Davidson v. Fairchild Controls Corp., CIVIL ACTION NO. H-15-0827

KENNETH DAVIDSON, et al., Plaintiffs, v. FAIRCHILD CONTROLS CORPORATION, Defendant.

CIVIL ACTION NO. H-15-0827

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

September 29, 2016

MEMORANDUM OPINION

Pending before the court¹ are Defendant Fairchild Controls Corporation's ("Fairchild") Motion for Summary Judgment (Doc. 227), Fairchild's Motion to Exclude the Report, Testimony, and Opinions of Don Hansen ("Hansen")(Doc. 254), and Fairchild's Motion to Exclude the Report, Testimony, and Opinions of C. Van Netten (Doc. 255). The court has considered the motions, Plaintiffs Kenneth Davidson ("Davidson"), his wife ("Jana"), their children, and Thomas Farmer's ("Farmer") (collectively, "Plaintiffs") responses, Fairchild's replies, the parties' supplemental briefs and exhibits, the competent summary judgment evidence, and the applicable law. For the reasons set forth below, the court GRANTS Fairchild's motion for summary judgment. As that disposes of the case, the court DENIES AS MOOT Fairchild's motions to exclude.

I. Case Background

Plaintiffs originally filed this products liability action in the United States District Court for the Southern District of New York, alleging that Davidson and Farmer were exposed to toxic fumes while operating an airplane on a work assignment.

A. Factual Background

At the time relevant to this action, Fairchild manufactured air cycle machines ("ACM") and other components for commercial and military aircraft.² Additionally, Fairchild repaired and overhauled components that it or one of its predecessors had manufactured.³ Fairchild ceased manufacturing ACMs in approximately 1980 but continued to repair and overhaul ACMs.⁴

In 2007, Fairchild repaired and overhauled the ACM that was installed in the Twin Commander 690A turboprop aircraft, which was owned by Northrop Grumman Corporation and/or Northrop Grumman Systems Corporation ("NGC") and used in aerial surveying.⁵ The Twin Commander 690A and certain other types of aircraft utilize an ACM as part of the environmental control system, which deliverspressurized, temperature-conditioned air to the cockpit and cabin.⁶ An ACM is comprised of a compressor, a turbine, a bearing cartridge, and an oil compartment.⁷ A wick-fed oil lubrication system provides ball bearings of an ACM with the necessary oil to perform properly.⁸

"[U]nfiltered high pressure hot turbine engine compressor 'bleed air'" is throttled and cooled with "ram air" from outside the aircraft's airframe by a heat exchanger.⁹ The ACM compressor raises the air pressure to a higher level and sends the air to a secondary heat exchanger where it is cooled by ram air and then enters the ACM's turbine.¹⁰

In the turbine, the high pressure air powers the compressor and, in the process, is further cooled.¹¹ The air and any condensate produced exits the ACM to the water separator, which dehumidifies the air.¹² From there, the air passes through a mixingchamber that conditions the air to the selected temperature by adding the appropriate amount of bleed air directly from the compressors of the aircraft.¹³ The air is then distributed throughout the cockpit and cabin.¹⁴

In late May 2011, Bill O'Connor, a pilot for NGC, flew the Twin Commander 690A on a work assignment.¹⁵ Afterwards, he complained of fumes and smoke in the cockpit.¹⁶ On May 31, 2011, NGC, Farmer and Davidson's employer, instructed the two men to fly the airplane "to verify those smoke and fumes" reported by the other pilot.¹⁷

Farmer, the pilot on May 31, 2011, testified that he did not want to fly the airplane, but his managers pressured him to make the flight, even though Farmer and the managers were aware of prior smoke and fumes incidents.¹⁸ Farmer admitted that he was aware ofthe problems on the Twin Commander 690A prior to the May 31, 2011 flight.¹⁹ Farmer testified that smoke and fumes entered the cockpit on "[e]very flight . . . mildly at lower altitudes, but at higher altitudes and a higher temperature selection for the cabin heat . . . significant smoke and oil mist" formed.²⁰ By May 2011, Farmer had experienced smoke and fumes at least fifty times while flying the Twin Commander 690A.²¹ "There was always fumes and an oily mist in the cabin. But at a higher altitude, above 10,000 feet, say, up to 28 or 30,000 feet, you're at a higher temperature selection for cabin heat, the aircraft had a 90 percent probability of excessive smoke and fumes."²²

Farmer reported the problem "[v]erbally, probably 100 times"and wrote notes on forms to be placed in the logbooks.²³ Farmer also knew that other NGC pilots had experienced smoke and fumes in the cockpit during flights and that Bill O'Connor had suffered respiratory irritation, confusion, and disorientation as a result.²⁴ After flying the Twin Commander 690A on multiple missions, Farmer "felt sick all the time" with respiratory stress, more headaches, and dizziness.²⁵ On one flight in June 2010, Farmer was overcome by the smoke and fumes was unable to exercise good judgment or accurate fuel calculations when the gauge malfunctioned.²⁶ The airplane ran out of fuel, which led to Farmer's conducting a "flamed out" approach and glider landing.²⁷

Davidson, a sensor operator, became aware of the problems with the Twin Commander 690A about a week before his May 31, 2011 flight, having heard that occupants, including Bill O'Connor, had experienced odors in the cockpit during flights.²⁸ Davidson was prompted by the information to search the internet on "this type offume event" to find out what they could be and what problems could be associated with them.²⁹ Based on his research, Davidson sent an email to management to express his concerns.³⁰ When questioned about the results of his research, Davidson reported that he could not recall anything at all.³¹ When it came to the May 31, 2011 flight, Davidson stated that he was not concerned and viewed it simply as part of the job.³²

As soon as Davidson and Farmer got into the airplane, they could smell the smoke and fumes but began to fly the mission anyway.³³ By the time they reached an altitude of about 28,000 feet, "the smoke and fumes were so bad that [Farmer experienced] burning eyes, coughing, and more difficulty breathing."³⁴ Farmer thought Davidson appeared to be "halfway intoxicated."³⁵ Davidson reported that he tasted oil and metal and started feeling groggyand dizzy.³⁶ He said he felt as if he were moving in slow motion.³⁷

The two men donned oxygen masks.³⁸ Farmer contacted the air traffic controller to report the fume event.³⁹ Air traffic control gave permission for an immediate descent, and, after reaching a low enough altitude, Davidson and Farmer depressurized the cabin and flushed the air.⁴⁰ They returned to the airport and landed, but neither one can remember how they made it back to the hotel.⁴¹ From the time the men entered the airplane to the time they landed, sixty to ninety minutes had elapsed.⁴²

According to Plaintiffs' complaint, Farmer suffered "permanent damage to his eyes and lungs, decreased mental acuity, neurological deficits, severe headaches, weakness, irritability, and injuries to other parts of his body."⁴³ The complaint stated that Davidson suffered "toxic encephalopathy with persistent cognitive sequela, industrial asthma, fatigue, difficulty with balance, memory loss,eye and throat irritation, and injuries to other parts of his body."⁴⁴

On June 1, 2011, Farmer and Davidson flew the Twin Commander 690A, at low altitude and unpressurized, to the repair location.⁴⁵ He flew the airplane several other times after being told that the problem was fixed, experiencing approximately six more incidents of smoke and fumes.⁴⁶ The ACM was returned to Fairchild on October 17, 2011, for an evaluation.⁴⁷ The Fairchild report stated, "As a result of the oil starvation, heat caused expansion of the shaft, bearing, and cartridge assembly thus causing damage to the turbine and impeller as well as the diffuser."⁴⁸ The report indicated that the ACM was to be overhauled.⁴⁹

B. Procedural Background

On May 30, 2014, Plaintiffs filed this diversity action in the U.S. District Court for the Southern District of New York pursuantto New York common law.⁵⁰ The original complaint named as defendants fifteen business entities that Plaintiffs believed to be involved "in the design, construction, and maintenance of the subject aircraft and its component parts."⁵¹ Against Fairchild, Plaintiffs averred that the ACM was "defective in its design and/or manufacture and/or assembly, allowing drops of oil leaking from the engine to access the aircraft's bleed air-ducting system and into the cabin."⁵² Plaintiffs' claims against Fairchild were based on defective product theories: defective design, failure to warn, and breach of express or implied warranty.⁵³ Jana and the children sought damages for loss of consortium.⁵⁴

The case proceeded in the New York district court for ten months, during which time, the parties engaged in preliminary litigation matters, including the filing of waivers of service, notices of appearance, disclosures, pleadings, motions to dismiss, and stipulations of dismissal.⁵⁵ On March 26, 2016, the New Yorkcourt entered an opinion on a motion to dismiss filed by Fairchild, which, by that time, was the only remaining defendant.⁵⁶ The court determined that it lacked personal jurisdiction but, in lieu of dismissal and by agreement of the parties, transferred the case to this court pursuant to 28 U.S.C. § 1404(a).⁵⁷

On April 10, 2015, Fairchild filed its answer, asserting twenty-nine defenses.⁵⁸ On May 1, 2015, the court held a scheduling conference and entered a docket control order.⁵⁹ On May 8, 2015, Plaintiffs amended their complaint to delete portions not applicable to Fairchild.⁶⁰ The parties engaged in discovery and called upon the court to resolve several discovery issues.⁶¹

On January 25, 2016, the parties unsuccessfully attempted mediation.⁶² On February 12, 2016, Fairchild timely filed the...