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August 18, 2003


The opinion of the court was delivered by: Mathew Kennelly, District Judge


These consolidated actions, which involve the crash of a Garuda Indonesia airliner in Indonesia in September 26, 1997, are set for trial in late September 2003. The case had originally been set for trial in late March 2003, but trial was deferred for six months at the request of both parties so that they could attempt to settle it. At that time, a number of pending motions were withdrawn and were therefore terminated by the Court with the understanding that they would be revived if the effort at settlement did not succeed. In late July, the parties advised the Court that they had not settled the case. Briefing on certain of the motions has now been completed. In this order, the Court rules on those motions.

1. Defendant's motion for summary judgment on strict liability claims

The plaintiffs' claims against Sundstrand arise from their contention that the aircraft's ground proximity warning system, which they say was manufactured by Sundstrand, was defective, failed, and caused the crash. Plaintiffs have asserted claims of negligence and strict [ Page 2]

liability in tort. Sundstrand has moved for summary judgment on the strict liability claims based an Illinois statute which provides as follows:

[N]o product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations and, in any event, within twelve years from the date of the first sale, lease or delivery of possession by a seller . . . of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.
735 ILCS 5/13-213(b).*fn1 Sundstrand disputes that its GPWS was on board the aircraft. It argues, however, that if one believes plaintiffs' evidence purporting to show that a Sundstrand-manufactured GPWS was on the aircraft, that evidence reflects that the GPWS had to have been sold more than twelve years before the crash. Plaintiffs respond that it is incongruous for Sundstrand to take the position that its GPWS was not on the aircraft but nonetheless rely on the contrary proposition in seeking summary judgment. They also argue that there is circumstantial evidence that Sundstrand made an express lifetime warranty for its GPWS.

The Court rejects plaintiffs' argument that it is inappropriate for Sundstrand to base a summary judgment motion on the proposition that its GPWS was on the aircraft when it denies that proposition. The standard for assessing summary judgment motions requires the Court to consider the evidence in the light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). For that reason, it is not at all improper, nor is it uncommon, for a defendant to base a summary judgment on the plaintiff's view of the evidence. Doing so does not require the defendant to concede the evidence's admissibility or to concede for purposes of trial the truth of any of the plaintiff's contentions. [ Page 3]

Plaintiffs' sole support for the proposition that there was an express lifetime warranty is the affidavit of one of its expert witnesses, Glenn Haskins, presented as an expert in the field of airborne guidance, navigation and control equipment. Haskins states that under Federal Aviation Administration requirements (which he does not identify in his affidavit), "if avionics equipment [of the type at issue] has a finite design life expectancy, it must be incorporated into the maintenance requirements for that equipment. Sundstrand Corporation did not have any design life expectancy criteria for the Mark II ground proximity warning computer incorporated in the maintenance requirements for the GPWS, and this constitutes an express warranty that there is no limitation on its useful life." Haskins Affid. ¶ 4(e).

The final clause of Haskins' statement — that the failure to identify a limitation on the life expectancy of the device — amounts to a legal conclusion that he is not competent to make and one that the Court must assess independently. Plaintiffs have provided the Court with no legal authority supporting the proposition that evidence along the lines indicated by Haskins supports a claim of express warranty under Illinois law (which, in the absence of any contrary indication by the parties, we will assume applies). Under Illinois law, an express warranty exists when the seller makes a positive assertion of fact to assure the prospective buyer of that fact and induce him to make the purchase. See McAndrews & Forbes Co. v. Mechanical Manufacturing Co., 367 Ill. 288, 297, 11 N.E.2d 382, 386 (1937). Although "[n]o particular words or forms of expression are necessary to create an express warranty," id., implicit in the concept of an express warranty is that there has to be an expression of some sort, and here plaintiffs have referred the Court to none. See 810 ILCS 5/2-313(1)(a)-(c) (express warranty is created by an "affirmation of fact or promise made," a "description of the goods," or a "sample or model"); Weiss v. Rockwell [ Page 4]

Manufacturing Co., 9 Ill. App.3d 906, 914, 293 N.E.2d 375, 381 (1973) ("to be actionable under the theory of express warranty the claim must be based on an affirmation of fact or promise which is not a statement representing the seller's opinion or commendation of the goods"); cf. 1 J. White & R. Summers, Uniform Commercial Code § 9-5 at 490 (4th ed. 1995 & Supp. 2003) (discussing Hill Aircraft & Leasing Corp. v. Simon, 122 Ga. App. 524, 526-27, 177 S.E.2d 803, 805 (1970), in which the court found that the description of an aircraft as "Aero Commander, N-2677B, Number 135, FAA, Flyable," was an express warranty that the aircraft complied with FAA Regulation Part 135). Again, plaintiffs have not referred the Court to any authority from Illinois or elsewhere that the failure to claim a limited useful life, combined with a federal regulation purportedly providing that any limitations on useful life must be disclosed, constitutes an express lifetime warranty.

For these reasons, the Court grants summary judgment in favor of defendant on Counts 1 and 2 of the plaintiffs' second amended complaint in the Rasyidin case (99 C 6946) and Counts 1 and 2 of the plaintiffs' first amended complaint in the Wilson case (99 C 6944).

2. Plaintiffs' renewed motion for summary judgment as to certain affirmative defenses

Plaintiffs have moved for summary judgment as to Sundstrand's third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth affirmative defenses on the grounds that Sundstrand has failed to identify any information which supports any of those defenses. The motion is denied as to the third affirmative defense, which relies on the Illinois statutes of limitation and repose.

In its fifth affirmative defense, Sundstrand asserts that plaintiffs have failed to join one or more indispensable parties, though it identifies no such party. In the sixth defense, Sundstrand [ Page 5]

asserts that other unnamed persons or entities were the proximate cause of the plaintiffs' injuries. In the seventh defense, Sundstrand alleges that the plaintiffs' injuries were the result of an unavoidable accident. In the eighth defense, Sundstrand asserts that plaintiffs' injuries were the result of negligence or culpable conduct of other unnamed persons. In the ninth defense, Sundstrand alleges that the product at issue complied with the state of the art, industry standards, and applicable regulations. In the tenth defense, Sundstrand alleges that the injuries were caused by an inherent characteristic of the product for which it provided adequate warnings. In the eleventh defense, Sundstrand asserts that at the time the product left its control, there was no practical and feasible alternative design that would have prevented the injuries, In the twelfth defense, Sundstrand asserts that the product was sold to informed buyers and that the accompanying warnings and instructions were sufficient to exculpate Sundstrand from liability. In the thirteenth defense, Sundstrand alleges that plaintiffs' injuries were caused by the unforeseeable misuse or alteration of the products by other unnamed persons.

The first question is whether these are, in fact, "affirmative defenses," The fact that Sundstrand has called them that does not make it so; it is not particularly uncommon for defendants to plead as affirmative defenses allegations that simply state the negative of some proposition on which the plaintiff bears the burden of proof. What exactly constitutes an affirmative defense is left open by the Federal Rules. See Fed.R.Civ.P. 8(c); see generally, 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1270-71 (1990 & Supp. 2003). Neither party has given the Court any input on the question whether the matters asserted by Sundstrand are truly affirmative defenses, let alone whether they are matters on which Sundstrand bears the burden of proof. The Court does not intend to do the parties' work for them in this regard and [ Page 6]

thus does not address at this time whether the matters asserted by Sundstrand are actually affirmative defenses under applicable law.

To the extent, however, that the matters asserted in the affirmative defenses are in fact issues on which Sundstrand bears the burden of proof, plaintiffs are entitled to summary judgment. See Fed.R.Civ.P. 56(a) (plaintiff may seek summary judgment on part of a claim); id. 56(d) (permitting the Court to enter what is sometimes referred to as "partial summary judgment"). In their motion, plaintiffs do not attempt to show affirmatively that these "defenses" lack merit. Rather they essentially argue that Sundstrand cannot support any of them. A party may properly seek summary judgment by essentially throwing the ball into the court of the party with the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When such a motion is made, the non-moving party bearing the burden of proof on the particular issue must "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed.R.Civ.P. 56(e)).

Sundstrand's response to plaintiffs' motion is fourfold. First, Sundstrand argues that the motion is premature. It most decidedly is not. The motion was made at the deadline for filing such motions that the Court had set, which was a little over three months before trial in a case that was three years old at that point. Moreover, contrary to Sundstrand's suggestion, a plaintiff is not required to demonstrate liability, or a prima facie case of liability, before seeking summary determination of an affirmative defense. Sundstrand has cited no authority suggesting that such a rule exists, nor is the Court aware of any.

Second, Sundstrand argues that it has supplemented certain discovery responses to which [ Page 7]

plaintiffs referred in their motion for summary judgment. This argument misses the point. When a summary judgment motion is made, the opposing party has to show the Court its evidence. Its earlier supplementation of discovery responses may clear the way for this, but the fact that unspecified information has been identified in discovery obviously does not defeat a summary judgment motion. In any event, Sundstrand's so-called supplementation of its discovery responses was woefully deficient. Its attorney simply plaintiffs' attorney sent a letter, long after discovery was closed, stating in its entirety as follows:

Please be advised that Hamilton Sundstrand Corporation hereby amends its prior discovery responses to include the information which has been revealed to all parties during the discovery in this case, including but not limited to the depositions which have recently been taken in England and Washington, the court proceedings in Australia, and the documents produced by those witnesses and in that proceeding.
Dfdt's Resp. to Pltf's Renewed Mot. for SJ, Ex. B. That was neither a proper response to discovery nor a proper supplementation of existing answers. The disclosing party must give enough information to permit the requesting party to identify which disclosed information is responsive to which request. See, e.g., Fed.R.Civ.P. 33(d) (party that answers interrogatory by reference to records must provide sufficient detail to permit opposing party to identify the records from which the answer may be ascertained); id. 34(b) (party producing documents must produce them as they are kept in the ordinary course of business or must organize them to correspond with the categories in the request).

Third, Sundstrand argues that its "affirmative defenses" satisfy federal pleading requirements. Again, this misses the point, Plaintiffs are seeking summary judgment on the defenses; they have not moved to strike them for inadequate pleading. [ Page 8]

Finally, Sundstrand suggests that information may yet be forthcoming to support certain of the "affirmative defenses." But the time to provide that evidence was now; Sundstrand has failed to do so.

For these reasons, to the extent Sundstrand's fifth through fourteenth affirmative defenses are actually affirmative defenses, partial summary judgment under Rule 56(d) is granted in plaintiffs' favor on those affirmative defenses. To the extent ...

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