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July 15, 1993

MARJORIE DATSKOW, Executrix of the Estates of Robert C. Gross and Susan C. Gross, deceased, and Administratrix of the Estates of Michael and David Gross, deceased, and GROSSAIR, INC., Plaintiffs,
TELEDYNE CONTINENTAL MOTORS AIRCRAFT PRODUCTS, A Division of Teledyne Industries, Inc., Defendant.

The opinion of the court was delivered by: DAVID G. LARIMER


 This products liability case arises out of the crash of a private airplane in which four people were killed. Plaintiffs sued the manufacturer of the engine on the theory that a defect in the plane's engine caused the crash.

 On February 24, 1993, after a month-long trial, a jury returned a verdict in plaintiffs' favor on theories of strict liability, negligent design, and failure to warn. The jury awarded the following damages: $ 250,000 to Juletta Cook, the mother of one of the decedents, on her wrongful death claim for economic loss; $ 5000 for funeral expenses; $ 30,000 to plaintiff Grossair, Inc., the owner of the plane, for loss of the aircraft, and a total of $ 107,000,000 for conscious pain and suffering of the decedents.

 Defendant, Teledyne Continental Motors Aircraft Products ("TCM"), has filed a motion seeking three alternative types of relief: to set aside the jury verdict and enter judgment in TCM's favor under Fed. R. Civ. P. 50(b); for a new trial pursuant to Rule 59; or for remittitur of damages under Rule 59.

 Plaintiffs have also filed two motions. First, in the event that the court grants defendant's motion for a new trial or for remittitur, plaintiffs request that the court apply North Carolina law. Second, plaintiffs move to strike two affidavits submitted by defendant in support of defendant's motion.


 TCM's motion is lengthy (204 pages including reply brief plus exhibits) and raises virtually every issue that was disputed during the month-long trial. Although I have carefully considered the many arguments made by TCM, there are only a few that merit discussion.

 Many of TCM's issues, especially concerning evidentiary matters, are issues that were discussed at length during the trial. As to these matters, this motion is nothing more than an attempt to reargue issues upon which I ruled against TCM -- no matter how inconsequential relative to the final verdict. As to these evidentiary issues, I made rulings and gave reasons, often extensive ones, for ruling as I did. Nothing would be served by my repeating those rulings in this written decision. I made my rulings and gave reasons for those rulings; I stand by them and see no basis to "change" those rulings now.

 Nothing advanced by TCM now persuades me that I should have ruled differently relative to disputed issues at trial. In addition, none of TCM's arguments, whether considered separately or as a whole, warrants either granting judgment in TCM's favor or granting a new trial on liability. As to damages, however, I do find the verdict to be excessive in several respects and I grant a new trial on damages, unless plaintiff accepts a remittitur of the excessive portion of the jury verdict.

 I. Issues Relating to Liability

 1. Defendants' Motion for Judgment as a Matter of Law

 The standard for deciding a Rule 50(b) motion "is appropriately strict." Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988). The court must determine whether the evidence, viewed in the light most favorable to plaintiffs, was sufficient to have allowed a reasonable juror to arrive at a verdict for plaintiffs. Konik v. Champlain Valley Physicians Hosp., 733 F.2d 1007, 1013 (2d Cir. 1984). The court must draw all reasonable inferences in plaintiffs' favor, and all questions of credibility must likewise be decided in plaintiffs' favor. Id.

 The Second Circuit has cautioned that in making these determinations, "the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167 (2d Cir. 1980). Rather, the court should grant the motion "only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him." Id. at 167-68.

 Defendant has not met this burden. Essentially, TCM seeks to "reargue" the case to the jury. There was conflicting proof and the jury determined the factual issues against TCM on all points. In this type of case, when the four principal eyewitnesses to the crash -- the Gross family -- were killed, plaintiffs had to rely on circumstantial evidence and expert testimony to make the case. In my view, the direct and circumstantial evidence together with all of the expert testimony provided more than sufficient evidence for the jury to have found against TCM on each of the three grounds for liability -- strict products liability, negligent design, and failure to warn -- that form the basis for the jury verdict. The evidence at trial was extensive on both sides and was in sharp conflict. Although a full recitation of all the evidence is neither practicable nor necessary here, I note that plaintiffs presented both eyewitness and expert testimony. The latter included testimony by Donald Sommer, a mechanical engineer with a background in accident reconstruction. Sommer opined that a fuel nozzle inside the engine had become clogged, causing fuel to leak out and catch fire during the flight. He based this opinion on examinations and tests of the actual engine and of mock-up or model engines. He explained the basis for his opinion to the jury through his testimony, and by means of videotaped experiments and courtroom demonstrations.

 Sommer further testified that, in his opinion, there was an alternative design available for the engine, referred to as an "upper deck" system, which he said would have avoided the fire which occurred here. Tr. 833. There was evidence that such a system was in fact used by Teledyne for its turbocharged engines, and in Sommer's opinion it was feasible for the engine involved in this case.

 Much of defendant's attack on the sufficiency of the evidence is really an attack on the qualifications of Sommer, whom defendants derisively refer to as "a so-called 'accident investigator,'" "putative expert," "accidentologist," and "a professional witness who makes a living by devising possible scenarios for accidents long after the fact." Def. Memo. p. 11.

 To the extent that defendant is challenging the qualifications of Sommer, or any other of plaintiffs' experts for that matter, those qualifications were amply set forth in the record. The basis for my allowing these witnesses to testify as experts is also clearly reflected in the trial transcript, and I see no need to repeat my rulings in that regard here. *fn1"

 Furthermore, defendant itself used its own accident reconstruction expert, Terrence Heaslip. Like Sommer, he testified about a wide variety of subjects, including fire damage, radiography, the airplane's flight path, and tree limbs that had allegedly been severed by the plane's propeller.

 In fact, much of the expert testimony offered by defendant was plainly meant to counter that offered by plaintiffs. Like plaintiffs, defendant called witnesses who offered opinions on fire, weather conditions, piloting an aircraft, the cause of death, and so on.

 That defendant would want to rebut plaintiffs' experts' opinions is not surprising, of course. The point is that the jury heard a wealth of expert testimony (Sommer's alone took the better part of five days), and it was the jury's province, not the court's, to decide the weight to be given that testimony. Caiazzo, 647 F.2d at 248; Mattivi, 618 F.2d at 167.

 Plaintiffs also called Patrick McGinley, an expert in fire investigation. He concluded from his examination of the airplane wreckage that a fire began in the engine while the plane was still in flight, not after the plane hit the ground or trees. Tr. 1942. His testimony was largely consistent with, and corroborative of, Sommer's opinion that the fire had resulted from leaking fuel. Tr. 1946-47.

 In addition, there was evidence that the particular engine in the crash aircraft had a long history of problems, including fuel leaks. This evidence supported plaintiffs' theory that the engine had been defectively and negligently manufactured. Tr. 931.

 Again, it is unnecessary to recite ail the evidence here. Suffice it to say that the evidence was more than adequate to present the jury with issues of fact on plaintiffs' various theories of liability. Defendant's motion for judgment as a matter of law must therefore be denied. Konik, 733 F.2d at 1013.

 2. Defendant's Motion for a New Trial on All Issues

 Defendant has moved for a new trial on all issues pursuant to Fed. R. Civ. P. 59. One of the grounds for this motion is that the verdict is against the weight of the evidence, for the same reasons put forward with respect to the Rule 50(b) motion.

 The standard for granting a new trial under Rule 59 is less strict than that for judgment as a matter of law under Rule 50(b), for "a new trial motion may be granted even if there is substantial evidence to support the verdict. " Bevevino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978). Nevertheless, the mere fact that the trial judge may have reached a different result than the jury is not a sufficient reason to grant the motion; the court should "abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result." Id. at 684 (quoting 6A J. Moore, Moore's Federal Practice P 59.08[5]).

 In addition to the insufficiency-of-evidence argument, TCM has raised a number of other grounds in support of the Rule 59 motion. In general, they relate either to alleged misconduct on the part of plaintiffs' counsel, to the court's admission of, and plaintiffs' reliance upon, allegedly inadmissible evidence, and to the court's exclusion of evidence offered by defendant.

 Many of these issues are simply rearguments of evidentiary issues or objections that were raised and decided at trial. I am not persuaded by defendant's claims of error concerning these matters.

 Rule 59 must be read in conjunction with Rule 61, which states that even where error has been committed, the court should not grant a new trial "unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."

 As indicated, all of the evidentiary issues raised by TCM in its post-trial motion were discussed at length during the trial. At that time, both sides were given ample opportunity to present their views and the Court made its rulings, often with an extensive statement of reasons for the ruling, often with reference to controlling case authorities.

 I do not intend to repeat here my reasons for the many evidentiary rulings during trial. In most cases, the trial record sets forth my rulings and the basis for them. Therefore, I intend to comment here on some, but not all, of the arguments of TCM.

 Defendant argues that the court erred in admitting correspondence between Robert Gross and TCM concerning Gross's complaints about problems with the aircraft engine. Defendant having "objected on foundation," I admitted the letters subject to connection. Tr. 933. Later, defendant added a hearsay objection. Tr. 2117. After hearing argument on the issue, I admitted the letters "for the limited purpose of showing notice, knowledge on behalf of TCM, which are not . . . hearsay issues, because they are not offered to show the truth of what's contained in them." Tr. 2159.

 TCM now contends that it was unduly prejudiced by the admission of these letters because the problems complained of in the letters did not relate to the specific defect alleged to have caused the crash i.e., the risk of an in-flight fire from a clogged fuel injector nozzle.

 Defendant's argument rests on too restrictive a view of the relevance of the letters to the issue of notice. Although Gross may never have specifically complained about a clogged fuel injector nozzle, that does not make the letters irrelevant to TCM's knowledge of the risk of such a condition. Plaintiffs' theory, and the opinion of their expert, was that Gross's complaints put TCM on notice that the engine had certain fundamental problems that made it more likely that solid matter would be blown into, and clog, the fuel injector nozzles. See Tr. 947-48. As I stated on the record, the letters "related to TCM's failure to exercise due care after it received this information," Tr. 2354, which the jury could have found supported the failure-to-warn claim.

 Furthermore, the letters were not admitted solely as evidence of notice, but also under Rule 703 as evidence relied upon by an expert in forming his opinion. It is well- established that otherwise inadmissible evidence may be received for the limited purpose of explaining the basis of an expert's opinion, and I stated my reasons for finding the letters admissible under this rule on the record. Tr. 2354-56.

 Finally, I expressly and clearly instructed the jury on the limited purposes for which they could consider the letters. In the jury charge, I stated that

 Tr. 4166-67. I recognize that defense counsel expressed the opinion that no instruction could cure the alleged prejudice from this evidence, Tr. 2362, but defendants had no objection to the wording of the instruction as such, and in my view it adequately cautioned the jury not to consider these letters as proof of the matters asserted therein.

 TCM contends that plaintiffs' use of demonstrative evidence in the form of video simulations was unfairly prejudicial. In particular, defendant attacks the use of a videotaped computer-generated animation which illustrated Sommer's theory of where the fire began inside the engine and how it spread.

 Some of defendant's objections to this tape are simply a reworking of their objections to Sommer's testimony in general: that it was speculative, did not take actual conditions into account, was contrary to the evidence, and so on. I reject those arguments for the same reasons that I rejected them concerning the admission of Sommer's testimony.

 Defendant's major objection to the video is that it was less an illustration of Sommer's testimony *fn2" than a purported re-creation of the accident, and as such was unduly prejudicial. Defendant made the same argument at trial, and I overruled the objection at that time, stating (outside the presence of the jury) that I would allow the tape to be shown "to help the jury understand the expert's opinion as to what happened and that it's not meant to be a re-creation. It's some visualization to allow the jury to conceptualize and appreciate the expert's opinion as to what happened here. " Tr. 724. To reduce the possibility that the jury might interpret it as a re-creation of the accident, I also ordered that it be played with the volume turned off, so that the jury could not hear the taped voice-over of the radio communications between the actual aircraft and the airport control tower. Tr. 725.

 In addition, before the tape was shown to the jury, I gave a cautionary instruction, in which I stated that the animation was "not meant to be a re-creation of the accident," but "simply computer pictures to help you understand Mr. Sommer's opinion." To reinforce the point, I repeated that the video was "not meant to be an exact re-creation of what happened back there on November 26, 1986 . . ." Tr. 840.

 In my view, the video was admissible for the limited purpose given, and the cautionary instruction was more than adequate to guard against the jury giving it undue weight as a reenactment of the actual event. ...

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