United States District Court, M.D. Pennsylvania
JILL SIKKELEE, individually and as personal representative of the estate of DAVID SIKKELEE, deceased, Plaintiff
PRECISION AIRMOTIVE CORPORATION, PRECISION AIRMOTIVE LLC, PRECISION AEROSPACE CORPORATION, PRECISION AEROSPACE SERVICES LLC, PRECISION AVIATION PRODUCTS CORPORATION, PRECISION PRODUCTS LLC, ZENITH FUEL SYSTEMS LLC, BURNS INTERNATIONAL SERVICES CORPORATION, FORMER FUEL SYSTEMS, INC., MARK IV INDUSTRIES, INC., TEXTRON LYCOMING RECIPROCATING ENGINE DIVISION, TEXTRON, INC., AVCO CORPORATION, KELLY AEROSPACE, INC., KELLY AEROSPACE POWER SYSTEMS, INC., ELECTROSYSTEMS, INC., CONSOLIDATED FUEL SYSTEMS, INC., Defendants
[Copyrighted Material Omitted]
For Jill Sikkelee, individually and as personal representative of the estate of David Sikkelee, deceased, Plaintiff: Clifford A. Rieders, LEAD ATTORNEY, Rieders Travis Humphrey Harris Waters & Waffenschmidt, Williamsport, PA; David I. Katzman, LEAD ATTORNEY, John D. McClune, LEAD ATTORNEY, PRO HAC VICE, Patrick J. Gallagher, LEAD ATTORNEYS, PRO HAC VICE, Katzman, Lampert & McClune, Troy, MI; Bruce A. Lampert, Katzman Lampert & McClune, Westminster, CO.
For Precision Airmotive Corporation, Defendant: John M Devaney, LEAD ATTORNEY, Perkins Cole LLP, Washington, DC; Mary P. Gaston, LEAD ATTORNEY, Sara E. Baynard-Cooke, LEAD ATTORNEY, PRO HAC VICE, William Brendan Murphy, Perkins Coie LLP, Seattle, WA; William J. Conroy, LEAD ATTORNEY, Campbell Campbell Edwards & Conroy, P.C., Berwyn, PA.
For Burns International Services Corporation, individually and as Successor-in-Interest to Borg-Warner Corporation, and Marvel-Schebler, a Division of Borg-Warner Corporation, Defendant: Sara E. Baynard-Cooke, LEAD ATTORNEY, PRO HAC VICE, William Brendan Murphy, Perkins Coie LLP, Seattle, WA; William J. Conroy, LEAD ATTORNEY, Campbell Campbell Edwards & Conroy, P.C., Berwyn, PA.
For Textron Lycoming Reciprocating Engine Division, a Division of Avco Corporation, Defendant: Catherine B. Slavin, LEAD ATTORNEY, Cozen O'Conner, Philaelphia, PA; Sara A. Frey, LEAD ATTORNEY, Gordon & Rees LLP, Philadelphia, PA.
For Avco Corporation, Defendant: Catherine B. Slavin, Sara A. Frey, LEAD ATTORNEYS, Gordon & Rees LLP, Philadelphia, PA; Christopher Carlsen, Deborah A. Elsasser, Clyde & Co., U.S. LLP, New York, NY.
For Kelly Aerospace, Inc., individually and Joint Venturer and as Successor-in-Interest, Kelly Aerospace Power Systems, Inc., individually and as Joint Venturer and Successor-in-Interest, also known as Electrosystems, Inc., also known as Confuel Inc., Defendants: John E. Salmon, Zachary J. Ballard, LEAD ATTORNEYS, Salmon, Ricchezza, Singer & Turchi, LLP, Philadelphia, PA.
For Consolidated Fuel Systems, Inc., also known as, Confuel, Inc., Defendant: John E. Salmon, Salmon, Ricchezza, Singer & Turchi, LLP, Philadelphia, PA.
Matthew W. Brann, United States District Judge.
For the following reasons, the motion for summary judgment of AVCO Corporation, on behalf of its Lycoming Engines Division (hereinafter, " Lycoming" ), is granted in part and denied in part.
Before turning to Lycoming's pending motion for summary judgment, the Court should review the relatively long history of this products liability case. Commenced in May 2007 by way of a 103-page Complaint, the case was originally assigned to the Honorable John E. Jones III, and was reassigned to the undersigned almost six years later on January 17, 2013.
Plaintiff is Jill Sikkelee (hereinafter, " Sikkelee" ), individually and as personal representative of the estate of David Sikkelee (hereinafter, " David" ); David was Jill's husband when he died piloting an airplane in 2005. Sikkelee's Complaint asserts that David's " aircraft lost power as a result of an engine fuel delivery system [i.e., carburetor] malfunction/defect [that, in turn, caused] the aircraft and its pilot [i.e., David] to lose control and crash"
shortly after takeoff from Transylvania County Airport in Brevard, North Carolina. (Complaint, May 16, 2007, ECF No. 1 ¶ 11). The Complaint asserts claims against seventeen defendants associated with the alleged " malfunction/defect" that supposedly caused David's crash and death. Sikkelee predicated her claims on state law theories of strict liability, breach of warranty, negligence, misrepresentation, and concert of action.
Sikkelee's claims against five defendants were dismissed by stipulation on Dec. 22, 2008 (ECF No. 102); two more defendants were dismissed by stipulation on April 14, 2010 (ECF No. 140); and settlement with four more defendants was approved on July 13, 2010. (ECF No. 146).
On August 13, 2010, more than three years after the Complaint was filed, Judge Jones dismissed Sikkelee's claims against the remaining defendants. A decade before, in Abdullah v. Am. Airlines, 181 F.3d 363 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit held " that federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation," though " traditional state and territorial law remedies continue to exist for violation of those [federal] standards."  Id. at 367, 375. Ten years later, Judge Jones concluded that Abdullah compelled dismissal of Sikkelee's Complaint: " [B]ased upon the state of the controlling law, this action is indeed controlled by Abdullah." Sikkelee v. Precision Airmotive Corp., 731 F.Supp.2d 429, 438-39 (M.D. Pa. 2010) (hereinafter, " Sikkelee I" ). Therefore, continued Judge Jones, " any claims that Plaintiff asserts under a state-law standard of care" -- i.e., all of Sikkelee's claims in the Complaint -- " must necessarily be dismissed." Sikkelee I, 731 F.Supp.2d at 438-439.
Although she had opposed the extension of Abdullah to her claims partly on the ground that " there is no specific federal regulation pertaining to the actual design, construction, inspecting, and testing [of the] carburetor/engine fuel system at issue [in this case. . . ., i.e.,] [t]here is a gap, unlike the facts in Abdullah" (Pl. Br., May 6, 2009, ECF No. 117 at 20), Judge Jones nevertheless granted Sikkelee " leave to amend the Complaint and assert claims under federal standards of care." Sikkelee I, 731 F.Supp.2d at 439. On August 31, 2010, Sikkelee filed a 155-page Amended Complaint. (ECF No. 160).
As the case neared its fourth anniversary, Judge Jones granted Lycoming's motion to dismiss Sikkelee's claims for breach of warranty, misrepresentation, and concert of action. 2011 WL 1344635, at *4 (M.D. Pa. Apr. 8, 2011). Sikkelee followed with a Second Amended Complaint (137 pages, for those keeping track) on April 18, 2011 (ECF No. 205), and by the time Judge Jones decided on March 13, 2012, that " Pennsylvania law will apply to the liability issues remaining in th[is] case,"  the termination of additional parties left
Lycoming as the only defendant in the case. (ECF No. 288 at 1-2).
Just past the wooden anniversary, with the matter pared down to Sikkelee's claims asserting Lycoming's negligence and strict liability, Judge Jones decided two Lycoming motions for summary judgment on July 3, 2012 in an opinion reported at 876 F.Supp.2d 479 (2012) (hereinafter, " Sikkelee II" ). Upon consideration of the parties's briefs, which " focus[ed] primarily on the issue of whether or not Lycoming is a manufacturer" subject to potential liability under Pennsylvania products liability law, Judge Jones denied Lycoming's motions in part, holding that " genuine issues of material fact remain with regard to whether Lycoming is a manufacture [sic] relative to the defective carburetor and overhaul of the engine in 2004, whether a defect existed, and whether said defect proximately caused the Plaintiff's injuries." Sikkelee II, 876 F.Supp.2d at 493, 495. He also, however, " grant[ed] summary judgment to the limited extent that Plaintiff's claims may be construed to allege a defect in the engine in 1969," reasoning that " Plaintiff has offered no evidence . . . demonstrating that the engine was defective when it left the Lycoming's Williamsport manufacturing plant in 1969 or that a defect existing at that time caused the 2005 aircraft accident." Id. at 486. Judge Jones ordered that " [t]he case shall proceed on the negligence and strict liability design defect theories asserted by the Plaintiff as they relate to the 2004 engine overhaul." Id. at 495.
On July 26, 2012, at Lycoming's urging, Judge Jones amended the Order that accompanied Sikkelee II to include a statement under 28 U.S.C. § 1292(b) encouraging the Third Circuit to hear an interlocutory appeal on the issue of " whether the Pennsylvania Supreme Court would adopt the RESTATEMENT (THIRD) OF TORTS or continue in its application of the RESTATEMENT (SECOND) OF TORTS." (ECF No. 306). Judge Jones had predicted in Sikkelee II that the Pennsylvania Supreme Court would be guided by the Restatement (Second) of Torts, and denied Lycoming's motions for summary judgment based on his application of the Restatement (Second). Deeming the Restatement (Second) versus Restatement (Third) issue " a controlling question of law" (ECF No. 306), Judge Jones suspended briefing on Lycoming's then-pending motion for reconsideration in order to give the parties the benefit of the Third Circuit's expected disposition of Lycoming's interlocutory appeal (July 26, 2012, ECF No. 307).
On September 14, 2012, a panel of the Third Circuit denied Lycoming's Petition for Permission to Appeal Judge Jones's July 3, 2012 Order. 2012 WL 4953074 (3d Cir. Sept. 14, 2012). Lycoming petitioned for rehearing en banc and panel rehearing. The Third Circuit likewise rejected these petitions on October 17, 2012, but its Order decidedly instructed that " federal courts sitting in diversity and applying Pennsylvania law to products liability cases should look to sections 1 and 2 of the Restatement (Third) of Torts." 2012 WL 5077571 (3d Cir. Oct. 17, 2012) (emphasis added). The same day, Judge Jones denied as moot Lycoming's pending motion for reconsideration of Sikkelee II and provided that " [t]he parties MAY, at their election, file new motions for reconsideration, guided by the Circuit's direction that the RESTATEMENT (THIRD) is applicable to this action." (ECF No. 324). On October 31, 2012, Lycoming filed a motion for reconsideration of Sikkelee II to the extent it denied Lycoming's motion for summary judgment. (ECF No. 332). That motion for reconsideration was pending at the
time this case was reassigned to the undersigned in January 2013.
On June 3, 2013, applying against Lycoming the demanding standard that confronts a motion for reconsideration, this Court held that neither an intervening change in law nor supposed clear error warranted reversal of Sikkelee II, 2013 WL 2393005 (M.D. Pa. June 3, 2013), a determination the Court reinforced and elaborated upon in an Order dated July 9, 2013, 2013 WL 3456953 (M.D. Pa. July 9, 2013), at oral argument on November 13, 2013 (Tr., Nov. 25, 2013, ECF No. 459 at 199-204), and in a Memorandum dated November 20, 2013 (ECF No. 456 at 4 n.2). Trial was then scheduled for December 2, 2013.
Some months before trial, however, it became clear that Sikkelee had hurdled the fence of the Restatement (Third) only to be confronted by the menacing hound that is Abdullah lurking on the other side. On October 24, 2013, Sikkelee proposed jury instructions incorporating some eighteen federal regulations and pronouncements of the Federal Aviation Administration (hereinafter, the " FAA" ) and Civil Aeronautics Board, the FAA's predecessor. (ECF No. 409-7).The Court reviewed the proposed charge with a raised eyebrow,puzzled by Sikkelee's derivation of a standard of care from certain regulations, and unable to grasp the causal relevance of the alleged breach of others.
At a November 13, 2013 hearing, the Court expressed doubt concerning the validity of Sikkelee's proposed instructions and heard her counsel's attempts to justify them. By way of a November 20, 2013 Memorandum, the Court -- after explaining the difficulty that courts have had fashioning jury instructions consistent with Abdullah generally  -- recounted the hearing as follows:
[P]laintiff's counsel was all but completely unable to assist the Court in, to use Chief Judge Conner's phrase, " formulating an intelligible statement of applicable law." The Court's confidence in the capacity of plaintiff's proposed instructions to guide the Court steadily diminished throughout the argument, and was lost completely when plaintiff's counsel made the incredible suggestion that the Court could fulfill its duty to instruct the jury by delivering Pennsylvania pattern instructions on negligence. See Abdullah, 181 F.3d at 376 (remanding case to district court to " evaluate whether the evidence on standards of care and the instructions given to the jury conformed
to the federal aviation safety standards as we have described them" ).
ECF No. 456 at 5-6).
With trial approaching, the Court found itself " without sufficient guidance from either precedent or the parties as to the law that will govern not only the jury's deliberations, but also the Court's rulings on the relevance of evidence, motions pursuant to Fed.R.Civ.P. 50, and other questions." (Id. at 6). The Court postponed trial to March 10, 2014 and ordered Sikkelee to submit a brief showing why the regulations she cited constitute the standard of care applicable to Lycoming; Lycoming was given the opportunity to respond. (Nov. 20, 2013, ECF No. 457).
Upon review of the parties's papers, the Court determined that the issues raised would profit from examination in the posture of summary judgment. Not incidentally, an order resolving a motion for summary judgment would, in the Court's view, be conducive of interlocutory consideration by the Third Circuit under 28 U.S.C. § 1292(b), consideration which this Court resolved to encourage in light of the vexation these issues have caused this Court and others. Compare Lewis v. Lycoming, 957 F.Supp.2d 552 (E.D. Pa. 2013), with Pease v. Lycoming Engines, 2011 WL 6339833, at *22 (M.D. Pa. Dec. 19, 2011). On February10, 2014, the Court ordered summary judgment briefing limited to Lycoming's contention that, in view of the parties's evidence, no reasonable jury could conclude that Lycoming's allegedly tortious conduct breached a federal standard of care and caused David's crash thereby. Trial was postponed. (ECF No. 478). In accordance with the Court's Order, Lycoming moved for summary judgment on March 19, 2014. (ECF No. 482).
II. Summary Judgment Standard
Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is " material" where it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" where " the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all reasonable inferences in the nonmovant's favor, " could return a verdict for the nonmoving party." Id.
For movants and nonmovants alike, the assertion " that a fact cannot be or is genuinely disputed must" be supported by " citing to particular parts of materials in the record," or by " showing that the materials cited [by an adverse party] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). " If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).
Thus, where the moving party's motion is properly supported and his evidence, if not controverted, would entitle him to judgment as a matter of law, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting
forth " genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. In the face of the moving party's evidence, the nonmoving party's mere allegations, general denials or vague statements will not create a genuine factual dispute. See Bixler v. Cent. Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1302 (3d Cir. 1993). Only citation to specific facts is sufficient. Anderson, 477 U.S. at 250.
Where the nonmoving party has had adequate time for discovery and will bear the burden of proof at trial, " a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial," and summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Sikkelee claims that Lycoming is liable for alleged defects in the " engine, . . . carburetor, . . . [and] fuel delivery system" (as well as various " manuals and instructions" related to these components) installed in the aircraft (a Cessna 172N) that David was piloting when he crashed fatally in 2005 (hereinafter, the " accident aircraft" ). (2d Am. Compl., Apr. 18, 2011, ECF No. 205 ¶ ¶ 141, 144, 162). The nature of Lycoming's association with the components at issue is important to the Court's analysis and will be set forth in some detail.
In 1969, Lycoming manufactured the engine -- a model O-320-DC2 bearing the serial number L-6590-39A (hereinafter, the " subject engine" ) -- that was installed in the accident aircraft at the time of David's crash. (Def. Facts, Mar. 19, 2014, ECF No. 483 ¶ ¶ 6, 8 (hereinafter, " Def. Facts I" )). Most of the subject engine's 35-plus years were spent in storage: Lycoming shipped the engine to Beagle Aircraft, Inc., in September of 1969, and it was not until 1998 that the engine was installed " factory new" on the accident aircraft. (Def. Facts I ¶ 7; Pl. Facts, Apr. 28, 2014, ECF No. 488 ¶ 7 (hereinafter " Pl. Facts" )).
When the subject engine left Lycoming's control in 1969, it shipped with a carburetor  -- setting 10-3678-32, serial number A-25-15850 (hereinafter, the " original carburetor" ) -- but the carburetor installed in the subject engine when the accident aircraft crashed in 2005 was not the original carburetor. (Def. Facts I ¶ ¶ 7, 9, 11; Pl. Facts ¶ 9). When the engine came out of storage in 1998, an overhauled Marvel-Schebler/Precision Airmotive Corp. (hereinafter, " Precision" ) model MA-4SPA carburetor bearing serial number CK 6 11739 was installed in accordance with the O-320-DC2's type-certificated design (more on FAA " type certification" shortly), which calls for installation of the MA-4SPA. (Pl. Ex., ECF No. 234-1; Pl. Ex., ECF No. 234-6 at 8).
Then, just under a year before David's accident, Kelly Aerospace, Inc. (hereinfater, " Kelly" ), an FAA certified repair station, overhauled another MA-4SPA carburetor -- this one bearing serial number CK 6 10964 and originally manufactured by
Precision in 1978 (hereinafter, the " replacement carburetor" ) -- and installed it on the subject engine, again in accordance with Lycoming's type-certificated design. (Pl. Facts ¶ 10; Pl. Ex., ECF No. 234-6 at 8; Pl. Ex., ECF No. 54 ¶ 101; Pl. Ex., ECF No. 207 ¶ 22). In performing the overhaul, Kelly was required to " use the methods, techniques and practices prescribed in [Lycoming's] maintenance manual or Instructions for Continued Airworthiness," 14 C.F.R. § 43.13(a) (2004), and did so (Pl. Ex., ECF No. 234-6 at 9-10). As part of the overhaul, Kelly removed parts from the replacement carburetor and replaced them with parts  that Kelly had manufactured under its FAA-issued Parts Manufacturer Approval (hereinafter, " PMA" ) (more on PMA shortly). (Def. Facts I ¶ 10). The Kelly-overhauled replacement carburetor was powering the subject engine when David was piloting the accident aircraft in 2005.
Those are the basics. To better understand Lycoming's association with -- and duties with regard to -- the allegedly defective components, however, it is necessary to specify where Lycoming is situated in the context of the Civil Air Regulations (hereinafter, the " CARs" ) and the Federal Aviation Regulations (hereinafter, the " FARs" ). ...