MICHELLE C. HARMAN, ADMINISTRATRIX OF THE ESTATE OF JOSEPH A. GRANA, III, DECEASED, ET AL.
HONEYWELL INTERNATIONAL, INC
[Copyrighted Material Omitted]
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY. Herbert C. Gill, Jr., Judge.
Roger T. Creager (John C. Shea; Mark S. Lindensmith; Anita Porte Robb; Gary C. Robb; Creager Law; Marks & Harrison; Robb & Robb, on briefs), for appellants.
(Michael G. McQuillen; Austin W. Bartlett; Turner A. Broughton; Jessica L. Ellsworth; N. Thomas Connally, III; Adler Murphy & McQuillen; Williams Mullen; Hogan Lovells, on brief), for appellee.
Virginia Trial Lawyers Association (Avery T. Waterman, Jr.; Patten, Wornom, Hatten & Diamonstein, on briefs), in support of appellants.
PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and McClanahan, JJ., and Russell, S.J. OPINION BY JUSTICE WILLIAM C. MIMS.
WILLIAM C. MIMS, JUSTICE.
This appeal arises out of two consolidated wrongful death actions against Honeywell International, Inc. (" Honeywell" ). We consider the admissibility of testimony regarding the contents of an accident investigation report, as well as the admissibility of lay witness opinion testimony. We also address statements made by Honeywell's counsel during closing argument. Finally, we consider whether the circuit court erred in striking portions of a proffered jury instruction defining proximate cause.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
On April 27, 2008, Joseph A. Grana, III (" Grana" ) and his father, Joseph E. Grana, Sr., were killed when the single-engine airplane Grana was piloting crashed shortly after takeoff from Chesterfield County Airport. The takeoff was normal. Approximately ninety seconds into the flight, the plane's nose began moving up and down erratically. The plane then spiraled nose-down to the ground.
The Administrators of the Granas' estates (collectively, " the Administrators" ) filed wrongful death actions in the Circuit Court of Chesterfield County against Honeywell, the manufacturer of the plane's autopilot system. The actions were consolidated for trial.
The sole claim pursued at trial was for breach of the warranty of merchantability. The Administrators asserted that the defective design of the Honeywell autopilot system allowed microscopic debris to enter into one of the gear systems, jamming the gears and causing the plane to become uncontrollable. Specifically, the Administrators claimed that the jammed gears caused a situation known as " runaway trim," which occurs when the autopilot's auto-trim system repeatedly attempts to increase and decrease the plane's
pitch, or horizontal incline, in a futile effort to level the plane. Honeywell denied any defective design or malfunction of the autopilot system. It maintained that the crash was simply the tragic result of an inexperienced pilot becoming disoriented while flying in heavy cloud-cover.
Grana had begun pilot training just sixteen months prior to the accident, and he had been licensed for approximately fourteen months. On the day of the accident, he was flying in instrument meteorological conditions that require pilots to navigate using navigational instruments rather than visual cues. He had at most one hour of solo flight time in such conditions in this particular plane that was manufactured by Mooney Airplane Company, Inc. (the " Mooney plane" ). His previous experience had been in a less-powerful, less-complex plane that was manufactured by Cessna Aircraft Company (the " Cessna plane" ). Honeywell's theory was that upon entering the cloud-cover, Grana experienced " spatial disorientation," a phenomenon that occurs when a pilot has no visual cues to determine a plane's pitch and thus flies erratically without knowing it.
Following a nine-day trial, the jury deliberated for one hour before returning a verdict in favor of Honeywell. The Administrators filed a motion to set aside the verdict and for a new trial, which the circuit court rejected. This appeal followed.
The Administrators pursue five assignments of error. They assert that the circuit court erred by (1) admitting into evidence an accident investigation report and testimony regarding its contents; (2) allowing William Abel to testify that he had concerns about Grana's judgment in taking off in the weather conditions present on the day of the accident; (3) allowing Robert Norman to testify regarding his subjective feelings and experiences while flying the Mooney plane and the Cessna plane; (4) overruling their objection to statements made by Honeywell's counsel during closing argument; and (5) striking portions of their proffered jury instruction on proximate cause.
A. The Mooney Report
The Administrators assign error to the circuit court's admission of testimony regarding an accident investigation report prepared by Mooney Airplane Company describing its investigation of the crash (the " Mooney Report" ). It describes the plane's movements during flight and the condition of the wreckage, and sets forth the author's conclusions that there was no evidence " that the aircraft engine was not capable of producing power or that the aircraft was uncontrollable at the time of the accident." Portions of the Mooney Report related to the position of the " jackscrew," a component in the autopilot's auto-trim system that corresponds with the position of the horizontal stabilizer in the plane's tail.
The central question in the case was whether contaminated gears in the autopilot system caused the pitch to become erratic, rendering the plane uncontrollable. Consequently, a critical issue at trial was the position of the autopilot's trim setting at the time of impact. The experts for both sides agreed that the trim setting could be determined by examining the jackscrew. The experts also agreed that the jackscrew had six threads exposed at the time of impact. However, they vigorously disagreed regarding whether this position indicated a nose-down or normal takeoff trim setting.
Honeywell's expert in aircraft accidents, Dr. George Clarke, III, testified that the jackscrew was in a " normal and safe takeoff position," and therefore runaway trim could not have been the cause of the accident. Honeywell's counsel directed Dr. Clarke's attention to the Mooney Report to support that opinion. The Administrators objected on hearsay grounds. Honeywell responded that the Mooney Report was admissible pursuant
to the " learned treatise" exception to the hearsay rule set forth in Code § 8.01-401.1. The circuit court agreed with Honeywell and overruled the Administrators' objections, holding that the Mooney Report was a " pamphlet" admissible under Code § 8.01-401.1.
Dr. Clarke then read and displayed to the jury statements in the Mooney Report supporting his opinion that the jackscrew was in a normal takeoff position at the moment of impact:
Q. And what did the Mooney Aircraft Company investigation indicate with respect to that trim position?
A. It says in the last sentence, " This indicates an approximate takeoff position trim setting."
. . . .
Q. And again, it is Exhibit 11. And would you show that page from the [Mooney Report]? We're looking at the [Mooney Report] page 0006.
A. Yes. And this was the part that I just read. This indicates an approximate takeoff position trim setting. And to validate what we just spoke about, it says that there were six threads exposed on the jackscrew. And it's the same six ...