IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID H. PEASE, III and :

LISA PEASE, : No. 4:10-CV-00843

:

Plaintiffs, :

:

v. : (Judge McClure)

:

KELLY AEROSPACE, INC. d/b/a :

KELLY AEROSPACE POWER :

SYSTEMS, INC., An Alabama :

Corporation, et al., :

:

Defendants. :

MEMORANDUM

June 8, 2010

I. INTRODUCTION

This action was initiated in 2007, when plaintiffs David H. Pease III and

Lisa Pease filed an action against defendants Kelly Aerospace Inc., d/b/a Kelly

Aerospace Power Systems, Inc.; Main Turbo Systems, Inc. (“Main Turbo”);

Lycoming Engines Inc. (“Lycoming Engines”); and Air Tolin in Ohio state court. 

On April 20, 2007, the action was transferred to the District Court for the Middle

District of Alabama for jurisdictional purposes. (Rec. Doc. No. 1, Attachment No.

1). The lawsuit arises out of an incident that occurred on June 5, 2005, when

plaintiff David Pease was injured after his aircraft, a Piper Saratoga, crashed near

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Tazewall, Tennessee. Plaintiffs claim that the crash occurred after Mr. Pease’s

plane “suffered an engine seizure after an apparent oil starvation event at a high

altitude . . . .” Id. at 1.

II. PROCEDURAL HISTORY

Upon a renewed motion to dismiss, filed by defendant Main Turbo on April

18, 2008 (Rec. Doc. No. 4, Attachment No. 3), the District Court for the Middle

District of Alabama, Northern Division (“Alabama District Court”), on June 20,

2008, dismissed Main Turbo as a defendant in the instant case (Rec. Doc. No. 5,

Attachment No. 1). The Alabama District Court agreed with Main Turbo,

concluding that neither specific nor general personal jurisdiction existed over Main

Turbo such that jurisdiction in Alabama was appropriate. Id. at 8-20.

On August 17, 2009, the plaintiffs and defendants Kelly Aerospace Inc.,

d/b/a Kelly Aerospace Power Systems, Inc., filed a stipulation for dismissal with

prejudice. (Rec. Doc. No. 7). The stipulation indicated that the parties had “settled

and resolved all of the claims and controversies between them pursuant to a Pro

Tanto Settlement Agreement dated August 10, 2009 . . . .” Id. By an order dated

August 20, 2009, and upon consideration of the parties’ stipulation for dismissal

with prejudice filed on August 17, 2009, the Alabama District Court directed the

clerk to dismiss defendants Kelly Aerospace, Inc., d/b/a Kelly Aerospace Power

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 Only Lycoming Engines remains as a defendant in the present action.

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Systems, Inc., from the cause of action. (Rec. Doc. No. 7, Attachment No. 2).1

On March 16, 2010, plaintiffs filed a motion, and a brief in support, to stay

the then-present trial schedule and transfer venue pursuant to 28 U.S.C. § 1404. 

(Rec. Doc. No. 8, Attachment Nos. 3, 4). Plaintiffs argued that the action should

be transferred to the District Court for the Middle District of Pennsylvania in

Williamsport, Pennsylvania, based upon the interests of judicial economy and the

convenience of the parties and witnesses. Id. Lycoming Engines filed a response

opposing the plaintiffs’ motion to stay the trial schedule and transfer venue

pursuant to 28 U.S.C.§ 1404 on March 29, 2010. (Rec. Doc. No. 9). In support,

Lycoming Engines argued that the interests of justice and the convenience of

witnesses to be called to testify, as well as ease of access of proof, did not favor

transferring the matter to Pennsylvania. Id. at 3-6. Lycoming Engines also argued

that the motion was untimely and unduly prejudicial. Id. at 6-8. Plaintiffs filed a

reply brief on April 6, 2010. (Rec. Doc. No. 9, Attachment. No. 2). By a

Memorandum and Order dated April 19, 2010, the Alabama District Court granted

the plaintiffs’ motion to transfer venue and transferred the matter to the District

Court for the Middle District of Pennsylvania. (Rec. Doc. No. 11, Attachment No.

2).

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 According to Fed. R. Civ. P. 37(a)(3)(B), “[a] party seeking discovery may

move for an order compelling an answer, designation, production, or inspection.”

4

The motion presently before this court is a motion to compel the production

of documents, pursuant to Federal Rule of Civil Procedure 37.2

 (Rec. Doc. No.

17). The instant motion was filed on April 12, 2010, with a brief in support. (Rec.

Doc. Nos. 17 and 18). With this motion, plaintiffs seek “an order compelling

Defendant Lycoming Engines to produce highly relevant and material accident

documents and materials responsive to Plaintiffs’ production request.” (Rec. Doc.

No. 17 at 1). Lycoming Engines filed a brief in opposition on May 10, 2010. 

(Rec. Doc. No. 27). Plaintiffs filed a reply brief on May 24, 2010. (Rec Doc. No.

31).

The instant matter is now ripe for disposition. In light of the discussion

below, we will grant the plaintiffs’ motion to compel. (Rec. Doc. No. 17).

III. STANDARD OF REVIEW

Rule 26(b)(1) of the Federal Rules of Civil Procedure sets the contours for

discovery and provides that “[p]arties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense - including the

existence, description, nature, custody, condition, and location of any documents or

other tangible things . . . .” The rule further states that “[r]elevant information need

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not be admissible at the trial if the discovery appears reasonably calculated to lead

to the discovery of admissible evidence.” Id.

It is well-settled that Rule 26 establishes a liberal discovery policy. 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Hickman v. Taylor,

329 U.S. 495, 507-08 (1947); Great West Life Assurance Co. v. Levithan, 152

F.R.D. 494, 497 (E.D. Pa. 1994). As a general rule, therefore, discovery is

permitted of any items that are relevant or may lead to the discovery of relevant

information. Hicks v. Big Bros./Big Sisters of Am., 168 F.R.D. 528, 529 (E.D. Pa.

1996); Transcontinental Fertilizer Co. v. Samsung Co., 108 F.R.D. 650, 652 (E.D.

Pa. 1985). Parties are permitted a significant discovery latitude “in order to ensure

that the case proceeds with ‘the fullest possible knowledge of the issues and facts

before trial.’” Ascenzi v. O'Brien, No. CV-05-1184, 2008 WL 205235, at *5 (M.D.

Pa. Jan. 23, 2008) (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947)

(Vanaskie, J.).

When one party refuses to comply with other parties’ legitimate discovery

requests, the aggrieved party “may move for an order compelling disclosure or

discovery.” Fed. R. Civ. P. 37(a)(1); see Fed. R. Civ. P 37(a)(3). The injured

party must also certify that it “has in good faith conferred or attempted to confer

with the person or party failing to make disclosure or discovery in an effort to

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obtain it without court action.” Fed. R. Civ. P. 37(a)(1). 

IV. DISCUSSION

The instant motion to compel concerns plaintiffs’ request that the defendants

provide accident documents and other materials relating to particular types of

engine-related failures concerning aircraft utilizing a TIO 540 model engine. More

specifically, plaintiffs seek a response from Lycoming Engines concerning the first

request in their Fourth Request for Production of Documents Propounded Upon

Defendant Lycoming Engines. The relevant request reads as follows:

Please produce any and all Accident, Incident or Mishap Reports

authored by Lycoming and/or the NTSB, TSB or any foreign accident

investigation authority, in Lycoming’s possession and which relate to

any oil starvation, engine failure or significant oil loss in any aircraft

with any TIO 540 model engine, including all those listed on the

E14EA Type Certificate with an exception for those designated with

the prefix LTIO.

Id., Exhibit A. Lycoming Engines objected to the above request on March 18,

2010, and stated the following:

Lycoming Engines objects to this Request as it is overly broad, unduly

burdensome, encyclopedic in nature, and global in scope. Further, the

requests [sic], as phrased, does not attempt to limit itself to the model

engine involved in the accident made the basis of this suit nor to the

accident scenario. Therefore, the Request, as phrased, is not designed

to lead to the discovery of admissible evidence, but rather is designed

to harass and annoy this Defendant.

Id., Exhibit B.

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 Plaintiffs also note that all TIO 540 engines “fall within a very narrow

range of weight and size,” “are turbo charged and have a turbo charger bracketed

to the engine case,” “have oil return lines which return oil from the ‘wet-side’ of

the turbo charger to the engine case,” have oil return lines that “have fasteners and

attachment devices that secure the hoses at the turbo charger end and at the engine

case end,” and “undergo a single 150 hour endurance test to determine operational

issues with the model at the time of certification.” (Id. at 6, n.2).

7

Plaintiffs make a number of arguments concerning the propriety of their

document request. First, plaintiffs claim that the reports requested “are plainly

relevant to causation and Lycoming’s knowledge of the alleged engine defect at

issue in the present case.” (Rec. Doc. No. 18 at 4). Plaintiffs argue that similar

accidents in the past that relate to oil starvation, significant oil loss, or engine

failure are relevant to whether Lycoming Engines was put on notice of a defect. Id. 

More specifically, plaintiffs note that Type Certificate E14EA contains thirty-eight

additional engine types that fall within the Lycoming TIO 540 engine series. 

Plaintiffs contend that each of these engine types “is a 540 cubic inch

displacement, horizontally opposed six cylinder, direct drive, fuel injected and

turbo charged engine” designed to be used “in general aviation aircraft.”3

 Id. at 4-

5. In addition, plaintiffs point to deposition testimony by a number of Lycoming

Engines employees relating to 540 series engines that experienced oil starvation

and accidents related to engine failure. Id. at 5-6. Plaintiffs claim that the abovereferenced similarities “are so profound, that the engines are nearly identical” and,

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“[i]f engine or mechanical failure or problems arise in one particular model, it is

likely to occur in another model.” Id. Finally, plaintiffs contend that their request

is neither unduly burdensome nor overly broad. Id. at 6-8.

Lycoming Engines filed a brief in opposition to the plaintiffs’ motion to

compel on May 10, 2010. (Rec. Doc. No. 27). Lycoming Engines rests its

opposition on three main areas. First, Lycoming Engines notes that the cantilever

design used to attach the turbocharger to the engine in the TIO-540-AHIA engine

in the Saratoga formed the basis for the plaintiffs’ claim against Lycoming

Engines. (Id. at 5-13). Therefore, so the defendant’s argument goes, the instant

document request is overly broad. As support, Lycoming Engines points to

plaintiffs’ complaint, which lays out the theory of liability against Lycoming

Engines as follows:

At all time [sic] on or before June 5, 2005, . . . Lycoming Engines[]

owed a duty to Plaintiffs to exercise judgment, care, skill and the

knowledge of a reasonably prudent professional aircraft engine

manufacturer when designing and manufacturing the Lycoming TIO540 engine when it permitted the design manufacture and installation

of the Kelly Turbocharger Model TA0413IBP and its turbo oil drain

tank on its engine by a cantilever method which Lycoming knew or

should have known would expose the engine and the turbocharger to

unusual and destructive vibration resulting in oil starvation and the

destruction of the engine when in flight.

(Rec. Doc. No. 27, Attachment No. 1 at 8). Plaintiffs also include a claim against

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 In their complaint, plaintiffs similarly allege that “Lycoming Engines knew

that the cantilever design of the turbo oil drain tank assembly on the Garrett

Turbocharger as incorporated in the Lycoming TIO-540 engine was a dangerous

and defective design making the engine unsuitable for its intended purpose and

creating a risk of unreasonable harm to owners and operators of aircraft utilizing

the engine and turbocharger assembly . . . .” (Rec. Doc. No. 27, Attachment No. 1

at 10).

9

Lycoming Engines based upon a theory of product liability, stating, in part:

Lycoming Engines knew or should have known that the cantilever

design of the Garrett Turbocharger, its turbo oil drain tank and the

TIO-540 engine could lead to unusual and destructive vibrations

which would separate the oil drain tank from the turbocharger

assembly, compromise the clearance of rotating compressor parts and

result in the destruction of the engine and turbocharger assembly

releasing oil from the engine and leading to the seizure and stoppage

of the engine and subsequent crash. This circumstance, including the

design and manufacture of the engine and turbocharger assembly was

dangerous and defective for its intended purpose of operation as an

aircraft engine and created a substantial risk of severe injury and harm

to operators of the aircraft . . . .

Id. at 10. Lycoming Engines emphasizes that the plaintiffs’ claims for negligence

and product liability rest solely upon this cantilever method for attaching the

turbocharger’s oil drain tank to the TIO-540-AHIA engine in the Saratoga.4

 Id. at

2-3. Defendant notes, however, that “[n]one of the other engines for which

Plaintiffs are requesting information incorporates a turbocharger mounted by

cantilever design, and most are at variance with the TIO-540-AHIA in that they

include different model turbochargers, incorporate counter-clockwise rotation, are

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of different weights, as well as multiple other differences . . . .” Id. at 4 (emphasis

added).

Second, Lycoming Engines argues that it already has sufficiently responded

to plaintiffs’ discovery requests. Id. at 13. Lycoming Engines notes that it has

produced accident reports that relate to the TIO-540-AH1A engine, the only model

that utilizes the cantilever design described above. Id. The defendant claims that,

by producing such documents, it has discharged its discovery obligations under the

Federal Rules of Civil Procedure.

Finally, Lycoming Engines contends that producing the documents

requested would be unduly burdensome, even considering plaintiffs’ counsel’s

offer to personally review the documents. Id. at 13-15. Lycoming Engines claims

that a review and search would take weeks and that, as accident reports are not

categorized by cause of accident or engine type, the defendant will have to

individually review each report to determine whether it is subject to production. 

Id. at 13-14. The defendant notes that, even after an exhaustive review and search

of documents stored in both electronic and hard copy format, it will have to

determine whether accidents involving the proper turbocharged engine occurred as

a result of “oil starvation, engine failure or significant oil loss.” In addition, the

defendant claims that, “[b]ecause the reports do not contain information regarding

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causative findings, it would not necessarily be obvious that each accident involved

oil starvation or the reason(s) therefor.” Id. at 15.

In their brief filed as a reply to the defendant’s brief in opposition, plaintiffs

dispute that the documents are not relevant; in fact, plaintiffs claim that, “[a]t trial,

proof that Lycoming was knowledgeable of oil starvation events prior to the instant

occurrence will show that accident was foreseeable and could have been

prevented.” (Rec. Doc. No. 31 at 2). Plaintiffs also note that none of the TIO-540

engines underwent vibration testing, a process that can uncover occurrences of oil

starvation. Id. at 3. Plaintiffs also dispute the defendant’s recitation of their theory

of defect, noting that their complaint against the defendant is one sounding in

negligence and products liability and that, pursuant to the Federal Rules of Civil

Procedure, they “may obtain discovery regarding any nonprivileged matter that is

relevant to” their “claim or defense.” Fed. R. Civ. P. 26(b)(1). Plaintiffs also

claim that the TIO series engines are marketed by the defendant as being

substantially similar and that Lycoming Engines has also made such

representations to the federal government. (Rec. Doc. No. 31 at 5-7; see also 14

C.F.R. § 21.19).

We are constrained to agree with the plaintiffs that defendant Lycoming

Engines should be compelled to produce the requested documents. As an initial

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point, plaintiffs have two remaining claims against Lycoming Engines, one

sounding in negligence and one sounding in product liability. “[T]here is support

for the proposition that a plaintiff who raises a design defect claim is entitled to

broader discovery than, for example, if the claim were solely one of negligent

manufacture.” Fine v. Facet Aerospace Products Co., 133 F.R.D. 439 (S.D.N.Y.

1990) (citing Murphy v. Nissan Motor Corp., 650 F. Supp. 922, 925-29 (E.D.N.Y.

1987)). The fact that plaintiffs also have a claim resting upon a theory of product

liability therefore supports a reading allowing a broader degree of discovery.

Second, we do not find as persuasive the defendant’s description of the

plaintiffs’ complaint as necessarily being one solely founded upon the cantilever

design of the Garrett turbocharger. After all, in paragraph thirty-two of their

complaint, the plaintiffs claim “that the cantilever design of the Garrett

Turbocharger, its turbo oil drain tank and the TIO-540 engine could lead to

unusual and destructive vibrations which would separate the oil drain tank from the

turbocharger assembly . . . .” (Rec. Doc. No. 27, Attachment 1 at 10). The

plaintiffs then claim that such separation could destroy the engine and turbocharger

assembly, an event that would cause the engine to lose oil, seize up and stop. Id. 

“This circumstance,” the plaintiffs claim, “including the design and manufacture of

the engine and turbo charger assembly was dangerous and defective for its

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intended purpose of operation as an aircraft engine . . . .” Id. (emphasis added).

We read the above as alleging that the cantilever design, in conjunction with

the oil drain tank and the TIO-540 engine, could lead to a separation of the oil

drain tank from the turbocharger assembly, an occurrence that could lead to the

loss of oil and stoppage of the engine. In this way, the turbo oil drain tank and the

TIO-540 engine are directly relevant to what the plaintiffs contend was a crash

caused by oil starvation and a subsequent stoppage of the engine. The incident,

mishap, and accident reports sought by plaintiffs in the instant request pertain to

six cylinder engines with a 540 cubic inch displacement, and that are horizontallyopposed, fuel-injected, direct driver, and turbocharged. In addition, the engines,

though not of identical weights and sizes, are similar in those respects. These

engines also have tubochargers that are bracketed to the engine case, though not in

a cantilever design as found in the TIO-540-AH1A engine. We believe that the

above characteristics are sufficiently similar, in light of the plaintiffs’ claims, to

warrant our granting the plaintiffs’ motion to compel. We believe the information

sought by the plaintiffs in the instant motion to compel is, in the language of Fed.

R. Civ. P. 26(b)(1), relevant and “reasonably calculated to lead to the discovery of

admissible evidence.” After all, the information sought may provide plaintiffs with

an idea as to what the defendant knew and when the defendant knew it, or notice as

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to the potential dangers associated with the 540 series engine and the interaction

between this engine and a turbocharger. Though the reports sought in the instant

request do not pertain to a turbocharger attached to the engine in a cantilever

design, these reports may shed light on the risk of oil starvation or engine failure in

the TIO-540 series depending on how the engine and the turbocharger are

connected and how the oil drain tank could be most safely utilized. At bottom, we

do not believe that the above language necessarily precludes plaintiffs from

seeking discoverable material from the defendants that relate to substantially

similar engines within the TIO-540 class, even if such engines did not utilize the

cantilever design found in the TIO-540-AH1A engine.

In addition, as the plaintiffs seek mishap and accident reports involving TIO540 model engines and only where oil starvation, engine failure, or significant oil

loss relate to the mishap or accident report, we do not believe the discovery request

is overly broad.

Similarly, while it may take Lycoming Engines several weeks to produce the

pertinent documents, we do not believe that the instant request is unduly

burdensome. The request does encompass thirty-nine models, as listed on the TIO540 series Type Certificate, which were offered by Lycoming Engines over the

course of more than forty years. However, the request is, again, limited to

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accidents relating “to any oil starvation, engine failure or significant oil loss in any

aircraft . . . .” (Rec. Doc. No. 18, Exhibit A at 3). In addition, not just any

accident, incident, or mishap report must be produced; instead, only those reports

“authored by Lycoming and/or the NTSB, TSB or any foreign accident

investigation authority, in Lycoming’s possession” need be provided. Id. at Exhibit

A (emphasis added). Therefore, while it will take time for Lycoming Engines to

produce the relevant documentation, we do not believe the request imposes an

undue burden on the defendant.

Finally, we note that our granting of the plaintiffs’ instant motion to compel

in no way evinces our belief as to whether any documents produced pursuant to

this Memorandum and Order would be admissible at any future trial. Quite

simply, we conclude that, at the present time, we believe it would be inappropriate

to foreclose from plaintiffs the opportunity to obtain nonprivileged evidence that,

we believe, “is relevant to [the plaintiffs’] claim . . . .” Fed. R. Civ. P. 26(b)(1)

(emphasis added). Similarly, we believe “the discovery appears reasonably

calculated to lead to the discovery of admissible evidence” and is not unreasonably

cumulative, duplicative, unduly burdensome, or overly broad. Id.

In light of the above, we will grant the plaintiffs’ motion to compel

discovery. (Rec. Doc. No. 17).

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V. CONCLUSION

Based on the above reasoning, we will grant the plaintiffs’ motion to compel

discovery (Rec. Doc. No. 17). Therefore, we will order Lycoming Engines to

respond to the first request in plaintiffs’ Fourth Request for Production of

Documents Propounded Upon Defendant Lycoming Engines. (Rec. Doc. No. 18,

Exhibit A).

s/James F. McClure, Jr.

James F. McClure, Jr.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID H. PEASE, III and :

LISA PEASE, : No. 4:10-CV-00843

:

Plaintiffs, :

:

v. : (Judge McClure)

:

KELLY AEROSPACE, INC. d/b/a :

KELLY AEROSPACE POWER :

SYSTEMS, INC., An Alabama :

Corporation, et al., :

:

Defendants. :

ORDER

June 8, 2010

For the reasons set forth in the accompanying memorandum, IT IS HEREBY

ORDERED THAT: 

1. Plaintiffs’ “Motion to Compel the Production of Documents” (Rec.

Doc. No. 17) is GRANTED.

2. Defendant Lycoming Engines is directed to respond to the first

request contained in the Plaintiffs’ Fourth Request for Production of Documents 

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Propounded Upon Defendant Lycoming Engines (Rec. Doc. No. 18, Exhibit A),

 within thirty (30) days from the date of this order. 

s/James F. McClure, Jr.

James F. McClure, Jr.

United States District Judge

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