The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are two Motions in Limine filed by Plaintiffs (ECF Nos. 161, 162) and eight Motions in Limine filed by the sole remaining Defendant, MD Helicopters, Inc. ("MDHI") (ECF Nos. 163-170).
On November 17, 2010, Plaintiffs filed the Second Amended Complaint, which is the operative pleading. (ECF No. 33). The Second Amended Complaint seeks damages for injuries Plaintiffs sustained as a result of a 2009 helicopter accident in San Clemente, California. Only the Second Amended Complaint's fourth cause of action against MDHI remains to be tried. The fourth cause of action alleges "negligence, negligence per se, and failure to warn." Id. at 11. Plaintiffs allege that, as successive manufacturer of the accident helicopter and holder of the accident helicopter's Type Certificate, MDHI was responsible for the safe operation and continued airworthiness of the helicopter, including informing owners, operators, and the Federal Aviation Administration ("FAA") of any design defects and limitations on the performance capabilities of the helicopter.
On February 11, 2013, Plaintiffs filed the following Motions in Limine: (1) Motion to Exclude Evidence of Negligence of Rolls-Royce and Boeing (ECF No. 161), and (2) Motion to Exclude Reference at Trial to Alleged Negligence by and/or Apportionment of Fault to Customs and Border Patrol and Office of Air and Marine (ECF No. 162). On February 11, 2013, MDHI filed the following Motions in Limine:
(1) Motion to Exclude Evidence or Reference to Non-Training-Related Duty to Warn Other than Duty to Comply with 14 C.F.R. §§ 27.1581-27.1589 (ECF No. 163); (2) Motion to Exclude Evidence of or Reference to Other Accidents (ECF No. 164); (3) Motion to Exclude Evidence of or Reference to Expansion of MD600N Flight Envelope (ECF No. 165); (4) Motion to Exclude Evidence of or Reference to Department of Labor's Adjustment After Recovery from a Third Party (ECF No. 166); (5) Motion to Exclude Evidence of or Reference to December 18, 1998 Letter from Tom Crosby to Duncan Hunter (ECF No. 167); (6) Motion to Exclude Reference to MDHI as "McDonnell Douglas" (ECF No. 168); (7) Motion to Exclude Testimony of Donald E. Sommer Regarding Helicopter Flight Training (ECF No. 169); and (8) Motion to Exclude Testimony of William Lawrence Regarding (a) Missing Instructions or Warnings, and (b) Causation (ECF No. 170).
On March 29, 2013 and April 25, 2013, the Court heard oral argument on the Motions in Limine. (ECF Nos. 195, 200).
A. Motion in Limine to Exclude Evidence of Negligence of Rolls-Royce and Boeing
1. Contentions of the Parties
Plaintiffs "move in limine for an order excluding all evidence, testimony, reference, mention, or argument relating to negligence of Rolls-Royce and Boeing." (ECF No. 171 at 2). Plaintiffs contend:
This case is only about failure to train and failure to warn of inadequate and dangerous handling qualities and characteristics of the MD600N helicopter in auto-rotation, a condition that occurs only after engine failure and exists solely because engine failure is a foreseeable condition that has already occurred. MDHI cannot establish that the engine failure stipulated to herein was a 'substantial factor' or a proximate cause at all in its failure to adequately train and warn. The causes of engine failures and even the frequency of engine failures are irrelevant to the issue of inadequacy of training in auto-rotation and the inadequacy of warnings associated with the handling qualities of the helicopter while it is being autorotated. (ECF No. 161 at 2). Plaintiffs contend:
Any reference at trial to the cause of the engine failure and any attempt to ascribe fault for the engine failure will inject into the trial issues that are irrelevant and will cause undue confusion to the trier of fact. If the proofs are open for MDHI on the cause of the engine failure, proofs should open for Plaintiffs on rebuttal (or in their case in chief) as to the extent of knowledge that MDHI possessed or should have possessed about the airworthiness and reliability of the engine installed in its MD600N helicopter and its legal obligations as holder of the airworthiness certificate. Certainly if MDHI were allowed to proffer evidence on the reason the engine failed (requiring the initiation of an auto-rotation, the maneuver here at issue) for the purpose of ascribing fault to a non-party, then Plaintiffs should be afforded evidentiary latitude to establish the degree of knowledge of MDHI and its legal obligations as holder of the type certificate to investigate and obtain knowledge of problems associated with the engine, including failings of #2 bearings.
MDHI contends that "the Court should deny Plaintiffs' motion in limine to exclude evidence of Rolls-Royce's negligence and defer its ruling regarding evidence of negligence committed by Boeing." (ECF No. 177 at 7). With respect to the alleged fault of Rolls-Royce, MDHI contends:
Before the settlement with Rolls-Royce, Plaintiffs and their liability experts repeatedly stated that the failure of the Rolls-Royce engine contributed to the February 19, 2009 accident.... The question is not whether the engine failure contributed to MDHI's alleged negligence; instead, the question is whether the engine failure contributed to the accident, itself.
Id. at 3, 5. With respect to the alleged fault of Boeing, MDHI contends that "MDHI remains uncertain about Plaintiffs' claims," and if Plaintiffs argue to the jury that MDHI had a statutory duty to notify the FAA about issues related to the helicopter, then MDHI "is entitled to explain ... [that] any duty to provide information to the FAA ... belonged to Boeing, not MDHI." Id. at 6.
Under California law, a defendant is liable only for its proportionate share of a plaintiff's non-economic damages. See Cal. Civ. Code § 1431.2(a) ("In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault...."). "[A] defendant's liability for non-economic damages cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff's injuries, not merely that of defendants present in the lawsuit." DaFonte v. Up-Right, Inc., 2 Cal. 4th 593, 603 (1992) (quotation omitted). "Neither the allocation of fault, nor the amount of a joint and several damage award, varie[s] by virtue of the particular defendants who happen to be before the court." Id. (quotation omitted).
In its Answer to the Second Amended Complaint, MDHI raised an affirmative defense that "[t]he doctrine of comparative fault and the Fair Responsibility Act of 1986, codified at California Civil Code Section 1431.1 et seq., limits any damages governed thereby which are awarded to Plaintiffs and against MDHI to that portion of Plaintiffs' non-economic damages, if any, that are attributable to MDHI's percentage of fault or liability, if any." (ECF No. 36 at 19; see also id. at 16, 18 ("Plaintiffs' claims against MDHI are barred completely or must be reduced in proportion to the fault attributable to such other third parties as are found liable"; "Plaintiffs' claims and damages are barred or should be reduced by the comparative or contributory negligence or responsibility of Plaintiffs and other persons or entities.")). MDHI may present evidence relevant to the potential fault of Boeing and/or Rolls-Royce, assuming the evidence is otherwise admissible. See DaFonte, 2 Cal. 4th at 603. To the extent Plaintiffs wish to introduce evidence of the "knowledge of MDHI and its legal obligations as holder of the type certificate to investigate and obtain knowledge of problems associated with the engine" (ECF No. 161 at 6), Plaintiffs may move for the admission of such evidence at trial, and the Court will rule at that time on the admissibility of that evidence. To the extent Plaintiffs contend that "evidence of Rolls-Royce's negligence is duplicative and redundant" (ECF No. 188 at 6), Plaintiffs may raise that objection at trial. The Motion in Limine to Exclude Evidence of Negligence of Rolls-Royce and Boeing is denied without prejudice to object to any specific evidence at trial.
B. Motion in Limine to Exclude Reference at Trial to Alleged Negligence by and/or Apportionment of Fault to Customs and Border Patrol and Office of Air and Marine
1. Contentions of the Parties
Plaintiffs "move in limine for an order excluding all evidence, testimony, reference, mention, or argument relating to the alleged negligence by and/or apportionment of fault to Customs and Border Patrol ('CBP') and Office of Air and Marine ('OAM')." (ECF No. 172 at 2). Plaintiffs contend:
[T]hroughout the course of the final flight and throughout the crash sequence itself, the helicopter was at all times indisputably within the operating envelope prescribed and published by Defendant, MDHI.... If the helicopter was operated within its certificated and manufacturer's approved flight envelope, there is no legal or factual basis to ascribe fault to CBP/OAM, the owner of the helicopter and employer of Plaintiffs. (ECF No. 162 at 2). Plaintiffs also move for the exclusion of the testimony of Merton Cox, CBP Executive Director of Training, and a post-crash email written by Cox on the basis that "Cox expresses expert opinions in his email he is not qualified to give" because he is not an expert and his opinions lack a proper foundation. Id. at 5.
MDHI contends that the "negligence of a nonparty is relevant to show that a defendant should be relieved of liability or that fault should be apportioned according to each tortfeasor's share of responsibility," and "CBP's conduct contributed to Plaintiffs' accident in numerous ways." (ECF No. 178 at 5). MDHI contends that Cox's opinions are admissible because they relate to the standards that CBP requires for the training of its pilots, and "the opinions are based on the knowledge he has obtained from performing his day-to-day responsibilities as CBP's Executive Director of Training, Safety, and Standards, and as the former Director of CBP's National Air Training Center." Id. at 5-6. MDHI requests that the Court deny Plaintiffs' Motion in Limine, or alternatively, "MDHI requests that the Court defer its ruling until it can be determined at trial whether evidence of CBP's negligence and Cox's testimony are relevant to the issues presented by Plaintiffs to the jury." Id. at 21.
In reply, Plaintiffs state:
Admittedly, the Court's ruling on whether the CBP was a substantial factor in this crash, accident, or Plaintiffs' injuries may have to await evidentiary rulings on testimony at trial. However, Plaintiffs would ask for a cautionary instruction as to any reference to testimony, which is merely speculative, or otherwise inadmissible. (ECF No. 189 at 10).
California law "limits a defendant's share of non-economic damages to his or her own proportionate share of comparative fault." DaFonte, 2 Cal. 4th at 604 (citing Cal. Civ. Code § 1431.2). "The statute states or implies no exception for third party suits by injured employees." Id. The Court finds that MDHI is entitled to present evidence of negligence by the CPB and/or the OAM to the extent that evidence is relevant to the accident/injuries at issue and is otherwise admissible.
Lay opinion testimony by Merton Cox is permissible to the extent MDHI establishes a proper foundation pursuant to Federal Rule of Evidence 701 and the testimony is otherwise admissible. See Fed. R. Evid. 701 ("If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.").
The Motion in Limine to Exclude Reference at Trial to Alleged Negligence by and/or Apportionment of Fault to Customs and Border Patrol and Office of Air and Marine is denied without prejudice to object to any specific evidence at trial.
C. Motion in Limine to Exclude Evidence or Reference to Non-Training-Related Duty to Warn Other than Duty to Comply with 14 C.F.R. §§ 27.1581-27.1589
1. Contentions of the Parties
MDHI "move[s] in limine for an order excluding all evidence, testimony, reference, mention, or argument relating to a duty to warn." (ECF No. 163 at 2). MDHI contends that, with respect to Plaintiffs' claim for negligent failure to warn,*fn1 the Federal Aviation Act regulations preempt any state law standard of care pertaining to the warnings MDHI had a duty to provide regarding the autorotation characteristics of the helicopter at issue. MDHI contends that the only sources of a duty to warn in this case are 14 C.F.R. § 27.1541(a), which regulates "markings and placards," and 14 C.F.R. §§ 27.1581-27.1589, which regulates the Rotorcraft Flight Manual. MDHI contends that, generally, 14 C.F.R. § 21.3 imposed no duty on MDHI to warn the FAA of the MD600N's autorotation characteristics at high gross weights. MDHI contends that, specifically, 14 C.F.R. § 21.3 imposed no duty on MDHI to warn or notify the FAA of the six other MD600N accidents that occurred before the accident at issue in this case.
Plaintiffs contend that in the summary judgment Order, "[t]his Court found that MDHI as Type Certificate Holder clearly had a duty to warn which was not just limited to the Rotorcraft Flight Manual." (ECF No. 176 at 5). Plaintiffs contend that many federal regulations imposed a duty on MDHI to warn the FAA and the public regarding the "known defect in the MD-600N helicopter's ability to autorotate at high gross weights within the certified flight envelope." Id. at 10; see also id. at 10-14 (addressing 14 C.F.R. §§ 21.3, 21.99(b), 27.33, 27.71, 27.141, 27.143, 27.601(a), 27.1541(a), 27.1581-27.1589). Plaintiffs contend that MDHI's failure to challenge Plaintiffs' negligent training claims supports denial of MDHI's preemption arguments related to the non-training failure to warn. Plaintiffs request an award of fees and costs for responding to the Motion in Limine.
a. State Law Duty to Warn
"The existence and scope of a duty are questions of law for the court's determination...." Ericson v. Fed. Exp. Corp., 162 Cal. App. 4th 1291, 1300 (2008) (citation omitted); see also In re Air Crash Disaster Near Cerritos, Cal., 973 F.2d 1490, 1496-97 (9th Cir. 1992) ("Whether a defendant owes a duty of care is a question of law.") (applying California law). MDHI moves for a ruling that federal law preempts any state-law duty to warn in this case.
"It is well-established that Congress has the power to preempt state law.... Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose." Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007). In Montalvo, the Court of Appeals for the Ninth Circuit held that any state-imposed duty to warn airline passengers about risks of deep vein thrombosis was impliedly preempted by the Federal Aviation Act and its corresponding regulations. See id. at 471 ("[T]he regulations enacted by the Federal Aviation Administration, read in conjunction with the [Federal Aviation Act] itself, sufficiently demonstrate an intent to occupy exclusively the entire field of aviation safety and carry out Congress' intent to preempt all state law in this field."). The Montalvo court pointed to specific and comprehensive regulations governing the warnings and instructions given to airline passengers, thus demonstrating that Congress and the FAA left no room for states to deviate from or supplement these warning requirements. See id. at 472-73; see also Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1007 (9th Cir. 2013) ("The [federal Air Carrier Access Act] regulations are pervasive as to when and where air carriers must provide ... assistance [in moving through an airport].... Gilstrap's negligence and breach-of-duty-of-a-common-carrier claims challenge United's failure to provide her with assistance ... in traversing the air terminal before, between, and after flights. The [Air Carrier Access Act] and its implementing regulations establish the standard of care-or duty-that United owed to Gilstrap regarding that activity, and so preempt any different or higher standard of care that may exist under California tort law.").
In Martin v. Midwest Express Holdings, Inc., 555 F.3d 806 (9th Cir. 2009), the plaintiff alleged that an airplane's "stairs were defectively designed because they had only one handrail." Id. at 808. The Court of Appeals for the Ninth Circuit held that this area was not pervasively regulated because the sole stair regulation promulgated by the FAA "is that [stairs] can't be designed in a way that might block the emergency exits," and the regulations are silent on all other stair safety issues. Id. at 812. Therefore, federal law did not establish the standard of care applicable to the plaintiff's stairway design defect claim. See id. The Martin court stated that Montalvo "means that when the agency issues pervasive regulations in an area, like passenger warnings, the [Federal Aviation Act] preempts all state law claims in that area. In areas without pervasive regulations or other grounds for preemption, the state standard of care remains applicable." Id. at 811; see also Gilstrap, 709 F.3d at 1008 (holding that federal regulations, which "say nothing about how airline agents should interact with passengers," do not preempt state law claims for intentional and negligent infliction of emotional distress related to allegations that "that United agents were repeatedly hostile to her").
In this case, Plaintiffs allege that MDHI, as the Type Certificate holder, had a duty to warn the FAA and MD600N owners and operators regarding the MD600N helicopter's inability to autorotate safely at high gross weights. There are numerous Federal Aviation Regulations governing the information that a Type Certificate holder must provide to the FAA and owners and operators. With respect to warnings to the FAA, 14 C.F.R. § 21.3 provides that a Type Certificate holder must report to the FAA "any failure, malfunction, or defect in any product or article manufactured by it that it determines has resulted in any of the occurrences listed in [14 C.F.R. § 21.3(c)]." 14 C.F.R. § 21.3(a). A Type Certificate holder must report to the FAA "any defect in any product or article manufactured by it that has left its quality system and that it determines could result in any of the occurrences listed in [14 C.F.R. § 21.3(c)]." 14 C.F.R. § 21.3(b). Section § 21.3(c) lists 13 specific occurrences the Type Certificate holder must report. See 14 C.F.R. § 21.3(c). With respect to warnings to owners and operators, the Federal Aviation Regulations require that an FAA-approved Rotorcraft Flight Manual ("RFM") be provided with each rotorcraft, containing detailed information necessary for the safe operation of the aircraft. See 14 C.F.R. §§
27.1581-27.1589; see also 14 C.F.R. § 21.5. With respect to warnings to owners and operators, the Federal Aviation Regulations also require that a Type Certificate holder "furnish at least one set of complete Instructions for Continued Airworthiness to the owner of each type aircraft ... upon its delivery...." 14 C.F.R. § 21.50(b). These instructions must be made "available to any other person required by this chapter to comply with any of the terms of those instructions." Id. The format and content of the instructions are dictated by regulations. See 14 C.F.R. § 27.1529; 14 C.F.R. Pt. 27, App. A. The Federal Aviation Regulations specify "markings and placards" which must be placed in a rotorcraft. 14 C.F.R. § 27.1541(a)(1); see also 14 C.F.R. §§
27.1545-27.1565. The Federal Aviation Regulations provide that the rotorcraft must contain "[a]ny additional information, instrument markings, and placards required for the safe operation of rotorcraft with unusual design, operating ...