SNIDER et al v. STERLING AIRWAYS, INC. et al

Filing 451

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 6/28/2017. 6/29/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH C. SNIDER, Individually
and as Executrix of the Estate of
DANIEL A. SNIDER, and
LEE W. SNIDER, a minor, by his
mother, ELIZABETH C. SNIDER
Plaintiffs
vs.
STERLING AIRWAYS, INC., and
CONTINENTAL MOTORS, INC.,
Defendants

:
: CIVIL ACTION
:
:
: NO. 13-CV-2949
:
:
:
:
:
:
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:
:

MEMORANDUM AND ORDER

JOYNER, J.

June 28, 2017

This case is again pending before this Court on Motion of
the Defendant, Continental Motors, Inc.

Presently, Continental

renews its previous request for entry of judgment in its favor as
a matter of law pursuant to Fed. R. Civ. P. 50(b).

For the

reasons which follow, the Renewed Motion shall be denied.
History of the Case
This is the remaining lawsuit of three1 assigned to the
undersigned, all of which arose out of the tragic crash of a
Cessna T210L single engine aircraft in the early afternoon hours

1

Those other matters, Lewis-Whiteman v. Continental Motors, Inc., et.
al., Civ. A. No. 13-CV-2950, and Jessup v. Continental Motors, Inc., et. al.,
Civ. A. No. 12-CV-4439 have since been amicably resolved by the parties.

of June 21, 2010 as it neared the William T. Piper Memorial
Airport in Lock Haven, Pennsylvania.

As a result of the

accident, which was caused by a total engine failure as the plane
was preparing to land, the pilot, Patrick Jessup, and his two
passengers, United States Forest Service employees Rodney
Whiteman and Daniel Snider were killed.

At the time of the

accident, Messrs. Whiteman and Snider were in the process of
conducting an aerial deforestation survey on behalf of the Forest
Service.

The plane was being operated pursuant to a charter

plane and pilot contract between its owner, Defendant Sterling
Airways, Inc. of Hornell, New York and the U.S. Forest Service,
dated March 28, 2008.

The accident airplane had been

manufactured in 1973 and was equipped with a Continental Motors’
TSIO-520-H engine that had last been overhauled in 2004.
The essence of the complaints in the actions filed by the
estates of the three individuals killed as a result of the crash
was that the accident resulted from the negligence, gross
negligence, recklessness and/or strict liability on the part of
the defendants in, inter alia, the manufacture, maintenance and
operation of the Cessna, its engine and component parts.

As

noted, the lawsuits instituted on behalf of the Estates of Mr.
Jessup and Mr. Whiteman were settled, but this action, filed on
behalf of Mr. Snider and his Estate, was tried over a three-week
period commencing on January 23, 2017.

2

On February 16, 2017, the

jury returned a verdict in favor of the Plaintiff and against
Continental Motors, Inc. only in the amount of $2,753,048.49.
Although Sterling Motors was found to have breached its contract
with the U.S. Forest Service and to have been negligent, the jury
found that Sterling’s negligence and breach were not factual
causes of the accident.

By the motion which is now before us,

Continental asserts that it is entitled to the entry of judgment
as a matter of law for two reasons: “(1) there is no legally
sufficient basis for a reasonable jury to find that CMI
‘manufactured’ a new component or part that caused the accident
under the rolling provision of GARA §2(a)(2); and/or (2)
plaintiffs’ claims fail under GARA and Pennsylvania tort law
because plaintiffs failed to prove that the No. 2 exhaust valve
guide’s allegedly deficient material hardness caused the exhaust
value guide to fail.”

(Defendant Continental Motors, Inc.’s

Renewed Motion for Judgment as a Matter of Law Pursuant to Fed.
R. Civ. P. 50(b), at p.1).
Standards Governing Rule 50(b) Motions
“A court may grant a motion for judgment as a matter of law
against a party when ‘a party has been 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 moving party on that issue.’” Shrey v. Kontz, 981 F. Supp. 2d
333, 337 (M.D. Pa. 2013)(quoting Fed. R. Civ. P. 50(a)).
3

“After

trial, a party may renew their motion pursuant to Fed. R. Civ. P.
50(b).” Id.

“A court may grant a renewed motion for judgment as

a matter of law in favor of a party ‘if there is a legally
sufficient evidentiary basis for a reasonable jury to find’ for
the opposing party on a particular issue.”

Graco Children’s

Products, Inc. v. Century Products Company, Inc., Civ. A. No. 936710, 1996 U.S. Dist. LEXIS 10356 at *12 - *13 (E.D. Pa. July 23,
1996)(quoting Fed. R. Civ. P. 50(a)(1)(b)).

Under well-

established Third Circuit precedent, regardless of whether made
under Rule 50(a) or 50(b):
Such a motion should be granted only if, viewing the
evidence in the light most favorable to the nonmovant and
giving it the advantage of every fair and reasonable
inference, there is insufficient evidence from which a jury
reasonably could find liability. In determining whether the
evidence is sufficient to sustain liability, the court may
not weigh the evidence, determine the credibility of
witnesses, or substitute its version of the facts for the
jury’s version.
McDaniels v. Flick, 59 F.3d 446, 453 (3d Cir. 1995); Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993);
Mancini v. Northampton County, 836 F.3d 308, 314 (3d Cir. 2016);
Shrey, 981 F. Supp. 2d at 338.

Stated otherwise, “a renewed

motion for judgment as a matter of law ‘may be granted under Fed.
R. Civ. P. 50(b) only if, as a matter of law, the record is
critically deficient of that minimum quantity of evidence from
which a jury might reasonably afford relief.’” Pollock v. Energy
Corp. Of America, Nos. 15-2648, 15-2649, 665 Fed. Appx. 212, 216,

4

2016 U.S. Dist. LEXIS 19167 at *7 - *8 (3d Cir. Oct. 24,
2016)(quoting In re Lemington Home for the Aged, 777 F.3d 620,
626 (3d Cir. 2015)).

And again, being mindful that credibility

determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions and not
those of a judge, in its review of the record as a whole the
court must disregard all evidence favorable to the moving party
that the jury is not required to believe.

Avaya Inc., RP v.

Telecom Labs, Inc., 838 F.3d 354, 373 (3d Cir. 2016)(citing
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 15051, 120 S. Ct. 2097, 147 L. Ed.2d 105 (2000)).
Discussion
1. Applicability of GARA’s “Rolling Provision”
We turn first to Continental’s claim that there is no
legally sufficient basis upon which the jury could find that it
manufactured a new component or part which in fact caused the
subject accident so as to fall within the scope of the “rolling
provision” of GARA.

Thus, Continental argues, because it

manufactured the accident aircraft engine more than 18 years
before the accident, Plaintiff’s claims against it are barred and
judgment should now be entered in its favor.
“GARA” is the abbreviated title for the General Aviation
Revitalization Act of 1994 which is codified in the notes to 49
U.S.C. §40101.

As “the legislative history makes clear, ...

5

Congress enacted GARA to ameliorate the impact of long-tail
liability on a declining American aviation industry in
furtherance of the national interest.”

Prigden v. Parker

Hannifin Corp., 591 Pa. 305, 309, 916 A.2d 619, 622 (2007).

“A

key assumption underlying GARA was the notion that any design
defects in aircraft components generally will be discovered
within the eighteen year period preceding repose.
H.R. Rep. No. 103-525(I) at 3 (1994)).

Id,(citing

Section 2(a) of GARA

reads as follows:
(a) In general. Except as provided in subsection (b), no
civil action for damages for death or injury to persons or
damage to property arising out of an accident involving a
general aviation aircraft may be brought against the
manufacturer of the aircraft or the manufacturer of any new
component, system, subassembly, or other part of the
aircraft, in its capacity as a manufacturer if the accident
occurred (1) after the applicable limitation period beginning
on(A) the date of delivery of the aircraft to its
first purchaser or lessee, if delivered directly
from the manufacturer; or
(B) the date of first delivery of the aircraft to
a person engaged in the business of selling or
leasing such aircraft; or
(2) with respect to any new component, system,
subassembly, or other part which replaced another
component, system, subassembly, or other part
originally in, or which was added to, the aircraft, and
which is alleged to have caused such death, injury, or
damage, after the applicable limitation period
beginning on the date of completion of the replacement
or addition.
“[T]he term ‘limitation period’ means 18 years with respect to
6

general aviation aircraft and the components, systems,
subassemblies and other parts of such aircraft.”

GARA §3(3).

GARA has therefore been said to be a statute of repose, not a
statute of limitations.

As our colleague Judge DuBois succinctly

explained in Robinson v. Hartzell Propeller, Inc., 326 F. Supp.
2d 631 (E.D. Pa. 2004):
Statutes of limitations prohibit lawsuits if a period of
time has elapsed after an accident occurs or is discovered.
Statutes of repose bar suits brought more than a certain
period of time after a product is manufactured and delivered
to the purchaser.
Id, at 646(citing Burroughs v. Precision Airmotive Corp., 78 Ca.
App. 4th 681, 93 Cal. Rptr. 2d 124, 130 (Cal. Ct. App. 2000)).
This means that “[u]nder GARA §2(a)(2), a new eighteen year
period begins when a new part is added to an aircraft if this
part is alleged to have caused an accident.”

Id, at 660.

In

other words, the new limitation period begins when a new system
replaces an old system, a new component replaces an old
component, etc. because “‘replacement’ requires two acts: removal
of the old and substitution of the new.”

Hiser v. Bell

Helicopter Textron, Inc., 4 Cap. Rptr. 3d 249, 111 Cal. App. 4th
640, 650 (CA. App. 2003).

However, as multiple courts have

noted,
Congress’ intent to provide repose for aircraft
manufacturers would be effectively nullified ... if
plaintiffs could lump each new part into large systems for
purposes of GARA’s rolling provision. If that were the
case, parts that were manufactured at the time of the
original sale and whose design had proven useful and safe
7

over the years could become the basis of a suit later, not
because they were new or had been altered in the last 18
years, but because another part in the same system had been
replaced.
Id.; Sheesley v. Cessna Aircraft Co., No. Civ. 02-4185, 2006 U.S.
Dist. LEXIS 27133 at *25 (D.S.D. April 20, 2006); Hinkle v.
Cessna Aircraft Co., No. 247099, 2004 Mich. App. LEXIS 2894
(Mich. Ct. App. Oct. 28, 2004); McCarthy v. Cessna Aircraft Co.,
No. 02-CV-1240, 2005 U.S. Dist. LEXIS 47672 at * 5 (S.D. Ill.
July 14, 2005).

See also, Crouch v. Honeywell International,

Inc., 720 F.3d 333, 343 (6th Cir. 2013)(“Section 2(a)(2) cannot
be reasonably construed as meaning that the 18-year period of
repose for the entire engine is reset every time a single subpart is replaced).
Moreover, because “manufacturer” is not defined in GARA, it
is appropriate to consider the underlying Congressional policy
and legislative history in construing the statute in this regard
as well.

Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A.2d

422, 435 (2006)(citing Patterson v. Shumate, 504 U.S. 753, 761,
112 S. Ct. 2242, 2248, 119 L. Ed.2d 519 (1992) and Mason v.
Schweizer Aircraft Corp., 2002 Iowa Sup. LEXIS 228, 653 N.W. 2d
543, 548 (2002)).

The meaning of “manufacturer” for purposes of

the act is a question of law for the court, which should be
mindful that the term is not uniform in scope throughout the text
of GARA.

Burton v. Twin Commander Aircraft, LLC, 171 Wn. 2d 204,

216, 254 P. 3d 778, 783 (2011)(citing Pridgen, 588 Pa. At 421-22
8

and Burroughs, 78 Cal. App. 4th at 688); Stewart v. Precision
Airmotive Corp., 2010 PA Super 168, 7 A.3d 266, 275 (2010).
Indeed, while most of the courts to have considered the issue
have held that type certificate2 holders, like the holders of a
parts manufacturer approval or “PMA”, are “manufacturers” for
purposes of GARA’s statute of repose, GARA has also been held to
apply to successors that purchase aircraft product lines from the
original manufacturer and hold Type Certificates. Burton, 171 Wn.
2d at 217, 254 P. 3d at 784(citing inter alia, S. Side Trust &
Sav. Bank of Peoria v. Mitsubishi Heavy Inds., Ltd., 401 Ill.
App. 3d 424, 452-455, 927 N.E. 2d 179, 339 Ill. Dec. 638 (2010);
Pridgen, 588 Pa. at 425; Mason v. Schweizer Aircraft Corp., 653
N.W. 2d 543, 548-549 (Iowa 2002)); Scott v. MD Helicopters, Inc.,
834 F. Supp. 2d 1334, 1339 (M.D. Fla. 2011).

See also, Hasler

Aviation, L.L.C. v. Aircenter, Inc., No. 1:06-CV-180, 2007 U.S.
Dist. LEXIS 56856 (E.D. Tenn. Aug. 3, 2007)(quoting Pridgen, 905
A.2d at 425 with approval for proposition that “a type
certificate ‘is an essential prerequisite to manufacture in the

2

“A type certificate includes the type design, which outlines the
detailed specifications, dimensions, and materials used for a given product;
the product’s operating limitations; a ‘certificate data sheet,’ which denotes
the conditions and limitations necessary to meet airworthiness requirements;
and any other conditions or limitations prescribed under FAA regulations.”
Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 684 (3d Cir. 2016). “The
FAA issues type certificates for aircraft, aircraft engines, propellers and
appliances to ensure that aircrafts and their parts are safe. ... To receive a
type certificate, a manufacturer must demonstrate to the Administrator of the
FAA that the products, design, specifications, and manufacturing process meet
all applicable FAA regulations.” Pease v. Lycoming Engines, Civ. A. No. 4:10CV-843, 2011 U.S. Dist. LEXIS 145344 at *40 - *41 (M.D. Pa. Dec. 19,
2011)(citing 49 U.S.C. § 44704).

9

aviation industry’”).

Under the reasoning of the Pennsylvania

Supreme Court, however, the term “manufacturer,” in the context
of the rolling provision, is limited to the actual manufacturer
of a replacement product, or one who supplies the replacement
product as its own.

Stewart, supra,(citing Pridgen, 905 A.2d at

437.
In reviewing the trial record of this case under the lens of
the preceding authority, we find that Plaintiff produced
sufficient documentary and testimonial evidence at trial that
Continental manufactured a replacement part which was installed
in the accident aircraft’s engine some six years prior to the
June, 2010 crash so as to fall within GARA’s rolling provision.
To be sure, the trial record evinces that in May 2004, Sterling
Motors’ Director of Maintenance performed the required total
overhaul of the accident airplane’s engine.

At that time, all

six of the engine’s cylinder assemblies were removed and replaced
with new cylinder assemblies which were manufactured in December,
2003 bearing Continental Motors’ Part No. 65547083.

(N.T.

1/25/17, pp. 94-99, 101; N.T. 2/3/17, pp. 82, 104; N.T. 2/8/17,
pp. 19-20; Pl’s Exhibits 239, 245, 253).

Although the cylinder

assemblies incorporated exhaust valve guides which were
manufactured by Roderick Arms & Tool, the exhaust valve guides
(which were assigned Continental Part No. 636242) were designed
by Continental and manufactured specifically for Continental by

10

Roderick.

As part of its routine manufacturing practices and as

part of its quality assurance procedures, prior to its
installation of the exhaust valve guides into its cylinder
assemblies, Continental tests samples from each batch of valve
guides which it receives from Roderick Arms & Tool to ensure that
the components meet the necessary engineering and manufacturing
criteria.

(N.T. 1/25/17, pp. 108-123; N.T. 2/1/17, p. 54; N.T.

2/8/17, pp. 23-27, 33-34, 36-46; Pl’s Exhibit 249).

Unlike an

after-market parts manufacturer which is required to undergo a
similar FAA-certification process as does the holder of a Type
Certificate, Roderick is an FAA-approved components supplier
under Continental’s Quality Control System.

(N.T. 2/1/17, pp.

36-39; N.T. 2/8/17, 22-28).
Because a lot of movement between the valve and guide is
harmful, the valve needs to fit fairly tightly in the valve
guide.

In order to make them fit, the valve guide has to be

inserted into the cylinder head using a process by which the
cylinder head is heated up and then the guide is pushed into the
cylinder head using a press and reamed in place.3
pp. 103-104; 2/1/17, pp. 74-76).

(N.T. 1/25/17,

This process was followed by

Continental in the process of completing the assembly of its
cylinder and thereby essentially eliminating the guide.

(N.T.

3
Reaming is an industrial term for inserting a reamer, which is
essentially a drill bit or cutting tool, down into the guide and then taking
off any excess material so that it’s exactly the right dimension to fit over
the valve system. (N.T. 1/25/17, p. 104; N.T. 1/26/17, pp. 20-21).

11

2/1/17, pp. 77-79).

In 2007, Sterling became aware that there

was a problem with the No. 3 and No. 5 cylinders in the accident
engine and it accordingly sent out those two cylinders to have
the parts replaced.

(N.T. 2/2/17, 151-153).

This is clear

evidence that the exhaust valve guide manufactured and supplied
by Roderick was incorporated into and made a part of the No. 2
cylinder/cylinder assembly manufactured by Continental Motors.
It was that No. 2 cylinder which failed, thereby causing the
Cessna’s engine to fail and the subject accident to occur.

We

therefore find that inasmuch as Continental was the manufacturer
of the cylinder which caused the accident, GARA’s rolling
provision is properly applied and Plaintiffs’ claims against
Continental are not barred.
2.

Failure to Prove Hardness Deficiency Caused Accident

As previously stated, Continental’s second argument in
support of its Renewed Rule 50(b) motion is that Plaintiffs’
claims fail under GARA and Pennsylvania tort law because
plaintiffs failed to prove that the No. 2 exhaust valve guide’s
allegedly deficient material hardness caused the exhaust valve
guide to fail.

Following our review of the trial record, we find

that this argument is also meritless.
In the course of the presentation of their case, Plaintiffs
presented a number of expert witnesses with expertise in
metallurgy, materials sciences and accident investigation and

12

reconstruction.

Colin Sommer, an expert in the field of aircraft

accident investigation, is a licensed mechanical engineer with a
Bachelor of Science degree in civil and environmental engineering
with an emphasis in structural design who has investigated some
400 aircraft accidents.

Mr. Sommer testified that his

examination of the accident aircraft’s engine and the No. 2
cylinder in particular, revealed that the No. 2 piston had been
destroyed by the failure of the valve system in the No. 2
cylinder. (N.T. 1/25/17, p. 127-128).

The No. 2 valve head had

become detached from the No. 2 valve system, and the
metallurgical examination of the exhaust valve system showed that
there was evidence of fatigue on the fracture surface of the
exhaust valve system which meant that as the valve was riding up
and down inside the cylinder, the valve became crooked because of
wear that was found between the valve guide and the valve system.
As a result, the valve started to bang up against the valve seat
where it seals and eventually broke the head off of that valve.
Once that happened, the valve was rolling around inside the
cylinder while the piston was traveling up and down inside at 22
times per second.

Eventually, the piston was destroyed, followed

by the connecting rod, which was actually torn off of the
crankshaft.

In short, Mr. Sommer testified that the destruction

of the No. 2 piston was the result of the failure of the No. 2
exhaust valve head, and the No. 2 exhaust valve head failure

13

resulted from the failure of the No. 2 exhaust valve and guide
which then cascaded to the destruction of the rest of the engine.
(N.T. 1/25/17, pp. 129-131).
According to this witness: “the purpose behind hardening
something is generally wear resistance.

It’s the same reason

that you wouldn’t make an aircraft engine crank case out of
plastic or wood.

You have to make it out of something tough,

something strong, something that is resistant to wear.”
1/26/17, p. 17-18).

Typically, the exhaust valves are subject to

much more heat and wear than are intake valves.
p. 87).

(N.T.

(N.T. 1/26/17,

In an effort to determine why the valve guide wore in

the foregoing manner, Mr. Sommer, as part of his accident
investigation and in conjunction with the McSwain Engineering
laboratory, performed the same type of test that Continental
would perform4 on the valve to determine whether or not it met
minimum hardness specifications.

(N.T. 1/25/17, pp. 136-137).

That test is a “hardness test” utilizing a Brinell machine
which operates by taking a small metal sphere and pressing it
into the side of the metal of the object being tested.
1/25/17, p. 137).

(N.T.

Part of the design of the valve guide from

4

When Continental accepts shipments of valve guides from its supplier
Roderick, they routinely inspect samples from the various lots received for
hardness to ensure that the guides are in compliance with their
specifications. When the sampling tests are completed, Continental’s
inspector completes a form called a Certificate of Compliance approving the
batch if the lot’s samples fell within the specified hardness rating of
Rockwell B 75-90. (N.T. 1/26/17, pp. 26-33; Pl’s Exhibits 294, 296, 297; CMI
Exhibits 3345, 3346, 3347, 3348; N.T. 2/8/17, pp 24-28, 36-56).

14

Continental is that it must meet a certain hardness minimum
requirement; for the exhaust valve guide at issue - Continental
Part No. 636242 - that minimum hardness is 75 to 90 on the
Rockwell B Scale.5

(N.T. 1/25/17, p. 138).

Sommer testified

that the guides on the first five cylinders on the accident
aircraft’s engine were tested for hardness using this methodology
and scale which resulted in findings that the No. 1 guide had a
score of 68, the No. 2 guide was 71.6, the No. 3 guide was 86.9,
the No. 4 guide tested at 68.4, and the No. 5 guide was measured
at 84.1.

(N.T. 1/25/17, 139-140).6

Sommer further stated that the Continental exhaust valve
guides are made from an alloy called Ni-Resist, which is designed
for operating temperatures at a consistent basis typically
between 1,000 to 1,300 degrees Fahrenheit.

(N.T. 1/25/17, p.

5

Rockwell Hardness is a hardness-testing technique and a scale for
measuring the hardness of materials. Under the American Society for Testing
and Materials standards, specific equipment for Rockwell Hardness testing is
required to be utilized and specific procedures for conducting the testing are
to be followed. (N.T. 2/1/17, pp. 140-141). In addition to the Rockwell
scale requiring the use of a Brinell apparatus, there are other scales for
measuring the hardness of materials such as the HR15T and HR30T and which
permit the use of other equipment and testing procedures. (N.T. 2/1/17, pp.
183-190). Continental Motors’ designated inspection procedures for accepting
materials, however, specified that the Rockwell B scale be followed. (N.T.
2/1/17, 188-190; Pl’s Exhibits 291, 481).
6

Again, the guides in the No. 3 and No. 5 cylinders had been replaced
in 2007 with guides manufactured not by Continental but by ECI, another
company. (N.T. 1/25/17, p. 139). Those guides were pre-finished or prereamed, unlike the Continental Nos. 1, 2, 4 and 6 guides which were reamed or
finish-in-place. (N.T. 1/26/17, pp. 18-20; N.T. 2/1/17, p. 54). Because they
had to extract the guides from the cylinders, which is accomplished by either
hammering or machining them out and is not easy, the Nos. 1, 2 and 4 guides
were extracted because they were in close proximity to one another. The Nos.
3 and 5 guides were already loose and didn’t have to be extracted. The No. 6
guide was left in place and was not tested. (N.T. 1/26/17, p. 162; N.T.
2/1/17, pp. 145-146).

15

141-142; Pl’s Exhibit 49).

Those higher temperatures

notwithstanding, the TSIO-520-H engine (the model engine which
was in the accident aircraft) was designed for a maximum (or
“red-line”) temperature of 460 degrees Fahrenheit and that
temperature is measured in the cylinder head itself.
1/25/17, 143-145; Pl’s Exhibit 235).

(N.T.

Mr. Sommer testified that

his review of several pieces of evidence uncovered during the
accident investigation reflected that in this case, the accident
engine was not being operated at or above that red-line
temperature7 (N.T. 1/25/17, 146).

Mr. Sommer unequivocally

stated that the evidence of the temperatures that were seen on
the engine post-accident were nowhere near what would have been
needed to cause Ni-Resist to soften.
152).

(N.T. 1/25/17, 149-150,

Thus, in Mr. Sommer’s opinion, the No. 2 exhaust valve

guide, which everyone agreed wore prematurely, did not suffer
from premature wear because of excessive engine temperatures
causing the alloy which it was made of to soften or because there
was insufficient lubrication in the engine but rather because it
did not possess the requisite hardness (Rockwell B 75-90) at the
time that it was incorporated into the No. 2 cylinder assembly by
Continental.

(N.T. 1/26/17, 100, 126-128; 152-155, 160-162).

Plaintiffs also presented testimony from William Carden, the

7
For one, all of the cylinders exhibited normal combustion products
on the cylinder bore, cylinder head and on the piston itself and there was no
physical evidence of excessive heat or lack of lubrication. (N.T. 1/25/17,
pp. 146-150; Pl’s Exhibit 269).

16

Director of Materials Engineering at McSwain Engineering and an
expert in materials engineering and materials failure analysis.
(N.T. 2/1/17, pp. 104-107, 111).

Mr. Carden testified that using

a coordinated measuring machine and touch probe, he measured the
exhaust valve guides in the accident aircraft’s engine, in
particular the inner diameters, and conducted a chemical analysis
of the valves, guides and cylinders.

(N.T. 2/1/17, 112-121).

In

doing so, Mr. Carden found that the inner diameter of the No. 2
exhaust valve guide was very large, especially at the opening
into the barrel, but was much smaller at the top than it was at
the bottom.

Mr. Carden also found that the No. 2 valve guide was

much larger than the rest of the guides in the other cylinders
and that there was quite a bit of wear on the bottom parts of the
valve guides.

(N.T. 2/1/17, 121-123).

In measuring the

diameter of the valve systems with handheld blade and laser
micrometers, Carden found that the clearance of the No. 2 guide
was much larger than all of the others and in fact was some 10
times the maximum clearance of the return to service clearance
limits of 7/1000 of an inch on the bottom of the guide. (N.T.
2/1/17, pp. 124-125).
Two cracks in the No. 2 exhaust valve guide from the top of
the valve guide down into and along the right hand side of the
guide were also observed using a scanning electron microscope.
These cracks were found to be very flat, demonstrating that the

17

initial fracture occurred and separated the top of the valve
guide such that the valve guide was then rubbing on top of itself
or hammering itself flat.

(N.T. 2/1/16, pp. 126-134).

Additionally, fatigue striations, which appear as ridges or lines
and which are indicative of fatigue cracks8 were also seen in the
course of Carden’s examination of the No. 2 exhaust valve guide.
(N.T. 2/1/17, 135-136).
The testing of the valve guide’s chemical composition was
undertaken using x-ray spectroscopy and revealed that the No. 2
guide was composed of the Ni-Resist Type 1 alloy (N.T. 2/1/17,
138-139).

As discussed by Colin Sommer, Mr. Carden likewise

testified as to the hardness testing which was done at McSwain
Engineering in July of 2015, and his testimony mirrored that of
Mr. Sommer as to how the tests were conducted, why they were
conducted in the manner in which they were, and what the results
were.

(N.T. 2/1/17, pp. 139-154).

Mr. Carden reiterated that

the results of the hardness testing (which consisted of three
tests per cylinder and the mean or average of the three being
accepted as the overall reading) reflected that Cylinder No. 1
had a Rockwell B Hardness reading of 68.4, Cylinder No. 2 was

8

Carden explained that a fatigue crack is a crack that propagates
incrementally over a period of time. Rather than something breaking all at
one time in a sudden failure such as an overload event, at lower loads, a tiny
crack can develop and that crack, as material is repeatedly loaded and
unloaded, incrementally grows and moves forward generating the striations. A
fatigue crack continues to grow over time until a break occurs, as in this
case where the valve guide broke and then rubbed on top of itself producing
the flat areas which were observed. (N.T. 2/1/17, 136-137).

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71.6 , and Cylinder No. 4 was 68.37.

The test results were

between 75 and 90 on the Rockwell B scale for Cylinder Nos. 3 and
5 (manufactured by ECI).

(N.T. 2/1/17, 155-158).

And Mr. Carden

agreed that the alloy carbide network in Ni-Resist remains stable
at elevated temperatures up to 1,300 degrees Fahrenheit.
2/1/17, 180-182; N.T. 2/2/17, pp. 9-10).

(N.T.

He also testified

regarding a test which he conducted on a #636242 Continental
valve guide which had an as-manufactured hardness reading of 81.9
and which he placed in an oven at 600 degrees F for some 2,300
hours.

(N.T. 2/2/17, 17-21).

Despite exposure to these

temperatures for such an extended period of time, the hardness
reading on the valve guide at the conclusion of the test was
81.7.

(N.T. 2/2/17, p. 21).

Pointing to photographs of the

accident engine and the cylinders, Mr. Carden also stated that
there was no showing of any damage or burning to the plastic
paint or rubber baffling on and around those areas or anything
else showing heat damage.

Since to soften the valve guides would

require temperatures of upwards of 1,300 degrees, in Mr. Carden’s
opinion, the post-crash fire had no effect on the hardness of the
exhaust valve guides and the No. 2 exhaust valve guide rather was
not hardened. (N.T. 2/2/17, pp. 29-33, 61, 63-64).
Additional evidence regarding the sequence of events leading
to the engine failure in the accident aircraft was provided by
one of the defense witnesses, Dr. John Morris, an expert in

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metallurgy, material science and failure analysis.

Noting that

everyone agreed on what the sequence of events leading to failure
was, Dr. Morris explained that as the valve, which is situated in
a cylinder, opens and closes, it passes through the valve guide
and that as it moves back and forth, “there always is going to be
some wear.
quickly.

In this case, the wear became very severe rather
As it became severe, the valve became loose in the

valve guide which created a much worse mechanical situation
because then it was vibrating back and forth,” creating a “cyclic
load which tends to make materials fail in a phenomenon called
fatigue.”

(N.T. 2/8/17, p. 151).

Dr. Morris said that what

typically happens is that “under cyclic loads the material will
be damaged, the damage will accumulate, and finally a crack will
form where the damage accumulates.”

(N.T. 2/8/17, p. 151).

In

this case, several cracks formed in the valve guide and the top
of the valve guide broke off freeing the valve to move and break
causing the cylinder to fail and parts of the engine to come
apart.

That was when the engine stopped operating.

(N.T.

2/8/17, pp. 151-152).
Although Dr. Morris did not believe that the valve guide
failed because of insufficient hardness but rather because of
insufficient lubrication causing the engine to run too hot, he
testified that he “is a metallurgist,” ... “not an engine
person,” and that at the time of the first inspection at McSwain,

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he and the “several people from Continental who were there at the
same time [he] was... talked about what [they] could see and
their main comment was that this thing obviously was pretty hot.”
He went on to explain that “[y]ou have a real wear problem when
things get hot, because what’s defeating wear is lubricant.

You

start heating up an engine, the lubricant becomes a real problem,
the viscosity gets very low... [and] it’s not producing a decent
lubrication film anymore” resulting in “metal to metal contact”
and “big wear.”

(N.T. 2/8/17, pp. 158-159, 167).

Dr. Morris

admitted that “[s]o we concluded very, very early that the
probable cause of this was metal-to-metal contact due to an
overheated operation of some kind.”

(N.T. 2/8/17, p. 159).

In applying the Rule 50 standards for adjudicating motions
for entry of judgment as a matter of law and in viewing the
evidence in the light most favorable to the Plaintiffs as nonmovants and giving them the benefit of every fair and reasonable
inference, we find that this evidence was more than sufficient to
have enabled this jury to find that the No. 2 Continental valve
guide that was in the No. 2 cylinder was not in compliance with
its own hardness specifications and that it was because it did
not meet the requisite hardness threshold that it wore
prematurely and ultimately fractured and failed.

In so holding,

we observe that there was also adequate evidence to have
permitted the jury to have adopted Continental’s theory of the

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case - that is, that the engine failure was caused by
insufficient lubrication.

The jury was free to believe or

disbelieve any or all of the expert witnesses who testified in
this action and was free to accept or reject the theories of
failure advanced by any party.

In determining whether the

evidence is sufficient to sustain liability, the court may not
weigh the evidence, determine the credibility of witnesses, or
substitute its version of the facts for the jury’s version.
These principles are well-settled and we follow them now.
Inasmuch as this record is not critically deficient of that
minimum quantity of evidence from which a jury might reasonably
afford relief, there is no basis upon which to grant Moving
Defendant’s Rule 50(b) motion.

The motion is therefore denied

pursuant to the attached order.

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