Larry Crouch v. Honeywell International, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0139p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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LARRY CROUCH, RHONDA MAE CROUCH,
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TEDDY LEE HUDSON, and CAROLYN SUE
HUDSON, -
Plaintiffs-Appellants, -
No. 12-5775

,
>
-
-
v.
-
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HONEYWELL INTERNATIONAL, INC., et al.,
Defendants, -
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Defendant-Appellee. -
AVCO CORPORATION,
N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:07-cv-00638—Charles R. Simpson III, District Judge.
Decided and Filed: May 14, 2013
Before: DAUGHTREY, McKEAGUE and GRIFFIN, Circuit Judges.

_________________

COUNSEL
ON BRIEF: William R. Garmer, Jerome P. Prather, GARMER & PRATHER, PLLC,
Lexington, Kentucky, Matthew C. Minner, HARE, WYNN, NEWELL AND NEWTON,
LLP, Birmingham, Alabama, for Appellants. Larry C. Deener, Elizabeth A. Deener,
LANDRUM & SHOUSE LLP, Lexington, Kentucky, for Appellee.
_________________

OPINION
_________________

McKEAGUE, Circuit Judge. This case stems from a plane crash that resulted in
serious injuries to both pilot and passenger. Among various claims against numerous
defendants, plaintiffs allege that the aircraft engine manufacturer is liable for negligently
failing to warn airplane owners and operators, and failing to notify regulatory authorities,

1
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 2

of defects in the engine and its components. In granting the defendant manufacturer’s
motion for summary judgment, the district court held that plaintiffs’ allegations failed
to make out a claim in avoidance of the applicable period of repose. The court also
denied plaintiffs’ post-judgment motion for leave to file a first amended complaint,
concluding the asserted “newly discovered evidence” was not newly discovered. On
appeal, plaintiffs challenge the district court’s application of the General Aviation
Revitalization Act and contend the court improperly denied them opportunity to continue
discovery. For the reasons that follow, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND1

On November 21, 2006, Larry Crouch was piloting his Piper Lance II single-
engine airplane on a trip from Mayfield to Frankfort, Kentucky, with Teddy Lee Hudson
as passenger. After losing engine power at an altitude of 5000 feet, and finding it
impossible to reach an airport, Crouch made a forced landing in a field near Bardstown.
Both occupants survived but suffered serious permanent injuries, including paraplegia.

According to at least one of plaintiffs’ theories, investigation of the crash
indicated the loss of power was caused by detachment of the magneto from the engine,
due to a fractured mounting flange. The magneto generates the electrical charge needed
to fire the spark plugs that power the engine. The engine was manufactured in 1978 by
Lycoming Engines, a subsidiary of defendant AVCO Corporation. The magneto, a
rebuilt component, was installed by John Jewell Aircraft, Inc. during a 2005 overhaul
of the engine.2 According to Jewell Aircraft, the overhaul was performed in accordance
with the Lycoming Overhaul Manual.

Crouch and Hudson, along with their wives, Rhonda Mae Crouch and Carolyn
Sue Hudson, commenced this action in November 2007, suing multiple defendants who

1
Plaintiffs’ version of the facts is essentially accepted as true for purposes of our review of the
relevant legal issues.
2
The rebuilt magneto was manufactured by Teledyne Continental Motors, Inc. Plaintiffs sued
Teledyne in the Southern District of Alabama on defective design and manufacture and failure to warn
claims. Jewell Aircraft is a named defendant in this action. Proceedings on plaintiffs’ claims against Jewell
Aircraft and other defendants are ongoing in the district court.
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 3

were allegedly involved in the manufacture and maintenance of the aircraft and its
engine, including AVCO. Their complaint sets forth a single claim in negligence against
all defendants, in broad, general terms:

Defendants, . . . in the ordinary course of their business, had a duty to
exercise reasonable care in the design, engineering, testing, manufacture,
installation, assembly, maintenance and overhaul of the engine, its
components and accessories, and to generate and publish warnings,
manuals and other product support material relating to the said engine,
its components and accessories.

R.1 Complaint ¶ 24, p.8, Page ID #9. Plaintiffs allege that the defendants breached this
duty by:

a. Failing to reasonably design, engineer, test, manufacture, install,
assemble, maintain and/or overhaul the engine, its components and
accessories;
b. Failing to adequately warn the owners and operators of the defects in
the engine, its components and accessories;
c. Failing to reasonably and adequately notify the regulatory authorities
including the Federal Aviation Administration (“FAA”) of the defects in
the engine, its components and accessories;
d. Failing to correct known defects in the engine, its components and
accessories; and
e. Unreasonably representing, certifying, and/or warranting as airworthy
the aircraft, the engine, its components and accessories.

Id. at ¶ 25, p.9, Page ID #10.

In relation to AVCO’s asserted liability, plaintiffs contend the engine failure
resulted from the separation of the magneto installed during an overhaul performed
according to instructions in a manual AVCO was obliged to publish and update.
Plaintiffs’ theory, not specifically set forth in the complaint, is that the overhaul manual
instructions were flawed due to AVCO’s negligence.

In December 2009, AVCO moved for summary judgment based on the General
Aviation Revitalization Act of 1994 (“GARA”), 49 U.S.C. § 40101 Notes. AVCO
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 4

argued that GARA’s 18-year period of repose bars plaintiffs’ negligence claim against
AVCO based on actions taken in its capacity as manufacturer because the engine was
manufactured in 1978, twenty-eight years before the plane crash. In response, plaintiffs
emphasized that the court had permitted only limited discovery up to that point, which
had handicapped them in their ability to respond to the time-bar defense. They
maintained that AVCO’s motion was premature. Plaintiffs also contended (1) that
GARA does not apply because AVCO is not sued in its capacity as a manufacturer but
as a manual publisher; (2) that even if GARA applies, the revised overhaul manual
represents a replacement “part” or “component,” the issuance of which triggered a new
18-year period; and (3) that incomplete discovery had revealed that another potential
exception to the time-bar may apply (i.e., that AVCO had knowingly misrepresented or
withheld required information from the Federal Aviation Administration).

The district court originally denied AVCO’s motion for summary judgment on
July 12, 2010. In doing so, however, the court narrowed the scope of plaintiffs’
surviving claim against AVCO. The court ruled that the revised overhaul manual is not
a “part” of the aircraft such as would give rise to a new 18-year period. Yet, the court
ruled that the GARA time-bar did not come into play anyway, because AVCO was not
sued in its capacity as a manufacturer, but rather for actions taken as an overhaul manual
publisher. Finally, the court rejected the notion that plaintiffs’ complaint contained
sufficiently specific allegations of knowing misrepresentation or withholding of required
information by AVCO to warrant further proceedings on such a theory. Thus, while
nominally denying AVCO’s motion, the court concluded its ruling in a manner that
limited further proceedings to plaintiffs’ claim of “negligent overhaul-manual
authorship.”

AVCO moved for reconsideration, but plaintiffs did not. On November 1, 2010,
the district court changed its ruling, concluding that because AVCO was required by law
to produce maintenance and overhaul manuals in conjunction with its manufacturing of
aircraft parts, AVCO, for purposes of its alleged liability in this case, was acting in its
capacity as a manufacturer. The court thus held that plaintiffs’ claim against AVCO was
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 5

barred by GARA’s 18-year rule, because the engine for which AVCO published the
overhaul manual was manufactured more than eighteen years prior to the plane crash.
The court expressly noted that this reconsideration did not alter its earlier determination
that the revised overhaul manual is not a “part” that could be deemed to restart the period
of repose.

On November 29, 2010, plaintiffs moved for reconsideration of the court’s order
granting summary judgment to AVCO and moved for leave to file a first amended
complaint so as to specifically set forth their claim for misrepresentation or withholding
of required information. These motions remained under advisement in March 2011,
when plaintiffs moved to supplement the motions with newly discovered evidence
showing that AVCO published a service instruction on February 11, 2011, detailing the
correct procedure for attaching the magneto installation hardware. The district court
finally ruled on August 17, 2011, granting the motion to supplement, but nonetheless
denying the motions for reconsideration and for leave to amend.

Plaintiffs filed their notice of appeal on September 14, 2011, but the appeal was
dismissed sua sponte on January 19, 2012, for lack of proper “final judgment”
certification under Fed. R. Civ. P. 54(b). The district court subsequently issued an
improved Rule 54(b) certification, explaining why its interlocutory summary judgment
order disposing of plaintiffs’ action against AVCO is final and appealable under the
standard prescribed in Corrosioneering v. Thyssen Envitl. Sys., Inc., 807 F.2d 1279, 1282
(6th Cir. 1986). Plaintiffs immediately filed another notice of appeal, challenging
the summary judgment ruling and denial of reconsideration. The district court’s
supplemental Rule 54(b) order is facially sufficient and we are satisfied that appellate
jurisdiction is properly exercised in this case.

II. ANALYSIS

A. Standard of Review

An order granting summary judgment is subject to de novo review. White v.
Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 6

“should be rendered if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Before
ruling on a summary judgment motion, the district court must afford the parties adequate
time for discovery, in light of the circumstances of the case. Plott v. Gen. Motors Corp.,
Packard Elec. Div., 71 F.3d 1190, 1195 (6th Cir. 1995). The reviewing court must view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor. White, 533 F.3d at 390. Not just any alleged factual dispute
between the parties will defeat an otherwise properly supported motion for summary
judgment; the non-movant must do more than simply show there is “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The dispute must present a genuine issue of material fact.
A dispute is “genuine” only if based on evidence upon which a reasonable jury could
return a verdict in favor of the non-moving party. Niemi v. NHK Spring Co., Ltd.,
543 F.3d 294, 298 (6th Cir. 2008). A factual dispute concerns a “material” fact only if
its resolution might affect the outcome of the suit under the governing substantive law.
Id. at 298-99.

Likewise, the district court’s denial of plaintiffs’ motion for reconsideration of
the summary judgment ruling is reviewed de novo. Medical Mut. of Ohio v. k. Amalia
Enterprises Inc., 548 F.3d 383, 389-90 (6th Cir. 2008). However, the district court’s
“refusal to consider evidence produced for the first time on a motion to reconsider will
be reversed only if the refusal constitutes an abuse of discretion.” Id. (quoting Sommer
v. Davis, 317 F.3d 686, 691 (6th Cir. 2003)).

B. Relevant GARA Provisions

The relevant provisions of the General Aviation Revitalization Act provide as
follows:
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 7

Section 2. Time limitations on civil actions against aircraft
manufacturers.
(a) In general.—Except as provided in subsection (b), no civil
action for damages for death or injury to persons or damage to property
arising out of an accident involving a general aviation aircraft may be
brought against the manufacturer of the aircraft or the manufacturer of
any new component, system, subassembly, or other part of the aircraft,
in its capacity as a manufacturer if the accident occurred—
(1) after the applicable limitation period beginning on—
(A) the date of delivery of the aircraft to its first purchaser or lessee, if
delivered directly from the manufacturer; or
(B) the date of first delivery of the aircraft to a person engaged in the
business of selling or leasing such aircraft; or

(2) with respect to any new component, system, subassembly, or
other part which replaced another component, system, subassembly, or
other part originally in, or which was added to, the aircraft, and which is
alleged to have caused such death, injury, or damage, after the applicable
limitation period beginning on the date of completion of the replacement
or addition.
(b) Exceptions.—Subsection (a) does not apply—
(1) if the claimant pleads with specificity the facts necessary to
prove, and proves, that the manufacturer with respect to a type certificate
or airworthiness certificate for, or obligations with respect to continuing
airworthiness of, an aircraft or a component, system, subassembly, or
other part of an aircraft knowingly misrepresented to the Federal
Aviation Administration, or concealed or withheld from the Federal
Aviation Administration, required information that is material and
relevant to the performance or the maintenance or operation of such
aircraft, or the component, system, subassembly, or other part, that is
causally related to the harm which the claimant allegedly suffered.

49 U.S.C. § 40101 Notes, § 2.

C. “Capacity as a Manufacturer”

On reconsideration, the district court held that AVCO, by publishing the overhaul
manual, was acting in its “capacity as a manufacturer” within the meaning of GARA.
The court noted that FAA regulations require manufacturers of aircraft and aircraft parts
to follow an extensive certification process requiring them to produce instructions to
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 8

assist in the continuing maintenance and overhaul of the engine. The court viewed
production of the manual as an essential element in the overall process of creating a
product that satisfies FAA regulations. Plaintiffs’ claim against AVCO for negligence
in the publication of the manual was thus held to trigger application of GARA and its 18-
year period of repose.

The district court’s conclusion is in accord with decisions from other
jurisdictions. See Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1157 (9th Cir.
2000) (applying GARA and holding that a flight manual, required by federal regulations,
is an integral part of an aircraft which, if defective, can subject manufacturer to liability
as manufacturer); Schamel v. Textron-Lycoming, a Div. of Avco Corp., 1 F.3d 655, 657
(7th Cir. 1993) (applying analogous Indiana statute of repose and holding publication
of service manual was integral to manufacturer’s duties as manufacturer); Estate of
Grochowske v. Romey, 813 N.W.2d 687, 696-700 (Wis. App. 2012) (manufacturer
fulfilling legal obligation to provide maintenance manual held to be acting in its capacity
as manufacturer under GARA); Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543,
550-51 (Iowa 2002) (holding manufacturer who published maintenance manual acted
in its capacity as manufacturer under GARA, stating, “[a]ny other interpretation would
subject manufacturers to liability on failure-to-warn claims without regard to the statute
of repose, thereby thwarting Congress’s objective in enacting the statute.”); Alter v. Bell
Helicopter Textron, Inc., 944 F. Supp. 531, 540-41 (S.D. Tex. 1996) (recognizing
manufacturer’s provision of maintenance manual to be part of its duty as manufacturer).

Plaintiffs contend the district court erred. They rely primarily on a legislative
report which clarifies the meaning of GARA § 2(a). The report reads:

The latter limitation [i.e., on suits brought against a manufacturer in its
capacity as a manufacturer] is intended to insure that parties who happen
to be manufacturers of an aircraft or a component part are not
immunized from liability they may be subject to in some other capacity.
For example, in the event a party who happened to be a manufacturer
committed some negligent act as a mechanic of an aircraft or as a pilot,
and such act was a proximate cause of an accident, the victims would not
be barred from bringing a civil suit for damages against that party in its
capacity as a mechanic.
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 9

H.R. Rep. 103-525 (II), reprinted in 1994 U.S.C.C.A.N. 1644 (Section-by-Section
Analysis) (June 24, 1994). Plaintiffs argue this legislative history underscores the plain
meaning of GARA’s language, making it clear that manufacturers of aircraft and aircraft
parts are not protected by the period of repose for tortious conduct committed in a
capacity other than as manufacturer. Plaintiffs insist that AVCO’s publication of the
overhaul manual was undertaken in a capacity other than as a manufacturer.

The problem with this argument is that it finds no support in the case law. As
indicated above, it has become generally accepted that performance of a manufacturer’s
federally mandated duty to publish flight and maintenance manuals is conduct
undertaken in the capacity of a manufacturer. Plaintiffs’ legislative-history based
argument was directly addressed and rejected in Mason, 653 N.W.2d at 551-52.
Plaintiffs have cited no contrary authority. A manufacturer who chooses to also conduct
business as a mechanic is different than a manufacturer who is required by federal
regulation to publish maintenance and overhaul manuals for all products that it
manufactures.3

Further support for the proposition that publication of a maintenance or overhaul
manual is action taken in the “capacity as a manufacturer” is derived from the plain
language of GARA itself. One of the exceptions to the operation of the period of repose,
GARA § 2(b)(1), pertains to claims resulting from a manufacturer’s duty to disclose
pertinent information, such as maintenance issues affecting airworthiness, to the FAA.
Disclosure of such information is required and withholding or misrepresentation of such
information may expose the manufacturer to liability under § 2(b)(1) notwithstanding

3
In their reply brief, plaintiffs attempt to distinguish AVCO’s responsibilities as a type certificate
holder from its responsibilities as a manufacturer. They argue that AVCO’s publication of the overhaul
manual was in its capacity as a type certificate holder. This argument, too, has been rejected in the case
law. The federal regulations prohibit the manufacturing of an aircraft or certain parts unless the
manufacturer is the type certificate holder for that model aircraft. By virtue of acquisition of a type
certificate, an entity other than the original manufacturer steps into the shoes of the original manufacturer
in relation to the manufacturer’s obligations under the regulations. See 14 C.F.R. § 21.50 (requiring the
current holder of a type certificate to make available all “changes to the Instructions for Continued
Airworthiness . . . to any person required . . . to comply with those instructions.”). The type certificate
holder is, in the eyes of the FAA, the current manufacturer, and thus the type certificate holder should not
be denied the protections of GARA as a manufacturer. See Burton v. Twin Commander Aircraft LLC,
254 P.3d 778, 784-85 (Wash. 2011); S. Side Trust & Sav. Bank of Peoria v. Mitsubishi Heavy Indus., Ltd.,
927 N.E.2d 179, 203-04 (Ill. App. 2010); Mason, 653 N.W.2d at 548–49; Pridgen v. Parker Hannifin
Corp., 904 A.2d 422, 435 (Pa. 2006).
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 10

the otherwise applicable period of repose. If Congress did not view a manufacturer’s
duty to publish and update maintenance manuals as falling within its “capacity as a
manufacturer,” then there would arguably have been no need for Congress to include
§ 2(b)(1) as an exception.

In sum, the district court’s holding that AVCO is sued in its capacity as a
manufacturer is supported by the extant case law, which we find persuasive.
Accordingly, we find no error.

D. New Period of Repose

If AVCO is deemed to have been sued for conduct in its capacity as a
manufacturer, plaintiffs contend each revision of the overhaul manual is sufficiently
analogous to a replacement part of the aircraft under GARA § 2(a)(2) to trigger a new
18-year period of repose. Under § 2(a)(2), a new 18-year period of repose begins “with
respect to any new component, system, subassembly, or other part which replaced
another component, system, subassembly, or other part originally in, or which was added
to, the aircraft, and which is alleged to have caused such death, injury, or damage,
. . . beginning on the date of completion of the replacement or addition.” 49 U.S.C.
§ 40101 Notes, § 2(a)(2). If the overhaul manual is deemed to be such an integral part
of the aircraft as to render its publication an action taken in the capacity of a
manufacturer, plaintiffs contend the manual must be deemed to be a part of the aircraft
and any revision of the manual that caused plaintiffs’ injuries a replacement part.

The district court rejected this argument in its original summary judgment ruling,
citing Colgan Air, Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 276-77 (4th Cir. 2007)
(holding a maintenance manual, in contrast to a flight manual, is not a “part of the
aircraft.”). When the court later reconsidered and held that AVCO was sued as a
manufacturer, it expressly declined to revisit its earlier ruling that the manual was not
a part of the aircraft. The court characterized the manual as “a required accessory,” not
a “part” whose modification would restart the statute of repose. Further, in denying
plaintiffs’ subsequent motion for reconsideration, the court reasoned that holding the
manual revision to be a replacement part triggering a new period of repose would allow
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 11

plaintiffs to circumvent the 18-year period of repose applicable to a design flaw claim
simply by couching their claim in terms challenging the manual’s adequacy to correct
the flaw.

Importantly, the court added the following:

The plaintiffs do not point to any portion of the manual that contained the
wrong instructions for the overhaul, nor do they point to any previously
existing warning that was negligently deleted. Rather, their entire claim
vis a vis the manual rests on their claim that the manual, and subsequent
service bulletins, failed to provide any warning that the magneto
assembly in Crouch’s plane might come loose. This is precisely the sort
of action that GARA forbids.

R. 247, Memorandum Opinion at 6-7, Page ID # 2549-50 (footnote and citations
omitted). The court thus implied that even if the overhaul manual could be deemed a
part of the aircraft, a new 18-year period would not have been triggered because
plaintiffs had adduced no factual substantiation for their theory that the revised overhaul
manual Jewell Aircraft purportedly relied on was flawed in some specific way, by virtue
of an addition or a deletion, that was causally linked to the plane crash. The overhaul
manual was revised several times within eighteen years prior to plaintiffs’ crash, as
recently as 2002. However, plaintiffs have persistently failed to identify any specific
defect in any particular revision as causally related to the plane crash. Absent such
factual support, the court remained unpersuaded that plaintiffs had established grounds
to alter or amend the summary judgment ruling.

There is little case law addressing whether an overhaul manual is a part of the
aircraft within the meaning of GARA § 2(a)(2). In Caldwell, 230 F.3d at 1156-58, the
Ninth Circuit relied on the text of the statute, specifically the words “originally in, or
which was added to, the aircraft,” in holding that a flight manual, because it is required
by law to be on board the aircraft, is a part within the meaning of GARA. However, in
Alter, 944 F. Supp. at 538-41, the court rejected the argument that a maintenance manual
revision was a replacement part within the meaning of GARA § 2(a)(2). In reaching this
conclusion, the Alter court also relied on the statutory language, holding that the
maintenance manual was not a part “originally in” or “added to” the aircraft. Id. at 538.
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 12

The court noted that its holding was consistent with holdings of several federal courts
applying state statutes of repose similar to GARA, citing Schamel, 1 F.3d at 657;
Alexander v. Beech Aircraft Co., 952 F.2d 1215, 1220-21 (10th Cir. 1991); Kochins v.
Linden-Alimak, Inc., 799 F.2d 1128, 1135 (6th Cir. 1986); Butchkosky v. Enstrom
Helicopter, Inc., 855 F. Supp. 1251, 1257 (S.D. Fla. 1993). See also Colgan, 507 F.3d
at 276-77 (relied on in the district court’s original ruling that the overhaul manual was
not a part).

This case involves an overhaul manual, which is more akin to the maintenance
manual discussed in Alter and dissimilar to the flight manual discussed in Caldwell. The
reasoning employed in both Caldwell and Alter thus tends to support the notion that the
overhaul manual is not a part because it was not “originally in, or . . . added to, the
aircraft.” Furthermore, the duty of a manufacturer to publish and update manuals derives
from its manufacturing of the original aircraft or part. GARA specifically bars lawsuits
arising out of defects in an aircraft part that is more than eighteen years old. This bar
logically includes suits for a failure to warn about latent defects in such parts. If claims
for negligently failing to warn in manual revisions were not barred by GARA’s period
of repose, plaintiffs could artfully plead suits arising out of design defects as “failure to
warn” claims, thereby defeating Congress’s intent. See Lyon v. Agusta S.P.A., 252 F.3d
1078, 1088 (9th Cir. 2001) (rejecting notion that failure to warn of a newly perceived
problem in revised manual is analogous to a replacement part triggering new period of
repose); Mason, 653 N.W.2d 552-53 (same).4

In sum, the available case law authority predominantly supports the district
court’s ruling that the revised overhaul manual relied on by Jewell Aircraft is not a
replacement part of the aircraft. We find this case law persuasive and therefore find no
error in the district court’s refusal to alter this ruling on reconsideration.

4
Moreover, a claim alleging that a manufacturer knowingly misrepresented required information
to the FAA, or concealed or withheld required information from the FAA, and knowingly published an
inaccurate or otherwise inadequate maintenance manual, which alteration or deletion causally contributed
to a subsequent accident) would be exempt from the GARA period of repose under § 2(b)(1).
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 13

Moreover, even accepting the possibility that overhaul manual revisions issued
during the eighteen years immediately prior to plaintiffs’ crash could be deemed
replacement parts of the aircraft, we find, as the district court concluded, that plaintiffs
have neither alleged nor substantiated the existence of any affirmative deletion from or
addition to the revised manual that causally contributed to the crash. Absent such a
causal nexus between the replaced part and the complained of injuries, § 2(a)(2) does not
operate to trigger a new period of repose.

As the court noted in Caldwell, 230 F.3d at 1158, “[a] revision to the manual
does not implicate GARA’s rolling provision, however, unless the revised part ‘is
alleged to have caused [the] death, injury, or damage.’” The language of § 2(a)(2) refers
to the specific “part which replaced another . . . part . . . and which is alleged to have
caused such death, injury, or damage.” Section 2(a)(2) cannot be reasonably construed
as meaning that the 18-year period of repose for the entire engine is reset every time a
single sub-part is replaced. Other courts have likewise held that neither a mere
modification (i.e., something short of replacement) of a part, nor a replacement of less
than the whole part or all components of a system will trigger a new period of repose
under GARA. See Inmon v. Air Tractor, Inc.,74 So.3d 534, 538 (Fla. App. 2011); Hiser
v. Bell Helicopter Textron Inc., 111 Cal. App. 4th 640, 650-51 (2003). In order to
trigger a new period of repose, the facts must show (1) that AVCO made a substantive
change in (i.e., alteration of or deletion from) the overhaul manual instructions relating
to parts and method for attaching the magneto to the engine, and (2) that the change was
the proximate cause of the crash. See Caldwell, 230 F.3d at 1158; Robinson v. Hartzell
Propeller Inc., 326 F. Supp. 2d 631, 661-62 (E.D. Pa. 2004).

The version of the overhaul manual in the record, current through 2007 revisions,
occupies some 174 pages. It is technical and detailed. Yet plaintiffs have not identified
any specific provision, to which language has been added or from which language has
been deleted in the eighteen years prior to 2006, relating to magneto installation
procedures, that caused the crash. Instead, plaintiffs argue that because part of the
manual was revised as recently before the crash as 2002; and Jewell Aircraft purportedly
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 14

followed the then current manual instructions when it installed the rebuilt magneto in
2005; and the installation proved to be somehow defective (in that the flange failed and
the magneto separated from the engine in flight); the manual must have lacked
sufficiently detailed instructions to ensure proper installation. In other words, plaintiffs
have not shown or even alleged that the revised manual contained a substantive
alteration—addition or deletion—that caused harm. Rather, their theory is that a needed
substantive alteration was not included. Plaintiffs find themselves in the awkward
position of arguing that an omission, something that does not exist, should be treated as
something that does exist and was added on as a replacement “part of the aircraft.”
Plaintiffs ask the court to treat something that was not added as though it were something
that was added and as though this fictional something caused the crash.

Section 2(a)(2) only operates to reset the period of repose if a manual revision
including substantively altered magneto installation instructions was a “replacement or
addition.” GARA § 2(a)(2). Plaintiffs have not made this case—either by allegation or
evidence. Accordingly, irrespective of whether a manual revision may properly be
considered part of the aircraft under GARA § 2(a)(2) in the abstract, we find no error in
the district court’s conclusion that plaintiffs have not made out a claim in avoidance of
the 18-year period of repose in this case.

E. Knowing Misrepresentation or Withholding

Finally, plaintiffs challenge the district court’s refusal to recognize their evidence
of AVCO’s knowing misrepresentation or withholding of required information from the
FAA as an exception to the time-bar under GARA § 2(b)(1). Under § 2(b)(1), the
period-of-repose limitation does not apply “if the claimant pleads with specificity the
facts necessary to prove . . . the manufacturer . . . misrepresented to the Federal Aviation
Administration, or concealed or withheld from the Federal Aviation Administration,
required information that is material and relevant to the performance or the maintenance
or operation of such aircraft.” 49 U.S.C. § 40101 Notes, § 2(b)(1).

In its first summary judgment ruling, the district court rejected plaintiffs’ attempt
to invoke this exception to the time-bar, summarily concluding that their complaint did
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 15

not contain sufficiently specific allegations of knowing misrepresentation, concealment
or withholding. Yet, the court reduced this conclusion to the status of dictum when it
went on to rule that GARA was not applicable because AVCO was not sued as a
manufacturer. It was only after the district court reversed itself, held GARA does apply,
and granted AVCO summary judgment, that the § 2(b)(1) exception became potentially
relevant again.

Plaintiffs then moved for reconsideration of the ruling on the § 2(b)(1) exception
based on their proposed amended complaint, which included more specific allegations
of AVCO’s knowledge and withholding of required information from the FAA. The
district court denied the motion, observing that a post-judgment motion for leave to
amend must meet a stringent standard. The court reasoned that the newly discovered
evidence plaintiffs relied on was not newly discovered and their failure to earlier seek
amendment was not excused by any “compelling explanation.”

Plaintiffs’ original complaint clearly failed to plead sufficiently specific facts to
invoke the § 2(b)(1) exception. Paragraph 25(c) alleges generally that AVCO “fail[ed]
to reasonably and adequately notify the regulatory authorities, including the Federal
Aviation Administration, of the defects in the engine, its components and accessories.”
R. 1 Complaint at 9, Page ID # 10. Nowhere in the complaint did plaintiffs plead
specific facts, as required by § 2(b)(1), to support a claim that AVCO was responsible
for knowing misrepresentation, concealment, or withholding of required information.
Hence, the viability of the § 2(b)(1) exception was contingent on plaintiffs’ obtaining
leave to amend the complaint. This was made clear in the district court’s initial
summary judgment ruling. Accordingly, the district court correctly determined that
plaintiffs’ later motion for reconsideration was “intertwined” with their motion for leave
to amend. Absent leave to amend, there would be no basis for concluding that plaintiffs
had pleaded sufficiently specific facts to satisfy § 2(b)(1).

The district court also correctly recognized that plaintiffs’ post-judgment motion
for leave to amend was governed by the same standard as a motion to alter or amend the
judgment under Fed. R. Civ. P. 59(e). Leisure Caviar, LLC v. U.S. Fish & Wildlife
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 16

Serv., 616 F.3d 612, 615-16 (6th Cir. 2010). The court was bound to “consider the
competing interest of protecting the finality of judgments and the expeditious
termination of litigation.” Id. “If a permissive amendment policy applied after adverse
judgments, plaintiffs could use the court as a sounding board to discover holes in their
arguments, then ‘reopen the case by amending their complaint to take account of the
court's decision.’” Id. at 616 (quoting James v. Watt, 716 F.2d 71, 78 (1st Cir.1983)).
The court correctly noted that relief could be warranted upon a showing of “(1) a clear
error of law; (2) newly discovered evidence; (3) an intervening change in controlling
law; or (4) a need to prevent manifest injustice.” R. 247, Memorandum Opinion at 3,
Page ID # 2546 (quoting Leisure Caviar, 616 F.3d at 615). Further, the court noted, “[a]
claimant who seeks to amend a complaint after losing the case must provide a
compelling explanation to the district court for granting the motion.” Id. at 4-5 (quoting
Leisure Caviar, 616 F.3d at 617).

Despite this procedural posture, plaintiffs have not directly challenged the denial
of leave to amend. If they had, review of the district court’s denial of the motion would
be reviewed for abuse of discretion, see Rose v. Hartford Underwriters Ins. Co., 203
F.3d 417, 420 (6th Cir. 2000), and reversal would be appropriate only if we were left
with the “definite and firm conviction that the district court committed a clear error of
judgment in its conclusion.” Lewis v. United Joint Venture, 691 F.3d 835, 839 (6th Cir.
2012) (quoting In re Scrap Metal Litig., 527 F.3d 517, 528 (6th Cir. 2008)). Realizing,
ostensibly, that they could hardly meet this standard, plaintiffs characterize their
challenge to the district court’s handling of the § 2(b)(1) exception as questioning
“whether the district court abused its discretion by failing to explain why certain critical
evidence did not trigger GARA’s 2(b)(1) exception.” Appellants’ Br. at 2. This
question conveniently avoids the rationale for the district court’s denial of leave to
amend. The court declined to reach the merits of the “critical evidence” because
plaintiffs failed to satisfy the threshold requirement of a compelling explanation for not
seeking leave to amend prior to entry of judgment. In doing so, the court gave
controlling weight to the “interest of protecting the finality of judgments and the
expeditious termination of litigation.” Leisure Caviar, 616 F.3d at 615-16.
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 17

This is an interest plaintiffs prefer to ignore. They do not contend that the denial
of leave to amend was based on a clear error of law. Nor do they contend that late leave
to amend was justified by an intervening change in controlling law. Nor do they contend
that reversal is necessary to prevent a manifest injustice. Plaintiffs do not even take
issue with the court’s findings that their evidence was not newly discovered and that they
had no compelling explanation for not trying to amend earlier. Instead, plaintiffs argue
that “for all practical purposes, plaintiffs pled the necessary allegations and evidence
sufficient to trigger GARA 2(b)(1) in a timely manner in their response in opposition to
summary judgment,” which was filed in March 2010, some eight months before the
court’s summary judgment ruling against them. Appellants’ Br. at 45.

Clearly, plaintiffs’ brief in opposition to summary judgment is not part of the
pleadings. And the fact that they were aware of and relied on their “newly discovered
evidence” as early as March 2010 without seeking leave to amend before November
2010 confirms that the evidence was hardly newly discovered when they finally moved
for leave to amend only after receiving the court’s adverse judgment. In short, plaintiffs
have fallen far short of establishing that the district court abused its discretion when it
denied them leave to amend. See Leisure Caviar, 616 F.3d at 616 (stating that a court
acts within its discretion when it denies a post-judgment motion to amend on account of
“undue delay,” including delay resulting from a failure to incorporate previously
available evidence). Without the benefit of the allegations included in the proposed first
amended complaint, plaintiffs lack grounds necessary to successfully challenge the
district court’s refusal to reconsider its rejection of the § 2(b)(1) exception to the time-
bar. We thus find no error in the court’s denial of plaintiffs’ motion for reconsideration
and no error in the court’s failure to explain its assessment of plaintiffs’ “critical
evidence.”5

5
Although the district court did not expressly assess the merits of this “critical evidence,” it did
consider the evidence, as well as additional supplemental evidence submitted by plaintiffs in March 2011.
R. 247 Memorandum Opinion at 3, 6-7 n.1, Page ID # 2546, 2549-50. (The supplemental evidence
consisted primarily of a new Lycoming Service Instruction, No. 1508C, issued on February 10, 2011,
expanding the warning concerning improper installation of magnetos to include all Lycoming engines.
R. 233-3, Page ID # 2502.) The court simply concluded that the additional evidence did not amount to a
“compelling explanation” for plaintiffs’ failure to seek amendment earlier in the game.
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 18

Moreover, the evidence is not as “critical” as plaintiffs would have us believe.
The evidence plaintiffs relied on in their opposition to AVCO’s motion for summary
judgment is a letter between a third party, Teledyne Continental Motors, Inc., and the
FAA, dated July 2, 2009. R.189-5, page ID # 1694. Teledyne is the manufacturer of the
rebuilt magneto that was installed in plaintiffs’ airplane engine by Jewell Aircraft.6 The
letter advises the FAA of findings made by Teledyne after investigating plaintiffs’ plane
crash, reflecting Teledyne’s impressions that the flange failure was due to stress
resultant from use of (1) a gasket different than the Lycoming (AVCO) specified gasket,
and (2) “older, superseded” hold down clamps. The letter further advises that “specified
components, when installed correctly, result in minimal assembly stresses.” Id. The
letter acknowledges that Lycoming (AVCO) had partially addressed this condition by
issuing Service Instructions in 2002, 2003 and 2007, emphasizing the importance of
following service specifications in attaching Teledyne magnetos to certain Lycoming
“300 series” engines installed in certain Mooney and Cessna Cardinal aircraft. Id. See
R. 228-3 thru 228-5, Service Instructions Nos. 1508, 1508A and 1508B, Page ID # 2461-
66. Plaintiffs’ Piper Lance II airplane was equipped with a Lycoming “500 series”
engine. Based on the results of its investigation, Teledyne recommended that
“Lycoming Service Instruction 1508B be upgraded to a Mandatory Service Bulletin and
be expanded to include all Lycoming Engines with TCM Dual magnetos installed.” R.
189-5, Page ID # 1695 (emphasis added).

Plaintiffs contend that Teledyne’s letter, viewed in conjunction with the
“incomplete” Service Instructions issued prior to the 2006 accident, represents evidence
from which the inference could plausibly be drawn that AVCO: (1) knew the risks
associated with improper installation of magnetos in 300 series engines were no less
present in 500 series engines; (2) negligently failed to issue required Service Instructions

6
Teledyne is not a disinterested third party. See note 2, supra.
No. 12-5775 Crouch, et al. v. Honeywell Int’l, Inc., et al. Page 19

for 500 series engines (like the one in plaintiffs’ Piper Lance II aircraft); and
(3) knowingly withheld this information from the FAA.7

The significance of the facts presented is equivocal at best. Ascribing to AVCO,
as of some time prior to 2006, knowledge of information communicated by Teledyne in
2009, is highly speculative. Moreover, plaintiffs’ response in opposition to AVCO’s
motion for summary judgment also includes copies of Special Airworthiness Information
Bulletins issued by the FAA in June and July 2008. R. 189-6, Page ID # 1698-1702.
The contents of these bulletins are consistent with the Service Instructions referred to
above. The Airworthiness Bulletins suggest that AVCO did not withhold relevant
information regarding problems with magneto installation that had been experienced
with some aircraft engines. The Airworthiness Bulletins also suggest reason to believe
the problems that had been experienced were limited to certain engine models and
certain situations. In other words, these exhibits, attached to plaintiffs’ own brief,
suggest that AVCO did not withhold required information, but reported it as it became
available.

In sum, the critical evidence is not so incriminating as to suggest the denial of
leave to amend and denial of reconsideration were an abuse of discretion or resulted in
manifest injustice.

III. CONCLUSION

Accordingly, we deny plaintiffs’ claims of error. The district court’s judgment
is AFFIRMED.

7
This information regarding the incompleteness of the prior Service Instructions is the “omission”
from the overhaul manual revisions that plaintiffs would have the court treat as an “alteration or deletion”
and therefore a “replacement part” for purposes of restarting the period of repose under GARA § 2(a)(2).
See supra, pp. 11-16. Such Service Instructions are incorporated by reference into, and deemed to be part
of, the overhaul manual. See R. 211-9 Overhaul Manual at p. i, Page ID # 1996. However, as indicated
above, an omission from the overhaul manual, or a failure to issue a Service Instruction, or an
incompleteness in a Service Instruction—i.e., something that does not exist—can hardly be deemed to be
a “replacement or addition” under § 2(a)(2). Nor does such an omission or incompleteness represent
particularly strong evidence that AVCO knowingly withheld required information for purposes of
§ 2(b)(1).