[¶1] This case involves an airplane crash that occurred on August 23, 2000. Shane Sheesley, Thomas Vermeulen, and Robert Bielstein were all killed in the crash. The decedents’ estates (collectively referred to as plaintiffs) filed three separate lawsuits in the United States District Court for the District of South Dakota. In these suits, plaintiffs asserted claims against: The Cessna Aircraft Company and Textron, Inc. (collectively referred to as Cessna); RAM Aircraft Corporation (RAM Corp); Teledyne, Inc., TDY Holding, LLC, Teledyne Industries, Inc., TDY Industries Incorporated, Teledyne Technologies Incorporated, Allegheny Teledyne, Inc., Allegheny Technologies Incorporated, Teledyne Continental Motors, and Teledyne Continental Motors, Inc. (collectively referred to as Teledyne); and FlightSafety International, Inc. (FlightSafety). Additionally, Cessna, Teledyne, and FlightSafety have filed cross-claims against RAM Corp, and third-party claims against Capital City Air Carriers, Inc. (Capital City).
[¶2] The court has consolidated the three federal cases, and this order rules on the following pending motions:
Cessna’s motion for summary judgment based on GARA (Docket
236);
Cessna’s motion for partial summary judgment (Docket 243);
Cessna’s first motion in limine (Docket 295);
Teledyne’s motion for summary judgment based on GARA (Docket
261);
Textron, Inc.’s motion for summary judgment (Docket 249);
Teledyne’s motion for summary judgment (Docket 264);
Teledyne’s motion for summary judgment (Docket 267);
FlightSafety’s motion to dismiss for lack of personal jurisdiction
(Docket 274);
FlightSafety’s motion for summary judgment (Docket 272);
FlightSafety’s motion to exclude trial testimony of Donald Sommer
(Docket 270);
FlightSafety’s motion to strike affidavit of Donald Sommer (Docket
429);
Plaintiffs’ first motion in limine (Docket 242);
Plaintiffs’ second motion in limine (Docket 256);
Plaintiffs’ third motion in limine (Docket 306);
Plaintiffs’ motion to compel production of documents from Teledyne
(Docket 258); and
Plaintiffs’ motion to strike affidavit of Mark Marshall (Docket 337).
[¶3] This is merely a brief explanation of the pertinent facts of this case. Additional relevant facts are noted in the discussion.
[¶4] In May of 1977, Cessna manufactured a model 340A aircraft, serial number 340A0308 (referred to as the accident aircraft). The accident aircraft was a six-passenger, twin turbocharged engine aircraft with a pressurized cabin. Cessna initially sold the accident aircraft to Southaire. Then, on October 3, 1986, a subsequent owner upgraded both the engines on the accident aircraft by adding a RAM Series IV upgrade, which increased the horsepower from 310 hp to 325 hp. During this upgrade, the wastegate elbow on the exhaust of the left engine was replaced with a new part. Although the identity of the manufacturer of the new wastegate elbow is disputed, the maintenance log book indicates a Cessna manufactured wastegate elbow, part no. 5654551-4, was used. Then, in 1996, RAM Corp performed a RAM Series VI upgrade on both engines that increased the horsepower from 325 hp to 335 hp. Action Mechanical, Inc., subsequently purchased the accident aircraft and owned it when it crashed.
[¶5] Action Mechanical is a South Dakota corporation that acts as a plumbing, heating, and cooling contractor. In 2000, Action Mechanical employed over one hundred people, including Shane Sheesley and Thomas Vermeulen. At that time, Sheesley owned 43.5 percent of the shares in Action Mechanical and was an heir apparent to the CEO of the corporation.
[¶6] In early 2000, Action Mechanical hired Robert Bielstein as a full-time employee to act as the company’s pilot. Bielstein had been a pilot for approximately eight years and possessed a commercial pilot’s license. In late June of 2000, Action Mechanical began the process of upgrading the quality of the airplanes it owned. Bielstein, acting at the behest of Action Mechanical, began negotiations to purchase the accident aircraft.
[¶7] On July 12, 2000, Bielstein signed up for a flight training course at FlightSafety, in Wichita, Kansas. There is a question of fact whether the training course was type specific to a Cessna 340A or whether the course covered all 300/400 Series Cessna aircraft.
[¶8] On July 14, 2000, Bielstein and Duane Mader traveled to Pierre, South Dakota, and inspected the accident aircraft and its log books. Mader noted several mechanical items that needed attention, and Capital City performed the repairs and the annual inspection of the accident aircraft within the next couple weeks. Capital City signed off on the accident aircraft’s annual inspection on July 24, 2000. Action Mechanical finalized its purchase of the accident aircraft on the same day.
[¶9] On August 7, 2000, Bielstein began flight training at FlightSafety in Wichita, Kansas. The training lasted five days, with each morning spent in a classroom setting and each afternoon in a flight simulator. Both FlightSafety’s flight training curriculum and its simulator were approved by the Federal Aviation Administration (FAA). FlightSafety’s curriculum included only the emergency procedures contained in the Pilot Operating Handbook issued by Cessna for a 340A. FlightSafety modified its simulator to try to replicate a Cessna 340A. Bielstein attended all the required classroom time, obtained nine hours simulator time, scored a 96 percent on his written exam, and completed the flight training course.
[¶10] In the early evening of August 22, 2000, Bielstein flew the accident aircraft, with Sheesley and Vermeulen as passengers, from Rapid City, South Dakota, to Mission, South Dakota, so that Sheesley and Vermeulen could investigate a reported problem at one of Action Mechanical’s job sites. At approximately 2 a.m. on August 23, 2000, the accident aircraft took off from Mission on the return flight. Bielstein was the pilot in command, and both Sheesley and Vermeulen were passengers on the flight. The accident aircraft crashed shortly after take off, and Bielstein, Sheesley, and Vermeulen were all killed instantly upon impact.
[¶11] Following the accident, the National Transportation Safety Board (NTSB) conducted an accident investigation, which culminated in the creation of an NTSB Accident Report. The engines and turbochargers were sent to their respective manufacturers for tear down and analysis. The NTSB investigation indicated a crack in the left wastegate elbow. An autopsy performed on Bielstein indicated that his tissue contained detectable levels of ethanol and diphenhydramine, an antihistamine with sedative properties.
[¶12] Plaintiffs contend that the accident was caused by the crack in the left wastegate elbow. Super hot exhaust gas leaked from this wastegate elbow, and heated a firewall, behind which a fuel line was located. The heat from the firewall caused the fuel in the fuel line to vaporize, which caused the left engine to stall, ultimately resulting in the crash. All defendants dispute this characterization, arguing that the accident was caused by pilot error.
[¶13] As a result of this crash, plaintiffs filed several lawsuits. Plaintiffs filed a lawsuit in South Dakota state court against Capital City. Following one week of trial, Capital City and plaintiffs reached a settlement. Plaintiffs also filed three different lawsuits in the United States District Court for the District of South Dakota. Following suit in federal court, RAM Corp and plaintiffs also reached a settlement. The court has consolidated the three federal cases.
III. Summary Judgment Standard of Review
[¶14] Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56. Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
[¶15] The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F3d 688, 691 (8th Cir. 2002).
[¶16] Cessna contends that it is entitled to summary judgment because plaintiffs’ claims are barred by the 18-year statute of repose contained in the General Aviation Revitalization Act of 1994 (GARA), Pub. L. No. 103-298, 108 Stat. 1552. Teledyne similarly moves for summary judgment, arguing that GARA also bars plaintiffs’ claims against it. Plaintiffs oppose the summary judgment motions.
[¶17] In 1994, Congress adopted GARA to revitalize the general aviation industry. Wright v. Bond-Air, Ltd., 930 F. Supp. 300, 303 (E.D. Mich. 1996). In pertinent part, GARA provides:
(a) In General.--Except as provided in subsection (b), no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as manufacturer if the accident occurred–
(1) after the applicable limitation period beginning on–
(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or
(B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; or
(2) with respect to any new component, system, subassembly, or other part which replaced another component system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damage, after the applicable limitation period beginning on the date of completion of the replacement or addition.
GARA, § 2. Section 3(3) of GARA defines that applicable limitation period as 18 years. Additionally, GARA includes four statutory exceptions to enforcement of the statute of repose. GARA, § 2(b)(1)-(4). GARA preempts state law that purports to provide a cause of action outside the applicable limitation period. See Wright, 930 FSupp at 303.
[¶18] All parties acknowledge that GARA covers plaintiffs’ claims against Cessna and Teledyne in this case. Both the crash occurred, and plaintiffs filed their action, after August 17, 1994, when GARA became effective. See GARA, § 4. Additionally, plaintiffs are asserting civil claims for personal injury or death arising out of the crash of the accident aircraft. Further, no one disputes that the accident aircraft qualified as a general aviation aircraft as defined in GARA, § 3(c). Accordingly, the court must determine whether GARA’s statute of repose bars plaintiffs’ claims against Cessna or Teledyne.
[¶19] Cessna argues that GARA bars plaintiffs’ claims for strict liability and negligent design. Specifically, Cessna argues that the repose period was triggered on May 5, 1977, when Cessna first delivered the accident aircraft to its first purchaser, and that the repose period expired on May 5, 1995. Plaintiffs dispute this conclusion, arguing that the repose period restarted in 1986, when the left engine wastegate elbow was replaced during the RAM Series IV upgrade. Alternatively, plaintiffs argue that the “knowing misrepresentation, concealment, or withholding exception” contained in GARA § 2(b)(1) applies.
[¶20] GARA provides two alternative trigger dates that start the 18-year repose period. The first trigger date occurs when the manufacturer delivers the aircraft to the first purchaser or lessee or to a person engaged in the business of selling or leasing the aircraft. GARA, § 2(a)(1)(A)-(B). This, however, is subject to GARA’s rolling trigger date. “Under GARA § 2(a)(2), a new eighteen year period begins when a new part is added to an aircraft if this part is alleged to have caused an accident.” Robinson v. Hartzell Propeller Inc., 326 FSupp 2d 631, 660 (E.D. Pa. 2004). The rolling provision only restarts the repose period for claims against the manufacturer of the new part that actually caused the crash. See Hinkle v. Cessna Aircraft Co., No. 247099, 2004 WL 2413768, at *8 (Mich. Ct. App. Oct. 28, 2004); see also Hiser v. Bell Helicopter Textron Inc., 4 Cal. Rtpr. 3d 249, 257 (Cal. Ct. App. 2003) (holding that replacement of a single part in the fuel system does not restart the repose period for the entire fuel system).
Since almost every major component of the aircraft will be replaced over its lifetime, the ‘rolling’ aspect of the statute of repose was intended to provide that victims and their families would have recourse against the manufacturer of the new component part in the event of a defect in the new part causing an accident.
Burroughs v. Precision Airmotive Corp., 93 Cal. Rptr. 2d 124, 131-32 (Cal. Ct. App. 2000).
[¶21] Plaintiffs contend that the repose period rolled on October 3, 1986, when the accident aircraft’s left wastegate elbow was replaced with a new wastegate elbow. Plaintiffs presented evidence that on October 3, 1986, the left engine of the accident aircraft was modified by the addition of a RAM Series IV engine upgrade. (Docket 329-10, at ¶ 4). During the upgrade, the original wastegate elbow was replaced with a new wastegate elbow. (Docket 329-10, at ¶¶ 5, 7). The replacement of the wastegate elbow restarts the 18-year limitation period for defects in the new wastegate elbow. See Hiser, 4 Cal. Rtpr. 3d at 255.
[¶22] Cessna argues that the rolling repose provision does not apply because it did not manufacture the component part that caused the accident. Specifically, Cessna argues that RAM Corp, not Cessna, manufactured the Ram Series IV upgrade used in this case. Cessna correctly posits that “the replacement parts provision [applies] only to the entity that manufactured the replacement part.” Campbell v. Parker-Hannifin Corp., 82 Cal. Rptr. 2d 202, 209 (Cal. Ct. App. 1999). Nevertheless, plaintiffs present evidence suggesting that the defective wastegate elbow was in fact manufactured by Cessna. Specifically, the maintenance log book indicates that a Cessna-manufactured wastegate elbow, part no. 5654551-4, was installed in the left engine during the RAM Series IV upgrade performed in October of 1986. (Docket 329-10, at ¶ 4). Additionally, plaintiffs present evidence that RAM was “buying and installing new Cessna parts at that time.” (Docket 329-45, at 4). This evidence, viewed in the light most favorable to plaintiffs, creates a genuine issue of material fact as to whether Cessna manufactured the wastegate elbow. See Vette Co., 612 F2d at 1077.
[¶23] Even still, section 2(a)(2)’s rolling repose provision only applies in this case if the new wastegate valve caused the crash. See Hiser, 4 Cal. Rtpr. 3d at 255; see also GARA, § 2(a)(2). Plaintiffs have met their burden by presenting evidence indicating that, at a minimum, a question of material fact exists as to whether a defective, left wastegate elbow caused the crash. (Docket 329-9, at ¶3). Accordingly, the repose period for asserting a claim against Cessna based upon the left wastegate elbow rolled on October 3, 1996. The 18-year repose period expired on October 3, 2004. And, plaintiffs’ crash, which occurred on August 23, 2000, was within the repose period. Accordingly, GARA does not bar plaintiffs’ claims against Cessna, which allegedly manufactured the defective wastegate elbow.
[¶24] Plaintiffs also argue that even if Cessna did not physically
manufacture the wastegate elbow, federal regulations deem Cessna the
manufacturer of the wastegate elbow in this case because Cessna owned the
type certificate
for the exhaust system involving the elbow. Essentially,
plaintiffs argue that the holder of a type certificate is always considered the
manufacturer of a defective part for purposes of the rolling provision in
GARA.
[¶25] Plaintiffs’ argument relies on Burroughs, 93 Cal. Rptr. 2d 124, and Mason v. Schweizer Aircraft Corp., 653 NW2d 543 (Iowa 2002). In Burroughs, a pilot and his passengers brought suit against an airplane parts manufacturer when the carburetor failed, causing a crash. The manufacturer invoked GARA, contending that both the plane and the defective carburetor were over 18 years old. Plaintiffs argued that GARA did not apply because it only protects manufacturers of defective products, and the defendant did not actually manufacture the defective carburetor in this case. The court noted that the defendant was a current producer of aircraft parts, including carburetors, and that the defendant had purchased the carburetor product line from the original manufacturer. Based thereon, the court concluded that the new manufacturer stepped into the shoes of the original manufacturer, and thus, GARA barred the claim. The court reached this conclusion because it furthered GARA’s goal of revitalizing the general aviation industry by terminating the long tail of liability for aircraft manufacturers:
The central objective of GARA would be materially undermined if its protection did not apply to a successor to the manufacturer who, as part of its ongoing business, acquired a product line long after the particular product had been discontinued and years after the statute of repose had run as to the original manufacturer.
Burroughs, 93 Cal. Rptr. 2d at 132.
[¶26] Mason, 653 NW2d 543, involves a similar factual scenario. The pilot of a helicopter brought suit against a helicopter manufacturer when the pilot’s helicopter crashed. The defendant did not physically manufacture the accident helicopter. The defendant did, however, purchase a product line from the original manufacturer that included the model of the accident helicopter. The defendant also produced parts for the accident helicopter’s model, owned the type certificate for the model of the accident helicopter, and produced similar models of helicopters. Similar to Burroughs, the Iowa Supreme Court held that the defendant stepped in the shoes of the original manufacturer, and thus, was entitled to GARA protection. Mason, 653 NW2d at 549. Like the court in Mason, the Iowa Supreme Court reached this conclusion because it furthered GARA’s underlying purpose by limiting manufacturer’s liability. See id. at 548-49.
[¶27] Neither Burroughs nor Mason apply to this case, however, because no evidence suggests that Cessna is the successor to the actual manufacturer of the wastegate elbow (assuming Cessna itself did not manufacture the part). Further, using Cessna’s mere ownership of the type certificate to trigger GARA’s rolling provision disregards the reasoning of Burroughs and Mason and contravenes GARA’s core purpose. Both Burroughs and Mason adopted constructions of GARA that limited manufacturer liability. Plaintiffs’ argument, however, purports to expand manufacturer liability. This is illustrated by plaintiffs’ contention that the wastegate elbow is covered by both Cessna’s and Teledyne’s type certificates, and thus, both are deemed manufacturers for the purposes of GARA’s rolling provision. If adopted, this construction would thwart Congress’s intention of limiting the tail of liability applicable to the manufacturers of general aviation aircraft. The court finds that Congress meant what it said—the provision rolls the repose period for a claim against the manufacturer of a defective part. If Congress intended to roll the provision for the holder of the type certificate covering the part, it could have said so because Congress understood the type certificate application process when it adopted GARA. Cf. GARA, § 2(b)(1) (stating that the misrepresentation exception applies to statements by manufacturers to the FAA during an application for a type certificate).
[¶28] Cessna raises one additional argument that GARA bars plaintiffs’ claims. Specifically, Cessna argues that plaintiffs’ substantive claims assert that the wastegate elbow was negligently or defectively designed. Further, Cessna argues that the design of the wastegate elbow was more than 18 years old when the crash occurred, and thus, GARA bars a claim for negligent or defective design irrespective of when the actual wastegate elbow that caused the crash was replaced.
[¶29] Cessna’s argument relies on LaHaye v. Galvin Flying Serv., Inc., 144 Fed. Appx. 631 (2005), cert. denied, No. 05-880, 2006 WL 118038 (Mar. 20, 2006), an unpublished opinion from the Ninth Circuit. In LaHaye, the plaintiff asserted a claim for defective design of a helicopter trim actuator. The Ninth Circuit held that GARA barred the claim. The court refused to apply the rolling provision despite the recent overhaul of the trim actuator, because the rolling provision only applies when “there has been a substantive alteration to the part that was alleged to have proximately caused the accident.” Id. at 633.
[¶30] The court finds LaHaye unpersuasive. The court in LaHaye provided no rationale or reasoning to support its conclusory finding that GARA’s rolling provision requires a substantive design alteration within the 18 years preceding the accident. The sole support offered is a citation to Caldwell v. Enstrom Helicopter Corp., 230 F3d 1155 (9th Cir. 2000). The LaHaye court’s reliance on Caldwell, however, is misplaced because Caldwell presented a different issue.
[¶31] In Caldwell, the Ninth Circuit held that an aircraft owner’s manual can constitute a new part for purposes of GARA’s rolling repose provision. Id. at 1157 & n.3. Accordingly, a revision of the aircraft owner’s manual acts as the replacement of the part with a new part, thereby triggering the rolling provision. See id. The court stated that the rolling provision only applies, however, if the revised portion of the manual caused the accident. See id. at 1158.
[¶32] The court in Caldwell merely defined “new part” narrowly, refusing to permit revision of one part of the owner’s manual to qualify the entire owner’s manual as a new part. See id. at 1158 (“Just as the installation of a new rotor blade does not start the 18-year period of repose anew for the purposes of an action for damages due to a faulty fuel system, a revision to any part of the manual except that which describes the fuel system would be irrelevant here.”). This is akin to other cases holding that replacement of one component part does not roll the repose period for the entire system of which the component part is a subpart. See Hinkle, 2004 WL 2413768, at *8; Hiser, 4 Cal. Rptr. 3d at 256-57. This proposition, however, does not require a substantive change in the design of the new part to roll the repose period. Rather, Caldwell stands for the proposition that the replacement of the wastegate elbow in this case did not roll the repose period for the exhaust system as a whole.
[¶33] The court further rejects Cessna’s argument because the plain language of GARA’s rolling provision permits plaintiffs to assert a claim against the manufacturer of a replacement part so long as the crash occurs within 18 years of the replacement of the part. See GARA, 2(a). If Congress wanted to further limit application of GARA’s rolling provision to certain substantive theories, such as defective design cases, it would have added language to that effect. Indeed, in a different part of the statute, Congress expressly limited application of GARA to certain substantive theories of liability by limiting application to claims asserted against manufacturers acting in their manufacturing capacity. See GARA, § 2(a). This suggests that Congress recognized its ability and chose, when appropriate, to distinguish between substantive theories. Congress did not, however, limit claims for defective design. And, this court refuses to judicially amend GARA to impose the substantive design change requirement sought by Cessna.
[¶34] In summary, the accident aircraft in this case is subject to GARA. The replacement of the wastegate elbow, however, rolled the repose period. The crash occurred within 18 years of this rolling, and thus, GARA does not bar plaintiffs’ claims against Cessna.
2. Knowing Misrepresentation, Concealment, or Withholding Exception
[¶35] Alternatively, plaintiffs argue that GARA does not bar their claims against Cessna because a statutory exception to GARA’s enforcement applies in this case. Specifically, plaintiffs argue for application of GARA, § 2(b)(1):
[The statute of repose does not apply] if the claimant pleads with specificity the facts necessary to prove, and proves, that the manufacturer with respect to a type certificate or airworthiness certificate for, or obligations with respect to continuing airworthiness of, an aircraft or a component, system, subassembly, or other part of an aircraft knowingly misrepresented to the Federal Aviation Administration, or concealed or withheld from the Federal Aviation Administration, required information that is material and relevant to the performance or the maintenance or operation of such aircraft, or the component, system, subassembly, or other part, that is causally related to the harm which the claimant allegedly suffered.
This exception has three elements: “(1) knowing misrepresentation or concealment, or withholding; (2) of required information that is material and relevant; (3) that is causally related to the harm [plaintiffs] suffered.” Robinson, 326 FSupp 2d at 647. Mere negligent design is insufficient because “[t]he plaintiff must offer evidence that the defendant knowingly misrepresented or concealed or withheld this defect in communications with the FAA.” Id. Regardless of whether it is based upon a misrepresentation, concealment, or withholding of information, the exception requires an intentional act by the defendant. Hinkle, 2004 WL 2413768, at *12 (holding that knowingly modifies concealed and withheld as well as misrepresented).
[¶36] The “misrepresentation, concealment, or withholding exception” does not apply in this case because plaintiffs have presented no evidence indicating that Cessna misrepresented, concealed, or withheld information from the FAA. Plaintiffs fail to point to any specific false statements by Cessna to the FAA. See Robinson, 326 FSupp 2d at 653 (applying the misrepresentation exception when “plaintiffs have pointed to affirmative misstatements in a report submitted to the FAA”). Instead, plaintiffs provide a detailed history of the problems associated with the exhaust systems contained in Cessna turbocharged twin engine general aviation aircraft. This history details twenty-five plus years of problems caused by exhaust leaks, and both Cessna’s and the FAA’s response to those problems. Plaintiffs focus particularly on the fact that Cessna chose to solve these problems by imposing more frequent inspections of the exhaust system rather than redesigning the system. Although probative on whether Cessna’s design was defective, this evidence does not indicate that Cessna made a misrepresentation to the FAA. See Rickert v. Mitsubishi Heavy Indus., Ltd., 923 FSupp 1453, 1461 (D. Wyo. 1996) (Rickert I) (stating evidence did not indicate a knowing misrepresentation or concealment even though it suggested that the defendant’s design was “obstinant, short-sighted, negligent, and perhaps reckless”), rev’ d on other grounds by Rickert v. Mitsubishi Heavy Indus., Ltd., 929 FSupp 380 (D. Wyo. 1996) (Rickert II).
[¶37] Additionally, plaintiffs have failed to present evidence indicating that
Cessna concealed or withheld information from the FAA. It is undisputed
that Cessna owns the type certificate governing the accident aircraft and its
exhaust system, and thus, federal aviation regulations impose an affirmative
duty upon Cessna to “report any failure, malfunction, or defect in any
product, part, process, or article manufactured by it that it determines has
resulted in any of the occurrences listed in paragraph (c) of this section.” 14
CFR § 21.3; see also Robinson, 326 FSupp 2d at 657. Furthermore, the FAA
issued Cessna a Delegation Option Authorization (DOA)
governing the
design of the accident aircraft. As such, Cessna “had a responsibility not
only to report [exhaust system] failures but to resolve problems with the
[exhaust system].” Robinson, 326 FSupp 2d at 657.
[¶38] Nevertheless, no evidence suggests that Cessna failed to comply with
this duty. In essence, plaintiffs argue that Cessna knew that its exhaust
design was defective, but that Cessna intentionally concealed or withheld
this information from the FAA when Cessna recommended solving exhaust
leak problems by requiring more frequent exhaust system inspections.
Plaintiffs rely heavily on the multi-engine service letter
No. ME70-20, that
Cessna issued on May 22, 1970. In this letter, Cessna stated:
A thorough check of the exhaust system is an important part of any power plant inspection. This is more important on a turbocharged engine … since …
1. High turbocharger operating temperatures and slow heat dissipation result in faster heat deterioration and aging of exhaust system components.
2. Turbocharger systems operate at higher back pressure in the exhaust system causing minor failures to progress more rapidly.
(Docket 329-13) (second omission in original). Based on this letter, plaintiffs contend that Cessna knew about the defective exhaust since May of 1970.
[¶39] Although this letter creates an inference that Cessna was aware of the
additional exhaust complications associated with Cessna turbocharged twin
engine aircraft by May of 1970, plaintiffs have not provided any evidence
indicating that Cessna concealed or withheld this information from the FAA.
Cessna explicitly included this information in Service Letter ME70-20, which
was issued to all aircraft operators. Further, the record establishes that the
FAA was aware of the contents of Service Letter ME70-20 when it issued
Airworthiness Directive
(AD) 72-10-5. (Docket 380-2). AD 72-10-5
specifically cites and relies on Service Letter ME70-20.
[¶40] All the evidence establishes that Cessna consistently worked in conjunction with the FAA to rectify the exhaust system problems in Cessna turbocharged twin engine aircraft. Between 1970 and 1975, Cessna issued five service letters acknowledging problems with the exhaust and requiring increased exhaust inspections. (Docket 329-14, 329-15). In 1972, 1975, 1976, and at least four additional times, the FAA issued or revised existing ADs in light of continued exhaust problems. (Docket 329-1, at 10, 329-17, 329-18). In 1986, the NTSB issued a Safety Recommendation, requesting that the FAA further revise AD 75-23-08, in light of two crashes caused by exhaust system problems. Once again, Cessna worked directly with the FAA, conducting a study to determine whether a mandatory replacement date for specific exhaust parts was warranted. (Docket 329-24). Following the study, Cessna recommended against a mandatory, periodic replacement because it “is unenforceable, encourages operators to use alternate sources or uncontrolled rework techniques and leads to questionable documentation.” (Docket 329-29). Finally, in 1997, the FAA determined that design changes, not increased inspections, were necessary to prevent crashes caused by exhaust problems. Again, the FAA worked directly with Cessna on this matter. And, although Cessna disagreed on whether the exhaust problems should be solved through a design change rather than inspections, nothing indicates that Cessna withheld or concealed information in this process. (Docket 329-35).
[¶41] The court finds that plaintiffs have failed to establish a genuine issue
of material fact on whether Cessna concealed or withheld information.
Plaintiffs have not identified any information that was actually withheld;
rather they point to a public service letter, the contents of which the FAA
was aware. See Rickert II, 929 FSupp at 382; Butler v. Bell Helicopter
Textron, Inc., 135 Cal. Rptr. 2d 762, 771-73 (Cal. Ct. App. 2003). Further,
the extensive review of the exhaust system problems by the FAA and the
NTSB, as well as Cessna’s direct involvement in discussion of the exhaust
system problems, thwarts plaintiffs’ argument that Cessna withheld or
concealed information. See Campbell, 82 Cal. Rptr. 2d at 210 (“The detailed
review by the NTSB and recommendations made to the FAA for further study
tend to defeat, not support, claims of misrepresentation and concealment by
Cessna.”). At most, plaintiffs have indicated that Cessna negligently
disagreed with the FAA on how to solve the exhaust system failure problem.
This, however, is not sufficient to satisfy the “knowing misrepresentation,
concealment, or withholding exception.” See Rickert I, 923 FSupp at 1461-62. Still, as discussed above, Cessna’s summary judgment motion based
upon GARA (Docket 236) is denied because of the rolling GARA provision.
[¶42] Teledyne also moves for summary judgment (Docket 261) based upon GARA. Teledyne manufactured the two engines on the accident aircraft. The right engine was delivered to its first customer in 1975. (Docket 263, 356). The left engine was delivered to its first customer in 1981. (Docket 263, 356). Teledyne argues that both engines were more than 18 years old when the crash occurred on August 23, 2000, and thus, GARA bars plaintiffs’ claims.
[¶43] Plaintiffs admit the delivery date of the engines in question but argue that GARA does not bar their claims. First, plaintiffs argue that the 18-year repose period rolled in 1986. Alternatively, plaintiffs argue that the “knowing misrepresentation, concealment, or withholding exception” applies.
[¶44] Plaintiffs argue that replacement of the wastegate elbow started anew the repose period governing their claims against Teledyne. This argument lacks merit, however, because Teledyne did not manufacture the wastegate elbow. See Campbell, 82 Cal. Rptr. 2d at 209. Teledyne only manufactured the engines, and even if the wastegate elbow is considered a component part of the engine, this does not roll the repose period applicable to the entire engine. See Hinkle, 2004 WL 2413768, at *8; Hiser, 4 Cal. Rptr. 3d at 256-57.
[¶45] Recognizing that Teledyne did not physically manufacture the wastegate elbow, plaintiffs argue that Teledyne is still a “manufacturer” of the wastegate elbow because Teledyne allegedly held a type certificate governing the left wastegate elbow. Plaintiffs asserted this identical argument above against Cessna, and the court rejected it. The court rejects the argument against Teledyne for the same reasons. GARA’s rolling provision does not apply because Teledyne did not physically manufacture the left wastegate elbow.
2. Knowing Misrepresentation, Concealment, or Withholding Exception
[¶46] Plaintiffs also argue that GARA does not bar their claim because Teledyne knowingly misrepresented, concealed, or withheld information that it was obligated to disclose to the FAA. Plaintiffs incorporate by reference the facts that plaintiffs’ claim established Cessna’s knowing misrepresentation, concealment, or withholding of information. And, as above, the court finds that plaintiffs have failed to prove that Teledyne misrepresented, concealed, or withheld information from the FAA. Accordingly, the court finds that GARA applies and bars plaintiffs’ claims against Teledyne. Teledyne’s motion for summary judgment (Docket 261) is granted.
[¶47] In addition, because the court grants Teledyne summary judgment
based upon GARA, it does not reach Teledyne’s other motions for summary
judgment. Instead, Teledyne’s motion for summary judgment (Docket 264)
and motion for summary judgment (Docket 267) are both denied as moot.
Further, plaintiffs’ motion to compel document production (Docket 258) from
Teledyne is also denied as moot.
V. Textron’s Liability for Torts of Its Subsidiary
[¶49] Plaintiffs assert claims against Textron, Inc., the wholly owned parent corporation of Cessna Aircraft Company, which manufactured the accident aircraft and allegedly manufactured the left wastegate elbow. Textron seeks summary judgment (Docket 249), arguing that it did not commit a tortious act, and that it is not liable for the tortious acts of Cessna Aircraft Company because it is a separate legal entity. Plaintiffs have neither responded nor disputed this argument. Additionally, plaintiffs have not controverted the facts contained in Textron’s statement of material facts, and thus, plaintiffs are deemed to have admitted all facts contained therein. See D.S.D. LR 56.1(D).
[¶50] As a general rule, a parent corporation is not liable for the tortious acts of its separate, subsidiary corporation. See Bollwerk v. Susquehanna Corp., 811 FSupp 472, 477 (D.S.D. 1993). In order to hold the parent corporation liable, the plaintiff must pierce the corporate veil of the subsidiary corporation. See id. Under South Dakota law, piercing the corporate veil is only appropriate when “continued recognition of a corporation as a separate legal entity would ‘produce injustices and inequitable consequences.’” Baatz v. Arrow Bar, 452 NW2d 138, 141 (S.D. 1990) (quoting Farmers Feed & Seed, Inc. v. Magnum Enter., Inc., 344 NW2d 699, 701 (S.D. 1984)). Six factors indicate when piercing the corporate veil is appropriate. See id.
[¶51] Here, no evidence indicates that Textron committed a tort against plaintiffs. (Docket 251, at ¶ 11) Additionally, Textron is not liable for the alleged tortious acts of Cessna Aircraft Company because Textron is a separate, legally distinct corporation. (Docket 251, at ¶¶ 7-10). Further, no evidence supports piercing the corporate veil. Accordingly, Textron’s motion for summary judgment (Docket 249) is granted.
VI. FlightSafety’s Motion to Dismiss for Lack of Personal Jurisdiction
[¶52] FlightSafety moves for dismissal of plaintiffs’ claims pursuant to Fed. R. Civ. P. 12(b)(2), contending that the court lacks personal jurisdiction over it. Plaintiffs argue that FlightSafety has waived its objection to personal jurisdiction, or that the court possesses personal jurisdiction over FlightSafety.
[¶53] As a preliminary matter, the court must determine whether FlightSafety has preserved its objection to personal jurisdiction in this case. Lack of personal jurisdiction is a personal defense that is waived unless timely asserted. See Carlson v. Hyundai Motor Co., 164 F3d 1160, 1163 (8th Cir. 1999). In order to preserve an objection to jurisdiction over the person under the Federal Rules of Civil Procedure, defendants must either assert the defense in their answer or in a pre-answer Rule 12 motion. See Fed. R. Civ. P. 12(h)(1). Failure to include an objection to personal jurisdiction in either the defendant’s answer or a previous rule 12 motion waives the underlying defense. See id.; see also Yeldell v. Tutt, 913 F2d 533, 539 (8th Cir. 1990).
[¶54] Defendants’ compliance with Rule 12(h)(1) by including the personal jurisdiction objection in their answer does not, however, always preserve the defense, because the “‘rule sets only the outer limits of waiver; it does not preclude waiver by implication.’” Yeldell, 913 F2d at 539 (quoting Marquest Medical Prods., Inc. v. EMDE Corp., 496 FSupp 1242, 1245 n.1 (D. Colo. 1980)). “Thus, the personal jurisdiction defense may also be ‘lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.’” Network Prof’ls, Inc. v. Network Int’l Ltd., 146 F.R.D. 179, 182 (D. Minn. 1993) (quoting Yeldell, 913 F2d at 539). Defendant’s conduct must “reflect a continuing objection to the power of the court to act over the defendant’s person.” Alger v. Hayes, 452 F2d 841, 844 (8th Cir. 1972).
[¶55] FlightSafety argues that it preserved its objection to personal jurisdiction by including the defense in its answer. FlightSafety explicitly asserted lack of personal jurisdiction as an affirmative defense in its answer. (Civ. No. 03-5063-KES, Docket 3). FlightSafety also asserted the defense in its amended answer. (Docket 201). FlightSafety thus technically complied with the requirements of Rule 12(h)(1).
[¶56] Mere compliance with Rule 12(h) does not preserve FlightSafety’s personal jurisdiction objection, however. See Yeldell, 913 F2d at 539. In Yeldell, the defendants’ answer specifically asserted lack of personal jurisdiction as an affirmative defense. Nevertheless, the defendants engaged in discovery and motion practice, and even completed a five-day trial without pursuing their personal jurisdiction objection. Then, on appeal, the defendants attempted to assert the defense. The Eighth Circuit held that defendants waived the defense despite explicitly stating it in their answer, because “[w]hile [defendants] literally complied with Rule 12(h) … they did not comply with the spirit of the rule, which is ‘to expedite and simplify proceedings in the Federal Courts.’” Id. at 539 (quoting Charles Alan Wright & Arthur R. Miller, 5A Federal Practice and Procedure § 1342, at 162 (2d ed. 1990)).
[¶57] Other courts have similarly found that defendants waived their objection to personal jurisdiction by actively participating in the pending litigation. For instance, in Cont’l Bank, N.A. v. Meyer, 10 F3d 1293 (7th Cir. 1993), the Seventh Circuit held that the defendants waived their personal jurisdiction objections despite affirmatively pleading lack of personal jurisdiction in their answer. The court noted that “the defendants fully participated in litigation on the merits for over two-and-a-half years without actively contesting personal jurisdiction. They participated in lengthy discovery, filed various motions and opposed a number of motions … .” Id. at 1297. Similarly, in Network Prof’ls, Inc., 146 F.R.D. at 184, the district court for the District of Minnesota held defendants’ conduct waived their objection to personal jurisdiction because defendants waited eight months after the litigation commenced to assert their personal jurisdiction defense, participated in discovery, and responded to plaintiffs’ motion for a preliminary injunction.
[¶58] Here, FlightSafety exhibited similar conduct waiving its personal
jurisdiction objection. Plaintiffs filed their complaint against FlightSafety on
July 7, 2003. FlightSafety filed its initial answer, which affirmatively
asserted lack of personal jurisdiction, on July 24, 2003. Nevertheless,
FlightSafety did not pursue that defense until it filed a motion to dismiss for
lack of personal jurisdiction on October 28, 2005. In the meantime,
FlightSafety participated in both discovery and motions practice. For
instance, FlightSafety filed the following documents: (1) joint motion to
extend on March 29, 2004; (2) notice of deposition on June 7, 2004; (3)
stipulation to be bound by protective order on June 17, 2004; (4) notice of
deposition on August 4, 2004; (5) motion to extend expert discovery on
September 14, 2004; (6) notice of deposition on October 18, 2004; (7) motion
to consolidate case with related cases on March 3, 2005; (8) motion to
extend on May 11, 2005; (9) amended answer and third-party complaint on
June 22, 2005; and (10) response to motion to compel discovery on
September 6, 2005. Additionally, plaintiffs allege (and FlightSafety does not
deny) that FlightSafety actively engaged in substantial written discovery and
attended over thirty depositions. Furthermore, nearly two years after filing
its initial answer, FlightSafety amended its answer and sought affirmative
relief from the court by filing a third-party complaint against RAM Corp and
Capital City (Docket 201). This conduct “does not reflect a continuing
objection to the power of the court to act over [FlightSafety.]” Alger, 452 F2d
at 844. Accordingly, the court finds that FlightSafety waived its objection to
personal jurisdiction and FlightSafety’s motion to dismiss (Docket 272) is
denied.
VII. FlightSafety’s Negligence
[¶59] FlightSafety moves for summary judgment on plaintiffs’ negligence claim. FlightSafety argues that it is entitled to judgment as a matter of law because plaintiffs’ negligence claim is based upon educational malpractice. Alternatively, FlightSafety argues that the Federal Aviation Act (Act) and its corresponding regulations preempt plaintiffs’ negligence claim.
[¶60] Plaintiffs have asserted a negligence claim, contending that FlightSafety negligently trained Bielstein by failing to include emergency procedures relating to exhaust system failures in its curriculum and by using a flight simulator that failed to accurately replicate a Cessna 340A. FlightSafety argues that plaintiffs are asserting an educational malpractice claim, which is not a cognizable cause of action under South Dakota law. Plaintiffs respond by arguing that this is not an educational malpractice claim.
[¶61] Negligence liability requires the breach of a duty which proximately caused harm to the plaintiff. Unless a statutorily created duty applies, the court must ascertain whether the defendant had a duty to the plaintiff. See Fisher v. Kahler, 641 NW2d 122, 125 (S.D. 2002). In essence, FlightSafety is arguing that public policy prohibits imposing a duty on it to train Bielstein in a reasonable manner.
[¶62] The South Dakota Supreme Court has not considered whether a claim for educational malpractice is cognizable under South Dakota common law. Nor has it considered the scope of claims falling under the so-called educational malpractice umbrella. Accordingly, this court must predict whether the South Dakota Supreme Court would find that FlightSafety’s negligence claims sound in educational malpractice, and if so, whether South Dakota law recognizes the tort of educational malpractice. See Lindsay Mfg. Co. v. Hartford Acc. & Indem. Co., 118 F3d 1263, 1268 (8th Cir. 1997).
[¶63] Initially, the court determines whether plaintiffs’ negligence claim sounds in educational malpractice. Generally, educational malpractice claims fall into one of three different categories: (1) the student alleges that the defendant-school negligently failed to provide him or her with adequate skills; (2) the student alleges that defendant-school negligently diagnosed or failed to diagnose the student’s learning or mental disabilities; or (3) the student alleges that the defendant-school negligently supervised his or her training. See Moore v. Vanderloo, 386 NW2d 108, 114 (Iowa 1986); see also Johnny C. Parker, Educational Malpractice: A Tort Is Born, 39 Clev. St. L. Rev. 301, 303 (1991). Oftentimes the student is asserting the claim; however, third parties have also attempted to assert educational malpractice claims as well, usually contending they were injured by the school’s negligent teaching of the student. Moss Rehab v. White, 692 A.2d 902, 905 (Del. 1997). Courts have refused to recognize educational malpractice claims asserted against “public schools, institutions of higher learning, or private proprietary and trade schools.” Page v. Klein Tools, Inc., 610 NW2d 900, 905 (Mich. 2000).
[¶64] This court predicts that the South Dakota Supreme Court would find that plaintiffs’ negligence claim sounds in educational malpractice. The court’s prediction is guided by the Delaware Supreme Court’s well-reasoned decision in Moss Rehab, 692 A.2d 902. In Moss Rehab, the plaintiffs were injured in a car accident. The driver of the car that struck plaintiffs’ vehicle had previously completed training at the Moss Rehab Driving School for the Disabled. Plaintiffs filed suit against the driving school, arguing that the school acted negligently in “evaluating, recommending and training” the driver who hit them. Id. at 905. Plaintiffs argued that their claim sounded in common law negligence rather than educational malpractice. The Supreme Court of Delaware disagreed, stating plaintiffs’ “allegations encompass the traditional aspects of education.” Id. See also Moore, 386 NW2d at 113 (stating that injured patient’s claim that chiropractic school negligently trained chiropractor sounded in educational malpractice); Page, 610 NW2d at 905 (holding claim sounded in educational malpractice when plaintiff, who fell off a power pole, claimed trade school negligently trained him).
[¶65] Analytically, plaintiffs’ claims are indistinguishable from those asserted in Moss Rehab. The gravamen of plaintiffs’ claims are that FlightSafety negligently trained Bielstein by failing to provide him the skills and training necessary to detect and safely land following an exhaust system failure. Specifically, plaintiffs allege that FlightSafety negligently created its curriculum by failing to include emergency procedures relating to an exhaust system failure. Further, plaintiffs contend that FlightSafety used negligent teaching techniques by employing a simulator that does not accurately replicate the handling of a Cessna 340A. In other words, plaintiffs are contesting the substance and manner of FlightSafety’s training. Plaintiffs’ claims “encompass the traditional aspects of education,” and thus, sound in educational malpractice. See Moss Rehab, 692 A.2d at 905.
[¶66] Plaintiffs rely on Doe v. Yale University, No. CV 900305365S, 1997 WL 766845 (Conn. Super. Ct. Nov. 28, 1997), an unpublished trial court opinion, to support their contention that their claim sounds in common law negligence rather than educational malpractice. In Doe, a medical student in his residency program contracted HIV from performing a risky medical procedure. The student sued Yale University for negligently failing to provide the student sufficient training and supervision to perform the procedure. Yale argued that the student was attempting to assert an educational malpractice claim. The court disagreed:
Dr. Doe does not claim a failure in the defendant’s overall educational program or that education did not equip him to be a good doctor. Instead, his is a very precise claim based on Yale’s alleged failure to train him adequately in needle safety and in the performance of the arterial line insertion which is the subject of this case, as well as the failure to supervise him as he undertook to perform that task … .
Doe, 1997 WL 766845, at *2. The court then analogized Doe to a case where the court permitted an architectural student to assert a negligent supervision claim against Yale University when the student was injured while operating a saw in the university’s woodworking shop.
[¶67] The court refuses to follow Doe in this case. First, the court finds that negligent failure to provide an overall education and negligent failure to train how to perform a specific procedure is a distinction without a difference. In both instances, the plaintiff is alleging that the school did not teach the student what he or she needed to know. See Page, 610 NW2d at 905. Second, the court finds Doe unpersuasive because the court never discusses the policy consideration’s underlying refusal to recognize educational malpractice claims. Finally, in Doe, the student was injured while participating in his educational program. Based thereon, the student argued that Yale failed to supervise him during his program. Here, Bielstein had completed his training prior to the accident, and thus, cannot assert a negligent supervision claim. In short, the court predicts that the South Dakota Supreme Court would find that plaintiffs’ negligence claim sounds in educational malpractice.
[¶68] The court further predicts that the South Dakota Supreme Court would not recognize educational malpractice as a cognizable cause of action. With the lone exception of Montana, courts “have unanimously failed to recognize a cause of action for educational malpractice.” Moore, 386 NW2d at 114; see also Sellers ex rel. Sellers v. Sch. Bd. of City of Manassas, Va., 960 FSupp 1006, 1013 (E.D. Va. 1997) (stating that “there is overwhelming judicial authority in opposition” to recognition of educational malpractice claims); Moss Rehab, 692 A.2d at 906 (stating that at least ten states and the District of Columbia have refused to recognize educational malpractice claims).
[¶69] Additionally, sound public policy reasons suggest rejecting educational malpractice as a cognizable tort action. Courts have offered four policy grounds for refusing to recognize educational malpractice claims:
(1) the lack of a satisfactory standard of care by which to evaluate an educator; (2) the inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student's attitude, motivation, temperament, past experience, and home environment; (3) the potential for a flood of litigation against schools; and (4) the possibility that such claims will embroil the courts into overseeing the day-to-day operations of schools.
Page, 610 NW2d at 903 (internal quotation omitted). These public policy considerations apply to plaintiffs’ claims in this case as well.
[¶70] First, the court will struggle with establishing the appropriate standard of care to evaluate flight training schools, including FlightSafety. The Michigan Supreme Court recognized this problem in Page, 610 NW2d 900, when the court held that plaintiffs’ claims for failing to teach alternative pole climbing techniques sounded in educational malpractice. Like the Michigan Supreme Court in Page, this court would have to decide “[h]ow much was [FlightSafety] required to teach?” Id. at 906. Schools, not courts, are in a better position to determine what should be taught. See Moore, 386 NW2d at 114.
[¶71] The second and third factors are closely related, at least in the aviation training context. Pilot error and training will be a consideration in many, if not most, plane crash litigation. Thus, if the court recognizes educational malpractice in this case, virtually every future plane crash will raise the specter of a negligent training claim against the flight school or aviation training center. See id. at 115 (refusing to recognize educational malpractice because every medical malpractice claim will include an educational malpractice claim). And, in these cases, the courts and juries will face inherently uncertain causation issues: Did the school negligently train the student? Did the student pay attention? Was the student tired, ill, distracted? Too many factors contribute to the quality of a student’s education, and recognizing educational malpractice invites speculation. See Sellers ex rel. Sellers, 960 FSupp at 1014 & n.36.
[¶72] Finally, the last policy consideration weighs heavily against permitting plaintiffs to proceed with their educational malpractice claim in this case. By recognizing educational malpractice, even if limited to cases involving physical injury, courts will end up running a large segment of higher education facilities. If the court here decides that FlightSafety should have taught a different curriculum, there is no principled basis to stop it from determining what curriculum should be taught at medical schools, paramedic schools, commercial truck driving schools, and innumerable other technical and higher education facilities. Public policy suggests that schools, not courts, need to make curriculum decisions. See Moore, 386 NW2d at 115 (“[A]cademic freedom thrives on the autonomous decision-making by the academy itself.”).
[¶73] Based on the foregoing, the court predicts that the South Dakota Supreme Court will follow the overwhelming majority rule and refuse to recognize educational malpractice as a cause of action. Plaintiffs’ negligence claims against FlightSafety sound in educational malpractice. Accordingly, FlightSafety is entitled to judgment as a matter of law, and FlightSafety’s motion for summary judgment (Docket 272) is granted as it pertains to plaintiffs’ negligence claims.
[¶74] FlightSafety also moves in limine (Docket 270) to prohibit Sommer from offering expert testimony regarding whether FlightSafety should have included information on exhaust failures in its curriculum and should have used a simulator that accurately replicated a Cessna 340A. Because the court grants summary judgment on these claims, this motion is denied. FlightSafety’s motion to strike affidavit of Sommer (Docket 429) is also denied.
[¶75] As an alternative basis, the court finds that FlightSafety is entitled to partial summary judgment because at least part of plaintiffs’ negligence claim is preempted by the Act and its corresponding regulations. Federal preemption is an affirmative defense based upon the supremacy clause of the U.S. Constitution, “which states that laws of the United States made pursuant to the Constitution are the ‘supreme Law of the Land.’” Wuebker v. Wilbur-Ellis Co., 418 F3d 883, 886 (8th Cir. 2005) (quoting U.S. Const. art. VI, cl. 2). State law is preempted in three different instances: (1) when Congress explicitly states federal law preempts state law (express preemption); (2) when federal law “creates a scheme of federal regulation so pervasive that the only reasonable inference is that it meant to displace the states (field preemption);” and (3) when state law and federal law conflict (conflict preemption). Id.; see also Davenport v. Farmers Ins. Group, 378 F3d 839, 842 (8th Cir. 2004). “Congressional intent is the touchstone for determining the preemptive effect of a statute.” Wuebker, 418 F3d at 886. Further, federal regulations can preempt state law “if the agency intends its regulations to have preemptive effect, and the agency is acting within the scope of its delegated authority.” Chapman v. Lab One, 390 F3d 620, 634 (8th Cir. 2004). If any of the foregoing apply to this case, then federal preemption acts as an affirmative defense to plaintiffs’ negligence claim. See Wuebker, 418 F3d at 886 (determining whether preemption acts as affirmative defense to plaintiff’s tort claims).
[¶76] As a preliminary matter, the court reiterates plaintiffs’ theory of
liability–FlightSafety acted negligently by failing to include safety procedures
for an exhaust failure in its curriculum and by using a simulator that did
not replicate the handling of a Cessna 340A. FlightSafety argues that the
Act, and the federal aviation regulations implemented based thereon,
preempt this purported cause of action. FlightSafety argues that the
doctrines of field preemption and conflict preemption apply.
[¶77] FlightSafety argues that Congress, by adopting the Act, intended to preempt all state law affecting the field of aviation safety, including pilot training. (Docket 273, at 16). Field preemption occurs when the “mere ‘volume and complexity’ of agency regulations demonstrate an implicit intent to displace all state law in a particular area.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 885, 120 S. Ct. 1913, 1926, 146 L. Ed. 2d 914 (2000) (emphasis in original) (quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 717, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985)).
[¶78] Congress adopted the Act, which created the FAA and empowered the FAA to promote safety in the aviation industry. See 49 USC § 44701. Notably, the Act contains a savings clause, which states that “[a] remedy under this part is in addition to any other remedies provided by law.” 49 USC § 40120. Pursuant to its authority granted by the Act, the FAA has adopted a broad-range of regulations affecting aviation safety. See generally 14 CFR pt. 1-199. As a part of this regulatory scheme, the FAA has enacted regulations “governing the certification and operation of aviation training centers,” including FlightSafety. See 14 CFR § 142.1(a).
[¶79] FlightSafety argues that this expansive regulatory scheme preempts all state law affecting the field of aviation safety, including plaintiffs’ tort claims here. Neither the Supreme Court nor the Eighth Circuit has determined whether the Act and federal aviation regulations preempt the field of aviation safety, thereby barring a tort-based personal injury claim. The courts that have considered the matter, however, are split. Compare Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F3d 784, 795 (6th Cir. 2005) (finding field preemption of aviation safety and federal law determines standard of care applicable to aviation safety), cert. denied, 126 S. Ct. 1465 (2006); Abdullah v. Am. Airlines, Inc., 181 F3d 363, 371-72 (3d Cir. 1999) (finding field preemption of aviation safety); with Cleveland ex rel. Cleveland v. Piper Aircraft Corp., 985 F2d 1438, 1444 (10th Cir. 1993) (finding no field preemption of aviation safety), cert. denied, 510 U.S. 908, 114 S. Ct. 291, 126 L. Ed. 2d 240 (1993); Public Health Trust of Dade County, Fla. v. Lake Aircraft, Inc., 992 F2d 291, 295 (11th Cir. 1993); Monroe v. Cessna Aircraft Co., No. 2:05CV250, 2006 WL 385300 (E.D. Tex. Feb. 17, 2006). The Tenth Circuit’s opinion in Cleveland and the Third Circuit’s opinion in Abdullah are the seminal cases supporting each view.
[¶80] In Cleveland, 985 F2d 1438, a pilot who was injured when his plane struck a vehicle on the runway asserted a negligent design claim, arguing that the manufacturer negligently designed the rear pilot seat. The manufacturer argued that federal preemption barred plaintiffs’ tort claim. Specifically, the manufacturer argued that Congress, through the Act and its corresponding federal aviation regulation, intended to preempt the entire field of aviation safety.
[¶81] Judge Lay,
writing the panel decision, disagreed and held that
Congress did not intend to preempt the field of aviation safety. The Tenth
Circuit acknowledged legislative history granting the Administration “‘full
responsibility and authority’ over safety.” Id. at 1442 (quoting H.R. Rep. No.
2360 (1958), reprinted in 1958 USCC.A.N. at 3741). Despite this broad
grant of authority, the Tenth Circuit concluded that “the plain language of
the Federal Aviation Act suggests that Congress intended that the Act have
no general preemptive effect.” Id. The court gleaned Congress’s intent from
the savings clause contained in the Act and the express preemption clause
added by Airline Deregulation Act (ADA), which amended the Act in 1978.
[¶82] The court noted that the Act contained a savings clause explicitly
preserving “the remedies now existing at common law or by statute.” Id. at
1442 (quoting 49 USC App. § 1506).
The court then noted that several
other courts have interpreted this provision as maintaining state common
law tort claims. “By its very words, the statute leaves in place remedies then
existing at common law or by statutes.” Id. at 1442-43.
[¶83] Additionally, the court noted that Congress, in passing the ADA, adopted an express preemption clause affecting the aviation industry: “A State … may not enact or enforce a law, regulation, or other provision having the force or effect of law related to a price, route, or service of an air carrier that may provide air transportation … .” 49 USC § 41713. Using the “tool of statutory interpretation expressio unius est exclusio alterius,” the court concluded that Congress’s adoption of an express preemption provision defines the extent of state law Congress intended to preempt. Id. at 1443. Based on the foregoing, the Tenth Circuit held Congress did not intend to preempt the entire field of aviation safety.
[¶84] The Cleveland court’s reasoning must be considered in light of the later Supreme Court decision in Geier v. Am. Honda Motor Co., 529 US 861, 120 SCt 1913, 146 LEd2d 914 (2000). In Geier, the Supreme Court considered the effect a savings clause and an express preemption provision had on application of implied, conflict preemption. The Geier decision dilutes the strength of the Tenth Circuit’s argument based upon expressio unius est exclusio alterius, because the Supreme Court stated that an express preemption provision does not bar application of implied preemption principles to other parts of the same statutory or regulatory scheme. See id. at 873, 120 S. Ct. at 1921.
[¶85] Additionally, some courts have interpreted Geier as abrogating the Tenth Circuit’s reliance on the savings clause as evidence that Congress did not intend to preempt the field of aviation safety. See Curtin v. Port Auth. of N.Y. & N.J., 183 FSupp 2d 664, 670 (S.D.N.Y. 2002). The court, however, disagrees with this interpretation. First, the court notes that Geier involved conflict preemption, not field preemption. Additionally, Geier is completely consistent with the Tenth Circuit’s ruling. Geier states that Congress’s adoption of a savings clause does not limit application of ordinary implied preemption principles. Geier, 529 US at 874, 120 SCt at 1921. Pursuant to ordinary preemption principles, however, field preemption only occurs when Congress intended to preempt an entire field. See Wuebker, 418 F3d at 886. Indeed, the Court in Geier acknowledged that it “look[s] for a specific statement of pre-emptive intent when it is claimed that the mere ‘volume and complexity’ of agency regulations demonstrate an implicit intent to displace all state law in a particular area … so-callled “‘field pre-emption.’” Geier, 529 US at 884, 120 SCt at 1927. As recognized by the Tenth Circuit in Cleveland, the savings clause evidences Congress’s intent to preserve state common law personal injury claims following adoption of the Act. The court concurs with the Tenth Circuit’s analysis and finds that Congress did not intend to preempt the entire field of aviation safety.
[¶86] Two other statutory provisions support the court’s conclusion. The first is an insurance requirement that requires air carriers to procure insurance or to self-insure in order to pay “for bodily injury to, or death of, an individual or for loss of, or damage to, property of other, resulting from the operation or maintenance of the aircraft … .” 49 USC § 41112(a). This insurance requirement acknowledges Congress’s intent that state tort claims survive adoption of the Act. Cf. Hodges v. Delta Airlines, Inc., 44 F3d 334, 338 (5th Cir. 1995) (refusing to interpret ADA’s express preemption provision as preempting state tort claims because it “would have rendered any requirement of insurance coverage nugatory”).
[¶87] The other provision is GARA, which, as noted above, provides a rolling repose period barring state tort claims if the defective part or aircraft is more than 18 years old. Congress adopted GARA in 1994. In doing so, Congress explicitly limited GARA’s preemptive effect to state laws granting a cause of action in contravention of the statute of repose. See GARA, § 2(d). GARA’s legislative history indicates that Congress intended GARA to preempt state tort law in “one extremely limited instance,” namely when the defective part was over 18 years old. H.R. Rep. No. 103-525(II), at 6 (1994), reprinted in 1994 USCCAN 1644, 1648. Congress’s adoption of GARA to preempt state tort law in this narrow instance indicates its recognition of the continued viability of state tort claim following adoption of the Act. See Monroe, 2006 WL 385300, at *4.
[¶88] FlightSafety relies on three cases to support its argument of field preemption. The first case is Abdullah, 181 F3d 363, the seminal Third Circuit case finding field preemption. In Abdullah, several airline passengers brought suit against the airline for injuries they sustained when the flight encountered severe turbulence. The Third Circuit held that the Act and federal aviation regulations preempted the field of aviation safety. As such, the court held that federal law, not state tort law, established the airline’s standard of care. In order to reconcile FAA’s savings clause, however, the Third Circuit held that state tort remedies, namely damages, were still available to plaintiffs if the airline violated the federal standard of care. Id. at 374-75. Accordingly, Abdullah only permits recovery for violation of federal aviation statutes or regulations.
[¶89] The court disagrees with the Third Circuit’s conclusion that Congress intended to preempt the field of aviation regulation by adopting the Act. First, in adopting the Act, Congress empowered the FAA to adopt minimum safety standards. See 49 USC § 44701. Minimum standards of aviation safety “do not preclude a finding of negligence where a reasonable person would take additional precautions.” Sunbird Air Servs., Inc. v. Beech Aircraft Corp., 789 FSupp 360, 363 (D. Kan. 1992). Additionally, Abdullah does not mention GARA and its narrow preemption of state tort law affecting aviation safety. In adopting GARA, Congress went to great lengths limiting its preemption of state tort law in a narrow set of circumstances. This would have been unnecessary if Congress had already preempted all state tort actions affecting aviation safety when it adopted the Act. Instead, as indicated above, Congress did not intend the Act to preempt the entire field of aviation safety. After considering both Cleveland and Abdullah, this court finds Cleveland more persuasive and adopts it here. See Monroe, 2006 WL 385300, at *9 (stating that Cleveland is “better reasoned”); Vinnick v. Delta Airlines, Inc., 113 Cal. Rptr. 2d 471, 478 (Cal. Ct. App. 2001) (finding Abdullah unpersuasive). But see Curtin, 183 FSupp 2d 664.
[¶90] The second case FlightSafety relies on is Greene v. B.F. Goodrich Avionics Systems, Inc., 409 F3d 784 (2005). In Green, the Sixth Circuit adopted the reasoning of Abdullah, without even mentioning Cleveland or any contrary authority. The court rejects Greene for the same reasons as Abdullah.
[¶91] Finally, FlightSafety relies on Witty v. Delta Air Lines, Inc., 366 F3d 380 (5th Cir. 2004). In Witty, the plaintiff sued an airline for failure to warn its passengers of the risk of forming blood clots from remaining seated in a pressurized cabin for a long duration. The Fifth Circuit held that the cause of action was preempted because it conflicted with federal aviation regulations delineating which warnings the airline must give to its passengers. The Fifth Circuit explicitly narrowed its decision to the “precise issues” of that case. Id. at 385. This case does not support FlightSafety’s position, because “Witty is a narrow opinion that only applies to warnings given to passengers on commercial airliners.” Monroe, 2006 WL 385300, at *4.
[¶92] In conclusion, the court finds that Congress did not intend to preempt the field of aviation safety when it adopted the Act. Thus, field preemption does not bar plaintiffs’ negligence claim against FlightSafety in this case.
[¶93] FlightSafety also argues that the doctrine of conflict preemption bars plaintiffs’ negligence claims. Conflict preemption exists when “it is impossible for a private party to comply with both state and federal law, and when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives’” of Congress or an administrative agency. Wuebker, 418 F3d at 887 (quoting Geier, 529 U.S. at 873, 120 S. Ct. at 146). Unlike field preemption, conflict preemption does not require an “express statement of pre-emptive intent.” Geier, 529 U.S. at 884, 120 S. Ct. at 1927.
[¶94] Here, plaintiffs argue that FlightSafety negligently fashioned the flight training curriculum by failing to provide training on the proper emergency procedures for handling an exhaust system failure. Additionally, plaintiffs argue that FlightSafety negligently used a flight simulator that failed to replicate the actual handling of a Cessna 340A during the loss of power to one engine, such as during an exhaust failure. The court will discuss each of these allegedly negligent acts separately.
[¶95] As for plaintiffs’ argument that FlightSafety should have added emergency procedures resulting from an exhaust failure to its curriculum, the court finds that federal aviation regulations, not a common law negligence standard, determine what emergency procedures FlightSafety must include in its course curriculum. As noted above, 14 CFR pt. 142 contains the federal regulations governing the operation of aviation training centers, including FlightSafety. In order to operate its aviation training center, FlightSafety needed to obtain a training center certificate from the FAA. See 14 CFR § 142.5. To obtain and retain its certificate, FlightSafety was required to use curriculum approved by the FAA. See 14 CFR §§ 142.5(b), 142.11(7). A flight training facility risks forfeiting its certificate for failure to comply with an approved training program, including teaching unapproved curriculum. See 14 CFR § 142.37(e)-(f). Accordingly, the FAA, by approving the curriculum, dictates what material FlightSafety must teach.
[¶96] Here, the undisputed evidence establishes that the FAA approved the curriculum taught to Bielstein. (Docket 276, at ¶ 47; Docket 336 at ¶ 47). Additionally, the undisputed evidence establishes that FlightSafety included in its curriculum all the emergency procedures contained in the Pilot Operating Handbook provided by Cessna for the Cessna 340A. (Docket 276 at ¶ 45; Docket 336 at ¶ 45). Furthermore, all evidence presented indicates that the FAA will not “authorize a training center to teach emergency procedures that are not contained in the Pilot’s Operating Handbook.” (Docket 280, Ex. 20, at 14; Docket 279, at ¶6). Accordingly, the undisputed record establishes that FlightSafety could not have included exhaust failure emergency procedures without violating federal aviation regulations.
[¶97] Plaintiffs purport to refute the evidence suggesting that the FAA will approve curriculum teaching only those emergency procedures contained in the Pilot Operating Handbook by citing to three federal regulations. (Docket 336, at ¶ 49). First, plaintiffs cite 14 CFR § 142.11. This section, however, details the application requirements for an aviation training center certificate. It does not pertain to what material will be approved as part of the curriculum. Next, plaintiffs cite § 142.9, which empowers the FAA to grant deviations or waivers from the regulations governing aviation training centers. No evidence suggests, however, that the FAA would grant such a waiver, thereby permitting FlightSafety to teach additional emergency procedures besides those in the Pilot’s Operating Handbook. Indeed, plaintiffs’ expert testified that the FAA would not permit the teaching of additional procedures. (Docket 280, Ex. 20, at 14). Finally, plaintiffs cite § 142.81. This section permits aviation training centers to seek approval to teach otherwise unapproved courses. The section is inapposite in this case, however, because it explicitly states that it does not apply to courses taught to pilots. See 14 CFR § 142.81(b). In short, plaintiffs’ reliance on inapplicable federal regulations fails to rebut the undisputed evidence establishing that federal regulations prohibited FlightSafety from teaching emergency procedures relating to exhaust system failures.
[¶98] Nevertheless, plaintiffs contend that FlightSafety was negligent for failing to teach these prohibited emergency procedures. If this indeed constituted negligence, then state common law requires what is prohibited by federal aviation regulations, namely adding emergency procedures not contained in the Pilot’s Operating Handbook to FlightSafety’s curriculum. This is a classic example of a “‘conflict’ that make[s] it ‘impossible’ for private parties to comply with both state and federal law.” Geier, 529 U.S. at 874, 120 S. Ct. at 1921; see also Wuebker, 418 F3d at 887 (“A court will find that an agency intends for a regulation to preempt a state law when a regulation conflicts with a state law.”). Accordingly, the Supremacy Clause of the U.S. Constitution bars plaintiffs’ negligence claim based on this theory. See Geier, 529 U.S. at 874, 120 S. Ct. at 1921.
[¶99] As for plaintiffs’ contention that FlightSafety failed to utilize a simulator that properly replicated a Cessna 340A, the court does not find conflict preemption. Like course curriculum, all flight simulators used in training must be approved by the FAA. See 14 CFR §§ 142.39, 142.59. Further, the undisputed evidence establishes that FlightSafety’s flight simulator used by Bielstein was approved by the FAA. Unlike the flight training curriculum, however, nothing suggests that the FAA would prohibit FlightSafety from seeking approval of and using a flight simulator that accurately simulated the handling of a Cessna 340A during a exhaust system failure. Accordingly, there is no conflict preemption.
[¶100] In conclusion, as an alternative basis, the court finds that FlightSafety’s motion for summary judgment (Docket 270) on plaintiffs’ negligence claim is granted in part. Specifically, the court finds that plaintiffs’ negligence claim based on FlightSafety’s failure to include additional emergency procedures in its curriculum is preempted as a matter of law.
[¶101] Cessna and FlightSafety move for partial summary judgment relating
to the damages recoverable in a wrongful death action. Several questions
are raised. First, whether plaintiffs can recover damages for pain and
suffering on their survival claim. Second, whether punitive damages are
recoverable in a wrongful death action.
Third, whether Sheesley’s estate
can recover for the difference between the fair market value of Sheesley’s
stock in Action Mechanical and what Sheesley’s estate received pursuant to
a pre-accident buy-sell agreement.
[¶102] In a survival action, a personal injury claim survives the death of the injured party, and the injured party’s estate recovers personal injury damages that the decedent could have recovered but for his or her death. See SDCL 21-5-1; see also Ammann v. Massey-Ferguson, Ltd., 933 FSupp 840, 842 (DSD 1996). Survival actions are statutorily created because, at common law, the personal injury claim abated upon the death of the injured party. See Yellow Horse v. Pennington County, 225 F3d 923, 926 n.3 (8th Cir. 2000) (applying South Dakota law). Plaintiffs have abandoned their survival claims and their claims for pain and suffering. (Docket 323). Accordingly, defendants’ motion for partial summary judgment on plaintiffs’ survival action which seeks damages for pain and suffering is granted.
[¶103] Cessna and FlightSafety argue that a wrongful death action cannot support a claim for punitive damages. This presents a pure matter of law, well suited for disposition through summary judgment. See White Consol. Indus., Inc. v. McGill Mfg. Co., 165 F3d 1185, 1189-90 (8th Cir. 1999). Specifically, the court must determine the interplay between SDCL 21-3-2, which permits imposition of punitive damages by the jury, and the statutory enactments creating a cause of action for wrongful death in South Dakota, see SDCL 21-5-5 to 21-5-9. The South Dakota Supreme Court has not decided whether punitive damages are recoverable in a wrongful death action, and thus, this court must predict how the South Dakota Supreme Court would rule if it considered the matter. See Lindsay Mfg. Co., 118 F3d at 1268.
[¶104] SDCL 21-3-2 permits the jury to grant punitive damages in a tort case:
In any action for breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, or in any case of wrongful injury to animals, being subjects of property, committed intentionally or by willful and wanton misconduct, in disregard of humanity, the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.
As a general matter, punitive damages “are recoverable in all actions for damages based upon tortious acts which involve circumstances or ingredients, of malice, fraud, or insult, or a wanton and reckless disregard of the rights of the plaintiff.” Hannahs v. Noah, 158 NW2d 678, 682 (S.D. 1968) (internal quotation omitted). This includes causes of action for strict liability in tort and negligence. See Olson-Roti v. Kilcoin, 653 NW2d 254, 259 (S.D. 2002). Based thereon, plaintiffs argue that their claims for strict liability in tort, defective design, and negligence support a claim for punitive damages.
[¶105] Irrespective of their specific theories of liability, plaintiffs are asserting a wrongful death action, and wrongful death actions are creatures of statute. See Jirsa v. Ice, 217 NW2d 465, 467 (S.D. 1974). Further, SDCL 21-5-7 purports to limit the remedies available in a wrongful death action: “In every action for wrongful death the jury may give such damages as they think proportionate to the pecuniary injury resulting from such death to the