified that the

ECU was defectively designed because, as reflected in exhibit 552
(as well as other documents admitted at trial), Goodrich had
tried to reduce the incidence of FOSSA by upgrading the
capacitors in the ECU, rather than addressing the “root cause” of
the phenomenon, i.e., that the ECU recognized an electrical
failure in any of its components as an overspeed event triggering
the closure of the overspeed fuel valve.

See Tr. Trans. Sept.

10, a.m., at 5-7; Tr. Trans. Sept. 11, a.m., at 124-27, 136-38.
To properly address the “root cause,” one of those experts
testified, the ECU should have been programmed to recognize FOSSA
as a “false event” that turned control of the fuel system over to
the pilot, rather than automatically cutting the fuel flow--a
design which, had it been in place in West’s helicopter, would

6

The court made this observation in the course of excluding
evidence that the helicopter West was flying at the time of his
accident lacked the upgraded capacitors contemplated by exhibit
552, since “West cannot show that the absence of the upgraded
capacitors had any causal connection to his crash.” West, 967 F.
Supp. 2d at 502. That same reasoning--which West does not
question in his new trial motion--led to the exclusion of the
“reliability statistics” in exhibit 552, which, as that document
makes clear, were based on the pre-upgrade capacitors.
13

have enabled him to avoid his accident.
a.m., at 135-38.

Tr. Trans. Sept. 11,

Accordingly, the “defect” evidenced by the

“reliability statistics” that West sought to introduce at trial
was not the “defect” that he claimed to have caused his accident.
So this court properly excluded the “reliability statistics” as
irrelevant.

See Weir, 217 F.3d at 460-61.

West also argues that the “reliability statistics” were
“relevant to the credibility of [the] defendants’ expert
witnesses,” specifically, Millar, who “claimed not to have relied
on his own documents in arriving at the conclusion that FOSSA was
not the cause of [West’s] accident.”7
at 6.

Mem. Supp. Mot. New Trial

Thus, West maintains, “[h]ad the jury received the

unredacted documents, which demonstrated that the ECU was not
meeting Rolls-Royce’s standards with regard to the prevalence of
FOSSA, the jury may well have rejected Millar’s testimony.”

Id.

The court does not follow West’s logic.
Again, as West has acknowledged in his new trial motion, the
ECU’s failure to meet Rolls Royce’s specifications for the
frequency of FOSSA has no relevance to the cause of the accident.
The court is at a loss, then, to see how that fact has any
relevance to the reliability of Millar’s opinion as to the cause
of the accident.

Indeed, West’s own designated expert witnesses

7

In quoting from West’s submissions throughout this order,
this court has taken the liberty of omitting his capitalization
of defined terms.
14

on that subject did not, as support for their contrary opinions
that a defect in the ECU was the cause of the accident, rely on
the fact that the ECU fell short of the specifications.8

Because

that fact simply had no bearing on the reliability of Millar’s
opinion as to the cause of West’s accident, this court acted
properly by ordering the redaction of exhibit 552 insofar as it
referred to the deficient “reliability statistics.”9

See MMG

Ins. Co. v. Samsung Elecs. Am., Inc., 293 F.R.D. 58, 64-65
(D.N.H. 2013) (excluding evidence offered to impeach opposing
expert’s opinion as to the cause of an accident where the

8

In fact, one of West’s liability experts had stated at his
deposition that a statistic set forth in a different memorandum
from Goodrich to Rolls Royce, which pegged the incidence of FOSSA
at 4.41 occurrences per ten million flight hours, did not mean
that FOSSA was the “most likely” cause of West’s accident, and
that, lacking the underlying data, he could not express an
opinion to that effect. Tr. Trans. Sept. 9, p.m., at 124-25.
9

West also asserts that “the excluded evidence showed that
[Goodrich] consistently misrepresented the data” and, “therefore,
would go to the credibility of all of [Goodrich’s] employees,
calling into question the jury’s verdict.” Mem. Supp. Mot. New
Trial at 6. There are a number of problems with this statement,
including: (1) again, West has not pointed to any particular
documents, and those the court has been able to identify, on the
face of them, do not show that Goodrich “misrepresented” any
data; at worst, they suggest that Rolls Royce asked Goodrich to
explain how it had arrived at certain calculations, (2) the fact
that Goodrich had revisited its calculations for the statistical
incidence of FOSSA says little if anything about the
“credibility” of the employees who did the initial calculations,
let alone “all of [its] employees,” (3) as noted infra this
section, the jury heard other evidence that Goodrich had revised
those calculations, in any event--evidence that West could have
used, if he wished, to argue that the opinions of Goodrich’s
witnesses were not reliable.
15

offering party’s own expert had not relied on that evidence in
forming his contrary opinion).
Finally, even if this court should not have redacted that
portion of exhibit 552 stating that the ECU did not meet Rolls
Royce’s specifications, that ruling resulted in no cognizable
prejudice to West, because the same evidence was admitted from
another source.

One of West’s designated expert witnesses, John

Bloomfield, testified that, based on his review of information
provided by the defendants, (a) Rolls Royce had required Goodrich
to meet a “reliability factor with regard to FOSSA” of 1 event
per 10 million flight hours, (b) Goodrich had not met that
standard during the “theoretical design phase,” when it
calculated the failure rate as 1.19 FOSSA events per 10 million
flight hours, and (c) by December 2006, Goodrich had revised the
probability of a FOSSA event upward to 4.41 occurrences in 10
million flight hours.
125-27.

Tr. Trans. Sept. 9, p.m., at 116-17,

(It should be noted that this rate, calculated before

the capacitors had been upgraded, is even higher than the rate of
1.55 FOSSA events per 10 million hours reflected in exhibit 552.)
In light of Bloomfield’s testimony as to the deficient
reliability statistics--testimony which went unchallenged during
cross-examination--the redaction of the references to deficient
reliability statistics from exhibit 552 (or, for that matter, any
other exhibit) did not cause substantial prejudice to West that

16

could justify a new trial.

See Hernandez-Torres v. Intercont’l

Trading, Inc., 158 F.3d 43, 49 (1st Cir. 1998) (ruling that
excluding cumulative evidence did not cause substantial
prejudice).

West’s motion for that relief is denied insofar as

it relies on the exclusion of the “reliability statistics.”
2.

Cross-examination with operations manual

West also argues that this court erred by permitting the
“irrelevant and prejudicial questioning” of his “witnesses” about
the “General Operations Manual” for West’s employer, Joe Brigham
Inc. d/b/a JBI Helicopter Services (“JBI”), as those questions
referred to “the purportedly ‘proper’ or preferred handling of
helicopters exposed to snow and ice.”
at 2-3.

Mem. Supp. Mot. New Trial

West argues that this questioning was irrelevant because

“West’s or JBI’s adherence to any particular standard of care was
not at issue in this case since there was no comparative fault or
misconduct defense.”

Id. at 4.

But, as recounted fully below,

West never raised that argument in objecting at trial to the
manual, which was not itself admitted into evidence, or to any
questions about it.

Nor did he ask for any curative instruction

as a result of the questions--only one of which was both objected
to and answered (at least by the sole witness identified in
West’s motion).

Accordingly, the questioning about the manual

could entitle West to a new trial only if he could show that it

17

amounted to an error “so fundamental that a gross injustice would
result.”

Wright, supra, § 2805, at 73.

He has not.

Because the defendants had raised the affirmative defenses
of comparative fault and misconduct (as well as the related
defense of third-party fault by JBI) in their answers, the court
gave (with the prior approval of all parties) a preliminary
instruction to the jury outlining the elements of those defenses.
But the court observed shortly thereafter that, because these
defenses were based solely on West’s and JBI’s alleged failure to
clear snow and ice from the helicopter before the flight, the
jury would never have the opportunity to consider that conduct as
the basis for any affirmative defense.
a.m., at 108.

See Tr. Trans. Sept. 10

In other words, as counsel for West put it (and

counsel for all defendants agreed) during the ensuing colloquy,
the jury necessarily had to find that the cause of West’s
accident was “either snow and ice,” in which case they would find
for the defendants outright and therefore not need to consider
affirmative defenses, or “a defect,” in which case they would
have necessarily rejected the defendants’ claim as to the role of
snow and ice in causing the accident.

Id. at 110.

But counsel for West did not ask the court to rule (nor did
the defendants agree) that, as a result, they could not introduce
any evidence that West or JBI had violated a standard of care in
their effort to remove snow and ice from the helicopter.

18

Indeed,

West did not make this argument even when Rolls Royce sought to
introduce JBI’s manual at trial:

he initially objected to the

manual as evidence of a subsequent remedial measure, see Fed. R.
Evid. 407, then, when Rolls Royce pointed out that “circuit
precedent clearly establishes that Rule 407 does not apply to
actions taken by third parties” to the litigation, Espeaignnette
v. Gene Tierney Co., 43 F.3d 1, 5 n.5 (1st Cir. 1994), argued for
exclusion “either on pure [Rule] 402 analysis of what [JBI] did
in 2013,” i.e., after West’s accident, or Rule “403 analysis of
. . . the prejudice outweighs the probative value when you’re
talking about a company making a change four years later as a
result of litigation.”

Tr. Trans. Sept. 16 p.m., at 59-60.

“‘It is well-established that an objection on one ground
does not preserve [post-trial] review of another ground.’”
United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005)
(quoting Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 672
(1st Cir. 2010)).

Because, at trial, West did not challenge the

manual, or questions about it, as irrelevant because JBI’s
standard of care was immaterial, he can obtain a new trial on the
basis now only if allowing such evidence was plain error.

Id.

Furthermore, as West acknowledges, the manual was not
admitted into evidence, in any event, but was merely referred to

19

by counsel for Rolls Royce in questioning JBI’s vice president
and owner, Ray Newcomb.10

What West fails to acknowledge is

that--at least when his counsel objected--Newcomb never answered
any questions from counsel from Rolls Royce that referred to the
manual as such, and--even when counsel for West failed to
object--only answered one such question anyway.
After this court sustained West’s objection to the admission
of the manual on relevance grounds, counsel for Rolls Royce twice
asked Newcomb whether he agreed with the statement that “the only
acceptable method for the removal of snow and ice is by placing
the helicopter in a hangar until the frost, ice or snow melts.”
Tr. Trans. Sept. 16 p.m., at 132-33.

Newcomb twice said no and,

after the second denial, counsel attempted to impeach him by
asking “Sir, doesn’t your general operations manual on page 19-5

10

As is the case with its argument about the improperly
excluded “documents,” West’s new trial motion does not identify
the “witnesses” he means, but simply refers to portions of the
trial transcript. Those portions, however, cover the examination
of only one witness, Newcomb. While West’s reply memorandum
argues that “the attempt to impeach [West] with JBI’s manual
[was] impermissible,” Reply Mem. Supp. Mot. New Trial at 4, even
the reply does not refer, by record citation or otherwise, to any
questions that West was asked, by counsel for Rolls Royce or
anyone else, about the manual during his trial testimony, which
spanned three days. It is not the role of this court to wade
through three days’ worth of trial transcript to find the record
support for West’s arguments when his own counsel has declined to
undertake that effort. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990). So this court has not considered any claim
by West that he, in addition to Newcomb, was improperly asked
questions about the manual at trial--but the court suspects,
based on its recollection of West’s testimony, that any such
claim would fail for the reasons set out in this section.
20

state exactly”--but this question was interrupted by an objection
from West’s counsel to “this being read in the presence of the
jury,” and was not answered.

Id.

Counsel for West later

objected to another question from counsel for Rolls Royce about
“this document,” and, while the objection was overruled, Newcomb
did not answer the question, because counsel asked a different
one that did not refer to the manual.

Id. at 136.

After a few more questions, counsel for Rolls Royce asked
Newcomb, again, whether “the only acceptable method [of] removal
of snow and ice is by placing a helicopter in a hangar until the
frost, ice or snow melts.”

Id. at 137.

Counsel for West

objected, but only on “asked and answered grounds”--and then did
not object to the next question, “Sir, I’m reading from your
manual.

Do you disagree with your manual?”

Id.

Newcomb

answered, “there are other ways to de-ice an aircraft,” id., at
137-38, and counsel for Rolls-Royce did not ask another question
of Newcomb that referred to the manual.
It is extraordinarily difficult to reconcile this record
with West’s claims that the court “permitted repeated and
extensive questioning of [West’s] witnesses about [the manual’s]
contents.”

Mem. Supp. Mot. New Trial at 4.

Actually, Newcomb

was asked about the manual a grand total of three times:

twice,

he did not answer due to objections from West’s counsel, and the
other time counsel for West did not object.

21

While Newcomb was

also asked three times whether he agreed with a statement that,
apparently, appears in the manual, none of those questions
identified the manual as the source of the statement11--and, in
any event, when counsel for Rolls Royce asked such questions,
they were either not answered or drew no objection.

And, again,

the objections that West did make to the questions about the
manual did not assert, as his new trial motion now does, that
they were irrelevant because JBI’s compliance with any particular
standard of care was not an issue in the case, but only because
JBI had not issued the manual until after West’s accident.
The end result is that, as already noted, West cannot obtain
a new trial based on the questioning about the manual unless the
questioning amounted to an error “so fundamental that a gross
injustice would result.”

Wright, supra, § 2805, at 73.

West

himself seems to acknowledge as much, calling the questioning
“plain error,” Mem. Supp. Mot. New Trial at 4--but without even
mentioning the stringent elements of the plain-error test, let
alone explaining how they are satisfied.

To demonstrate plain

error, West must “show (1) that there was error, (2) that it was
plain, (3) that it likely altered the outcome, and (4) that is

11

There is no indication in the record that, apart from
during the three questions that referred to the manual as such,
counsel for Rolls Royce did anything to suggest that the manual
was the source of the statement, or even that, while asking about
the statement, counsel had the manual in front of her, let alone
in view of the jury (who would not have known what it was anyway,
since it was not admitted into evidence).
22

was sufficiently fundamental to threaten to the fairness,
integrity or public reputation of the judicial proceedings.”
Sony BMG Music & Entm’t v. Tenenbaum, 660 F.3d 487, 502 (1st Cir.
2010).

These “requirements for plain error are extremely

demanding, and in this circuit, it is rare indeed to find plain
error in a civil matter.”

Muñoz v. Sociedad Española de Auxilio

Mutuo y Beneficiencia de P.R., 671 F.3d 49, 59 (1st Cir. 2012)
(quotation marks and ellipse omitted).
Even assuming, without deciding, that allowing the questions
about the manual was error in light of West’s non-contemporaneous
argument that evidence of JBI’s standard of care was irrelevant,
the remaining elements of the plain error test are wholly absent.
Again, the manual itself was not admitted into evidence or
otherwise displayed to the jury, Newcomb was asked only three
questions that referred to the manual as such, and only one of
those questions was answered.

The notion that a handful of

questions to, and but a single answer by, one third-party witness
about an irrelevant--and hardly inflammatory--subject could have
altered the outcome of a three-week trial with more than two
dozen witnesses is fanciful, to say the least.
Moreover, the jury was specifically instructed that
“[q]uestions by lawyers are not evidence, unless the witness
specifically adopts the facts set forth in the question,” Tr.
Trans. Sept. 26 p.m., at 78--which, as just discussed, Newcomb

23

never did, even in the one answer he gave.

The court further

instructed the jury that it “not being asked to decide whether
Mr. West, JBI or any of its employees were negligent, or violated
any standard of conduct in their treatment of the helicopter
prior to the accident.”

Id. at 87.

West did not object to these

instructions, or request more robust ones.12

On this record,

West could not possibly hope to show (even if he tried, which he
has not) that the limited questioning about the manual “likely
altered the outcome” of the trial, let alone that it “threatened
the fairness, integrity or public reputation of the judicial
proceedings.”

Sony BMG, 660 F.3d at 502.

His motion for new

trial is denied insofar as it is premised on Rolls Royce’s
questioning of Newcomb about his company’s safety manual.
3.

“Lay opinion” testimony

West encounters similar--if not worse--problems with his
argument that this court improperly excluded would-be testimony
from Newcomb and another one of West’s witnesses, Roger Sharkey,
a helicopter pilot who investigated the accident.

West claims

that “[h]ad they been permitted to do so,” these witnesses “would

12

Indeed, West’s counsel noted in her summation that the
“court has mentioned to you a couple times already and will again
. . . that there is no issue in this case about negligence or
fault on the part of Mr. West, [his co-workers], or JBI. This
case does not involve a question of whether they were negligent,
whether they didn’t follow some policy or manual.” Tr. Trans.
Sept. 26 p.m., at 31-32.
24

have testified that “when a helicopter experiences an engine
flameout without a cessation of fuel flow, the helicopter will
show tell-tale signs of fuel spatter” and “because there was no
evidence of fuel splatter on the accident helicopter, the
accident could not have been caused by snow or ice.”
Mot. New Trial at 7.

Mem. Supp.

The problem with this argument, as the

defendants point out, is that the court never prevented these
witnesses from giving any of that testimony, because West never
tried to elicit it, nor, moreover, did he ever proffer it.
“Preserving a claim of error based on exclusion of evidence
requires an adequate proffer, so that the trial and appellate
courts know what evidence is at issue.”

Osorio v. One World

Techs., Inc., 659 F.3d 81, 91 (1st Cir. 2011).

Absent such a

proffer, then, a claim that the trial court erroneously excluded
evidence is waived.

See id.

Nowhere in West’s new trial

memoranda--including his reply, filed in response to the
defendants’ objection emphasizing the lack of any proffer--does
he point to anywhere in the trial record where he attempted to
proffer of the testimony he now claims that Newcomb and Sharkey
“would have” given “had they been permitted to do so.”

The

court’s review of the transcript of their testimony reveals that,
in fact, West made no such effort.
It is true that, prior to trial, this court granted one of
the defendants’ motions in limine insofar as it sought to

25

exclude, as undisclosed expert testimony, “any opinions from
Newcomb and Sharkey as to the cause of West’s accident, including
that the absence of fuel spatter indicates that ice and snow
played no role.”

West, 967 F. Supp. 2d at 503.

But a pretrial

ruling excluding evidence operates to relieve the proponent of
his obligation to proffer that same evidence at trial only where
“the pretrial proffer is adequate” on its own.

Fusco v. Gen.

Motors Corp., 11 F.3d 259, 262-63 (1st Cir. 1993).

Here, West

did not make an “adequate” pretrial proffer of opinion testimony
by Newcomb and Sharkey as to the cause of the accident.
To the contrary, West’s objection to the defendants’ motion
to exclude undisclosed opinion testimony simply described “the
proffered opinions of these Witnesses”--a term defined to embrace
not just Newcomb and Sharkey, but also five other potential trial
witnesses--on “topics including (without limitation) how they
clean ice and snow from helicopters, how to perform an
autorotation, what fuel spatter looks like after an engine
flameout, or the qualities of a good pilot.”
Mot. in Limine (doc. no. 293) at 19.

Obj. to Goodrich

Among other deficiencies,

this statement fails even to specify which of the seven named
“Witnesses” would opine as to which of the four listed subjects.
To preserve his argument that evidence should have been admitted,
the proponent must, at a minimum, “mak[e] clear the substance of
the offer,” United States v. Amaya-Manzanares, 377 F.3d 39, 46

26

(1st Cir. 2004), and West’s objection to the motion in limine
failed to do so.

Accordingly, West cannot obtain a new trial, or

any other relief, based on the would-be testimony from Newcomb
and Sharkey as to whether snow and ice caused the accident.

See

Osorio, 659 F.3d at 91.
Furthermore, even had West sufficiently proffered opinion
testimony from Newcomb or Sharkey as to the cause of the
accident, those opinions would have been properly excluded as
undisclosed expert testimony, despite West’s effort to
characterize them as lay opinions.

As discussed at greater

length in this court’s order on the motions in limine, an
opinion that “because there was no evidence of fuel splatter on
the accident helicopter, the accident could not have been caused
by snow or ice,” based on the witness’s knowledge that “when a
helicopter experiences an engine flameout without a cessation of
fuel flow, the helicopter will show tell-tale signs of fuel
spatter,” is self-evidently expert testimony under Rule 702,
rather than lay opinion testimony under Rule 701, of the Federal
Rules of Evidence.

See West, 967 F. Supp. 2d at 503-04.

Because West concededly did not disclose Newcomb and Sharkey as
the source of any expert opinions, then, the testimony he now
proffers would have been properly excluded.

See id. (citing

Harriman v. Hancock County, 627 F.3d 22, 29 (1st Cir. 2010)).
West’s motion for a new trial is denied insofar as it is based

27

on this court’s claimed “exclusion” of any testimony from
Newcomb or Sharkey opining as to the cause of the accident.
B.

Closing argument

West also argues that he deserves a new trial based on
allegedly improper comments by counsel for Rolls Royce during
her summation.

A new trial based on improper statements in

closing argument requires a showing of prejudice.

See, e.g.,

Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 38-39
(1st Cir. 2011).

As explained fully below, West has failed to

show that the few remarks from adverse counsel’s summation
challenged in his new trial motion caused him prejudice,
particularly in light of the curative instructions this court
gave in response.
West’s memorandum in support of his new trial motion
identifies the following statements from counsel’s closing
argument as lacking any evidentiary support:
• after reviewing some of the evidence as to how West
and other JBI employees had stored the helicopter
outside, and attempted to clean the resulting snow and
ice from it, prior to the accident, a statement that “I
would submit that if you do all that wrong, there’s a
hundred percent chance that you’re going to get ice
into the engine,” Tr. Trans. Sept. 26 p.m., at 10-11;
• a statement that one of the Rolls Royce employees who
testified at trial, “Tom Piercy[,] and the folks in
Indianapolis make a really good engine,” id. at 11; and
• “I would submit that the reason that Rolls-Royce has
such a sterling reputation for engineering excellence
is because the outstanding world class engineers like”
28

Piercy, and two of his colleagues who had also
testified, “take pride in their work,” id. at 20.
After counsel for Rolls Royce concluded her summation, and the
jury was excused for a recess, counsel for West stated, “there
were several things said over the course of the [defendants’]
closing but in particular [Rolls Royce’s] closing that I believe
have no support in the evidence.”

Id. at 24-25.

Counsel for

West then “ask[ed] the court to remind the jury again before I
close about the fact that statements may have made been regarding
matters not in evidence and that they must disregard such
statements if they conclude that indeed things were said that
were not in evidence.”

Id. (emphasis added).

As this comment

suggests, this court had already instructed the jury, just before
summations began, that “closing arguments are not evidence.

Like

I said, the words lawyers say in court are not evidence . . . .
Your recollection of the evidence is what controls.”

Tr. Trans.

Sept. 26 a.m., at 17.
In response to West’s objection, this court agreed that
counsel for Rolls-Royce had made some statements without
evidentiary support, including the comment that “Rolls-Royce has
a sterling reputation for engineering excellence,” but observed
that these statements were not “particularly harmful or
prejudicial.”

Tr. Trans. Sept. 26 p.m., at 27-28.

The court

also ruled that it would not “instruct the jury again prior to
[West’s counsel’s] closing,” but would give counsel for West “a
29

little bit of leeway” in her summation and “give a good
instruction as part of the charge” on all matters before sending
the jury to deliberate.

Id. at 28.

After noting her objection,

West’s counsel proceeded to give her closing argument, stating,
I must say to you that the comments you have heard in
closings, as the judge has told you, are not evidence,
and that there [were] many, many things said which you
must test against what you actually heard in the
evidence in this case . . . . I am suggesting to you
that you consider with some care whether you have just
heard statements for which there was no support in the
evidence.
Id. at 30.

Counsel for West also stated that “you saw that Kurt

West is a good, caring and kind person.”

Id. at 31.

After West’s counsel finished her summation, the court gave
its final charge to the jury, including the instruction that:
Arguments and statements by lawyers are not evidence.
What they have said in their opening statements,
closing arguments and at other times is intended to
help you interpret the evidence, but it is not
evidence. If the facts as you remember them differ
from the way the lawyers have stated them, your memory
controls.
Id. at 77.

This court also instructed the jury that, although

they “heard that Rolls-Royce has a stellar reputation in the
engineering community” and “that Mr. West is a good, kind and
honest man . . . [,] [w]hether anyone is a good or bad person, a
good or bad company, or has a reputation in that regard is not an
issue in this case in any way, shape, or form . . . .

[T]hat

evidence is not admissible, not for you to consider.”

Id. at

30

80-81.

West did not object to the substance of these

instructions, or request more robust ones.
On this record, West cannot show that three improper
comments from the closing argument by counsel for one of the
three defendants prejudiced the outcome of the case against
him.13

The court instructed the jury that closing arguments were

not evidence, and to disregard them insofar as they deviated from
the evidence, both before closing arguments began and after they
ended--and therefore, both before and after counsel for Rolls
Royce made the challenged statements in her summation--and, in
addition, gave a separate instruction to the jury to specifically
disregard the statement as to Rolls Royce’s reputation.

So,

“even if counsel’s remarks had the tendency to mislead,” or to
distract the jury with the irrelevant subject of Rolls Royce’s
reputation, “the brief comments were sufficiently neutralized by
[this court’s] curative instructions.”

Granfield v. CSX Transp.,

Inc., 597 F.3d 474, 491 (1st Cir. 2010) (ruling that instruction

13

West’s reply memorandum refers to an additional comment
from Rolls Royce’s counsel’s summation, calling it “improper”
because it “contended that failure to follow the [JBI] manual was
a breach of the standard of care.” Reply Mem. Supp. Mot. New
Trial at 1 & n.1. The court will not consider any argument by
West that this comment was improper, because it was raised for
the first time in reply. See Doe v. Friendfinder Network, Inc.,
540 F. Supp. 2d 288, 303 n.16 (D.N.H. 2008). In any event, as
already noted, see Part II.A.2, supra, this court specifically
instructed the jury in the final instructions that whether West
or any of his fellow JBI employees breached any standard of care
was not an issue in the case--an instruction which served to cure
any harm from this additional improper remark, see infra.
31

to disregard closing arguments insofar as they differed from the
evidence sufficed to address counsel’s misstatement of the
evidence in his summation).
Indeed, a curative instruction (rather than other more
drastic relief, such as a mistrial) was precisely the relief that
West requested at trial for the allegedly improper remarks by
counsel for Rolls Royce and, again, West has never challenged the
content of this court’s curative instructions.
challenges their timing:

Instead, West

he argues that he deserves a new trial

because the court did not give the instruction before his counsel
gave her closing argument, rather than just after she did so, as
part of the final charge to the jury.

But “[t]he district court

has considerable leeway as to the phrasing and timing of a
curative instruction.”
(1st Cir. 2000).

United States v. Palmer, 203 F.3d 55, 59

West fails to demonstrate that this court

exceeded that leeway as to timing here (once again, West has
never challenged the phrasing or the substance of the
instruction) by waiting until the completion of all closing
arguments to tell the jury, as part of the final charge, to
disregard comments by counsel in their arguments insofar as those
comments were unsupported by the evidence.14

14

West states that “[i]nstead of offering the instruction at
the appropriate time . . . the court interrupted counsel for Mr.
West during her closing and instructed, ‘[Y]ou take your best
recollection of what the testimony was . . . . Your memory
controls.’” Memo. Supp. Mot. New Trial at 12 (quoting and adding
32

West has provided no authority for the notion that a delay
so brief in duration could ever work the prejudice necessary to
order a new trial, and the court finds that notion exceedingly
difficult to accept.

See id. (rejecting the claim that an

instruction to cure improper remarks in summation “was
insufficient because it did not immediately follow the
misconduct” but was “delivered several minutes after the
objection,” when the instruction “pointedly addressed [counsel’s]
improper remark”).

The court denies West’s motion for a new

trial insofar as it is based on the challenged statements from
Rolls Royce’s counsel’s closing argument.

bracketing and ellipse to Tr. Trans. Sept. 23 p.m., at 43-44).
Through the misleading use of an ellipse, this statement
conflates the court’s instructions to cure the improper remarks
by Rolls Royce’s counsel (which, again, were delivered as part of
the final charge to the jury) with the instruction given during
West’s counsel’s summation, which was directed at an entirely
different kind of improper conduct--namely, her displaying to the
jury an “unofficial transcript” she had prepared of the trial
testimony of one of the defense witnesses. Tr. Trans. Sept. 23
p.m., at 43. It was in response to that conduct that the court
instructed the jury to “take your best recollection of what the
testimony was. This is an unofficial transcript prepared by
trial counsel, but you won’t be able to have this transcript or
even the official transcript. Your memory is what controls.”
Id. at 43-44 (emphasis added to passage omitted from West’s
quotation). There was nothing improper about this instruction
(in contrast to West’s attempt to distort this court’s words by
omitting an entire sentence from the middle of what was said,
which is unfortunate at the least).
33

C.

Nondisclosures

West argues that he is entitled to relief because of the
defendants’ alleged failure to produce information about two
subjects prior to trial:

(A) a crash of the same model

helicopter he was flying at the time of his accident, that
occurred in the Gulf of Mexico on August 13, 2013--just a few
weeks prior to the commencement of the trial, and (B) product
alerts issued by Bell and Rolls Royce about that helicopter model
on January 23, 2014--nearly four months after the end of the
trial.

Although West includes the defendants’ alleged failure to

disclose the August 2013 crash as one of the bases of his motion
for a new trial under Rule 59, his memorandum in support of that
motion cites Rule 60(b)(3), as well as case law applying that
rule, in discussing the subject.
14-15.

Mem. Supp. Mot. New Trial at

West raises the defendants’ alleged failure to disclose

the information in the product alerts, meanwhile, as the basis
for his motion for relief from judgment, which expressly invokes
Rule 60(b)(3), as well as Rule 60(b)(2).

As fully explained

below, West has not carried his burden to prove his entitlement
to relief under Rule 60(b)(2) or (3) on the basis of either the
August 2013 accident or the January 2014 alerts.
Before embarking on that analysis, though, the court pauses
to note that West also appears to claim, at least in the argument
heading to this section of his new trial memorandum, that,

34

putting the August 2013 crash aside, he is entitled to another
trial due to the “defendants’ failure to timely disclose
additional FOSSA events before trial.”
at 12 (formatting altered).

Mem. Supp. Mot. New Trial

This refers to the fact that West

learned during the trial--not after it--of “three additional
FOSSA events in 2013” involving the same model helicopter,
engine, and ECU that were involved in his accident.

Id. at 13.

West learned this because the court granted counsel for West
leave to conduct voir dire examination of Millar about alleged
incidences of FOSSA in the relevant products (beyond the six
FOSSA events which the court had ruled to be admissible in its
order on the parties’ pretrial motions in limine.
Supp. 2d at 493-44).

West, 967 F.

During that voir dire, Millar testified to

“three acknowledged FOSSA events” that had occurred in 2013 and
that were unknown to West prior to hearing that very testimony.
Tr. Trans. Sept. 20, p.m. at 98.

Over the defendants’

objections, the court ruled that counsel for West could
cross-examine Millar, in front of the jury, as to these
accidents’ “locations, dates, and the fact that they were
acknowledged FOSSA events,” to impeach his testimony on direct
examination that “no overspeed power supply FOSSA events had
happened since” 2007.

Id. at 99-100.

West did not seek any

other relief as a result of learning of these three 2013 FOSSA
events for the first time at trial, despite the court’s

35

invitation to counsel for a proposal for an alternative “remedy
to try to address this.”

Id. at 106.

Instead, after the weekend

recess that followed, West’s counsel cross-examined Millar about
the 2013 events in accordance with the ruling.

Tr. Trans. Sept.

23, a.m., at 4-5, 9-10.
Having made this deliberate choice at trial, West cannot now
complain, as he does in support of his new trial motion, that the
court’s ruling “did not allow [him] to acquire or explore factual
similarities between any of those events and [his] case.”
Supp. Mot. New Trial at 13.

Mem.

“The appropriate remedy for parties

who uncover discovery violations is not to seek reversal after an
unfavorable verdict but a request for continuance at the time the
surprise occurs.”

U.S. Fid. & Guar. Co. v. Baker Material

Handling Corp., 62 F.3d 24, 29 (1st Cir. 1995).

So, by deciding

against seeking a continuance--or any other relief that might
have enabled him “to acquire or explore factual similarities”
between his accident and the 2013 FOSSA events disclosed for the
first time at trial--West has waived any claim for a new trial
based on that belated disclosure.
1.

See id.

August 2013 crash

West asserts that, just after the trial, he discovered that
“an additional Bell 407 had crashed in the Gulf of Mexico on
August 13, 2013,” in an incident that Millar had not mentioned
during his trial testimony.

Mem. Supp. Mot. New Trial at 13.
36

West learned this information by searching the NTSB’s on-line
database, retrieving the date of the accident, the make and model
number of the helicopter, and the name of the air carrier, but
little else.

See Aff. Joan A. Lukey Supp. Mot. New Trial, Ex. A.

Counsel for West attests that she then engaged in “email and
phone communications” with the “director of maintenance” for the
named carrier, and that this person--whom West does not otherwise
identify--“confirmed that the event was indeed an uncommanded
shutdown with a sudden loss of power shortly after lift-off from
an oil rig in the Gulf of Mexico.
FADEC) issues were identified.”

No mechanical or engine (nonId. at 2.

The defendants, for their part, have responded with an
affidavit from Millar, who attests that, to his knowledge, the
NTSB did not even contact Goodrich about the August 2013 crash
until September 9, 2013, after trial had already begun, and that
(aside from a report documenting this contact and some emails
among the parties attempting to schedule a download of the data
from the affected helicopter’s ECU) Goodrich had no documents in
its possession, custody, or control about the crash at any time
before the trial ended.
Trial at 1-2.

Aff. Bruce Millar Supp. Obj. Mot. New

Millar further attests that, to his knowledge,

nobody at Goodrich knew anything else about the August 2013 crash
at any time prior to the end of the trial.

37

Id. at 2.

This record falls woefully short of clear and convincing
evidence that the defendants engaged in culpable misconduct by
failing to disclose the August 2013 crash before the end of the
trial.

To start with, West has failed to show that information

about that accident was even responsive to any of his discovery
requests.

He relies on his request to Bell for the production of

documents “relating to any other accident involving a Bell 407
helicopter and . . . an alleged uncommanded shutdown,” Mem. Supp.
Mot. New Trial at 14, but he does not even claim--let alone
provide any evidence--that Bell even became aware of the August
2013 accident before trial ended.

A footnote in his memorandum

attempts to address this shortcoming by citing to his request to
Goodrich to produce documents “relating to any other accident
involving the model of the Subject Engine and . . . an alleged
uncommanded shutdown,” but does not offer anything besides West’s
own “understanding” that the helicopter in the August 2013
accident was equipped with the “Subject Engine.”

Id. at 14 n.16.

In addition, West has provided no evidence that the August
2013 accident involved “an alleged uncommanded shutdown.”
Rather, he offers only his own counsel’s account of a statement
from an unnamed “director of maintenance” at the company
operating the helicopter that “the event was indeed an
uncommanded shutdown,” without even attempting to establish how
that person came by such knowledge.

38

As such, the statement in

counsel’s affidavit is double hearsay that is not “evidence” at
all, see Fed. R. Evid. 801, 802, let alone the clear and
convincing evidence necessary to prove that the defendants
withheld information in the face of a discovery request for it.
Moreover, whatever the quality of the “evidence” that West
acquired after the trial to suggest that the August 2013 crash
involved an “alleged uncommanded shutdown,” he has provided
nothing--not even double hearsay--to suggest that Goodrich (or
any other defendant) knew as much prior to or during the trial.
Without such evidence, of course, West cannot establish that any
of the defendants engaged in culpable misconduct by failing to
produce documents about the August 2013 incident before the trial
ended--even if West could show, based on information he acquired
after that point, that those documents would have been responsive
to his requests about other “alleged uncommanded shutdowns.”
While West asserts in his motion that, based on the data in the
NTSB’s on-line database, the August 2013 accident “appeared, at
the very least, to be an uncommanded shutdown,” that assertion is
unaccompanied by a citation to anything, let alone something of
evidentiary value, Mem. Supp. Mot. New Trial at 13, and the
screenshot from the database that West has submitted contains
nothing suggesting that conclusion, see Aff. Joan A. Lukey Supp.
Mot. New Trial, Ex. A.

Millar, of course, says that, before the

trial ended, Goodrich knew nothing about the August 2013 event

39

aside from that it had happened and that the NTSB was
investigating, see Aff. Bruce Millar Supp. Obj. Mot. New Trial at
1-2, and West has offered nothing to call that claim into doubt.
In sum, then, West has failed to come forward with any
evidence--let alone clear and convincing proof--that the
defendants engaged in culpable misconduct by failing to disclose
information about the August 2013 accident before the close of
the trial.15

That deficiency alone is enough to doom his request

for relief under Rule 60(b)(3) insofar as it is premised on the
August 2013 crash.
283 (1st Cir. 2002).

See, e.g., Tiller v. Baghdady, 294 F.3d 277,
For largely the same reasons, West has also

failed to satisfy the second prerequisite for that relief, i.e.,
that the defendants’ failure to produce whatever information they
possessed about the August 2013 accident before the verdict
“substantially interfered with [his] ability fully and fairly to
prepare for, and proceed at, trial.”

15

Anderson, 826 F.2d at 926.

West says that “at a minimum, the court must allow
additional discovery or conduct a hearing regarding the August
2013 accident and any other undisclosed uncommanded shutdowns of
a Bell 407 helicopter.” Mem. Supp. Mot. New Trial at 15. While
this court has the “discretion to permit preliminary discovery
and evidentiary proceedings” to resolve a claim of fraud or
misconduct under Rule 60(b)(3), that relief is not appropriate
unless the “the record evidence demonstrates a colorable claim of
fraud” or misconduct. Pearson v. First NH Mtg. Corp., 200 F.3d
30, 35 (1st Cir. 1999). As just discussed, West has come forward
with no record evidence to that effect (such as, for example, an
affidavit from the unidentified maintenance director at the
carrier whose helicopter was involved in the December 2013
accident explaining why it was “indeed an uncommanded shutdown”),
so he is entitled to no additional discovery or other relief.
40

Again, the state of the record is that, prior to the close
of trial, Goodrich knew only that an accident involving a Bell
407 had occurred on August 13, 2013, in the Gulf of Mexico.
Aff. Bruce Millar Supp. Obj. Mot. New Trial at 1-2.

See

Those facts

would not even have been admissible at trial, at least in the
absence of additional evidence showing a substantial similarity
between the August 2013 crash and West’s accident.

See West, 967

F. Supp. 2d at 493-94 (applying Moulton v. Rival Co., 116 F.3d
22, 26-27 (1st Cir. 1997)).
with no such evidence.

Once again, West has come forward

Aside from the double hearsay set forth

in his counsel’s affidavit, in fact, West has no proof that the
August 2013 accident even involved an uncommanded shutdown, let
alone a FOSSA event.

Without such evidence (at a minimum), West

cannot show that the information Goodrich possessed during trial
as to the August 2013 accident was even relevant--and a party
cannot obtain a new trial based on his adversary’s failure to
disclose irrelevant evidence.

See Anderson, 862 F.2d at 924.

Nor has West come forward with anything to suggest that,
had Goodrich disclosed the fact that the accident occurred prior
to the close of trial (and, again, Goodrich did not even know
that until September 9, when trial was already underway), this
disclosure would have enabled him to obtain additional
information about the accident helpful to his case.

Indeed, West

has failed to make the slightest showing that such helpful

41

evidence emerged after the trial ended, let alone while it was
ongoing.16

West offers strictly speculation, not only that the

August 2013 accident was “a potential FOSSA event,” but that the
data from the incident recorder from the affected helicopter
would have either revealed an actual FOSSA event or, instead,
been similar to the data retrieved from the helicopter involved
in West’s accident (thus providing support for his theory that a
FOSSA event can have occurred even if the incident recorder does
not show it).

Mem. Supp. Mot. New Trial at 15.

“To warrant a serious inference that [a] case would have
proceeded differently but for the [nondisclosure] at issue,
something far more specific and telling is required than general
speculation.”

Roger Edwards, LLC v. Fiddes & Sons Ltd., 427 F.3d

129, 136 (1st Cir. 2005).

Because West has provided nothing

more, he has failed to show he merits relief under Rule 60(b)(3)
based on the August 2013 accident,17 see id., even putting aside

16

West acknowledges that the data from the incident recorder
involved in the August 2013 crash was not even scheduled to be
downloaded until November 2013, more than a month after trial
concluded. Aff. Joan A. Lukey Supp. Mot. New Trial, at 2.
While, theoretically, West could have requested a continuance to
allow the investigation to proceed, he does not suggest that he
would have done so, and, as already discussed, West did not even
request such relief when he learned at trial of three additional
accidents that Goodrich acknowledged to be FOSSA events. Nor, as
discussed infra, does West offer anything beyond speculation to
suggest that the results of the investigation into the August
2013 accident would have helped his case.
17

This failure is likewise fatal to any claim by West for
relief under Rule 59 or Rule 60(b)(2) on the theory that the
42

his failure to show culpable misconduct by Goodrich in not
disclosing the occurrence of the accident before trial ended.
2.

January 2014 product alerts

As an additional basis for relief under Rule 60(b)(3), as
well as under Rule 60(b)(2), West relies on product alerts that
Bell and Rolls Royce issued on January 23, 2014, nearly four
months after the trial ended.

Bell’s alert states, in relevant

part, that Bell “has been made aware of a potential condition
where a false engine overspeed protection system activation could
occur,” explaining that the alert “introduces the installation of
an overspeed adapter to reduce the likelihood of a false
overspeed activation as well as introducing a recurring
functional check of the overspeed protection circuits within the”
ECU.

Mot. Rule 60 Relief, Ex. A, at 1.

Rolls Royce’s alert

states, again in relevant part, that “[t]he adapter modifies the
overspeed protection system to reduce the likelihood of a false
overspeed activation,” explaining that “[t]he adapter generates
an open circuit between the ECU and the HMU [hydromechanical
unit] that disconnects the low side switch of the channel A

August 2013 accident amounts to newly discovered evidence. “The
same standard applies for establishing that ground for relief,
whether the motion is under Rule 59 or Rule 60(b)(2).” 11
Wright, supra, § 2808, at 112 (footnote omitted).
As the Court
of Appeals has observed, this standard requires a showing of
prejudice greater than Rule 60(b)(3), which “is more lenient than
its Rule 60(b)(2) counterpart.” Anderson, 862 F.2d at 924 n.10.
43

overspeed circuit and the high side switch of the channel B
overspeed circuit in the ECU.”

Id., Ex. B, at 1.

West argues that these alerts entitle him to relief under
either Rule 60(b)(2), which allows for relief from a judgment
based on newly discovered evidence, or Rule 60(b)(3), which, as
just discussed at length, allows for that relief based on the
prevailing party’s culpably withholding discoverable evidence.
But it is difficult to discern from West’s briefing on the motion
precisely what that “evidence” is.

In a footnote to his

memorandum in support of the motion, West states:
[he] is not contending in this motion that the alerts
themselves constitute “new evidence,” but rather that
the information disclosed in them is. Nor is he
contending in this motion that the hardware and testing
procedure modifications in the alerts are evidence of a
“fix” that would have prevented his accident. Rather,
for purposes of this motion, [West] is contending that
defendants have newly acknowledged that 1,3511 [sic]
Bell 407s, including the accident helicopter, are
susceptible to a previously undisclosed design defect
in the overspeed circuitry.
Mem. Supp. Mot. Rule 60 Relief at 2 n.1.
In their objection, however, the defendants dispute West’s
position that the alerts “disclose a new and previously
unreported mechanism of FOSSA.”
2.

Mem. Obj. Mot. Rule 60 Relief at

In fact, the defendants have submitted affidavits from Millar

(as well as his counterparts at Rolls Royce and Bell) attesting
that the alerts do not describe a previously unknown cause of
FOSSA but, rather, a new way to address the known cause of FOSSA,

44

which is--as West argued at trial, see Part I.A, supra--failures
of the electronic components in the ECU power supplies.
Bruce Millar Supp. Obj. Mot. Rule 60 Relief at 1-2.

See Aff.

As Millar

explains, the alerts address this problem through “the
disconnection of two of the four overspeed system drivers” so as
to “[l]eave [just] one driver associated with the main power
supply and one driver associated with the overspeed power
supply,” thereby “reduc[ing] the possibility of a FOSSA event
caused by component failures in one of the power supplies.”

Id.

Importantly, in his reply, West does not take issue with
this characterization of the alerts.

Instead, he maintains:

it is immaterial to this motion whether the opening of
one of two closed circuits is characterized as a
circuitry design defect, or whether the change is
indicative of an over-all poor FADEC design because
components are known to fail and the resulting errant
signals are twice as likely to reach the overspeed
solenoid with redundant avenues. Either way, these
1,351 helicopters, including the accident helicopter,
have a potential condition where a false engine
overspeed protection system activation could occur.
Reply Mem. Supp. Mot. Rule 60 Relief at 2-3.18

18

The court takes this as a withdrawal of the assertions in
West’s opening memorandum that the “circuitry problem is an
independent mechanism for FOSSA distinct from hardware component
failures” and that, as a result, “the number of FOSSA events, and
therefore the rate at which such events occur, is greater than
defendants represented at trial,” so as to “increas[e] the
statistical probability of FOSSA as the cause of [his] accident.”
Mem. Supp. Mot. Rule 60 Relief at 6-7. In any event, these
assertions were admittedly based on West’s “assum[ing]” a “fact”
that “is not possible to glean” from the alerts themselves,
namely, that the “circuitry problem is an independent mechanism
for FOSSA,” id., so, not only has that “fact” been refuted by the
45

But the fact that the defendants’ products “have a potential
condition where [FOSSA] could occur,” or, as West puts it
elsewhere in his briefing on the motion, are “susceptible to
FOSSA,” id. at 4, is not a new fact--as is clear by now, it was a
fact that was disclosed in, among other places, documents
produced to West in discovery, see Part II.A.1, supra, and
Millar’s testimony at trial, see Part II.C, supra.19

It is also

not news that a recognized cause of FOSSA is that “components are
known to fail” in the ECU, creating “errant signals” that can
“reach the overspeed solenoid.”

Indeed, as is also clear by now,

that was West’s theory at trial, and precisely why and how his
experts testified that the defendants were responsible for his
accident, i.e., that they had wrongly tried to reduce the risk of
FOSSA by reducing the failure rate of the components in the ECU
rather than by reconfiguring the software.

See Part I, supra.

Furthermore, West himself cites Millar’s trial testimony
where, in response to a question from West’s counsel whether

defendants’ sworn submissions, it had no support to begin with.
Accordingly, the court rejects any argument West is still making
that the alerts disclose an “independent mechanism for FOSSA
distinct from hardware component failures.”
19

West makes much of the fact that the serial number of the
helicopter he was flying at the time of his accident is in the
range of Bell 407 serial numbers to which the alerts are
directed. The court fails to appreciate the significance of this
fact--so far as the court understands, documents and testimony
provided by the defendants and their witnesses before and at
trial revealed the potential for FOSSA in all Bell 407s equipped
with same engine and ECU as the one involved in his accident.
46

FOSSA is “a short of a component, a leakage of some kind in the
ECU, [that] can affect the overspeed protection system,” he
responded, “Yes.

A component in a power supply can--has caused

the FOSSA condition.”

Reply Mem. Supp. Mot. Rule 60 Relief at 4

n.4 (quoting Tr. Trans. Sept. 20, p.m., at 46-47).

While West

asserts that this testimony admits “only that there could be, and
had been in the past, components that caused FOSSA,” id. at 4
(emphasis omitted), the court fails to appreciate the distinction
between that fact and what West says the alerts have revealed.
West’s position seems to be that, because the defendants did
not, at trial, “acknowledge unequivocally that FOSSA events
result from failures of component parts in the engine’s FADEC
which result in errant closure of the overspeed solenoid,” the
fact that they have done so in the alerts (at least as West
interprets them) entitles him to relief.
Rule 60 Relief at 3-4.

Reply Mem. Supp. Mot.

But the alerts’ “acknowledgment” cannot

serve as newly discovered or previously undisclosed evidence for
the purposes of Rule 60(b)(2) or (3).

As just noted, West has

disclaimed any argument that “the alerts themselves constitute
‘new evidence,’” Mem. Supp. Mot. Rule 60 Relief at 2 n.1, and as
“evidence that came into existence after the judgment,” they
plainly are not.

Rivera v. M/T Fossarina, 840 F.2d 152, 156-57

(1st Cir. 1988).

Of course, documents created after the entry of

judgment can reveal facts that were themselves in existence prior

47

to the judgment, and therefore potentially qualify as “newly
discovered evidence” under Rule 60(b)(2).

See 12 James William

Moore et al., Moore’s Federal Practice § 60.42[3][a], at 60-126
(3d ed. 2007).

But even if, on this theory, the alerts evince

the defendants’ pre-judgment awareness of the potential for FOSSA
in their products due to the failure of electronic components in
the ECU, West’s motion still fails.

Again, West received

evidence before trial that the defendants were in fact aware of
that problem (including in documents they produced to him in
discovery) and, indeed, presented it at trial in support of his
theory that the defendants knew of that problem but failed to
properly remedy it.
West also seems to suggest that the alerts reveal the
defendants’ pre-judgment knowledge that the then-existing
configuration of circuitry in the ECU (i.e., with four drivers
connected to the overspeed solenoid instead of two) made FOSSA
“more likely--apparently twice as likely--to result if a
component failure occurred because there were two circuits,
instead of one, conveying current between the ECU and the
overspeed solenoid.”

Reply Mem. Supp. Mot. Rule 60 Relief at 4.

But, even assuming that the alerts do reveal the defendants’
awareness of this fact,20 and, furthermore, that they came by

20

It is worth noting that neither the alerts nor the
affidavits the defendants have submitted to explain them state
that halving the number of circuits connected to the solenoid
48

this awareness prior to the end of the trial, West has still
failed to show that he is entitled to relief under either Rule
60(b)(2) or Rule 60(b)(3) as a result.
As discussed at the outset of this section, a party seeking
relief from judgment on the basis of newly discovered evidence
must prove, among other things, that “the evidence is of such a
nature that it would probably change the result were a new trial
to be granted.”

U.S. Steel, 315 F.3d at 52.

Without

acknowledging this standard, West argues that the jury “was
forced to make [the] determination” of “whether the FADEC was a
safe product or whether it was instead defective” without the
evidence he perceives in the alerts “relating to the
susceptibility of [his] helicopter to FOSSA and the
enhanced--likely doubled--likelihood of FOSSA in the event of a
component failure.”

Reply Mem. Supp. Mot. Rule 60 Relief at 5.

But, as already noted, the jury was not tasked merely with
determining whether some defect existed in the defendants’
products, but whether such a defect caused West’s accident.
Part II.A.1, supra (citing Vatour, 147 N.H. at 154.)

See

As also

already noted, West expressly disclaims any theory that “the
hardware and testing procedure modifications in the alerts,”

necessarily halves the risk of FOSSA and, while that conclusion
does not seem unreasonable by any means, it would seem to need
support from something aside from the assertions of counsel in a
brief, if not expert testimony. But West has not offered any
evidentiary support for his interpretation of the alerts.
49

including the elimination of the redundant circuits, “are
evidence of a ‘fix’ that would have prevented his accident.”
Mem. Supp. Mot. Rule 60 Relief at 2 n.1.

So even if the

redundant circuitry in the ECU was a defect--and it should be
noted that West’s experts, who studied the configuration of the
circuitry as part of their work on the case, never themselves
identified any such defect--then it was a defect that did not
cause West’s injuries.

Accordingly, evidence of that “defect”

(or, more precisely, the defendants’ awareness of it) could not
have changed the outcome of the trial.

For that reason alone,

this evidence cannot be the basis for relief under Rule 60(b)(2).
See Mitchell, 141 F.3d at 18.
The acknowledged lack of any causal connection between the
redundant circuitry and West’s accident also disentitles him to
any relief under Rule 60(b)(3) on the theory that the defendants
culpably withheld their knowledge of that alleged defect from
West before or during the trial.

Assuming that West could prove

the defendants’ culpability by clear and convincing evidence (a
point that the defendants vigorously contest and that this court
need not and does not decide), he cannot obtain relief under Rule
60(b)(3) unless he also proves by a preponderance of the evidence
that this misconduct “substantially interfered with [his] ability
fully and fairly to prepare for, and proceed at, trial.”
Anderson, 826 F.2d at 926.

West has failed to carry that burden.

50

Again, evidence of an additional defect (or the defendants’
awareness of a defect) in the ECU is inadmissible unless the
defect contributed to West’s accident, see Part II.A.1, supra
(citing Weir, 217 F.3d at 460-61), and West is expressly not
making that claim.

As also mentioned already, a party cannot

obtain a new trial based on his adversary’s failure to disclose
irrelevant evidence, at least without a showing that the
non-disclosure nevertheless substantially interfered with the
movant’s trial preparation or presentation.
F.2d at 924.

See Anderson, 862

Because West has failed to make that showing, his

motion for relief from judgment is denied, insofar as it is
premised on the alleged disclosure of an additional defect in the
ECU in the January 2014 alerts.
D.

Failure to warn and res ipsa loquitur

In further support of his new trial motion, West argues that
this court erroneously refused to instruct the jury on theories
of failure to warn and res ipsa loquitur, ruling that he had
failed to present sufficient evidence for a jury to find in his
favor.

“The standard for determining whether a factual issue is

sufficiently contested to require an instruction is identical to
the standard for determining whether a factual inquiry prevents
the entry of judgment as a matter of law.”

Wilson v. Maritime

Overseas Corp., 150 F.3d 1, 10 (1st Cir. 1998).

Judgment as a

matter of law, in turn, is appropriate where “a party has been
51

fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.”
Civ. P. 50(a)(1).

Fed. R.

As fully explained below, West did not

introduce (or, in the case of his warning claim, proffer)
adequate evidence at trial for a reasonable jury to have found in
his favor on either his failure-to-warn or his res ipsa loquitur
theories, so this court correctly declined to instruct the jury.
1.

Failure to warn

New Hampshire law requires that the user of a product “be
adequately and understandably warned of [its] concealed dangers”
by its manufacturer.

Brochu v. Ortho Pharm. Corp., 642 F.2d 652,

656 (1st Cir. 1981) (citing Thibeault v. Sears, Roebuck & Co.,
118 N.H. 802, 808 (1978)).

To recover for a manufacturer’s

failure to give an adequate warning, however, a plaintiff must
prove that “the failure to warn adequately was a proximate cause”
of his injuries.

Id.

It follows that, “if a user is already

aware of the dangers” of using a product, “the lack of warning is
not the proximate cause of the injury” he suffers when those
dangers become manifest.

In re Prempro Prods. Liab. Litig., 514

F.3d 825, 830 (8th Cir. 2008) (quotation marks omitted); see
also, e.g., 2 Louis R. Frumer & Melvin I. Friedman, Products
Liability § 12.07[4], at 12-199--12-202 (rev. ed. 2001 & 2013
supp.) (citing additional cases).
52

Based on these principles, the court declined to give
instructions that West had included in his written requests,
entitled “Negligence--Manufacturer’s Duty to Warn” and “Strict
Liability--Failure to Warn.”
(typeface altered).

West’s Prop. Jury Instr. at 12, 20

As the court explained at the on-the-record

portion of the charging conference, the defendants’ duty was “to
warn of a risk of injury,” i.e., by “a power cutoff” in the
engine, rather than “the precise cause of the risk,” i.e., a
FOSSA event.

Tr. Trans. Sept. 27, 2013, at 5.

West, however,

testified at trial to his awareness, “as part of [his] training
and experience as a pilot[,] that something might go wrong, [he]
could lose engine power or something else that would cause [him]
to go into an autorotation and put the helicopter down.”
Trans. Sept. 18, p.m., at 23.

Tr.

Indeed, Rolls Royce’s operation

and maintenance manual for the engine installed in the helicopter
West was flying at the time of his accident specifically warns
that the operator may need to “make an autorotational landing in
case of power loss or engine failure” (capitalization omitted)
Ex. 544, at 27.

Thus, as the court ruled at trial, West was

aware--in part because the product manual told him--of the danger
that the engine could lose power during flight, necessitating an
autorotation.

Tr. Trans. Sept. 27, 2013, at 5-6.

That was, of

course, precisely the danger that emerged to cause West’s
accident, i.e., the engine lost power, forcing him to land the

53

helicopter through an autorotation procedure that left him with
physical and psychological injuries.
Needless to say, a plaintiff cannot make the required
showing that his “accident would not have happened had [the
defendant] adequately warned him of the danger of using” its
product where “the very danger of which [the defendant] had
warned came to pass, causing his injury.”

Coleman v. Ford Motor

Co., No. 11-359, 2012 WL 4757889, at *3 (D.N.H. Oct. 5, 2012).
West nevertheless states that any “warnings with regard to
flameouts generally”--and, presumably, his own admitted knowledge
as to “flameouts generally,” i.e., that they could occur during
flight and necessitate landing by way of autorotation--were not
fatal to his failure-to-warn theory, since FOSSA “is factually
distinct from other flameouts because the auto-relight system is
programmed to shut itself off in circumstances that attach to
both real and false overspeed events.”
at 17.

Mem. Supp. Mot. New Trial

This statement is unexplained, by way of citation to the

record or otherwise, but, as best the court can understand West’s
point, it seems to be (as he articulated at the charge
conference) that the jury could rationally have found that, while
the ECU is programmed to attempt to automatically re-ignite the
engine following garden-variety flameouts, a flameout due to
FOSSA will not trigger this automatic relight function.
Trans. Sept. 27, a.m., at 8.

54

See Tr.

But West was not warned merely that a flameout could occur
during flight, triggering the automatic relight system--he was
warned that a flameout could occur during flight, necessitating
an autorotational landing.

That, in essence, is the worst-case

scenario a pilot can face as a result of a flameout since, as far
as the court understands the evidence on this point (which,
again, West has not endeavored to explain in his new trial
motion), an autorotational landing is not necessary if the
relight function successfully restarts the engine to allow the
helicopter to continue flying.

It follows that, again, West was

warned, and admittedly knew, about the risk of exactly the danger
he encountered:

a flameout of the engine during flight that

necessitated an autorotation.
West also argues, as he did at the charge conference, that
he “would have testified that he would not have flown the Bell
407 equipped with the [relevant] FADEC had he known about
FOSSA.”21

Mem. Supp. Mot. New Trial at 18.

21

This argument

At trial, this court excluded this proffered testimony as
inadmissible speculation based on the decision by the Court of
Appeals in Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10 (1st
Cir. 2001). There, the Court of Appeals upheld the exclusion--as
“speculative and not based on [the witness’s] contemporaneous
perceptions”--of testimony by the purchaser of a sweatshirt that
had caught fire “that [if] the sweatshirt displayed a warning
label [as to its flammability], she would have acted
differently,” including “by not purchasing the sweatshirt at
all.” Id. at 15 n.8. In his motion for new trial, West attempts
to discredit Wilson, largely by relying on what he reads as
contrary authority from other jurisdictions, as well as to
distinguish it by pointing out that, “once he learned about
55

ignores the fact that, again, West knew about the danger that a
FOSSA event--or any other problem that causes a loss of engine
power--produces, i.e., a mid-air flameout requiring an
autorotational landing.
As noted at the outset of this section, “a user must be
adequately and understandably warned of concealed dangers” from a
product.

Brochu, 642 F.2d at 656 (emphasis added).

West

provides no authority or argument in support of the notion that,
in addition to warning users of a product’s dangers, a
manufacturer also must also advise them of the precise mechanism
that brings those dangers about.

To the contrary, so long as the

plaintiff was aware of the danger of injury from using a product,
or using a product in a particular way, it is immaterial whether
he also knew of the precise manner in which the injury could
occur.

See Clarke v. LR Sys., 219 F. Supp. 2d 323, 329-30

(E.D.N.Y. 2002) (granting summary judgment against failure-towarn claim arising out of plaintiff’s injury to his hand from the
“nip point” between a pulley and a moving belt carrying blades

FOSSA,” he stopped flying the Bell 407. Mem. Supp. Mot. New
Trial at 18-20. The court finds these arguments unpersuasive,
and stands by its ruling at trial that Wilson is controlling
authority that it is inadmissible speculation for a plaintiff to
testify that, had he been warned of a product’s dangers, he would
not have used it (even if, as the court suspects is almost always
the case, the plaintiff in fact stopped using the product after
he learned of its danger by suffering an injury). Regardless of
whether that ruling was correct, though, West had been warned of
the relevant danger, as discussed at length in the main text.
56

through a machine because he “was aware that putting his hand on
[the belt] could result in significant injury--it does not matter
whether this harm would be from the blades or the nip point”).
The bottom line is that West was warned, and admitted
knowing, that a loss of engine power during flight could force
him to make an autorotational landing--which is precisely the
manner in which he claimed that his accident, and the resulting
injuries, occurred.

No “failure to warn” on the part of the

defendants, then, could have proximately caused these injuries.
This court acted properly in refusing to instruct the jury on
West’s failure-to-warn theory.22

See Wilson, 250 F.3d at 14-15;

see also Fed. R. Civ. P. 50(a) advisory committee’s note (1991)
(explaining that Rule 50(a) should be applied where a party is
“unable to carry a burden of proof that is essential to [his]
case”).

Insofar as it is based on that ruling, West’s motion for

a new trial is denied.

22

In opposing West’s motion, the defendants argue, as they
did at trial, that his failure to warn claim was deficient in an
additional respect--the lack of any expert testimony as to the
need for a warning. See Beaudette v. Louisville Ladder, Inc.,
462 F.3d 22, 27 (1st Cir. 2006) (citing Lemay v. Burnett, 139
N.H. 633, 634-35 (1995)). The court need not reach this
argument, since, regardless of whether West had adequate proof of
the need for a warning, he had no proof that the lack of any
warning, even were one needed, proximately caused his injuries.
57

2.

Res ipsa loquitur

West also argues that the court erred by failing to instruct
the jury as to res ipsa loquitur.

As West acknowledges, “[f]or

that doctrine to apply it is necessary that (1) the accident be
of a kind which ordinarily does not occur in the absence of
someone’s negligence; (2) it must be caused by an instrumentality
within the exclusive control of the defendant; and (3) other
responsible causes are sufficiently eliminated by the evidence.”
Rowe v. Pub. Serv. Co. of N.H., 115 N.H. 397, 399 (1975).

In

declining to instruct the jury on this theory, the court agreed
with the defendants that “the exclusive control of the
instrumentality requirement just could not be met under the state
of this record.”

Tr. Trans. Sept. 27, 2013, at 3-4.

The “instrumentality” that caused West’s accident was the
helicopter, which, at the time of the accident, was in his
control and, in the days just prior to the accident, was in the
control of other employees of JBI.

As discussed supra, the

defendants introduced evidence, including expert testimony, that
it was West’s and JBI’s treatment of the helicopter prior to his
flight, including their failure to properly clean ice and snow
from it, that caused the accident.

New Hampshire does not allow

the use of res ipsa loquitur “when the instrumentality is no
longer in the exclusive control of the defendant and where
someone else’s negligence may cause or contribute to cause the

58

accident.”
(1952).

Smith v. Coca Cola Bottling Co., 97 N.H. 522, 524

Because that was the state of the record here, this

court correctly declined to instruct the jury on res ipsa
loquitur.

See id. (upholding non-suit of a claim, premised on

res ipsa loquitur, for injuries plaintiff suffered when a soda
bottle exploded in a case he was removing from the defendant’s
truck); see also McConchie v. Samsung Elecs. Am., Inc., No. 9940, 2000 WL 1513777, at *3 (D.N.H. Aug. 11, 2000) (granting
summary judgment against negligence claim, premised on res ipsa
loquitur, arising out of fire allegedly started by defective oven
“because when the accident occurred, the oven was installed in
the kitchen of the plaintiffs’ house and was not in the exclusive
control of the defendants,” who manufactured and sold it).

West

is not entitled to a new trial based on this court’s refusal to
instruct the jury on the doctrine of res ipsa loquitur.
E.

Ex parte submissions

Prior to the start of the trial, this court ordered that
“the parties may file, under seal and ex parte at Level II [under
this court’s rules for filing under seal, L.R. 83.12(b)(2)]
memoranda calling and focusing this court’s attention on any
particular issues the respective parties believe will be
pertinent to the court’s consideration of any expected Rule 50
motions, citing applicable authority and referring to evidence
the parties believe will be presented (or not presented) at
59

trial.”

Order of Aug. 19, 2013, at 4.

The court explained that

these memoranda would be “unsealed and exchanged by the parties
upon the filing or making of any Rule 50 motion.”

Id.

This

procedure was discussed with--and agreed to by--all counsel at
the off-the-record portion of the final pre-trial conference.
West concedes that he “did not initially object to the
[final pre-trial] order.”

Mem. Supp. Mot. New Trial at 23 n.21.

In fact, West did not object to the order permitting the ex parte
submissions at any point during the trial, and he does not claim
otherwise.

To the contrary, West availed himself of the

opportunity to make his own ex parte submission in accordance
with the order.

This submission, moreover, did not simply argue

that West would present sufficient evidence to survive any
anticipated Rule 50 motions by the defendants.

It affirmatively

argued that the expected trial evidence would support the entry
of judgment as a matter of law in West’s favor as to several
issues, including the defendants’ liability.

Pl. Ex Parte Rule

50 Memo. at 2.
West nevertheless complains that he “participated in sixteen
days of trial, a Rule 50 conference and a charging conference
without the opportunity to see the arguments made by opposing
counsel, let alone respond to them.”
at 23.

Mem. Supp. Mot. New Trial

But, again, West knew when he agreed to the procedure set

forth in the final pre-trial order that he would indeed be trying

60

his case without first seeing the arguments presented in the
defendants’ submissions, just as they would be trying their cases
without first seeing the arguments presented in his.

And, as

soon as the court began hearing argument on the defendants’ Rule
50 motions, it ordered the ex parte submissions unsealed, as
contemplated by the final pretrial order.23

See Tr. Trans. Sept.

26, 2013, a,m., at 6.
The procedure the court followed as to the parties’ ex parte
submissions, then, was the very procedure that West had
acquiesced in--and, for that matter, taken advantage of--from the
outset.

It follows that West cannot obtain a new trial based on

this court’s consideration of the defendant’s ex parte
submissions.

See, e.g., Venture Tape Corp. v. McGills Glass

Warehouse, 540 F.3d 56, 62 (1st Cir. 2008).
Even putting that problem aside, however, West has not shown
that the court’s receipt of the ex parte submissions caused him
any prejudice.

His statement that this court “made critical

rulings, dismissing [his] failure to warn claims, breach of
warranty claims and his negligence claim [against] Bell

23

While the unsealing did not immediately occur as ordered,
West did not bring that to the court’s attention until the next
day, after the case had already gone to the jury. See Tr. Trans.
Sept. 27, a.m., at 30. So his complaint in his new trial motion
that “the ex parte memoranda were not unsealed until September
27, 2013, after the jury was instructed,” Mem. Supp. Mot. New
Trial at 23 n.22, is not well-taken.
61

Helicopters [sic] while only hearing one side of the story,” Mem.
Supp. Mot. New Trial at 23, is demonstrably false.
As, again, the court expressly stated in its pre-trial
order, the ex parte did not themselves serve as Rule 50 motions,
but served only to alert the court to the potential bases for any
Rule 50 motions that were eventually made, so that the court
could focus on the evidence at trial accordingly.
Sept. 26, 2013, a.m., at 8.

Tr. Trans.

The court therefore required the

parties to state the grounds for their Rule 50 motions on the
record, and gave West the opportunity to object, before the case
was submitted to the jury.

Id. at 5-11.

That opportunity

followed a one-hour off-the-record charging conference,24 at
which this court heard argument from all parties--including
West--as to, inter alia, whether the evidence was sufficient to
instruct the jury as to his failure-to-warn and warranty claims
against all defendants and his negligence claim against Bell.
See Minute Entry of Sept. 26, 2013.
Accordingly, West was aware of the bases of the defendants’
challenges to those claims, and had ample opportunity--of which
he availed himself--to respond, before the court ruled that, as
the defendants had argued, West had failed to adduce sufficient

24

West did not object to holding the charge conference offthe-record, and does not now claim it was improper to do so.
Furthermore, the court allowed the parties to put their arguments
on the record after the case went to the jury. See infra n.24.
62

evidence for a rational jury to find in his favor on his claims
for breach of the implied warranty of fitness for a particular
purpose and failure-to-warn against all defendants and his
negligence claim against Bell.25

West’s suggestion that the

court made those rulings without hearing from him is manifestly
incorrect (and that is probably the kindest thing that can be
said about it).

Because West acquiesced in this court’s receipt

of ex parte memoranda as to the parties’ anticipated Rule 50
motions, and because that procedure caused him no harm in any
event, his motion for a new trial on that basis is denied.
F.

“Declination” to resolve discovery or scheduling
disputes

Finally, a footnote in West’s new trial motion makes two
rather astonishing claims.

First, West asserts that he “was

limited in his ability to pursue information about [FOSSA] by the
court’s declination to rule on a critical motion for protective
order,” Mem. Supp. Mot. New Trial at 2 n.1, in which the
25

The court also held a dedicated session of oral argument
the next day, after the case had gone to the jury, so that the
parties “could put their objections on the record” as to the
court’s jury instructions (the pre-charge conference had occurred
off-the-record). Tr. Trans. Sept. 27, 2013, at 2. At this
session, the defendants re-stated, in some detail, the bases for
their Rule 50 motions as to the failure-to-warn and warranty
claims, as well as the negligence claim against Bell--claims
which, for those reasons, the court had not submitted to the
jury--and the court expressly advised West’s counsel that, in
response, “you can make any argument you want. It’s up to you.”
Id. at 4-13, 15-20. Counsel for West took full advantage of that
opportunity as well. Id.
63

defendants had sought protection against certain of West’s
discovery requests, see Defs. Jt. Mot. Prot. Order (document no.
92).

Indeed, West goes so far as to suggest that the court

“refus[ed] to participate in this discovery dispute.”
Mot. New Trial at 2 n.1.

Mem. Supp.

Second, West claims that he “was

hampered in his ability to prove the occurrence of FOSSA by
component testing by the court’s declination to weigh in on the
parties’ dispute as to whether testing [of the components in the
ECU involved in his accident] should occur with a corresponding
delay in trial.”

Id.

Insofar as these alleged “declinations”

are urged as the basis for a new trial, the “argument” is
insufficiently developed to warrant attention.
F.3d at 260.

See Higgins, 194

Nevertheless, this court must point out that the

record absolutely refutes any suggestion that it failed or
refused to resolve any of the parties’ discovery or scheduling
disputes, numerous though they were.
As to the defendants’ joint motion for protective order, the
court simply advised the parties that, because it had
“prioritized trials and dispositive motions in other cases
requiring more immediate attention,” it did “not anticipate an
expeditious resolution of their discovery disputes”--which, at
that time, included not only those raised in the joint motion for
protective order (document no. 93), but also in a total of five
other discovery motions filed by West (document nos. 95, 107) and

64

certain defendants individually (doc. nos. 84, 86, 91).
July 20, 2012.

Order of

The court later advised the parties that it had

at that point “undertaken active consideration” of those very
same motions (with the exception of one that had since been
withdrawn).

Order of Jan. 4, 2013.

Less than one month later,

however--when the court was “on the verge of issuing a
comprehensive order resolving all pending motions,” Order of Feb.
7, 2013--the parties jointly advised the court that they had
“negotiated an agreement to resolve most of the pending discovery
disputes in the case,” including those raised by the defendants’
joint motion for a protective order, which was now moot.

See Jt.

Mot. Clarify Order of Feb. 1, 2013 (doc. no. 130).
West’s assertion that the court “refus[ed] to participate”
in the discovery disputes raised by that motion, then, is simply
untrue--as is the notion that this court did anything remotely
improper by advising the parties that other pressing matters
would prevent an immediate resolution of their six voluminously
briefed discovery motions.26

Like any other litigant embroiled

in a discovery dispute, West was free to decide whether to await
the court’s resolution of it or to negotiate one with the
defendants; with the assistance of his seasoned trial counsel and

26

Among work on other matters, this court was at that time
readying for an expedited bench trial in case seeking relief from
a non-custodial parent’s alleged international abduction of a
child under the Hague Convention. See Thompson v. Gnirk, No. 12220 (filed June 12, 2012; tried Aug. 2-3, 2012).
65

her four junior colleagues, all from one of the premier law firms
in the country, he chose to negotiate a resolution before this
court issued a ruling.

His apparent regret at that decision now

is, obviously, no basis for a new trial, even putting aside the
fact that he makes not the slightest effort to explain how
whatever discovery he might have received in a ruling on the
motion (even it was fully favorable) would have put him in a
better position to win at trial than the discovery he chose to
receive by agreement.
West is also dead wrong that this court “declin[ed] to weigh
in on the parties’ dispute as to whether testing [of the
components in the ECU involved in his accident] should occur with
a corresponding delay in trial.”

Not only did the court “weigh

in” on that dispute, it decided it, by denying the parties’
competing motions to extend certain of the expert discovery and
challenge deadlines (each of which sought to extend those
deadlines to different dates) in order to accommodate that
testing.

Order of Apr. 11, 2013.

As the court observed, the

parties had recognized the need to perform the testing in late
August 2012, but had not sought the extension of deadlines that
they knew the testing would necessitate until March 18, 2013,
after all of the expert discovery and challenge deadlines had
already expired.

Id. at 2.

Because neither West nor the

defendants made any effort to explain the intervening six months

66

of apparent inaction, this court denied their motions to extend
the deadlines for lack of the necessary showing of good cause.
Id. at 2-3 (citing Fed. R. Civ. P. 16(b)).
West does not even suggest, let alone attempt to show, that
this decision was incorrect; instead, as just noted, he suggests
that the court did not even make any such decision.

In any

event, the court specifically advised the parties that its
decision not to extend the deadlines did not prevent them “from
jointly seeking to extend (or, more accurately, resuscitate) the
deadlines to dates as to which they are able to agree.”
3.

Id. at

The next the court heard from the parties on this matter was

by way of a joint motion seeking the approval of a new stipulated
scheduling order that, they explained, would extend some of the
expert discovery and challenged deadlines without affecting the
trial date, “to which all parties wish to adhere.”

Jt. Mot. for

Third Stip. Sched. Order (document no. 156), at 1.

The joint

motion also stated that, under the new stipulated scheduling
order, the “defendants will forego motions for summary judgment
(and plaintiff will forego unilateral capacitor testing).”
(capitalization omitted; emphasis added).
motion.

Id.

The court granted this

Order of Apr. 19, 2013.

So, just as West elected to proceed to trial after agreeing
to receive narrower discovery about FOSSA than he had originally
requested, he likewise elected to proceed to trial after agreeing

67

to forego testing the capacitors from the ECU involved in his
accident.

In fact, he agreed to forego that testing in exchange

for the defendants’ agreement to forego moving for summary
judgment.

So any hindrance to West’s “ability to prove the

occurrence of FOSSA by component testing” was the product of the
strategic choices of his counsel, rather than the court’s alleged
“declination” to resolve the parties’ competing motions to revive
lapsed deadlines so that such testing could occur (when, in fact,
the court ruled on those motions less than a month after they
were filed).

West’s decision not to test the capacitors in the

ECU from his accident, then, cannot serve as the basis of a new
trial--putting aside the fact that, as a consequence of that
choice, neither he nor the defendants have the slightest idea
what that testing would have shown (it may have, of course,
conclusively refuted West’s theory that a component failure in
the ECU had created the FOSSA event that caused his accident).
III. Conclusion
For the foregoing reasons, West’s motion for a new trial27
and his motion for relief from judgment25 are DENIED.

27

Document no. 349.

25

Document no. 396.
68

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

September 30, 2014

Joan A. Lukey, Esq.
Jesse M. Boodoo, Esq.
Justin J. Wolosz, Esq.
Sara Gutierrez Dunn, Esq.
John P. O’Flanagan, Esq.
L. Robert Bourgeois, Esq.
Martha C. Gaythwaite, Esq.
Brian M. Quirk, Esq.
James C. Wheat, Esq.
Jason L. Vincent, Esq.
Jeffrey H. Karlin, Esq.
Pierre A. Chabot, Esq.
Phillip S. Bixby, Esq.
Marie J. Mueller, Esq.
R. Matthew Cairns, Esq.

69