In re Crash of Aircraft N93PC on July 7, 2013, at Soldotna, Alaska

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
In re Crash of Aircraft N93PC ) No. 3:15-cv-0112-HRH
) [Consolidated with
on July 7, 2013, at Soldotna, Alaska ) No. 3:15-cv-0113-HRH and
_______________________________________) No. 3:15-cv-0115-HRH]
O R D E R
Honeywell’s Motion in Limine No. 16
Defendant Honeywell International Inc. moves to bar application of the consumer
expectation test in this case.1 This motion is opposed.2 Oral argument was requested but is
not deemed necessary.
Background
On July 7, 2013, a deHavilland DHC-3 “Otter” airplane operated by Rediske Air, Inc.
and piloted by Walter Rediske crashed shortly after take off from the Soldotna Airport.
Rediske and all of the passengers on board were killed in the crash. A Honeywell TPE 331-
10R-511C turboprop engine had been installed in the accident aircraft. Plaintiffs, which are
the estates of the passengers and Rediske, assert wrongful death, negligence, strict product
liability, and breach of warranty claims against Honeywell.
1Docket No. 407.
2Docket No. 452.
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In opposing Honeywell’s motion for summary judgment, plaintiffs relied on the
consumer expectation test.3 In its order on the motion for summary judgment, the court
determined that “[i]n terms of establishing whether the torsion shaft was defective, regardless
of whether it was due to a design defect or a manufacturing defect, plaintiffs can rely on the
consumer expectation test.”4 But, Honeywell contends that the court was not asked, and did
not determine, whether the consumer expectation should apply in this case. Honeywell now
asks the court to consider that question by moving to bar the application of the consumer
expectation test to this case.
Discussion
As an initial matter, plaintiffs argue that the law of the case doctrine applies to this
issue. “Under the law of the case doctrine, a court will generally refuse to reconsider an
issue that has already been decided by the same court or a higher court in the same case.”
Gonzalez v. Ariz., 677 F.3d 383, 389 n.4 (9th Cir. 2012). There are “exceptions to the law
of the case doctrine, however, where (1) the decision is clearly erroneous and its enforcement
would work a manifest injustice, (2) intervening controlling authority makes reconsideration
appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Id.
3Honeywell contends that it was during the briefing on its motion for summary
judgment that plaintiffs first brought up the consumer expectation test. However, in their
amended complaints, plaintiffs allege that the engine did not perform as an ordinary
consumer would have expected. Docket No. 135 at 18, ¶ 87; Docket No. 137 at 11, ¶ 49.
4Order re Honeywell’s Motion for Summary Judgment re Liability at 11, Docket No.
370.
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(citation omitted). Plaintiffs argue that none of these exceptions apply and thus the law of
the case is that plaintiffs can rely on the consumer expectation test.
“The law of the case doctrine does not preclude a court from reassessing its own legal
rulings in the same case.” Askins v. U.S. Dep’t of Homeland Security, 899 F.3d 1035, 1042
(9th Cir. 2018). The court may “reconsider[] its own orders before judgment is entered or
the court is otherwise divested of jurisdiction over the order.” Id. Thus, the law of the case
doctrine does not preclude the court from reconsidering whether the consumer expectation
test should apply in this case.
Turning then to that issue, in Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 880
(Alaska 1979), the task before the Alaska Supreme Court was to “formulate a test which will
guide the jury in design defect cases.” The court adopted the “two-prong test” that had been
set forth in Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978). Id. at 884. The
Barker court had held that
“[a] trial judge may properly instruct the jury that a product is
defective in design (1) if the plaintiff demonstrates that the
product failed to perform as safely as an ordinary consumer
would expect when used in an intended or reasonably foresee-
able manner, or (2) if the plaintiff proves that the product’s
design proximately caused his injury and the defendant fails to
prove . . . that on balance the benefits of the challenged design
outweighed the risk of danger inherent in such design.”
Id. (quoting Barker, 573 P.2d at 457-58). “The first prong of the Barker test -- that a product
is defectively designed if it fails to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner -- incorporates notions of the
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implied warranty of fitness for reasonable use, a primary concept in the evolution of strict
products liability, but eases the burden of proof on the plaintiff.” Id. at 884-85 (citation
omitted). “The second prong of the Barker definition encompasses those situations . . .
where the product satisfies ordinary consumer expectations as to its general use but is still
defective in that its design exposes the user or bystander to excessive preventable danger.”
Id. at 885 (citation omitted).
The first prong of the Barker test is known as the “consumer expectation test.”
General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998). Under the
consumer expectation test, “[t]he emphasis is on the failure of safe performance, rather than
on the specific reasons for the failure.” Patricia R. v. Sullivan, 631 P.2d 91, 103 (Alaska
1981). But, as the Alaska Supreme Court noted in Caterpillar Tractor, “[c]onsumer
expectations cannot be the exclusive test because ‘(i)n many situations . . . the consumer
would not know what to expect, because he would have no idea how safe the product could
be made.’” Caterpillar Tractor, 593 P.2d at 882 n.35 (quoting Wade, On the Nature of Strict
Tort Liability for Products, 44 Miss.L.J. 825, 829 (1973)). Honeywell argues that this is
such a case, that a consumer would have no idea how safe an aircraft engine or torsion shaft
could be made.
Honeywell primarily relies on Soule v. General Motors Corporation, 882 P.2d 298,
(Cal. 1994), in support of its argument. There, after her vehicle collided with another
vehicle, Soule “sued GM, asserting that defects in her automobile allowed its left front wheel
to break free, collapse rearward, and smash the floorboard into her feet.” Id. at 301. On
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appeal, one of the questions before the court was whether “a product’s design [can] be found
defective on grounds that the product’s performance fell below the safety expectations of the
ordinary consumer if the question of how safely the product should have performed cannot
be answered by the common experience of its users?” Id. (internal citation omitted). “GM
suggest[ed] that the consumer expectations test is improper whenever ‘crashworthiness,’ a
complex product, or technical questions of causation are at issue.” Id. at 309. The court
rejected this suggestion
[b]ecause the variety of potential product injuries is infinite, the
line cannot be drawn as clearly as GM proposes. But the
fundamental distinction is not impossible to define. The crucial
question in each individual case is whether the circumstances of
the product’s failure permit an inference that the product’s
design performed below the legitimate, commonly accepted
minimum safety assumptions of its ordinary consumers.
Id. The court explained that “the consumer expectations test is reserved for cases in which
the everyday experience of the product’s users permits a conclusion that the product’s design
violated minimum safety assumptions, and is thus defective regardless of expert opinion
about the merits of the design.” Id. at 308. The court concluded that the Soule case was not
such a case. Id. at 310. The court explained that Soule’s “theory of design defect was one
of technical and mechanical detail. It sought to examine the precise behavior of several
obscure components of her car under the complex circumstances of a particular accident.
The collision’s exact speed, angle, and point of impact were disputed.” Id. The court
reasoned that “[a]n ordinary consumer of automobiles cannot reasonably expect that a car’s
frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor
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would ordinary experience and understanding inform such a consumer how safely an
automobile’s design should perform under the esoteric circumstances of the collision at issue
here.” Id. In contrast, the court noted, that “ordinary consumers of modern automobiles may
and do expect that such vehicles will be designed so as not to explode while idling at
stoplights, experience sudden steering or brake failure as they leave the dealership, or roll
over and catch fire in two-mile-per-hour collisions.” Id. at 308 n.3. But, because Soule’s
theory of liability was much more complex and not within the realm of an ordinary
consumer’s experience, the court concluded that the consumer expectation test could not
apply in the case. Id. at 310.
Honeywell also relies on Shanks v. Upjohn Company, 835 P.2d 1189 (Alaska 1992).
Honeywell argues that in Shanks, the Alaska Supreme Court limited the scope of the
consumer expectation test based on a rationale similar to that used by the Soule court.
“Shanks represent[ed] the estate of a decedent who committed suicide shortly after he began
taking a prescription drug manufactured by The Upjohn Company. Shanks sued Upjohn
under negligence, negligence per se, strict liability design defect, strict liability failure to
warn, and breach of warranty theories.” Id. at 1192. One of the issues on appeal was
whether the consumer expectation test “should be consistently applied in all cases, regardless
of the nature of the product involved.” Id. at 1194. The Alaska Supreme Court
“question[ed] the significance of the expectations of the ordinary consumer in determining
whether strict liability should be imposed on the manufacturer of the typical prescription
drug.” Id. The court reasoned that “[c]onsumers vary widely in their knowledge,
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sophistication, and ability to understand and evaluate the risks associated with the use of
prescription drugs, making it extremely difficult to ascertain the expectations of the
‘ordinary’ consumer” and because
it is doubtful that the average consumer has the information
necessary to form a reasonable expectation regarding the
performance safety of most prescription products, since neither
the common law nor the Federal Food Drug and Cosmetic Act
require prescription drug manufacturers to provide full warning
information directly to the patient/consumer.
Id. at 1194-95. The court “conclude[d] that a prescription drug is defectively designed and
strict liability should be imposed on its manufacturer if the prescription drug failed to
perform as safely as an ordinary doctor would expect, when used by the patient in an
intended and reasonably foreseeable manner.” Id. at 1195.
Honeywell argues that in Shanks, the Alaska Supreme Court narrowed the application
of the consumer expectation test. And, Honeywell argues that the Alaska Supreme Court has
indicated that it might be willing to further narrow the application of the consumer
expectation test if given the right opportunity. In Farnsworth, “[a]fter experiencing near fatal
injuries in a car accident, Kimberly Farnsworth sued General Motors (GM) in strict liability
for designing a defective seat restraint system.” Farnsworth, 965 P.2d at 1211. “According
to Farnsworth, the accident was a moderate, frontal collision that should not have resulted
in serious injuries if her restraint system had worked properly.” Id. at 1212. “Farnsworth
argued that she had submarined under the lap belt because GM’s defective design only
protected individuals the size of an average man or larger.” Id. GM, on the other hand,
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“argued that Farnsworth’s injuries resulted not from a defect in the seat restraint system, but
from the severity of the accident and her own misuse of the belt.” Id. at 1213. On appeal,
“GM argue[d] that the consumer expectation test does not make sense in a complex design
case like this one . . . because consumers have no basis for forming expectations about how
products like cars should perform in serious accidents.” Id. at 1220. The court rejected
GM’s argument, explaining that “when a seat belt, designed to be an instrument of
protection, becomes an instrument of life-threatening injury, a consumer is justified in
concluding that it did not perform as safely as promised. A seat belt is a familiar product
whose basic function is well understood by the general population.” Id. at 1221. But in
reaching this holding, the Alaska Supreme Court noted that
Soule held that the consumer expectation test is appropriate only
if consumers’ everyday experience with the product allows them
to form conclusions about its minimum safety features. . . .
Soule . . . recognize[d] that some products may be so unfamiliar
to the average consumer that it would be difficult to form any
intelligent expectations about how they should perform. The
issue in Soule was whether a wheel and a wheel bracket were
defective because they collapsed rearward and inward during an
accident. According to the plaintiff, the collapse of the wheel
caused the area beneath the pedals to crumple which in turn
fractured her ankles. The court ruled that the consumer expecta-
tion test was not a proper method of determining defect under
those facts because [a]n ordinary consumer of automobiles
cannot reasonably expect that a car’s frame, suspension or
interior will be designed to remain intact in any and all acci-
dents. We do not address in this case whether, as the Soule
court suggested, the consumer expectation test is inappropriate
under certain facts.
Id. at 1221 n.16 (internal citations omitted).
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Honeywell insists that the facts of this case make the consumer expectation test
inapplicable. Honeywell argues that ordinary consumers have no experience with aviation
engine torsion shafts and thus do not have everyday experience that would “allow[] them
to form conclusions about its minimum safety features[.]” Id. Rather, Honeywell argues that
this case involves a product that is “so unfamiliar to the average consumer that it would be
difficult to form any intelligent expectations about how they should perform.” Id.; see also,
Pease v. Lycoming Engines, Case No. 4:10–CV–00843, 2011 WL 6339833, at *19, n.30
(M.D. Pa. Dec. 19, 2011) (citation omitted) (“[s]uffice it to say that ordinary consumers do
not have reasonable minimum safety expectations which touch upon the intricate
characteristics of a turbocharged TIO–540–AH1A aircraft engine”). Honeywell argues that
the complexity of this case is illustrated by the fact that the parties have disclosed more than
a dozen experts to testify at trial. Honeywell contends that these experts will testify about
a wide range of issues such as engine operation, torsion shaft operation, metallurgical
analysis of the torsion shaft surface, weight and balance studies, and flight path recreations,
to name just a few. Honeywell contends that even putting aside the intricacies of the
Honeywell engine itself, this case also involves a number of very specific instances of pilot
error. According to Honeywell, all of this taken together makes this case so technically
complex and so unfamiliar to the average consumer that the consumer expectation test should
simply not apply.
First of all, contrary to what Honeywell seems to suggest, the Alaska Supreme Court
has declined to narrow the consumer expectation test. The only case in which the Alaska
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Supreme Court limited the application of the consumer expectation test was in Shanks, which
was a pharmaceutical case, and even in that case, the Alaska Supreme Court did not abandon
the consumer expectation test. Rather, the court merely determined that the ordinary
consumer of prescription drugs was a doctor, not a patient.
While it may be that there are some cases that involve products that are too complex
for the consumer expectation test to apply, this is not such a case. Plaintiffs “have alleged
that the engine’s torsion shaft failed a few seconds after takeoff, which caused a complete
disconnect of the engine’s power section to the propellor and resulted in a complete loss of
propellor thrust.”5 An ordinary, average consumer could form intelligent expectations about
how an aircraft engine should perform.
In fact, the Alaska Superior Court has found that an aircraft engine is not too complex
of a product for the consumer expectation test to apply. In Curtis v. Aero-Recip, Alaska,
LLC, Case No. 3AN-12-06315 CI, Curtis “was operating” a Cessna 206 that had a Teledyne
Continental Motors engine “on a sightseeing flight when the engine lost all power.”6 After
the accident, during the disassembly of the engine, “it was discovered that the crankshaft had
fractured and separated at the number 2 journal. The crankshaft was then examined by a
NTSB engineer, who found what he termed ‘ladder cracking,’ indicative of oil starvation,
5Plaintiffs Response in Opposition to Honeywell’s Motion in Limine No. 16 [etc.] at
4, Docket No. 452.
6Memorandum in Support of ARA’s Motion for Determination of Law of the Case
[etc.], Exhibit C at 4, Honeywell’s Reply in Support of its Motion in Limine No. 16 [etc.],
Docket No. 504.
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and leading to fatigue failure of the crankshaft.”7 The engine in the accident aircraft had
been overhauled approximately one year prior to the accident and had “441 hours of flight
time” on it at the time of the accident.8 The defendant “asked the court to determine whether
or not the consumer expectation test applied to [the] case” and argued “that the consumer
expectation test does not apply in Alaska to products of sufficient complexity.”9 The court
rejected the defendant’s argument, explaining that while “the engine was undoubtedly
extremely complex[,]” it “failed during routine operations well within its time between
overhaul life.”10 The court concluded that “[c]onsumers can form, and probably have
formed, expectations about how engines in single engine aircraft should perform under those
circumstances.”11
Honeywell argues that this is a much different case however. Honeywell contends
that the primary difference between this case and Curtis is that there was no dispute in Curtis
that the engine failed in flight. In contrast, in this case, the parties dispute whether the
engine actually failed in flight. Plaintiffs contend that the engine did fail in flight;
Honeywell contends that it did not. This difference matters, according to Honeywell,
7Id. at 5.
8Id. at 4.
9Order, Exhibit A at 1-2, Plaintiffs Response in Opposition to Honeywell’s Motion
in Limine No. 16 [etc.], Docket No. 452.
10Id. at 5.
11Id.
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because whether an engine failed in flight is a very different, and much more complex
question, than why the engine failed in flight. Honeywell emphasizes that the Curtis court
did not hold that the consumer expectation test is generally appropriate in aircraft engine
cases. Rather, Honeywell contends that the Curtis court held that, under the circumstances
of that case, which involved a engine failing “during routine operations well within its time
between overhaul life[.]”12 the consumer expectation test could apply. But here, Honeywell
contends that “the mere question of whether an engine failure occurred at all – before even
reaching the comparably complex question of whether such failure proximately caused the
crash – adds a significant complexity to this case that just did not exist in Curtis.”13
Honeywell also argues that there are a number of other differences between this case
and Curtis. First, Honeywell contends that the Curtis case did not involve the pilot’s
interactions with the aircraft but in this case, plaintiffs’ theory of liability relies on the pilot
having seen improper data and then relying on this data to over-torque the engine. Second,
Honeywell argues that this case involves third parties between manufacture and the accident,
something that was not in play in Curtis. Honeywell also contends that this case did not
involve “routine operations” as was the case in Curtis because the accident aircraft was
improperly loaded and had an incorrect flap setting. In sum, Honeywell insists that the
ordinary consumer
12Id.
13Honeywell’s Reply in Support of its Motion in Limine No. 16 [etc.] at 7, Docket No.
504.
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lack[s] sufficient “everyday experience” with turbine engines,
torsion shafts and bushings to form expectations about how they
should perform when: (1) the torsion shaft was
installed/removed by third parties prior to install on the subject
engine, (2) the alleged defect purportedly generates bad flight
data, (3) the engine allegedly fails when the pilot relies on the
data and over-torques the torsion shaft, (4) following multiple
pilot errors that severely compromised the stability of the
aircraft.[14]
Moreover, Honeywell points out that plaintiffs’ theory of liability is based on their experts’
opinions that the alleged engine failure alone would not have caused the crash, that the
accident would not have occurred but for the center of gravity problems plus the alleged
engine failure. Thus, Honeywell argues that ordinary consumers would be required to adjust
their expectations of how an aircraft engine would perform under normal circumstances,
which they simply do not have sufficient everyday experience to do.
The court is not persuaded that the consumer expectation test should not apply in this
case. The court believes that ordinary, average consumers could intelligently form
expectations about how an aircraft engine should perform under the circumstances of this
case. Thus, plaintiffs may rely on the consumer expectation test at trial. The challenge, in
terms of the consumer expectation test in this case, will be to draft jury instructions that lead
the jury through the factual decisions they must make so that they then can apply the law to
those facts. For example, if the jury finds that the torsion shaft failed on impact with the
ground, the consumer expectation test would not apply.
14Id. at 8.
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Because the court has decided that the consumer expectation test may apply in this
case, it must consider Honeywell’s alternative argument that plaintiffs’ experts should be
precluded from offering testimony on the alleged defectiveness of the torsion shaft.
Honeywell makes this argument because the consumer expectation test “disfavors expert
testimony, and asks instead whether a layperson’s common experience would indicate that
the product was defective.” Rhodehouse v. Ford Motor Co., Case No. 2:16-cv-01892-JAM-
CMK, 2018 WL 5603614, at *2 (E.D. Cal. Oct. 29, 2018). As the Soule court explained,
where the minimum safety of a product is within the common
knowledge of lay jurors, expert witnesses may not be used to
demonstrate what an ordinary consumer would or should expect.
Use of expert testimony for that purpose would invade the jury’s
function (see Evid. Code, § 801, subd. (a)), and would invite
circumvention of the rule that the risks and benefits of a
challenged design must be carefully balanced whenever the
issue of design defect goes beyond the common experience of
the product’s users.
Soule, 882 P.2d at 308. “However, where the product is in specialized use with a limited
group of consumers[,] . . . expert testimony on the limited subject of what the product’s
actual consumers do expect may be proper because the expectations of the product’s limited
group of ordinary consumers are beyond the lay experience common to all jurors.”
Verrazono v. Gehl Co., 50 Cal. App. 5th 636, 647 (Cal. Ct. App. 2020) (citations omitted).
But Honeywell argues that this case does not involve a limited group of consumers and thus
if plaintiffs are allowed to proceed on the consumer expectation test at trial, their experts
should be precluded “from offering any testimony to establish any alleged defect in the
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subject torsion shaft, or from offering any opinions related to the safety expectations of the
ordinary consumer of torsion shafts.”15
Plaintiffs state that their “experts will not opine what an ordinary consumer would or
should expect,” but they argue that their “experts should be able to testify what they
expect.”16 Plaintiffs argue that Sommer and Coffman, who are both pilots, should be able
to testify how they expect an aircraft engine to perform. Plaintiffs also contend that
Honeywell’s experts have opined that a torsion shaft can never fail absent a defect. Michael
Stevensen testified that “[a]bsent a material defect, absent some kind of, you know, thermal
signature indicative of a long-term overpower, you should not be able to just, at normal
temperatures, fracture that shaft.”17 Dave Studtmann testified that “[h]istorically Honeywell
does not have a history of torsion shaft failures in flight[.]”18 And, Paul Talbert testified that
the only thing that can sever the torsion shaft is “the sudden stoppage of a propellor due to
impact[.]”19 Thus, plaintiffs argue that the experts from both sides have the expectation that
15Honeywell’s Motion in Limine No. 16 [etc.] at 12, Docket No. 407.
16Plaintiffs Response in Opposition to Honeywell’s Motion in Limine No. 16 [etc.]
at 9, Docket No. 452 (emphasis added).
17Videotaped Teleconference Deposition of Michael E. Stevenson, Ph.D., P.E. at
20:25-21:3, Exhibit B, Plaintiffs Response in Opposition to Honeywell’s Motion in Limine
No. 16 [etc.], Docket No. 452.
18Video Deposition of David Studtmann at 30:21-22, Exhibit C, Plaintiffs Response
in Opposition to Honeywell’s Motion in Limine No. 16 [etc.], Docket No. 452.
19Video Deposition of Paul Talbert at 13:19-24, Exhibit D, Plaintiffs Response in
Opposition to Honeywell’s Motion in Limine No. 16 [etc.], Docket No. 452.
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a torsion shaft should not fail in flight and that an ordinary consumer would not expect
differently. As such, plaintiffs argue that there is no reason why their experts cannot testify
about what they would expect.
Plaintiffs’ suggested approach has been rejected by other courts because the consumer
expectation test “‘focuses on the safety expectations of an ordinary consumer rather than
those of an expert.’” St. Clair v. Nellcor Puritan Bennett LLC, Case No. 10–1275–PHX–
LOA, 2011 WL 5331674, at *6 (D. Ariz. Nov. 7, 2011) (quoting Long v. TRW Vehicle
Safety Systems, Inc., 796 F. Supp. 2d 1005 (D. Ariz. June 20, 2011)). The court concludes
that any testimony about what plaintiffs’ experts expect as to the safe performance of the
engine or the torsion shaft would invade the fact-finding province of the jury and is therefore
excluded.
As the court held in its order on Honeywell’s motion in limine No. 8, plaintiffs’
experts may not offer testimony and opinions as to what an ordinary consumer might expect
in terms of the safe performance of an aircraft engine and torsion shaft. Plaintiffs’ experts
also cannot offer testimony as to what they might expect in terms of the safe performance
of an aircraft engine and torsion shaft. But, plaintiffs’ experts can offer testimony and
opinions as to whether the engine failed in flight and why it might have failed in flight.
Conclusion
Honeywell’s motion to bar application of the consumer expectation test in this case
is denied but its alternative motion seeking to bar plaintiffs’ experts from testifying about
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what ordinary consumers and they expect in terms of the performance of an aircraft engine
and torsion shaft is granted.
DATED at Anchorage, Alaska, this 25th day of June 2021.
/s/ H. Russel Holland
United States District Judge
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