Stephenson v. Honeywell International, Inc.

Page 1259

669 F.Supp.2d 1259

Armour D. STEPHENSON, III, et al., Plaintiffs, v. HONEYWELL INTERNATIONAL, INC., Defendant.

Case No. 07-2494-JWL.

United States District Court, D. Kansas.

October 5, 2009.

John W. Kurtz, Hubbard & Kurtz, L.L.P., Kirk R. Presley, Monsees, Miller, Mayer, Presley & Amick, PC, Christopher J. Stucky, R. Douglas Gentile, Douthit, Frets, Rouse, Gentile & Rhodes, LLC, Charles H. McKenzie, Accurso Law Firm, Kansas City, MO, Steven H. Mustoe, Mustoe Carter, LLC, Prairie Village, KS, Mark A. Corder, Mark A. Corder, P.A., Olathe, KS, John Harl Campbell, Osage Beach, MO, for Plaintiffs.

Hugh E. Handeyside, V.L. Woolston, Perkins & Coie, Seattle, WA, Jason L. Bush, Thomas G. Kokoruda, William L. Yocum, Polsinelli Shughart PC, Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This diversity action, removed from state court, arises out of an airplane crash occurring on January 21, 2005, in Overland Park, Kansas, that resulted in the deaths of the pilot and all four passengers. This consolidated action encompasses the wrongful death and survival claims under Kansas law of the heirs and estates of the four passengers against defendant Honeywell International, Inc., whose predecessor company manufactured the airplane's engines.¹ The matter is presently before the Court on plaintiffs' motion for partial summary judgment relating to the survival claims for negligently-inflicted, pre-impact emotional distress,² or alternatively, for certification of a question to the Kansas Supreme Court (Doc. # 141); and defendant's motion for summary judgment on those same claims (Doc. # 147). The Court concludes that plaintiffs have not submitted evidence of physical injuries resulting from decedents' alleged pre-impact emotional distress, and that therefore plaintiffs may not recover for such distress under Kansas law. The Court also declines to certify a question to the Kansas Supreme Court. Accordingly, the Court denies plaintiffs' motion in its entirety, grants defendant's motion, and awards defendant summary judgment on plaintiffs' survival claims for pre-impact emotional distress.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir.2006). An issue of fact is "genuine" if "the evidence allows a reasonable jury to resolve the issue either way." Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1219 (10th Cir.2006). A fact is "material" when "it is essential to the proper disposition of the claim." Id.

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548).

If the movant carries this initial burden, the nonmovant may not simply rest upon his or her pleadings but must "bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof." Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005). To accomplish this, sufficient evidence pertinent to the material issue "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 675 (10th Cir.2002).

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

II. Plaintiffs' Motion for Partial Summary Judgment

In their motion for "partial summary judgment" under Fed.R.Civ.P. 56, plaintiffs do not actually seek a judgment in their favor on any particular claim; rather, they request "a finding that there is a jury-submissible genuine issue of material fact regarding the emotional and physical suffering of the three decedents before impact and, specifically, an issue allowed by Kansas law." In effect, then, plaintiffs seek a declaration or advisory opinion from the Court that a motion for judgment as a matter of law by defendant on these claims would be unsuccessful. Rule 56, however, does not authorize a motion seeking any relief other than summary judgment in the movant's favor. Plaintiffs have not provided any authority suggesting that a court could grant the kind of relief plaintiffs request here. Accordingly, the Court denies plaintiffs' motion for "partial summary judgment."

III. Analysis of Survival Claims for Pre-Impact Emotional Distress

Despite the procedural deficiency of plaintiffs' motion, the Court does address plaintiffs' question—whether plaintiffs have sufficient evidence to create a jury issue on their survival claims for pre-impact emotional distress—because defendant has filed its own motion for summary judgment on those claims. Defendant argues that plaintiffs cannot produce evidence of physical injuries resulting from the alleged pre-impact emotional distress suffered by decedents sufficient to support a claim under Kansas law. In opposition to defendant's motion and in support of their claims, plaintiffs have submitted only the following evidence: affidavits stating that decedents died upon impact of the airplane with the ground; an expert's testimony that 21 seconds elapsed between the failure of an engine and the impact; and the following deposition testimony by Dr. Carlos Diaz, an expert medical witness:

The passengers ... were not pilots. They were probably people who didn't think much about airplanes, and who had the usual sort of hesitation in flying because of a little bit of fear of flying, but they trusted the pilot. They trusted what was going on.

And—And they were—They were—It was a very happy occasion, as you know. They were given this flight as a gift. And they were also a little older. They were older than the pilot.

And—And they're sitting strapped in the back completely helpless. They—They can't do—At least the pilot can try to save the plane and is trying to do something. They can do nothing.

The plane was—was turning and moving, throwing them against their seat belts. They are fearing for their lives, even above and beyond the fear of a pilot, the fear of almost phobic fear that people who are not pilots may have about an aircraft accident.

They are probably not in real good physical shape. They're very tachycardiac from the fear. They're feeling a lot of rapid heart rate. They're feeling a lot of sensation of shortness of breath, difficulty breathing and tightness in their chest. I mean, they're feeling physical symptoms associated with essentially a panic about impending death.

Thus, plaintiffs have submitted evidence that decedents likely suffered a rapid heart rate (i.e., were "tachycardiac") and difficulty breathing (including shortness of breath and tightness in the chest).³

"Recovery for emotional distress has generally been limited in Kansas." Hopkins v. State, 237 Kan. 601, 612, 702 P.2d 311, 320 (1985). "It has long been the general rule in Kansas that there can be no recovery for emotional distress suffered by the plaintiff which is caused by the negligence of the defendant unless it is accompanied by or results in physical injury to the plaintiff." Hoard v. Shawnee Mission Med. Ctr., 233 Kan. 267, 274, 662 P.2d 1214, 1219-20 (1983); see also Fusaro v. First Family Mtge. Corp., 257 Kan. 794, 806, 897 P.2d 123, 131 (1995) (no recovery unless "accompanied by or resulting in physical injury"); Humes v. Clinton, 246 Kan. 590, 598-99, 792 P.2d 1032, 1038 (1990) (same); Hopkins, 237 Kan. at 612-13, 702 P.2d at 320 (same). The Kansas Supreme Court has noted the following reasons for the "physical injury" requirement:

The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking.

Hoard, 233 Kan. at 274, 662 P.2d at 1220 (quoting Prosser, Law of Torts § 54, at 329 (4th ed. 1971)); see also Restatement (Second) of Torts § 436A, cmt. b (listing the same three reasons for the requirement of physical injury, i.e., the normally trivial and evanescent nature of emotional disturbance, the ease of counterfeiting it, and the lack of intent); Bowman v. Doherty, 235 Kan. 870, 875-76, 686 P.2d 112, 118 (1984) (citing these reasons from this comment of Restatement § 436A).⁴

The issue then becomes whether the physical symptoms present here—rapid heart rate and difficulty breathing—may provide the "physical injury" required under Kansas law. In Hopkins, the Kansas Supreme Court held that the plaintiffs, who alleged physical distress in the form insomnia, headaches, weight gain, and general physical upset, did not suffer the physical injury or impact necessary for recovery. See Hopkins, 237 Kan. at 612-13, 702 P.2d at 319-20. Subsequently, the supreme court cited Hopkins in noting that ...