Lying in a field of soybeans near the Lake Elmo airport with his face, head and legs crushed, pilot Mark Kedrowski told first responders that his airplane’s fuel pump had failed. That wasn’t a dying declaration, but it felt like one at the time.
After more than 50 surgeries and a four-week trial in Ramsey County, Kedrowski and his attorneys secured a $27.7 million verdict against Lycoming Engines and Kelly Aerospace Power Systems. Lycoming designed and sold the fuel pump and outsourced its labor and assembly to Kelly Aerospace, which assembled the fuel pump according to Lycoming designs and instructions. Lycoming is liable for the entire verdict under Minnesota product liability law and because it was in a joint enterprise with Kelly Aerospace. Kelly is in bankruptcy and was treated as a non-party tortfeasor.
Kedrowski spent four weeks in a coma and four more weeks sedated at Regions Hospital, and lost 20 percent of his brain and his left leg below the knee. He has been in and out of the hospital since the crash on September 3, 2010, encountering repeated infections and difficulty with his prosthesis. (See sidebar for Verdict By the Numbers.)
His legal team is “amazing,” Kedrowski said. He was represented by Stephen Watters of the Stephen Watters law firm and Cortney LeNeave and Thomas Fuller of Hunegs, LeNeave & Kras. They called each other, and their client, “tenacious.”
Lycoming was represented by Dan Haws and J.P. Gatto of the HKM law firm. Haws made the following statement on behalf of the company: “Lycoming Engines, a division of Avco Corp., is disappointed with the verdict and notes that the case remains in litigation and that post-trial motions are being scheduled. Lycoming Engines will continue to review all of its legal options going forward in order to defend its product. However, Lycoming Engines does not feel further comment is appropriate in light of ongoing legal proceedings.”
Flying half the world
The plaintiff brought the case under design defect and manufacturing and inspection defect theories. Although the attorneys maintained that there was a history of prior defects that were substantially similar to the defects that caused the crash, that didn’t come in because Ramsey County District Court Judge John H. Guthmann found the evidence of similarity or a pattern to be insufficient, Watters said.
The jury found the fuel pump unreasonably dangerous because of a manufacturing defect, that Kelly was negligent in manufacturing the pump, that Lycoming was negligent in testing or inspecting the pump and that Kedrowski was not negligent.
Put simply, the pump failed to deliver enough fuel to the engine so the Glasair II RG single engine plane lost power right after takeoff as it began to climb. The valves did not give enough flow pressure to the fuel, LeNeave said.
Four years of investigation and three years of litigation, albeit overlapping, ensued. There were 18 separate inspections of the airplane by experts all over the country.
Lycoming had a lot at stake. According to its website, Lycoming built its first aircraft engine in 1929 — 23 years after the Wright brothers got their first patent in 1906. Also according to its website, half the world flies with Lycoming and “we build every engine as if we are going to fly it ourselves.”
According to the plaintiff’s attorneys, discovery was like pulling teeth. Guthmann did enter a sanctions order in August 2014 which ultimately cost defendant Lycoming $338,891.25 in attorney fees, expert witness fees and a $20,000 sanction payable to the court.
The documents that the plaintiff did receive just didn’t match up, LeNeave said. He believes the defendants made only a cursory search and then said they produced everything. Some documents came in late in what he called an obvious effort to gain an advantage, and some appeared after a punitive damage motion, he said. Additionally, he said, “most of these engineers have their own little files,” he added.
Lycoming’s discovery responses were “far short of reasonable,” said Guthmann, although he did not find the company willful or in bad faith. But the company and its lawyers failed to hold employees accountable for the document production or refresh prior searches, the judge said.
“Dumping thousands of documents on a party following the close of discovery and after the deadline to file dispositive motions is simply unacceptable when, as here, the documents were readily identifiable by asking the right employees the right questions or by using databases well-known to Lycoming and its employees. Lycoming’s conduct comes on top of countless assurance prior to the discovery deadline that it fully complied with all of its discovery obligations. These representations were obviously not true,” Guthmann wrote.
Although plaintiff’s counsel were not always perfect, the judge added, the court’s remedy was based on Lycoming’s history of recalcitrance.
Ultimately two of the assembly workers who built the pump testified that it should have been rejected, he said. According to LeNeave, the company has bad equipment, bad testing and sporadic testing. Assembly of the plane was outsourced to various companies so that bad equipment wasn’t spotted, LeNeave said. “The pieces they used to make valves were the bad equipment,” he said.
Additionally, Watters said, the trial exposed some problems with the industry. When small planes crash, the National Transportation Safety Board tends to blame the pilot, Watters said. The NTSB issued a report on this crash based on the FAA and didn’t investigate, he added.
By the Numbers
Past pain and suffering, disfigurement, embarrassment and emotional distress — $10 million
Past medical expenses — $2 million
Past loss of earnings — $1 million
Future pain and suffering, disfigurement, embarrassment and emotional distress — $6 million
Future medical expenses — $5.4 milion
Loss of future earning capacity — $3.3 million