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Keating v. United Instruments12/8/1999
These appeals arise out of a wrongful death action brought by the estates of Michael J. Keating and Karen Maloney following an airplane crash in Brookline. The jury returned a verdict for the defendants, United Instruments (United), Mooney Aircraft (Mooney), and Tokyo Aircraft Instruments (Tokyo). The estate of Maloney did not appeal. The remaining plaintiff, the estate of Keating, appeals a Superior Court (Dalianis, J.) ruling excluding evidence pursuant to New Hampshire Rule of Evidence 407. United appeals the trial court's decision granting Mooney relief under its cross-claim against United and Tokyo (referred to collectively as United/Tokyo) for attorney's fees. We affirm.
The parties agree that in 1991, Keating, a flight instructor, and his student, Maloney, set out in an aircraft manufactured by Mooney on an instructional flight. The aircraft utilized a model 5934 altimeter manufactured by United/Tokyo. At the time of the crash, the pilots were practicing stalls and stall recoveries. Due to the force of the impact, much of the aircraft and its component parts, including the altimeter, were destroyed or lost.
I. Subsequent Remedial Measures
The plaintiff argues that the trial court abused its discretion in excluding evidence of a subsequent remedial measure to impeach the testimony of James Peterson, an FAA investigator, while allowing Peterson to testify to tests of the 5934 altimeter that were conducted after the subsequent remedial measure occurred.
Peterson described the physical characteristics of an altimeter in his testimony.
An altimeter is a little bit like a mechanical clock. There are shafts, wheels; there are parts that have long shafts, if you will, you can think of it as an axle. There's a wheel attached to it. The axle is held in place by two end plates, one on either end of the axle. The dimensions between the two end plates defines a -- an end-play. If the end-play is insufficient, . . . there's friction added to this very delicate mechanism, and there may be lag or hysteresis in the operation of the instrument.
Prior to 1992, United/Tokyo set the end-play by sight and feel. After 1992, the end-play was set by a measuring device called a jig. The model 5934 altimeter in the plane at the time of the crash was manufactured in 1988, well before the introduction of the jig into the manufacturing process. Pursuant to New Hampshire Rule of Evidence 407, the trial court excluded evidence of the jig as a subsequent remedial measure.
Peterson testified about a series of tests performed on model 5934 in response to concerns raised, beginning in 1989, by an altimeter repair person, William Magagnos. Some of the testimony concerned specific tests that Peterson or others conducted beginning in 1993. Some of Peterson's testimony concerned tests done after 1993, but on altimeters that were modified by someone other than United/Tokyo or were manufactured before the introduction of the jig. Finally, some of Peterson's testimony involved summaries of FAA investigations begun in 1989 and concluding sometime after 1993. The results of all of these tests reflected that the altimeter met the requirements of the technical standard order (TSO), which assures that the altimeter's design meets the minimum requirements of the Federal Aviation Regulations, and that the concerns raised by Magagnos were unjustified.
According to the plaintiff, Peterson's testimony misled the jury because evidence of the jig was excluded, but the tests that were conducted by the FAA concerned altimeters whose end-plays were set by the jig. Under New Hampshire Rule of Evidence 407, evidence of subsequent remedial measures is inadmissib
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