The Law Office of Kurt H King

May 22, 2013

New Opinion Affirming Award of Punitive Damages in Delacroix v. Doncasters

As of May 7, 2013, the Eastern District of the Missouri Court of Appeals handed down a revised opinion in appeal ED97375, a case captioned Delacroix v. Doncasters which addressed the level of proof necessary for an award of punitive damages in an aircraft product liability case in Missouri.

This court’s first slip opinion issued January 2013 in appeal ED97375 affirmed the trial court’s decision to disavow the jury’s award of $28 million in punitive damages to the plaintiffs who were killed in the crash of the sky diving plane fitted with defective blades sold on the market by a company later purchased by defendant Doncasters.

But the court’s second opinion dated May 7, 2013, turned about to fully uphold the jury’s award of punitive damages.

In reaching its final conclusion that the plaintiffs did in fact sufficiently prove their case for an award of punitive damages, the court stated that plaintiffs in a strict liability products case must present clear and convincing evidence that the defendant placed in commerce an unreasonably dangerous product with actual knowledge of the defect, and that by doing so acted with conscious indifference or reckless disregard for the safety of others.  The court defines “clear and convincing” as being evidence sufficient to permit a reasonable juror to conclude with convincing clarity the truth of the proposition sought to be proven.  These standards and definitions may seem a bit circular and hazy but it seems that the court “knows one when it sees it.”

Here the evidence presented by the plaintiffs to justify punitive damages included expert testimony based on documents produced by the defendant that the blades never passed the FAA tests for durability of the engine prop blades that failed to cause the crash that killed the sky divers, and that the manufacturer knew of the failure but nevertheless made and sold the blades anyway–a mind-boggling mistake.  The blades failed two durability tests and never passed the test in the engine for which they were manufactured.  This the manufacturer knew before the sale of the blades involved in this case.  Not only did the original manufacturer know the blades failed, but so did defendant Doncasters, the purchaser of the manufacturing company.  Despite admitted knowledge of the sale of defective blades, defendant Doncasters never recalled or issued warnings to purchasers of the defective blades.

While a dissenter  wrote against the decision on this appeal, the reasoning of the block of justices upholding the award of punitive damages to plaintiffs rests on solid ground.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Litigation–Personal Injury, Workers’ Compensation, and General Matters

January 29, 2013

Pre-impact Terror and Actual Knowledge for Punitive Damages in Aircraft Product Liability Case

The Eastern District of the Missouri Court of Appeals recently issued its opinion ED97375 in Delacroix v. Doncasters, Inc. (01.15.2013), an airplane product liability case.  That court affirmed $4 million of compensatory damages as to each of the five persons killed in the 07.29.2006 crash of a sky-diving plane, but denied plaintiffs $28 million of punitive damages also awarded by the Franklin County jury in a trial bifurcated as a sanction against Doncasters,Inc., for late production of 8000 documents to plaintiffs’ counsel.

Besides the bifurcation sanction, this case holds interest in at least three areas:

1.  Court agrees that plaintiffs are entitled to recover for pre-impact terror during the 52 seconds that it took the plane to hurtle to ground after a defectively coated compression turbine blade failed and destroyed the right engine.  Simply put, the court found the passengers killed by the crash began to suffer injury–terror, distress–when the engine failed and before the physical impact brought death.  Therefore, no error in submitting the case to the jury using MAI 5.01 with language allowing award of damages for the damages that the deceased persons suffered between the time of injury and death.

2.  Plaintiffs sought to offer evidence of twenty-six similar blade failures.  However, the court excluded all, finding cause of blade failure in those incidents did not match that of the blade at issue in this case–substandard coatings which allowed corrosion of the also substandard base metal of the blade.

3.  The court of appeals took away the jury’s $28 million award of punitive damages, finding the testimony of plaintiffs’ experts failed to show the required actual knowledge by the defendant of the defective condition.  Plaintiffs’ experts testified that the company knew that the blades failed to pass–twice–FAA 150 hour endurance tests  in the subject engine type and therefore knew the blades were defective prior to 1986.  Indeed, the company’s representative testified that defendant Doncasters, Inc., knew the blades were defective but claimed to have only first so learned in 2001, some time after Doncasters bought the company that sold these defective blades in 1996.   Why were the blades not recalled and/or warnings sent out by Doncasters after purportedly discovering defects in 2001?

In any event, the dissenting judge opines that plaintiffs’ expert testimony certainly satisfied the burden of proof on actual knowledge of the company that its blades were defective due to inferior anti-corrosion coating and substandard base metals which never passed FAA endurance tests.  Indeed, the jury surely thought that Doncasters’ fault so serious as to be deserving of $28 million in punitive damages to punish it and deter others from such reckless disregard for the safety of others.   A strong point of the dissent is that the jury is free to disbelieve Doncasters’ claim it first learned of the defective condition in 2001, and plaintiffs’ experts testified to defendant’s actual knowledge as being prior to 1986.  [Keep in mind, that the purchaser of the stock of a company, as Doncasters presumably did in this case, generally renders the purchaser liable for the liabilities of the company it so purchased.]

Interesting case handled for the plaintiffs by good lawyers–Gary and Anita Robb of Kansas City.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation, General Litigation

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