                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-2274
FIRST NATIONAL BANK AND TRUST
CORPORATION, as Special Administrator
for the Estate of Lawrence W. Inlow,
                                            Plaintiff-Appellant,
                               v.

AMERICAN EUROCOPTER CORPORATION
and EUROCOPTER, S.A.,
                                         Defendants-Appellees.

                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
          No. 99 C 830—David F. Hamilton, Judge.
                         ____________
     ARGUED APRIL 14, 2004—DECIDED AUGUST 9, 2004
                     ____________



 Before BAUER, COFFEY, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. Tragically, on May 21, 1997,
Lawrence Inlow was struck in the head by a helicopter rotor
blade as he disembarked from the aircraft owned by his
employer, Conseco, Inc. He died instantly. His estate, rep-
resented by First National Bank and Trust Corporation,
claimed that the helicopter was a defective product under
Indiana law because its manufacturer, Eurocopter, S.A.,
2                                                No. 02-2274

had negligently failed to warn Inlow or Conseco of the
relevant danger. Because we agree with the district court
that Indiana’s sophisticated intermediary doctrine compels
a grant of summary judgment to Eurocopter, we affirm.


                        I. History
  Inlow served as general counsel for Conseco. The corpora-
tion is based in Carmel, Indiana, and owns numerous in-
surance and financial services companies. Although Inlow
worked out of Conseco’s Carmel headquarters, his duties
took him around the country. On the morning of May 21,
1997, he and another attorney, Michael Colliflower, had a
planned business trip. They intended to fly out of nearby
Indianapolis International Airport to North Dakota via one
of Conseco’s private jets. Inlow and Colliflower left the
company’s headquarters aboard the helicopter. Upon arrival
at the airport, Inlow was killed by the rotor blade as he
made his way from the helicopter toward the private jet.


A. The Dauphin Helicopter
  The helicopter involved in this case was a Dauphin AS-
365-N2. It was manufactured by Eurocopter, a French corp-
oration, and marketed in the U.S. by its subsidiary, American
Eurocopter Corp. (collectively “Eurocopter”). Conseco pur-
chased the Dauphin helicopter in 1992.
  To better understand the specific circumstances of this
accident, it is necessary to know a few basic facts about hel-
icopters and, in particular, the Dauphin. As the district
court performed this task concisely and without dispute by
the parties, we will quote the helpful discussion:
    The lift that allows a helicopter to stay in the air is
    generated by the high-speed flow of air over the main
    rotor blades, which have a cross-section of an airfoil,
No. 02-2274                                                  3

    like the wings of a fixed-wing aircraft. For the Dauphin
    helicopter involved in the Inlow accident, the four main
    rotor blades have an overall diameter of 38 feet, 2
    inches. Thus, at a typical flying speed of 350 [revo-
    lutions per minute (r.p.m.s)], the blade tips travel about
    700 feet per second, or about 477 miles per hour. The
    rotor blades are made of a strong, lightweight carbon
    fiber material. They can and do bend up and down as
    they rotate.
    When a helicopter runs its rotor blades at normal flight
    speeds, the blades are subject to centrifugal and lifting
    forces that raise the plane of the disk in which the
    blades rotate. When the Dauphin helicopter involved in
    this accident is parked and its blades are not moving,
    the blades droop to about 8 feet, 2 inches above level
    ground in front of the helicopter. (The blades are closest
    to the ground in front of the nose). The cyclic control on
    a helicopter controls the angle of the plane in which the
    rotor blades rotate. When the blades are under power
    and the cyclic control is in the neutral position, the
    blades may rise as high as 9 feet, 4 inches above level
    ground in front of the helicopter.
Dist. Ct. Op. at 8-9 (citations omitted).
   The height of the rotor blades at rest (8'2" at the lowest
point, which is directly in front of the helicopter) and during
flight speed (up to 9'4") are marketed to Eurocopter’s
customers—business executives, medical personnel, law
enforcement, and offshore oil platform operators—as a
safety feature and a convenience.
  However, there are two ways in which the safety of the
Dauphin’s high-set rotor is counteracted. First is the cyclic
control factor, where the pilot tilts the rotor in order to
move the helicopter in the direction of the tilt. As noted in
the excerpt from the district court, “[w]hen the blades are
under power and the cyclic control is in the neutral position,
4                                                 No. 02-2274

the blades may rise as high as 9 feet, 4 inches above level
ground in front of the helicopter.” But, as testing done by
Eurocopter in 1984 demonstrates, the height of the rotating
blades at full power can decrease dramatically when the
cyclic control is engaged. With normal use of the cyclic
control at 5.2 degrees forward, the rotor blade clearance is
7 feet, 8 inches. But when the cyclic control is pushed
beyond the normal operating limit to its absolute maximum
forward position of 13 degrees, the rotor blade can reach as
low as 5 feet, 2 inches. The record contains information
about an accident in which an offshore oil worker was
fatally struck in the head by a Dauphin blade as he ap-
proached the helicopter from the front. At the time, the
helicopter was operating under full rotor r.p.m.s and the
cyclic control was pushed forward.1
  The second safety concern is known as “blade flap.”
Information about this dangerous phenomenon is set forth
and widely available in Federal Aviation Administration
documents, federal regulations adopted in Indiana, heli-
copter industry publications, pilot safety manuals, and pilot
training books. Simply stated, “blade flap” occurs because
the rotor blades are made of a non-rigid, lightweight carbon
fiber material; the blades, therefore, flex up and down. The
downward flex occurs at lower r.p.m.s. The main rotor
blades pose the greatest danger at ground level when they
are decelerating with the engines off. Under those circum-
stances, the lifting and centrifugal forces on the rotor blades
are diminishing, and the rotor blades are subject to gusts of
wind that may push the blades lower.



1
  This safety factor is largely irrelevant to Inlow’s accident
because Conseco’s pilot had the cyclic control in the neutral
position as Inlow departed. Any perceived lack of adequate warn-
ings about the effects of cyclic control manipulation on blade
height could have had no causal effect on this accident.
No. 02-2274                                                 5

  Thus, despite the high-set rotor, evidence favorable to the
Inlow Estate establishes that, under two circumstances, the
Dauphin rotor blades pose grave danger to anyone within the
circular path of the blades. And as the Inlow accident and the
offshore oil worker accident demonstrate, there is an actual
danger (at least in front of the nose of the Dauphin) of death
from either use of the cyclic control or deceleration-enhanced
blade flap.
   But within the Eurocopter organization, there was a dif-
ference of opinion as to whether it is safe under any cir-
cumstances to disembark from the Dauphin while the rotor
blades are decelerating. The head of the preliminary design
department and the engineer in charge of testing the
Dauphin testified that it is a basic “rule of the art” that
passengers should never be under the rotor disk during de-
celeration or acceleration phases. The engineer noted that
if circumstances dictated that the rotors must continue
turning (such as a medical evacuation or mountain rescue),
the rotors should be under full power. The Eurocopter safe-
ty manager agrees that it is “standard procedure” to not
load or unload while the blades are decelerating, although
he did not think it was a practice expressly prohibited by
Eurocopter. And finally, Eurocopter’s former chief pilot
agreed that unloading passengers while the blades are de-
celerating is the least desirable way to disembark, but he
also said that he was never instructed to not do so and that
he had probably unloaded some passengers while the blades
were decelerating on demonstration flights in the past.


B. Conseco’s Policies and Practices
  Eurocopter marketed the Dauphin as particularly desir-
able because of its high-set rotor. The salesman who closed
the deal with Conseco executives, Neil Williams, told former
Conseco President Stephen Hilbert that the Dauphin
facilitated rapid egress. Williams even disembarked from a
6                                                No. 02-2274

Dauphin with Hilbert and Vice President of Conseco Flight
Operations Dan Rice while the rotors were still spinning dur-
ing a demonstration flight.
   Notwithstanding the dangers of disembarking while the
rotors are decelerating, Eurocopter did not directly warn
anyone at Conseco of such risks. No warnings were posted
in the helicopter; none were in the instruction manual. The
flight manual simply states that “[w]hen practical, boarding
and deplaning will be conducted with rotors stopped. When
escorts are not available to assist in boarding and de-
planing, passengers will be thoroughly briefed on appro-
priate procedures.” The manual also makes clear that the
pilot should remain at the controls and the flight crew or
ground crew should accompany passengers to safety while
disembarking.
  After Conseco purchased the Dauphin, Rice implemented
an imprudent disembarkation procedure that was con-
cerned more with saving executive time and the level of
engine noise than safety. Hilbert did not want to delay
disembarking for the thirty-to-forty seconds it takes for the
rotor blades to fully stop with the engines off, nor did he
want to depart while the engines were running because the
noise was extremely loud. As a result, Conseco developed as
its deboarding policy that passengers would exit the
Dauphin after the engines had been shut down but before
the rotor blades had completely stopped. To implement this
policy, Conseco’s pilots required that passengers exit the
helicopter directly abeam, i.e. ninety degrees off the
aircraft. This requirement was designed to prevent pas-
sengers from stepping into the most dangerous sector of the
blades’ arc—in front of the helicopter.
  The Conseco pilots, including Carl Deaton, who piloted
the Dauphin the day of the accident, and Michael Sojka, the
co-pilot the day of the accident, were well aware of the risks
inherent in exiting a helicopter while the rotor blades were
No. 02-2274                                                7

decelerating. In fact, Deaton told Sojka some time before
the accident that he would prefer not to disembark pas-
sengers while the rotor was slowing, and Sojka agreed.
Deaton had even overruled the Conseco policy in the past
when wind gusts were particularly strong. Several pilots
and mechanics also complained to their Conseco superiors
on occasion about the practice. Despite these suggestions by
pilots and ground crew to stop the rotors completely before
allowing passengers to deboard, Conseco management did not
change the procedure. The Conseco pilots, although testify-
ing after the accident that they were uncomfortable with the
procedures because of their general inclination toward
taking all conceivable precautions, confirmed that this
discomfort did not stem from any warnings issued by
Eurocopter. Instead, in the words of Deaton (the pilot
during the relevant flight), his knowledge that “there was
a potential for endangerment of passengers or personnel”
came from “intuit[ion] or from military experience,” not spe-
cific knowledge of how low the Dauphin blades actually could
bend. Eurocopter’s former chief pilot delivered the helicop-
ter to Conseco and trained Conseco’s pilots. He provided no
warnings about blade flap.


C. The Accident
  The Dauphin arrived at Indianapolis International air-
port in windy conditions on the morning of May 21, 1997.
Consistent with established Conseco procedures, the pilot
shut down the helicopter after landing. The co-pilot exited
the helicopter, “hugged” the nose of the Dauphin in walking
to the other side, and opened the door for the six-foot tall
Inlow and Colliflower. At the time of the accident, the pilot
was at the controls (as he should have been), the co-pilot
was attending to the passengers’ luggage, and no one else,
apparently, was present to escort the passengers away from
the Dauphin.
8                                                No. 02-2274

  Inlow was aware of the proper route for disembarkment—
straight out of the aircraft at a ninety-degree angle (per-
pendicular) to the body of the helicopter. A frequent pas-
senger for five years prior to the fatal accident, he had been
warned in the past about walking in front of the Dauphin.
Inlow was told more than once by pilots to follow the correct
path. On one prior occasion, he had walked to the same spot
where he was later killed. A Conseco pilot warned Inlow
that it looked as if the blade came close to hitting him and
that he needed to follow the exit procedure; Inlow acknowl-
edged his understanding. On another occasion, Inlow was
stopped before he could walk towards the front of the plane
and was asked to proceed along the 90-degree exit path.
  In addition to Inlow’s previous missteps, at least one
other Conseco passenger walked to the front of the helicop-
ter while disembarking. Fortunately, he was not struck by
the blade. Despite these prior occurrences and knowledge of
dangerous conditions within Conseco’s organization,
Conseco did not alter its policies, and Inlow was not given
a briefing before disembarking nor escorted to safety on the
day of his death.
  Inlow, after beginning to walk on roughly the correct line
of exit, abruptly turned and walked fully upright back to
the helicopter. He proceeded to move in front of the hel-
icopter into the path of the blades. He was struck by a blade
at about the one o’clock position off the nose of the helicop-
ter. The blades were turning at approximately 150 r.p.m.s,
or about 200 miles per hour (less than half of what they
would be turning under flying speed power).
  In contrast, Colliflower, the Conseco attorney accompany-
ing Inlow, instinctively (it was his first helicopter ride—
despite this, he received no safety briefing from the pilots)
crouched as he followed Inlow off the aircraft. Although
Colliflower’s pre-flight jitters were assuaged by the thought
No. 02-2274                                                           9

that he could simply follow Inlow’s lead, when Inlow turned
and walked towards the front of the Dauphin, Colliflower did
not follow.
  Deaton, manning the controls in the cockpit, said that
nothing appeared to be unusual about the rotor blade path;
he testified that it appeared that Inlow simply walked into
the path of the blades, a place Deaton never expected any-
one to be.2


D. Procedural History
   The district court, after carefully considering the compli-
cated issues presented by this case, granted Eurocopter’s
motion for summary judgment on three grounds: (1) that
the danger that befell Inlow was open and obvious and
therefore Eurocopter did not have a duty to warn Conseco
or Inlow of the danger; (2) that, even assuming the danger
was not open and obvious because of the increased risk of
blade flap during deceleration, the pilots in the employ of
Conseco served as sophisticated intermediaries who re-
lieved Eurocopter of the duty to warn Conseco or Inlow; and
(3) that the Dauphin was not “unreasonably dangerous”
under the Indiana Products Liability Act (“IPLA”) and
therefore the Inlow Estate could not proceed with the suit.
  Eurocopter requests that we affirm on any of these grounds,
or on alternate theories—either that the failure to warn
could not have been the proximate cause of the accident as


2
   Deaton explained: “Now, I know mentally that this thing is
supposed to be eight feet tall. Larry is six feet tall. I can’t tell you
where that two feet went. I know from my observation watching
this thing spool down everything was correct. The cyclic was where
it was—normally was. I was guarding it with my hand. The tip
path plane was where it should have been. No vibrations. Every-
thing looked good. Next thing I know I see Larry [Inlow] coming
out of my peripheral vision. Now I’ve got something that has a
sight picture. I can see Larry’s not going to make it.”
10                                               No. 02-2274

a matter of law or that the IPLA affirmative defense of “in-
curred risk” was proven as a matter of law, thus eliminat-
ing all liability. The Inlow Estate insists that the district
court erred in its application of the IPLA and that a trial is
appropriate to decide whether Eurocopter negligently
caused this accident by its failure to warn Conseco of the
dangers of blade flap.
  An additional issue on appeal is whether the district court
abused its discretion in granting summary judgment to
Eurocopter without first deciding a pending motion to
compel discovery by First National. The district court held
that because the Inlow Estate did not invoke Rule 56(f) of
the Federal Rules of Civil Procedure to assert that the
pending discovery disputes prevented it from obtaining evi-
dence it needed to oppose the summary judgment motion,
the motion was ripe for decision and the judge denied the
pending discovery motion as moot.


                       II. Analysis
  We review de novo the district court’s grant of summary
judgment, construing all facts and inferences in the light
most favorable to the non-moving party. Ritchie v. Glidden
Co., 242 F.3d 713, 720 (7th Cir. 2001). Summary judgment
is proper when “the pleadings, depositions, answers to in-
terrogatories, and admissions on file, together with the af-
fidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).


A. Applicable Law
  As a federal court sitting in diversity, we apply state sub-
stantive law and federal procedural law. Musser v. Gentiva
Health Servs., 356 F.3d 751, 754 (7th Cir. 2004). Thus, the
No. 02-2274                                                       11

product liability claim against Eurocopter is governed by
the IPLA, Ind. Code §§ 33-1-1.5-1, et seq. (1995).3
  The Inlow Estate must show the following to succeed on
its product liability claim under the IPLA: “(1) the seller is
engaged in the business of selling the product that caused
the injury; (2) the product was defective and unreasonably
dangerous; (3) the defect existed at the time the product left
the defendant’s control; (4) the product was expected to and
did reach the consumer without substantial change in its
condition; and (5) the defective product was the proximate
cause of plaintiff’s injuries.” Ritchie, 242 F.3d at 720. Only
the second and fifth requirements are at issue on appeal.
  Was the Dauphin defective and unreasonably dangerous?
In order to show that the product is defective and unreason-
ably dangerous under the IPLA, a plaintiff must establish
either a manufacturing defect, a design defect, or a failure
to warn. Here, the Inlow Estate claims only that Eurocopter
was negligent in failing to warn Conseco executives.4 Also
at issue is whether Eurocopter’s alleged failure to warn was
a proximate cause of Inlow’s accident.




3
   “This chapter governs all actions brought by a user or consumer
against a manufacturer or seller for physical harm caused by a
product regardless of the substantive legal theory or theories upon
which the action is brought.” Ind. Code § 33-1-1.5-1. The IPLA was
amended and recodified at Ind. Code §§ 34-20-1-1, et seq. in 1998.
The version cited in the text is controlling because Inlow’s
accident occurred prior to the effective date of the current version
of the statute.
4
  Both Indiana’s 1995 statute (applicable to this case) and its 1998
statute abandoned strict liability in design defect and failure to
warn cases. Hence, unlike manufacturing defects, for which man-
ufacturers are still held strictly liable, claims of design defect and
failure to warn must be proven using negligence principles.
12                                                   No. 02-2274

B. Negligent Failure to Warn Under the IPLA
  The facts we have recited establish that there are many
who could be blamed for this terrible accident. For one,
Conseco did not thoroughly consider flight safety. Its exec-
utives could have investigated the best way to disembark,
given more deference to the judgment of the helicopter pi-
lots within the organization, or ensured that ground crews
were present at every disembarkment. Second, the pilots
could have reminded Inlow of the proper, 90-degree exit
path, physically forced him to walk this path in light of his
past behavior, or insisted that their instincts on flight safety
should have been followed despite Conseco’s flight policy.
And, of course, Inlow himself decided to walk upright,
directly in front of the helicopter. These observations notwith-
standing, the task at hand is to analyze the culpability of
Eurocopter.


    1. Duty to Warn
  Under Indiana law, there is a duty to warn reasonably
foreseeable users of all “latent danger[s] inherent in the pro-
duct’s use.” Taylor v. Monsanto Co., 150 F.3d 806, 808 (7th
Cir. 1998); see also Ritchie, 242 F.3d at 720-21; Natural Gas
Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind. Ct. App.
1997) (“[A] latent danger will, without more, cause the
product to be unreasonably dangerous as marketed.”).5 The
duty is to warn of the hidden danger itself or the risks in a


5
   In failure to warn cases, the “unreasonably dangerous” inquiry
is not a separate inquiry from whether the defect is latent or hid-
den. See Ind. Code § 33-1-1.5-2(7) (defining unreasonably danger-
ous as “any situation in which the use of a product exposes the
user or consumer to a risk of physical harm to an extent beyond
that contemplated by the ordinary consumer who purchases it
with the ordinary knowledge about the product’s characteristics
common to the community of consumers”).
No. 02-2274                                                    13

recognized danger that far exceed that contemplated by the
ordinary consumer, not to educate the user as to the
particular degree of harm that a known danger could inflict.
See McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 656-57
(7th Cir. 1998) (holding that a manufacturer of a coffee pot
does not have the duty to warn consumers of the precise
capabilities of its coffee to burn the skin when consumers
already know that coffee is extremely hot and can burn the
skin); Moss v. Crosman Corp., 136 F.3d 1169, 1175 (7th Cir.
1998) (holding that the air rifle at issue “did not place users
at risk of injuries different in kind from those that an average
consumer might anticipate” by causing the death of a boy
when a pellet penetrated his eye and entered his brain).
  There is no duty to warn of open and obvious dangers be-
cause a warning would be redundant. “[T]here is no duty to
warn that ‘a knife or an ax will cut, a match will take fire,
dynamite will explode, or a hammer may mash a finger.’ ”
Burton v. L.O. Smith Foundry Prods. Co., 529 F.2d 108, 111
(7th Cir. 1976) (quoting W. Prosser, Handbook of the Law of
Torts 649 (4th ed. 1971)). Was the danger presented by the
rotor blades of the Dauphin “open and obvious” and there-
fore not “latent” or hidden?6
  The dangers presented by a competing helicopter with a
lower rotor set at body height, like the Sikorsky S-76, may
be so obvious that no warning would be necessary or help-
ful. But it is not obvious that the Dauphin’s high-set rotor
provides reliable safety for exiting passengers only when it
is turning at flight speed. The Dauphin could create a false
sense of security in its users, prompted to buy the Dauphin
precisely because they thought it was safe for inexperienced



6
  We note that the Inlow Estate is not claiming that the Dauphin
was defectively designed. In a sense, it is conceded that the dan-
gers inherent in the Dauphin are a necessary part of its function-
ality.
14                                                   No. 02-2274

passengers. Similarly, in Downs, 685 N.E.2d at 162, the
manufacturer used an odorant to signal natural gas leaks,
but did not warn of the limitations of this safety measure.
   Deceleration-enhanced blade flap is a hidden danger of
the Dauphin for which Eurocopter had a duty to warn its
customers, in this case, Conseco. Cf. Kroger Co. Sav-On
Store v. Presnell, 515 N.E.2d 538 (Ind. Ct. App. 1987) (“[I]f
people generally believe that there is a danger associated
with the use of a product, but that there is a safe way to use
it, any danger there may be in using the product in the way
generally believed to be safe is not open and obvious.”)
(quotation omitted).


    2. Breach of Duty
  “A product is defective under this chapter if the seller
fails to: (1) properly package or label the product to give
reasonable warnings of danger about the product; or (2) give
reasonably complete instructions on proper use of the pro-
duct; when the seller, by exercising reasonable diligence, could
have made such warnings or instructions available to the
user or consumer.” Ind. Code § 33-1-1.5-2.5(b).7 This inquiry
goes to breach: did Eurocopter adequately warn and/or
instruct Conseco and Inlow on the dangers of the Dauphin
and/or the proper use of the helicopter? In general, “the
adequacy of the warning is a question of fact for the jury.”
Downs, 685 N.E.2d at 161.


7
   To make certain that it was understood that a negligence standard
applied, the statute also states that “in any action based on an al-
leged design defect in the product or based on an alleged failure
to provide adequate warnings or instructions regarding the use of
the product, the party making the claim must establish that the
manufacturer or seller failed to exercise reasonable care under the
circumstances in designing the product or in providing the
warnings or instructions.” Ind. Code § 33-1-1.5-3(b).
No. 02-2274                                                       15

   The district court held that Eurocopter satisfied its duty
to warn as a matter of law under the sophisticated interme-
diary doctrine.8 “Although the duty to warn end users of po-
tential dangers is generally non-delegable, Indiana law does
recognize an exception to this general rule.” Ritchie, 242
F.3d at 724 (citing Downs, 685 N.E.2d at 163). This excep-
tion, the sophisticated intermediary doctrine, is applicable
if: (1) the product is sold to an intermediary with knowledge
or sophistication equal to that of the manufacturer; (2) the
manufacturer adequately warns this intermediary; and (3)
the manufacturer can reasonably rely on the intermediary
to warn the ultimate consumer. Taylor, 150 F.3d at 808.
Additional factors should be considered when determining
whether to apply the doctrine in a particular case. These
include:
    [t]he likelihood or unlikelihood that harm will occur if the
    intermediary does not pass on the warning to the ultimate
    user, the [ ] nature of the probable harm, the probability
    or improbability that the particular intermediary will not
    pass on the warning[,] and the ease or burden of the giv-
    ing of the warning by the manufacturer to the ultimate
    user.
Ritchie, 242 F.3d at 724 (quotation omitted).
  In general, summary judgment should not be granted in
favor of a manufacturer based on the sophisticated interme-


8
  The sophisticated intermediary doctrine is very similar in sub-
stance to the “sophisticated user” exception to the duty to warn
under Indiana law. See Smock Materials Handling Co., Inc. v. Kerr,
719 N.E.2d 396, 403 n.4 (Ind. Ct. App. 1999); Downs, 685 N.E.2d at
162 n.10. The difficulty in this case is determining whether Inlow, as
an individual passenger, is the end user of the product, or whether
Conseco (including its professional pilots) as an organization is the
end user. We are inclined towards the former and therefore
analyze the issue as a sophisticated intermediary case rather than
a sophisticated user case.
16                                                No. 02-2274

diary doctrine. Id. (“[W]hether a manufacturer has ade-
quately discharged its duty to warn to qualify for the so-
phisticated intermediary defense is a question for the trier
of fact.”); Downs, 685 N.E.2d at 164.
   Here though, as in Taylor, 150 F.3d at 809-10, the record
justifies an exception to the general rule. For one, Conseco’s
licensed, trained, professional staff of pilots understood the
dangers of blade flap. This is why several pilots complained to
Conseco executives about the disembarkment policy. It was
recognized by each pilot, including Deaton (on duty the day
of Inlow’s death), that exiting the Dauphin while the blades
decelerated posed significant dangers.
  Second, as information about blade flap was readily avail-
able to the Conseco pilots in their training and in materials
familiar to them as professional pilots (like safety manuals
and government regulations), any lack of direct warning by
Eurocopter to the pilots is inconsequential in this case. See
Phelps v. Sherwood Med. Indus., 836 F.2d 296, 304 (7th Cir.
1987) (manufacturer has no duty to warn sophisticated in-
termediary “of those dangers which he already knew”);
Smock Materials Handling Co., Inc., 719 N.E.2d at 403
(“Actual or constructive knowledge may arise where . . .
information of the product’s dangers is available in the public
domain.”) (quotation omitted). Examples of such informa-
tion abound in the record, and we cite several such exam-
ples by way of illustration:
     • A 1983 Federal Aviation Administration circular ad-
       vised: “The engine of a . . . helicopter should be shut
       down before boarding or deplaning passengers. This is
       the simplest method of avoiding accidents.” (Def. Ex. R.)
     • Indiana’s occupational safety regulations require an
       employer to ensure “that whenever approaching or
       leaving a helicopter which has its blades rotating, all
       employees shall remain in full view of the pilot and
       keep in a crouched position. No employee shall be
No. 02-2274                                                 17

     permitted to work in the area from the cockpit or cabin
     rearward while blades are rotating, unless authorized
     by the helicopter operator to work there.” 29 C.F.R.
     § 1910.183(p) (incorporated by reference at 620 Ind.
     Admin. Code § 1-1-2(10)).
   • The Safety Manual of the Helicopter Association
     International cautions: “WARNING! Do not attempt to
     lead passengers near a rotor disc while rotors are
     turning, unless passengers have been briefed on the
     hazards of main rotors and tail rotors. Shut down the
     helicopter prior to boarding passengers or use ground
     crews to assist passengers. . . . WARNING! Main rotor
     blades can dip very low when rotating slowly. Passen-
     gers and crew must be briefed not to stand or walk
     under the rotor system during low R.P.M. operations.
     Under no circumstance should any person, whether
     passenger or crew, be permitted to approach or leave
     the aircraft during rotor engagement on start-up or
     until after the rotor blades have completely stopped
     following engine shutdown.” (Def. Ex. T, U.)
   • A 1992 training book, titled “Learning to Fly Helicop-
     ters,” warns: “The most dangerous time to be near a
     helicopter is when the rotors are starting or stopping.
     When the rotors are stopped, special devices called
     droop stops keep the blades from hanging down too low.
     When the rotors are rotating at normal speed, the rotors
     can droop down quite low, but the pilot has full control
     of their position with the cyclic and collective sticks.
     During start-up, after the droop stops move out of
     position but before the rotor blades are up to normal
     r.p.m., the blades are not moving fast enough to be fully
     controllable by the pilot and are therefore very suscepti-
     ble to wind gusts. A gust of wind at the wrong instant
     can cause a main rotor blade to flap down so low that it
     can hit the top of the cockpit or tailboom. This is the
     main reason why helicopters have wind limitations for
18                                                No. 02-2274

      start-up and shutdown. Needless to say, a blade could
      also flap down low enough to hit a person standing
      within the circumference of the rotor disc. It has hap-
      pened. (Def. Ex. W at 70.)
  Third, and finally, it was more than reasonable for
Eurocopter to expect the pilots to pass on the warning to
the Conseco executives. And the pilots did warn the ex-
ecutives that the disembarkation policy was unsafe and
should be changed! Conseco’s executives simply ignored this
advice.
  Inlow was directly warned more than once that tragedy
could strike if he persisted in walking in front of the Dauphin
when disembarking. The fact that Conseco and Inlow chose
to ignore admonishments from the professional pilots does
not alter the fact that the pilots are sophisticated interme-
diaries. No jury could find that it was unreasonable for
Eurocopter to expect Conseco’s pilots to understand rotor
blade dangers and to protect Conseco passengers from those
dangers.
  Because we agree with the district court in holding that
Eurocopter may not be held liable as a matter of law under
Indiana’s sophisticated intermediary doctrine, we need not
analyze the issue of proximate cause or the affirmative
defense of incurred risk.


C. Judgment Without Deciding the Inlow Estate’s
   Motion to Compel
  A district court’s entry of summary judgment before
ruling on a pending motion to compel is a discovery matter
that this court reviews for an abuse of discretion. Doty v. Ill.
Central R.R. Co., 162 F.3d 460, 461 (7th Cir. 1998).
  Under Rule 56(f), “[s]hould it appear from the affidavits
of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify
No. 02-2274                                                  19

the party’s opposition, the court may refuse the application
for judgment or may order a continuance to permit affida-
vits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.” The Inlow
Estate did not submit such an affidavit to the district court.
Instead, it argued that the district court should compel
Eurocopter to comply with aspects of the discovery plan in
order to complete discovery.
  Because the Inlow Estate failed to submit a Rule 56(f)
affidavit, claiming that it could not adequately oppose the
motion for summary judgment by reason of incomplete dis-
covery, it was not an abuse of discretion by the district
court to rule on the motion for summary judgment before
the Inlow Estate was satisfied that all necessary discovery
had occurred. See Chicago Florsheim Shoe Store Co. v. Cluett,
Peabody & Co., Inc., 826 F.2d 725, 727 (7th Cir. 1987). Even
when a non-moving party requests postponement of a
motion for summary judgment to allow discovery, the failure
to “file an affidavit outlining [the party’s] reasons for needing
further discovery as contemplated by Rule 56(f) . . . alone
justifies affirmance[.]” Woods v. City of Chicago, 234 F.3d
979, 990 (7th Cir. 2000).


                      III. Conclusion
 For the foregoing reasons, we AFFIRM the grant of sum-
mary judgment to Eurocopter.
20                                       No. 02-2274

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—8-9-04
