IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STACIE CAVNER and PRESTON CAVNER,husband and wife,and parents of HUDSON CAVNER and MYLES CAVNER,minors; RACHEL ZIENTEK,a single woman;TAMMY ZIENTEK and MICHAEL ZIENTEK, husband and wife,and parents of Rachel Zientek;THE ESTATE OF MYLES CAVNER,by its personal representative CAROLANN O'BRIEN STORLI;CAROLANN O'BRIEN STORLI,as litigation guardian ad Litem for HUDSON CAVNER,a minor, Appellants/Cross-Respondents, V. CONTINENTAL MOTORS,INC.,a foreign corporation, Respondent/Cross-Appellant, NORTHWEST SEAPLANES,INC.,a Washington corporation; and ACE AVIATION,INC.,a Washington corporation, Defendants.

• No. 76178-1-1 DIVISION ONE UNPUBLISHED OPINION

FILED: March 18,2019 ANDRUS,J.— Preston Cavner, his wife, son,and babysitter were seriously injured, and another son killed, when the single-engine Cessna airplane Preston piloted crashed on takeofffrom an Anchorage,Alaska airport. Two families suedIN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON

STACIE CAVNER and PRESTON CAVNER,husband and wife,and parents of HUDSON CAVNER and MYLES CAVNER,minors; RACHEL ZIENTEK,a single woman;TAMMY ZIENTEK and MICHAEL ZIENTEK, husband and wife,and parents of Rachel Zientek;THE ESTATE OF MYLES CAVNER,by its personal representative CAROLANN O'BRIEN STORLI;CAROLANN O'BRIEN STORLI,as litigation guardian ad Litem for HUDSON CAVNER,a minor, Appellants/Cross-Respondents, V. CONTINENTAL MOTORS,INC.,a foreign corporation, Respondent/Cross-Appellant, NORTHWEST SEAPLANES,INC.,a Washington corporation; and ACE AVIATION,INC.,a Washington corporation, Defendants. No.76178-1-1 DIVISION ONE UNPUBLISHED OPINION

FILED: ANDRUS,J.— Preston Cavner, his wife, son,and babysitter were seriously injured, and another son killed, when the single-engine Cessna airplane Preston piloted crashed on takeofffrom an Anchorage,Alaska airport. Two families suedNo.76178-1-1/2

the aircraft engine manufacturer, Continental Motors, Inc. (CMI), under Washington's Product Liability Act, Chapter 7.72 RCW, alleging design and manufacturing defect claims and a failure to warn claim. After CMI alleged that pilot error caused the crash, Stacie, Hudson, and Myles's estate asserted a contingent cross-claim against Preston. The trial courtdismissed the design defect claim based on Estate ofBecker
v. Avco Corp., 192 Wn.App.65, 365 P.3d 1273 (2015)(holding airplane design defect claim preempted by federal aviation law). The parties tried the manufacturing defect and failure to warn claims against CMI and the cross-claim against Preston. The jury exonerated CMI of any liability and found Preston 100 percentatfaultfor the crash. Plaintiffs appeal, seeking a new trial on all claims, and CMI cross-appeals certain legal rulings in the eventwe remand any claim for trial. We reverse the dismissal of Plaintiffs' design defect claim. We affirm the jury's finding that Preston was negligent and that his negligence was a proximate
cause of the crash. We affirm the jury's findings for CMI on the manufacturing defect and failure to warn claims. We remand for a trial limited to the question of whether CMI's engine was not reasonably safe as designed,whether any design defect was a proximate cause of the crash, and if so, how much fault to allocate between CMI and Preston Cavner. FACTS Stacie and Preston Cavner own a lodge in remote Alaska. Preston, a licensed pilot, regularly flew to the lodge from an Anchorage, Alaska airport. In

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March 2010,Preston purchased a 1976 Cessna U206F airplane in Washington for his family's use at the lodge. The Cessna had a six cylinder engine, model no. 10-520-F,manufactured by Alabama-based CMI. Because the Cessna U206F is considered a "high performance airplane," Preston needed additional instruction before he could obtain a Federal Aviation Administration (FAA)endorsement to act as pilot in command of this model of plane. Preston hired an instructor to travel with him as he flew the plane from Washington toAlaska to provide the requisite instruction. Preston experienced no problemswith the plane's engine while en route toAlaska. Hethen used the plane almostdaily between March 2010 and June 1, 2010,without incident. On May 31, 2010, Preston and his family flew to Anchorage to pick up Rachel Zientek, a 16-year-old family friend who planned to stay with them for the
summer to look after the children. The following day, Preston loaded the plane with lumber,tile,grout,groceries,luggage,and otherfamily possessions to deliver to the lodge. He fueled the plane and loaded his passengers. Stacie sat in the front passenger seat, holding Myles, age 4, in her lap. Rachel sat in the seat behind Preston,holding Hudson,age 2,in her lap. On takeoff, the plane lifted off, flew approximately one half mile, and crashed into an abandoned building. A fire engulfed the plane, killing Myles. Stacie sustained a collapsed lung,and severe burns over her entire body,leading to the amputation of her legs below the knee and of a part of her right hand. Hudson sustained severe burns on his head,ear,shoulder,forearm,left hand,and right foot. Preston had extensive facial injuries and burns to his legs, and lost the

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sight in his right eye. Rachel's injuries included vertebral fractures, third degree burns to her arms, and more severe burns to her legs, specifically her feet and ankles,which resulted in removal ofall ten toes. In May 2012,Plaintiffs, Preston,Stacie,and Hudson Cavner,the Estate of Myles Cavner, Rachel Zientek, the babysitter, and her parents, Tammy and Michael Zientek,filed suit against CM1.1 They alleged that CMI was liable for the plane crash because the engine components were not safe as designed or manufactured, and that CMI failed to provide adequate instructions on how to properly test for adequate compression in the engine's cylinders. Plaintiffs also named as defendants Ace Aviation, Inc. and Northwest Seaplanes,alleging they failed to detect unreasonably low compression in the engine's cylinders during inspections. Plaintiffs settled with these defendants before trial. CMI contended Preston overloaded the plane, failed to load it properly to ensure an appropriate center of gravity, failed to secure the load which shifted during the crash, pinning the passengers, and misused the wing flaps during takeoff. CMI alleged Preston's negligence wasthe sole cause ofthe crash. Stacie, Hudson,and Myles's estate filed a contingent cross-claim against Preston.2 Before trial, this court held that a claim of design defect in an aircraft fuel system was preempted byfederal law. Becker, 192Wn.App.at79. Based on the

1 Where necessary,this opinion refers to the plaintiffs by theirfirst namesfor convenience and clarity.

2 The Zienteks did not asserta cross-claim against Preston because they sued Preston in state court in Texas and settled their claims in 2012.
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Court of Appeals decision in Becker, the trial court dismissed Plaintiffs' design defectclaim,and excluded evidence ofengine design defects as irrelevant,except as relevantto the Plaintiffs'failure to warn claim. During a three-month trial, the parties presented competing experts who opined on the existence of manufacturing defects, the adequacy of CMI's instructions to mechanics for diagnosing cylinder compression problems, and causation. Plaintiffs' manufacturing defect claim was based on expert testimony that there were metal "burrs" (sharp metal edges) in check ball housings in the cylinders, a defect in the manufacturing process. Their experts testified that the presence of burrs violated CMI's design specifications. They opined that burrs break off and lodge between the check ball and its seat, making the valves inoperable. One expert, Donald Sommer, testified the metal burrs caused the valves in Preston's engine to seal improperly, leading to a loss of,engine power and ultimately the crash. CMI presented evidence that a post-crash examination of the check ball housings revealed no burrs present in the cylinders. CMI's experts testified that
even if burrs were present, they would have been caught in the engine's oil filter and would have been too small to cause engine failure. Plaintiffs based theirfailure to warn claim on CMI's decision to departfrom
an aviation industry compression testand todevelop its own protocolforevaluating the adequacy of cylinder compression in its engine. Plaintiffs'experts opined that

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CMI failed to warn of compression problems with this model of engine and that CM!promoted the use ofan unsafe compression testing protocol. CM!disputed Plaintiffs'evidence that its compression testing protocol was inadequate. It presented evidencethatthe protocol wassupported byengineering tests, had been approved by the FAA,and had been in use for decades. The parties also disputed the cause of the plane crash. Plaintiffs' experts testified that Preston's Cessna crashed because the engine lost cylinder compression and could not develop full power. They attributed the loss of compression to defective valve lifters and the presence of burrs in the check ball housings. But CMI presented experttestimony that post-crash testing proved the engine had the capability of developing full power, and that the valve lifters operated without problems. CM! also presented testimony from several eyewitnesses ofthe crash who did not see or hear anything suggesting the plane lost power while in flight. To support its claim that pilot error caused the crash, CMI presented evidence that Preston loaded the Cessna in excess of the maximum allowable gross takeoff weight of 3,600 pounds, violating FAA regulations and the pilot operating handbook for this plane.3 CMI also presented evidence that Preston failed to calculate the center of gravity and failed to balance the load to maintain the appropriate center ofgravity.

3 Like an automobile manual,each plane has a flight manual,or pilot operating handbook, unique to the plane it accompanies.
6No.76178-1-1/7 Plaintiffs'experts did not dispute that Preston overloaded the plane. While theydisagreed astothe exactweightofthefully loaded plane,allagreed the plane, with passengers and cargo, was at least 471 pounds overweight. Nevertheless, the partiesdisputed whether Preston's overloading the Cessna rendered the plane unsafe to fly. CMI's experts testified that the FAA,by setting a maximum takeoff weight of 3,600 pounds, determined flying that model of plane above its weight limit was not safe. Plaintiffs' experts disagreed that the plane was unsafe to fly and testified that Preston's overloading the plane did not cause the accident. CMI's experts also testified that Preston's use of wing flaps during takeoff contributed to the crash. Preston testified he set the wing flaps at 30 degrees on takeoff. According to CMI's experts,the maximum flap angle allowed by the FAA
on takeoff is 20 degrees if the plane is at or below the maximum gross takeoff weight. Further complicating the situation, Preston had hired a mechanicto install
a fiberglass exterior cargo carrier, known as a "belly pod,"on his plane. The belly pod manufacturer issued a supplemental pilot operating handbook that specified the maximum flap deflection on takeofffor a plane modified with its belly pod could be no greater than 10 degrees for any takeoff weight in excess of 3,450 pounds. Preston did notfollow this operating procedure. While CMI presented evidence that operating the plane with 30 degrees of flap angle rendered the plane unsafe and unairworthy, Plaintiffs' experts testified that a Cessna U206F equipped with a belly pod is capable offlying safely with 30 degrees offlap. Plaintiffs'experts also opined that misuse of the flaps on takeoff did not cause the accident.

7No.76178-1-1/8 The juryfound against Plaintiffs on their manufacturing defectand failure to warn claims. Itfound no negligence on the part of Stacie,and found Preston 100 percent at fault for the crash. The jury found the Plaintiffs had the following damages: $4,265,768 for Hudson, $3,785,621 for Rachel, $1 million for each of Rachel's parents, $493,000 for Myles's estate, $4,119,724 for Preston, and $6,086,705 for Stacie. The trial court entered judgments in favor of the Cavner family members against Preston. Plaintiffs'claims against CM!were dismissed. ANALYSIS A. Dismissal of Desipn Defect Claim After trial, the Washington Supreme Court reversed Becker, holding the Federal Aviation Act and FAA regulations did not preempt design defect claims under Washington's Product Liability Act. Estate of Becker v. Avco Corp., 187 Wn.2d 615, 623-24, 387 P.3d 1066 (2017). Because the law changed between the time of trial and this appeal, we conclude Plaintiffs' design defect claim must be reinstated. CMI argues remand is notwarranted becausethejurydetermined Preston's negligence was the sole cause of the crash, and Plaintiffs cannot, as a matter of law, establish any design defect proximately caused the crash. But the jury's proximate cause finding would preclude remand only if we could conclude the jury's finding would have been the same had the design defect claim been presented to it. See McDaniel v. City of Seattle, 65 Wn.App. 360,369,828 P.2d 81(1992)(jury finding of probable cause to arrest plaintiff rendered dismissal of

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malicious prosecution claim harmless error because jury'sfinding wentto element ofdismissed claim). We cannot reach such a conclusion here.4 Plaintiffs alleged the engine's cylinders and valve lifters were defective in design. Although some of this evidence may have been presented at trial in the context of the experts'discussion of the failure to warn claim and causation, the jury rendered no finding as to the existence ofa design defect. The jury was only asked whether the engine was "not reasonably safe in construction" based on a manufacturing defectclaim underRCW 7.72.030(2). Plaintiffs'design defectclaim
arose under RCW 7.72.030(1). The standard jury instructions for manufacturing defect claims and design defect claims differ materially. See 6 WASHINGTON PRACTICE:WASHINGTON PATTERN JURY INSTRUCTIONS:CIVIL 110.01, 110.02(6th ed. 2017). The jury was notasked whether CMl's engine was "notreasonably safe as designed." Therefore, we cannot conclude as a matter of law that the jury's causation finding precludes Plaintiffs' design defect claim. Without knowing whether the jury would have found a design defect, we cannot assume the jury would have determined that such a design defect, if any, was not a proximate
cause ofthe crash. Plaintiffs argue if we remand the design defect claim for trial, we must vacate the jury's determination that Preston was 100 percent atfaultfor the crash because the jury was notasked to compare hisfaultwith that ofCMI in the context

4Atoralargument,the partiescontested whethertheevidencesupporting Plaintiffs'design and manufacturing defectclaimswasthe same. Afteroral argument,Plaintiffs moved for leave to supplementthe clerk's paperswith a copy ofCMI's Motion to Determine that Federal Law Applies to the Standard ofCare. We hereby grantthat motion.
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of an alleged design defect. We agree. Generally, where two issues are so intertwined a jury could notfairly decide one in isolation withoutdanger of injustice to the other, the new trial must be had on both issues. Walker v. State, 67 Wn. App.611,622,837P.2d 1023(1992),rev'd on othergrounds, 121 Wn.2d 214,848 P.2d 721 (1993). Here,if a jury determines a design defect exists and thatdefect was a proximate cause ofthe crash,the jury must also determine the appropriate allocation offault between CMI and Preston. Vacating the jury allocation offault against Preston does not lead us to reverse any of the jury's other findings. We address the appropriate scope of remand below. B. Choice of Law Because we reinstate the design defect claim, we must address CMI's cross-appeal on the appropriate choice of law. CM!contends the trial court erred in applying Washington law to this case. This court conducts a de novo review of
a trial court's decision regarding its conflict of law analysis. Williams v. Leone & Keeble, Inc., 170Wn.App.696,704,285 P.3d 906 (2012). CM! argues Alaska law should govern because the place of injury is presumptively conclusive. We disagree. Washington has abandoned the lex loci delicti rule and followsthe "mostsignificant relationship test"from the Restatement (Second)of Conflict of Laws. Singh v. Edward Lifesciences Corp., 151 Wn.App. 137, 143, 210 P.3d 337 (2009); Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128Wn.App.256,261-62, 115 P.3d 1017 (2005). Under this test,when a conflict exists,Washington courts decide which law applies by determining which jurisdiction has the most significant relationship to a
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given issue. Singh, 151 Wn.App.at 143. There is an actual conflict here because Alaska has abolished joint liability, Alaska Stat. § 09.17.080(d),while Washington law provides for joint liability in cases where the plaintiffs are fault-free, RCW 4.22.070. Alaska also caps noneconomicdamages,while Washington does not. Compare Alaska Stat. §09.17.010 (capping noneconomic damages in personal injury cases resulting in severe permanent physical impairment or disfigurement to $1 million or $25,000 multiplied by the person's life expectancy, whichever is greater), with Sofie v. Fibreboard Corp., 112 Wn.2d 636, 669, 771 P.2d 711 (1989)(holding cap on noneconomic damages unconstitutional under article I, section 21 ofWashington State Constitution). Because there is an actual conflict in applicable law,we must evaluate the contacts both quantitatively and qualitatively. Woodward v. Taylor, 184 Wn.2d 911, 917, 366 P.3d 432 (2016); Singh, 151 Wn.App. at 143. We evaluate the contacts for their relative importance to the issue, including "(a)the place where the injury occurred, (b)the place where the conduct causing the injury occurred, (c)the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d)the place where the relationship, if any, between the parties is centered." Zenaida-Garcia, 128 Wn.App. at 260 (quoting Johnson
v.Spider Staging Corp., 87Wn.2d 577,581,555P.2d 997(1976)). "Ifthe contacts are evenly balanced,the second step ofthe analysis involves an evaluation ofthe interests and public policies ofthe concerned states to determine which state has the greater interest in determination ofthe particular issue." Id. at 260-61.No.76178-1-1/12 Although the injuries occurred in Alaska, which weighs in favor of Alaska law,the parties dispute where the "conductcausing the injury"occurred. Plaintiffs contend CMI's defectively designed products,the engine cylinders,were shipped to and installed in Preston'sairplane in Washington. Theevidence attrial indicated thatthe prior owner,a Washington resident,had all six cylinders replaced with CMI parts in 2005 in Washington. Plaintiffs argue introducing the defective cylinders into the stream of commerce in Washington was the conduct causing the crash. On the other hand,CM!argues Preston's negligence occurred in Alaska. In Martin v. Goodyear Tire & Rubber Co., 114 Wn.App. 823,61 P.3d 1196 (2003), however, this court held that in product liability cases, we look to the conduct alleged by the plaintiff and not the allegation of contributory negligence. The defendant in that case,Goodyear Tire & Rubber Company,argued the motorists' injuries and death were not caused by a defective commercial truck wheel but were, instead, caused by the truck owner,Humbert Construction, overloading the vehicle in Oregon. Id. at 830. The court stated, "Goodyear's arguments in favor of Oregon law rely heavily on acts and omissions committed by Humbert, but Humbert's acts and omissions are not relevant to this inquiry. Instead, we must focus on the contacts pertinent to the products liability claims against Goodyear." Id. (emphasis added). Thus, under Martin, the conduct causing Plaintiffs' injuries
was the design of an allegedly defective cylinder. That conduct occurred in Alabama, not in Washington or Alaska. Therefore, this factor does not weigh in favor ofeither party.

- 12-No.76178-1-1/13 Asto residency,the Cavnersare Alaska residents. The Zienteks are Texas residents. CMI is an Alabama corporation. None ofthe partiesto the appeal reside or are domiciled in Washington. This factor seems to weigh against Washington. The final factor is the place where the relationship of the parties "is centered." Plaintiffs argue the relationship between CMI and the Plaintiffs is centered in Washington because Preston purchased the plane in Washington, CMI's allegedly defective cylinders were installed here, and Preston had the engine's compression inspected here. The plane was flown for years in Washington before being sold in this state, but then Preston flew the plane for months in Alaska before the crash. We conclude these contacts seem to balance each other out. In Johnson, the Supreme Court indicated that we are not to merely count contacts when assessing choice of law; we must instead consider which contacts are the most significant. 87 Wn.2d at 581. The most significant contacts appear to be the place where the injuries occurred (Alaska),the place where the allegedly defective product was installed in the plane (Washington), the place where the allegedly defective product was purchased (Washington),the place where it was used (Washington and Alaska),and the placewherethe majorityofPlaintiffs reside (Alaska). Under these facts, both Alaska and Washington have a relationship to this lawsuit,and the contacts are evenly balanced. Given this balance, we must evaluate which state has the greater interest in the products liability dispute in light of the public policies at issue. We find Johnson the most helpful here. In that case,a Kansas resident was killed when

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scaffolding designed and manufactured in Washington collapsed. 87 Wn.2d at 578. Kansas law limited recovery to $50,000,while Washington allowed unlimited recovery in a wrongful death action. j.çj.at 582. The Supreme Court recognized that a state's interest in limiting wrongful death damages is to protect defendants from excessive financial burdens and to eliminate speculative claims and difficult computation issues. Id. at 582-83. It concluded,however,that the interest was primarily local, meaning it was enacted to protect its own residents. Id. at 583. But applying a Kansas law capping damages would not protect any Kansas resident because the defendant was a Washington company. Id. at 583-84. On the other hand,the Supreme Court noted thatWashington has a strong deterrent policy offull compensation which would be advanced by the application of its own of law. Id. at 583. "Unlimited recovery will deter tortious conduct and will encourage respondents to make safe products for its customers." Id. And as this court.recently recognized in Singh, the scaffolding company in Johnson sold its products in all 50 states, only a few ofwhich had limitations on wrongful death recoveries, making it highly unlikely the manufacturer relied on the Kansas limitation. Singh, 151 Wn.App.at 144. In this case, Alaska law would limit Plaintiffs' ability to recover full compensation for their injuries. Imposing Alaska's cap on damages would not protect any Alaskan resident because CMI is an Alabama corporation. Under Alaska law, Stacie's noneconomic damages would be capped at $1,079,750 and Hudson's would be capped at $1.7 million. The jury awarded Stacie and Hudson

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$3 million and $2 million in noneconomic damages respectively. Applying Alaska law to this case would harm,not benefit,Alaskan residents. Moreover, CMI is one of the two primary aircraft engine manufacturers in the world. It distributes engines not only in Washington and Alaska, but around the world. Like the manufacturer in Johnson, CMI cannot argue itjustifiably relied on the damage cap under Alaska law when it chose to sell its engines in states with no caps on noneconomicdamages. Under these facts, Washington's interest in providing full compensation to tort victims and its interest in protecting persons from injuries from defective products outweighs any interest Alaska might have in protecting an out-of-state manufacturerwhose productarrived in thatstate through the stream ofcommerce. We,therefore,affirm the trial court's ruling thatWashington law applies. C. Evidentiary Issues Plaintiffs challenge several evidentiary rulings on appeal. First, they argue the jury's finding that Preston was negligent should be reversed because the trial court erred in limiting evidence the aircraft could fly safely in an overloaded condition and erred in admitting lay witness testimony that overloading the plane caused the crash. Second, they seek a new trial on their failure to warn claim, arguing the trial court abused its discretion in limiting the number of warranty claims they could present to the jury. Finally, Plaintiffs contend the cumulative effect ofthese alleged errors denied them a fair trial. The standard of review for evidentiary rulings made by the trial court is abuse of discretion. Peralta v. State, 187 Wn.2d 888,894, 389 P.3d 596 (2017).

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This court will reverse a trial court's evidentiary rulings only when no reasonable person would take the view adopted by the trial court. Id. 1. FAA Ferry Permits and Pilot Testimony Plaintiffs argue that the trial court erred in excluding evidence that the FAA allowed Cessna U206 aircraft to be flown over the certified gross takeoff weight. They contend they should have been allowed to present evidence the FAA issues "ferry permits,"under which pilots may overload this aircraft between 115 and 130 percent ofthe takeoffweight limit. CMI moved pretrial to exclude any evidence of FAA ferry permits under ER 401 and 403. CMI argued FAA ferry permits are only available for Cessnas built in the 1980s or later because those models were structurally stronger than the 1976 model Preston owned. The trial courtgranted the motion,reasoning thatthe evidence had limited probative value because Preston's plane did not qualify for such a permit, and the key issue was the capability of his plane to fly when overloaded and not whether the FAA had issued permits to other planes to fly in an overloaded state. The court deemed the prejudicial value of such evidence outweighed its probative value. During trial, Plaintiffs sought reconsideration ofthis ruling, arguing that CMI had opened the doortoferry permits when CMI's expert,Douglas Marwill,testified "[i]n this particular case[,]the FAA has determined that in flight ata weight beyond 3600pounds is nota safe area to be in." Plaintiffs submitted two declarationsfrom expert Steve Meyers,challenging the factual assertion that Preston's plane could

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not have qualified for a ferry permit. CMI, in turn, submitted a declaration from Marwill, contesting the factual basis for Meyers'opinions. The trial courtdetermined Marwill's testimony did not open the door to FAA ferry permit evidence. It concluded the criteria for granting a ferry permit was "really quite subjective. . .and I don't find that that is probative, that subjective determination for another airplane is probative of the capacity of the Cavner airplane to overcome the prejudicial nature of that testimony." The court ruled Plaintiffs could present evidence "regarding the capacity of the Cavner airplane, and if their expert is going to come in and say this airplane can fly above 3600 pounds gross weightfor takeoff,they can." On appeal, Plaintiffs contend their experts' testimony regarding the FAA ferry permits was "conditionally relevant"and admissible under ER 104(b)to show Preston's plane could have qualified for an FAA permit to fly as much as 130 percent overweight. They argue the trial court erroneously made the factual determination that Preston's plane could not qualify for this permit as a matter of law, instead of allowing the jury to make thatdetermination. We find no indication, however,that Plaintiffs ever raised ER 104(b)at the trial court level as a basis for admitting ferry permit evidence. "A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial." State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). By failing to raise an ER 104(b) objection at trial, Plaintiffs waived this objection.

- 17-No.76178-1-1/18 The trial court balanced the probative value of the evidence that under certain circumstances, the FAA might have granted Preston a permit to fly this plane overweight,againstthe potential to mislead the jury into concluding the FAA would have granted such a permit to do so as the plane was configured on June 1, 2010. Because a trial court has considerable discretion in administering ER 403,reversible error is found only in the exceptional circumstances of a manifest abuse ofdiscretion. Carson v. Fine, 123Wn.2d 206,226,867 P.2d 610 (1994). Plaintiffs did raise ER 611 asa basisforquestioning Marwill aboutFAAferry permits to impeach his opinion that the FAA determined flying a Cessna U206F in excess of 3,600 poundswas unsafe. Butcourts have the discretion to deny crossexamination if the evidence sought is speculative. Farah v. Hertz Transporting, Inc., 196Wn.App. 171,187,383P.3d 552(2016),review denied sub nom., Farah
v. Hertz Transp., Inc., 187 Wn.2d 1023, 390 P.3d 332 (2017). The trial court essentially determined it was speculative to assume Preston could have qualified his plane, as configured on the day of the accident, for an FAA ferry permit. Additionally, Plaintiffs were able to effectively cross-examine Marwill even without evidence of ferry permits. Plaintiffs elicited testimony from him that the Cessna U206F was able to fly over the weight limitation without crashing. Marwill conceded "the airplane could fly a few hundred pounds over gross weight." . Moreover, Plaintiffs presented extensive evidence that the Cessna U206F aircraft is a "workhorse," able to haul substantial loads and still perform well, that Preston's plane was "more than capable" of climbing at that weight and configuration, and that the plane actually flew for up to one half mile before

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crashing, despite being overloaded. Several experts testified that neither the overweight condition of Preston's plane nor the manner in which Preston loaded it caused the accident. Expert Donald Sommer testified the plane may not have been "airworthy" as defined by the FAA, but the plane remained safe to fly. Excluding evidence ofFAAferry permits did notpreclude Plaintiffsfrom presenting this evidence or from effectively cross-examining CMI experts. Thus, Plaintiffs have notdemonstrated any manifestabuse ofdiscretion. Plaintiffs also seek to reverse the finding of Preston's negligence based on the exclusion oftestimonyfrom experienced pilots,Gary Graham and Jerry Wells, who would have testified they regularly and safelyfly Cessna U206 aircraft loaded in excess of 3,600 pounds. CMI also moved pretrial to exclude this evidence under ER 401 and 403. It argued Graham's and Wells's testimony had limited probative value unless Plaintiffs could establish the planes the pilots had flown were configured in a substantially similar manner to Preston's plane. The court denied the motion, ruling the pilots could testify if Plaintiffs could lay a foundation to show some link between the pilots' opinions and the configuration of Preston's plane. The court stated, "It doesn't have to have every bell and whistle that the Cavner plane had
on it, but it has to be a like scenario. In my mind that would include the significant feature ofthe belly pod." The parties revisited this issue during trial when Plaintiffs discussed the scope of testimony from pilot Gary Graham. Plaintiffs stated Graham, an experienced Alaskan pilot,would testify he had flown Cessna U206F aircraft many
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times in overweight conditions,including once with as much as 1,000 pounds over the FAA maximum. He had notflown the plane with a belly pod but had observed one being flown. Plaintiffs noted Graham would testify the presence of the belly pod did not make any difference from his observation and experience. The trial court explicitly ruled this testimony was permitted. Neither Graham nor Wells testified attrial. A trial court has the discretion to determine whether an expert witness's experiences are substantially similar to those at issue at trial. Breimon v. Gen. Motors Corp., 8Wn.App.747,755-56,509P.2d 398(1973). Itsdecision will stand unless there has been an abuse ofdiscretion prejudicial to the losing party. Id. Plaintiffs have failed to demonstrate any abuse of discretion in the trial court'sdescription ofwhatwas necessaryto laythe properfoundationforthe pilots' testimony. Nor have Plaintiffs demonstrated any prejudice. Plaintiffs introduced evidencefrom other pilotsthatthe Cessna U206F aircraft,whetherornotequipped with a belly pod,is a workhorse,capable offlying safely in an overloaded condition. In addition, Preston testified he was trained to load this plane 115 percent overweight and flew his own plane routinely in an overloaded state without incident. Kyle Walker, the mechanic who installed the belly pod and worked for Preston for a short period oftime,flew Preston's plane in what he thoughtwas an overloaded condition without incident. Finally, Preston's expert, Steve Meyers,testified he conducted a test flight with a Cessna U206F plane, equipped with a belly pod and loaded with as much weightas Preston loaded onto his plane on the day ofthe accident. The testflight

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was videotaped and shown to the jury during trial. Meyers testified the test flight demonstrated the plane could climb at a weight of4,154 pounds,and he was able to stabilize the plane in equilibrium and make turns in a helix pattern safely and without incident. In their closing, Plaintiffs pointed out that even CMI's experts admitted the plane could be safelyflown in excess of3,600 pounds. Plaintiffs have not demonstrated an abuse of discretion or any prejudice from the trial court's rulings relating to the proffered pilot testimony. 2. Lay Witness Testimony under ER 701(c) Plaintiffs next ask us to reverse the jury's finding of Preston's negligence because the trial court erred in admitting impermissible opinion testimony from 10 lay witnesses as to the cause ofthe crash. ER 701 provides that if: the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a)rationally based on the perception of the witness,(b)helpful to a clear understanding ofthe witness'testimony orthe determination ofa fact in issue,and (c)notbased on scientific, technical, or other specialized knowledge within the scope of rule 702. When ruling on the admissibility of ER 701 opinion evidence, the court does not abuse its discretion if the ruling "is fairly debatable." State v. King, 135 Wn.App. 662, 672, 145 P.3d 1224 (2006), abrogated on other grounds, State v. Schaler, 169 Wn.2d 274, 236 P.3d 858 (2010). Even if a trial court errs in admitting lay opinion testimony under ER 701,the admission of such evidence is subjectto the harmless error standard. Ashley v. Hall, 138 Wn.2d 151, 158-59, 978 P.2d 1055 (1999).

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-No.76178-1-1/22 Plaintiffs moved to exclude any opinionsfrom eyewitnesses,many ofwhom were experienced pilots or airplane mechanics. They argued CMI should be prohibited from eliciting "opinion"testimony—such as "the plane was struggling to take off"—from persons not properly identified in CMI's expert disclosures. CMI, however, maintained the eyewitnesses should not be disqualified from testifying abouttheir impressions ofthe plane'stakeoffsimply because they had specialized knowledge aboutsome aspects ofaviation. The trial court refused to issue a blanket ruling aboutthe appropriate scope of eyewitness testimony because the parties planned to call most through video depositions. The court reserved ruling until it could review the witnesses' testimony. It provided a general guideline as to what it deemed appropriate testimony from the eyewitnesses: Generally speaking, eyewitnesses get to testify about what they heard, what they saw, . . . .[T]hey can testify about some of their impressions. We used the term "struggling," but if, you know, if I see someone driving up the hill and they're burning the clutch,I'd be able to say,"They were struggling getting up the hill," right? But ifthey're going to the next phase or the next tier which is, "Well, based on all my years ofexperience as a pilotand seeing the nose up and the tail down and hearing the engine, I concluded this plane was grossly overloaded and the pilot was at fault," you're not going there with your lay. . .witnesses or your eyewitnesses to the crash. The trial court reviewed the parties' deposition designations and ruled on objections. Plaintiffs asked the court to reconsider its ruling on objections to the testimony oftwo witnesses,Carl Merculiefand James Barbeau. The courtdenied the motion except it excluded Merculief's testimony that typically a "stall attitude"
occurs when a plane is "too heavy" or "overloaded." CM,appears not to have

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redacted this specific question and answer when it edited the video of Merculief's testimony, and it seems that the jury heard the testimony despite the trial court's ruling. But Plaintiffs did not object or move to strike the testimony. They argue on appeal that "[a]ny motion to strike that one statement would have been pointless, given the similar evidence allowed by the trial court, and would only have drawn attention to that other evidence." In general, lay opinion testimony should be excluded where the opinion calls for that of an expert. Id. at 156. Lay witnesses, however, may testify about theirfirst-hand observations. Unger v. Cauchon, 118Wn.App. 165,177,73 P.3d 1005 (2003). At times, it can be difficult to describe an event without offering an opinion or impression ofwhatthewitnesssaw or heard. Asthe Ninth Circuitnoted:

We understand [ER] 701 to mean that "opinions of nonexperts may be admitted where the facts could not otherwise be adequately presented or described to the jury in such a way as to enable the jury to form an opinion or reach an intelligent conclusion. If it is impossible or difficult to reproduce the data observed by the witnesses,or the facts are difficult ofexplanation,or complex,or are of a combination of circumstances and appearances which cannot be adequately described and presented with theforce and clearness as they appeared to the witness, the witness may state his impressions and opinions based on what he observed. It is a means ofconveying to the jury whatthe witness has seen or heard." United States v. Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992)(alteration omitted) (quoting United States v. Skeet, 665 F.2d 983,985 (9th Cir. 1982)). Plaintiffs argue ifan opinion is based on a witness's specialized knowledge, it is only admissible under ER 702 and is inadmissible under ER 701. The case law, however, is not as definitive as Plaintiffs suggest. The line between what is permissible lay opinion under ER 701 and what is opinion testimony ordinarily

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expected only from a qualified expert under ER 702 is understandably difficult at times to draw. See Asplundh Mfq. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1199-1200 (3d Cir. 1995). The requirement that lay opinion testimony be "helpful to a clear understanding of the witness's testimony," however, ensures that any such opinion must be reliable. Id. at 1201. "In otherwords,[ER]701 requires that a lay opinion witness have a reasonable basis grounded either in experience or specialized knowledge for arriving at the opinion that he or she expresses." Id. In addition,a lay witness's practical experience in a given area can provide
a basisfor his or her opinion testimony. McInnis & Co.,Inc. v.W.Tractor & Equip. Co.,67Wn.2d 965,970,410 P.2d 908(1966)(owner ofcompany with knowledge of composition, use, and operation of equipment permitted to express opinion as to equipment's value). Furthermore, ER 701 gives the trial court considerable discretion in deciding,on the basis offacts in each individual case,whetheropinion testimony would be helpful to the jury. 5B Karl B.Tegland,WASHINGTON PRAcTicE: EVIDENCE LAW &PRACTICE §701.7 (6th ed.2016). In this case, the trial court reviewed the deposition transcripts of all the eyewitnesses and excluded any testimony that might have strayed into the area reserved for expert witnesses under ER 701(c). None of the eyewitnesses expressed any opinion asto the cause ofthe crash or any piloting errors. Most of the testimony to which Plaintiffs object was simply witness recollections and impressions of what they heard and saw on the day of the crash. Many of the eyewitnesses had significant aviation experience, which given the location of the crash,was not unexpected. While their impressions and observations benefitted

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from their piloting experience,none ofthem entered the realm ofexpert testimony by opining as to the cause of the crash or piloting errors Preston may have committed. The opinions were all rationally based on the witnesses'perceptions and helpful to a clear understanding ofthe witnesses'testimony. Plaintiffs' reliance on Prescott v. R&L Transfer, Inc., 111 F. Supp. 3d 650 (W.D. Pa. 2015), is misplaced. In that case, Prescott sustained injuries after the tractor-trailer he was driving left the roadway and crashed into an embankment. Id. at 653. Prescott alleged that an R&L employee, also driving a tractor -trailer, forced him off the road and caused the accident. Id. Prescott sought to exclude testimony from another R&L truck driver, Robert Thomas,who passed the scene ofthe accident—traveling at65 miles per hour—over nine hours afterthe accident occurred. Id. at 658. At his deposition, Thomas testified that tire marks at the
scene ofthe accidentwere consistent with a driverfalling asleep atthe wheel. Id. The courtexcluded this opinion under Rule 701. Id. First, it concluded that Thomas did not have firsthand knowledge that the tire marks he saw originated from Prescott's vehicle. Id. It ruled that his observations were insufficient to provide the necessary basis for an opinion that Prescott fell asleep at the wheel. Id. The court also concluded that because Thomas did not witness the accident, his opinion as to whether the driver fell asleep at the wheel was not helpful to the jury. Id. at658-59. This case is notanalogous to Prescott. All the lay witnesses saw the plane, eitherwhile taxiing,on takeoff,or in the air,on June 1,2010. Each witnessdetailed his or her observations. The fact that those observations were informed by

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experience as a pilot or mechanic, or both, does not by default make them inadmissible opinion testimony. Plaintiffs have not demonstrated an abuse of discretion in the court's analysis under ER 701. Even if the trial court erred in admitting the challenged evidence, Plaintiffs have not established that the evidentiary rulings constitute reversible error. The trial court correctly excluded as improper opinion testimony the statement from Merculiefthat"[the plane]was in a stall attitude,"and a stall "typically"occurswhen
a plane is "too heavy" or "overloaded." CMI inadvertently failed to redact this testimony during the editing process. ButPlaintiffs made the strategicdecision not to request an instruction from the trial courtfor the jury to disregard this testimony. Improper opinion testimony may be cured by instructing the jury to disregard the improper testimony. State v. Hager, 171 Wn.2d 151, 159, 248 P.3d 512 (2011). Plaintiffs'failure to requestsuch a curative instruction precludes assigning appeal to the admission of Merculief's improper opinion testimony. In addition,improperly admitted evidence is harmless ifthe error"is ofminor significance compared to the overall evidence as a whole." State v. Evervbodvtalksabout, 145 Wn.2d 456, 469, 39 P.3d 294 (2002). Merculief's statement was of minor significance when compared to the overall evidence of Preston's negligence. We conclude the trial court did not abuse its discretion in admitting the lay witness testimony. 3. Exclusion of CMI Warranty Claims Plaintiffs also seek a new trial on theirfailure to warn claim,arguing the trial court erred in limiting the number and type of warranty claims Plaintiffs could

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presentto the jury. Attrial, Plaintiffs offered 60warranty claims CMI had received over a period of 10 years to establish CMI was on notice of compression or lifter problems in its engines. The court ruled thatwarranty claims would be admissible if(1)the claim involved the 10-520F engine;(2)the engine had been installed in a Cessna U206 aircraft; (3)the warranty claim identified either a compression issue or a valve lifter issue; (4)CMI allowed repairs on the engine in response to the claim;and (5)the warranty claim predated the June 1, 2010 accident. Ultimately, the trial court admitted 22ofthe 60warranty claims Plaintiffs offered. To prevail on theirfailure to warn claim underRCW 7.72.030(1)(c),Plaintiffs had to provethatCMI knew orshould have learned abouta dangerconnected with its product requiring the issuance of warnings or instructions concerning the danger. In products liability cases,evidence of other accidents or claims may be admissible to establish notice to the manufacturer ofa particular danger. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Like other evidentiary rulings, the admissibility of prior claims to show notice is left to the discretion ofthe trial court. Id. Plaintiffs contend the trial court erred in excluding warranty claims relating to the same engine,model 10-520,simply because that engine had been installed in a plane other than a Cessna U206. The alleged defect,they argue,was in the engine,not in the plane. But the evidence was admissible for the limited purpose of establishing CMI was on notice of the alleged defect. Plaintiffs do not explain how the 38 excluded warranty claims would have notified CM!of a danger when the 22 admitted warranty claims did not. The exclusion of cumulative evidence is

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generally not reversible error. Havens v. C&D Plastics, Inc., 124Wn.2d 158, 169- 70,876P.2d 435(1994). The exclusion ofcumulative "notice"evidence is similarly not reversible error. Kimball v. Otis Elevator Co., 89Wn.App. 169, 173,947 P.2d 1275 (1997) (harmless error to exclude maintenance reports showing elevator misleveling problems,as it was cumulative ofadmitted evidence). Even ifthe trial court erred in limiting the admissible warranty claims to those relating to 10-520 engines installed in Cessna U206airplanes,the trial court's decision was harmless error, and we affirm the jury's verdict on Plaintiffs'failure to warn claim.5 4. Cumulative Error Plaintiffs contend the cumulative errors denied them a fair trial. In criminal cases,cumulative error maywarrantthe reversal ofa conviction even where a trial court's individual errors were harmless. In re the Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds, State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). The test to determine whether cumulative errors require reversal is whether the totality of the circumstances "substantially prejudiced the defendant and denied him a fair trial." Id. It is not clear the cumulative error doctrine applies in a civil case. Plaintiffs rely on Storey v. Storey, 21 Wn.App. 370, 585 P.2d 183 (1978), to extend the doctrine to civil appeals. But Storey affirmed a decision to grant a new trial based
on the trial court's findings that a defendant's repeated intentional, improper, nonresponsive answers and volunteered remarks prejudiced the plaintiffs. Id. at 372.

5 On remand,the trial courtwill determine whetherany orwhich warranty claims should be admitted to prove the existence ofa design defect.

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Thus, it was the cumulative effect of the defendant's prejudicial conduct that warranted a new trial, not the cumulative effect of errors allegedly committed by the trial court. Nevertheless,even were the doctrine to apply, Plaintiffs must still establish the existence of multiple errors. Plaintiffs raise the fact that defense counsel willfully violated a pretrial order by telling the jury in CMI's opening statement that the FAA revoked Preston's license as a result ofthe accident. Before trial began, the trial court denied Plaintiffs' motion to exclude reference to the status of Preston's pilot license, including the FAA's revocation of it, determining that the fact of the license revocation was admissible but the reason for that revocation was not. But in opening,CMI stated that the FAA had investigated the crash and revoked Preston's license as a result. Plaintiffs soughtthe exclusion ofall evidence ofpilot error as a sanction for CMI's violation. The trial court denied Plaintiffs' motion to exclude pilot error evidence and denied any motion for a mistrial. It concluded that any prejudice could be cured by excluding all evidence ofPreston's license revocation. Plaintiffs requested a general curative instruction,which the trial court gave. After the jury rendered its verdict, Plaintiffs moved for a new trial based,in part, on the misconduct of CMI's counsel during opening statements. The trial courtdenied the motion:

The Courthaspreviously(in some instances,morethan once) considered the other basis brought now by [P]laintiffs in their request for a new trial. Plaintiffs have failed to produce new evidence or advance a sufficient alternative basis for the Court to reconsider its prior rulings. With respect [to] any alleged cumulative effect

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-No.76178-1-1/30 produced by defendant CMI's misconduct (the Court is particularly focused here on . . .counsel's opening statement and the withholding of the check ball housing diagram) the Court must consider whether these incidents, combined with the others referenced in their motion, produce a trial that was fundamentally unfair. Each side wasable to present,and vigorously prosecute,their respective theories of this case. The jury heard those theories, considered the admissible evidence, and rendered its verdict. The various rulings on misconduct (and the sanctions imposed)and the Court's evidentiary rulings subject of this motion did not prevent, in this Court's estimation,a fair hearing for [P]laintiffs. (citation omitted). "As a general rule, the trial courts have wide discretionary powers in conducting a trial and dealing with irregularities which arise." Aluminum Co.ofAm.
v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 538-39, 998 P.2d 856 (2000)(Alcoa) (quoting State v. Gilcrist, 91 Wn.2d 603,612,590 P.2d 809 (1979)). In Alcoa,the Supreme Court held a new trial may be granted based on the prejudicial misconduct of counsel only if the moving party establishes that the conduct complained of constitutes misconduct and the misconduct is prejudicial in the context ofthe entire record. Id. When a party challenges the effect on the jury of events occurring during trial, we accord considerable deference to the trial court. Taylor v. Cessna Aircraft Co., 39 Wn.App.828,831,696 P.2d 28(1985). Plaintiffs do not argue the trial court's handling of CMI's misconduct constitutes an independent basis for a new trial. Instead, they contend the prejudice they incurred, when combined with the prejudice from other alleged errors,justifies a new trial. We disagree.

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-No.76178-1-1/31 First, Plaintiffs have not established any trial errors occurred. Second,the trial court promptly addressed CMl's violation of the order in limine, excluded all evidence regarding Preston's license revocation, and granted a curative instruction. Finally, the trial court was in a much better position than this court to evaluate the impactofthe statement made by CMI in opening and the jury's ability to disregard statements or arguments of counsel when not supported by evidence presented attrial. Because we conclude thatthe trial courtdid not abuse its discretion on any of these evidentiary rulings and that cumulative error does not justify a new trial,
we affirm the jury's finding that Preston was negligent on June 1,2010. D. Appropriateness ofSanctions for CMI's Nondisclosure ofTechnical Drawing Next,Plaintiffs seek a new trial on their manufacturing defectclaim,arguing thetrial courtabused its discretion in fashioning the appropriate remedyto address CMI's willful nondisclosure ofa technical drawing. Plaintiffs presented evidence that a metallurgist, Dr. Richard McSwain, examined Preston's engine after the crash and discovered the presence of burrs,
orsharp metal deformities,on the inside of 11 out of 12valve check ball housings. Dr.McSwain testified these burrs can dislodge,float in the oil,and jam themselves between the check ball and its seat, rendering the check valve inoperative. To establish the presence of the burrs deviated from CMI design specifications, Plaintiffselicited testimonyfrom Dr. McSwain thatCMI'sassemblydrawing forboth the intake and exhaust lifters bore a note saying "Remove all burrs." He opined the presence of burrs evidenced a manufacturing flaw.

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-No.76178-1-1/32 On cross-examination, CMI sought to elicit testimony that the note on the technical drawing for the assembly did not apply to the valve lifter subassembly. Dr. McSwain disagreed with this contention. Plaintiffs' expert Donald Sommer also testified that the presence of burrs demonstrated poor manufacturing technique. Sommer, a former engineer with Eaton Corporation, the company CMI used to manufacture the valve lifter subassembly, testified that when he worked for Eaton, its technical drawings always required burrs to be removed during the manufacturing process. He rejected CMI's contention that the note "Remove all burrs" on the CMI assembly drawing did not apply to Eaton's check ball housing. During CMI's case-in-chief, approximately six weeks into trial, CMI produced Eaton's subcomponentdrawing for the check ball housing on the valve lifters. Eaton's drawing contained the instruction to "Remove all burrs." John Barton, a CMI expert, testified he had received the drawing three or four weeks earlier.CounselforCMIdisclosed hetoo had received a copyofthedrawing weeks earlier and had chosen notto disclose it. Plaintiffs moved for sanctions, seeking a directed verdict on the issue of a manufacturing defect. The trial court found that before trial, Plaintiffs requested production of the subassembly drawing, but CMI did not possess or control it at that time. It also found Plaintiffs asked CM!to produce the drawing during trial, CMI obtained a copy of the drawing from Eaton, and counsel for CM! made the decision notto produce it. The trial courtfound,however,thatthe harm caused by this withholding did not justify the relief Plaintiffs sought. It concluded that a

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directed verdict was not the least severe sanction to be imposed "under Jones or Burnet."6 Instead, the court allowed Plaintiffs to cross-examine CMI witnesses regarding the timing of the production of the subassembly drawing to ensure the jury knew it was not Plaintiffs'faultfor not discussing the drawing in their case-in

chief. The court determined the most appropriate relief was to allow Plaintiffs to recall their experts at CMI's expense. Dr. McSwain and Sommer returned to explain when they first received the Eaton technical drawing, what the drawing meant to them, and what, if anything, theywould have said had they seen thedrawing atthe time they originallytestified. Dr. McSwain testified the check ball drawing clearly instructed the manufacturer to "remove all burrs." Heexplained thathe had notseen this drawing before testifying earlier in the trial because CMI had not produced it. Sommer,like Dr. McSwain, testified that CMI produced the drawing after he had testified in Plaintiffs' case-in

chief, and the drawing supported the opinion he had previously provided—the instruction to "remove all burrs" applied to the check ball housing. He testified at length as to why John Barton, the CMI expert, was incorrect in interpreting the "remove all burrs" instruction as being inapplicable to certain portions ofthe check ball housing. In his opinion, the newly-produced drawing confirmed that burrs found on the engine's valve lifters did not comply with the drawing specifications. In closing arguments, Plaintiffs used CMI's non-disclosure to their advantage:

6 Jones v. City of Seattle, 179 Wn.2d 322, 314 P.3d 380 (2013); Burnet v. Spokane Ambulance, 131 Wn.2d 484,933 P.2d 1036 (1997).

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-No.76178-1-1/34 [CMI] did not call anybody from Eaton, the current—either currently or a past employee—and Eaton is their prime component supplier of these lifters—to back up what Mr. Barton tried to argue aboutwhat the drawings meant. Actually, the only Eaton current or former employee that did testify was our expert, Donald Sommer, the engineer, who has worked with Eaton drawings while working at Eaton.

. . . Remember,they weren'teven actually produced even for us until the middle oftrial.

And you know from yesterday's testimony that, once [CMI] actually provided the subcomponent drawings, which it had been holding onto and not disclosing, you found the same deburring language requirement in the subcomponent drawings as there was on the assembly drawings. This was a serious, serious manufacturing defect which . . . [CMI tried to hide]by notdisclosing these subcomponentdrawings. Both Dr. McSwain and Don Sommer—again formerly of Eaton—could confirm that the subcomponent drawings conform to the assembly drawing in requiring removal ofall burrs. And the burrs also werefound to be ofa size thatwere—even the highesttolerance amountofthe burr on the subcomponentdrawing were the one place they allow it, we found burrs in excess ofthat size in these lifters on the subject plane. The trial court ordered CMI to compensate Plaintiffs for the cost of having to recall Dr. McSwain and Sommer and awarded attorney feesfor the sanctions motion. This courtreviews a trial court's discovery sanctionsfor abuse ofdiscretion. Magaria v. Hyundai MotorAm., 167Wn.2d 570,582,220 P.3d 191 (2009). A trial court exercises broad discretion in imposing discovery sanctions, and its determination will not be disturbed absent a clear abuse ofdiscretion. Id. A trial courtabuses its discretion only when its order is manifestly unreasonable or based
on untenable grounds. Id. A discretionary decision rests on "untenable grounds"

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or is based on "untenable reasons" if the trial court relies on unsupported facts or appliesthe wrong legal standard. Id.at 583. The trial court'sdecision is manifestly unreasonable only if the trial court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take. Id. Plaintiffs do not contend the trial court relied on unsupported facts. Nor do they argue the trial court applied the wrong legal standard. The trial court applied Magalia, Jones,and Burnet in rendering its ruling. Instead, Plaintiffs contend the trial court "manifestly underestimated the nature and degree of the prejudice suffered." They argue the check ball housing drawing went to the heart of their case, and by withholding the drawing, CMI forced Plaintiffs' experts to spend unnecessarytimeduring trial arguing aboutwhetherthe "remove all burrs"notation
on the assembly drawing applied to the subcomponent part. They claim CM1 received the benefit of controlling when the jury first heard about the "dispositive document." Although we do not condone counsel's conduct,wefind no manifestabuse of discretion in fashioning the appropriate sanction. Plaintiffs argued below that they were prejudiced by the timing ofthe late disclosure,and their "entire case has revolved around the supposed nonexistence of any burring specifications on the subcomponentdrawingsforthe check ball housing." Thetrial court,however,after having heard both parties explain the meaning of the "remove all burrs" notes on the drawings, concluded the drawing was not as definitive as Plaintiffs claimed it to be. The court specifically noted that "[Ole representations are that the document,by your experts,says,A;the representations by their experts is it says

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B,and you know,as I look at it, I see both argumentsare plausible." The trial court evaluated Plaintiffs' claimed prejudice and found it to be much less than they claimed. Second, the trial court was in a much better position than this court to evaluate the significance ofthe drawing and its late disclosure by CMI. Bythe time the drawing surfaced,the trial court had been presiding overthe trial foralmostsix weeks. It was the mostfamiliar with the direct testimony of Plaintiffs' engineering experts, Sommers and Dr. McSwain. It was the mostfamiliar with the questions CM1 posed on cross-examination, challenging the experts' interpretation of the drawings. And it was mostfamiliar with the centrality ofthe drawings to Plaintiffs' manufacturing defect claim. Finally, the trial court recognized the trial was still in progress. Although Plaintiffs had completed their case-in-chief, they were permitted to recall their engineering experts to explain when theyfirst saw the subcomponentdrawing and how they interpreted the notes on it. There wasa wayto cure the prejudice without entering a directed verdict. Plaintiffs rely on Smith v. Behr Process Corp., 113 Wn.App. 306,54 P.3d 665 (2002), for the proposition that reversal of the jury's verdict is the only appropriate sanction. In Smith, plaintiffs brought a class action lawsuit alleging that Behr's products,intended for use on exteriorwood surfaces,caused extensive mildew damage to their homes. Id. at 314-35. When plaintiffs deposed a representative of a company that provided the mildewcide to Behr, they learned thatthis supplier had performed tests at Behr's request to determine the chemical

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compatibility between the mildewcide and the other ingredients in Behr's product. Id. at 315-16. Behr had withheld from production both the fact of the testing and the test results. Id. at 316. When the plaintiffs began to investigate, they found additional undisclosed documents. Id. The trial court held a multi-day evidentiary hearing on the plaintiffs' motion for discovery sanctions. Id. It found that Behr had willfully and deliberately failed to disclose evidence, that the class and judicial system were substantially prejudiced by this failure, and that only a default judgment would adequately remedy the harm to the class and punish Behr. Id. Behr appealed, arguing the plaintiff class had not established substantial prejudice resulting from the discovery violations. Id.at323-24. This courtrejected Behr's argument. In doing so, it relied on the trial court's finding that the withheld documents were highly important because they bolstered the plaintiffs' case and undermined Behr's position. Id. at 325. It noted the trial court's finding that "nothing in the discovery of this case is as important as what was not disclosed." Id. It concluded there was reasonable evidentiary support for the trial court's findings. Id. at 326-27. Smith supports our conclusion that the trial court, and not this court, is in the best position to evaluate the prejudice caused by a discovery violation. And Smith also makes clear the most appropriate sanction will be fact-specific and
case-specific. Unlike in Smith, the trial court here found the withheld drawing to be subject to two reasonable interpretations and not a "smoking gun"as Plaintiffs contend. The trial court appropriately assessed monetary sanctions to ensure

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Plaintiffs did not incur unnecessary expenses to recall their engineering experts to testify about the drawing. Based on this record,thetrial courtdid notabuse itsdiscretion in concluding any prejudicewascured by recalling expertsto testify atCMI'sexpense. Weaffirm the jury's verdict on Plaintiffs' manufacturing defect claim. E. Cavner Plaintiffs' Contingent Cross-Claim against Preston CMI contends in its cross-appeal thatthe trial courterred in allowing Stacie, Hudson, and Myles's estate to assert a contingent cross-claim against Preston. On August 15,2014,Plaintiffs filed a Second Amended Complaint in which Stacie and the children asserted a cross-claim against Preston.They alleged: In the event the trier of fact determines that Preston Cavner is partially at fault for the crash pursuant to RCW 4.22.070, [Stacie, Hudson, and Myles's estate] assert direct claims against Preston Cavner, and request that judgment be entered for them against Preston Cavner. . . and CMI, jointly and severally, for injuries and damages pled herein to the extent of the combined percentages of fault of Preston Cavner. . .and CMI, as determined by the trier of fact pursuant to RCW 4.22.070. The trial court denied defense motions to dismiss this cross-claim. In January 2016, CMI filed a "Motion to Realign Preston Cavner as a Plaintiff." CMI argued Stacie and the children were attempting to "circumvent the Washington rule of several liability" and take advantage of the joint and several liability rule of RCW 4.22.070(b)for fault-free plaintiffs.7 CMI argued the Cavner family members should not be allowed to shift liability for Preston's "misconduct"

7 CMI did not contend that any of the children were at fault. It did seek to hold Stacie at fault for holding Myles in her lap and failing to use a seat belt. The jury found Stacie was not at faultfor any ofthe damages.

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and, thereby, profit from his "recklessness." The trial court reserved ruling on CMI's motion until the conclusion oftrial. Atthe close of Plaintiffs'case-in-chief, CMI moved forjudgmentas a matter of law on the cross-claim against Preston. It argued the Cavner family members failed to produce evidence supporting a claim that Preston caused their injuries. The trial court denied the motion, concluding the evidence presented by CMI through cross-examination was sufficient to establish that Preston overloaded the plane, that his center of gravity calculations were "done on the fly," and that he installed a belly pod without documenting the work properly with the FAA. The courtrecognized "the expertsalone didn'tsaythat[Preston was culpable],butthey made an awful lot of concessions on cross-examination where a jury could take that information and decide that he did have responsibility." CMI asserts the trial court erred in determining the Cavner family could assert a contingent cross-claim against Preston under RCW 4.22.070(b). This court reviews a trial court's denial of a CR 50 motion for judgment as a matter of law de novo,engaging in the same inquiry as the trial court. Schmidt v. Coogan, 162Wn.2d 488,491, 173 P.3d 273(2007). First, CMI contends neither the civil rules nor RCW 4.22.070(b)permits the filing ofa contingent cross-claim between plaintiffs. Whether a plaintiffmay assert
a cross-claim against another plaintiff under the civil rules or RCW 4.22.070(b) presents us with a question of rule and statutory construction. Issues of statutory construction are subject to de novo review. State v. Evans, 177Wn.2d 186, 191,

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298 P.3d 724(2013). We also review a trial court's interpretation ofa civil rule de
novo. Nevers v. Fireside, Inc., 133Wn.2d 804,809,947 P.3d 721 (1997). CMI argues that under CR 7(a), a "cross-claim" can only appear in an answer to a complaint. But there is no language in CR 7(a) to support this argument. CR 7(a)merely identifies the type of pleadings that courts allow to be filed. One of the allowed pleadings is "an answer to a cross-claim, if the answer contains a cross-claim." CR 7(a). It does not logically follow from this language thatthe only pleading in which a party may asserta cross-claim is in an answer to
a complaint. Nothing in CR 7 precludes one plaintifffrom pleading a cross-claim against another plaintiff in an amended complaint. In fact, CR 8(e)(2) expressly allows a party to state "as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both." The rule even states that claims may be "alternative"or "hypothetical." CMI also contends the Cavner family members should be precluded from asserting a cross-claim against Preston because it should not be at risk to payfor Preston's negligence. RCW 4.22.070(b)provides: Ifthetrieroffactdeterminesthatthe claimantorparty suffering bodily injury or incurring property damages was notatfault,the defendants againstwhom judgmentisentered shall bejointly and severally liable forthe sum oftheir proportionate shares ofthe claimants [claimant's] total damages. Because Stacie wasfound to be faultfree and CM,agreed neither ofthe children
were at fault, a jury finding that both CMI and Preston are partially at fault would result in entry of judgment under which CMI would be liable to the Cavner family membersfor Preston's proportionate share oftheir damages. CMI argues such a

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result would be absurd because Preston's interests are aligned with those of his wife and children. CMI relies on Kottler v. Washington, 136 Wn.2d 437,963 P.2d 834 (1998), and Tepman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102,75 P.3d 497 (2003),to support its argument that it should not be held jointly liable with Preston for his family's injuries. Neither Kottler norTepman address this question. In Kottler, the Supreme Court held a defendant who settles pretrial with a fault-free plaintiff may not seek contribution from another alleged tortfeasor. 136 Wn.2d at 439. It held joint and several liability does not arise under RCW 4.22.070(b) unless a judgment is entered against the defendant and the alleged tortfeasor. Id. Without joint and several liability, there is no right to contribution. Id. at449. In ruling,the Supreme Courtstated that"[t]o qualifyforthisexception [to several liability,]the original party must be fault-free and both parties to the contribution action must have been defendantsagainstwhom judgmentwasentered in the underlying action." Id. This sentence, however,does not mean CMI will have no right of contribution against Preston because Preston is a "cross-claim defendant." Teqman is similarly inapplicable. In that case, the Supreme Court held negligent defendants are notjointly and severally liable for the intentional torts of
a co-defendant. 150 Wn.2d at 105. No one alleges Preston's actions were intentional. CMI next argues that Preston should have been "realigned" as a plaintiff. The federal cases on which CMI relies, however, are not on point. In City of Indianapolis v. Chase National Bank of City of New York, 314 U.S. 63,62 S. Ct.

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15, 86 L. Ed. 47 (1941), the United States Supreme Court stated that when determining the existence ofdiversityjurisdiction,afederal district courtshould not acceptthe parties'determination ofwho are plaintiffs and who are defendants,but should look beyond the pleadings to arrange parties according to their side in a dispute. Id.at69. Similarly,in ContinentalAirlines, Inc.v.GoodyearTire &Rubber Co.,819 F.2d 1519 (9th Cir. 1987),the Ninth Circuit held the federal courts lacked jurisdiction over a dispute because one ofthe named defendants was aligned with the plaintiff. Id.at 1522-23. Thisalignmentdestroyed completediversity,requiring remand to state court. Id. at 1523. Both cases, however, addressed the very limited issue of how to analyze federal diversity jurisdiction when a plaintiff names a party as a defendant,even when they have aligned legal interests. Neither case is analytically helpful to CMI. Finally, CMI contends its CR 50 motion should have been granted because the Cavnerfamily members presented no evidence of pilot error and their experts actually exonerated Preston of liability. A CR 50(b)motion admits the truth ofthe opponent's evidence and all inferences that can reasonably be drawn from it. Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 98,882 P.2d 703(1994). Granting a motion forjudgmentas a matter oflaw is appropriate when,viewing the evidence in the light mostfavorable to the nonmoving party,the court can say,as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdictfor the nonmoving party. Sing v. John L. Scott, Inc., 134Wn.2d 24,29,948 P.2d 816 (1997).

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-No.76178-1-1/43 The Cavnerfamily's cross-claim against Preston required evidence ofduty, breach, proximate cause, and damage. Ranqer Ins. Co. v. Pierce County, 164 Wn.2d 545,552, 192 P.3d 886 (2008). When evaluating whether a claimant has met its burden of production on a CR 50 motion, the court considers all the evidence, regardless ofwhich party introduced it. Whitchurch v. McBride, 63Wn. App. 272, 275, 818 P.2d 622 (1991). It was undisputed below that Preston, as pilot in command ofthe Cessna on the day ofthe accident,owed a duty of care to his passengers. CMI,through its cross-examination of Plaintiffs' experts, elicited evidence that Preston overloaded the plane,failed to properly balance the load to
ensure the cargo was within the manufacturer's specified center of gravity envelope,failed to properlydocumentmaterial modifications he made to the plane, and operated the plane in violation of FAA regulations, the pilot operating handbook,and the supplemental operating handbook issued by the manufacturer ofthe belly pod. Therewas morethan ample evidence presented tothejuryduring Plaintiffs' case-in-chieffrom which it could find Preston breached his duty of care. A plaintiffalso bears the burden ofproducing evidence sufficient to support
a finding of causation. Id. None of Plaintiffs' experts testified that Preston proximately caused the crash. But expert testimony is not always required to establish causation to survive a CR 50 motion. Estate of Bordon v. Dep't ofCorr., 122Wn.App.227,244,95P.3d 764(2004). There mustbe some evidence linking
a party's alleged negligence to the alleged harm to avoid speculation, but the nature ofthe negligence can provide this evidentiary link. Id.

-43-No.76178-1-1/44 The trial court denied CMI's CR 50 motion,concluding there was sufficient evidence from which a reasonable jury could find Preston was negligent and a proximate cause of the crash. The court pointed to Preston's pilot operating handbook as supportfor a finding of causation. It noted:

[T]he evidence here supports a conclusion that the jury could find [Preston] negligent. He admitted the plane was overloaded. Numerous eyewitnbsses have testified the plane was over weight limits. The plaintiffs' experts have conceded that, and the Pilots Operating Handbook,the quotations that I referenced just minutes ago to [CMI's counsel], are directly on point. If you overload this airplane, it can result in death orfatalities. And . . . I characterized or summarized the defense case earlier. . . , but its essence is that [Preston] overloaded this plane and that's what caused its demise in flight. I don't believe that you need an expertto wrap that up.. .for the jury. The link between Preston's actions and the subsequent crash was not speculative. Preston was at the helm of the plane. He controlled the plane's maintenance, loading, balancing, takeoff, flight, and landing. Plaintiffs' experts admitted that flying a plane within weight and balance limits is critical to flight safety. They also conceded Preston flew this plane in violation of multiple FAA regulations and the pilot operating handbooks. At least one expert, Douglas Herlihy,testified he would not have used 30degrees offlap angle on takeoffatthe Anchorage airport. Plaintiffs' experts admitted that under FAA regulations, Preston's plane was not "airworthy" on the day of the accident and that a pilot should notfly a plane when unairworthy conditions occur. Based on this evidence, the jury could find Preston,as pilot in command,was directly responsible for and had final authority over the operation of the aircraft. The trial court did not err in

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denying CMI's CR 50 motion to dismiss the Cavner family members'cross-claim against Preston. F. Scope of Remand We affirm the jury's finding that Preston was negligent. We also affirm the findings not challenged on appeal—that Preston's negligence was a proximate
cause ofthe crash,thatStacie was notnegligent,and that neitherAceAviation nor Northwest Seaplanes proximately caused the crash. We affirm the jury's verdict for CM1 on the manufacturing defect and failure to warn claims. And finally, we affirm the jury's findings as to Plaintiffs'damages,as these findings were also not challenged on appeal. The scope of remand will be limited to three questions—whether CMI's engine was not reasonably safe as designed under RCW 7.72.030(1)(a),whether any design defect was a proximate cause of the crash, and if so, how much fault to allocate between CM1 and Preston Cavner. REVERSED IN PART,AFFIRMED IN PART.

WE CONCUR: 

# ,Aikibl,“42,

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