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From Products Liability Law Daily, November 22, 2013

GARA fraud exception, new-part rolling provisions not available in fatal airplane crash lawsuit

By Pamela C. Maloney, J.D.

Neither the fraud exception to, nor the rolling provision in, the 18-year repose period set forth in the General Aviation Revitalization Act of 1994 (GARA) applied to a products liability and negligence action arising out of a fatal airplane crash, the Supreme Court of Arkansas ruled (Tillman v. Raytheon Co., November 21, 2013, Corbin, D.).

Background. During a flight between Hot Springs, Arkansas, and Nashville, Tennessee, the left engine of a 1979 Beechcraft 95 B55 Baron airplane lost power, and the light twin engine plane went into a flat spin and crashed. All persons on board, the pilot and two passengers, died as a result of injuries sustained in the crash. The administrator of the passengers’ estates brought wrongful death claims based on products liability and negligence against the pilot, the manufacturer of the airplane, Hawker Beechcraft Corporation, and a number of other companies that had manufactured, sold, or installed parts on the subject aircraft after its original manufacturer date in 1978. The manufacturer moved for summary judgment, arguing that the 18-year statute of repose set forth in GARA barred the lawsuit. The estate countered that there were genuine issues of material fact as to whether the fraud exception or the new-part rolling provision of GARA applied. The estate also claimed that the repose period was unconstitutional. The trial court granted the manufacturer’s motion for summary judgment. The estate appealed

Fraud exception. The fraud exception to GARA’s repose provision requires a plaintiff to prove that the manufacturer knowingly misrepresented, concealed, or withheld from the Federal Aviation Administration (FAA) required information that was material and relevant to the performance, maintenance or operation of the allegedly defective aircraft or a component part, and that the misrepresentation, concealment, or withholding was causally related to the harm allegedly suffered. The estate argued that the manufacturer withheld or concealed material information from the FAA or misled or misinformed the agency about the aircraft’s propensity to enter an uncontrollable flat spin. However, a review of the estate’s evidence—which included the manufacturer’s letters to the FAA regarding the aircraft’s stall and spin characteristics, internal documents such as engineering reports, the flight manual, and Safety Information pamphlets specifying spin recovery techniques—made it clear that both the FAA and the manufacturer disagreed at varying points as to the safety of the aircraft. But more importantly, it was equally clear to the court that despite the disagreement, there was nothing in any of the documents to indicate a knowing misrepresentation, concealment, or withholding of material information that was causally related to the crash and the deaths of the passengers. Instead the letters provided specific evidence of the manufacturer’s open and candid communications with the FAA about the safety of the flat-spin characteristics of this aircraft. Thus, the estate fell short of demonstrating intent or of establish any actions on the manufacturer’s part that would constitute fraud as defined by the Act.

New-part rolling provision. The estate’s claim that the repose period had been “rolled” under the new-part rolling provision based on the manufacturer’s publication of an allegedly defect flight manual. The rolling provision of GARA extended the 18-year repose period “with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused ... death, injury, or damage.” The estate argued that none of the information included in the Safety Communiques issued by the manufacturer to its authorized service centers, dealers, operators, and owners of records on the subject of spin-avoidance and spin recovery characteristics had been published in the most recent version of the flight manual. Thus, the manual did not contain the most updated warnings and instructions on these topics. This argument contradicted prevailing case law which provided that in order for a revised flight manual to constitute a new part that would trigger the rolling of the GARA repose period, the revision must either contain wrong instructions or delete existing warnings or information. “No change,” as the estate argued in this case, was not a deletion or alternation of information but was an alleged omission of information, in other words, a failure to warn. The court explained that an alleged failure to warn in a revised manual was not analogous to a replacement part for purposes of triggering a new period of repose. Thus, the estate’s argument on this issue was without merit.

The case number is CV-12-261.

Attorneys: Ted Boswell (The Boswell Law Firm) for Davis Tillman. Patrick J. Goss (Rose Law Firm) and William L. Oliver (Martin, Pringle, Oliver, Wallace & Bauer, L.L.P.) for Raytheon Co., Hawker Beechcraft Corp., Hawker Beechcraft, Inc., and Beech Aircraft Corp.

Companies: Raytheon Co.; Hawker Beechcraft Corp.; Hawker Beechcraft, Inc.; Beech Aircraft Corp.

MainStory: TopStory SofLReposeNews AircraftWatercraftNews ArkansasNews

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