Sikkelee v. Precision Airmotive Corporation et al
Filing
359
MEMORANDUM AND ORDER: DENYING AVCO's Renewed Motion 332 for Reconsideration of Order Entered 7/3/2012. Signed by Honorable Matthew W. Brann on 6/3/13. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JILL SIKKELEE, individually and
as personal representative of the
estate of DAVID SIKKELEE,
deceased,
:
:
:
:
:
Plaintiff
:
:
v.
:
:
PRECISION AIRMOTIVE
:
CORPORATION, PRECISION
:
AIRMOTIVE LLC, PRECISION
:
AEROSPACE CORPORATION,
:
PRECISION AEROSPACE
:
SERVICES LLC, PRECISION
:
AVIATION PRODUCTS
:
CORPORATION, PRECISION
:
PRODUCTS LLC, ZENITH FUEL :
SYSTEMS LLC, BURNS
:
INTERNATIONAL SERVICES
:
CORPORATION, FORMER FUEL :
SYSTEMS, INC., MARK IV
:
INDUSTRIES, INC., TEXTRON
:
LYCOMING RECIPROCATING
:
ENGINE DIVISION, TEXTRON,
:
INC., AVCO CORPORATION,
:
KELLY AEROSPACE, INC.,
:
KELLY AEROSPACE POWER
:
SYSTEMS, INC.,
:
ELECTROSYSTEMS, INC.,
:
CONSOLIDATED FUEL
:
SYSTEMS, INC.,
:
:
Defendants.
:
Case No. 4:07-cv-00886
(Judge Brann)
MEMORANDUM
June 3, 2013
For the reasons that follow, the “Renewed Motion for Reconsideration of
Order Entered July 3, 2012,” filed on October 31, 2012 by defendant AVCO Corp.
(hereinafter, “AVCO”) on behalf of its Lycoming Engines Division (hereinafter,
“Lycoming”) (ECF No. 332), is denied.
I.
Procedural Background
On May 16, 2007, plaintiff Jill Sikkelee commenced this suit by filing a
complaint that asserted claims against seventeen defendants allegedly responsible
for the death of her husband, David Sikkelee, who was piloting a 1976 Cessna
172N airplane (hereinafter, the “accident aircraft”) when it crashed in 2005. (ECF
No. 1). After a series of party terminations and dismissals of claims over years of
litigation, by the time the Court issued the July 3, 2012 Memorandum & Order1
presently under reconsideration (ECF No. 299) (hereinafter, the “subject Order” or
“Mem. & Order”),2 Sikkelee’s only remaining claims alleged that Lycoming was
1
By the Honorable John E. Jones III, who was then presiding over this
matter. The matter was reassigned to the undersigned on January 17, 2013.
2
The Court notes that the subject Order has been reported at 876 F. Supp. 2d
479.
2
liable under theories of negligence and strict liability3 for design defects and
inadequate warnings associated with the engine and carburetor installed in the
accident aircraft.
The subject Order, which was prompted by Lycoming’s motion for summary
judgment on the remaining negligence and strict liability counts (the motion was
filed in two steps, see Def.’s Mot. Part. Summ. J., Aug. 5, 2011, ECF No. 220;
Def.’s Mot. Part. Summ. J., Oct. 3, 2011, ECF No. 252), pruned Sikkelee’s claims
further still by granting Lycoming’s motion for summary judgment “to the extent
[it sought] judgment as a matter of law with respect to the condition of the engine
in 1969.” (Mem. & Order at 35).4 In all other respects, however, Lycoming’s
motion was denied, and the Court ordered that Sikkelee could “proceed on the
negligence and strict liability design defect [and inadequate warning] theories
asserted by [her] as they relate to the 2004 engine overhaul.” (Id. at 36).
On July 17, 2012, Lycoming filed a first motion for reconsideration of the
3
In a March 13, 2012 Memorandum & Order, the Court held that
Pennsylvania’s substantive law would apply to the liability issues in this case.
(ECF No. 288).
4
Even after summary judgment in Lycoming’s favor on this issue, Sikkelee
apparently maintains that the engine was defective when placed in the stream of
commerce by Lycoming in 1969, (see, e.g., Pl.’s Opp’n Br., Nov. 28, 2012, ECF
No. 341 at 10), but Sikkelee did not move for reconsideration of the subject
Order’s ruling on this issue and the Court does not consider it here.
3
subject Order, and the next day moved for amendment of the subject Order to
include a 28 U.S.C. § 1292(b) statement that would prompt the United States Court
of Appeals for the Third Circuit (hereinafter, the “Third Circuit”) to permit, in its
discretion, an interlocutory appeal of the subject Order. (See Def.’s First Mot.
Recons., ECF No. 300; Def.’s Mot. Amend, ECF No. 302). Specifically, Lycoming
sought an interlocutory appeal of this Court’s decision to apply the law of the
Restatement (Second) of Torts § 402A (hereinafter, “Restatement 2d”) to
Sikkelee’s claims, as opposed to §§ 1 & 2 of the Restatement (Third) of Torts
(Products Liability) (hereinafter, “Restatement 3d”). (See Def.’s Mot. Amend, ECF
No. 302). The Court subsequently amended the subject Order to include the §
1292(b) statement, “specifically and limited to the issue of whether the
Pennsylvania Supreme Court would adopt the Restatement (Third) of Torts or
continue in its application of the Restatement (Second) of Torts.” (July 26, 2012,
ECF No. 306).
The Third Circuit declined to accept Lycoming’s interlocutory appeal, but,
in a brief Order rejecting Lycoming’s petition for rehearing en banc, reaffirmed the
holdings of Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011) and Berrier v.
Simplicity Mfg., Inc., 563 F.3d 38 (3d Cir. 2009): “federal courts sitting in
diversity and applying Pennsylvania law to products liability cases should look to
4
sections 1 and 2 of the Restatement (Third) of Torts.” Sikkelee v. Precision
Airmotive Corp., 2012 WL 5077571 (3d Cir. Oct. 17, 2012).
On the same day of the Third Circuit’s Order, this Court – “[g]uided by [the
Third Circuit’s] clarification” and recognizing that the “application of the
Restatement (Third) may be perceived to require the Court to revisit its earlier
decision . . ., which applied the Restatement (Second) of Torts” – denied
Lycoming’s pending motion for reconsideration as moot, but permitted counsel to
file new motions for reconsideration “guided by the Circuit’s direction that the
Restatement (Third) is applicable to this action.” (Order, ECF No. 324).
Accordingly, on October 31, 2012, Lycoming briefed a “Renewed Motion
for Reconsideration” of the subject Order (ECF No. 333) (hereinafter, “Def.’s
Br.”); Sikkelee submitted a brief in opposition on November 28, 2012 (ECF No.
341) (hereinafter “Pl.’s Opp’n Br.”); and Lycoming filed a reply brief on
December 17, 2012 (ECF No. 344) (hereinafter “Def.’s Reply Br.”).
II.
Standard
“The purpose of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki,
779 F.2d 906, 909 (3d Cir.1985). The Court may amend its prior ruling “if the
party seeking reconsideration shows at least one of the following grounds: (1) an
5
intervening change in the controlling law; (2) the availability of new evidence that
was not available when the court granted the motion for summary judgment; or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice.”
Howard Hess Dental Lab. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir.
2010) (quoting Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d
Cir.1999)). In the absence of such grounds or another appropriate circumstance, the
law of the case controls.5
III.
Substantive Background
The Court quotes the entirety of the subject Order’s “Statement of Material
Facts”:
The following facts are derived from the record and viewed in the light
most favorable to the Plaintiff in accordance with the standard of review
applicable to a motion for summary judgment. Due to the factual
complexity of this litigation and the familiarity of the parties and the
Court with the record, we briefly state the pertinent facts herein and
supplement them as necessary with additional facts throughout our
analysis.
This action arises out of an aircraft accident involving a 1976 Cessna
172N airplane on July 10, 2005 at the Transylvania County Airport in
Brevard, North Carolina. The accident resulted in the death of David
Sikkelee (“the decedent”), husband of Jill Sikkelee (“Plaintiff”), and
significant injuries to the decedent’s brother, Craig Sikkelee (“the
5
This Court recently discussed the law of the case doctrine in some detail in
Young v. Pleasant Valley Sch. Dist., 2013 WL 1856573, *3 (M.D. Pa. May 2,
2013).
6
passenger”). Shortly after takeoff on July 10, 2005, the plane crashed to
the ground, resulting in the death of the decedent and serious injuries to
the passenger. Plaintiff alleges that the accident was caused by a faulty
carburetor, specifically a loosening throttle body to bowl assembly
within said carburetor, installed in the subject engine.
Lycoming designed and manufactured a certain 0–320–D2C aircraft
engine, bearing serial number L–6590–39A (“engine S/N L–6590–39A”
or “the subject engine”), in Williamsport, Pennsylvania. (Doc. 253, ¶ 1).
Lycoming shipped the subject engine to Beagle Aircraft, Inc., on
September 4, 1969. (Id. ¶ 2). The Lycoming O–320 engine, S/N
L–6590–39A, was installed on the Cessna 172N aircraft when it crashed
on July 10, 2005. (Id. ¶ 3). Plaintiff admits that the carburetor that was
installed on the Cessna 172N was not the same carburetor Lycoming
shipped with the subject engine in 1969 but was instead a different
carburetor. (Doc. 221, ¶ 5). The carburetor installed in the subject engine
on the accident aircraft (“replacement carburetor”), a Precision
MA–4SPA carburetor, was manufactured by the Precision Defendants
and was completely overhauled by the Kelly Defendants on or about
August 3–5, 2004. (Id. ¶ 6; Doc. 253, ¶ 5).
Lycoming holds the FAA-issued Type Certificate for the MA–4SPA
model carburetors and the MA–4SPA carburetor at issue here was
manufactured pursuant to Lycoming design, which cannot be modified
or altered without approval from Lycoming (Doc. 234, ¶ 5). Defendant
Precision and its predecessors were permitted to manufacture the
carburetor pursuant to a licensing agreement with Lycoming. (Id.). The
MA–4SPA carburetor design is not approved separately and is part of the
Lycoming engine type design. (Id.).
As the holder of the Type Certificate for the engine, Lycoming approved
and implemented the engineering change which effected the throttle
body to bowl screw design at issue here in lieu of a safety wire assembly.
(Id. ¶ 5, 22). This change was made in 1965. (Id. ¶ 22). Since 1972,
Lycoming has been made aware of various reports of malfunctions and
defects related to its O–320 series engines and the MA–4SPA
carburetors, specifically concerning loosening throttle body to bowl
assemblies. (Id. ¶¶ 24–25).
7
The 2004 overhaul of the subject engine, including the overhaul of the
carburetor, was accomplished pursuant to and required by Lycoming’s
continued airworthiness instructions, which the FAA mandates
Lycoming, as the Type Certificate holder for the entire engine design,
maintain in compliance with federal aviation regulations. (Id. ¶¶ 5–6).
The Kelly Defendants further complied with Lycoming’s Service
Bulletin 366, which was intended to alleviate the known throttle body to
bowl assembly defects. (Id. ¶ 6). Lycoming’s continued airworthiness
instructions recommend that the carburetor be replaced at the time of the
engine overhaul, and its Type Certificate Data Sheet (“TCDS”) instructs
mechanics to use MA–4SPA replacement carburetors when overhauling
this engine. (Id.). Accordingly, as required by Lycoming’s design, an
MA–4SPA carburetor was installed on the subject engine during the
2004 overhaul.
The replacement carburetor on the subject engine at the time of the crash
was a Lycoming-approved Marvel Schebler MA–4SPA model 10–5135
carburetor, which bore Lycoming part number, LW–13659. (Id.).
Plaintiff's three experts conclude that the carburetor design was and is
defective and dangerous. (Docs. 234–4, 234–5, 234–6). Donald E.
Sommer, P.E., an expert who investigated the subject engine subsequent
to the crash, noted that the carburetor bowl screws had loosened in the
subject engine; he conducted several tests and concluded that “[t]he
accident O–320 MA–4SPA carburetor is unreasonably dangerous and
caused the death of David Sikkelee.” (Doc. 234–6, pp. 34). He ultimately
concluded that Lycoming “failed to exercise reasonable care in the
design, manufacture, and support of the accident aircraft’s engine and
carburetor” and that Lycoming’s O–320–D2C engine “is a defective
engine due to the incorporation of the Precision MA–4SPA carburetor.”
(Id.)
(Mem. & Order at 7-10).
III.
Discussion
(a)
The July 3, 2012 Memorandum & Order
8
Lycoming’s motion for reconsideration challenges the subject Order’s
holding on – in the words of the subject Order – a “critical preliminary issue”:
whether Sikkelee’s claims fail because Lycoming was not “a manufacturer,
distributor or seller of the allegedly offending product.” (Mem. & Order at 10-11
(citing Pennsylvania caselaw for the proposition that, under both negligence-based
and strict liability-based products liability regimes, the defendant, to be liable, must
be a manufacturer, distributor, or seller who casts a defective product into the
stream of commerce)).
In moving for summary judgment, Lycoming argued that, “while it
admittedly sold the subject engine in 1969, the allegedly defective replacement
parts installed during the engine’s overhaul in 2004 were manufactured and sold by
others.” (Mem. & Order at 11-12). As a consequence, argued Lycoming,
“[Sikkelee’s claims] fail[] the preliminary requirement of a Pennsylvania products
liability action” because Lycoming “did not manufacture, distribute, sell, or
otherwise cast into the stream of commerce the allegedly defective replacement
carburetor and its component parts.” (Id. at 12). In support of its position,
Lycoming cited the following undisputed facts:
that [Lycoming] manufactured the subject engine, S/N L–6590–39A, in
1969 (Doc. 253, ¶ 1); that said engine was installed on the subject
Cessna 172N aircraft when it crashed on July 10, 2005 (Id. ¶ 3); that the
carburetor installed at the time of the 2005 crash was not the same
9
carburetor shipped with its S/N L–6590–39A engine in 1969 (Id. ¶ 5);
that the carburetor installed at the time of the crash was in fact a
replacement carburetor, a Precision MA–4SPA (Id. ¶ 5); that the
replacement carburetor was completely rebuilt or overhauled by the
Kelly Defendants in 2004, which installed new or as new parts and
components with the carburetor (Id.); and that the Kelly Defendants
manufactured the carburetor’s replacement component parts, rebuilt or
overhauled the replacement carburetor, and shipped the replacement
carburetor. (Id. ¶ 6).
(Mem. & Order at 12-13).
The subject Order conceded that “Lycoming’s argument, at first blush,
appear[ed] sound,” but ultimately concluded that Lycoming was advocating a
“tunnel vision approach to this case” by asking the Court to “neglect[] critical facts
regarding [Lycoming’s] role in the manufacture of the replacement carburetor and
the overhaul of the engine.” (Mem. & Order at 16). These facts included:
that the replacement carburetor on the subject engine at the time of the
crash was a Lycoming-approved Marvel Schebler MA–4SPA model
10–5135 carburetor (Doc. 234, ¶ 5); that the MA–4SPA carburetor was
manufactured by Defendant Precision and its predecessors pursuant to
a licensing agreement with Lycoming (Id.); that MA–4SPA carburetors
are assigned a Lycoming part number, LW–13659 (Id.); that Lycoming
holds the FAA Type Certificate for the MA–4SPA model carburetors
and that the MA–4SPA carburetor at issue here was manufactured
pursuant to Lycoming design drawings, which cannot be modified or
altered without approval from Lycoming (Id.); that Lycoming approved
the allegedly defective throttle body to bowl screw design at issue here
(Id.); that the subject engine and carburetor were overhauled in 2004
pursuant to Lycoming’s manual and Service Bulletin 366 (Id. ¶ 6); that
Lycoming, in its continued airworthiness instructions, recommends that
MA–4SPA carburetors be replaced when an engine is serviced or
overhauled (Id.); and that Lycoming's Type Certificate Data Sheet
10
(“TCDS”) instructs mechanics to use MA–4SPA replacement carburetors
when overhauling this engine. (Id.).
(Mem. & Order at 14-15).6 The subject Order reasoned that these facts “created
6
Lycoming argues that the Court was wrong to credit (for purposes of
evaluating whether a genuine dispute of material fact existed) Sikkelee’s assertion
that “the subject engine and carburetor were overhauled in 2004 pursuant to
Lycoming’s manual.” (Def.’s Br. at 19-21). Lycoming points out that Sikkelee did
not cite to the record in support of this assertion, and argues that the record shows
that the overhaul was performed using a Precision manual, not a Lycoming
manual. (Id.). While Sikkelee should have complied with L.R. 56.1 (requiring
“references to the parts of the record that support” a party’s contention that a
genuine dispute of material fact exists), the issue whether the overhaul was
performed using “Lycoming’s manual” is open to dispute, as shown by the record.
(See, e.g., ECF No. 234-6 (quoting Lycoming Overhaul Manual instruction
providing that “[a]ll repair and replacement procedures [with respect to
carburetors] must be carried out in conjunction with the manufacturer’s
publications. Consult Avco Lycoming Service Bulletins nos. 297A, 306, 309, and
323 and be certain the carburetor has been modified to conform with these
bulletins”); ECF No. 234-11 at 4 (Airworthiness Approval Tag stating that
overhaul was performed in compliance with Lycoming service bulletins); ECF No.
234-17 at 4 (Lycoming Maintenance Flyer stating that “[t]he Lycoming overhaul
manual and all applicable service bulletins and service instructions, used in
conjunction with the appropriate operator’s manuals, constitute the engine
maintenance manual required” by the Federal Aviation Administration)).
Particularly because of the Court’s obligation to “draw all inferences in a light
most favorable to the nonmoving party,” Sheridan v. NKG Metals Corp., 609 F.3d
239, 250 n.12 (3d Cir. 2010), the Court did not err in finding that Sikkelee could
potentially prove Lycoming’s manual, in some shape or form, was used in the
overhaul.
Lycoming claims that Sikkelee’s assertion with respect to the use of
Lycoming’s manual in the overhaul is just one “illustration” of a general flaw in
the subject Order, namely that it is “replete with ‘facts’ that are not facts at all,” so
much so that Lycoming’s brief supporting its motion for reconsideration “[could
not] discuss all such instances given the page limitations in the Local Rules.”
11
genuine issues of material fact with respect to whether Lycoming is indeed a
manufacturer of the defective engine following its 2004 overhaul.” (Id. at 16).
Specifically, the subject Order accepted what it understood to be Sikkelee’s
argument in opposition to summary judgment – that “because Lycoming exercised
such control over the MA–4SPA carburetor and the engine overhaul in its entirety,
. . . Lycoming c[ould] fairly be said to be a de facto manufacturer of the overhauled
engine, rendered defective by the replacement carburetor installed pursuant to its
direction.” (Mem. & Order at 15). The subject Order reasoned that to not impose
liability on a “de facto manufacturer” on the same terms as any other
“manufacturer” would “entirely defy concepts of fairness and justice and run
counter to the considered history of products liability policy.” (Id. at 16).
Accordingly, the subject Order refused “to permit Lycoming to shift liability for a
defective engine to its physical component part manufacturers and overhauling
(Def.’s Br. at 19-21). This is hard to take seriously in light of at least seven
previous motions to exceed page limitations (one filed by Lycoming, Sept. 14,
2010, ECF No. 163) in this case, all of which appear to have been granted. Since
the Court assumes that Lycoming’s additional instances of “‘facts’ that are not
facts at all” are less substantial than the single unmeritorious “illustration”
provided, the Court holds that the subject Order’s denial of Lycoming’s motion for
summary judgment should not be overturned on this basis.
12
mechanics simply by physically removing itself from the overhaul process even
though its directives control every aspect of said process.” (Id. at 19). The subject
Order denied Lycoming’s motion for summary judgment (with the exception of
claims arising from Lycoming’s 1969 sale of the engine), permitting Sikkelee to
proceed with her design defect and inadequate warning claims on strict liability
and negligence theories.
(b) Reconsideration
Using the taxonomy discussed in Section II above, Lycoming asserts that an
intervening change in the controlling law (from the application to Restatement 2d
to Restatement 3d) and the need to correct a clear error of law (the Court’s
conclusion that Lycoming could be liable as a de facto manufacturer) compel this
Court to reconsider the subject Order and grant Lycoming’s motion for summary
judgment. The Courts disagrees.
(1)
There is no intervening change in law that warrants
reconsideration and reversal.
Overstating the case somewhat, Lycoming asserts that “[t]he only question
before this Court on reconsideration is whether Section 20 of the Restatement
(Third) permits liability under this Court’s de facto manufacturer theory of
13
liability.” (Def.’s Reply Br. at 3).7
As one would expect, Lycoming argues that the answer is “no,” reasoning
that liability for a product defect under § 1 of Restatement 3d can only be placed
on a defendant “engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product.” Because § 20 of Restatement
3d defines what it means to “sell a product”8 and “otherwise distribute[] a
product”9 under § 1, and because Lycoming does not fit either definition with
respect to the carburetor and engine overhauled in 2004, Lycoming concludes that
it cannot be liable for the design and warning defects alleged by Sikkelee. (Def.’s
Br. at 5-8; Def.’s Reply Br. at 6-7).
7
In its opening brief, Lycoming argued that the Court erred in its application
of Federal Rule of Civil Procedure 56(a). (Mem. & Order at 15-17). Because the
Court finds that Lycoming’s argument in this regard simply recasts its primary
argument – that, as a matter of law, Lycoming cannot be liable as a de
facto manufacturer – the Court does not consider the argument separately.
8
Restatement 3d § 20(a) provides: “One sells a product when, in a
commercial context, one transfers ownership thereto either for use or consumption
or for resale leading to ultimate use or consumption. Commercial product sellers
include, but are not limited to, manufacturers, wholesalers, and retailers.”
9
Restatement 3d § 20(b) provides: “One otherwise distributes a product
when, in a commercial transaction other than a sale, one provides the product to
another either for use or consumption or as a preliminary step leading to ultimate
use or consumption. Commercial nonsale product distributors include, but are not
limited to, lessors, bailors, and those who provide products to others as a means of
promoting either the use or consumption of such products or some other
commercial activity.”
14
The problem with this argument is that it assumes that Restatements are
adopted wholesale when they are not. See Covell v. Bell Sports, Inc., 651 F.3d
357, 364-65 (3d Cir. 2011) (reaffirming the prediction that Pennsylvania’s highest
court will adopt §§ 1 & 2 of Restatement 3d, but avoiding the prediction that it will
adopt § 4).10 Lycoming’s argument relies heavily on definitions supplied by § 20 of
Restatement 3d, but § 20 has not been adopted (or even cited) by the courts of
Pennsylvania, and the Third Circuit has not predicted that it will be.
Furthermore, Lycoming has provided no support for the notion that
Pennsylvania will adopt § 20, and this Court has discovered none. To this Court’s
knowledge, the caselaw that guides Pennsylvania courts in extending liability for
product defects to particular parties has not been the source of significant
dissatisfaction. Cf. Bugosh v. I.U. N. Am., Inc., 601 Pa. 277, 279, 971 A.2d 1228,
1229 (2009) (Saylor, J., dissenting) (arguing that the standard of care applied to
defective design claims under Pennsylvania law is “severely deficient” and
encouraging adoption of standard from Restatement 3d in its place). Accordingly,
10
(See also Def.’s Reply Br. at 11 (criticizing Sikkelee for failing “to cite
any case law or other authority that would support a prediction by this Court that
Pennsylvania would adopt the post-sale provisions [found in § 10] of the
Restatement (Third)”); id. at 13 (criticizing Sikkelee for “ask[ing] this Court to
predict that Pennsylvania will impose a duty to recall [found in Section 11 of the
Restatement 3d] where Pennsylvania has never recognized such a claim”)).
15
it is unlikely that Pennsylvania would jettison that caselaw, especially considering
that it is entirely compatible with §§ 1 & 2 of Restatement 3d. Indeed, not unlike §
20 of Restatement 3d, the existing caselaw generally limits negligence and strict
liability to parties who are “manufacturer[s], distributor[s], or seller[s] of the
allegedly offending product,” as the Court recognized in the subject Order. (Mem.
& Order at 11 (citing Mellon v. Barre–Nat’l Drug Co., 431 Pa. Super. 175, 636
A.2d 187, 191 (1993))). The Court holds, therefore, that at least with respect to the
caselaw that guides the extension of liability for product defects and inadequate
warnings to particular parties, the application of §§ 1 & 2 of Restatement 3d
instead of § 402A of Restatement 2d does not constitute an intervening change in
controlling law warranting reconsideration.
(2)
The subject Order did not make a clear error of law when it
held that Lycoming could be liable as a de
facto manufacturer.
The conclusion that there has been no change in relevant law leaves
Lycoming with the argument that the subject Order made a clear error of law when
it concluded Lycoming could be liable as a de facto manufacturer.
In this regard, Lycoming argues that Pennsylvania law limits product
liability defendants to those “who distribute the allegedly defective product.”
16
(Def.’s Orig. Br. at 11-14 (citing various cases)).11 Extending products liability to
de facto manufacturers contravenes of Pennsylvania law, Lycoming argues, and in
recognizing de facto manufacturer liability prior to any Pennsylvania court, the
subject Order improperly “disregard[ed] legal and factual bars to recovery based
simply on the court’s own theory of justice.” (Def.’s Br. at 17).12
11
Lycoming’s brief of its “Renewed Motion for Reconsideration” focused on
§ 20 of Restatement 3d, which the Court has concluded does not apply. However,
Lycoming’s brief of its original, mooted “Motion for Reconsideration,” (July 17,
2012, ECF No. 301), also argued that the subject Order, in recognizing de
facto manufacturer liability, erred under existing Pennsylvania precedents. Since
Sikkelee is not prejudiced by consideration of Lycoming’s brief of the original
“Motion for Reconsideration” – Sikkelee also submitted a brief, which the Court
has considered, in opposition to Lycoming’s original motion, (Pl.’s Orig. Opp’n
Br., Oct. 2, 2012, ECF No. 320) – the Court here considers certain arguments from
Lycoming’s brief of its original “Motion for Reconsideration.”
12
In its opening brief, Lycoming argued that the subject Order “defie[d],”
“explicitly contradict[ed],” and “attempt[ed] to preempt federal law” by labeling
Lycoming a de facto manufacturer and holding that, as such, it could be liable for
design and warning defects in the overhauled engine and carburetor. (Def.’s Br. at
9-10). Lycoming reasoned that definitions of certain terms – “overhaul” and
“rebuild” – found in federal aviation regulations conflicted with the idea that
Lycoming could “sell” (using the definition in § 20 of Restatement 3d, see n.8
supra) a defective product in 2004.
But this argument was a fair weather friend to Lycoming, whom, in its Reply
brief, criticized Sikkelee for “offering up a mind-numbing cacophony of arguments
based on assorted federal regulations and statutes” while failing to “offer any
reason why federal law can or should override [state law] requirements.” (Def.’s
Reply Br. at 7). The Court agrees with Lycoming’s about-face: state law
“determines what parties may be liable . . . whereas federal law defines the
standard of care governing defendants who may be liable.” (Id. at 8). (See
17
It is worrisome that, to the Court’s knowledge, no court applying
Pennsylvania law – in more than forty years since the Supreme Court of
Pennsylvania adopted § 402A of Restatement 2d as the law of Pennsylvania in
Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966) – has ever before this
case imposed products liability on a “de facto manufacturer.” And the Court agrees
that the subject Order too quickly labeled Lycoming a “de facto manufacturer” and,
as such, considered it a “manufacturer” for liability purposes, when Lycoming
could just as easily have been labeled, for example, a “non-manufacturing
designer” of the allegedly defective carburetor and engine, and thereby have
avoided liability in accordance with the subject Order’s methodology.
The Court nevertheless rejects Lycoming’s argument for reversal because
the examination of caselaw from foreign jurisdictions tends to show that the
subject Order’s holding was not clearly erroneous, and because the Court believes
it is likely that the courts of Pennsylvania would conclude that Lycoming owed a
duty of care to Sikkelee.
(A)
Caselaw from foreign jurisdictions tends to show that
also Mem. & Order, Aug. 13, 2010, ECF No. 158 (concluding the Third Circuit’s
opinion in Abdullah v. Am. Airlines, Inc.,181 F.3d 363 (3d Cir. 1999) – which
held that state law remedies may support an action for violation of federal aviation
safety standards, but that federal aviation safety standards preempt state law
standards of care – controls this action)).
18
the subject Order’s holding was not a clear error of
law.
The seeming novelty of the subject Order is lessened upon consideration of a
number of instructive decisions from outside Pennsylvania that were overlooked
or ignored by the parties. See Clark v. Modern Grp. Ltd., 9 F.3d 321, 332 (3d Cir.
1993) (“Reasoned scholarly opinion and the views of other state courts are
sometimes useful in a diversity case in predicting the course the law will take in
the jurisdiction whose law governs.”). These cases reveal that, whether considered
a de facto manufacturer or non-manufacturing designer, there is precedent for
reaching the conclusion that Lycoming’s role in the production and overhaul of the
carburetor renders it potentially liable to Sikkelee.
For example, in Denekamp v. Hetronic USA, Inc., 2008 WL 4646954 (D.S.D.
2008), the injured plaintiff alleged that the seller of a secondhand industrial crane had
retrofitted the crane with defective “manual backup controls” in compliance with a
“conversion kit,” engineering drawings, and extensive guidance provided by the
defendant, who was also the original manufacturer of the crane. Id. at *1, *4.
Applying the law of South Dakota (which has adopted § 402A of Restatement 2d), the
district court reasoned that the defendant could be strictly liable for design defects in
the retrofitted crane if the defendant was “significantly involved in designing the
19
defective product.” Id. at *3. The court denied the defendant’s summary judgment
motion even though the plaintiff had presented no evidence showing that the
defendant was physically involved in the manufacture of the retrofitted crane or its
sale.
In Alm v. Aluminum Co. of Am., 717 S.W.2d 588 (Tex. 1986), the plaintiff,
his eye injured by an exploding bottle top, alleged that his bottle had been
manufactured by a bottler using “[defendant]-designed and patented resealable caps
under licensing agreements with [defendant].” Id. at 589. The Supreme Court of
Texas, applying the law of Texas (which has adopted § 402A of Restatement 2d) to
the question of “[w]hether a designer who is not a manufacturer has a duty to warn of
hazards associated with the use of its designed product,” reasoned that a designer has
both a duty to exercise ordinary care in its design and the duty of a reasonably prudent
person to warn of the hazards associated with its product. Id. at 590-91.13
In Taylor
v. Gen. Motors, Inc., 537 F. Supp. 949 (E.D. Ky 1982), a widow sought damages on
behalf of her husband, who was killed when a fan blade detached from under the hood
of his G.M. automobile, fatally striking him in the chest. The widow alleged that
G.M., and not the manufacturer of the fan itself, was liable under theories of
13
On appeal, the plaintiff had waived any claim that the designer was strictly
liable.
20
negligence and strict liability for the fan’s design defect, even though she was unable
to prove that the fan – which could have been obtained from a spare parts yard and
installed by the decedent, who was known to tinker under the hood – had ever passed
through the hands of G.M. Id. at 950. The widow predicated G.M.’s liability on its
intimate involvement in the design of the fan, as well as on G.M.’s influence over the
manufacturer as the primary customer for the fan. Id. The district court, applying the
law of Kentucky (which has adopted § 402A of Restatement 2d), held that the case
could reach a jury on theories of negligence and “Kentucky’s approach to the design
defect problem,” which the Court explained was “closely related to negligence
principles.” Id. at 951.
There are decisions that go the other way on similar, if distinguishable, facts.
See, e.g., Firestone Steel Prod. Co. v. Barajas, 927 S.W.2d 608 (Tex. 1996). In
particular, in Goldsmith v. Olon Andrews, Inc., 941 F.2d 423 (6th Cir. 1991), the
plaintiffs asserted negligence and strict liability theories against defendant Bell
Helicopter for “damages resulting from the crash of a helicopter assembled by
Olympic Helicopters using manuals, descriptions, and new and used parts from
[Bell].” Id. at 424. Specifically,
[plaintiff] purchased the helicopter from Olympic Helicopters . . . in July
of 1982. Olympic had assembled the helicopter to the specifications of
a “Bell Model 47” helicopter from spare, new, and surplus parts acquired
from various sources, including defendant Bell. To assemble the
21
helicopter, Olympic used Bell maintenance, overhaul and parts manuals,
service bulletins and instructions. Although Olympic did not have any
license or contractual relationship with Bell for the assembly or sale of
helicopters, Bell knew something about Olympic’s activities because
Olympic called Bell on several occasions for technical information.
...
Bell [had] manufactured the Model 47 helicopter from 1947 to 1974.
Even though the last Model 47 was sold in 1974, Bell . . . continued to
provide product support to operators of the Model 47s.
Id. at 424-25.
The United States Court of Appeals for the Sixth Circuit, applying the law of
Ohio (which has adopted § 402A of Restatement 2d) to plaintiffs’s claim that Bell was
liable for the helicopter’s defectively designed fuel system, upheld the district court’s
grant of summary judgment in Bell’s favor. The Sixth Circuit reasoned that, on the
one hand, imposing liability on a mere designer under § 402A of Restatement 2d
would be inconsistent with the rationale of that section because (1) “[i]f the defendant
is not engaged in the business of selling the product, then it cannot be said to have
‘undertaken and assumed [the] special responsibility toward ... the consuming
public’”; (2) “has not been afforded the opportunity to treat the risk of producing the
product ‘as a cost of production against which liability insurance [could have been]
obtained’”; and (3) “has no ability to control the quality of the product or the
conformance of the product with its design.” Id. at 426 (quoting Restatement 2d §
22
402A cmt. c (1965)). On the other hand, even conceding that Bell’s “design of the
Model 47 and its fuel system” could be considered a “product” for purposes of § 402A
of Restatement 2d, the Court found that there was “no evidence that Bell was in the
business of placing this design in commerce,” considering that “Bell did not offer for
sale any designs, plans, or blueprints for the Model 47 or its fuel system,” and “never
licensed, sanctioned, or approved Olympic’s use of Bell’s design to manufacture the
helicopter.” Goldsmith, 941 F.2d at 427. Accordingly, the Sixth Circuit held that Bell
could not be liable under § 402A of Restatement 2d and, without separate analysis,
concluded that “the manner in which we resolve plaintiffs’ strict liability claim also
resolves the negligence claim.” Goldsmith, 941 F.2d at 425 n.3.
The Court need not parse the fine distinctions among, or assess the wisdom of,
these decisions on a motion for reconsideration.14 It is sufficient to say that the various
outcomes tend to show not that the subject Order made, as Lycoming claims, a clear
error of law, but rather that the Court’s holding was well within the realm of
reasonableness.
14
The Court may have done so in deciding the subject Order, had any of
these cases been brought to the Court’s attention by the parties. In order to make
their submissions more helpful, the Court encourages the parties to open-mindedly
research and incisively address the particular dispute at issue in their briefs and to
avoid talking past each other. To simply repeat entrenched arguments – at least
when they are of little relevance to the matter at hand – is to waste an opportunity
to persuade the Court.
23
(B)
The Court believes that Pennsylvania courts would
likely hold that Lycoming had a duty of care with
respect to Sikkelee.
Even more important than the decision of any foreign jurisdiction is, of course,
the caselaw of Pennsylvania and binding Third Circuit decisions interpreting
Pennsylvania law. Neither the parties nor the Court have identified any such decisions
that speak particularly to the facts of this case, but see Snyder v. ISC Alloys, Ltd.,772
F.Supp. 244, 255-56 (W.D. Pa. 1991) (Smith, J.) (plaintiff permitted to pursue theory
of negligent design against licensor of, among other things, “drawings illustrating
major components of [a] physical plant” for converting solid zinc into zinc dust), but
analysis of the generally relevant caselaw brings the Court to the conclusion that it
was not a clear error of law for the subject Order to conclude, at least, that Sikkelee’s
negligence claim survives summary judgment.
Citing Mellon v. Barre-Nat’l Drug Co, 431 Pa. Super. 175, 184, 636 A.2d 187,
191 (1993), Lycoming argues that a “defendant must be identified as the
manufacturer, distributor, or seller of the offending product” before the defendant can
be said to have a duty towards a plaintiff injured by the product, (Def.’s Supplemental
Br., Apr. 20, 2012, ECF No. 8-9), a position the subject Order appears to have
adopted. (Mem. & Order at 29). But upon reconsideration, the Court can agree only
– along with the court in Mellon itself – that this is generally the case, not always. See
24
Mellon, 431 Pa. Super. at 184, 636 A.2d at 191 (emphasis added) (“In general, a
defendant must be identified as the manufacturer, distributor, or seller of the offending
product before . . . there can be . . . allegations of duty, breach of duty, or legal
causation.”). Thus, even if Lycoming is considered not a “de facto manufacturer,” but
rather a “non-manufacturing designer” of the allegedly defective carburetor, it may
still owe a duty of care to Sikkelee.
To determine whether Lycoming, as a non-manufacturing designer, had a duty
of care towards Sikkelee on the facts of this case, the Court must consider the factors
of the so-called “Althus test.” See Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d
Cir. 2009) (“In Pennsylvania, the determination of whether a duty of care is owed is
a policy decision that requires the trial court to apply the ‘Althaus test.’”). Those
factors are:
(1) the relationship between the parties; (2) the social utility of the
[defendant’s] conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences of imposing a
duty upon the [defendant]; and (5) the overall public interest in the
proposed solution. No one of these five factors is dispositive. Rather, a
duty will be found to exist where the balance of these factors weighs in
favor of placing such a burden on a defendant.
Phillips v. Cricket Lighters, 576 Pa. 644, 659, 841 A.2d 1000, 1008-09 (2003)).
As to the first factor – the relationship between the parties – the connection
between Sikkelee and Lycoming was indirect. On the other hand, as the Type
25
Certificate holder for the MA-4SPA carburetor, Lycoming was assured that such
carburetors would be manufactured and overhauled in accordance with its designs
and instructions and installed in aircraft intended for users like Sikkelee. Thus, while
the relationship was indirect, it was all but inevitable, and the Court finds that this
factor weighs in favor of finding a duty.
The social utility of Lycoming’s conduct, the second factor, clearly weighs in
favor of finding a duty. Giving credence to Sikkelee’s proof (as the Court must at this
juncture), Lycoming has known of various malfunctions and defects associated with
the engine and carburetor it designed – as well as the existence of safer feasible
alternatives – and yet has continued to license production of the allegedly defective
carburetors and to direct overhaulers to install them in its engines. Lycoming has also
failed to warn potential victims of its design. Needless to say, this is not conduct with
great social utility. Cf. Phillips, 576 Pa. at 659, 841 A.2d at 1009 (“A butane lighter
has obvious social utility as a reliable, convenient method to create a flame. Yet, the
benefits of one lacking a child resistant feature are not so plain.”).
The third factor – the nature of the risk imposed and foreseeability of the harm
incurred – also likely weighs in favor of finding a duty. While the Court is without
sufficient data to make a fully informed assessment as to the likelihood of injury
resulting from the defect alleged in this case, common sense suggests that potentially
26
grievous injury is an undoubtedly foreseeable result of the malfunction of a necessary
component in an airplane’s engine.
The fourth factor – the consequences of imposing a duty upon the [defendant]
– also weighs in favor of finding a duty. Indeed, considering that standards of care
supplied by federal aviation law will govern this action, (see n.12 supra), Lycoming
already has various duties with respect to the safety of its designs, (see Mem. & Order
at 30-31), and to the degree these burden Lycoming, the federal government has
already determined that the costs associated with the regulations are outweighed by
the benefits.
Finally, the overall public interest in the proposed solution weighs in favor of
finding a duty. According to plaintiffs, it is only Lycoming – and no one else in the
chain of production – that can alter its carburetor design to make it safer. In spite of
its awareness of the danger associated with its design, Lycoming has neglected to do
so. Forcing Lycoming to internalize the costs of this neglect directly may provide it
with the incentive to provide a safer design to the public.
Weighing the factors, the Court concludes that even if Lycoming is considered
a mere non-manufacturing designer, the subject Order did not make a clear error in
concluding that Lycoming has a duty of care in relation to Sikkelee – namely, a duty
of reasonable care in the design of the accident aircraft’s carburetor and the warnings
27
associated with it.
Of course, the subject Order also concluded that Sikkelee could proceed on a
strict liability theory. The Court concludes that it need not address whether this was
proper on reconsideration for the following reasons. First, in light of the Third Circuit
holding in Abdullah, federal standards of care will govern Lycoming’s liability in any
case. (See n.12 supra). Second, in light of the Third Circuit prediction that
Pennsylvania will adopt §§ 1 & 2 of Restatement 3d, any practical distinction between
“strict liability” and negligence in a design defect and inadequate warning case (such
as this one) is vanishingly thin. See Phillips, 576 Pa. at 665-, 841 A.2d at 1012
(Saylor, J., concurring) (arguing that design defect analysis should be guided by
negligence principles and advocating adoption of § 2 of Restatement 3d, which deems
a product “defective in design when the foreseeable risks could have been reduced or
avoided by the use of a reasonable alternative design, and when the failure to utilize
such a design has caused the product to be ‘not reasonably safe’”).15 Indeed,§ 2 of
15
See also Restatement 3d § 2 cmt. a (“Subsections (b) and (c), which impose
liability for products that are defectively designed or sold without adequate
warnings or instructions and are thus not reasonably safe, achieve the same general
objectives as does liability predicated on negligence.”); id. cmt. d (“[T]he test [for
defective design] is whether a reasonable alternative design would, at reasonable
cost, have reduced the foreseeable risks of harm posed by the product and, if so,
whether the omission of the alternative design by the seller or a predecessor in the
distributive chain rendered the product not reasonably safe.”); id. (“Assessment of
a product design in most instances requires a comparison between an alternative
28
Restatement 3d is indifferent to the “doctrinal tort categories such as negligence or
strict liability [that are] utilized in bringing the claim.” Restatement 3d § 2 cmt. n.
Where, as here, both negligence and strict liability theories are alleged,
two or more factually identical defective-design claims or two or more
factually identical failure-to-warn claims should not be submitted to the
trier of fact in the same case under different doctrinal labels. Regardless
of the doctrinal label attached to a particular claim, design and warning
claims rest on a risk-utility assessment. To allow two or more factually
identical risk-utility claims to go to a jury under different labels, whether
“strict liability,” “negligence,” or “implied warranty of merchantability,”
would generate confusion and may well result in inconsistent verdicts.
In proceedings in which multiple theories are alleged, the Restatement
leaves to local law the question of the procedural stage in a tort action at
which plaintiff must decide under which theory to pursue the case.
Id. Since Sikkelee’s strict liability and negligence theories ultimately merge into
respective design defect and inadequate warning claims, each governed by the
negligence principles of § 2 of Restatement 3d, the Court expresses no opinion on the
subject Order’s determination that Sikkelee could proceed on a “strict liability”
theory. It is enough to hold, as the Court does, that the subject Order did not make a
design and the product design that caused the injury, undertaken from the
viewpoint of a reasonable person. That approach is also used in administering the
traditional reasonableness standard in negligence.”); id. cmt. i (“Subsection (c)
adopts a reasonableness test for judging the adequacy of product instructions and
warnings. It thus parallels Subsection (b), which adopts a similar standard for
judging the safety of product designs.”).
29
clear error in denying Lycoming’s motion for summary judgment on Sikkelee’s
negligence claim.
IV.
Conclusion
For the foregoing reasons, AVCO’s “Renewed Motion for Reconsideration
of Order Entered July 3, 2012” is denied.
An Order follows.
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JILL SIKKELEE, individually and
as personal representative of the
estate of DAVID SIKKELEE,
desceased,
Plaintiff
v.
PRECISION AIRMOTIVE
CORPORATION, et al.,
:
:
:
:
:
:
:
:
:
:
:
Case No. 4:07-cv-00886
(Judge Brann)
Defendants.
:
:
ORDER
AND NOW, this 3rd day of June, 2013, it is hereby ORDERED in
accordance with the accompanying memorandum that AVCO’s “Renewed Motion
for Reconsideration of Order Entered July 3, 2012” (ECF No. 332) is DENIED.
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
31
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