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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barrett v. Era Aviation, Inc. (2/25/00) sp-5242

Barrett v. Era Aviation, Inc. (2/25/00) sp-5242

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


MICHAEL (MICKEY) BARRETT,     )
                              )    Supreme Court No. S-8097
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-92-8242 CI
                              )
ERA AVIATION, INC.,           )    O P I N I O N
                              )
             Appellee.        )    [No. 5242 - February 25, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Dan A. Hensley, Judge.


          Appearances: Andrew K. Kurzmann, Anchorage,
for Appellant.  Marc G. Wilhelm, Richmond & Quinn, Anchorage, for
Appellee.


          Before:   Matthews, Chief Justice, Eastaugh,
          Bryner, and Carpeneti, Justices.  [Fabe,
Justice, not participating.]


          MATTHEWS, Chief Justice.
          CARPENETI, Justice, with whom BRYNER, Justice,
joins, concurring.


I.   INTRODUCTION
          Michael "Mickey" Barrett sued Era Aviation, Inc.,
claiming that he suffered permanent damage to his inner ear as a
passenger on an Era flight from Era's negligent maintenance of the
in-flight pressurization system.  The superior court excluded part
of the testimony of Barrett's expert witness, prohibiting him from
testifying about the standard of care for aircraft maintenance or
about whether Era had negligently maintained the aircraft at issue. 
The court also sent the jury instructions that contained
potentially conflicting definitions of negligence.  Barrett appeals
both the exclusion of his expert's testimony and the superior
court's jury instructions.  Because we find that the conflicting
jury instructions constitute reversible error, we reverse and
remand the case for a new trial.   
II.  FACTS AND PROCEEDINGS
          On December 25, 1990, Mickey Barrett flew as a passenger
on an Era Aviation flight from Anchorage to Barrow.  On September
9, 1992, Barrett filed a personal injury suit against Era, claiming
that he had suffered severe and permanent damage to his inner ear
as a result of pressurization problems caused by negligent
maintenance on the flight.
          Barrett hired John Spencer, a pilot familiar with the
type of aircraft at issue, to testify as an expert witness on the
subject of aircraft pressurization.  Spencer testified that he had
logged over 8,000 hours of flight time as a captain and over 4,000
hours of flight time as a co-pilot in similar aircraft.  Spencer
also testified that he was qualified as a check airman, ground
school instructor, flight school instructor, and simulator
instructor for this type of aircraft.
          Prior to trial, Era filed a motion in limine seeking,
inter alia, to exclude those portions of Spencer's testimony beyond
his area of expertise.  Era claimed Spencer lacked sufficient
expertise to testify regarding the standard of care applicable to
Era and whether or not Era breached this standard.  The trial court
granted Era's motion in part, ruling that Spencer could testify
generally about aircraft pressurization problems, but could not
testify about the applicable standard of care or about whether Era
had been negligent.
          At the close of the trial, the jury received instructions
and retired to deliberate.  After deliberating only a short while,
the jury submitted a note, indicating its confusion as to how to
reconcile Jury Instruction No. 14 (a general negligence
instruction) and Instruction No. 16 (a common carrier negligence
instruction).  The judge consulted with counsel for both sides.
Era's attorney requested that the judge either tell the jury he
could give them no advice, or tell them to consider all of the
instructions as a whole.  Barrett's attorney requested that the
judge instruct the jury to emphasize the common carrier
instruction.  The judge eventually directed the jury to refer to
Instruction No. 34, which required jury members to read all of the
instructions as a whole.
          The jury again deliberated without requesting further
clarification.  It ultimately returned a verdict in favor of the
defendant, Era Aviation.
III. STANDARD OF REVIEW
          We review a trial court's exclusion of expert testimony
for abuse of discretion. [Fn. 1]  Jury instructions involve
questions of law to which we apply our independent judgment. [Fn.
2]  A jury instruction containing an erroneous statement of law
constitutes reversible error if it prejudiced one of the parties;
prejudice exists "if it can be said that the verdict may have been
different had the erroneous instruction not been given." [Fn. 3]
IV.  DISCUSSION
     A.   Was Spencer Qualified to Testify as an Expert?
          Era argued in its motion in limine that Spencer's
testimony should be limited because he "is not trained or licensed
in the area of aircraft maintenance."  Era's argument on appeal is
likewise based in part on the premise that because Spencer is not
licensed as a mechanic he is not competent to testify as to the
standard of care required of mechanics.
          This argument erroneously assumes that a particular
license is required before a witness is judged competent to
testify. [Fn. 4]  Instead, "[t]he true criterion" in determining
whether one qualifies as an expert and whether his opinion is
admissible "is whether the jury can receive appreciable help from
this particular person on this particular subject." [Fn. 5] 
          It is true that Spencer is a pilot, not a mechanic.  But
as a pilot, Spencer is required to possess significant knowledge
about the proper maintenance of the planes he flies.  At trial,
Spencer testified that he had taught classes and trained
maintenance personnel on the workings of pressurization systems and
how to troubleshoot such systems.  Earlier, in his deposition,
Spencer testified that he had "taught school subjects" on
pressurization systems and had "done a lot of training" using the
type of aircraft in question.
          Spencer possesses sufficient familiarity with the
maintenance of aircraft pressurization systems to qualify as an
expert.  "It is not necessary that the witness devote full time to
the subject matter of his expertise; it is sufficient that he has
the requisite intelligence and reasonable contact with the subject
matter to allow him to demonstrate his expertise with reasonable
skill." [Fn. 6] 
          As a general rule, the trial judge retains "wide
latitude" in deciding whether to admit the testimony of an expert
witness. [Fn. 7]  In Lewis v. State, we held that the test for
reversible abuse of discretion was "whether the reasons for the
exercise of discretion are clearly untenable or unreasonable,"
noting that reasonableness depended on whether the trial judge
balanced "the value of the evidence against the danger of undue
prejudice, distraction of the jury from the issues, and waste of
time." [Fn. 8]
          In the present case, we have very little indication that
the trial court performed this balancing test.  It heard no
argument from the parties on the motion in limine.  Instead, after
reading the pleadings, it issued a ruling (which was followed by an
order later the same day) stating that "it . . . appears that the
witness does not have sufficient expertise to testify about whether
certain acts of maintenance were negligent or regarding standard of
care relating to maintenance of an aircraft." [Fn. 9]  This
represents an insufficient basis upon which to rest the exclusion
of a portion of Spencer's testimony.  Nowhere did the trial court
address the issues raised by the Lewis balancing test. 
          Because Spencer was qualified to testify as an expert
witness as to the specifics of this case, and because the exclusion
of his testimony is supported by insufficient explanation, we would
hold that the trial court abused its discretion in excluding his
testimony as to the negligent maintenance issue.  However, because
two justices dissent from this holding, the court is evenly split
on this issue.  Where we are evenly divided, we affirm the court
below. [Fn. 10]  Therefore, we do not reverse on the grounds that
Spencer's testimony should not have been excluded.  
     B.   Jury Instructions
          1.   Did the jury instructions correctly state the
applicable law?
     
          At the close of trial, the court gave the jury two
instructions concerning the standard of care: a general negligence
instruction [Fn. 11] and an instruction on the higher standard of
care applicable to common carriers. [Fn. 12] 
          Era argues that together these instructions represented
a correct statement of the law.  Era contends that Instruction No.
14, the ordinary negligence instruction, serves to define
negligence for the other instructions that use the term without
defining it.  In addition, Era argues that Barrett submitted his
case under two alternative theories of negligence which are
reflected in the jury instructions.  These arguments are without
merit.  Once the court had ruled that Era was a common carrier, the
proper jury instruction was the higher standard of care applicable
to common carriers -- the "utmost duty of care."
          In Widmyer v. Southeast Skyways, Inc., we held that
failure to give a common carrier instruction upon the plaintiff's
request constituted reversible error. [Fn. 13]  We deemed the
general negligence instruction "inadequate." [Fn. 14]  This case is
somewhat distinguishable from Widmyer, as the court here also gave
a common carrier instruction (a correct statement of the law). 
However, the trial court's failure to inform the jury to apply the
common carrier standard, rather than the general negligence
standard or some compromise between the two, means that the court
did not effectively instruct the jury on the correct standard.  The
instructions given are therefore not a correct statement of the
law.
          2.   Did giving the jury instructions constitute plain
error?
          Barrett did not object to either of the negligence
instructions; in fact, he proposed them.  Generally, we review jury
instructions that are not objected to for plain error, found where
"an obvious mistake exists such that the jury instruction creates
'a high likelihood that the jury will follow an erroneous theory
resulting in a miscarriage of justice.'" [Fn. 15]
          This case is unusual, however, because the jury requested
clarification concerning how to read the two negligence
instructions together.  Rather than correcting the problem of the
conflicting instructions, the judge instructed the jury to consider
all the instructions as a whole.  At this point, Barrett did
object.  It is the court's response to the jury question which is
reviewable.  Since Barrett duly objected to the response, it is
reviewed for legal error, rather than plain error.
          Once the jury requested clarification, the court was
required to give the jury a legally correct answer.  The court did
not meet this duty, creating a significant risk that the jury found
for the defendant because it applied a lower standard of care than
that required of a common carrier. 
V.   CONCLUSION
          The failure to correct the jury instructions constituted
legal error.  No contention is made with respect to whether such
error was harmless.  In any case, we could not say with fair
assurance that the result was not affected by this error, [Fn. 16]
and thus the standard for harmless error remains unsatisfied. 
Accordingly, we REVERSE and REMAND for a new trial. 
CARPENETI, Justice, with whom BRYNER, Justice, joins, concurring.
          I disagree with the conclusion that the trial judge
abused his discretion in limiting the testimony of John Spencer. 
But because I agree that the jury instructions were inconsistent
and that the trial court had an obligation to give a legally
correct instruction once the jury expressed its confusion, I join
in the decision to reverse and remand.
          We have consistently held that trial courts enjoy broad
discretion in deciding whether to qualify a witness as an expert
and to admit opinion evidence.  In City of Fairbanks v. Nesbett, we
said the decision was entrusted to the "sound discretion" of the
trial court. [Fn. 1]  In Ferrell v. Baxter, we referred to the
"wide discretion" and the "wide latitude" afforded to trial judges
in deciding these evidentiary questions. [Fn. 2]  In Norris v.
Gatts, we repeated the phrase "wide discretion" in the same
context. [Fn. 3]  In this case, Judge Hensley carefully exercised
his discretion, allowing virtually all of the testimony Barrett
sought to adduce and excluding only two questions on what might be
termed the "ultimate" issues in the case: the standard of care and
whether ERA breached it.  Even with these limitations, Barrett was
allowed to establish, through Spencer, all of the following:
               that during the period "four months prior to the
incident [to] three months after the incident, [there were] a
tremendous amount of write-ups of pressurization, much more than
industry standard on this aircraft." 
               that "there was something wrong with this airplane,
with the pressurization." 
               that Spencer did not "find any documentation of a
systematic troubleshooting of the entire pressurization system." 
               that as "of December, 1990, that there's something
wrong with the pressurization system and the compressor probably
very well contributed to it." 
               that "the reason [Spencer thought that the cabin
pressurization fluctuated on the flight in question] is the history
of all the records [he] saw on . . . this aircraft and its problems
with the pressurization." 
               that "ERA's continued operation of the aircraft
once the pressurization system problems were apparent as a result
of the flight crew write-ups and the persistent use of oxygen [was]
reckless."  (Emphasis added.)
          Thus, it is clear that the trial judge allowed very
extensive opinion testimony by Spencer.  (Indeed, the last piece of
testimony set out above appears to be evidence that the standard of
care had been breached.)  Considering that Spencer had no training
or experience as a mechanic and had never done repairs on the
aircraft pressurization system, and given the breadth of the
testimony by Spencer which the trial court did allow, I do not
believe that we can fairly say that the judge abused his broad
discretion in drawing the line that he did. 




                            FOOTNOTES


Footnote 1:

     See City of Fairbanks v. Nesbett, 432 P.2d 607, 611-12 (Alaska
1967).


Footnote 2:

     See VECO, Inc. v. Rosebrock, 970 P.2d 906, 911 n.11 (Alaska
1999).


Footnote 3:

     Beck v. State, Dep't of Transp. and Public Facilities, 837
P.2d 105, 114 (Alaska 1992) (citations omitted).


Footnote 4:

     See Handley v. State, 615 P.2d 627, 630 (Alaska 1980).


Footnote 5:

     Id. at 631 (quoting Crawford v. Rogers, 406 P.2d 189, 192
(Alaska 1965) (alteration in original)).


Footnote 6:

     Lewis v. State, 469 P.2d 689, 693-94 (Alaska 1970).


Footnote 7:

     Ferrell v. Baxter, 484 P.2d 250, 267 (Alaska 1971).


Footnote 8:

     Lewis, 469 P.2d at 695-96.


Footnote 9:

     At trial, the judge noted that the foundation for Spencer's
expertise was more extensive than the pleadings had indicated, but
he nonetheless cautioned Barrett's attorney not to let Spencer's
testimony stray onto the topic of improper maintenance.


Footnote 10:

     See Dimmick v. State, 473 P.2d 616, 621 (Alaska 1970).


Footnote 11:

     Instruction No. 14 provided:

               I will now define negligence for you. 
Negligence is the failure to use reasonable care.  Reasonable care
is that amount of care that a reasonably prudent person would use
under similar circumstances.  Negligence may consist of doing
something which a reasonably prudent person would not do, or it may
consist of failing to do something which a reasonably prudent
person would do.  A reasonably prudent person is not the
exceptionally cautious or skillful individual, but a person of
reasonable and ordinary carefulness.
               In this case, you must decide whether
both plaintiff and defendant used reasonable care under the
circumstances.


Footnote 12:

     Instruction No. 16 provided:

               You are instructed as a matter of law,
Defendant, ERA Aviation, Inc., is a common carrier.  As a common
carrier, Defendant, ERA Aviation, Inc., owed its passengers a duty
of utmost care and the vigilance of a very cautious person toward
their passengers.  Defendant, ERA Aviation, Inc., is responsible
for any, even the slightest, negligence, and is required to do all
that human care, vigilance and foresight should do under all the
circumstances.


Footnote 13:

     584 P.2d 1, 5-6 (Alaska 1978).


Footnote 14:

     Id. at 5.


Footnote 15:

     Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska
1992) (quoting Ollice v. Alyeska Pipeline Serv. Co., 659 P.2d 1182,
1185 (Alaska 1983)).


Footnote 16:

     See Patricia R. v. Sullivan, 631 P.2d 91, 98 (Alaska 1981).



                     FOOTNOTES (Concurrence)


Footnote 1:

     432 P.2d 607, 611-12 (Alaska 1967).


Footnote 2:

     484 P.2d 250, 267 (Alaska 1971).


Footnote 3:

     738 P.2d 344, 350 (Alaska 1987).