Products Liability. The central question in
any claim based on strict liability in tort is whether the
product was defective.
Defects usually fall into one of three categories: design
manufacturing defects, or warning defects.
Products Liability: Expert Witnesses: Circumstantial
Evidence: Proof. The best means of proving a defect
is expert testimony pointing to a specific defect. But in
lieu of pleading and proving a specific defect, plaintiffs
have been permitted to prove an unspecified defect in the
warranted product through circumstantial evidence using what
is commonly referred to as the "malfunction
Products Liability: Proof. Under the
malfunction theory, also sometimes called the indeterminate
defect theory or general defect theory, a plaintiff may prove
a product defect circumstantially, without proof of a
specific defect, when (1) the incident causing the harm was
of a kind that would ordinarily occur only as the result of a
product defect and (2) the incident was not, in the
particular case, solely the result of causes other than a
product defect existing at the time of sale or distribution.
___. The malfunction theory, which permits a plaintiff to
a product defect circumstantially without proof of any
specific defect, is not available when specific defects are
Pretrial Procedure: Appeal and Error.
Decisions regarding discovery are directed to the discretion
of the trial court, and will be upheld in the absence of an
abuse of discretion.
Pretrial Procedure: Proof: Appeal and Error.
The party asserting error in a discovery ruling bears the
burden of showing that the ruling was an abuse of discretion.
Neb. 110] 8. Judgments: Words and
Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for
Trial: Evidence: Appeal and Error. A trial
court has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of
Rules of Evidence: Hearsay: Appeal and
Error. Apart from rulings under the residual hearsay
exception, an appellate court reviews for clear error the
factual findings underpinning a trial court's hearsay
ruling and reviews de novo the court's ultimate
determination to admit evidence over a hearsay objection or
exclude evidence on hearsay grounds.
Evidence: Appeal and Error. In a civil case,
the admission or exclusion of evidence is not reversible
error unless it unfairly prejudiced a substantial right of
the complaining party.
Trial: Evidence: Appeal and Error. Because
authentication rulings are necessarily fact specific, a trial
court has discretion to determine whether evidence has been
properly authenticated. An appellate court reviews the trial
court's ruling on authentication for abuse of discretion.
Judgments: Words and Phrases: Appeal and
Error. An abuse of discretion, warranting reversal
of a trial court's evidentiary decision on appeal, occurs
when a trial court's decision is based upon reasons that
are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence.
Products Liability: Proof. A plaintiff in a
strict liability case may rely on evidence of other similar
accidents involving the product to prove defectiveness, but
the plaintiff must first establish that there is a
substantial similarity of conditions between the other
accidents and the accident that injured the plaintiff.
Products Liability: Proof: Notice. In a
strict liability case, the proponent of the evidence bears
the burden to establish the similarity between the other
accidents and the accident at issue before the evidence is
admitted. The proffered evidence must satisfy the substantial
similarity test for it to be properly admitted into evidence,
whether to prove defect, causation, or knowledge/notice.
Substantial similarity is satisfied when the prior accidents
or occurrences happened under substantially the same
circumstances and were caused by the same or similar defects
Trial: Evidence: Appeal and Error. The
exclusion of evidence is ordinarily not prejudicial where
substantially similar evidence is admitted without objection.
Neb. 111] 17. Trial: Evidence:
Testimony. Where the information contained in an
exhibit is, for the most part, already in evidence from the
testimony of witnesses, the exclusion of the exhibit is not
Trial: Evidence: Juries. A motion in limine
is only a procedural step to prevent prejudicial evidence
from reaching the jury. It is not the office of such motion
to obtain a final ruling upon the ultimate admissibility of
Trial: Evidence: Proof: Appeal and Error.
Because overruling a motion in limine is not a final ruling
on the admissibility of evidence and does not present a
question for appellate review, a question concerning the
admissibility of evidence which is the subject of a motion in
limine must be raised and preserved for appellate review by
an appropriate objection or offer of proof during trial.
Rules of Evidence. Authentication or
identification of evidence is a condition precedent to its
admission and is satisfied by evidence sufficient to prove
that the evidence is what the proponent claims.
Trial: Evidence. A court must determine
whether there is sufficient foundation evidence for the
admission of physical evidence on a case-by-case basis.
Rules of Evidence: Proof. Neb. Rev. Stat.
§ 27-901 (Reissue 2016) lists, by way of illustration,
10 means of adequately authenticating a document.
Pleadings: Evidence: Waiver: Words and
Phrases. A judicial admission is a formal act done
in the course of judicial proceedings which is a substitute
for evidence, thereby waiving or dispensing with the
production of evidence by conceding for the purpose of
litigation that the proposition of fact alleged by the
opponent is true.
Pleadings: Evidence. Similar to a
stipulation, a judicial admission must be unequivocal,
deliberate, and clear.
Rules of Evidence: Hearsay. Hearsay is not
admissible except as provided by the Nebraska Evidence Rules.
Rules of Evidence: Hearsay: Proof. The party
seeking to admit a business record under Neb. Rev. Stat.
§ 27-803(5)(a) (Reissue 2016) bears the burden of
establishing foundation under a three-part test. First, the
proponent must establish that the activity recorded is of a
type that regularly occurs in the course of the business'
day-to-day activities. Second, the proponent must establish
that the record was made as part of a regular business
practice at or near the time of the event recorded. Third,
the proponent must authenticate the record by a custodian or
other qualified witness.
Trial: Witnesses: Proof. In order to
predicate error upon a ruling of the court refusing to permit
a witness to testify, or to answer a specific [298 Neb. 112]
question, the record must show an offer to prove the facts
sought to be elicited.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
Jurisdiction: States. When there are no
factual disputes regarding state contacts, conflict-of-law
issues present questions of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court has an obligation to
resolve the questions independently of the conclusion reached
by the trial court.
Courts: Jurisdiction: States. In answering
any choice-of-law question, a court first asks whether there
is any real conflict between the laws of the states.
Jurisdiction: States. An actual conflict of
law exists when a legal issue is resolved differently under
the law of two states.
Constitutional Law: Damages: Penalties and
Forfeitures. Under Nebraska law, punitive,
vindictive, or exemplary damages contravene Neb. Const, art.
VII, § 5, and thus are not allowed in this jurisdiction.
Jurisdiction: States: Contracts: Torts. Once
a court determines there is a conflict of law between two
states, the next step is to classify the nature of the
specific conflict issue, because different choice-of-law
rules apply depending on whether the cause of action sounds
in contract or in tort.
Torts: Appeal and Error. To resolve
conflicts of law involving tort liability, the Nebraska
Supreme Court consistently has applied the Restatement
(Second) of Conflict of Laws § 146 (1971).
Jury Instructions. Whether the jury
instructions given by a trial court are correct is a question
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's failure to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the
court's failure to give the tendered instruction.
Jury Instructions: Appeal and Error. Jury
instructions do not constitute prejudicial error if, taken as
a whole, they correctly state the law, are not misleading,
and adequately cover the issues supported by the pleadings
Trial: Jury Instructions: Negligence. A
trial court is not required to submit repetitious allegations
of the same act of negligence.
Neb. 113] 40. Torts: Jury Instructions. The
Nebraska Supreme Court has consistently condemned the
practice of instructing the jury in haec verba and, instead,
has placed the duty squarely upon the trial court to properly
analyze, summarize, and submit the substance of the numerous
allegations of negligence in tort petitions.
Costs: Appeal and Error. The decision of a
trial court regarding taxing of costs is reviewed for an
abuse of discretion.
Costs. The costs of litigation and expenses
incident to litigation may not be recovered unless provided
by statute or a uniform course of procedure.
Torts: Costs. Under Neb. Rev. Stat. §
25-1710 (Reissue 2016), a successful defendant in a tort
action is ordinarily entitled to an award of costs as a
matter of course upon a judgment in his or her favor.
Depositions: Costs. Deposition costs are
properly taxable and recoverable under Neb. Rev. Stat. §
25-1710 (Reissue 2016).
___: ___. Unless it appears that the depositions were not
taken in good faith or were actually unnecessary, costs of
taking them are properly taxable under Neb. Rev. Stat. §
25-1710 (Reissue 2016), even if the depositions were not used
at trial. The questions of good faith and reasonable
necessity are for the trial court to determine.
from the District Court for Douglas County: Leigh Ann
Retelsdorf, Judge. Affirmed.
A. Wolk, Bradley J. Stoll, and Cynthia M. Devers, of Wolk Law
Firm, David A. Domina, of Domina Law Group. PC, L.L.O., and
Robert W. Mullin, of Houghton, Bradford & Whitted, PC,
L.L.O., for appellant.
C. Nettels, Jr., and Robin K. Carlson, of Stinson, Leonard
& Street, L.L.P., and Bryan S. Hatch, of Likes, Meyerson
& Hatch, L.L.C., for appellee Cessna Aircraft Company.
Elizabeth B. Wright and Andrew H. Cox, of Thompson Hine,
L.L.P, and William R. Johnson and Brian J. Brislen, of
Lamson, Dugan & Murray, L.L.P, for appellee Goodrich
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Neb. 114] STACY, J.
NATURE OF CASE
tort action was filed by a pilot who was injured when the
plane he was flying crashed on approach to the airport in
Alliance, Nebraska. After a 4-week trial, the jury returned a
general verdict for the defendants. The pilot appeals,
asserting 65 assignments of error. We affirm the judgment of
the district court.
O'Brien was employed as a commercial pilot flying mail
overnight between Alliance, North Platte, and Omaha,
Nebraska. In February 2007, he was seriously injured when the
Cessna 208B Caravan he was flying crashed through the roof of
a metal building and into a utility pole during a
non-precision approach to the Alliance airport. The impact
occurred at approximately 2:25 a.m. in heavy fog and below
freezing temperatures; night instrument meteorological
conditions prevailed. O'Brien has no memory of the crash
or any of his actions before the crash. He theorizes that ice
accumulated on the aircraft during flight, resulting in an
"ice contaminated tail stall" (ICTS) that caused
sued the aircraft's designer and manufacturer, Cessna
Aircraft Company (Cessna), as well as the designer and
manufacturer of the aircraft's pneumatic deicing system,
Goodrich Aerospace Company (Goodrich), asserting claims of
strict liability, negligence, and fraudulent
misrepresentation. Cessna and Goodrich denied
O'Brien's claims and alleged the accident was the
result of O'Brien's negligent operation and misuse of
case was tried to a jury over a period of 4 weeks. The jury
returned a general verdict for the defendants, finding
O'Brien had not met his burden of proof on any of his
claims. Rather than detail all of the evidence offered at
trial, we summarize the evidence and set out the general
theories advanced by the parties.
Neb. 115] 1. Cessna 208B Caravan
time of the crash, O'Brien was flying a Cessna 208B
Caravan (hereinafter Model 20 8B) owned and maintained by his
employer. The Model 208B is a single-engine, turboprop,
high-wing airplane. The Model 208B was certified by the
Federal Aviation Administration (FAA) for "Flight Into
Known Icing Conditions." To obtain this certification,
an aircraft designer must show that the aircraft can operate
safely in icing conditions. The Model 208B that O'Brien
was flying was configured for such conditions and to carry
Model 208B was designed with pneumatic deicing "boots,
" and the aircraft O'Brien was flying was equipped
with such boots. This deicing system uses hot "bleed
air" from the aircraft's engine to inflate
corrugated rubberlike boots affixed to multiple parts of the
aircraft. As the boots inflate and expand, accumulated ice is
broken up and shed. The deicing boots are manually activated
by the pilot using a switch in the cockpit.
Cessna was designing the Caravan models, it considered
several different ice-protection systems, including TKS. TKS
is an anti-icing system that extrudes an alcohol/glycol-based
fluid through a thin mesh to prevent ice from forming. Cessna
had used a TKS system on a different plane model, but chose
to use pneumatic deicing boots for the Caravan models,
including the Model 20 8B.
experts testified that his aircraft suffered ICTS while
flying through light-to-moderate icing conditions. Accident
scene photographs taken a few hours after the crash,
supported by testimony at trial, showed ice accumulation of
anywhere from one-tenth to one-fourth of an inch of ice on
the leading edge of the wings, and approximately one-eighth
of an inch of ice on the horizontal tail. Witnesses testified
that the horizontal tail keeps the aircraft balanced in
flight by creating a downward lift and preventing the nose of
the aircraft from pitching down. Generally speaking, when
[298 Neb. 116] enough ice accumulates on the horizontal tail
to disrupt the downward lift, ICTS can occur and the tail
cannot keep the aircraft upright.
cited various design defects in the Model 208B and its
pneumatic deicing system that he claimed caused his aircraft
to suffer ICTS. Specifically, he claimed the deicing system
on the Model 208B was defectively designed and unreasonably
dangerous in that the deicing boots provided insufficient
coverage and the deicing system lacked a water separator to
prevent contaminants from entering and affecting its
also claimed the crash was caused by the negligence of Cessna
and Goodrich in selecting, designing, and testing the deicing
system. He claimed, summarized, they were negligent in
selecting pneumatic deicing boots rather than a TKS
anti-icing system for the Caravan models, in failing to
install a water separator for the deicing boots, in failing
to provide a filter for the bleed air system, in failing to
provide boots with adequate coverage for the conditions in
which the aircraft would be flown, in failing to properly
test the Model 208B for flight in icing conditions, in
failing to warn operators and owners that the Model 208B was
unsuitable for operating in icing conditions and suffers
ICTS, and in failing to provide adequate instructions for
operating the aircraft in icing conditions.
also claimed Cessna fraudulently misrepresented that if the
Model 208B was operated in accordance with the "Pilots
Operating Handbook and FAA Approved Airplane Flight Manual,
" it was safe to fly in icing conditions, when it knew
it was not. O'Brien alleged he relied on this false
representation, which proximately caused his crash and
Theory of Cessna and Goodrich
and Goodrich claimed there was no credible evidence that
O'Brien's aircraft experienced ICTS and suggested the
crash was caused by O'Brien's own negligence in
descending [298 Neb. 117] below the minimum descent altitude
before he had the runway environment in sight. Defense
experts testified that the crash resulted from
"controlled flight into terrain" caused by
O'Brien's inadvertent descent below the minimum
descent altitude, at night, in a single-pilot environment,
due to distraction and heavy fog.
counter evidence that the aircraft experienced a tail stall,
the defense offered evidence that O'Brien's vertical
and horizontal flight path, although below the minimum
descent altitude, appeared to be under control and lined up
with the runway. Additionally, the defense suggested the
aircraft's 4-degree angle of impact into the metal
building and the similar angle of the aircraft's path
through the roof of the building indicated the aircraft was
under O'Brien's control at the time of impact.
and Goodrich denied that the crash was caused by any
malfunction or defect in the pneumatic deicing boots. They
presented evidence that the weather conditions would not have
required activation of the deicing boots, and they offered
circumstantial evidence that O'Brien had not cycled the
boots before the crash.
expert testified that the pilots operating handbook indicates
a pilot should cycle the boots as a matter of course
immediately before landing and, depending on the type of ice,
whenever one-fourth to three-fourths of an inch of ice has
accumulated on the wing's leading edge. O'Brien has
no memory of using the deicing boots before the crash, but
testified it was his usual practice to wait until at least
one-half of an inch of ice had accumulated on the wing's
leading edge before activating the boots. A defense expert
performed an ice accretion analysis using the weather data
supplied by O'Brien's weather expert and determined
that approximately one-tenth of an inch of ice would have
accumulated on the wings' leading edges before the crash.
The defense also relied on accident scene photographs showing
that the protected surfaces of the plane had approximately
one-tenth of an inch [298 Neb. 118] of ice, and roughly the
same amount of ice was found on the unprotected surfaces,
suggesting O'Brien had not cycled the boots before
Verdict and Appeal
case was submitted to the jury on O'Brien's claims of
negligence and strict liability against both Cessna and
Goodrich, and on O'Brien's claim of fraudulent
misrepresentation against Cessna. The jury deliberated for
approximately 8 hours before returning a general verdict for
the defendants. The district court accepted the verdict,
entered judgment thereon for the defendants, and directed
O'Brien to pay the costs of the action. After an
evidentiary hearing on costs, the court found O'Brien
should be ordered to pay costs in the amount of $35, 701.68
and entered judgment accordingly. O'Brien timely
ASSIGNMENTS OF ERROR
assigns 65 errors, which we condense into 10. O'Brien
assigns, renumbered and restated, that the district court
erred in (1) excluding the testimony of his expert regarding
32 "substantially similar" plane crashes; (2)
failing to enforce its discovery order compelling Cessna to
produce flight test data; (3) excluding as hearsay a copy of
a 2006 Airworthiness Directive affecting the Caravan models;
(4) excluding exhibits showing Cessna concealed information
regarding the "Caravan's susceptibility to
ICTS"; (5) excluding evidence that after the crash,
Cessna changed the design of the Caravan models from one
which used pneumatic deicing boots to one which used an
anti-icing system; (6) excluding multiple documents Goodrich
marked as "confidential"; (7) excluding the opinion
testimony of O'Brien's radar reconstruction expert;
(8) concluding that Nebraska law applied to the issue of
punitive damages rather than Kansas law; (9) refusing to
instruct the jury using O'Brien's tendered
instruction; and (10) taxing excessive costs to O'Brien.
Neb. 119] IV. ANALYSIS
O'Brien Cannot Rely on Malfunction Theory to Infer
addition to presenting evidence of specific design defects in
the deicing system of the Model 208B, O'Brien sought to
present circumstantial evidence that the Model 208B was
defective because it was "susceptible to ICTS."
Many of O'Brien's assignments of error include the
argument that he was prevented from showing the Model 208B
was "susceptible to ICTS" or had a "propensity
to suffer ICTS."
before the district court and on appeal, Cessna argued that
O'Brien's "susceptibility theory"
identifies no specific defect and "is so vague as to be
meaningless." The trial court did not instruct the jury
on O'Brien's "susceptibility theory, "
reasoning in part that it had not been sufficiently pled.
Because so many of O'Brien's assigned errors include
the argument that he should have been permitted to show that
the Model 208B was "susceptible to ICTS, " we
address the viability of this theory as a threshold matter.
central question in any claim based on strict liability in
tort is whether the product was defective. Defects usually
fall into one of three categories: design defects,
manufacturing defects, or warning defects. The best means of
proving a defect is expert testimony pointing to a specific
defect. But in lieu of pleading and proving a
specific defect, we have-at least in the context of an
implied warranty case- permitted plaintiffs to prove an
unspecified defect in the warranted product through
circumstantial evidence using what is [298 Neb. 120] commonly
referred to as the "malfunction
theory." We have described the rationale and
application of the malfunction theory as follows:
The malfunction theory is based on the same principle
underlying res ipsa loquitur, which permits a fact finder to
infer negligence from the circumstances of the incident,
without resort to direct evidence of the wrongful act.
Under the malfunction theory, also sometimes called the
indeterminate defect theory or general defect theory, a
plaintiff may prove a product defect circumstantially,
without proof of a specific defect, when (1) the incident
causing the harm was of a kind that would ordinarily occur
only as the result of a product defect and (2) the incident
was not, in the particular case, solely the result of causes
other than a product defect existing at the time of sale or
court has addressed the natural limitations of the
malfunction theory and emphasized it should be applied with
The malfunction theory should be utilized with the utmost of
caution. Although some circumstances may justify the use of
the malfunction theory to bridge the gap caused by missing
evidence, the absence of evidence does not make a fact more
probable but merely lightens the plaintiff's evidentiary
burden despite the fact that the missing evidence might well
have gone either way, and this rationale is too often subject
to misapplication by courts in situations in which evidence
is actually available.
The malfunction theory is narrow in scope. The malfunction
theory simply provides that it is not necessary for the
plaintiff to establish a specific defect so [298 Neb. 121]
long as there is evidence of some unspecified dangerous
condition or malfunction from which a defect can be
inferred-the malfunction itself is circumstantial evidence of
a defective condition. The malfunction theory does not alter
the basic elements of the plaintiff's burden of proof and
is not a means to prove proximate cause or
understand O'Brien's argument that the Cessna Caravan
models are "susceptible to ICTS" as an attempt to
prove an unspecified or general defect in the aircraft
through circumstantial evidence. This court has not extended
the malfunction theory into the context of strict liability
product defect claims. Assuming without deciding the theory can
be used in a strict liability case, it is unavailable to
O'Brien here for two reasons: (1) He did not plead such a
theory and (2) the applicability of such a theory is negated
by his assertion of specific defects.
plaintiff who wishes to rely on the malfunction theory to
establish an unspecified defect must plead and prove that (1)
the incident causing the harm was of a kind that would
ordinarily occur only as the result of a product defect and
(2) the incident was not, in the particular case, solely the
result of causes other than a product defect existing at the
time of sale or distribution. O'Brien's amended
complaint included no such allegations and, instead,
identified a myriad of very specific design defects that
allegedly caused the aircraft to crash. Given the nature of
the crash, it is doubtful O'Brien could satisfy either
factor of the malfunction theory, but his failure to plead
the malfunction theory at all prevents him from relying on it
to prove a nonspecific defect that the aircraft was
"susceptible to ICTS."
Neb. 122] More importantly, in a case such as this where the
plaintiff pleads specific defects, the malfunction theory is
simply unavailable. As we observed recently:
[W]e have found little case law specifically addressing
whether the malfunction theory applies when there is no loss
of evidence or when there is an allegation of a specific
defect, [but] we find no cases that have done so. And we
observe that the related doctrine of res ipsa loquitur does
not apply when specific acts of negligence are alleged or
there is evidence of the precise cause of the
expressly hold what we previously observed: The malfunction
theory, which permits a plaintiff to prove a product defect
circumstantially without proof of any specific defect, is not
available when specific defects are alleged. A plaintiff
cannot simultaneously rely on the malfunction theory to