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West v. Bell Helicopter Textron, Inc.

United States Court of Appeals, First Circuit

August 21, 2015

KURT WEST, Plaintiff, Appellant,


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Joan A. Lukey, with whom Justin J. Wolosz and Choate, Hall & Stweart, LLP were on brief, for appellant.

Brian M. Quirk, with whom Jonathan G. Mermin and Preti Flaherty, PLLP were on brief, for appellee Bell Helicopter Textron, Inc.

James C. Wheat, with whom Pierre A. Chabot and Wadleigh, Starr & Peters, P.L.L.C. were on brief, for appellee Goodrich Pump and Engine Control Systems, Inc.

Martha C. Gaythwaite, with whom Marie J. Mueller and Verrill Dana, LLP were on brief, for appellee Rolls-Royce Corp.

Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.


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THOMPSON, Circuit Judge.

For thousands of years, humanity has looked to the sky and dreamt of flying. Philosophers and poets have had much to say on the subject, leaving in their wake a bevy of quotes and sayings about the beauty of flight.[1] The Federal Rules of Civil Procedure, although elegant in their own way, have so far failed to inspire such devotion.

Though this case arises out of a helicopter accident, our focus today is upon the Federal Rules, Rule 60(b)(3) in particular. This rule, insofar as it concerns us here, allows a party to ask for a new trial on the grounds that an opponent has committed " misconduct" during discovery. Fed.R.Civ.P. 60(b)(3). Plaintiff-Appellant Kurt West claims he should get a new trial because he discovered, several months after the jury's defense verdict, that the Defendants-Appellees[2] withheld discoverable information directly responsive to his document requests.

We do not determine today whether West gets a new trial. This is because, we believe, the district judge misconstrued the requirements of the Rule 60(b)(3) burden-shifting inquiry we set forth in Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988). We must, therefore, remand for further proceedings on West's Rule 60(b)(3) motion.


Because our concern is primarily with the application of Rule 60(b)(3), we need not give an extensive run-down of the factual background. Many of the background facts necessary to shed light on the legal issue we have to deal with are uncontested. We'll set them forth as the jury could have found them, highlighting some of the contested areas as we go.[3]


In December of 2008, West was a helicopter pilot in the employ of JBI Helicopter Services (" JBI" ). JBI, based in New Hampshire, provides pilots and maintenance services for its clients' helicopters. The helicopter at the center of this case is a Bell 407 manufactured by Bell Helicopter Textron, Inc. (" Bell" ). With a machine

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as complex as a modern helicopter, Bell had some help in bringing the aircraft to life. Relevant here are Rolls-Royce Corporation (" Rolls-Royce" ), which manufactured the engine, and Goodrich Pump & Engine Control Systems, Inc. (" GPECS" ) which made the 'copter's electronic control unit (" ECU" ), itself a part of the digital engine controls.

On Monday, December 22, 2008, West was tasked with flying the 407 from a small airport in Connecticut back to JBI's facilities in New Hampshire. The weather over the preceding few days had not been good, with an early-winter snowstorm having hit New England. Indeed, on Saturday, December 20, another of JBI's pilot-employees was attempting to fly the helicopter up to New Hampshire but got caught in bad weather and had to land at the Danielson Airport in Connecticut. For various reasons, the 407 was left outside in the storm -- which raged all Saturday night, picked up again on Sunday and finally came to an end in the early morning hours on Monday -- instead of brought into a hangar.

So, before taking off on Monday, West and another JBI employee spent time clearing the accumulated snow and ice from the 407. That task completed to his satisfaction, West performed his pre-flight checks. Once assured of the 'copter's airworthiness, West took off to begin his journey back to New Hampshire.

Helicopters are really a bunch of parts flying in relatively close formation; all rotating around a different axis. Things work well until one of the parts breaks formation.

For the first 45 minutes of flight, the 407 behaved just fine. But, it has been observed, if something hasn't broken on your helicopter, it's about to. Sure enough, West experienced one of those dreaded " moments of stark terror" when the 'copter's engine quit suddenly and without warning. He had on his hands what is known in aviation parlance as a " flame-out." And, although the 407 was equipped with an automated system intended to get the engine going again, it never started back up. Without fuel, pilots become pedestrians, and the 407 was going down. Even worse, the flame-out happened when West was over a residential area; he could see that many of the houses had been decorated for the upcoming Christmas holiday.

You can land anywhere once.

Fortunately, West was able to keep the 407 from dropping like a stone by entering into what's known as an " autorotation." Without getting deep into the aerodynamic principles, what happens is that as the helicopter descends, the air passing through its blades keeps them spinning and produces lift. An autorotation does not produce enough lift to keep the helicopter in the air, but it does allow the pilot some amount of control over the descent and ultimate landing spot.

Once he'd gotten the autorotation going, West looked for a place to land. He didn't like what was directly in front of him, but fortunately he was able to reverse direction (performing what is known as a 180 degree autorotation) and come in along a road. West managed to avoid any houses or power lines and set the 'copter down -- hard -- in the middle of the street, across from a house. Though he had gotten it down on the ground, the 407 had experienced what is euphemistically called a " hard" (as opposed to " crash" ) landing. The helicopter suffered significant damage and never flew for JBI again, with it ultimately being sold for salvage.

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Any landing you can walk away from...

Besides being rough on the helicopter, the hard landing was not an especially good one for West. West was banged up, and emergency responders brought him to the hospital for observation, where he was kept overnight and not discharged until Christmas Day. Although he did not suffer any broken bones, West alleged that the extreme force exerted on his body (10Gs or more) exacerbated his preexisting gastrointestinal problems.

Later on, West was diagnosed with PTSD related to the accident. He explained to the jury that his PTSD interfered with his flying, as over time his symptoms worsened and he eventually curtailed much of his flying activities.[4] In addition, he experienced flashbacks, nightmares, and difficulty sleeping.


At trial, the parties presented the jury with vastly different theories to explain the engine's sudden shutdown.

West believes it was caused by a problem with the electronics. His experts explained (and the defendants agreed) that Bell 407s are equipped with mechanisms intended to prevent the engine from rotating too quickly, a condition known as " overspeed." [5] Should the engine begin to spin too fast, the electronic controls send a signal to a device known as the " overspeed solenoid." The solenoid is basically an electrical switch coupled with a fuel valve, and fuel must flow through that valve before it reaches the engine.

When an electrical current reaches that solenoid, the switch activates and causes a plunger to close, which shuts the valve. The valve is designed so that, even when closed, some fuel is still able to get through and into the combustion chamber. With less fuel to burn, the engine speed begins to slow. Once the electronic controls " see" that the engine speed has been brought back under control (meaning the engine is no longer in " overspeed" ), electricity stops going into the solenoid. Without electricity coming in, the plunger opens back up, restoring the full flow of fuel to the engine. At least, that's how it's supposed to work.

West theorized that his engine shutdown was caused by an unintended activation of the overspeed solenoid when, in fact, the engine was not spinning too fast.[6] Throughout trial, the parties referred to this phenomenon as false overspeed solenoid activation, or " FOSSA." FOSSA just means that the solenoid incorrectly " thought" the engine was spinning too fast and closed the valve.

At trial, West sought to convince the jury that his helicopter experienced FOSSA approximately 45 minutes into his flight. He claimed the FOSSA reduced the fuel flow enough and for a sufficient length of time so that the engine, no longer having enough fuel to stay lit, flamed

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out. It happened in the first place, West theorized, because one of the components[7] within the helicopter's electronic control system malfunctioned in a way that sent an electrical signal into the overspeed solenoid. And, due to the solenoid's design, any electrical signal will activate it and close the fuel valve.

West's liability expert, Peter Chen, took the position that normal fuel flow would not return once electricity ceased flowing into the solenoid, by which he meant that the valve would not open up again on its own. Chen opined that the system needed to reset itself once the engine overspeed had been eliminated. In West's case, however, because there was no genuine engine overspeed in the first place, the reset signal never went out.[8] Thus, the engine continued to operate on a restricted fuel flow, which ultimately turned out to be insufficient to keep the engine running and the helicopter aloft.

To further support West's theory, his experts pointed to other FOSSA incidents involving Bell 407s equipped with the same electronic controls. West argued that his incident was similar to those others, although with at least one significant difference: in the other FOSSA events, the helicopter's incident recorder[9] showed that the overspeed solenoid had been triggered, while West's did not. Instead, the incident recorder in West's helicopter showed that everything was running fine up until the moment the engine shut off.

West's experts explained to the jury, however, that the incident recorder, instead of creating a continuous, uninterrupted record, takes " snapshots" of the system's status every 48 milliseconds.[10] If the recorder notes a problem with the helicopter or its electronics, it creates and saves a data log that could be reviewed and analyzed later. One of the things that would generally be recorded is an activation of the overspeed solenoid.

But, according to West's experts, not every activation of the overspeed solenoid necessarily shows up in the incident recorder's log. Specifically (and as the defense witnesses agreed), if the flow of electricity going to the overspeed solenoid shuts off after 24 milliseconds or less, such a short-lived event would not be recorded under any circumstances. And if the current had gone into the solenoid for up to 48 milliseconds (in other words, if it was activated for 48 or fewer milliseconds), it may or may not have shown up on the recorder. Whether or not a 48-millisecond or shorter signal would be noticed by the data recorder depends entirely on when the activation occurred with respect to the " snapshot" that preceded it.

On the flip side, an electrical signal of any duration, even one less than 24 milliseconds, would activate the solenoid and restrict ...

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