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

Nos. 03-1071 & 03-1080
KRISTY SPURGIN-DIENST, Executor of the Estate of
Terry A. Spurgin, Deceased, and LINDA J. BAUER,
as Executor of the Estate of John H. Bauer, Deceased,
and as Executor of the Estate of William H. Bauer III,
Deceased,
                                     Plaintiffs-Appellants,
                             v.


UNITED STATES OF AMERICA,
                                         Defendant-Appellee.
                        ____________
          Appeals from the United States District Court for
         the Northern District of Illinois, Eastern Division.
  Nos. 00-CV-8075 & 01-CV-385—Harry D. Leinenweber, Judge.
                        ____________
 ARGUED DECEMBER 4, 2003—DECIDED FEBRUARY 20, 2004
                    ____________



  Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. With mechanical error ruled out,
the issue in this case, tried to the court under the Federal
Tort Claims Act (FTCA), was whether pilot error or ground
error caused a single-engine Beechcraft Bonanza airplane
to crash in an Indiana field killing all four persons aboard.
The estates of the three deceased passengers brought the
case alleging ground error: negligence by the United States
through the Federal Aviation Administration (FAA) and
2                                   Nos. 03-1071 & 03-1080

personnel at Air Traffic Control (ATC) and the Flight
Service Station (FSS). The government defended the suit
claiming the proximate cause of the crash was the negli-
gence of the pilot.
  As is the norm in many tort cases, the trial here became
a battle of expert witnesses, with those called by one side
pointing the finger of blame at the other side. The district
judge, Harry D. Leinenweber, ultimately found for the gov-
ernment, and the estates appeal, arguing essentially that
the defense witnesses were incredible, that the federal
employees the pilot communicated with were negligent, and
that the pilot was blameless.
  The pilot on the ill-fated March 20, 1998, flight was
Daniel Sanders. The passengers were John Bauer (40), his
son William (20), and Terry Spurgin (42). The departure
point was Louisville, Kentucky, with Aurora, Illinois, as the
destination. While en route, the plane encountered icing
conditions, forcing Sanders to attempt an emergency
landing at a small airport near New Lebanon, Indiana. It
didn’t make it.
  Judge Leinenweber concluded that Sanders’ decision to
fly the plane into known icy conditions was the proximate
cause of the crash. In reaching his conclusion, the judge
rejected the claim that Sanders was not given pertinent
weather information and that he was misdirected as he
attempted to land the plane. The estates also argue that the
judge misapplied Indiana law and that he should have
ordered a new trial based on discovery violations.
  When reviewing a bench trial, legal decisions are re-
viewed de novo, Johnson v. West, 218 F.3d 725, 729 (7th Cir.
2000), and findings of fact are reviewed under a deferential
clearly erroneous standard. Anderson v. Bessemer City, 470
U.S. 564, 573 (1985). Under this standard, one who con-
tends that a finding is clearly erroneous has an exception-
ally heavy burden to carry on appeal. This is especially true
Nos. 03-1071 & 03-1080                                             3

when, as here, the estates argue that the district court
erred in crediting the testimony of experts called by the
defense. This is so because, as we have frequently stated,
the “trial judge is in the best position to judge the credibil-
ity of witnesses who offer conflicting testimony . . . .” United
States v. Woods, 233 F.3d 482, 484 (7th Cir. 2000). Such a
credibility determination “can virtually never be clear
error.” United States v. Archambault, 62 F.3d 995, 999 (7th
Cir. 1995). With these principles in mind, we turn to the
evidence presented at trial.
  Prior to departing, Sanders told the Louisville FSS that
he would be flying to Aurora. In response to Sanders’
concern about possible icing conditions, a weather briefer,
Charles Gilpin, provided a weather advisory, called an
Airman’s Meteorological Information (AIRMET), that
warned of occasional “moderate rime or mixed icing along
the entire route of flight” to Aurora.1 In addition, Gilpin told
Sanders that a surface observation made in the Terre
Haute, Indiana, area (which was along Sanders’ flight
path about halfway between Louisville and Aurora) indi-
cated light snow and mist and a surface temperature of 2
degrees Celsius. For the Aurora airport, surface obser-
vations also indicated a surface temperature of 2 degrees
Celsius, along with winds at 18, gusting to 26, knots.
Sanders also received pilot reports, called PIREPs. These
are pilot observations of actual weather conditions recently
encountered. Sanders was told of one PIREP received from
Louisville which reported “light to moderate rime icing.”


1
   According to the evidence, there are two types of icing: rime
icing and clear icing. Rime icing is caused by freezing of micro
droplets. When the droplets freeze, some air is trapped, and the
result is something similar to frost that can attach to the airplane.
When water droplets are bigger than micro droplets, the drops hit
the plane, lose their shape, run backwards, and form clear ice.
Either kind of icing destabilizes a plane.
4                                   Nos. 03-1071 & 03-1080

A second PIREP, also from the Louisville area, reported
“moderate to severe mixed icing.” A third PIREP from
Lafayette, Indiana, reported “light rime” icing. After re-
ceiving this weather briefing, Gilpin asked Sanders if he
needed more information. Sanders declined. The weather
briefing ended at 6:22 p.m.
  Thirty minutes later, Sanders filed a flight plan from
Louisville to Aurora stating that he would be flying at 4,000
feet. The weather briefer asked if he needed another
briefing, but Sanders said it wasn’t necessary because he
received one earlier.
  At 7:15 p.m., the plane left Louisville. About 25 minutes
later, the aircraft entered the jurisdiction of the Evansville
approach controller, some 50 miles from Louisville. Sanders
asked for icing reports for the area. The controller, Kyle
Koop, responded that there were none for the last 2 hours.
This was not true. In fact, there were two PIREPs which
confirmed icing conditions. One was received 55 minutes
earlier from a pilot about 30 miles to the south. The pilot
reported that he encountered icing conditions at 8,000 feet,
continued to pick up ice until below 4,500 feet, and the ice
melted at 2,500 feet. The second pilot, reporting about 40
minutes before Sanders checked in, reported icing at 7,000
feet. Koop stated that he didn’t give these reports to
Sanders because they were not pertinent to his flight path.
About this time, Sanders’ aircraft began accumulating ice.
  Less than 4 minutes later, at 7:45, the aircraft entered
the jurisdiction of the Terre Haute approach controller, and
Sanders requested icing reports for the area. The controller,
Jennifer Stahley, told Sanders that there hadn’t been any
for several hours, but she did convey several earlier reports
of icing.
  Sanders then requested and was given clearance to de-
scend to 3,000 feet. At 7:52, after reaching 3,000 feet, he
Nos. 03-1071 & 03-1080                                            5

reported that the plane had accumulated ice and asked for
permission to land at Terre Haute, which he received. Nine
minutes later, however, Sanders reported that he was
losing airspeed and requested a closer airport. Stahley
directed Sanders to the Sullivan County Airport, which was
about 5 miles ahead of him. Stahley advised Sanders that
he had a choice of two approaches, a VOR-Alpha approach
or an NDB (Non-Directional Beacon) approach. The VOR is
a circling approach that requires making several turns. The
NDB approach, in contrast, is almost straight in. Stahley
did not tell Sanders of Robinson airport, which was 11 miles
due west of Sanders’ flight line.
  Sanders chose the VOR-Alpha approach, and Stahley
attempted to lead Sanders to the airport, directing him to
make what she thought were the necessary turns. About
8:05, she said Sanders was 2-1/2 miles from the final ap-
proach point, and she gave him a vector to the northeast to
intercept the final approach course.
  The final radio contact with Sanders occurred one minute
later when he said, “Heck, we’re all over the place right
now.” At about this time, all radar and radio contact was
lost. One minute later, the plane crashed about 5 miles
from Sullivan airport.
  With these facts in mind, we turn to the merits of the
appeal. As an initial matter, the district court identified the
correct inquiry under Indiana tort law.2 As the court stated,


2
   The Federal Tort Claims Act provides a remedy for personal
injury caused by the negligent or wrongful act of any government
employee acting within the scope of his employment “under cir-
cumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place”
where the act occurred. 28 U.S.C. § 1346(b)(1); see also Midwest
Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1297 (7th Cir.
                                                     (continued...)
6                                      Nos. 03-1071 & 03-1080

“[T]o prevail on the facts the plaintiffs must show by the
preponderance of the evidence that some act or omission on
the part of the flight service briefer, or a traffic controller
was a proximate cause of the icing and/or the inability of
Sanders to land the plane safely.” This is correct. The
Indiana Supreme Court recently noted that “a negligent
defendant may be liable for a plaintiff’s injury if his or her
action is deemed to be a proximate cause of that injury.”
Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108
(Ind. 2002).
  Applying this standard, the district court’s factual
determinations are not clearly erroneous. The Air Traffic
Control Service had no duty to restrain Sanders from taking
off in hazardous weather, see Davis v. United States, 824
F.2d 549, 551 (7th Cir. 1987), and the court’s conclusion
that Sanders’ decision to fly into known icing conditions was
the proximate cause of the crash and that nothing govern-
ment agents on the ground did or did not do made a
difference is amply supported by the record.
   To begin, contrary to the estates’ argument that Sanders
flew into only “forecasted” or “suspected” icing conditions,
the evidence supports the conclusion that Sanders left
Louisville in the face of weather reports and forecasts that
put him on notice that he would be flying through “known”




(...continued)
1991). Because the alleged negligent act or omission occurred in
Indiana, we apply Indiana choice-of-law rules. Those rules require
application of Indiana law. See In re Bridgestone/ Firestone, Inc.,
288 F.3d 1012, 1016 (7th Cir. 2002) (“Indiana is a lex loci delicti
state: in all but exceptional cases it applies the law of the place
where harm occurred.”).
Nos. 03-1071 & 03-1080                                          7

icing conditions for his entire route.3 The weather briefing
Sanders received warned of “occasional moderate rime
or mixed icing along the entire route of flight . . . .”
More significantly, he also was told of surface observations
and actual pilot reports of icing. It is these icing condi-
tions that he encountered that caused an ice buildup on the
plane and that, in turn, caused the crash.
  Of course, FAA personnel committed errors. For example,
Gilpin failed to provide the Area Forecast (FA) and the
Meteorological Impact Statement (MIS) to Sanders which
contained information about icing conditions. Furthermore,
Koop incorrectly told Sanders that he had not had any
PIREPs of icing in 2 hours. The district court’s conclusion
that having this information would not have led Sanders to
change course, however, is not clearly erroneous. With
respect to the FA and MIS, Sanders already knew he was
flying into icing conditions. Considering he departed
Louisville despite knowing that other pilots had encoun-
tered icing conditions, there is no reason to conclude these
additional forecasts would have made a difference. As for
the pilot reports Koop failed to give, one, received about 55
minutes before Sanders’ request, stated that the pilot had
encountered icing conditions at 8,000 feet, which stopped
accumulating when he fell to 4,500 feet and melted at 2,500
feet. That pilot was 30 miles south of Sanders’ location,
however, and all it would have told Sanders is that in the
warmer air to the south he could lose ice if he descended to
2,500 feet. The other pilot reported icing conditions at 7,000
feet, which was 3,000 feet above Sanders’ altitude. Like the



3
  Under federal law, “no person may operate a civil aircraft with-
out complying with the operating limitations specified in the ap-
proved Airplane . . . flight manual . . . or placard.” 14 C.F.R.
§ 91.9. The flight manual in Sanders’ plane stated, “FLIGHT IN
KNOWN ICING CONDITIONS IS PROHIBITED.”
8                                   Nos. 03-1071 & 03-1080

FA and MIS reports, it is speculation whether either of
these reports would have led Sanders to change his flight
plan.
  Furthermore, the evidence suggests that Stahley gave
Sanders improper information when directing him to
land at Sullivan airport. Stahley told Sanders that he
was “about two and a half miles” from the final approach
point and to turn right to intercept the final approach
course. The estates’ experts stated, however, that the actual
distance was 3-1/2 or 4-1/2 miles. The National Track
Analysis Program (NTAP) radar data suggests the distance
was closer to 5 miles.
  It was reasonable for the district court to hold that
Sanders, due to icing on the plane, could not have made the
VOR approach to Sullivan airport. The evidence at trial
showed that the plane was doomed once the pilot turned
away from Sullivan for the VOR approach. The accumulat-
ing ice caused the aircraft to lose thrust and lift. The plane
simply did not have enough speed and altitude to make the
airport. Thus, nothing Stahley did in vectoring him contrib-
uted to the accident. Nor, as the estates argue, would
knowing about Robinson airport have made a difference.
First, Sullivan was closer and was on his flight plan.
Moreover, since the plane was not able to reach Sullivan
airport safely, nothing suggests it could have landed at
Robinson. Considering these facts, the estates fail to meet
their heavy burden of establishing that the district court’s
factual findings were clearly erroneous.
  The estates’ reliance on Pierce v. United States, 679
F.2d 617 (6th Cir. 1982) (Pierce I), is misplaced. In an FTCA
suit arising from an airplane crash in which the pilot was
not warned of weather problems, the district court had
granted judgment to the United States on the grounds that
the plaintiffs were unable to prove whether the plane
crashed due to weather or pilot error. The Sixth Circuit
Nos. 03-1071 & 03-1080                                     9

reversed and remanded, holding that even if the plaintiffs
could not distinguish between pilot error and weather as
the proximate cause of the crash, the possibility remained
that the United States could have contributed to the acci-
dent by failing to give weather information. Id. at 619-21.
On remand, the district court held that the United States
was negligent in failing to provide the necessary weather
information but that the proximate cause of the crash was
pilot error resulting from vertigo when the pilot unnecessar-
ily flew into a cloud. On appeal after remand, the Sixth
Circuit affirmed. Pierce v. United States, 718 F.2d 825, 828
(6th Cir. 1983) (Pierce II).
  Unlike Pierce I, the district court here carefully consid-
ered whether the government’s negligence contributed to
the crash. Consistent with Pierce II, however, the district
court held that the proximate cause of the crash was pilot
error.
  The estates’ other arguments are equally unavailing.
First, the district court did not err in failing to apply
Indiana’s Comparative Fault Act, Ind. Code. Ann. § 34-51-2-
7 et seq. Here, there was no finding of proximate cause
attributed to the United States. Therefore, there was no
need to apportion liability.
   Second, the district court did not commit error by denying
the estates’ Rule 60(b) motion for a new trial due to alleged
discovery violations. The estates argue that they were not
given evidence, an Event Reconstruction Recording (EVR)
that records the data Gilpin used in formulating the
weather briefing for Sanders, until the middle of trial.
However, the United States did not use the EVR in its case-
in-chief, and the estates’ counsel had ample time to review
it and decide whether to use it, an agreement the estates’
counsel admitted was “a good solution.” By accepting this
arrangement, the estates waived their objection to any
possible discovery violation. Nor do we believe, considering
10                                Nos. 03-1071 & 03-1080

the limited import of the EVR (evident by the fact that
neither party used it at trial), that the court abused its
discretion in denying the Rule 60(b) motion.
  Finally, we have considered the estates’ remaining argu-
ments and deem them to be without sufficient merit. This
was, of course, a sad and tragic case. But we think Judge
Leinenweber carefully heard and analyzed the evidence,
and we do not believe his findings of fact are clearly er-
roneous. Nor did he misapply controlling Indiana law.
 The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—2-20-04
