The HONORABLE THOMAS M. SHANAHAN, United States District Judge 1

for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3132

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Robert Ross, *

*

Plaintiff - Appellant, * Appeal from the United States

* District Court for the District

v. * of Nebraska. 

* 

Beech Aircraft Corporation, * [UNPUBLISHED]

*

Defendant - Appellee. *

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Submitted: March 13, 1997

Filed: August 7, 1997

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Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

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PER CURIAM.

Robert Ross appeals the district court's entry of summary judgment in favor of 1

Beech Aircraft Corporation ("Beech"). We affirm.

On August 26, 1989, Ross sustained serious brain damage when the airplane he

was flying crashed in Mexicali, Mexico. Ross, a resident of California, had rented the

craft, which was designed and manufactured by Beech, from the Hayword, California
The HONORABLE THOMAS D. THALKEN, United States Magistrate Judge 2

for the District of Nebraska.

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Airport for a short international excursion. At the time of impact, Ross and his

companions were returning to the United States. Ross's injuries required him to be

placed in conservatorship until June 25, 1991.

All of the passengers on the plane or their legal representatives, except Ross,

reached a settlement with Beech after filing a timely suit in California state court. Ross

subsequently commenced litigation against Beech in California state and federal courts,

but both actions were dismissed as untimely under California's one year statute of

limitations for product liability cases. Not to be discouraged, Ross then invoked

diversity jurisdiction to file a Complaint against Beech in the United States District

Court for the District of Nebraska. Interestingly, the relevant statute of limitations in

Nebraska permits lawsuits filed within four years of injury. See Neb. Rev. Stat. § 25-

224(1) (1995).

Following discovery, a magistrate judge held a pretrial conference at which he 2

ruled, over Ross's objection, that Beech could specify as a controverted issue the

applicability of Nebraska's statute of repose. Ross complained that the law, which

shields a manufacturer from liability for injuries occuring over ten years after an

allegedly defective product was first sold to a consumer, see Neb. Rev. Stat. § 25-

224(2) (1995), should not provide protection to Beech because the company had not

included the statute as a defense in its Answer. The magistrate judge disagreed with

Ross and designated the statute of repose as an issue and potential defense in the case;

Ross appealed to a district judge, who affirmed the magistrate's decision.

Beech thereafter relied upon Nebraska's statute of repose in a motion for

summary judgment. The district judge granted the motion after concluding that the

forum state's choice of law analysis compelled the application of Nebraska's, rather
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than California's, substantive law. Because an affiliate of Beech sold the aircraft to a

consumer on July 21, 1978, more than ten years prior to Ross's accident, the district

court decided that the statute of repose completely insulated Beech from liability. In

so holding, the court rejected Ross's claim that Beech's 1984 republication of the

plane's "Pilot Operating Handbook" constituted a reissue of the product that extended

or tolled the statute of repose. Consequently, the district court considered summary

judgment appropriate and dismissed Ross's Complaint.

In this appeal, Ross contends that the district court committed error when it

allowed Beech, at the pretrial conference, to identify the statute of repose as a

controverted issue. In addition, Ross criticizes the district court's conclusion that

Nebraska law should govern this action. Ross argues that California, which has not yet

enacted a statute of repose, bears a more substantial relation to this litigation and

should supply the substantive legal framework to guide the court's analysis.

Furthermore, even assuming that Nebraska law controls in this diversity case, Ross

maintains that the statute of repose does not operate as a bar to all of his claims. In like

manner, he contends that his defective design claim remains viable because Beech's

republication of the Pilot Operating Handbook renewed the ten year window of

Nebraska's statute of repose.

We affirm the district court's judgment for the reasons set forth in its thorough

and well-reasoned memorandum opinion. Contrary to what Ross may believe, the

court did not abuse its discretion when it allowed Beech to designate the applicability

of the statute of repose as a controverted issue. See Sil-Flo, Inc. v. SFHC, Inc., 917

F.2d 1507, 1514 (10th Cir. 1990)("[T]he district court has wide discretion in its

regulation of pretrial matters."). In addition, the court correctly applied Nebraska's

choice of law rules in considering which state's laws should govern this case. See

Harper v. Silva, 399 N.W.2d 826, 828 (Neb. 1987)(explaining that Nebraska "appears"

to follow the choice of law rules embodied in the Restatement (Second) of Conflicts

of Laws). Having rightly decided that Nebraska's law is the appropriate choice, the
Ross's Complaint appears to contain two grounds for relief. The first claim

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seems to seek damages based on the defective design of the aircraft. The second cause

of action broadly charges that Beech "negligently and carelessly manufactured,

assembled, tested, or failed to test, failed to warn, inspected, packaged, labeled,

distributed, recommended and sold" the plane. After inspecting the Complaint, it is

clear to us that all of Ross's claims qualify as "products liability action[s]" which are

subject to the statute of repose. Neb. Rev. Stat. § 25-224(2); see also id. § 25-21,180

(1995)("As used in section[] 25-224, . . . [p]roduct liability action shall mean any action

brought against a manufacturer, seller, or lessor of a product, regardless of the

substantive legal theory or theories upon which the action is brought . . . .").

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court properly deemed all of Ross's causes of action barred under the ten year statute

of repose. See Neb. Rev. Stat. § 25-224(2). Moreover, the court did not commit error 3

when it held that Beech's republication of the Pilot Operating Handbook failed to

reopen the ten year period of repose. See Alexander v. Beech Aircraft Corp., 952 F.2d

1215, 1219-21 (10th Cir. 1991)(holding that issuance of revised operating handbook

did not recommence running of Indiana's statute of repose).

Based on our careful consideration of the record, the parties' briefs, and the

relevant authorities, we have concluded that an extended discussion of Ross's claims

would serve no useful purpose. Accordingly, we summarily affirm the district court's

judgment. See 8th Cir. R. 47B.

AFFIRMED.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.