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O'Brien v. Cessna Aircraft Co.

Supreme Court of Nebraska

November 3, 2017

Patrick O'Brien, appellant,
v.
Cessna Aircraft Company and Goodrich Aerospace Company, appellees. and Suburban Air Freight, Inc., and Liberty Mutual Insurance Company, appellees,

         1. Products Liability. The central question in any claim based on strict liability in tort is whether the product was defective.

         2. ___. Defects usually fall into one of three categories: design defects,

manufacturing defects, or warning defects.

         3. 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 theory."

         4. 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.

         5. ___: ___. 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.

         6. 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.

         7. 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.

         [298 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 disposition.

         9. 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 that discretion.

         10. 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.

         11. 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.

         12. 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.

         13. 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.

         14. 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.

         15. 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 and dangers.

         16. Trial: Evidence: Appeal and Error. The exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is admitted without objection.

         [298 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 prejudicial.

         18. 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 the evidence.

         19. 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.

         20. 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.

         21. Trial: Evidence. A court must determine whether there is sufficient foundation evidence for the admission of physical evidence on a case-by-case basis.

         22. Rules of Evidence: Proof. Neb. Rev. Stat. § 27-901 (Reissue 2016) lists, by way of illustration, 10 means of adequately authenticating a document.

         23. 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.

         24. Pleadings: Evidence. Similar to a stipulation, a judicial admission must be unequivocal, deliberate, and clear.

         25. Rules of Evidence: Hearsay. Hearsay is not admissible except as provided by the Nebraska Evidence Rules.

         26. 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.

         27. 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.

         28. 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 of law.

         29. Jurisdiction: States. When there are no factual disputes regarding state contacts, conflict-of-law issues present questions of law.

         30. 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.

         31. 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.

         32. Jurisdiction: States. An actual conflict of law exists when a legal issue is resolved differently under the law of two states.

         33. 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.

         34. 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.

         35. 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).

         36. Jury Instructions. Whether the jury instructions given by a trial court are correct is a question of law.

         37. 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.

         38. 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 and evidence.

         39. Trial: Jury Instructions: Negligence. A trial court is not required to submit repetitious allegations of the same act of negligence.

         [298 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.

         41. Costs: Appeal and Error. The decision of a trial court regarding taxing of costs is reviewed for an abuse of discretion.

         42. Costs. The costs of litigation and expenses incident to litigation may not be recovered unless provided by statute or a uniform course of procedure.

         43. 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.

         44. Depositions: Costs. Deposition costs are properly taxable and recoverable under Neb. Rev. Stat. § 25-1710 (Reissue 2016).

         45. ___: ___. 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.

         Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed.

          Arthur 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.

          John 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 Aerospace Company.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

         [298 Neb. 114] STACY, J.

         I. NATURE OF CASE

         This 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.

         II. BACKGROUND

         Patrick 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 the crash.

         O'Brien 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 the aircraft.

         The 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.

         [298 Neb. 115] 1. Cessna 208B Caravan

         At the 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 cargo.

         The 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.

         When 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.

         2. O'Brien's Theory

         O'Brien's 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.

         O'Brien 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 operation.

         O'Brien 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.

         O'Brien 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 injuries.

         3. Theory of Cessna and Goodrich

         Cessna 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.

         To 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.

         Cessna 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.

         Cessna's 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 impact.

         4. Jury Verdict and Appeal

         The 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 appealed.

         III. ASSIGNMENTS OF ERROR

         O'Brien 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.

         [298 Neb. 119] IV. ANALYSIS

         1. O'Brien Cannot Rely on Malfunction Theory to Infer Unspecified Defect

         In 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."[1]

         Both 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."[2] 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.

         The central question in any claim based on strict liability in tort is whether the product was defective.[3] Defects usually fall into one of three categories: design defects, manufacturing defects, or warning defects.[4] The best means of proving a defect is expert testimony pointing to a specific defect.[5] 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."[6] 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 distribution.[7]

         This court has addressed the natural limitations of the malfunction theory and emphasized it should be applied with caution:

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 damages.[8]

         We 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.[9] 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.

         A 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.[10] 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."

         [298 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 accident.[11]

         We now 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 ...


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