The HONORABLE THOMAS M. S HANAHAN, United States District Judge 1 for the District of Nebraska. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3132

_____________ Robert Ross, * * Plaintiff - Appellant, * Appeal from the United States * District Court for the District v. * of Nebraska. * Beech Aircraft Corporation, * [UNPUBLISHED] * Defendant - Appellee. *

_____________ Submitted: March 13, 1997 Filed: August 7, 1997

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

_____________ 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 s erious brain damage when the airplane he was flying crashed in Mexicali, Mexico . Ross, a resident of California, had rented the craft, which was de signed and manufactured by Beech, from the Hayword, CaliforniaThe HONORABLE THOMAS D. THALKEN, Unite d States Magistrate Judge 2 for the District of Nebraska. -2- Airport for a short international excursion. At the time of impact, Ross and hi s co mpanions were returning to the United States. Ross's injuries required him to b e 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 C alifornia 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 o f li mitations for product liability cases. Not to be discouraged, Ross then invoke d diver sity jurisdiction to file a Complaint against Beech in the United States Distric t Court for the District of Nebraska. Interestingly, the relevant statute of limitations in Nebraska permits lawsuits fi led 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 rule d, over Ross's objection, that Beech could specify as a controverted issue th e applicability of Nebraska's statute of repose. Ross complained that the law, whic h shi elds a manufacturer from liability for injuries occuring over ten years after a n 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 includedthe 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 the reafter relied upon Nebraska's statute of repose in a motion fo r summa ry judgment. The district judge granted the motion after concluding that th e forum state's choice of law analysis compelled the application of Nebraska's, rather-3-

than C alifornia's, substantive law. Because an affiliate of Beech sold the aircraft to a cons umer on July 21, 1978, more than ten years prior to Ross's accident, the distric t court decided that the statute of repose completely insulated Beech from liability. In so holdi ng, the court rejected Ross's claim that Beech's 1984 republication of th e plane's "Pilot Operating Handbook" constituted a reissue of the product that extended or tolle d the statute of repose. Consequently, the district court considered summar y judgment appropriate and dismissed Ross's Complaint.
In this appeal, Ross contends that the district court committed error when i t allowed Beec h, at the pretrial conference, to identify the statute of repose as a contr overted issue. In addition, Ross criticizes the district court's conclusion tha t Nebraska law should govern this action. Ross argues that Califo rnia, which has not yet enacted a s tatute of repose, bears a more substantial relation to this litigation an d should supply the substantive legal framework to guide the court's analysis

. Fur thermore, even assuming that Nebraska law controls in this diversity case, Ros s maintains that the statute of repose does not operate as a bar to all of his claims. In like mann er, he contends that his defective design claim remains viable because Beech' s rep ublication of the Pilot Operating Handbook renewed the ten year window o f Nebraska's statute of repose.
We affirm the district court's judgment for the reasons set forth in its thorough andwell-reasoned memorandum opinion. Contrary to what Ross may believe, th e court did not abus e 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 it s regulat ionof pretrial matters."). In addition, the court correctly applied Nebraska' s choice o f law rules in considering which state's laws should govern this case. Se e Harper v. Silva , 399 N.W.2d 826, 828 (Neb. 1987)(explaining tha t Nebraska "appears" to follow the choice of law rules embodied in the Restatement (Second) of Conflict s of Laws). Having rightly decided that Nebraska's law is the appropriate choice, theRoss's Complaint appears to contain two grounds for relief. The first clai m 3 seems to seek damages based on the defective design of the ai rcraft. The second cause of acti on broadly charges that Beech "negligently and carelessly manufactured , assembled, tested, or failed to test, failed to warn, inspected, packaged, labeled , dis tributed, recommended and sold" the plane. After inspecting the Complaint, it i s clea r 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 shal l mean any action brough t against a manufacturer, seller, or lessor of a product, regardless of th e substantive legal theory or theories upon which the action is brought . . . ."). -4- court p roperly deemed all of Ross's causes of action barred under the ten year statute of repose. SeeNeb. Rev. Stat. § 25-224(2). Moreover, the cour t did not commit error 3 whe n it held that Beech's republication of the Pilot Operating Handbook failed t o reopen the ten year period of repose. See Alexander v. Be ech 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 o n our careful consideration of the record, the parties' briefs, and th e relevant authorities, we have concluded that an extended discussion of Ross's claims would serve n o useful purpose. Accordingly, we summarily affirm the district court's judgment. See 8th Cir. R. 47B.
AFFIRMED.-5-

A true copy.

Attest:

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