Specter v. Tex. Turbine Conversions, Inc.

JOLYN L. SPECTER, as Personal Representative of the ESTATE OFJAMES E. SPECTER, M.D., and on behalf of herself, andthe Surviving Family Members including KEVIN SPECTER,and DAVID W. WOOD, JR. and MARIANNE WOOD,Individually an on behalf of the marital community, Plaintiffs, v. TEXAS TURBINE CONVERSIONS, INC., a Texas Corporation,RECON AIR CORPORATION, a foreign corporation, Defendants.

Case No. 3:17-cv-00194-TMB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

January 21, 2021

ORDER ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE LEARNED INTERMEDIARY AND SOPHISTICATED USER DEFENSES (DKT. 189)

The matter comes before the Court on Plaintiffs' Motion for Partial Summary Judgment (the "Motion") on the Learned Intermediary and Sophisticated User Defenses.¹ Defendant Texas Turbine Conversions, Inc. ("TTC") opposes Plaintiffs' Motion, and Recon Air Corporation ("RAC") joins TTC's Opposition.² The Motion has been fully briefed and is ready for decision without oral argument.³ For the following reasons, the Motion for Partial Summary Judgment at Docket 189 is GRANTED.

I. BACKGROUND

The background facts of this case are set out in detail in this Court's Order at Docket 313. The facts are incorporated by reference and will not be repeated here.⁴

In its Answer to Plaintiffs' Complaint, TTC denies liability for the crash and asserts that all of Plaintiffs' claims are barred by the learned intermediary and sophisticated user defenses.⁵ Plaintiffs filed the present Motion seeking to "exclude any attempt [by Defendants] to 'interject' [the defense] into the future trial."⁶ Plaintiffs state that the learned intermediary and sophisticated user defenses only apply to failure-to-warn claims.⁷ Although Plaintiffs acknowledge their Complaint asserts "state law tort claims for design defect and failure to warn under legal theories of negligence, strict liability and breach of warranty," Plaintiffs argue that the learned intermediary and sophisticated user defenses have no application given the facts of the case because Defendants offered no relevant warning.⁸ Plaintiffs' experts have identified two warnings they allege should have been given: (1) "[a] pilot should be warned not to use take-off flaps on take-off, but to use climb flaps, as was done during testing by [TTC]; and [(2)] [t]he aircraft has a tendency to roll right during take-off."⁹ Plaintiffs point out TCC did not offer these warnings and does not dispute that it did not offer such warnings.¹⁰

In opposition, TTC notes that under Alaska law the learned intermediary defense applies in the context of pharmaceutical companies and prescribing physicians, but urges the Court to extend the doctrine to the relationship between pilots and passengers and permit it to assert the defense in this case.¹¹ TTC states that as the holder of the Supplemental Type Certificate ("STC") with the ability to modify the DHC-3 Otter from its original configuration, it must, among other responsibilities, provide purchasers of its products with an Airplane Flight Manual Supplement ("AFMS").¹² The AFMS must be approved by the Federal Aviation Administration ("FAA") and contains information about safe operation of the aircraft, including operating limitations and procedures, aircraft performance, and loading information.¹³

Thus, TTC argues that it provided the converted aircraft and the AFMS to purchaser Rainbow King Lodge and to Pilot John Furnia, fulfilling its responsibilities under the applicable aviation regulations.¹⁴ TTC argues Pilot Furnia was in control of the plane, was the "'user'" of the airplane, was furnished with the necessary instructions and warnings, and was an experienced user—having logged over 400 hours in the aircraft.¹⁵ TTC also argues that Plaintiffs' expert, Mark Pottinger, whose opinion forms the main support for Plaintiffs' failure to warn claim, is notqualified to opine as to what duties TTC may have had or what warnings TTC should have provided.¹⁶

RAC joins in TTC's Opposition and adds that, as the installer of the short takeoff and landing kit (the "STOL Kit") and turbine modification, RAC had no duty or ability to issue the warnings Plaintiffs suggest were required.¹⁷ RAC points out that it is not required by federal law, and "no expert has opined, that RAC had a duty to inspect TTC's flight protocols, disregard the FAA's certification process for the TTC [STC,] independently determine whether TTC's flight protocols were sufficient, revise/re-submit and re-certify the already approved AFMS . . . and then provide pilots with this new AFMS."¹⁸ Further, RAC argues that Plaintiffs incorrectly suggest that RAC somehow played a role in the design or manufacturing of the turbine conversion kit.¹⁹

II. LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate where, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party,²⁰ "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw."²¹ Material facts are those which might affect the outcome of the case.²² A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."²³ "There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion."²⁴ A movant's burden may be met by "'showing' . . . that there is an absence of evidence to support the nonmoving party's case."²⁵ Thus, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."²⁶

Once a movant has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify facts which show a genuine issue for trial.²⁷ Evidence introduced in opposition to a summary judgment motion does not have to be the kind that would be admissible at trial; but may be any type of evidence identified in Fed. R. Civ. P. 56(c).²⁸ However, "conclusoryassertions are wholly insufficient to sustain either the defendants' burden or the district court's grant of summary judgment."²⁹ "A party opposing a summary judgment motion must produce 'specific facts showing that there remains a genuine factual issue for trial' and evidence 'significantly probative as to any [material] fact claimed to be disputed."³⁰

B. Negligence

Under Alaska law, in order to establish a prima facie case of ordinary negligence, Plaintiffs must present evidence to satisfy the following elements: (1) duty; (2) breach of duty; (3) causation; and (4) harm.³¹ They are "separate and distinct elements of a negligence claim, all of which must be proven before a defendant can be held liable for the plaintiff's injuries."³²

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C. Strict Liability Claims

Under Alaska law, "[a] product may be defective because of a manufacturing defect, a defective design, or a failure to contain adequate warnings."³³ A product is defectively designed if:

[(1)] the plaintiff proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) the plaintiff proves that the product's design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.³⁴

In general, for a consumer warning to be adequate, it should: "[(]1) clearly indicate the scope of the risk or danger posed by the product; [(]2) reasonably communicate the extent orseriousness of harm that could result from the risk or danger; and [(]3) be conveyed in such a manner as to alert the reasonably prudent person."³⁵

III. ANALYSIS

Plaintiffs move for summary judgment, arguing that Defendants should be precluded from asserting the learned intermediary and sophisticated user defenses.³⁶ First, the Court finds that the sophisticated user defense applies only in the context of failure to warn claims and any application of this defense outside of this scope is not permitted. Second, because Alaska only recognizes the learned intermediary defense in the drug manufacturer/physician context, Defendants may not assert this defense. According, the Court GRANTS Plaintiffs' Motion.

A. Applicability of the "Sophisticated User" Defense to Failure to Warn Claims

Although some courts apply the learned intermediary and sophisticated user defenses interchangeably,³⁷ the sophisticated or "knowledgeable" user defense applies where the consumer of the product is sophisticated in its use, has special knowledge, or is as aware of the dangers asthe manufacturer.³⁸ "The sophisticated user defense does not require a user's actual awareness of potential hazards. Rather a product manufacturer or supplier is not liable for failing to warn a sophisticated user if the user knew or should have known of the product's risk in light of his training or skill."³⁹ Alaska courts, for example, have considered the application of the sophisticated users defense in the context of a suit involving a propane retailer who was injured and alleged the propane distributer failed to offer adequate warnings or sufficient training to the retailer.⁴⁰

Here, Plaintiffs acknowledge that the sophisticated user defense is applicable in the context of a failure to warn claim.⁴¹ Likewise, Defendants appear to state that such a defense applies to failure to warn claims in product liability suits.⁴² Thus, it appears the parties are in agreement about the scope of this defense and that it does not have broad applicability to all of Plaintiffs' asserted claims. Accordingly, to the extent Plaintiffs ask the Court to bar Defendants fromasserting the sophisticated user defense outside of the failure to warn context, Plaintiffs' Motion is GRANTED.⁴³

B. Scope of the "Learned...