The opinion of the court was delivered by: Kristi K. DuBOSE United States District Judge
This action is before the Court on the motion for partial summary judgment filed by defendant Teledyne Continental Motors, Inc. (TCM) and supporting documents (doc. 67-69), the response and supporting documents filed by Plaintiffs Larry Dale Crouch, Rhonda Mae Crouch, Teddy Lee Hudson, and Carolyn Sue Hudson (Plaintiffs) (doc. 85), and TCM's reply (doc. 95). Upon consideration and for the reasons set forth herein, the motion is denied in part and otherwise carried to trial. *fn1 *fn2
I. Factual background *fn3
On November 21, 2006, Larry Crouch was piloting his Piper PA-32RT-300 Lance II Cherokee single-engine plane from Mayfield, Kentucky to Frankfort, Kentucky. Teddy Hudson was his passenger. The plane was equipped with a Lycoming IO-540-K1G5D engine and a TCM magneto. The plane crashed near Bardstown, Kentucky.
Analysis of the data obtained from the engine analyzer, which recorded engine data every six minutes, indicated that the plane's engine stopped producing power at a point between 12:03 p.m. and 12:10 p.m. Radio transmission with Air Traffic Control at Louisville-Standiford Airport, ended at approximately 12:12:31 p.m., the approximate time of the crash. The plane did not make it to Bardstown Airport and crash landed at another nearby airstrip. Crouch and Hudson were injured and are now paraplegic.
In regard to the loss of power to the engine, Plaintiffs assert that "the magneto's mounting flanges broke which caused the magneto to fall off" or "twist off" during flight and that caused the engine to lose power (doc. 85, p. 4, 7). Plaintiffs assert that the "flanges broke due to hidden fatigue fractures that had been developing for some time" (Id.). Plaintiffs propose two primary causes for the flanges breaking. First, the flange was poorly designed by TCM and did not include a "margin of error on the part of the installer" and second, the use of an authorized but defective gasket "in combination with clamps which were not recommended for this type of magneto aggravated the weakness of the magneto design and contributed to the failure of the magneto flange." (Id., p. 6).
As evidentiary support, Plaintiffs rely upon their expert witness reports expressing and supporting plaintiffs' theory that the magneto separated during flight which caused the loss of engine power (docs. 85-1 through 14, Exhibits A-D; doc. 85-17 through 19, Exhibits G-H) and the data from the engine analyzer (doc. 85-27; doc. 85-12, p. 7-9, conclusions of James Hall, Former Chairman of the National Transportation Safety Board (NTSB)). Plaintiffs also rely, inter alia, upon the following: The Air Traffic Control transcript (doc. 68-6); TCM's 2009 letter to the Federal Aviation Administration (FAA) discussing the fracture of the magneto flange; the NTSB report of Crouch and Hudson's crash (doc. 85-23, Exhibit K); the expert witness's reference to the August 2003 NTSB report of the September 25, 2001 incident involving the separation of the same type of magneto from the same type of Lycoming engine in a Piper aircraft (doc. 85-2, p. 6, Exhibit A, Carden report); two investigative reports received by TCM in October 2004 and January 2005 relating to the September 25, 2001 incident and advising of the potential for magneto flange failure (doc. 85-31, Exhibit S; doc. 85-32, Exhibit T); Lycoming Service Instructions from 2002 and 2003 (doc. 85-16, Exhibit F) (instructions for attaching magnetos to the engines of Mooney and Cessna Cardinal aircraft but with a different type of Lycoming engine); the expert witness's reference to the August 2006 NTSB report related to the March 1, 2006 incident where the same type of magneto separated from a different type of engine in a Mooney aircraft (doc. 85-2, p. 6, Exhibit A, Carden report);*fn4 the testimony of a TCM employee as to knowledge of more than ten cases where the magneto separated from the engine (doc. 85-34); and the testimony of Crouch and Hudson (doc. 85-21, 22, and 24, Exhibits I, J, L).
TCM asserts that Crouch thought there was an engine fire and then he shut off the fuel supply to the engine during flight which caused the engine to lose power. TCM asserts that the magneto did not twist off or separate during flight but instead broke off the engine on impact of the crash.
As evidentiary support, TCM relies upon the affidavit of John S. Barton (retired Senior Vice President of Engineering and Technology for TCM, doc. 68-1) and the exhibits attached: The FAA accident investigator's notes regarding the fire in the engine as proof there was a fire in flight (doc. 68-3, NTSB docket, p. B-14, 18); Pilot Operating Handbook instructions that the pilot should cut off the fuel to the engine when there is an engine fire (doc. 68-7); deposition testimony of Hudson as to when he saw or smelled smoke and told Crouch (doc. 68-5); the Air Traffic Control transcript of communications with Crouch (doc. 68-6); deposition testimony of George Durham regarding his conversation with Crouch after the accident wherein Durham states that Crouch told him that he cut off the engine and tried a re-start (doc. 68-8); engine analyzer report showing the time period where engine power was lost (doc. 68-3, NTSB docket, p. B-3, B-5); and the NTSB docket indicating the FAA investigator's conclusion that the magneto broke off "in what appears to be impact damage." (doc. 68-3, p. B-15).
II. Summary Judgment Standard *fn5
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If a party asserts "that a fact cannot be or is genuinely disputed", the party must
(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce ...