Jury Verdict for Cirrus and Against Lidle and Stanger Families Affirmed on Appeal

The plaintiffs’ attorney in the Lidle case told the press that, once the judge ruled that certain key evidence would be kept out of trial, a defense verdict was a foregone conclusion.

The plaintiffs wanted to tell the jury about an incident where, according to a Cirrus flight instructor, a Cirrus’ controls locked up in flight without warning in March 2006. That evidence, according to the plaintiffs’ attorney, would tend to prove that there was a problem with the Cirrus flight control system, just as plaintiffs had alleged. And typically such evidence of “other similar incidents” is exactly what persuades a jury that a product is indeed defective.  But the trial judge kept that evidence out of trial. In an opinion issued earlier today, the federal court of appeals for the second circuit ruled that the judge’s decision was within her discretion -- in other words, it wasn’t wrong.

Plaintiffs argue that the district court erred by excluding evidence of a March 2006 incident involving another Cirrus Model SR20 G2 aircraft (the "Doremire Incident") to prove [Cirrus’] negligence and notice of a defective condition.

Evidence of prior accidents may be admitted at trial only if the proponent "establish[es] their relevance by showing that they occurred under the same or substantially similar circumstances as the accident at issue." Whether a prior accident occurred under "substantially similar" conditions necessarily "depends upon the underlying theory of the case, and is defined by the particular defect at issue."

The [trial judge] . . .concluded that the Doremire Incident did not occur under substantially similar circumstances because plaintiffs had not "provide[d] evidence that the Doremire incident involved [a rudder-aileron interconnect] lockup where the Adel clamp crossed over and locked on a bungee clamp."

 . . .  We see no abuse of discretion here. Accordingly, we affirm the [trial judge’s] ruling.

Plaintiffs also wanted to tell the jury about an Airworthiness Directive the FAA issued after the Lidle crash concerning the Cirrus’ rudder-aileron interconnect, again to prove that the design of the aircraft’s control system was defective. The judge kept that from the jury too. Again, the court of appeals ruled that the decision was within the trial judge’s discretion.

Federal Rule of Evidence 407 generally prohibits a plaintiff from introducing evidence of [a manufacturer’s] subsequent remedial measures "that would have made an earlier injury or harm less likely to occur" to prove the defendant's "negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. Nevertheless, evidence of such measures may be introduced for other purposes, such as impeachment or -- if disputed -- to prove ownership, control, or the feasibility of precautionary measures. 

Plaintiffs argue that the district court erred by excluding. .  .a March 2008 . . . Airworthiness Directive mandating certain adjustments to the rudder-aileron interconnect on all Cirrus aircraft . . .Plaintiffs contend that Rule 407 does not apply to the Airworthiness Directive because it is a subsequent remedial measure taken by the government, not by Cirrus.

The . . . Airworthiness Directive incorporated by reference a 2007 Service Bulletin issued by Cirrus, which the [trial judge] excluded as a subsequent remedial measure and which exclusion plaintiffs do not challenge on review.  The [trial judge] concluded that allowing plaintiffs to introduce the Airworthiness Directive would function as a "back door" to introducing evidence of Cirrus's own subsequent remedial measure, which was squarely prohibited by Rule 407. Further, the [trial judge] explained that "in the circumstances of this case where the [Airworthiness Directive] was issued as a direct response to [Cirrus' Service] Bulletin, it is covered by Rule 407. . . because to determine otherwise might discourage manufacturers from issuing service bulletins as part of voluntary compliance procedures.

The second circuit's ruling finally brings the Lidle case to a close.

(All citations omitted, full opinion here.)

Lidle Judge Keeps Evidence Out; Jury Rules for Cirrus

The lawyer representing Lidle’s widow told the Associated Press  that today’s verdict for Cirrus was a foregone conclusion once the judge decided to keep out certain key evidence.

. . .the jury result was predictable because the judge refused to allow jurors to hear that the company revised its manufacturing process after the crash to prevent the flight controls from getting jammed. She also had ruled that they could not hear that a flight instructor had a lockup of flight controls and almost crashed in a similar plane.

Should the judge have allowed the evidence in?

Generally, the fact that a manufacturer has “fixed” what the plaintiffs consider to be a defect is not admissible to show that the manufacturer was negligent. Otherwise, manufCirrus Side Stick Controlleracturers might be reluctant to remedy problems after an accident. But there is an exception to the exclusionary rule under the Federal Rules of Evidence. The jury may hear of "subsequent remedial measures" where that evidence proves that the manufacturer could have easily designed the product in a safer way. 

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.  

The exception might have applied to allow into evidence Cirrus' "fix" for the aileron control system, but only if Cirrus argued that there was no feasible safer alternative design for the system.  We don't know from the news reports whether Cirrus made that argument. But it's unlikely Cirrus would have commited such a strategic blunder. 

What about the evidence of another Cirrus aircraft whose controls locked up? Usually, evidence of “other similar incidents” is very important to a jury.  If a design is defective, one might expect that others would have experienced the same problem.  But judges are wary of admitting evidence of "other similar incidents." Proving what happened in other cases can take up considerable court time, creating a "trial within a trial."

Surprise Witness at Lidle Trial

Cirrus says Cory Lidle crashed because he was inexperienced, not because his controls locked up.  But a surprise witness testified that Lidle had flown the East River Corridor successfully four times in the two months before the crash.  According to a NY Daily News account, the witness related that Lidle talked with her about his flights with some enthusiasm:

He said it was outstanding, beautiful," she told rapt jurors, adding that he had taken the same 25-minute flight twice at night and twice in the daytime. "He said, 'You really have to come with me the next time I go.'"

The NTSB brief on the accident noted that Lidle's logbook showed no record of having flown the corridor before.  It goes on to conclude that the accident was caused by Lidle's inexperience and failure to plan properly. It faulted Lidle for not recognizing that there was limited turning space in the corridor.  In other words, the situation caught Lidle unprepared.

The surprise witness' testimony calls that conclusion into question. 

Of course, a pilot need not log all his flights.That's why an investigator needs to talk to the witnesses to learn about a pilot's experience, and can't always just rely on what's in the logbooks.

The NTSB investigated this accident much more thoroughly than the typical general aviation accident.  And the NTSB did, in fact, interview this witness before publishing its report. Why didn't the NTSB get this information from the witness when its investigators interviewed her? According to the witness, that was simple:

They didn't ask me."

Lidle Jury Won't Learn of NTSB's Conclusion as to Cause of Crash

The Lidle jury will never learn that the NTSB concluded the crash was caused by pilot error, and not a defect in the plane, as plaintiffs allege.  

The reason is that, by federal statute (49 USC 1441(e)), the NTSB’s conclusions are inadmissible in court.

No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned is such report or reports.”

As it turns out, the statute doesn’t mean exactly what it says. Some parts of an NTSB report are sometimes admissible.  But the courts have made clear that the NTSB's probable cause finding must always stay out of evidence.

Many find that surprising.Lidle Crash Analysis  Federal statute aside, shouldn’t the jury be told what the NTSB concluded? Isn’t the NTSB, after all, in the best position to determine the cause of the accident?

No and No.

The Jury should Not be Told of the NTSB’s Conclusions

The NTSB allows the manufacturers who are potentially responsible for a crash, such as Cirrus, to participate in its investigation. But the NTSB excludes the victim’s family. This practice, which the NTSB calls the "party system" of investigation, results in probable cause conclusions which favor the industry players. It's one reason why most accidents are chalked up to "pilot error." 

It wouldn’t be fair to stick the families involved in the Lidle case with the NTSB’s conclusion given that the NTSB didn’t give them the opportunity to be heard.

The Jury, not the NTSB, is in the Best Position to Determine the Cause of the Accident

Unlike the NTSB, the jury will hear the testimony of experts from both sides of the case. Both the experts retained by Cirrus and those retained by the familes. That places the jury in a better position than the NTSB to determine the true cause of the crash. 

Lidle v. Cirrus: Claim Not "Junk Science"

When Cory Lidle's widow sued Cirrus Design, it caused a bit of an uproar in the aviation community.  Her suit alleges that it was a defect in the aircraft's flight controls that caused the Cirrus SR-20 to slam into a Manhattan hi-rise.  That claim led many to call the suit frivolous.  After all, the NTSB determined the accident was caused by pilot error, plain and simple. Right?

Cirrus asked the federal judge who is hearing the case to toss it out as being based on "junk science." Cirrus argued that under legal precedent known as Daubert v. Merrell Dow Pharmaceuticals, the judge must act as a "gatekeeper."  That means she must review the expert

testimony supporting plaintiff's case and make a preliminary determination as to whether the experts' opinions are reliable enough to even present to a jury.  If the judge determines that the opinions are not sufficiently sound, then the case gets tossed due to lack of admissible evidence. Cirrus argued that Lidle's experts are unqualified and their opinions as to the cause of the crash are based on speculation. In other words, that Lidle's "defect" theory is "junk."

Yesterday, after reviewing the opinions of Lidle's experts, the federal judge refused to grant summary judgment.  She expressly found that Lidle's experts are adequately qualified, and that their opinions are reliable. 

That ruling doesn't mean that Lidle wins her case.  It means only that Lidle may present her expert evidence that the crash was caused by a defect in the Cirrus' flight control system to a jury. 

The most relevant stuff starts at page 11. 

Download pdf of opinion here

Order Denying Cirrus Design's Motion for Summary Judgment

 

Is Lidle Suit against Cirrus Frivolous?

Cory Lidle's wife and Tyler Stanger's family are suing Cirrus Design, alleging that a problem with the plane's flight controls caused Lidle and Stanger's plane to crash into a Manhattan hi-rise.

Miles O'Brien, a former CNN correspondent, calls the lawsuit frivolous, because the NTSB concluded the cause was pilot error.  According to O'Brien, "in our litigious society, the facts don't matter for much."

O'Brien is missing the fact that the NTSB's conclusion is marred by a built-in conflict of interest.

That’s because the NTSB allowed Cirrus to participate in the investigation, but not the families or the families’ expeLidle Crash Photo from Wikipediarts. Is it any surprise that the NTSB’s final conclusions favored the manufacturer?

There is a known problem with the Cirrus ailerons jamming at full deflection. After this accident, Cirrus published a number of service bulletins in an attempt to correct the problem and, ultimately, the FAA issued an Airworthiness Directive against the aircraft. That doesn't necessarily mean that the aileron problem caused the Lidle crash. But the families are entitled to use the power of subpoena that comes with filing a lawsuit to investigate what happened. They don’t have to simply accept the NTSB’s conclusion — a conclusion the NTSB reached after closed-door meetings with Cirrus’ experts.