DORTON v. HENDRICK MOTORSPORTS, INC. et al
Filing
220
MEMORANDUM OPINION AND ORDER ON MOTION FOR NEW TRIAL. For the reasons set forth, 216 Motion for New Trial by Dianne H. Dorton, as personal representative of the estate of Randall Alexander Dorton, is DENIED. Signed by JUDGE THOMAS D. SCHROEDER on 6/1/2011. (Solomon, Dianne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DIANNE H. DORTON, as Personal
Representative of the Estate of
RANDALL ALEXANDER DORTON,
Plaintiff,
v.
HENDRICK MOTORSPORTS, INC.,
JOHN P. TRACY, as Personal
Representative of the Estate of
RICHARD EDWARD TRACY; RICHARD M.
MORRISON, as Personal
Representative of the Estate of
ELIZABETH LEE MORRISON; and
HMS HOLDINGS LIMITED PARTNERSHIP
Defendants and
Third-Party Plaintiffs,
v.
UNITED STATES OF AMERICA,
Third-Party Defendant.
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1:06CV431
MEMORANDUM OPINION AND ORDER
ON MOTION FOR NEW TRIAL
THOMAS D. SCHROEDER, District Judge.
This case was one of several arising from the crash of a
private aircraft.
Trial occurred in phases.
By this court‟s
prior Order, claims by Plaintiff Dianne H. Dorton, as personal
representative
of
the
Estate
of
Randall
Alexander
Dorton
(“Dorton”), were tried to a jury in April and May 2009, and
claims
by
certain
of
the
Third-Party
Plaintiffs
against
the
United
States
for
alleged
air
traffic
controller
tried to the court from July 7 through 24, 2009.1
fault
were
Both the jury
and this court found no liability.
Presently before the court is Dorton‟s motion for new trial
in her jury trial, pursuant to Federal Rule of Civil Procedure
59.
(Doc. 216.)
Defendants have responded (Doc. 218), and
Dorton has filed a reply (Doc. 219).
The court has carefully
considered all arguments raised by the parties, and the motion
is ripe for resolution.
I.
STANDARD FOR NEW TRIAL
Federal Rule of Civil Procedure 59 provides that, following
a jury verdict, the court may grant a new trial based on “any
reason for which a new trial has heretofore been granted in an
action at law in federal court.”
Fed. R. Civ. P. 59(a)(1)(A).
A court should grant a new trial if the verdict (1) “is against
the clear weight of the evidence, or (2) is based upon evidence
which is false, or (3) will result in a miscarriage of justice,
even
though
there
may
be
substantial
prevent the direction of a verdict.”
F.3d
625,
639
(4th
Cir.
2001)
evidence
which
would
Knussman v. Maryland, 272
(citations
omitted).
In
determining the clear weight of the evidence, the court may
1
Dorton brought her own claims against the United States that were
adjudicated, along with the claims of other plaintiffs whose actions
were consolidated, in the bench trial.
See Turner v. United States,
736 F. Supp. 2d 980 (M.D.N.C. 2010).
2
weigh the evidence and make credibility judgments.
Ratcliff,
874
F.2d
219,
223
(4th
Cir.
1989).
Poynter v.
The
decision
whether to grant a new trial lies in the sound discretion of the
district court.
Knussman, 272 F.3d at 639 (citing Cline v. Wal-
Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)).
II.
ANALYSIS
Dorton contends that a new trial should be granted on the
grounds that the verdict is “against the great weight of the
evidence,” is based on false evidence, and would result in a
miscarriage of justice.
(Doc. 216 at 1.)
In order to address
each of these arguments, a recitation of the evidence presented
at trial is in order.
This case involves claims arising out of the crash of a
Beechcraft Super King Air 200 turboprop aircraft on October 24,
2004, as it attempted to land at the Martinsville, Virginia,
airport (designated “MTV”).
The aircraft, designated by its
tail number N501RH, was owned by Hendrick Motorsports, Inc., and
was
operated
by
a
corporate
Motorsports NASCAR teams.
affiliate
of
the
Hendrick
Though the flight was scheduled to
depart the Concord, North Carolina, airport at 10:30 a.m. to
allow it to arrive at MTV in time for a 1:00 p.m. race, low
cloud ceilings at MTV delayed the take-off until approximately
11:56 a.m.
3
The
Elizabeth
pilots
Lee
were
Morrison
Richard
Edward
(“Tracy”)
Tracy
(“Morrison”).
Tracy
was
a
and
former
commercial airline pilot with over 10,000 hours of experience,
and Morrison had over 2,000 hours of experience.
Both Tracy and
Morrison were aware that approximately ten nautical miles to the
northwest
of
the
approach
end
of
MTV
runway
302
lay
Bull
Mountain, which required care in maneuvering any aircraft in its
vicinity.
During a briefing on the morning of the flight, the
Federal Aviation Administration (“FAA”) informed Tracy that Bull
Mountain would be obscured by clouds.
Because of the low overcast skies, the pilots were required
to execute an instrument flight rules (“IFR”) approach, meaning
they would be dependent upon their instruments for the approach
to MTV runway 30.
More specifically, they would be cleared by
the air traffic controllers to execute a “localizer approach,”
which
required
the
pilots
to
use
certain
instrumentation
to
orient the aircraft properly toward MTV runway 30 for a safe
landing.
The localizer approach is
reflected in
a document
known as an “approach plate,” which the pilots were required to
maintain onboard and to follow in executing the approach.
2
All references to miles are to nautical miles, which are
approximately 1.15 statute miles.
Runways are designated by their
magnetic compass heading, without the last digit (i.e., rounded to the
nearest multiple of ten degrees).
So an aircraft approaching MTV
runway 30 does so on a compass heading of approximately 300 degrees -in the case of MTV, 305 degrees (i.e., northwest).
4
In
this
designated
southeast
case,
the
“BALES,”
of
the
localizer
which
threshold
was
to
approach
located
MTV
began
five
runway
at
a
miles
30.
This
point
to
the
runway
threshold is also referred to as the “missed approach point.”
At the missed approach point, pilots are required by 14 C.F.R.
§ 91.175 to determine whether they have a sufficient visual view
of the runway environment and are capable of landing safely; if
they do not, they are required to abort the landing and fly a
designated missed approach procedure depicted on the approach
plate.
In this case, the missed approach procedure called for a
climbing right turn.
Although not designated as such on the
approach plate, the climbing turn accommodates the presence of
Bull
Mountain
approximately
10
miles
past
the
threshold
of
runway 30.
The
aircraft
was
equipped
with
multiple
instruments
designed to assist the pilots in navigating the approach to MTV,
and the parties agree that the pilots were trained and expected
to routinely scan them in order to fly the approach safely.
First, each pilot had an Automatic Direction Finder (“ADF”).
The ADF displays a needle that continuously points to a radio
signal emanating from a ground beacon where BALES is located.
When an aircraft passes BALES, the needle is designed to swing
180 degrees to advise the pilots that the plane is passing over
BALES and is thus on course to land.
5
Second, the aircraft was equipped with a light and device
that emits an audible tone (if turned on) that would illuminate
and sound, respectively, when the aircraft passes over BALES.
Third, each pilot had a Course Deviation Indicator (“CDI”),
which enabled the pilots to properly align the aircraft with the
center line of the runway.
If the CDI deflects fully to the
left or right at any time after the aircraft passes BALES en
route to land, the pilots are required to immediately implement
a “missed approach.”
Fourth,
each
pilot
had
Distance
Measuring
Equipment
(“DME”), which measured the aircraft‟s distance from a beacon
located a short distance beyond the northwest end of runway 30
(and thus six miles from BALES).
The DME displays the distance
to the nearest tenth of a mile.
As an aircraft approaches the
runway from the southeast, the mileage continually decreases;
conversely, as the aircraft flies away from the runway, the DME
readout continually increases.
The DME assists the pilots in
measuring their distance from the threshold of the runway to
land safely.
Fifth, each pilot had a timer they were required to use in
order to determine whether the aircraft had reached the missed
approach
point.
The
approach
plate
provided
figures
that
enabled the pilots to calculate the time that should elapse
6
during the descent so the pilots could fly a correct descent
profile and reach the missed approach point.
Sixth, the aircraft was equipped with a Global Positioning
System (“GPS”).
The GPS was not certified for use as a primary
means of navigation on N501RH, and a placard in the cockpit
reminded the pilots of this limitation.
When the pilots filed
their flight plan, they noted “slant golf,” meaning that the
plane contained the GPS.
MTV is not a controlled airport, so there is no control
tower or air traffic controller provided.
Rather, pilots are
cleared into the airspace by regional air traffic controllers,
who then terminate radar services to the aircraft.3
This leaves
the pilots responsible for determining whether they can land
safely and, if not, to execute a missed approach and re-contact
air
traffic
control.
The
air
traffic
controller‟s
responsibility is to protect the airspace around the airport
from other aircraft so as to permit the cleared aircraft the
opportunity to land.
Because N501RH did not have either a flight data or voice
recorder,
much
of
what
occurred
unknown.
What is known is revealed in radar reconstruction and
3
in
the
aircraft
cockpit
is
In this case, radar services were being provided by controllers at
the Terminal Radar Approach Control facility maintained by the United
States at the Greensboro, North Carolina, Piedmont Triad International
airport.
7
recordings of radio transmissions with the regional air traffic
controllers.
At 12:17 p.m., air traffic controllers directed N501RH to
proceed directly to BALES and to enter a holding pattern (as
published on the approach plate) at 4,000 feet,4 while another
plane attempted to land at MTV.
a
five-mile
holding
pattern
At 12:21 p.m., N501RH requested
“leg,”
and
air
traffic
control
responded by allowing N501RH the discretion to select either
five-mile
or
ten-mile
legs.
At
12:24
p.m.,
while
N501RH
remained near its assigned altitude of 4,000 feet, air traffic
control
confirmed
that
the
other
plane
had
landed.
N501RH
confirmed to air traffic control that it was “established” in
the
holding
pattern,
and
the
controller
cleared
it
for
a
localizer approach to runway 30 and directed its crew to advise
when the aircraft was inbound on the approach.
Under applicable
regulations,
land
the
controller‟s
clearance
to
using
the
localizer approach also necessarily included approval to execute
a missed approach or, if the pilots could keep the airport in
view, a circling approach to land from the opposite direction.
See 14 C.F.R. § 91.175 (2004).
The clearance also authorized
N501RH to execute the approach and to descend at the discretion
of the pilot-in-command as long as the descent did not violate
4
All altitude references are expressed in feet above mean sea level
(“MSL”).
8
the minimum altitudes set forth in the approach plate.
See id.
Thus, the descent required no further authorization from air
traffic control.
N501RH immediately acknowledged the clearance
toward BALES.
and
turned
Because the aircraft was headed away from BALES
when it was cleared from its hold, its turn may have resulted in
the aircraft passing near but just to the north of BALES.
Just
over two minutes after receiving clearance, the crew informed
the controller that N501RH was “established inbound,” meaning
that the pilots were aware of their location inbound to land.
At 12:26:52 p.m., the controller authorized a frequency change
to MTV‟s UNICOM frequency5 and directed N501RH to cancel with the
controller from the remote at MTV, i.e., report when N501RH had
landed
(so
airspace
N501RH
the
for
controller
other
acknowledged
would
aircraft
the
to
be
able
land).
frequency
to
Four
change.
release
the
MTV
seconds
later,
Under
federal
directives, the pilots were aware that upon the frequency change
radar services (including radar monitoring by the controllers)
5
UNICOM is a private air-ground frequency operated by the local
airport.
Thus, the switch to UNICOM permitted the aircrew to
communicate with MTV air traffic (if any) as well as service personnel
on the ground.
9
(See Trial Tr.6 4/28/09 at 75-
to N501RH would be terminated.
76.7)
Radar reconstruction reveals that N501RH passed BALES at
3,900 feet, well above the 2,600 foot minimum required by the
approach plate.
instead
of
The aircraft continued to fly at this altitude
beginning
approach plate.
performed
an
its
descent,
as
contemplated
by
the
The pilots eventually began their descent and
otherwise
accurate
descent
profile
(that
is,
descending at appropriate times to stay above federally-mandated
minimum
altitudes
for
a
localizer
approach
during
relevant
segments of the descent), except that N501RH was approximately
five
miles
off
course
to
the
northwest.
As
a
result,
the
aircraft flew over runway 30 while at 2,600 feet – the minimum
descent altitude for passing over BALES.
This suggests strongly
that the pilots somehow confused MTV runway 30 with BALES.
6
Trial transcripts for this case were filed in the related case Dorton
v. United States, Case No. 1:07CV23 (M.D.N.C.).
7
The referenced testimony, by MTV airport manager Jason Davis, is
consistent with the FAA‟s Aeronautical Information Manual (“AIM”) with
which pilots must be familiar. See Turner, 736 F. Supp. 2d at 1001,
1003 (quoting AIM ¶ 5-4-3.b.3 (“radar service is automatically
terminated . . . when [the pilot is] instructed to change to advisory
frequency at uncontrolled airports”)); cf. id. at 1006 (quoting Air
Traffic Control Manual ¶ 5-1-13.b.2 (FAA Order 7110.65P (2004))
(“Radar service is automatically terminated and the aircraft needs
[sic] not be advised of termination when . . . [a]n aircraft
conducting an instrument . . . approach . . . has been instructed to
change to advisory frequency”)).
10
Evidence
at
trial
supported
the
following
conclusions,
assuming all instruments were operating correctly and the pilots
monitored them.
needle
should
illuminated,
and
If N501RH properly passed over BALES, the ADF
have
swung,
ADF
blue
audible
the
the
tone
should
needle
should
light
have
should
have
have
sounded,
pointed
and
behind
the
thereafter
the
aircraft.
The ADF would have continued to point behind the
aircraft, thereby indicating to the pilots that they had already
passed BALES even before the pilots began their descent.
pilots had been monitoring the ADF
If the
prior to beginning their
descent, they should have realized that BALES was already behind
them and that they were not where they apparently thought they
were.
Defendants presented evidence, however, that N501RH may
have actually passed slightly north of BALES, thus potentially
preventing the aircraft from
receiving
one of more
of these
signals from the ground.
In addition, had the pilots been properly using the DME, it
should have read six miles at BALES and begun to count down as
N501RH approached MTV.
A DME reading of less than six miles
should have alerted the pilots that they were inside, rather
than outside, BALES.
Further, as the aircraft passed over the
DME beacon just beyond the far end of MTV runway 30, the DME in
the cockpit should have started to count upward.
Thus, at about
the time the pilots were initiating their descent from 2,600
11
feet, the DME should have begun counting upward, indicating that
the aircraft was flying away from, and not toward, MTV.
Because
Tracy
and
Morrison
executed
their
descent
approximately five miles off course, they overflew runway 30
while they were still in the clouds, apparently oblivious to
this fact.
When N501RH finally broke out beneath the clouds at
approximately 1,400 feet,8 the pilots were approaching what they
should
have
perceived
to
be
their
missed
approach
point.
Visibility below the clouds was at least one to two miles.
They
did not execute a missed approach, however, but continued to fly
at approximately 1,400 feet for somewhere between two to three
miles.
church
Mark Nelson, an eyewitness in the parking lot of a
located
approximately
observed N501RH fly over.
six
miles
past
the
airport,
Mr. Nelson reported that the plane
was low enough that he could see faces of individuals peering
out its windows, and the aircraft‟s gear was up.
The aircraft
continued to fly for approximately one minute past the church.
At approximately 12:32:13 p.m., N501RH began to ascend and
entered
the
clouds.
At
12:33:03
p.m.,
Morrison
called
air
traffic controllers and announced that they were “going missed
at this time.”
The aircraft continued to fly straight as it
ascended, never turning.
Air traffic control acknowledged the
8
Because altitude is recorded in MSL, N501RH
approximately 500 or 600 feet above the terrain.
12
was
actually
transmission and instructed N501RH to climb and maintain 4,400
feet, but N501RH never responded.
At 12:33:24 p.m., before
N501RH appeared on the controller‟s radar, the aircraft collided
with the rising terrain just short of the ridge line of Bull
Mountain.
With these facts in mind, the court turns to the specific
contentions raised by Dorton.
A.
Whether the Jury Verdict is Against the Clear Weight
of the Evidence
Dorton argues, as she argued to the jury, that the pilots
knowingly
and
willfully
disregarded
their
instruments,
intentionally failed to execute a missed approach upon reaching
their mistaken missed approach point, and intentionally did not
execute
the
climbing
right
turn
after
declaring
approach, as required by the approach plate.
a
missed
Defendants respond
that there was ample evidence to permit the jury to conclude
that the pilots‟ conduct did not meet the legal standard for
liability.
The
parties
agreed,
and
the
court
found,
that
Dorton‟s
claims were governed by the law of the state of North Carolina
insofar as Dorton‟s decedent was a co-employee of the pilots.
Under North
Carolina law, a heightened standard of proof is
required to base liability on the conduct of a co-worker.
Under
Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985), the
13
North
Carolina
exception
to
compensation
Supreme
the
act
Court
extended
exclusivity
to
the
provisions
intentional
of
the
tort
workers‟
cases in which a co-employee acted with
“willful, wanton and reckless negligence.”
Id.
at 716, 325
S.E.2d at 249.
Under Pleasant, negligence is “willful” when it
consists
“intentional
of
an
failure
to
carry
out
some
duty
imposed by law or contract which is necessary to the safety of
the person or property to which it is owed.”
S.E.2d at 248.
Id. at 714, 325
Negligence is “wanton” or “reckless” when it
consists of “an act manifesting a reckless disregard for the
rights and safety of others.”
Under
Pleasant,
Id.
“willfulness
and
equivalent in spirit to actual intent.”
at 248.
wantonness
[must
be]
Id. at 715, 325 S.E.2d
The North Carolina Supreme Court observed that “[t]he
concept of willful, reckless and wanton negligence inhabits a
twilight zone which exists somewhere between ordinary negligence
and intentional injury.”
Id. at 714, 325 S.E.2d at 247.
that
of
the
state
of
mind
the
perpetrator
“lies
Noting
within
the
penumbra of what has been referred to as „quasi intent,‟” the
Court observed:
Constructive intent to injure may also provide
the mental state necessary for an intentional tort.
Constructive intent to injure exists where conduct
threatens the safety of others and is so reckless or
manifestly indifferent to the consequences that a
finding of willfulness and wantonness equivalent in
14
spirit to actual intent is justified.
Wanton and
reckless negligence gives rise to constructive intent.
Id. at 714-15, 325 S.E.2d at 247-48 (citations omitted).
In the twenty-six years since Pleasant was decided, rarely
have reported opinions held that the evidence was sufficient for
a Pleasant claim to be submitted to a jury.
E.g., Pinckney v.
Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994) (affirming
denial of motion for judgment notwithstanding the verdict where
evidence demonstrated that plaintiff stuntman‟s injury resulting
in loss of eye was caused by defendant actor Jean Claude Van
Damme‟s knowing efforts, including prior instances, to engage in
excessive contact to make fight scenes during filming appear as
authentic as possible in reckless or manifest indifference to
the consequences).
The difficulty of establishing a Pleasant
claim is demonstrated by several cases that found that a coemployee‟s violation of safety regulations or company policies,
even knowingly, did not make out a violation of the Pleasant
standard.
321
N.C.
See, e.g., Abernathy v. Consol. Freightways Corp.,
236,
362
S.E.2d
559
(1987)
(reversing
denial
of
directed verdict motion made by co-employees who drove forklift
that injured plaintiff and were aware that it was brakeless (and
was placarded as “No Brakes”) but nevertheless believed it could
be stopped by engaging a foot pedal and shifting gears, which
the employees had done before to stop it, as insufficient to
15
rise to an equivalency in spirit to actual intent to inflict
injury under Pleasant); Pendergrass v. Card Care, Inc., 333 N.C.
233, 424 S.E.2d 391 (1993) (affirming Rule 12(b)(6) dismissal of
case
on
grounds
that
plaintiff‟s
allegation
that
his
co-
employees directed him to work on textile machine with knowledge
that
certain
Occupational
regulations
dangerous
Safety
failed
parts
and
to
were
unguarded
Health
show
that
in
violation
Administration
the
of
(“OSHA”)
co-employees
were
so
“manifestly indifferent to the consequences of” their actions
that “a constructive intent to injure may be inferred”); Bruno
v. Concept Fabrics, Inc., 140 N.C. App. 81, 87, 535 S.E.2d 408,
413 (2000) (affirming summary judgment for supervisor in charge
of
employee
dangerous
safety
machine
prescription
machinery
who
despite
medication
under
allowed
a
co-employee
knowledge
and
company
was
the
forbidden
policy,
and
to
work
employee
had
from
on
taken
operating
finding
a
that
the
the
supervisor‟s actions failed to “support an inference that he
intended that plaintiff be injured or was manifestly indifferent
to the consequences of her operating the picker machine”); Jones
v. Willamette Indus., Inc., 120 N.C. App. 591, 593, 595-96, 463
S.E.2d 294, 296-98 (1995) (affirming summary judgment for coemployee defendants where plaintiff‟s decedent was killed while
cleaning
residue
from
large
metal
cylinder
used
for
burning
waste even though the cleaning process violated OSHA regulations
16
and the death was a “preventable accident”); Dunleavy v. Yates
Constr. Co., 106 N.C. App. 146, 150, 154-56, 416 S.E.2d 193,
195, 198-99 (1992) (affirming summary judgment for co-employee
foreman
where
plaintiff‟s
decedent
was
killed
in
a
trench
collapse where the trench was not properly supported and the
decedent was not provided a hard hat, all in violation of OSHA
regulations, even though the foreman was arguably negligent in
not supervising every portion of the site being worked by an
inexperienced crew).
Dorton relies principally on two cases for the proposition
that a pilot‟s failure to continuously monitor an aircraft‟s
navigational
instruments
during
IFR
conditions
willful, wanton and reckless negligence.
constitutes
The first is Koirala
v. Thai Airways Int‟l, Case Nos. C-94-2644SC, C-95-0082SC, 1996
WL 40243 (N.D. Cal. Jan. 26, 1996), aff‟d, 126 F.3d 1205 (9th
Cir. 1997).
Koirala was a bench trial applying the “wilful
misconduct” standard under the Warsaw Convention to the conduct
of
pilots
of
a
Thai
Airways
flight
that
mountains near Kathmandu, Nepal, in 1992.9
distracted
when
their
flaps
would
9
not
crashed
into
the
The pilots became
fully
deploy
as
they
“Wilful misconduct” under the Warsaw Convention as applied in Koirala
meant that a carrier or agent must have acted either “(1) with
knowledge that its action would probably result in injury or death, or
(2) in conscious or reckless disregard of the fact that death or
injury would be the probable consequences of its action.”
Koirala,
1996 WL 40243, at *5.
17
prepared to land.
Mistakenly executing a 360 degree (instead of
180 degree) turn, the pilots thereafter for nearly six minutes
became preoccupied with addressing the flaps problem and failed
to monitor any of their navigational instruments which would
have alerted them to the impending danger.
The aircraft slammed
into a nearby mountain at 11,500 feet while traveling at 300
mph, killing all on board.
pilots
engaged
in
The district court found that the
“wilful
misconduct”
under
the
Warsaw
Convention, and the court of appeals upheld the conclusion as
not clearly erroneous.
Dorton relies as well on In re Korean Airlines Disaster of
September 1, 1983, 156 F.R.D. 18 (D.D.C. 1994) (“In re KAL”),
aff‟d, 52 F.3d 1122 (D.C. Cir. 1995) (per curiam), in which the
court considered a motion under Federal Rule of Civil Procedure
60(b).
In that case, Korean Airlines flight 007, en route from
New York to Seoul, South Korea, strayed off course approximately
360 miles into Soviet airspace.
Flight 007 was shot down over
the Sea of Japan by Soviet military aircraft, killing all 269
persons aboard.
The jury returned a verdict finding that the
deaths were proximately caused by the “wilful misconduct” of the
flight crew, applying the Warsaw Convention.
punitive
damages
against
the
airline
in
The jury awarded
the
amount
million (which was later vacated on a separate appeal).
cites
the
case
for
the
pilots‟
18
repeated
failure
to
of
$50
Dorton
follow
fundamental and mandated navigational safety procedures which
would have alerted the crew to the aircraft‟s deviation.
Dorton
argues that both Koirala and In re KAL require a finding of
willful misconduct in this case based on the crew‟s failure to
monitor
their
instruments,
execute
a
missed
approach
upon
reaching their mistaken missed approach point, and/or execute a
climbing right turn once they declared a missed approach.
While Koirala and In re KAL are similar in some respects,
they are not controlling here.
Even assuming (without deciding)
that the Pleasant standard equates to the “wilful misconduct”
standard
under
the
Warsaw
Convention,
distinguishable on their facts.
the
cases
are
In Koirala, the pilots failed
to scan any of their instruments for over five minutes, totally
oblivious to the fact that they were headed straight into a
mountain, and the trial court‟s finding of “wilful misconduct”
on those facts was affirmed on the deferential standard of not
being “clearly erroneous.”
In In re KAL, the pilots failed to
monitor their navigational equipment for over five hours, and
the aircraft had strayed nearly 360 miles off course into Soviet
airspace.
Moreover,
while
both
cases
upheld
a
finding
of
liability, neither Koirala nor In Re KAL held that a contrary
finding
would
have
been
against
evidence.
19
the
clear
weight
of
the
Here, there was evidence presented to the jury to permit it
to reasonably find that the pilots‟ actions did not meet the
heightened
standard
under
Pleasant.
For
example,
unlike
in
Koirala, there was evidence that the pilots must have monitored
at least some (perhaps many) of their navigational instruments
during their attempt to land at MTV.
The crew reported to
controllers that they were “established” in their hold and again
that as they proceeded to land they were “established inbound”
just inside BALES.
The transmissions from the crew constitute
acknowledgements that they believed they were aware of their
location (albeit mistakenly here).
(See Trial Tr. 4/30/09 at
107; cf. Trial Tr. 5/1/09 at 30-31.)
Also, there was evidence
that the descent profile of N501RH matched that of a properly
conducted descent, except it was displaced approximately five
miles
to
concluded
the
that
northwest.10
the
only
The
way
for
jury
could
N501RH
to
have
have
reasonably
descended
properly in observation of the mandatory minimum altitudes at
various points in its descent profile, as it did, was for the
pilots to have monitored certain of their instruments.
10
(See,
The approach plate provided that an aircraft passing BALES may not
descend below 1,520 feet prior to reaching a DME reading of 2.8 miles,
that is, until 1.8 miles from the approach end of runway 30. At that
point, the aircraft may descend further, but not below 1,340 feet
(known as the “Minimum Descent Altitude” or “MDA”) unless the pilots
have the runway in sight and determine that they can land safely.
20
e.g., Trial Tr. 4/24/09 at 69-71, 77-80, 90-94; Trial Tr. 5/1/09
at 23-26.)
The jury could have concluded that N501RH‟s altitude of
2,600 feet over MTV – the altitude it should have been over
BALES – and otherwise normal descent profile suggest strongly
that the crew simply mistook MTV for BALES.
happened is unknown.
How this may have
However, there was evidence that this
could have occurred had the crew (in this case pilot Morrison)
used the GPS during the approach, because the GPS location for
MTV is set approximately at the mid-point of runway 30.
(See
Trial Tr. 4/27/09 at 17 (noting GPS mark for MTV about one-half
mile from DME location).)
The crew had noted on their flight
plan that N501RH was equipped with “slant golf,” meaning it had
a GPS.
Whether the crew actually used it in any fashion for
navigation for the approach is unknown, however.11
Pleasant
requires
a
manifest
indifference
to
the
consequences of one‟s actions such that a “constructive intent
to injure may be inferred.”
The jury could have determined that
the pilots, who were experienced, never intended to put their
11
Where a GPS system is approved, it may be used as a primary method
of navigation, and indeed an approach plate for MTV provided
information for navigating a GPS approach. (Id. at 34-35 (discussing
Jeppesen GPS runway 30 approach plate); Def. Ex. 66 (Jeppesen GPS
runway 30 approach plate); see Trial Tr. 4/23/09 at 176 (GPS and
terminal approach capability).)
Conducting a true GPS approach,
however, uses a reference point -- “ULAKE” -- located in a place
different from BALES.
21
own lives at stake and had every motivation to land safely and
were not manifestly indifferent to the consequences of their
actions.
See In re Air Crash near Morrisville, No. 1:95MD1084,
1997 U.S. Dist. LEXIS 21827, at *25 (M.D.N.C. Dec. 16, 1997)
(noting, in granting summary judgment against a punitive damages
claim, that “the crew knew that their own lives were at stake
during Flight 3379, and the crew had every motivation to see
that Flight 3379 arrived safely at its destination”);
In re
Aircraft Accident at Little Rock, 231 F. Supp. 2d 852, 880 (E.D.
Ark. 2002) (in granting summary judgment on punitive damages
claim which under state law required conscious indifference or
otherwise reckless disregard of consequences, stating “[t]here
is no evidence that [the crew] had any motive or reason to
disregard their own personal safety in landing the aircraft”),
aff‟d, 351 F.3d 874 (8th Cir. 2003); Southeastern Aviation, Inc.
v. Hurd, 355 S.W.2d 436, 447 (Tenn. 1962) (“[T]here is nothing
to show such gross and wanton negligence on [the pilots‟] part
as to evidence conscious indifference to consequences.
be
remembered
that
their
own
lives
were
at
stake,
evidently expected to make a safe landing.”); cf.
It must
and
they
Echols v.
Zarn, Inc., 116 N.C. App. 364, 448 S.E.2d 289 (1994) (affirming
grant of summary judgment against plaintiff under Pleasant for
failure to demonstrate manifest indifference to the consequences
where the evidence showed that the supervisor herself worked the
22
machine by placing her hand under the safety gate as she had
instructed
plaintiff),
aff‟d,
342
N.C.
184,
463
S.E.2d
228
(1995) (per curiam), and abrogated in part on other grounds,
Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206 (1995).
Dorton
argues
intentionally
that
violated
Tracy
federal
and
Morrison
regulations
safety of all aboard the aircraft.
must
designed
have
for
the
The fact that the pilots
failed to execute a missed approach earlier and then failed to
fully execute the missed approach procedure properly by making a
climbing
right
necessitate
a
constructively
turn,
while
finding
that
intentional.
constituting
their
The
negligence,
failures
fact
is
were
that
does
not
actually
Morrison
or
did
declare that N501RH was executing a missed approach, and it
appears from the radar reconstruction that the crew did intend
to execute a missed approach.
Their failure was in not doing so
sooner and not turning to the right while climbing.
On this
point, Defendants presented evidence that there is no precise
mechanism for executing a missed approach and that pilots would
not be negligent in waiting to initiate any turn until they had
climbed sufficiently to avoid any potential terrain during the
turn.
its
Moreover, there was testimony that because N501RH began
climb
approximately
six
miles
beyond
MTV‟s
DME
antenna,
Tracy and Morrison may have mistakenly misread their DME.
And,
as there was ample evidence that the crew was geographically
23
disoriented once N501RH descended below the clouds, the jury may
have simply found that the crew‟s actions were the result of
oversight or confusion.
Cf.
Lunsford v. Republic Servs.
of
N.C., LLC, 183 N.C App. 155, 643 S.E.2d 675 (2007) (unpublished
opinion)
(affirming
summary
judgment
on
Pleasant
claim
for
defendant who “lost control” of garbage truck and was attempting
“to correct it” when plaintiff was injured).
In any event, no one knows what the crew was thinking, and
the crew‟s actions were consistent with a conclusion that they
believed they were in the vicinity of MTV.
If the jury so
determined, then the crew would have believed that Bull Mountain
lay some ten miles ahead of them and was not an imminent threat
at the rate of N501RH‟s ascent.
The experts on both sides
agreed that this accident is known in the field as a “controlled
flight into terrain” – which means the pilots were unaware they
were in any danger.
(Trial Tr. 4/22/09 at 133-34; Trial Tr.
4/30/09 at 203, 206-07; Trial Tr. 5/1/09 at 34-35.)
even
if
the
jury
determined
that
the
pilots
Therefore,
intentionally
delayed in executing the missed approach procedure in hopes of
spotting the MTV airport, a finding of liability is not mandated
under the heightened Pleasant standard.
Cf. Regan v. Amerimark
Bldg. Prods., Inc., 127 N.C. App. 225, 489 S.E.2d 421 (1997)
(affirming summary judgment for supervisors under Pleasant where
plaintiff suffered severe injuries when his arm got caught in
24
industrial equipment and supervisors knew both emergency cutoffs were inoperable and the North Carolina Department of Labor
had cited the machine as a “serious violation”
three
months
earlier for lacking its designed safety guard), aff‟d, 347 N.C.
665, 496 S.E.2d 378 (1998) (per curiam).
Considering
support
a
all
verdict
of
of
the
above,
liability,
while
it
also
the
evidence
fairly
might
supports
a
contrary verdict, given the heightened standard applicable under
Pleasant.
The court finds, therefore, that the verdict is not
against the clear weight of the evidence.
B.
Claims of False Evidence.
Dorton
through
argues
their
reconstruction
that
Defendants
piloting,
expert,
radar,
William
J.
presented
and
Edwards
false
testimony
aviation
accident
(“Edwards”),
that
contributed to the verdict being against the “great weight” of
the evidence.
In her argument section of her brief, Dorton
argues that this “included” testimony that the pilots (1) were
not required to use the ADF on their approach, (2) properly
monitored
their
instruments,
(3)
would
have
received
a
“satisfactory grade” on a check flight, and (4) executed their
missed
approach
approach point.
shortly
after
reaching
(Doc. 217 at 14.)
their
mistaken
missed
In considering a claim of
false evidence, the court should grant a new trial “where the
court is reasonably well satisfied that the testimony given by a
25
material witness is false; that without it, a jury might have
reached a different conclusion; [and] that the party seeking a
new trial was taken by surprise when the false testimony was
given and was unable to meet it or did not know of its falsity
until after trial.”
Gibson v. Total Car Franchising Corp., 223
F.R.D. 265, 279 (M.D.N.C. 2004) (quoting Davis v. Jellico Cmty.
Hosp., Inc., 912 F.2d 129, 133 (6th Cir. 1990)).
Dorton
first
claims
that
Edwards
testified
falsely
that
Tracy and Morrison were not required to use the ADF on approach.
(Doc.
at
217
8,
14;
Trial
Tr.
at
4/30/09
at
192.)
It
is
noteworthy that the testimony Dorton cites was elicited by her
counsel
direct
on
cross-examination
examination
by
of
Edwards
Defendants.
and
Edwards
not
during
acknowledged
his
that
Hendrick Motorsports company policy required use of the ADF on
approach, and he further acknowledged that the approach plate
said
that
Dorton‟s
ADF
was
counsel
required.
pressed
(Trial
further
by
Tr.
5/1/09
saying,
at
“it
81-82.)
is
your
testimony that the pilots weren‟t required to do that, is that
what you are saying?”
(Id. at 82.)
To this Edwards gave a long
response that included the statement “[t]here are times when you
use
it,
and
there
are
times
when
you
don‟t.”
(Id.)
His
response further provided that “there is evidence that they [the
N501RH pilots] were using the ADF to navigate to BALES” but
added
that
“[t]he
ADF
requirement
26
that‟s
contained
on
the
approach
plate
is
primarily
for
the
approach to get you back to BALES.”
“[i]t
is
not
required
to
purposes
(Id.)
identify
of
a
missed
Edwards then stated,
BALES
because
several other methods used to identify BALES.”
there
(Id.)
are
Edwards
identified those other methods as DME, the marker beacon, a tone
in the cockpit, and a “radial off of this VOR [indicating on the
approach plate].”
(Id.)
He added, “[t]hat‟s the way we train
pilots, and that‟s the way we test pilots.”
Edwards‟
Moreover,
it
testimony
was
not
as
to
the
elicited
ADF
by
(Id.)
was
expert
Defendants
on
opinion.
direct
examination but by Dorton on cross-examination, even though she
had previously deposed Edwards and knew or had the opportunity
(See Doc. 217 at 9.)
to learn and test his opinions.
Dorton
never objected to the testimony at trial or argued then that it
was false, and, as noted, she had the opportunity to crossexamine him.
on
the
point
Dorton was also free to present rebuttal evidence
and
even
ridiculed
regard during closing argument.
Edwards‟
testimony
in
this
(Trial Tr. 5/4/09 at 139-40.)
Under these circumstances, the court cannot say that Edwards‟
opinion testimony was false and, even if it were, cannot say
that Dorton was unable to challenge it.
Indeed, she presented
her version through her own experts and fact witnesses, whom the
court granted substantial leeway in testifying.
27
Nor can the
court say that without the complained of testimony the jury may
have reached a different conclusion.
Dorton also points to Edwards‟ testimony that the swing of
the ADF needle when an aircraft passes BALES could be missed
because it happens “in a split second,” claiming such to be
false.
(Doc. 217 at 8.)
The reference to a “split second” was
in response to the following question on direct:
“how long in
your experience does it take the needle to swing if the ADF is
working
properly?”
examination,
Edwards
(Trial
Tr.
testified
4/30/09
that
at
“the
228.)
rate
On
at
cross-
which
the
needle swings is only dependent on your distance from the NDB
[beacon] and how quickly you are crossing those radials.
So it
can go in a split second if you are very close or it can take
some time if you are further away.”
Thus,
Edwards acknowledged that
(Trial Tr. 5/1/09 at 138.)
the speed of the
movement depends on several factors.
ADF needle
Dorton also concedes in
her brief that she successfully debunked any notion of a “split
second” movement of the needle on cross-examination.
at 8.)
was
not
(Doc. 217
Based on the record, the court finds that the testimony
false
and,
regardless,
Dorton‟s
concern
was
handled
through cross-examination.
Dorton argues next that Defendants presented “conclusory
expert testimony” without any factual basis that the pilots were
monitoring their instruments on their approach.
28
(Doc. 217 at 8,
14.)
This
is
not
a
complete
recitation
of
the
transcript.
Edwards was asked on direct examination which instruments the
pilots
would
profile,
have
and
needed
Edwards
horizontal
stabilizer
indicator,
turn
instruments.
and
(See
to
monitor
identified
indicator,
bank
Trial
to
several,
altimeter,
indicator,
Tr.
fly
CDI,
4/30/09
at
their
descent
including
vertical
and
all
221-27.)
the
speed
engine
Dorton
complains that “no attempt was made to explain how the pilots
could possibly have been monitoring their instruments while at
the same time being so significantly off course.”
8.)
(Doc. 217 at
This was the purpose of cross-examination, however, and
Dorton
fails
to
demonstrate
that
this
opinion
testimony
constituted false testimony.
Dorton contends that Edwards testified falsely that Tracy
and Morrison would have received a “satisfactory grade” for the
manner in which they flew their approach.
(Doc. 217 at 9, 14.)
Again, this is an incomplete reading of the testimony.
was asked whether
Edwards
the pilots of an aircraft flying N501RH‟s
descent “profile” would have received a satisfactory grade, and
he agreed because, as he noted, it was a “stabilized approach.”
(Trial Tr. 5/1/09 at 25.)
Edwards‟ opinion was limited to the
“profile” – that is, the rate of descent on approach – and not
the location of the descent.
Edwards made clear on his direct
29
examination that N501RH‟s actual flight profile was improperly
displaced well beyond the MTV runway.
(Id. at 38.)
Dorton also complains about Edwards‟ opinion that the crew
initiated a missed approach “within a reasonable period of time”
and that there was no evidence they knew the airport was behind
them at the time they did so.
(Doc. 217 at 9, 14.)
The former
was an opinion based on interpretation of the evidence and was
subject to cross-examination, and the latter was a reasonable
statement insofar as the evidence demonstrated that the crew was
situationally-disoriented.
Finally,
Dorton
contends
that
Defendants
“used
several
tactics in an attempt to minimize the distance the pilots flew
N501RH after reach[ing] their missed approach point.”
at 9.)
(Doc. 217
First, Dorton claims that Edwards changed his testimony
from that in his deposition and expert report by stating at
trial that N501RH was six (rather than five, as noted in his
report and deposition) miles off course.
(Id.)
Second, she
claims that Edwards testified that there was no evidence the GPS
was turned on (as opposed to in deposition blaming the flight‟s
course deviation on the crew‟s use of the GPS).
she
claims
that
Edwards
“presented
(Id.)
Third,
incomprehensible
expert
testimony” that the pilots thought the missed approach point was
at six miles after, and not before, the DME beacon.
of these arguments is without merit.
30
(Id.)
Each
As to the distance issue, Dorton argues that Edwards opined
at trial that the aircraft was off course six miles, whereas he
put it at five miles in his deposition.
It is noteworthy that
the “missed approach point” at the threshold of runway 30 is
separated from the DME beacon located just beyond the far end of
the runway by exactly one mile, thus accounting for possible
testimony
question.
of
five
or
six
miles,
depending
More importantly here,
on
the
precise
while not pointing to any
portion of the transcript where Edwards opined that the aircraft
was off course by six miles, Dorton cites in support of her
argument only Edwards‟ concession during cross-examination that
Morrison‟s use of the GPS could have caused the aircraft to be
off by five miles.
70).)
Thus, Dorton‟s point was ultimately established during
the trial.
Rather,
(Doc. 217 at 9 (citing Trial Tr. 5/1/09 at
In any event, Edwards‟ testimony was not false.
Dorton‟s
argument
is
at
best
a
claim
that
she
was
surprised by the alleged change in testimony, yet she has not
demonstrated prejudice.
Moreover,
as
to
the
GPS,
Edwards
opined
on
examination that the crew was not flying a “GPS approach.”
was
evident,
he
stated,
because
a
GPS
approach
keyed
direct
This
off
a
waypoint designated “ULAKE” located in a different place than
BALES, required higher mandatory minimum altitudes inconsistent
with N501RH‟s flight profile, and would have put the aircraft in
31
the clouds when it was spotted by Nelson below the clouds).
(Trial Tr. 4/30/09 at 234-36.)
Edwards also stated that the
destruction of all instrumentation in the crash eliminated the
possibility of obtaining any objective proof the GPS was turned
on.
(Trial Tr. 4/30/09 at 200.)
Dorton argues that by so
testifying, Edwards changed his opinion that the GPS was used
because, she contends, he stated it was not even turned on.
Edwards never said the GPS was not turned on, however.
merely
conceded
that,
because
the
GPS
was
destroyed
in
He
the
crash, there was no evidence it was turned on (or off, for that
matter).
(Id.)
And while opining that the crew did not conduct
a “GPS approach,” Edwards never recanted his opinion that the
crew may have consulted the GPS during the approach.
Indeed,
when Dorton‟s counsel cross-examined Edwards with his deposition
transcript (in which he stated, “I think the likelihood is she‟s
[pilot Morrison] looking at the GPS.
Martinsville.
so
many
opinion
during
She thinks it‟s still on BALES and she goes, it‟s
miles
that
It‟s already sequenced to
to
BALES.”),
Morrison
N501RH‟s
was
approach
Edwards
likely
and
agreed
using
simply
that
the
misread
(Trial Tr. 5/1/09 at 45, 64, 66-71, 76.)
Morrison
consulted
the
GPS
constitute false evidence.
32
as
GPS
as
the
was
a
his
backup
instrument.
Consequently, Edwards‟
trial testimony is not inconsistent with his
that
it
a
earlier opinion
backup
and
did
not
Finally,
Dorton
disagrees
with
Defendants‟
explain how the pilots may have mistakenly
Dorton
does
not
cite
to
any
portion
of
attempt
misread
the
to
the DME.
record
for
her
contention that there was false evidence, and the argument fails
for that reason alone.
Suffice it to say that Defendants argued
that no one knows what the crew did and why, and Defendants
posited that the pilots may have erroneously expected the DME to
count up to “6,” instead of counting down to “0” or “1,” as the
aircraft approached the missed approach point.
To the extent
offered through any witness, this was opinion, and not fact,
testimony, and given the evidence on how the DME worked, it was
up to the jurors whether to believe the pilots may have misread
the DME in this fashion or whether they were even monitoring it.
In any event, this testimony
was
available
to be challenged
during cross-examination and through rebuttal evidence.
In sum, Dorton has failed to demonstrate that a new trial
should be granted based on false evidence.
C.
Claim of Miscarriage of Justice.
Finally, Dorton argues that the bifurcation of the thirdparty case against the United States from the jury trial enabled
Defendants
to
“exploit
an
„empty
chair‟
defense,”
such
that
evidence of air traffic controller conduct “severely prejudiced
Plaintiff‟s case.”
(Doc. 217 at 14.)
Dorton argues that a
retrial should be granted because the claims against the United
33
States
have
subsequently
been
dismissed,
see
Turner,
736
F.
Supp. 2d 980, thus preventing Defendants from shifting blame to
the government in a retrial.
These arguments are unpersuasive.
First, the United States
is present in this case only because Defendants brought them in
via a third-party complaint, and by statute claims against the
United States are tried to the court (without a jury).
(See
Doc. 1 (Notice of Removal of Civil Action); Doc. 1-3 (Ex. A to
Doc. 1 (Answer, Motions, and Third-Party Complaint, Case No. 05
CVS 1606, at 16-19 (N.C. Super. Ct., Lincoln Cnty.))); Doc. 8
(Answer, Affirmative Defenses and Counterclaim of Third-Party
Defendant
United
substituting
2402.)
States
party
of
America);
defendants);
see
also
Doc.
28
14-2
U.S.C.
(Order
§§
1346,
Had Defendants not sued the United States (that is, had
the case proceeded as Dorton originally filed it), trial would
have proceeded without the government, and Defendants would have
been free to try the same “empty chair” defense against the
government
under
circumstances
where
Dorton
would
have
no
ability to complain.12
Second,
Dorton
herself
had
separate
claims
against
the
United States which blamed the air traffic controllers for the
12
To the extent Dorton is really arguing that had all claims been
tried together (presumably with the jury rendering an advisory verdict
on the claims against the government) she would have benefitted from
the government‟s witnesses blaming the pilots, she was never entitled
to such a trial.
34
crash.
Her claims were filed in Dorton v. United States, Case
No. 1:07CV23 (M.D.N.C.), and were tried to the court with all
other consolidated similar claims against the United States.13
See Turner, 736 F. Supp. 2d 980.
she
was
prejudiced
controller
fault
by
when
It is hard for her to contend
Defendants‟
she
pointing
herself
was
to
air
advancing
traffic
the
same
contentions elsewhere.
Third, at trial in the present case Defendants sought to
exploit Dorton‟s dual lawsuits by offering into evidence the
factual allegations of her complaint against the United States
in
Dorton
v.
United
States,
Case
No.
1:07CV23,
as
well
as
testimony of one of her experts in that case who blamed the
crash
on
the
controllers.
sustained that objection.
10.)
The
instructions
court
titled
also
Dorton
objected,
and
the
court
(See, e.g., Trial Tr. 5/1/09 at 9rejected
“Plaintiff‟s
13
Defendants‟
Admission
proposed
that
jury
Government
Multiple lawsuits were filed involving this crash, and the court
consolidated five of them for discovery and for trial, bifurcating the
jury claims for trial first in the interest of judicial efficiency.
This preserved the rights of Dorton and the pilots‟ estates to a jury
trial and preserved the right of the United States to have the claims
against it adjudicated in a bench trial.
(See Doc. 151 filed in
Dorton v. United States, Case No. 1:07CV23 (M.D.N.C.) (Final Order
Regarding Consolidation and Bifurcation (Apr. 21, 2009)).) The claims
against the United States were tried under a lesser standard of proof
than the Pleasant standard in this case.
That the court reached
different interpretations of the evidence, particularly as to its
finding of pilot fault, does not render the jury‟s rejection of pilot
fault under the heightened Pleasant standard erroneous.
Indeed, the
jury was free to reach its own conclusions based on proper evidence.
35
Conduct was the Cause of the Accident,” which sought to achieve
the same effect.
(Trial Tr. 5/1/09 at 168-75; Trial Tr. 5/4/09
at 40; see Trial Tr. 5/1/09 at 5-14 (addressing related issues);
see also Trial Tr. 4/24/09 at 161-66 (sustaining objections to
cross-examination
control).)14
prevented
of
Thus,
the
Dorton‟s
Dorton
Defendants
expert
benefitted
from
regarding
from
arguing
air
traffic
procedures
to
the
that
jury
her
potentially-conflicting claims.
Consequently,
could
be
it
prejudiced
is
by
difficult
Defendants‟
to
understand
pointing
to
how
air
Dorton
traffic
controller fault under these circumstances.
The fact that Dorton failed to prevail in her claim against
the United States (based on controller fault) in her separate
lawsuit does not provide a basis for granting a new trial so she
can, as she argues, “focus on those who were responsible for the
flight and who flew N501RH into the side of the mountain: the
pilots.”
(Doc.
217
at
14.)
Dorton
had
opportunity to present her case to a jury.
a
full
and
fair
The evidence was
conflicting and was sufficient to support a finding of either
liability or no liability.
The decision was for the jury, which
was persuaded that the crew‟s actions were not “willful, wanton
and reckless” within the meaning of Pleasant.
14
Indeed, over Defendants‟ objection, the court even permitted Dorton
to elicit testimony on direct from a fact witness that tended to
negate any controller fault. (See Trial Tr. 4/28/09 at 75-76.)
36
III. CONCLUSION
For the reasons set forth above, the motion for new trial
by Dianne H. Dorton, as personal representative of the estate of
Randall Alexander Dorton (Doc. 216), is DENIED.
/s/
Thomas D. Schroeder
United States District Judge
June 1, 2011
37
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