          NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                     File Name: 05a0421n.06
                       Filed: May 20, 2005

                                 Nos. 03-5017/5018

                    UNITED STATES COURT OF APPEALS
                         FOR THE SIXTH CIRCUIT


JUDY GREENE, Executrix of the Estate of         )
Donald Greene, Deceased,                        )
                                                )
     Plaintiff-Appellee/Cross-Appellant         )
                                                )
WAUSAU INSURANCE COMPANY,                       )
                                                )
     Intervening Plaintiff-Appellee (03-5017)   )
     Intervening Plaintiff (03-5018),           )
                                                )
v.                                              )
                                                )    ON APPEAL FROM THE
B.F. GOODRICH AVIONICS SYSTEMS,                 )    UNITED STATES DISTRICT
INC. d/b/a B.F. Goodrich Aerospace,             )    COURT FOR THE EASTERN
Avionics and Lighting Division, n/k/a           )    DISTRICT OF KENTUCKY
Goodrich Avionics Systems, Inc.,                )
                                                )               OPINION
     Defendant/Third-Party Plaintiff            )
     Appellant/Cross-Appellee                   )
                                                )
UNITED TECHNOLOGIES                             )
CORPORATION                                     )
d/b/a Sikorsky Aircraft,                        )
                                                )
     Defendant                                  )
                                                )
PETROLEUM HELICOPTERS, INC.,                    )
                                                )
     Third-Party Defendant.                     )
2
BEFORE:       COLE and ROGERS, Circuit Judges; COHN, District Judge*

AVERN COHN, District Judge. This is a products liability case arising out of a

helicopter accident. Defendant-Appellant B.F. Goodrich Avionics Systems, Inc.

(Goodrich) appeals the district court’s denial of Goodrich’s motion for summary

judgment of Plaintiff-Appellee Judy Greene’s (Greene) manufacturing defect claim and

the district court’s subsequent denials of Goodrich’s motions for judgment as a matter of

law and motion for judgment notwithstanding the verdict after a jury returned a verdict in

favor of Greene.1 Greene cross-appeals a pre-trial order granting partial summary

judgment to B.F. Goodrich and an evidentiary ruling by the district court. Because we

find that Greene failed to produce sufficient evidence to create an issue of fact for the jury

that there was a manufacturing defect, we REVERSE the judgment of the district court

and REMAND for proceedings consistent with this opinion.




       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
       1
        The parties refer to the motions made under FED. R. CIV. P. 50 as motions for
“judgment as a matter of law” and “judgment notwithstanding the verdict.” In 1991,
however, Rule 50 was amended and the terminology changed to refer to these motions as
a motion for judgment as a matter of law and a renewed motion for judgment as a matter
of law. We hereafter refer to these motions using the current language of Rule 50.

                                              3
                                   I. BACKGROUND

                                A. Factual Background

      On the night of June 14, 1999, a Sikorsky 76-A helicopter, aircraft registration

number N2743E, owned by Petroleum Helicopters, Inc. (PHI) and piloted by decedent

Donald Greene (Greene), crashed into a wooded hillside near Jackson, Kentucky. In

addition to Greene, pilot-in-command Ernest Jones (Jones) and two medical technician

passengers, Sheila Zellers and Brian Harden, died in the accident.

      The helicopter took off from Julian Carroll Airport just after 8:00 p.m. in heavy

fog. Because visibility was approximately one-quarter to one-eighth of a mile, Greene

was forced to rely almost exclusively on the helicopter’s navigational instruments. Less

than two minutes after the aircraft’s liftoff, an exchange between Greene and Jones

recorded on the cockpit voice recorder (CVR) indicated that Jones told Greene that the

helicopter was in a right-hand turn and descending. The exchange between Greene and

Jones continued as follows:

      8:08:05 p.m. Greene:        “Okay I think my gyro just quit.”

      8:08:10 p.m. Greene:        “You have the controls?”

      8:08:11 p.m. Jones:         “You’re in a left hand turn and descending...turn, turn
                                  back and level, level us off.”

      8:08:18 p.m. Jones:         “Right hand turn...right hand turn.”

      8:08:24 p.m.                [Initial sound of impact; CVR ceased operation]




                                            4
                               B. Procedural Background

       Donald Greene’s wife, Judy Greene, brought this suit, claiming that Goodrich

defectively designed or manufactured the vertical gyroscope portion of the helicopter’s

navigation system and that Goodrich was negligent in failing to warn of its defective

product.

       Goodrich filed a motion for summary judgment. The district court granted the

motion in part and denied it in part. The district court summarily dismissed Greene’s

design defect claim because she produced no evidence of a flaw in the design. With

respect to Greene’s manufacturing defect claim, the district court held that Greene did not

produce evidence of fault under a negligence theory, but it held that Greene’s

manufacturing defect claim sounding in strict liability could go to a jury because genuine

issues of material fact remained with respect to causation. The district court also held that

Greene could not maintain a state-law failure to warn claim because federal law regarding

aviation standards preempted any duty imposed by state law.

       At trial on the manufacturing defect claim, the jury found for Greene and awarded

her substantial damages. The jury also awarded damages to Wausau Insurance Co.,

which had been paying Greene workers’ compensation on her husband’s death. Goodrich

now appeals (1) the district court’s denial of Goodrich’s summary judgment motion on

the manufacturing defect claim; (2) the district court’s denial of its motion for judgment

as a matter of law at the end of Greene’s case and at the end of the entire case; and (3) the

district court’s denial of its renewed motion for judgment as a matter of law. Greene

                                              5
cross-appeals, challenging the district court’s grant of summary judgment on her failure to

warn claim and the court’s exclusion of evidence of gyroscope failures that occurred

more than six months prior to the helicopter crash.

                         C. Background on the Product at Issue

       Before proceeding to our analysis, it is first prudent to have an overview of the

product Greene claims Goodrich defectively manufactured: the vertical gyroscopes on

board the helicopter. The helicopter was equipped with two Attitude Display Indicators

(ADIs), one Standby Attitude Indicator, and two Horizontal Situation Indicators (HSIs).

ADIs indicate an aircraft’s position in relation to the earth’s horizon and help a pilot

control the position of the aircraft relative to the earth. Each ADI in the helicopter

displayed pitch, roll, and turn-rate data. The vertical gyroscopes, model number VG-204

A/B, manufactured by Goodrich, provided data to the helicopter’s ADIs (which were not

manufactured by Goodrich). The vertical gyroscopes were housed inside the nose of the

helicopter and were not visible to the pilots during flight. Each ADI received pitch and

roll data independently from its own vertical gyroscope. Each ADI also received turn-

rate data from two other gyroscopes not manufactured by Goodrich. The vertical

gyroscopes in the helicopter did not provide data to any other instrument on the

helicopter. Pilots use HSIs to determine course deviation and magnetic heading

information. The HSIs in the helicopter received information from other gyroscopes.

The Standby Attitude Indicator is a self-contained unit with its own gyroscope.

                                      II. ANALYSIS

                                              6
       Because this case went to trial and resulted in a jury verdict in favor of Greene, we

find it unnecessary to address whether the district court erred in failing to grant summary

judgment in its entirety to Goodrich. Rather, our analysis will begin by addressing

Goodrich’s motion for judgment as a matter of law at the end of Greene’s case.

      A. Whether the District Court Erred in Denying Goodrich’s Motions for
             Judgment as a Matter of Law and Renewed Motion for
                          Judgment as a Matter of Law

       We review a district court’s denial of judgment as a matter of law de novo. Moore

v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir. 1999). In cases like

this one invoking diversity of citizenship jurisdiction, the Court applies the state law’s

substantive standard for determining when judgment as a matter of law is appropriate.

Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998); Darwish v.

Tempglass Group, Inc., 26 Fed. Appx. 477, 482 (6th Cir. 2002). Under Kentucky law,

judgment as a matter of law should be granted only when “there is a complete absence of

proof on a material issue in the action, or if no disputed issue of fact exists upon which

reasonable minds could differ.” Washington v. Goodman, 830 S.W.2d 398, 400 (Ky.

App. 1992). “[E]very favorable inference which may reasonably be drawn from the

evidence should be accorded the party against whom the motion is made.” Baylis v.

Lourdes Hosp., Inc., 805 S.W.2d 122, 125 (Ky. 1991).

                             1. Judgment as a Matter of Law

       Goodrich says that the district court erred by not granting its motion for judgment

as a matter of law against Greene both at the close of Greene’s case and again at the close

                                              7
of trial. As discussed below, we find that the district court erred by not granting

Goodrich’s motion for judgment as a matter of law at the close of Greene’s case.

                        a. Manufacturing Defect Legal Standard

       Under Kentucky law, a manufacturing defect exists in a product when it leaves the

hands of the manufacturer in a defective condition because it was not manufactured or

assembled in accordance with its specifications. See Ford Motor Co. v. McCamish, 559

S.W.2d 507, 509-11 (Ky. App. 1977). A manufacturing defect claim requires the jury to

determine whether the product failed because of an error in the process of manufacture or

assembly. Id. With respect to Greene’s strict liability theory, Kentucky has adopted

RESTATEMENT (SECOND) OF TORTS § 402A. See Dealers Transp. Co. v. Battery Distrib.

Co., 402 S.W.2d 441, 446-47 (Ky. 1965). Under § 402A, the defendant is held strictly

liable if the plaintiff proves the product was “in a defective condition unreasonably

dangerous to the user or consumer.” Montgomery Elevator Co. v. McCullough by

McCullough, 676 S.W.2d 776, 780 (Ky. 1984). Proceeding under a strict liability theory

does not require the plaintiff to prove fault on the part of defendant. The plaintiff must,

however, establish causation under the “substantial factor” test. King v. Ford Motor Co.,

209 F.3d 886, 893 (6th Cir. 2000). “[P]laintiff must prove that the defendant’s conduct

was a substantial factor in bringing about plaintiff’s harm.” Id. Nothing precludes a

plaintiff from using circumstantial evidence to prove a products liability case so long as

the evidence is “sufficient to tilt the balance from possibility to probability.” Id. The

Restatement (Second) of Torts provides that “unreasonably dangerous” means a product

                                              8
that is “dangerous to an extent beyond that which would be contemplated by the ordinary

consumer who purchases it, with the ordinary knowledge common to the community as to

its characteristics.” RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965).

“Defective” means “that the product does not meet the reasonable expectations of the

ordinary consumer as to its safety.” Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 55

(Ky. App. 1999).

                                b. The Evidence at Trial

       The vertical gyroscopes were destroyed in the crash; accordingly, there was no

direct evidence of vertical gyroscope failure. Greene instead relied on four major pieces

of evidence in an attempt to circumstantially prove a manufacturing defect in the pilot’s

vertical gyroscope:2

       First, Greene relied on her husband’s statement seconds before the crash that he

thought his “gyro just quit.”

       Second, Greene proffered evidence that in the six-month period preceding the

crash, there had been forty vertical gyroscope replacements on fifteen of the twenty-four

Sikorsky 76-A helicopters owned and operated by PHI. There also had been eleven ADI

replacements on seven PHI helicopters during that same time period. The helicopter that

crashed had three vertical gyroscopes and two ADIs replaced during the six months



       2
         Although there is no distinction in the record between the vertical gyroscopes in
the helicopter, it is clear that Greene’s manufacturing defect claim relates to pilot
Greene’s vertical gyroscope.

                                             9
preceding the crash.

       Third, the National Transportation Safety Board (NTSB) retrieved from the crash

site a faceplate of one of the helicopter’s ADIs. The NTSB determined from the faceplate

that, at the time of impact, the ADI indicated that the helicopter was “pointing to a

position between level flight and a 2-degree right roll. . . .”3 The NTSB’s on-site

investigation of the ground damage, including the pattern of treetop leveling and pilot-in-

command Jones’s last words, both indicated that, at impact, the helicopter was actually

“in a left hand turn and descending.” As the district court stated, “[t]o oversimplify, the

Cockpit Voice Recorder tape and the crash kinematics did not match the reading of the

recovered ADI.”

       Fourth, Greene’s helicopter expert, Douglas Herlihy (Herlihy), testified that it was

more likely that a vertical gyroscope failure, rather than a failure of other instruments,

was the cause of the crash. Herlihy testified that a wiring failure between a vertical

gyroscope and its ADI was not as typical as a gyroscope failure itself.4 He also testified

that it was his opinion that “the accident was a result of instrument confusion in the



       3
        It is unclear from examining the record exactly how the faceplate shows the
ADI’s reading on impact.
       4
          Goodrich says that the district court erred when it admitted Herlihy’s expert
testimony because the district court concluded that Herlihy was not qualified as a
gyroscope expert. The record indicates, however, that during a Daubert hearing, the
district court concluded that Herlihy was competent to testify as an accident investigator
and to give his opinion regarding why the vertical gyroscope caused the crash. We find
that the district court did not err in admitting Herlihy’s testimony.

                                             10
cockpit created by the loss of vertical gyro input to the flying pilot’s A.D.I. or gyro

horizon.”

                     c. Goodrich’s Challenge to Greene’s Statement

       As an initial matter, Goodrich maintained on brief and during oral argument that

Greene’s statement as recorded on the CVR, “Okay I think my gyro just quit,” was

inadmissible hearsay. Goodrich says that the vertical gyroscopes feeding the helicopter’s

ADIs were located in the nose of the helicopter. Thus, Goodrich argues, it would be

impossible for Greene to see a vertical gyroscope or to know that it quit; rather, he only

would be able to see the ADIs inside the cockpit that reflected data supplied by the

gyroscopes. Additionally, Goodrich argues that there were at least six gyroscopes on the

helicopter and that it did not manufacture all of them, so admitting Greene’s statement

requires speculation as to which gyroscope Greene may have been referring.

       At the time the district court admitted Greene’s statement, it did not clearly

articulate the hearsay exception on which it was relying. The district court did, however,

address this issue with specificity when it denied Goodrich’s motions for judgment as a

matter of law. The district court at that time found that the statement was admissible

under two exceptions to the hearsay rule: (1) present sense impression and (2) excited

utterance.

       We review whether the district court’s determination was an abuse of discretion.

Mitroff v. Xomox Corp., 797 F.2d 271, 275 (6th Cir. 1986). Under the Federal Rules of

Evidence, hearsay is defined as a “statement, other than one made by the declarant while

                                             11
testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” FED. R. EVID. 801(c). Under FED. R. EVID. 803(1), the hearsay rule does not

exclude “[a] statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter.” The excited

utterance exception to the hearsay rule under FED. R. EVID. 803(2) requires “[f]irst, there

must be an event startling enough to cause nervous excitement. Second, the statement

must be made before there is time to contrive or misrepresent. And, third, the statement

must be made while the person is under the stress of the excitement caused by the event.”

Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th. Cir. 1983).

       As an initial note, it is unclear from the record if Greene’s out-of-court statement

was even offered at trial to prove the truth of the matter asserted – the definition of

hearsay. Even if it was, however, the district court did not err in admitting Greene’s

statement as either a present sense impression or as an exited utterance. With respect to a

present sense impression, certainly Greene could not personally observe the vertical

gyroscopes in the nose of the helicopter as Goodrich argues. However, it is undisputed

that Greene could see the ADIs in the cockpit that reflected data supplied by the vertical

gyroscopes in the nose of the helicopter. Although Goodrich argues that it is unclear if

Greene was referring to his ADI in his statement or another ADI in the cockpit, the fact

that he said “I think my gyro just quit” (emphasis added) appears to indicate that he was

referring to his ADI. Indeed, Herlihy, Greene’s expert, testified that it would make no

difference to an experienced pilot like Greene that the gyroscope is in the nose of the

                                              12
helicopter. Herlihy testified that if a pilot like Greene said “my gyro just quit,” he knows

that the information displayed on the ADI is coming from the nose of the helicopter. To

suggest that a pilot who is experiencing problems with an ADI display must physically

view the gyroscope to reliably detect a malfunction is untenable.

       The district court also did not err in concluding that Greene’s statement was an

excited utterance. Certainly Greene made the statement while under stress of the event

that nineteen seconds later resulted in his death. To the extent that Goodrich argues again

that Greene could not physically see the gyroscope that allegedly quit, the Advisory

Committee Notes to FED. R. EVID. 803 provide that, with respect to a declarant’s

perception of an event, “the statement need only ‘relate’ to the startling event or

condition, thus affording a broader scope of subject matter coverage.” Overall, the

district court did not abuse its discretion in admitting Greene’s statement.

  d. Whether Greene’s Evidence Was Sufficient to Prove a Manufacturing Defect

       At the heart of Goodrich’s argument is its position that Greene failed to meet her

burden of proof because she failed to establish an issue of fact for the jury that there was a

manufacturing defect in the pilot’s vertical gyroscope, i.e., Goodrich says that Greene’s

evidence failed to “tilt the balance from possibility to probability” and thus show that

there was a manufacturing defect in the pilot’s vertical gyroscope. See King, 209 F.3d at

893. After a review of the record and an examination of Greene’s proofs at trial, we

agree with Goodrich that the evidence Greene proffered failed to show that there was a

manufacturing defect in a vertical gyroscope.

                                             13
       Perhaps what is most problematic to us is Greene’s heavy reliance on data

indicating the number of vertical gyroscopes and ADIs that had been removed and/or

repaired in PHI-owned helicopters in the six months preceding the helicopter accident.

The parties presented us with differing interpretations of this data. The NTSB report

states that

       [a]ccording to company records, in the 6 months that preceded the accident,
       fleetwide, there had been a total of 40 vertical gyro replacements on 15
       helicopters, and a total of 11 attitude indicator replacements on 7 helicopters. On
       N2743E[, the helicopter piloted by Greene and Jones], in the preceding 6 months,
       there were two attitude indicators, and three vertical gyros replaced. According to
       company records, fleetwide, in the preceding 6 months, the maximum number of
       attitude indicators replaced on a helicopter was three, and maximum number of
       vertical gyros replaced was six.

Greene introduced Exhibit No. 21 at trial, titled “S-76 Vertical Gyro Removals” and “S-

76 Attitude Director Indicator Removals,” which purports to summarize the vertical

gyroscopes and ADIs from PHI’s helicopter fleet that were removed, replaced, and/or

sent to a repair facility between December 15, 1998 through June 14, 1999. Our review

of the data contained in this exhibit does not seem to correlate with the figures recited

above from the NTSB report. Our review of Exhibit No. 21 suggests that PHI removed

32 vertical gyroscopes and 12 ADIs from some of its helicopters in the relevant six-month

period. Regardless of the sum total of vertical gyroscopes and ADIs that were removed,

replaced, or repaired during the six months preceding the accident, however, it troubles us

that Greene argues that the data from this exhibit suggest a “large number” of vertical

gyroscope failures. The vertical gyroscopes and ADIs for which there were repair orders


                                             14
were not sent solely to Goodrich; rather, PHI sent them to various facilities, including

Goodrich; Masco; Helicopter Support, Inc.; Bell Helicopter Textron; and Honeywell,

Inc.5

        The evidence in Exhibit No. 21 does not suggest that there was a manufacturing

defect in a vertical gyroscope. Indeed, including ADIs within the list of removals,

replacements, and repairs does nothing to support Greene’s claim that there was a

manufacturing defect in a vertical gyroscope. The evidence in the exhibit could equally

suggest that there was a problem with an ADI. Indeed, counsel for Goodrich at oral

argument told us that nothing in Greene’s proofs ruled out the possibility that an ADI

malfunctioned. More significant, however, is the fact that Greene proffered no evidence

that the reason for the removal or repairs of the vertical gyroscopes was unusual.

Likewise, she proffered no evidence that the rate of replacement of vertical gyroscopes in

the PHI fleet differed from the replacement rate of vertical gyroscopes made by other

manufacturers.

        Because of our uncertainty after studying the record, we expressed concern to

counsel at oral argument about the use of Greene’s data regarding vertical gyroscope and

ADI removals, replacements, and repairs. We directly asked counsel for both Goodrich

and Greene to direct us to the place in the record that would inform us as to the expected



        5
         It is unclear if Exhibit No. 21 shows that all vertical gyroscopes that PHI
removed were manufactured by Goodrich because the gyroscopes were sent to various
repair facilities.

                                             15
useful life of a vertical gyroscope. Both counsel, however, informed us that the record is

devoid of such information.6 This strikes us as a conspicuous omission, given the fact

that without such a benchmark it is impossible to determine whether the vertical

gyroscopes removed, replaced, or repaired in the PHI fleet occurred at a statistically

significant rate compared with the average life expectancy of a vertical gyroscope. As

counsel for Goodrich correctly noted during oral argument, the failure to adduce such

evidence is correctly attributable to Greene – the party with the burden to prove a

manufacturing defect. Simply put, Greene’s statistics regarding the removal,

replacement, and repairs of vertical gyroscopes and ADIs in the PHI fleet are meaningless

and are not, without more, probative of a manufacturing defect.7

       Greene’s evidence also consisted of Exhibit No. 6, comprising 211 pages of work

orders and inspection reports from Goodrich’s repair station in Austin, Texas. This

exhibit documented work orders Goodrich received from PHI for model VG-204 A/B

vertical gyroscopes along with details of the work Goodrich actually performed on each



       6
         The parties had an opportunity post-argument to respond to our concerns about
the lack of this information, but we received no response.
       7
         This case presents an important example of how the value of oral argument
cannot be understated. Oral argument allowed us to further delve into issues of concern
that were not adequately addressed by the parties in their briefs. “The intangible value of
oral argument is, to my mind, considerable. . . . [O]ral argument offers an opportunity for
a direct interchange of ideas between court and counsel. . . . Counsel can play a
significant role in responding to the concerns of the judges, concerns that counsel won’t
always be able to anticipate in preparing the briefs.” William H. Rehnquist, Oral
Advocacy: A Disappearing Art, 35 MERCER L. REV. 1015, 1021 (1984).

                                            16
vertical gyroscope submitted to the repair station for evaluation. The documents in

Exhibit No. 6 detail work orders from PHI to Goodrich for the period November 1994

through April 1999. Two of the work orders and inspection reports within six months of

the accident show that PHI sent two model VG-204 A/B vertical gyroscopes from the

helicopter Greene was piloting, registration number N2743E, to Goodrich’s Texas

facility. The first work order, number FK956, was received by Goodrich on January 25,

1999. The reason listed on the work order for the vertical gyroscope being removed was

“#2 pitch kicks in flight.” The final inspection report by Goodrich on January 29, 1999,

lists as the reason for failure “carbon build-up on slip rings and brushes due to electrical

contact.” The inspection report states that Goodrich repaired the vertical gyroscope and

that it met manufacturer specifications when it was returned to PHI on January 29, 1999.

The second work order, number FT858, was received by Goodrich on April 13, 1999.

The reason listed on the work order for the vertical gyroscope being removed was, again,

“#2 pitch kicks in flight.” The final inspection report by Goodrich on April 16, 1999,

states “couldn’t verify customer complaint, unit performs normally.” Before the vertical

gyroscope was returned to PHI on April 16, 1999, the work performed on the unit was

listed on the final inspection report as “open checked unit, cleaned all slip ring and

brushes as a precaution, calibrated, tested and inspected to current mfg spec. . . .” This

exhibit likewise is not probative of a manufacturing defect because it does nothing to

suggest that any model VG-204 A/B vertical gyroscope listed in the series of work orders

was defective at the time it left Goodrich’s manufacturing plant.

                                             17
       Another piece of evidence further supports our conclusion that Greene failed to

prove that there was a manufacturing defect in a vertical gyroscope. Herlihy testified at

trial that it was his opinion that “the accident was a result of instrument confusion in the

cockpit created by the loss of vertical gyro input to the flying pilot’s A.D.I. or gyro

horizon.” PHI lead pilot Thomas Methvin, however, testified that even if one ADI failed

or was receiving incorrect information, Greene and/or pilot-in-command Jones should

have relied upon the other ADIs in the cockpit to safely fly or land the aircraft.

Additional testimony by Herlihy provided that the accident “had a number of factors that

caused it.” Herlihy testified that “the factors include two primary causes,” including the

weather and Herlihy’s opinion that “the helicopter experienced an instrument failure.”

       Given the evidence that it would be possible for a pilot to navigate the helicopter if

an ADI failed; that multiple events could have caused the helicopter accident; and that

replacements of vertical gyroscopes on PHI’s helicopters, including the one piloted by

Greene and Jones, six months prior to the crash do not, standing alone, indicate a

gyroscope defect, Greene’s proofs were simply insufficient to show that there was a

manufacturing defect in a vertical gyroscope. Indeed, at no time did any witness identify

a defect in manufacture of model VG-204 A/B vertical gyroscopes.

                                       e. Conclusion

       Viewing the totality of the evidence at the conclusion of Greene’s proofs leads us

to conclude that the evidence amounted to “featureless generality.” See OLIVER WENDELL

HOLMES, JR., THE COMMON LAW 89 (Mark DeWolfe Howe ed., Little, Brown 1963)

                                             18
(1881). In the absence of evidence that one possible explanation was more probable than

another, the jury was required to speculate as to whether there was a defect. It is well

established that a jury verdict based on speculation, supposition, or surmise is

impermissible:

       Although the jury may draw reasonable inferences from the evidence of a defect in
       manufacturing, it is incumbent on the plaintiff to introduce evidence that will
       support a reasonable inference that the defect was the “probable” cause of the
       accident as distinguished from a “possible” cause among other possibilities;
       otherwise, the jury verdict is based upon speculation or surmise.

Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745, 747 (Ky. 1973). Our view of the

evidence indicates that, at best, Greene only showed at trial that it was possible there was

a manufacturing defect in a vertical gyroscope. She simply failed to satisfy her burden

that there was such a defect.

       Because we conclude that the district court erred in failing to grant Goodrich’s

motion for judgment as a matter of law at the conclusion of Greene’s case, Goodrich’s

challenge to the district court’s denial of Goodrich’s motion for judgment as a matter of

law at the close of trial and the district court’s denial of Goodrich’s renewed motion for

judgment as a matter of law is moot.

 B. Whether the District Court Erred in Granting Summary Judgment to Goodrich
                        on Greene’s Failure to Warn Claim

       Greene argues in her cross-appeal that the district court erred when it granted

summary judgment to Goodrich on Greene’s failure to warn claims.

       Greene argued that Goodrich breached its duty to warn users of aircraft that


                                             19
contained a vertical gyroscope about the gyroscope’s manufacturing defects. Greene

relied on Herlihy’s opinion that Goodrich “had no central database structure . . . to track

malfunctions, to register employee concerns of gyro system weaknesses, or to

communicate horizontally between Grand Rapids manufacturing, quality assurance and

its field repair facilities.” Greene did not allege any violations of federal law with respect

to the failure to warn claim. She also did not cite any authority regarding standards that

encourage or require a company like Goodrich to maintain such a database.

       In granting Goodrich’s motion for summary judgment with respect to the failure to

warn claim, the district court held that federal law preempts any state-law imposed duties

in the realm of aviation. The district court found it significant that Federal Aviation

Administration (FAA) guidelines do not propose or mandate a database like Herlihy

suggested Goodrich should maintain. In reaching its conclusion, the district court relied

on Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999). In Abdullah, the Court of

Appeals for the Third Circuit joined other circuits in recognizing that Congress intended

aviation safety to be exclusively federal in nature. Id. at 371. The Supreme Court has

stated that preemption may be inferred where “the pervasiveness of the federal regulation

precludes supplementation by the States, where the federal interest in the field is

sufficiently dominant, or where the object sought to be obtained by the federal law and

the character of obligations imposed by it reveal the same purpose.” Schneidewind v.

ANR Pipeline Co., 485 U.S. 293, 300 (1988) (internal quotations omitted). The Abdullah

court noted that “[t]he federal courts that adjudicated the first major cases involving the

                                             20
[Federal Aviation Act] interpreted its legislative history as evincing Congress’s intent to

exercise supremacy over the field of aviation safety.” Abdullah, 181 F.3d at 369. The

legislative history of the Federal Aviation Act notes that:

       [The purpose of the Federal Aviation Act was to give] [t]he Administrator of the
       new Federal Aviation Agency full responsibility and authority for the advancement
       and promulgation of civil aeronautics generally, including promulgation and
       enforcement of safety regulations.

H.R. Rep. No. 2360, reprinted in 1958 U.S.C.C.A.N. 3741. The House Report also noted

that “[i]t is essential that one agency of government, and one agency alone, be responsible

for issuing safety regulations if we are to have timely and effective guidelines for safety

in aviation.” Id. at 3761. After analyzing this legislative history, the Abdullah court

concluded:

       It follows from the evident intent of Congress that there be federal supervision of
       air safety and from the decisions in which courts have found federal preemption of
       discrete, safety-related matters, that federal law preempts the general field of
       aviation safety.

Abdullah, 181 F.3d at 371. We agree with the Third Circuit’s reasoning in Abdullah that

federal law establishes the standards of care in the field of aviation safety and thus

preempts the field from state regulation. The district court did not err in concluding that

federal law preempted Greene’s state-law failure to warn claim.

      C. Whether the District Court Erred in Excluding Evidence of Gyroscope
           Repairs and Replacements Beyond a Six-Month Timeframe

       Greene also argues in her cross-appeal that the district court erred by excluding

evidence of gyroscope repairs and replacements that occurred on PHI’s helicopters more


                                             21
than six months prior to the crash. When examining a challenge to the exclusion of

evidence, we will not reverse the district court’s decision “unless necessary to do

‘substantial justice.’” Martin v. Heideman, 106 F.3d 1308, 1311 (6th Cir. 1997).

       Greene does not adequately explain how evidence of gyroscope repairs and

replacements beyond a six-month time period before the crash would help her case.

Indeed, it appears as though such evidence is cumulative of the evidence she proffered

that indicated that there had been several replacements of vertical gyroscopes on PHI’s

helicopters. The district court correctly limited this type of evidence to a time period of

six months prior to the crash so as to prevent the introduction of unnecessary and

cumulative data for the jury’s consideration. Greene has failed to demonstrate how

reversing the district court’s evidentiary decision is necessary to do substantial justice.

                                     III. CONCLUSION

       An appellate court does not set aside a jury verdict with ease. Indeed, we

previously have recognized that a reviewing court should not lightly overturn a jury

verdict. See, e.g., Pratt v. Nat’l Distillers & Chem. Corp., 853 F.2d 1329, 1337 (6th Cir.

1988). Not all questions, however, can be put to a jury, and after a review of the record in

this case we conclude that we have an obligation to REVERSE the decision of the

district court and REMAND this case with instructions to enter judgment in favor of

Goodrich and to dismiss this case.




                                              22
R. GUY COLE, JR., concurring in part and dissenting in part.

       Regarding all but one of the claims presented in this appeal, I concur in the judgment of

the Court. However, I write separately to clarify my concerns with Greene’s manufacturing

defect claim and to respectfully dissent from the majority’s opinion regarding Greene’s failure to

warn claim.

                                                 I.

       A product failure cannot always be equated to a product defect, and this, as I see it, is the

fatal flaw in Greene’s argument. First, to prevail on a manufacturing defect claim under a strict

liability theory, the plaintiff must show that a manufacturing error, resulting in an unreasonably

dangerous condition, was the substantial cause of the plaintiff’s injury. Worldwide Equip., Inc.

v. Mullins, 11 S.W.3d 50, 55-58 (Ky. App. 1999). As the majority notes, Greene presented four

items of evidence in support of her claim that a vertical gyroscope failure was the probable cause

of the crash: (1) Mr. Greene’s statement immediately prior to the crash that his “gyro just quit”;

(2) evidence that in the six-month period before the crash, several gyroscopes in PHI’s

helicopters, including in the one piloted by Mr. Greene, were replaced; (3) evidence that the

crash kinematics did not match what the helicopter’s instruments were reading at the time of the

crash; and (4) Herlihy’s testimony that, in his opinion, the vertical gyroscope failed on the night

of the accident because, based on the remains of the ADI face plate and light panels from the

crash, a vertical gyroscope failure was more likely than a wiring failure between the gyroscope

and its ADI, or a failure of the ADI. With the exception of the second item of evidence, I find

that the sum of Greene’s circumstantial evidence was sufficient to support the jury’s conclusion

that the vertical gyroscope failed.


                                                23
       However, Greene presented no evidence showing that this failure was the result of a

manufacturing defect. Because the gyroscope was destroyed in the crash, Greene could not

examine it for a manufacturing defect. Her argument has essentially been: the gyroscope failed

and therefore there must have been a manufacturing defect. This type of res ipsa loquitur

reasoning has been embraced by Kentucky courts in manufacturing defect cases. See Embs v.

Pepsi-Cola Bottling Co. of Lexington, Kentucky, Inc., 528 S.W.2d 703, 706 (Ky. App. 1975)

(reversing a dismissal where the plaintiff was injured by an exploding beverage bottle, the debris

of which was unrecoverable, because bottles do not ordinarily explode in the course of normal

handling); c.f. Perkins v. Trailco Mfg. and Sales Co., 613 S.W.2d 855, 858 (Ky. 1981) (reversing

a dismissal and noting that circumstantial evidence was enough to prove a defect where a new

tractor trailer collapsed while it was being properly used). Nevertheless, to be entitled to this res

ipsa loquitur-type inference, the plaintiff has the burden of showing that the product

malfunctioned in a way unlikely to occur if the product had been properly made, and that no

outside forces caused the malfunction. See Prosser, Wade & Schwartz, Torts, 767 (9th ed.

1994); Dan B. Dobbs, The Law of Torts, 1003 (2001). Unfortunately for Greene, she did not

show that it was out of the ordinary for a gyroscope to fail. Goodrich presented evidence that

vertical gyroscopes are not replaced on any set time table. Rather, gyroscopes are replaced “on

condition,” meaning that they are replaced once they show a discrepancy or failure. These

discrepancies or failures occur during flight, and usually, pilots compensate by relying on the

other gyroscopes in the helicopter. The uncontroverted evidence showed that failures occur and

that pilots are trained never to rely solely on one gyroscope for this reason. Given this, Greene

has not proven that a gyroscope failure is an unexpected event such that a res ipsa loquitur


                                                 24
inference would be warranted. Accordingly, there was no evidence that the gyroscope failure

was a “manufacturing defect,” and the jury’s outcome to the contrary must be set aside.

       Although the majority goes further to say that the gyroscope failure may not have caused

the crash, I am not convinced that a gyroscope failure, while usually a manageable event, did not

prove fatal in the unique circumstances of this crash. It may be that gyroscopes in certain

circumstances are unavoidably unsafe products, see RESTATEMENT (SECOND) OF TORTS § 402A,

Comment K, however, all the evidence presented indicates that users are aware of their unsafe

attributes. Without showing a probability that Mr. Greene’s gyroscope was defective as

compared to other gyroscopes produced by Goodrich, Greene’s claim must fail.8 Therefore, I

respectfully concur in the result reached by the majority as to Goodrich’s motion for judgment as

a matter of law.

                                                II.

       I now turn to Greene’s cross-appeal regarding her failure to warn claim. The majority

opinion affirms the district court’s grant of summary judgment to Goodrich, stating that Greene’s

state law failure to warn claim is preempted by federal law. A federal law may preempt a state

law either expressly or implicitly. Garcia v. Wyeth-Ayerst Labs., 385 F.3d 961, 965 (6th Cir.

2004). When Congress enacted the Federal Aviation Act (“FAA”), it chose several specific


       8
         I recognize the difficulty of proving a manufacturing defect in a situation where
the product is destroyed. This is why the res ipsa loquitur inference could prove
important in many cases. Here, however, there is an additional complication, because
the product, by all accounts, is sometimes expected to fail. If Greene had presented
evidence on the expected rate of failure in gyroscopes, she perhaps might have been
able to show that a user would not have had any expectation that a relatively new
gyroscope would fail, and therefore that a manufacturing defect was the likeliest
possibility. Greene may have an argument that Goodrich has the burden to collect and
provide consumers with information regarding the gyroscope’s failure rate. See infra.

                                                25
areas in which to explicitly prohibit the States from enacting regulations relating to aviation

safety. See 49 U.S.C. § 41713(b)(1) (preempting the States from enacting regulations regarding

the “price, route, or service of an air carrier that may provide air transportation”); 49 U.S.C. §

44703(i)(2) (preempting the States from enacting regulations imposing liability on any person

for “furnishing or using records” of employment); 49 U.S.C. § 44921(f)(2) (preempting the

States from regulating when a flight deck officer may carry a firearm). I can find no

congressional language in the FAA which would expressly preempt Greene’s state law-based

failure to warn claim in this case.

       When Congress fails to use express preemption language, a federal law may still preempt

state law if the federal law thoroughly occupies the legislative field in question. This Court has

previously held that:

       Implied preemption occurs if a scheme of federal regulation is so pervasive as to

       make reasonable the inference that Congress left no room for the States to

       supplement it, if the Act of Congress touches a field in which the federal interest

       is so dominant that the federal system will be assumed to preclude enforcement of

       state laws on the same subject, or if the goals sought to be obtained and the

       obligation imposed reveal a purpose to preclude state authority . . . a court must

       begin with the assumption that a state law is valid and should be reluctant to

       resort to the Supremacy Clause.



Garcia, 385 F.3d at 965.

       Under this implied preemption reasoning, the district court determined that federal law


                                                 26
preempted state law on the issue of aviation safety duties. The district court cited Abdullah v.

American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999) in support of this proposition. As the

majority notes, the Third Circuit in Abdullah did a close study of the legislative history of the

FAA. In Abdullah, passengers who were injured during a flight sued the airline for operating the

aircraft in a manner that resulted in severe turbulence. 181 F.3d at 365. The court stated that:

       To effectuate this broad authority to regulate air safety, the Administrator of the

       FAA has implemented a comprehensive system of rules and regulations, which

       promotes flight safety by regulating pilot certification, pilot pre-flight duties, pilot

       flight responsibilities, and flight rules.

Id. at 369. The court, noting that federal regulations already exist which lay out the appropriate

standard of care that was owed to passengers by pilots and flight crews, concluded that the FAA

preempted any standards of care that the State may impose on flight operators. Id. at 371. To

the extent that we choose to rely on Abdullah as persuasive authority, I believe that the facts of

the instant case are readily distinguishable. Abdullah can truly only be relied on for the limited

proposition that a State’s standard of care for aviation personnel is preempted by the FAA. The

situation before us is not like that in Abdullah, because in this case, there are no federal

regulations which lay out the exact standard of care. Therefore, I would not expand the

proposition in Abdullah to apply to commercial enterprises that manufacture aviation equipment.



       Furthermore, this Court has previously chosen to apply preemption narrowly with regards

to the FAA. In Gustafson v. City of Lake Angelus, 76 F.3d 778, 786 (6th Cir. 1996), we stated

that Congress had preempted local law regarding navigable airspace, noise control, and aircraft


                                                    27
safety, but went on to hold that the FAA did not preempt local regulations/ordinances regarding

ground space to be used for aircraft landing sites. Id. at 789. Thus, our circuit has traditionally

shown a proper amount of restraint and caution before finding State and local laws preempted by

federal law. Under this regime, I cannot assume that the FAA implicitly preempts any State or

common law-imposed duties here. Admittedly, the FAA is involved in overseeing the quality

control of certain aviation equipment; however, neither the appellant nor the majority have

proffered any reason why a State’s more stringent duty of care in the failure to warn context

could not supplement rather than frustrate the FAA. Consequently, I respectfully dissent from

the majority’s conclusion that Greene’s failure to warn claim was properly dismissed.




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