     Case: 17-20018   Document: 00514336446     Page: 1   Date Filed: 02/05/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT                                   United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          February 5, 2018
                                 No. 17-20018
                                                                           Lyle W. Cayce
                                                                                Clerk
JANA DAVIDSON, Individually and on behalf of their minor children J.C.D.
and K.S.D.; THOMAS FARMER; KENNETH DAVIDSON, Individually and
on behalf of their minor children J.C.D. and K.S.D.,

             Plaintiffs - Appellants

v.

FAIRCHILD CONTROLS CORPORATION,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Two of the plaintiffs were injured when oil from an airplane’s air cycle
machine leaked into the cabin, causing smoke and fumes to fill the cockpit
during their flight. The plaintiffs brought suit against several defendants. The
district court granted summary judgment to defendant Fairchild Controls
Corporation on a design-defect claim due to a lack of adequate expert testimony
that a feasible alternate design existed. It also dismissed the failure-to-warn
claim because the plaintiffs were knowledgeable users. We AFFIRM.
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                    FACTUAL AND PROCEDURAL BACKGROUND
       On May 31, 2011, two employees of an aerospace and defense technology
company embarked on a mission to determine the cause of fumes and smoke
in one of the company’s airplanes, a Twin Commander 690A. Prior to that
flight, another pilot at the company, William O’Connor, complained that fumes
and smoke had filled the cockpit when the Twin Commander 690A reached a
cruising altitude. The company wanted the two employees, a pilot and a sensor
operator, to fly the aircraft to determine if the fumes and smoke problem had
been resolved.
       This problem with the Twin Commander 690A was already known by
the plaintiffs, 1 who were the pilot, Thomas Farmer, and the sensor operator,
Kenneth Davidson. Farmer had observed fumes and smoke on 50 prior flights
and had repeatedly complained to the company about his concerns. He knew
that the problem was because of an old air cycle machine (“ACM”), which was
contaminating the air from leakage of oil. Farmer stated in his deposition that
he had “recommended that the cause of the smoke and fumes, the air cycle
machine unit, be replaced.” Farmer was also aware of the negative health
effects of the fumes and smoke, which released a chemical neurotoxin known
as tricresyl phosphate. Farmer had visited several doctors concerning the
damage to his health from experiencing smoke and fumes on prior flights.
       The second plaintiff, Davidson, also knew about the fumes and smoke
problem in the Twin Commander 690A. He was warned about the risk of
smoke and fumes in the cockpit by another pilot, who had experienced the


       1Kenneth Davidson’s wife, Jana Davidson, is also a plaintiff and is suing for loss of
consortium, society, and service. Kenneth and Jana Davidson are also suing on behalf of
their minor children, J.C.D. and K.S.D., for loss of consortium, society, and service. Jana
Davidson, J.C.D, and K.S.D.’s claims are derivative of Kenneth Davidson’s claims. See
Hassanein v. Avianca Airlines, 872 F. Supp. 1183, 1190 (E.D.N.Y. 1995).
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smoke and fumes in the cockpit. Davidson also researched these risks on the
Internet and emailed management with his concerns.
      Shortly after take-off on the relevant flight, the plaintiffs could smell the
fumes and see the smoke, but they continued their mission. By the time they
reached an altitude of 28,000 feet, the smoke and fumes from the oil leakage
were sufficiently severe that both plaintiffs experienced burning eyes,
coughing, and difficulty breathing.         They put on oxygen masks, began
descending, depressurized the cabin upon reaching a lower altitude, and
landed shortly thereafter. From take-off to landing, their flight was between
60 and 90 minutes. An inspection of the airplane after this flight revealed that
oil was leaking from the oil bearings in the ACM and then escaping into the
aircraft’s cabin, creating smoke and fumes in the cockpit.
      The ACM in the Twin Commander 690A was made by Fairchild Controls
Corporation.   Although Fairchild had ceased manufacturing ACMs in the
1980s, it had retrofitted the ACM in the Twin Commander 690A in 2007. The
ACM, a part of the aircraft’s environmental control system, uses hot air
produced by the aircraft’s engines and recycles the air into the cabin after a
cooling and pressurization process. This process was approved and certified
by the Federal Aviation Administration (“FAA”) to be used in the Twin
Commander 690A.
      On May 30, 2014, the plaintiffs filed suit in the United States District
Court for the Southern District of New York based on diversity jurisdiction.
The initial complaint was filed against many defendants, including Fairchild.
By March 2015, all of the defendants were dismissed from the case except
Fairchild. The New York district court held that it lacked personal jurisdiction
over Fairchild and transferred the case to the United States District Court for
the Southern District of Texas instead of dismissing the action. In September

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2016, the Texas district court granted Fairchild’s motion for summary
judgment.
         The district court rejected the design-defect claim because the plaintiffs
failed to prove than an alternative design was technologically and economically
feasible. The district court found no merit to the failure-to-warn claim because
the plaintiffs were knowledgeable users, which barred their recovery on a
failure-to-warn theory. The plaintiffs timely appealed. It is uncontested that
New York law applies to the resolution of the issues presented on appeal.


                                   DISCUSSION
         The standard of review on summary judgment is de novo. United States
v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001).          The court should grant
summary judgment when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED R. CIV. P.
56(a).


 I.      The design-defect claim
         To succeed on a design-defect claim, a plaintiff must provide expert
testimony that a feasible, alternative design would have prevented the injury.
See Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 208 (N.Y. 1983). There
are two methods for satisfying this requirement: (1) the plaintiff’s expert can
show through testing and construction of a prototype that an alternative
design is technologically and economically feasible; or (2) the plaintiff’s expert
can identify an alternative design that is already available and being used.
Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 80 (2d Cir. 2006).
         We agree with another court that expert testimony provided by the
plaintiff in a complex design case must be competent and non-conclusory.

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Guarascio v. Drake Assocs. Inc., 582 F. Supp. 2d 459, 463 (S.D.N.Y. 2008).
Further, the designs offered as alternatives by the plaintiff’s expert must be
more than theoretically or hypothetically possible. See Adams v. Genie Indus.,
Inc., 929 N.E.2d 380, 385 (N.Y. 2010). As one court stated, “the history of
engineering and science is filled with finely conceived ideas that are
unworkable in practice.” Stanczyk v. Black & Decker Inc., 836 F. Supp. 565,
567 (N.D. Ill. 1993). We also agree with another court that if the plaintiff fails
to present evidence from which a reasonable jury could infer that an
alternative design is technologically feasible and commercially practicable,
then the district court should grant summary judgment to the defendant on a
design-defect claim. Guarascio, 582 F. Supp. 2d at 463.
      The parties agree that the district court used the correct legal standard
but disagree about its application. The plaintiffs argue that their expert, Don
Hansen, provided the necessary expert testimony on alternative designs to
avoid summary judgment. Throughout the litigation proceedings, however,
the plaintiffs have changed the evidence they rely on to support their
alternative-design theory.     In their opening summary judgment brief, the
plaintiffs argued that Hansen’s testimony supported that the ACM could have
been designed with oil-less bearings, common in the industry, which would
have prevented the oil-leakage and subsequent exposure to the smoke and
fumes.   Later, in a motion for reconsideration of the adverse summary
judgment decision, the plaintiffs argued that a viable alternative design
existed based on a 1997 article on “foil air/gas bearing technology” cited by
Hansen. On appeal, the plaintiffs argue that the foil air theory from the 1997
“article provides examples of the prevalence and economic feasibility of oil-less
bearing technology” because at least six companies have used this technology
in air cycle machines.

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      In response, Fairchild argues that the initial theories for alternative
designs identified by Hansen were conclusory and hypothetical designs
without proof of actual feasibility. Fairchild argues that the air bearing design
mentioned in the 1997 article should be disregarded for two reasons: (1) the
plaintiffs waived the argument by not raising it until their motion for
reconsideration; and (2) on the merits, the 1997 article and Hansen’s testimony
fail to show that using air foil technology was technically or economically
feasible in the Twin Commander 690A or an airplane similar to it.
      The plaintiffs’ initial theories were that Fairchild could have used oil-
less bearings, fume sensors, filters, and diverters.       Yet, in his deposition,
Hansen admitted that he had not designed or tested a prototype based on the
alternatives he suggested. He also acknowledged that he was not aware of
anyone else who had designed or tested a prototype using the alternative
design theories he proposed. By not offering any testimony about the use of
such alternatives in the industry, the plaintiffs failed to provide expert
testimony showing that these alternative designs for a safer ACM were
technically or economically feasible.
      Perhaps the best argument raised by the plaintiffs is that the foil-air
bearing theory mentioned in the 1997 article that Hansen cited satisfies the
requirement for adequate expert testimony.          The plaintiffs waived this
argument, however, because they failed to argue or brief it to the district court.
We find a single line in plaintiffs’ opposition to the summary judgment motion
stating that “competitors have developed, tested, obtained FAA approval, and
sold alternative designs which are in flight today.” This statement is written
at such a high level of generality that it cannot be said to preserve the air-foil
bearing theory from the 1997 article. “When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it in the response to

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the motion for summary judgment, that evidence is not properly before the
district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).
      Furthermore, we generally do “not consider an issue or a new argument
raised for the first time in a motion for reconsideration in the district court.”
U.S. Bank Nat. Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 425 (5th Cir.
2014), as revised (Sept. 2, 2014) (citation omitted). In response, the plaintiffs
cite an opinion where we allegedly did consider such a late-made argument, as
we stated that “even if we were to consider the evidentiary material designated
for the first time in the reply brief, we would still affirm summary judgment[.]”
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994).            This argument
misapprehends Forsyth. We will not consider new evidence or arguments
raised for the first time in a motion for reconsideration, and by saying in
addition such an argument had no merit anyway, we did not change the
general rule.
      Accordingly, the plaintiffs waived the air-foil bearing theory. As did the
Forsyth court, we too will add suspenders to the belt we just used. Were we to
consider the merits of the argument from the 1997 article, the plaintiffs still
failed to provide adequate expert testimony. Hansen himself testified that the
technology in the 1997 article would provide a starting point, but he had no
opinion on whether it was “feasible economically and technically to refit the
Environmental Control System of a 690A aircraft with an air bearing ACM[.]”
Further, Hansen testified that he had not evaluated whether the ACM in the
Twin Commander 690A could be altered to use an air bearing. He further
testified that he had not performed any analysis on the economic feasibility of
using an air bearing ACM in the Twin Commander 690A. He did not testify
that he was aware of anyone else who had studied the economic feasibility of
using an air bearing ACM in an airplane similar to the Twin Commander

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690A. The limited expert testimony about the air-foil bearing technology does
not prove that a safer design was feasible.


II.    The failure-to-warn claim
       There are two defenses under New York law to a failure-to-warn claim:
(1) the hazard presented an open and obvious risk; or (2) the plaintiff was a
knowledgeable user. Liriano v. Hobart Corp., 700 N.E.2d 303, 308 (N.Y. 1998).
In those situations, the lack of warning was not a proximate cause of the
plaintiff’s injuries, which precludes a finding of liability. See id.
       The plaintiffs alleged in their complaint that Fairchild was liable for its
“failure to warn complainants of unreasonably dangerous condition[s] of the
subject engine and/or its components.” Yet, as admitted in later depositions,
the plaintiffs had actual knowledge of the specific hazard and potential medical
consequences resulting from the faulty ACM. The following exchange occurred
during plaintiff Farmer’s deposition:
       Q.    Do you know what was causing the fumes on that flight?
       A.    Yeah. It -- I’d been flying that airplane for almost three years
       previous to that, and we constantly complained about the smoke
       and the fumes.
             ....
             Of course, after high temperature and pressure and -- breaks
       down -- that oil back down into organophosphates, tricresyl
       phosphates, which are highly toxic. And that air goes into the air
       cycle machine, which if it’s malfunctioning, further contaminates
       the air with fumes and smoke.
       Plaintiff Davidson testified in his deposition that he had been informed
of prior fume events in the Twin Commander 690A and that he had researched
the problem on the Internet. In an email to his co-workers and submitted as
part of the record, Davidson wrote that “[t]he severity of these fumes was
reported by a pilot on [M]ay 26 and then he refused to fly until resolved.” As

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the district court wrote, “[b]oth were aware of possible harm, Farmer from
personal experience and Davidson from personal research.”
      The parties agree that the knowledgeable user defense applies when the
plaintiff has actual knowledge of the specific hazard causing the injury but
disagree about the degree of knowledge required. See Liriano, 700 N.E.2d at
308. The plaintiffs cite an unpublished federal district court opinion to argue
that “the user must not only know of the particular risk he or she faces, but
must also be aware of the severity of the potential harm.” Ferracane v. United
States, No. 02-CV-1037 SLT, 2007 WL 316570, at *7 (E.D.N.Y. Jan. 30, 2007).
In response, Fairchild cites Liriano, which is the leading New York case on
defenses to failure-to-warn claims, to argue that a warning is not required
when a plaintiff “was fully aware of the hazard through general knowledge,
observation or common sense.” 700 N.E.2d at 308.
      Based on the Liriano standard, New York intermediate appellate courts
have affirmed summary judgments for defendants when plaintiffs were aware
of the specific hazards that might cause injury.          See, e.g., Heimbuch v.
Grumman Corp., 858 N.Y.S.2d 378, 380 (N.Y. App. Div. 2008); Wesp v. Carl
Zeiss Inc., 783 N.Y.S.2d 439, 442 (N.Y. App. Div. 2004). In Wesp, the plaintiff
was injured when she tried to move a 600-pound surgical microscope; the trial
court granted summary judgment to the defendant because the plaintiff had
previously attempted to move the microscope and was aware of the specific
hazard involved.     783 N.Y.S.2d at 442.     In Heimbuch, the plaintiff had
knowingly been using a defective product for six months prior to her injury,
and the trial court granted summary judgment to the defendant on the failure-
to-warn claim because a warning would have been superfluous. 858 N.Y.S.2d
at 380. Both of these decisions were affirmed on appeal. Id. at 381; Wesp, 783
N.Y.S.2d at 442.

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      In a decision prior to Liriano, a New York intermediate appellate court
acknowledged that “[t]he degree of danger is a crucial factor in determining
the specificity required in a warning” but reiterated that “there is no necessity
to warn a consumer already aware through common knowledge or learning of
a specific hazard.” Lancaster Silo & Block Co. v. N. Propane Gas Co., 427
N.Y.S.2d 1009, 1015 (N.Y. App. Div. 1980).
      Without deciding if the plaintiff must have specific knowledge about the
severity of the potential injury, we conclude that the district court correctly
granted summary judgment on the failure-to-warn claim because the
undisputed evidence shows that both plaintiffs were aware of the potential
injuries that could result from flying the Twin Commander 690A. Further, the
plane was taken to a higher altitude even as the plaintiffs experienced
discomfort from the smoke and fumes filling the airplane, with neither plaintiff
saying either urged the other to end the mission. This supports that the
plaintiffs would have flown the mission regardless of whether Fairchild
provided a warning.
      As Farmer testified, he and Davidson were asked to fly the Twin
Commander 690A “to verify th[e] smoke and fumes which they knew the
airplane was making. We really didn’t want to do it, but, you know, it’s your --
when it’s your job . . . . [A]s soon as you get in the plane, you smell the smoke
and fumes, but we went ahead and flew[.]” The plaintiffs were knowledgeable
users, and a warning would have been superfluous.
      AFFIRMED.




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