McLennan v. American Eurocopter Corp.

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-41036

PETER MCLENNAN,

Plaintiff - Appellee-Cross-Appellant,

VERSUS

AMERICAN EUROCOPTER CORPORATION, INC.,

Defendant - Appellant-Cross-Appellee.

Appeal from the United States District Court
for the Southern District of Texas
March 13, 2001
Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This personal injury case arises from an October 19, 1995,

helicopter crash near the Haig Glacier in Western Alberta, Canada.

Defendant American Eurocopter Corporation, Inc. (AEC) appeals the

district court's final judgment in favor of Peter McLennan

(McLennan), which was entered after a bench trial on the relevant

issues. McLennan cross-appeals the district court's reducing his

damages on the basis that he was 40 percent at fault for the

accident that led to his injuries. Concluding that McLennan's

proof at trial was plainly inadequate to establish one or more of

1
the essential elements of his substantive claims, we reverse and

render judgment in favor of defendant AEC.

FACTUAL BACKGROUND

I.

On the day of the crash, McLennan flew his AEC Model AS-350-B

helicopter for longer than the fuel loaded on board would allow,

eventually crashing into the side of an embankment not far from his

final destination. McLennan, a Canadian resident, suffered serious

injuries from the crash, which also destroyed the helicopter. In

this lawsuit, McLennan contends that AEC, the manufacturer of the

helicopter, is responsible for his injuries and resulting damages

under Texas law on theories of both strict products liability and

negligence. Both of McLennan's theories focus upon alleged

marketing defects in the helicopter. Specifically, McLennan claims

that AEC affirmatively marketed the helicopter as suitable for

McLennan's intended use, slinging operations,1 when in fact the

helicopter was unreasonably dangerous for that use. McLennan also

claims that AEC failed to warn or adequately warn intended users

that dirty or worn portions of the fuel measurement system might

1
Slinging involves the suspension of often heavy loads from
the helicopter using equipment attached to the helicopter for this
purpose. The helicopter then transports the load to a different
location. Slinging often involves flying at low altitude. Given
the limited weight carrying capacity of the helicopters used for
such operations, helicopter pilots slinging loads are often
required to fly with lower quantities of fuel than helicopters
engaged in other operations.

2
not accurately reflect the amount of usable fuel in the helicopter

when the helicopter is consistently flown at low fuel levels. AEC

responds that the helicopter was not unreasonably dangerous for its

intended use; that AEC owed no duty to warn users of any risk

arising under the circumstances of McLennan's flight; that,

assuming there was a duty owed, it was completely satisfied by the

issuance of service letters and bulletins before the crash

notifying consumers of the risk and recommending that the portion

of the fuel measurement system at issue here be replaced; that the

alleged marketing defects were neither the producing (strict

liability) nor proximate (negligence) cause of the crash; and

finally, that the crash was caused instead by improper maintenance

or pilot error or both. AEC also raises two alternative arguments

challenging the district court's pre-trial rulings denying AEC's

motion to dismiss for forum non conveniens and AEC's separate

motion seeking the application of Canadian, rather than Texas, law.

AEC seizes upon the fact that the district court adopted

plaintiff McLennan’s proposed findings of fact and conclusions of

law almost verbatim to argue that we must apply a less deferential

standard of review to the district court's findings of fact and

conclusions of law than would be the case if the district court's

order reflected an independent consideration of the relevant

issues, citing In re Luhr Brothers, 157 F.3d 333 (5 th Cir. 1998),

cert. denied, 119 S. Ct. 1357 (1999). We disagree. Luhr Bros.,

3
and Anderson v. City of Bessemer City, 105 S. Ct. 1504 (1985), from

which it is drawn, make clear that the district court's decision to

adopt one party's proposed findings and conclusions without change

may cause us to approach such findings with greater caution, and as

a consequence to apply the standard of review more rigorously. See

Anderson, 105 S. Ct. at 1511 (criticizing verbatim adoption of

proposed findings and noting the potential for “overreaching and

exaggeration” on the part of counsel for the prevailing party);

Luhr Bros., 157 F.3d at 338 (stating that “near-verbatim recitals

of the prevailing party's proposed findings and conclusions, with

minimal revision” should be approached with “caution” and that the

district court's “lack of personal attention to factual findings”

is a factor to be considered when applying the clearly erroneous

rule) (internal quotations omitted). But Luhr Bros. and Anderson

make equally clear that the basic clear error standard governing

our review is set by Federal Rule of Civil Procedure 52(a) and

remains constant. See Luhr Bros., 157 F.3d at 338 (citing

Anderson, 105 S. Ct. at 1510-11, for the proposition that “the

trial court's adoption of the prevailing parties' proposed

findings, however, does not alter the bedrock principle that the

findings may not be overturned on appeal absent clear error”).

While the clear error standard is purposefully deferential to the

district court, we are not required to rubber stamp the district

court's findings simply because they were entered. See Luhr Bros.,

4
157 F.3d at 338 n.14. This would be no review at all. “When, after

an examination of the entire evidence, we are left with the

definite and firm conviction that a mistake has been committed,

clear error exists and it is our duty as the reviewing court to

correct this mistake." Id. at 338-39 (internal quotations

omitted). The district court's legal conclusions, on the other

hand, are reviewed de novo. See Ivy v. Jones, 192 F.3d 514, 516

(5th Cir. 1999)

II.

On October 19, 1995, McLennan was employed as a commercial

helicopter pilot by Canadian Helicopters, Ltd. (CHL), one of the

largest commercial operators in the world.2 On that day, McLennan

was contracted to assist with the closing of an industrial base

camp near the Haig Glacier. McLennan began his day at CHL's

Canmore, Alberta hanger. When McLennan left Canmore hanger at 2:44

p.m., the helicopter's 530 liter fuel tank was 35 percent full.

The fuel tank installed on McLennan’s helicopter at the time of the

crash retained 11 liters of unusable fuel. Therefore, McLennan

began work with approximately 175 liters of usable fuel. Pursuant

to his training, McLennan verified the amount of fuel on board by

2
Canadian Helicopters also provides pilot training for its own
pilots, as well as such entities as the Canadian and United States
military.

5
visually checking the fuel gauge, the fuel tank level,3 and the

meter on the fuel pump dispensing the fuel.

Shortly after the accident, McLennan gave a recorded statement

to the Canadian Transportation Safety Board (CTSB). McLennan told

the CTSB that CHL pilots use a fuel burn rate of 173 liters per

hour for planning such flights, but that the actual burn rate “was

quite a bit less than that, probably around 150 liters per hour.”4

CHL pilot Paul Kendall likewise testified that CHL pilots use a

burn rate of about 170 liters per hour for slinging operations, and

that he personally trained McLennan to follow that rule when flying

the AS-350-B. The CTSB used a mid-range estimate of 160 liters per

hour in its report on the accident. Using CHL's planning rate of

173 liters per hour, McLennan left Canmore hanger with about 61

minutes flying time before complete fuel exhaustion. Using

McLennan's more optimistic estimate of only 150 liters per hour,

McLennan left Canmore hanger with about 70 minutes flying time

before complete fuel exhaustion would cause the helicopter to fall

from the air.

Canadian Air Regulation 544(b) requires helicopter pilots to

3
The fuel tank is marked with gradations and can be visually
checked from outside the helicopter by way of a cutaway in the
luggage department.
4
When asked what fuel burn rate he used to plan his flight on
the day of the accident, McLennan testified that he did not recall
using any particular fuel burn rate. McLennan did not, however,
deny his earlier statements to the CTSB concerning the fuel burn
rate used for planning or his estimation of the actual fuel burn
rate on the high altitude glacier.

6
plan their flights such that they can land at their destination

with a 20 minute reserve fuel supply.5 There is a similar

regulatory requirement for pilots operating in the United States.

CHL likewise had written policies requiring that company pilots

comply with the Canadian Air regulation requiring a 20 minute

reserve. McLennan was aware of this rule and his obligation to

comply with it. Considering the requirement that flight planning

allow for a 20 minute reserve upon landing at destination, McLennan

actually left Canmore hanger, using the least conservative fuel

calculations, with no more than 50 minutes of safe and lawful

flying time.

McLennan first flew from Canmore hanger to the Haig Glacier

base camp. McLennan was not slinging any external load during this

flight. McLennan arrived at 2:59 p.m. This one-way flight should

have reduced the least conservative estimate of 70 minutes flight

time by 15 minutes, leaving approximately 55 minutes flight time

before fuel exhaustion and 35 minutes safe flying time, which

equates to slightly more than 28 percent fuel.

McLennan testified at trial that he actually arrived at the

Haig Glacier base camp with about 30 percent fuel, which would have

5
CAR 544(b) provides, in relevant part, that the “amount of
fuel and oil carried on board any aircraft . . . at the
commencement of any VFR [visual flight rules] flight shall be
deemed sufficient, taking into account anticipated wind and other
weather conditions, to fly to the place of intended landing and
thereafter in the case of a helicopter for 20 minutes at normal
cruising speed.”

7
afforded him slightly more than 59 minutes total flight time to

exhaustion, about four minutes longer that predicted by his fuel

level at Canmore hanger. Adhering to our duty to construe the

facts in McLennan's favor, we accept McLennan's testimony that he

still had 30 percent fuel when he arrived at the Haig Glacier base

camp, as well as his estimate of 150 liters per hour fuel burn

rate, which would have left him with just over 59 minutes flight

time to total exhaustion.6

III.

At the Haig Glacier base camp, McLennan shut down, removed and

stowed the helicopter doors, tested the slinging equipment, and

prepared for slinging operations. According to Michael Just, who

helped McLennan secure loads at the Haig Glacier base camp, this

shut down lasted from McLennan's 3:00 p.m. arrival time until 3:35

or 3:40 p.m., when McLennan began slinging operations. CHL's

Canmore hanger radio log consistently reflects that McLennan began

slinging operations at 3:40 p.m. and that McLennan was then in the

air continuously until the accident occurred at approximately 5:00

p.m. The CTSB's Aviation Occurrence Report, without referring to

any source, states that McLennan did not begin slinging until 4:00

6
We note, however, that CHL pilot Paul Kendall, who trained
McLennan, and Don Oksa, another experienced sling pilot, testified
that commercial pilots engaged in slinging operations generally
followed the rule that 30 percent fuel in this helicopter would
actually permit only 30 minutes of safe flying time, with a 20
minute reserve. Kendall further testified that he had personally
instructed McLennan that 30 percent fuel would permit only 30
minutes of safe flying the year before the accident.

8
p.m. and that the crash occurred 60 minutes later, at 5:00 p.m.

Thus, the evidence demonstrates that McLennan was continuously

engaged in slinging operations for somewhere between 60 and 80

minutes before the crash. For purposes of this review, we accept

the CTSB's unsubstantiated estimate that McLennan was in the air

for only 60 minutes before crashing (the estimate most favorable to

McLennan) as fact. Tying this together with the 150 liter per hour

fuel burn rate, which would have permitted only slightly more than

59 minutes total flight time, reveals that McLennan ran out of fuel

almost exactly when he should have.

During the 60 minutes that McLennan was in the air, he moved

a number of loads. McLennan first moved supplies from one location

to another at the base camp. McLennan recalled two such movements,

although another witness recalled only one. Just, who was working

on the ground, then hooked up a platform to the long line used for

slinging and McLennan flew to a location on the glacier about 1.5

kilometers from the base camp. On the glacier, McLennan picked up

a load and then delivered it to the Ranger Creek staging area.7

McLennan then returned to the glacier and picked up a second load

to be transported to Ranger Creek. There is no dispute about the

fact that there was fuel available at Ranger Creek. McLennan did

7
McLennan told CTSB investigators that Ranger Creek was 7
flight minutes away (one-way) from the base camp for a helicopter
slinging a load. The glacier pick up site, where McLennan was
picking up these loads, was further from Ranger Creek than the base
camp. There is no time estimate in the record for the further
distance from the glacier to Ranger Creek.

9
not pick up fuel on either trip to Ranger Creek. McLennan flew to

the glacier a third time, this time picking up a load for delivery

to the base camp helipad. McLennan then flew back to the glacier

a fourth time, picking up a second load for the base camp helipad.

Thereafter, McLennan was asked to move a load from a location at

the base camp to another location some distance away. Each of

these loads would have required air time to safely attach and

detach the loads, in addition to the time required for the actual

movement of the supplies. McLennan told investigators that he had

a “gut feeling” that he should proceed immediately to Ranger Creek

for fuel before repositioning the load at the base camp, but he

felt under pressure from ground crew personnel to reposition the

base camp load first. McLennan later regretted not following his

gut instinct. As he told the CTSB investigator “[y]ou should never

try to be a nice guy when flying.”

IV.

Some time before McLennan repositioned the load he should have

deferred, the low fuel warning light on the dash of the helicopter

illuminated. The AEC flight manual classifies the illumination of

the low fuel warning light as an emergency. Other witnesses

testified consistently that illumination of the low fuel warning

light is considered an emergency flight situation. The AEC flight

manual, which McLennan had in his briefcase on the helicopter when

he crashed, states that the light is designed to come on when there

10
are at least 60 liters (49 usable liters) or about 12 percent fuel

remaining in the tank. At that point, AEC states in the flight

manual, the pilot should avoid large altitude changes.8 The manual

further states that under those conditions, the remaining fuel

should be sufficient for only 25 additional minutes of flight

before complete exhaustion. The CTSB Aviation Occurrence Report

states that most pilots adhered to the rule that there were no more

than 20 additional minutes of flight to exhaustion when the low

fuel warning light on this model was illuminated, and that

customary procedure was to land immediately when the light began

flickering. Other pilots testified consistently that customary

procedure was to land immediately when the low fuel warning light

illuminated. CHL pilot Paul Kendall testified that he personally

trained McLennan to land immediately when the light was solidly

illuminated.9 McLennan acknowledged that he generally followed the

more conservative 20 minute rule in his post-accident statement to

the CTSB. Notwithstanding these circumstances, McLennan ignored

the low fuel warning light and continued to fly for a considerable

period of time with the light illuminated.

At trial, McLennan testified that he noticed the low fuel

warning light, but that he had “no idea” how long he flew with the

8
The record reflects that the difference in elevation between
the Haig Glacier base camp and the Ranger Creek staging area was
between two and three thousand feet.
9
McLennan could not specifically recall this training at
trial, but he did not deny that the instructions had been given.

11
light illuminated. Prior to trial, McLennan told CHL's Chief Pilot

Mark Olson that he thought the warning light might have been on for

10 or 15 minutes before he repositioned the load at the base camp,

and before he had hooked up to the final load for transport to

Ranger Creek. McLennan's expert calculated that, including loading

and unloading time, and including the final incomplete journey to

Ranger Creek, McLennan flew for almost 33 minutes after the low

fuel warning light came on before crashing. Thus, McLennan flew

for far longer than permitted by AEC's estimate of 25 minutes to

fuel exhaustion, and far longer than permitted by the more

conservative 20-minute rule generally employed by McLennan and most

pilots. In fact, McLennan continued flying with the light on until

he crashed.

McLennan first told CTSB investigators that he “just lost

track of how much time” he had “been flying with the [warning]

light on." McLennan later testified that he felt safe continuing

to fly with the light on because the warning light in this

helicopter historically illuminated when the fuel gauge read 18

percent fuel, rather than nearer the 12 percent level as

anticipated by the flight manual. McLennan had previously

discussed the operation of the warning light on this helicopter

with CHL engineering staff, which prompted CHL to test the fuel

system in June 1995. The tests established that the fuel gauge was

accurately reading 18 percent when the low fuel warning light

12
illuminated. McLennan testified that he had confidence in both the

CHL staff member who performed the tests and the test results.

McLennan also testified that he had no indications that the fuel

gauge on the helicopter had been sticking at any time prior to the

day of the accident.10

Using the 150 liter per hour burn rate, 18 percent fuel would

have allowed slightly less than 34 minutes flight time to complete

exhaustion, and slightly less than 14 minutes of safe flight.

McLennan testified that he made a decision to continue flying until

the gauge read about 11 percent. McLennan noted that the gauge

read 11 percent, which would have provided about 19 minutes of

additional flight, before he began setting up to reposition the

extra load at the base camp, and before he began attaching a final

load for transport to the Ranger Creek staging area. McLennan

continued flying, repositioning the load at base camp and attaching

his final load for Ranger Creek. Shortly after McLennan left the

base camp for Ranger Creek, he called in to say that he would be

shutting down at Ranger Creek to refuel. McLennan flew most of the

10
Shortly after the accident, McLennan gave an inconsistent
statement to CHL Chief Pilot Olson. McLennan claimed that he had
been flying with an 18 percent fuel indication in this helicopter
on a previous flight, and that when he landed two minutes later,
the fuel gauge reading had dropped to 5 percent. CHL's engineering
department did not recall and did not have any records that
McLennan had reported any such dramatic failure in the fuel
measurement system of this helicopter. We note that this incident
would certainly have been sufficient to place McLennan on notice
that there were major problems with the accuracy of the fuel
measurement system in this helicopter.

13
way to the Ranger Creek staging area, and was descending into the

landing area when he noticed the fuel pressure dropping. McLennan

testified that he also observed the fuel gauge dropping rapidly,

from 11 to 3 or 4 percent. McLennan jettisoned the load, decided

upon a landing target, and then attempted an auto-rotational

landing. McLennan was unable to successfully navigate the auto-

rotational landing and, within seconds of the time that he had

noticed the fuel gauge dropping, the helicopter fell the last 30 or

40 feet and crashed into a creek embankment. McLennan suffered

severe injuries and the helicopter was destroyed. Post-accident

investigation revealed that there were only 11 liters of fuel, all

of which was by design unusable, in the fuel tank upon impact.11

Thus, there is no question about the fact that the helicopter

crashed because it ran out of fuel.

McLennan's theory is that the fuel gauge was stuck at some

point (either around the 18 percent level, when the low fuel

warning light came on, or at the 11 percent level, where the

indicator remained while McLennan repositioned the load at base

camp, attached the load for Ranger Creek, and flew almost all the

way there),12 and then became dislodged by turbulence.

11
Helicopter fuel tanks are designed with a sump in the bottom,
which holds a varying amount of unusable fuel in the bottom. This
particular tank was designed such that 11 liters of unusable fuel
would remain in the tank at all times.
12
McLennan does not explain why he thought it reasonable for
the fuel gauge to continue to read 11 percent notwithstanding the
fact that he was approaching the conclusion of the flight to Ranger

14
 McLennan's assertion that the fuel gauge was sticking brings

us to the heart of McLennan's marketing defect theories. McLennan

claims that the resistor-type fuel measurement system on the AEC

AS-350-B had a tendency to wear when consistently flown in the low

fuel states required for slinging, which led to inaccurate fuel

gauge readings. McLennan claims that any helicopter equipped with

a resistor-type fuel measurement system is unreasonably dangerous

and should not be used for slinging operations. McLennan further

claims that AEC negligently failed to warn or inadequately warned

intended users of the helicopter that a worn or dirty fuel

measurement system might generate an inaccurate fuel gauge reading.

We begin with an analysis of the fuel measurement system installed

on the helicopter when marketed and when crashed.

V.

The helicopter flown by McLennan was manufactured by AEC's

predecessor in interest in 1979.13 Parts of the airframe were

manufactured in France and then shipped to Grand Prairie, Texas,

where the helicopter was assembled and completed using parts from

both inside and outside the United States.14 The helicopter was

Creek.
13
Future references to AEC or its predecessor will made simply
to AEC.
14
The parties litigated whether AEC should be considered the
manufacturer of the helicopter at issue and where the helicopter
was manufactured, in the district court. After considering
arguments from both sides, the district court held that the Texas-
based AEC manufactured the helicopter.

15
sold to Placer Development, a Canadian company, in 1980. There is

no dispute about the fact that AEC never regained control of the

helicopter after that point in time.

Significantly, the helicopter sold to Placer Development was

designated a model AS-350-D. Seven years later, in 1987, the

helicopter was converted from a model AS-350-D to a model AS-350-B.

AEC was not notified of the model change and claims that, up until

this lawsuit, it had no notice that the conversion had taken place.

Uncontested record evidence establishes that there are material

differences between the two models. The most significant

differences for the purpose of this lawsuit center upon the fuel

measurement system. The model sold to Placer Development, AEC

model AS-350-D, was equipped with a 540 liter tank with only 1.25

liters of unusable fuel. The model which crashed fifteen years

later, AEC model AS-350-B, was equipped with a 530 liter fuel tank,

with 11 liters of unusable fuel. The conversion also required that

the “power quadrant for the fuel float control level” be modified.15

In addition, the converted model AS-350-B required different flight

documentation and manuals than the AS-350-D sold to Placer

Development. Although CHL obtained a model AS-350-B flight manual

15
There were other differences as well. For example, model AS-
350-D was sold with a LTS 101600 Lycoming engine, while model AS-
350-B was equipped with a “turbomecca aerial” engine. These
engines were placed differently in the helicopter and required a
different tailoring of the drive shaft and different
instrumentation to account for differing horsepower and performance
standards.

16
from somewhere, because it was with McLennan on the day of the

crash, AEC has no records that it ever provided CHL with a flight

manual for the converted aircraft.

The fuel gauge and the low fuel warning light in the AS-350-B

helicopter were triggered by the Jaeger fuel transmitter installed

on the aircraft when it crashed. AEC did not furnish the

transmitter. AEC concedes, however, that it furnished a similar

transmitter when it sold the helicopter in 1980.16 The transmitter

is a mechanical device that operates by means of a float mechanism

in the fuel tank. The float mechanism slides up and down in a tube

with the help of an attached guide pin that rides in a slot on the

mechanism. This type of transmitter is referred to in the record

as a resistor-type system. The record establishes that resistor-

type fuel transmitters may wear in a fashion that causes there to

be friction in the slot, which in turn can cause some inaccuracy in

the quantity of fuel indicated by the low fuel warning light and

the fuel gauge. The problem typically occurs when the aircraft is

routinely flown at either very high or very low fuel levels. As

mentioned above, slinging operations require that pilots fly at

very low fuel levels, so as to keep the weight of the helicopter,

pilot, fuel, and load below the maximum weight limits imposed by

16
The record reflects that the fuel transmitter was replaced
at least twice. CHL replaced the transmitter for the last time in
December 1992, almost three years before the accident, when it
purchased a used and reconditioned part from a third-party supplier
that, although certified by the FAA to provide the parts, was not
an authorized AEC service facility.

17
the helicopter's design.

VI.

As of 1995, when McLennan crashed, the potential for

inaccurate fuel gauge readings when worn resistor-type fuel

transmitters were used for slinging operations was well known. The

CTSB Aviation Occurrence Report concluded, on a matter within its

realm of expertise, that it is “common knowledge among flight crews

that resistor-type quantity indicator systems cannot be relied upon

to indicate the exact amount of fuel in the tank when flying

extensively in a low-fuel flying application.” AEC was aware of

this fact. In the late 1980s and early 1990s, the company issued

several documents warning that certain reliability problems might

develop when worn fuel transmitters were used in slinging

operations. In March 1988, seven years before McLennan's crash,

AEC issued Service Letter 867-28-88 relating to the resistor-type

fuel gauge.17 The service letter reads, in relevant part:

The “ECUREUIL” helicopters are equipped in their basic
version with a JAEGER or KUBLER resistive type fuel
gauge.

This system provides the pilots with an accurate reading
of fuel remaining in the fuel tank. However, in spite of
its good reliability it is not a defect free measurement
system.

The reason for this Service Letter is to stress the fact
that the pilot remains the only person accountable for

17
Service letters are considered informational, and may be
issued by the manufacturer under the controlling air regulations
without the necessity of any airworthiness directive from a
regulating authority.

18
 its good operation and that he, in accordance with flying
rules, must keep an eye on fuel indication to make sure
[the] reading is consistent and to detect any possible
failure.

Concerning flights with low fuel level and in critical
zones, Height/Velocities (Sling configuration for
example) checking the fuel gauge is a primary condition
to flight safety.

The district court read this letter, and then adopted McLennan's

reading of the same, finding that the service letter misled pilots

by informing them that the fuel gauge was accurate, and suggesting

that the letter actually increased the risk to pilots by

encouraging them “to rely on the fuel gauge as a 'primary condition

to flight safety.'”

With all due deference to the district court's fact finding,

we conclude that McLennan's construction of this letter, which

appears in the district court's order, is clearly erroneous. While

the service letter opens with the premise that the fuel gauge is

generally reliable, the letter goes on to state that the system is

not defect free. The letter then states that the purpose of the

communication is to inform pilots that they must, in accordance

with good airmanship rules, keep a watch on the fuel gauge to be

sure that the reading is consistent with the pilot's own estimation

of available fuel. The letter concludes by warning that “checking”

the fuel gauge in this manner is of critical importance, and “a

primary condition to flight safety” for those pilots engaged in

slinging operations. When taken in context, the admonition to

19
“check” the fuel gauge clearly refers to a pilot's duty to verify

its accuracy, rather than any invitation to “rely” upon the fuel

gauge as found by the district court.

In May 1992, AEC issued Service Bulletin 28-12. This service

bulletin announced that an electronic or capacitor-type fuel

measurement system would be installed on future models of the AS-

350 helicopter and suggested that the capacitor-type be used to

replace the resistor-type on helicopters consistently flown in a

low fuel state. The service bulletin further provided the part

numbers and procedures for implementing such a replacement.

In December 1992, several months after Service Bulletin 28-12

was issued, and with notice that AEC was offering a capacitor-type

system for increased reliability, CHL purchased another resistor-

type fuel gauge for installation in the helicopter McLennan was

piloting on the day of the accident.

In December 1993, AEC issued Service Letter 1190-28-93

relating to the “fuel gauge transmitters.” That service letter

reads, in relevant part:

We have received a number of reports from operators of
incorrect operation of the fuel gauging system. We feel,
therefore, that [it] is advisable to remind flight crews
that they must comply with the aircraft handling rules
which cover fuel management.

The piloting rules should lead the pilot to check the
remaining flight time himself, taking into account
factors such as the weight of fuel loaded and the
duration of the current flight.

If there is a doubt, the pilot's analysis takes

20
 precedence over the indications read on the instruments.

(emphasis in original). The district court, once again adopting

McLennan's proposed findings verbatim, concluded that this letter

constituted an independent marketing defect because it failed to

provide pilots with any other means of gauging the amount of fuel

on board.

This finding is also clearly erroneous. The December 1993

service letter quite clearly directs the pilot to determine

remaining flight time by keeping track of the amount of fuel loaded

and the duration of the flight. This is no novel or unduly

burdensome expectation to place on pilots. Virtually ever pilot

that testified, including McLennan’s own expert, stated that it is

patently unreasonable to run a helicopter out of fuel. Similarly,

the evidence conclusively establishes that basic airmanship rules

require that a pilot have some estimate of remaining flight time

based upon the quantity of fuel loaded and the duration of the

current flight. See In re Air Crash at Dallas/Fort Worth Airport,

919 F.2d 1079, 1084 (5th Cir. 1991) (explaining that the "the pilot

in command of an aircraft is directly responsible for, and is the

final authority as to, the operation of the aircraft"). McLennan's

own statement to the CTSB acknowledges that he was trained to

utilize this method, which is commonly referred to as “flying by

the watch.” The only evidence that even potentially excused

McLennan from his duty to monitor his fuel on that day came from

21
McLennan's expert pilot Gardiner. Gardiner testified that flying

by the watch is more difficult with slinging because of the

variable burn rate for those operations. Gardiner further stated

that relying on an accurate fuel gauge is the only certain way to

determine fuel quantity while in the air. Gardiner did not,

however, contradict the testimony of the pilot witnesses that the

pilot should always have an independent working estimate of

remaining flight time based upon the amount of fuel loaded and the

duration of the flight.18 While McLennan tried to mimic Gardiner’s

testimony at trial, his earlier statements about the accident,

together with the balance of the record, make abundantly clear that

McLennan was well aware of his independent duty to keep track of

his fuel. As the CTSB found, McLennan could have made "an in-

flight check of fuel gauge indications against fuel consumption and

flight time,” which “may have alerted" McLennan to the fuel gauge

discrepancy. We conclude that AEC's October 1993 service letter

did set forth an alternative and effective procedure for monitoring

the fuel on board. That method, flying by the watch, is a well-

recognized rule of basic airmanship, and the district court's

determination that the letter was inadequate for failure to set

forth an alternative and adequate procedure for checking the fuel

18
We emphasize that there is no dispute concerning the amount
of fuel loaded on board when McLennan left Canmore hanger that day.
McLennan verified the quantity by checking the 35 percent fuel
gauge reading against the visual level of fuel in the fuel tank and
the amount of fuel dispensed by the fuel pump (referred to as the
bowser).

22
is clearly erroneous.

Similarly, the district court's finding that “[t]here is no

practical way to determine the amount of fuel being burned during

slinging operations other than relying on the fuel gauge” is

implausible in light of this record. This premise finds its

genesis in McLennan's trial argument that the only way to know for

sure how much fuel is on board the aircraft is to either drain the

tank completely and then add a measured amount, or to fill the tank

completely and then drain off a measured amount. Given that

performing such a procedure at every refueling is impractical,

McLennan argues, it follows that a pilot has no way to keep track

of how much fuel remains on board, aside from trusting absolutely

in the accuracy of the fuel gauge. Given that the fuel gauge is so

critical in slinging operations, McLennan argues, AEC should have

required that the fuel measurement system be more frequently

inspected.

This position has no merit. As an initial matter, the fuel

gauge does not provide the only means of determining the amount of

fuel on board, or more importantly, the remaining flight time. The

quantity of fuel on board can be visually checked on the fuel tank

itself. McLennan himself employed this procedure before leaving

Canmore hanger. Moreover, without regard to how low the fuel tank

level is when refueling begins, the pilot is able to measure,

within fairly close limits, the amount of fuel added to the tank

when refueling. By then applying the principles involved in flying

23
by the watch, the pilot can easily make a conservative estimate of

the remaining flying time.

McLennan's argument that AEC negligently failed to require

more frequent inspections is likewise without merit. The record

conclusively establishes that industry-wide standards consistently

classify helicopter fuel gauges as “on condition” items. This

means that they are replaced as needed rather than on a regular

schedule. On condition items are generally not considered critical

to flight safety. In the case of the fuel gauge, this is because

of the pilot's overriding duty to monitor his or her own fuel,

which is considered sufficient to prevent an absolute failure of

the aircraft. McLennan himself provides the best statement of the

commonly understood rule that the pilot's own calculations, rather

than the fuel gauge, provide the most accurate measurement of

available fuel. As McLennan told the CTSB:

I remember my instructor pointing to the fuel gauge and
saying "What does that tell you?" And I said, well it
tells me how much fuel is in the tank, and he said "No it
doesn’t, that tells you whether or not there is a fuel
gauge installed on the aircraft. If you want to know how
much fuel you got you get up on the racks and you open
the lid and you look inside."

For the foregoing reasons, we conclude that the district court's

finding that slinging pilots must rely solely upon the fuel gauge

for an accurate indication of available fuel is clearly erroneous.

In May 1994, AEC reissued Service Bulletin 28-12, formally

classifying it as a “Recommended Service Bulletin.” AEC had

previously clarified to users that the regulations governing the

24
production of the aircraft precluded the issuance of a “Mandatory

Service Bulletin” requiring replacement of a component or other

action unless the action required in the Service Bulletin was the

subject of a formal airworthiness directive from the regulating

authorities. “Recommended Service Bulletins,” on the other hand,

could be issued by the manufacturer. Notwithstanding the rather

permissive tone of the phrase “Recommended Service Bulletin,” AEC

clarified that such bulletins would address those issues that,

although they were not the subject of a formal airworthiness

directive, were considered “indispensable to prevent failures of

all types with unacceptable consequences.” AEC further stressed

the seriousness of such bulletins, stating that “[s]hould operators

not take into account the directives contained in Recommended

Service Bulletins they must accept full responsibility for the

consequences of their decision.”

The May 1994 version of Service Bulletin 28-12 specifies that

the resistor-type fuel measurement system should be replaced with

the capacitor-type in order to “increase [the] reliability of FUEL

QUANTITY measurement and to render the LOW LEVEL warning

independent of this measurement.” The Service Bulletin noted that

the modification was of particular importance to “all operators

required to work with low fuel levels (sling operators for

example).”

With regard to the May 1992 Service Bulletin and the May 1994

25
Service Bulletin, the district court noted that AEC had offered a

capacitor-type fuel transmitter "as an option" in the mid 1990s.

While the district court did not address CHL’s decision to ignore

the May 1992 Service Bulletin by installing a used resistor-type

fuel transmitter into the helicopter in December 1992., the

district court did find that use of the capacitor-type fuel

transmitter recommended by AEC would have "prevented or

significantly reduced" McLennan’s injuries.

In July 1994, AEC issued Service Letter 1215-28-94. This

service letter reminded pilots of the “fuel gauging system

functional checking procedures given in the Flight Manual” and

stated that “these directives must be followed each time the

aircraft is refueled.” The procedure described in the letter

essentially requires that the pilot check the function and accuracy

of the fuel gauge by: (1) determining whether the amount of visible

fuel in the fuel tank corresponds to the reading on the fuel gauge;

(2) ascertaining the amount of fuel delivered by referring to the

bowser, the fuel pump used to dispense the fuel; and (3) ensuring

that the amount of fuel added, as measured by the bowser, is

correctly reflected on the fuel gauge. The district court read

this service letter and concluded that the procedure outlined,

checking to be sure that the fuel gauge accurately registered the

fuel added when refueling, was inadequate standing alone to prevent

or diagnose sticky fuel transmitter operation at low fuel states.

The district court's observation in this regard is certainly true.

26
Simply being aware of the available fuel would not prevent an

excessively worn fuel transmitter from registering an inaccuracy at

low fuel levels. But the observation does not tend to advance

McLennan's case in any significant way. First of all, the

refueling procedure described in the July 1994 service letter does

not, as the district court suggested, stand alone. Rather that

procedure is merely a summary of procedures laid out in the flight

documentation. Moreover, the refueling procedure must be

understood in light of a pilot's duty to keep track of the fuel

loaded on board and flight duration. When viewed in the

appropriate context, the July 1994 service letter is neither

misleading nor inadequate with respect to the subject addressed, an

alternative pre-flight method for checking the accuracy of the fuel

gauge.

VII.

CHL and McLennan were also well aware of the potential that a

worn or dirty resistor-type fuel transmitter might cause

fluctuation or sticking in the fuel gauge measurement as well as

the fact that even minimal fluctuations would create an environment

of heightened risk for a pilot engaged in slinging operations.

More specifically, both CHL and McLennan were aware that the

particular helicopter flown by McLennan on the day of the crash had

recently demonstrated anomalous fuel indications. Notwithstanding

this knowledge and the suggested need for repairs to the fuel

27
measurement system, CHL made no repairs and McLennan took no

precautions to ensure that he had an independent knowledge of the

available fuel on that day.

There is no doubt about the fact that CHL received and

understood the substance of AEC's various service letters and

bulletins explaining the risk and setting forth alternative methods

for ensuring sufficient fuel in slinging applications. Likewise,

there is no doubt that CHL passed that information on to McLennan.

In the AS-350-B training manual provided to McLennan, which was

with McLennan in the helicopter on the day he crashed, the fuel

system, components, and function of the fuel measurement system is

illustrated and described in detail. Typed in a distinctive text

in the upper left hand corner of the page illustrating the system

is the following warning instruction:

Quantity and low fuel indications in the AStar are
accomplished by a float type sensor. However, the pilot
must watch his fuel very closely and get in the habit of
checking his watch to monitor fuel because the float can
(and has) stick in the tank. If this happens a false
full indication will result and there will be no low fuel
light.

CHL pilot Kendall testified that he specifically instructed

McLennan on the potential that a worn fuel transmitter might stick

and give an inaccurate gauge reading on the AS-350-B helicopter

when routinely flown at low fuel states. This training occurred

only one year before McLennan crashed. McLennan signed training

documentation acknowledging training in these areas. At trial,

McLennan testified that he did not specifically recall Kendall's

28
instructions, but he deferred to the training records and did not

deny that they were given.

McLennan proposed and the district court adopted a finding

that “pilots generally do not know that fuel gauges are not

accurate or unreliable.” In addition to the evidence already

described, the record reflects that McLennan discussed

discrepancies in the operation of the fuel gauge and low fuel

warning light in this helicopter with CHL's engineering department

as recently as a few months before crash. McLennan informed the

engineering department that the low fuel warning light was

illuminating when the gauge read 18 percent fuel, rather than

closer to 12 percent fuel as contemplated by the flight manual.

McLennan was included in discussions in which CHL considered

replacing the fuel transmitter. McLennan stated that CHL decided

not to order a replacement transmitter because CHL's experience

with the supplier they used for the part had been bad, with a very

large percentage of the transmitters provided giving false fuel

indications when attached to calibration instruments before

installation in an aircraft. In June 1995, four months before the

October 1995 crash, CHL performed tests checking the accuracy of

the fuel gauge. At that time, CHL determined that the 18 percent

fuel reading on the fuel gauge was an accurate measure of the

available fuel when the low fuel warning light illuminated. Thus,

although the warning light was coming on sooner than expected, the

gauge was giving an accurate reading of available fuel, and CHL

29
decided not to replace an accurate gauge. McLennan personally

checked the testing logs and testified that he had confidence in

the conclusion that the fuel gauge was accurate at that time.

Finally, we note that the CTSB Aviation Occurrence Report expressly

provides that “it is common knowledge among flight crews that

resistor-type fuel quantity indicating systems cannot be relied

upon to indicate the exact amount of fuel in the tank, especially

at low fuel levels.” In contrast, there is no record evidence that

would support the district court's fact finding that pilots are

without technical knowledge concerning the potential for inaccuracy

in the fuel measurement system or that they necessarily rely

exclusively upon the presumed accuracy of the fuel gauge, and we

reject that finding as clearly erroneous. Both CHL and McLennan

were actually aware, both of the technical function of the fuel

measurement system, and of the potential for inaccurate fuel

indications when a worn resistor-type fuel transmitter is routinely

flown at low fuel levels.

Having established that McLennan knew that resistor-type fuel

transmitters, and the transmitter installed on this helicopter in

particular, might require the pilot to keep a closer tab on fuel

consumption, we return to an evaluation of McLennan's causation

argument that the gauge was sticking and an evaluation of the fuel

gauge operation on the day of the accident.

VIII.

30
 McLennan's expert estimated that McLennan may have flown as

long as 33 minutes after the warning light came on. Consequently,

when McLennan ran out of fuel he was within seconds of the slightly

less than 34 minute flight time to exhaustion predicted by the 150

liter per hour fuel burn rate. Similarly, McLennan would have had

slightly less than 19 minutes flight time to fuel exhaustion when

he first noticed that the gauge read 11 percent, which was before

he repositioned the load at base camp and before he attached the

final load for Ranger Creek.19 McLennan would have spent several

minutes attaching, moving, and detaching the final load to be

repositioned at base camp. McLennan testified that this load

required flying close to the buildings, and thus, additional flight

time. It would then have taken several minutes to attach the final

load for transport to Ranger Creek, and about 6 or 7 minutes flight

time to reach the point where McLennan began setting up for a

landing at Ranger Creek and crashed. By McLennan's own estimates,

he would have used almost all of the available flight time, even if

the gauge accurately measured 11 percent.

There is no need, however, to focus in this case upon what

might have happened at 18 or 11 percent fuel. There is no dispute

about the fact that McLennan left Canmore hanger with 35 percent

19
McLennan proceeded with these two additional loads and the
flight to Ranger Creek, notwithstanding the fact that he was
already in violation of Canadian air regulations and company policy
requiring that flights be planned to ensure sufficient fuel to land
with a 20 minute reserve. The district court made no findings with
regard McLennan's patent violation of the 20 minute reserve rules.

31
fuel. Using McLennan’s estimated fuel burn rate of 150 liters per

hour, which is more conservative than the burn rate CHL teaches its

pilots to use, and more conservative than the burn rate that the

CTSB used to assess the accident, McLennan should have been able to

fly about 70 minutes on that fuel. There is no dispute about the

fact that McLennan flew for about 75 minutes (from the time he left

Canmore hanger with 35 percent fuel) before running completely out

of fuel. Similarly, there is no dispute about the fact that

McLennan began slinging from the Haig Glacier base camp with 30

percent fuel. Using the 150 liter per hour fuel burn rate,

McLennan should have been able to fly just slightly more than 59

minutes on that fuel. There is no dispute about the fact that,

once McLennan began slinging, he flew at least 60 minutes on that

fuel before he completely exhausted the fuel and crashed. Given

these facts, it is obvious that, if the gauge stuck at all, the

resulting inaccuracies must have been minimal. Indeed, McLennan

appears to have run out of fuel almost exactly when predicted.

Our conclusion in this regard is supported by post-accident

testing on the actual fuel measurement system retrieved from the

crashed helicopter. When the system was tested in a level and

inclined position, the investigators were able to obtain a maximum

3.5 percent inaccuracy in the crashed fuel measurement system.20

This record amply establishes that a commercial helicopter pilot,

20
Post-accident testing also revealed that the fuel transmitter
was worn and dirty.

32
even one involved in slinging operations, should not be depending

upon such a narrow margin of error to keep him in the sky. This is

particularly so where the pilot is performing only the routine

work-day tasks that make up most of his days. This is the obvious

purpose of the various regulations, company rules, and flight

manual comments concerning fuel management when slinging. The CTSB

agreed, finding in its final report on the incident, under the

heading “Causes and Contributing Factors,” that:

The engine flamed out because of fuel exhaustion.
Contributing to the occurrence were the pilot's decision
to rely on the fuel quantity indication at a low fuel
state, and to continue to operate the helicopter with the
low-level warning light illuminated.

IX.

McLennan maintains that, notwithstanding any evidence of his

actual subjective appreciation of the risk of relying exclusively

upon the fuel gauge, the severity and pervasiveness of the problems

associated with resistor-type fuel transmitters in helicopters used

for slinging operations renders the use of those transmitters

unreasonably dangerous. McLennan relies primarily upon a large

number of maintenance reports that AEC produced in discovery.

These maintenance reports track all reported malfunctions of fuel

transmitters installed on the fleet of 550 AEC 350 series

helicopters being flown in the 15-year period between 1980 and 1995

that McLennan's helicopter was in service. There are about 200

such reports in the record, although only 138 of those reports are

33
operational reports relating to a malfunction while a helicopter

was engaged in flight operations.21 Thus, the accumulated reports

reflect less than one operational fuel transmitter malfunction for

every 20,000 flight hours. The district court found that in

“virtually every case, the fuel quantity indicator system indicated

a higher quantity of fuel than actually remained in the aircraft.”

Having reviewed the record, we conclude that this is an incorrect

statement of the evidence. There are a number of different

problems reported in the documents that have nothing to do with

erroneous gauge readings caused by sticking. In fact, only about

half of the reports are tied to sticking of any form in the float

assembly, and less than 20 percent of those are tied expressly to

an artificially high fuel indication. McLennan did not offer any

evidence and the reports do not otherwise suggest that any of these

malfunctions resulted in a crash or other accident involving the

affected aircraft. We conclude that these reports standing alone

do not support a reasonable inference that resistor-type fuel

transmitters are inherently dangerous when installed in helicopters

used for slinging operations.

McLennan also offers marginally probative evidence that AEC

could have installed a capacitor-type transmitter, and that a

capacitor-type transmitter may be more reliable for slinging

21
The balance refer to malfunctions found prior to the time the
fuel transmitter was installed or while the helicopter was on the
ground and not engaged in flight operations.

34
operations. But this is not a design defect case, and McLennan's

evidence does not support a reasonable inference that the decision

to market the model AS-350 helicopter with a resistor-type

transmitter rendered the helicopter unreasonably dangerous in 1980,

or even with the benefit of hindsight. An FAA designated

engineering representative, Leon Jacobson, testified that resistor-

type fuel transmitters are still widely used in helicopters

marketed for slinging operations. Jacobson provided evidence that

at least nine helicopter manufacturers continue to market twenty-

five different families of helicopters equipped for slinging

operations with resistor-type fuel transmitters. Jacobson further

testified that he had never seen a fuel indicator system classified

as anything other than a “on-condition” part, meaning that neither

the FAA nor the aviation industry considered the fuel indicator

system to be a safety item that would cause a structural failure or

crash if it failed. Consistently, Jacobson testified that he had

never, in his 42 years experience designing and approving aircraft,

seen a mandatory service bulletin requiring replacement or frequent

inspection of a fuel indicator system. In sum, the record evidence

does not support a reasonable inference that the AS-350-D model

aircraft marketed by AEC with a resistor-type fuel transmitter was

unreasonably dangerous for slinging operations when sold in 1980 or

at any other subsequent time. To the extent that the district

court finds differently, that finding is clearly erroneous on the

basis of this record.

35
 Having set forth the record evidence and the factual basis for

our decision, we proceed to an analysis of the legal issues AEC

raises on appeal.

LEGAL ANALYSIS

I.

AEC challenges the district court's denial of its motion to

dismiss for forum non conveniens and its motion to apply the law of

Alberta, Canada. AEC raises these points as alternative arguments,

which the Court need not address unless a decision adverse to AEC's

interests is reached on the merits. Notwithstanding AEC's

position, the district court's rulings on these pre-trial motions

potentially affect our analysis of the merits. For that reason, we

will briefly consider the district court's disposition of AEC's

pre-trial motions before considering the district court's

disposition on the merits of McLennan's strict liability and

negligence claims.

The simple premise underlying the doctrine of forum non

conveniens is “that a court may resist imposition upon its

jurisdiction even when jurisdiction is authorized." Dickson Marine

Inc. v. Panalpina, Inc., 179 F.3d 331, 341 (5th Cir. 1999) (internal

quotations omitted). We review the district court's denial of a

motion to dismiss for forum non conveniens for a clear abuse of

discretion. See In re Air Crash Disaster New Orleans, 821 F.2d

1147, 1166 (5th Cir. 1987), vacated on other grounds and remanded,

36
109 S. Ct. 1928, reinstated in relevant part, 883 F.2d 17 (5th Cir.

1989). When, as here, the district court tries the case to a

conclusion, that fact tends to bolster the district court's

original decision denying the motion to dismiss. Id. at 1168. In

such a case, the district court's decision should not be held an

abuse of discretion unless the moving party can demonstrate great

prejudice arising from trial in the plaintiff's chosen forum. Id.

“The doctrine of forum non conveniens presupposes at least two

forums where the defendant is amendable to process and simply

furnishes criteria for choice between them.” Dickson Marine, 179

F.3d at 341. Thus, a defendant seeking dismissal on the basis of

forum non conveniens must first establish that there is an

alternate forum that is both available and adequate. See, e.g.,

Alpine View Co., Ltd. v. Atlas Copco AB, 205 F.2d 208, 221 (5th Cir.

2000). “A foreign forum is available when the entire case and all

parties can come within the jurisdiction of that forum.” Id.

(internal quotes omitted). “A foreign forum is adequate when the

parties will not be deprived of all remedies or treated unfairly,

even though they may not enjoy the same benefits as they might

receive in an American court.” Id. (internal quotes omitted).

If the moving party carries its burden of establishing an

alternate forum that is both adequate and available, then the

defendant is charged with showing that dismissal is warranted

because certain private and public interest factors weigh in favor

37
of dismissal. Id. at 221-22. The relevant private interest

factors include: the “relative ease of access to sources of proof;

[the] availability of compulsory process for attendance of

unwilling, and the cost of obtaining attendance of willing,

witness[es]; [the] possibility of view of premises, if view would

be appropriate to the action; and all other practical problems that

make trial of a case easy, expeditious and inexpensive.” Dickson

Marine, 179 F.3d at 342 (internal quotes omitted). The relevant

public interest factors include: the “administrative difficulties

flowing from court congestion; the local interest in having

localized controversies decided at home; the interest in having the

trial of a diversity case in a forum that is at home with the law

that must govern the action; the avoidance of unnecessary problems

in conflict of laws, or in the application of foreign law; and the

unfairness of burdening citizens in an unrelated forum with jury

duty.” Id. (internal quotes omitted).

District courts are constrained to follow this procedural

framework. A summary disposition or failure to address the

relevant principles or balance the relevant factors may constitute

an abuse of discretion. Our task on appeal is merely to “'review

the lower court's decisionmaking process'” to ensure compliance

with this framework; we do not “'perform a de novo analysis and

make the initial determination for the district court.'” Id. at

336 (quoting In re Aircrash Disaster Near New Orleans, 821 F.2d at

38
1167).

In this case, AEC argued that Canada was an available and

adequate forum for this case that, upon consideration of the

various private and public interests, would be more convenient for

the parties. McLennan opposed the motion. The district court

initially held that AEC had failed to prove that Alberta, Canada

was an available forum, because there were questions concerning

AEC's susceptibility to personal jurisdiction in that forum. The

district court further held that AEC had likewise failed to

establish that the alternate forum was either adequate or more

convenient. The court cited several factors, including impediments

to essential discovery, before refusing AEC's invitation to decline

jurisdiction in this matter.

AEC moved for reconsideration, and the parties submitted

competing affidavits from Canadian attorneys addressing the

adequacy and availability of the Canadian forum. The district

court addressed this evidence, eventually concluding that AEC had

not carried its burden of demonstrating that Alberta, Canada

constituted an adequate and available forum under the relevant

principles. In this second order, the district court further noted

that AEC had completely neglected its burden of persuading the

court that private and public interest factors weighed in favor of

dismissal, by failing to even raise any specific argument directed

to the application of those factors. Notwithstanding AEC's

dereliction of its burden, the district court went on to consider

39
the application of those factors in this case. The district court

concluded that the private interest factors did not weigh in favor

of dismissal because a larger number of witnesses and a larger body

of evidence was more easily accessible in Texas. The district

court further concluded that the public interest factors did not

weigh in favor of dismissal because Texas had a strong interest in

enforcing its laws against and monitoring the activities of AEC, a

Texas-based manufacturer. The district court's analysis in both

orders is consistent with the procedural framework the district

court is obligated to use. Moreover, there is nothing unreasonable

about the conclusions reached therein. Thus, there is no abuse of

discretion and no reversible error arising from the district

court's denial of AEC's motion to dismiss for forum non

conveniens.22

II.

AEC also challenges the district court’s denial of its motion

for application of the law of Alberta, Canada. We review a

district court's choice of law determination de novo. Spence v.

Glock, Ges. m.b.H., 227 F.3d 308, 311 (5th Cir. 2000).

AEC first filed its motion for application of Canadian law on

November 25, 1998. At that point in time, the case had been

22
AEC later moved for leave to file newly discovered evidence
on the forum non conveniens issue. The district court denied this
motion, finding that the newly discovered evidence did not in any
way call its earlier decisions into question. There is likewise no
error in this determination.

40
pending for more than one year, the discovery deadline had passed,

and there were less than two weeks remaining before trial. The

district court concluded that AEC’s motion was untimely because it

failed to provide "reasonable written notice" that the application

of foreign law was relevant to the lawsuit. See FED. R. CIV. P.

44.1. AEC maintains that it provided adequate notice because it

raised the necessity of applying Canadian law as an argument in

support of its earlier filed motions for dismissal on forum non

conveniens grounds. It is easy to sympathize with the district

court on this point. AEC’s voluminous motion, with its large

number of exhibits, could easily have been filed earlier.

Nonetheless, we need not decide the adequacy of AEC’s notice,

because the district court entered an alternative holding, with

which we agree, that the motion was without merit in any event.

In this diversity case, we are obliged to apply Texas choice

of law principles to determine the applicable law. See In re Air

Disaster at Ramstein Air Base, 81 F.3d 570, 576 (5th Cir. 1996),

partially amended on other grounds on reh'g, Perez v. Lockheed

Corp., 88 F.3d 340 (5th Cir. 1996). Absent some statutory rule or

contractual agreement to the contrary, Texas courts require that

the law of the forum with the "most significant relationship" to

the litigation be applied. Id. The factors relevant to an

application of this test are drawn from §§ 6 and 145 of the

Restatement (Second) of Conflicts of Laws. Id. Some of the

41
factors considered important under § 6 include: the relevant

policies of the forum and other interested states; the relative

interests of the states with an interest in the litigation; the

basic policies underlying the particular field of law; and the

certainty, predictability, and uniformity of the result to be

obtained by application of a particular state's law. See RESTATEMENT

(SECOND) OF CONFLICTS OF LAWS § 6. Some of the factors considered

important under § 145 include: the place where the injury occurred;

the place where the conduct causing the injury occurred; the

domicile, nationality, place of incorporation and place of business

of the parties; and the place where the relationship, if any,

between the parties is centered. See RESTATEMENT (SECOND) OF CONFLICTS

OF LAWS § 145.

The district court held that AEC had not carried its burden of

proving that the relevant factors predominated in favor of applying

Canadian law. While McLennan was injured in Canada, the relevant

conduct that McLennan claims gave rise to his injuries, the

marketing and manufacturing of the helicopter, took place in Texas,

where AEC maintained its principal place of business. AEC

forwarded the various service letters and bulletins, and maintained

records concerning the operation of the aircraft in its Texas

office. Thus, the relationship between the parties, to the extent

there was one, was centered in Texas. While it is true that

McLennan is a Canadian citizen and resident, McLennan chose a Texas

42
venue for his lawsuit. AEC, on the other hand, does business in

Texas, and there is no evidence that the application of Texas law

poses any great burden on AEC’s ability to defend the suit.23

Finally, as the district court found, Texas has a strong interest

in enforcing its products liability laws against the manufacturers

operating in the State. Having reviewed the district court’s

application of the relevant principles de novo, we find no error in

its determination that Texas law should apply to this diversity

action.

III.

Texas recognizes the theory of strict tort liability premised

upon the Restatement (Second) of Torts § 402A, which provides, in

relevant part:

(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to
his property, if
(a) the seller is engaged in the business of selling such
a product, and
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it
is sold.

RESTATEMENT OF TORTS § 402A; see also Smith v. Aqua-Flo, Inc., 23

23
The district court determined that the only material
difference between the applicable Texas and Canadian law is that
Canadian law does not recognize the theory of strict products
liability, while Texas does. In Canada, McLennan would be
compelled to prove his negligence theories in order to prevail.
Given our determination in this opinion that McLennan is not
entitled to prevail on either theory, there is no policy to be
vindicated by requiring that Canadian law be applied.

43
S.W.3d 473, 477 (Tex. App.–Houston [1st Dist.] 2000, writ denied).

A product may be unreasonably dangerous due to a defect in the

manufacturing process (manufacturing defect) or in its design

(design defect), or because of the manufacturer's failure to

provide adequate warnings or instructions on the product's use

(marketing defect). See Aqua-Flo, Inc., 23 S.W.3d at 473; Keene

Corp. v. Gardner, 837 S.W.2d 224, 228 (Tex. App.-Dallas 1992, writ

denied). In this case, McLennan is pursuing only the theory that

AEC is strictly liable for marketing defects in the AS-350-B

helicopter.

McLennan alleges that AEC is strictly liable for its decision

to market a helicopter equipped with a resistor-type gauge for

slinging operations because the product was unreasonably dangerous

for that application. At first blush, this allegation seems more

akin to a design defect theory, but McLennan has expressly

disclaimed any such theory and frames this claim strictly in terms

of a marketing defect.24 To prove this allegation, McLennan was

required to prove: (1) that the helicopter was defective; (2) that

the defect rendered the helicopter unreasonably dangerous; (3) that

24
We note that any design defect theory would be burdened by
the need to prove that there was a defect in the product when it
left the manufacturer's hands. See, e.g., Kroger Co. v.
Bettancourt, 996 S.W.2d 353, 358 (Tex. App-Houston [14th Dist.]
1999, writ denied). That showing might be difficult given that
there is no dispute about the fact that the problem at issue here,
sticking in the fuel transmitter float, only became a problem when
the transmitter was worn or dirty.

44
the helicopter reached CHL and McLennan, as ultimate consumers,

without substantial change in its condition from the time of the

original sale; and (4) that the helicopter was the producing cause

of McLennan's injuries. See Syrie v. Knoll Int'l, 748 F.2d 304,

306 (5th Cir. 1984). McLennan also claims that AEC is strictly

liable for failing to warn or adequately warn of the risks

associated with the use of a resistor-type fuel transmitter in a

helicopter marketed for slinging operations. “A product may be

unreasonably dangerous if a manufacturer fails to warn of a

foreseeable risk arising from the use of the product, and the 'lack

of adequate warnings or instructions renders an otherwise adequate

product unreasonably dangerous.'" Coleman v. Cintas Sales Corp.,

No. 04-00-00176-CV, 2001 WL 20447 at 3 (Tex. App.–San Antonio 2001,

no writ) (quoting Aqua-Flo, Inc., 23 S.W.3d at 480). To prove this

allegation, McLennan was required to prove: (1) that there was

either an inherent risk associated with use of the helicopter or a

risk that might arise from a use that was intended or reasonably

anticipated at the time of sale; (2) that AEC either knew or should

have foreseen the risk of harm; (3) that AEC failed to provide any

warning or failed to provide an adequate warning of the danger when

the helicopter was sold; (4) that AEC's failure to warn rendered

the helicopter unreasonably dangerous; and (5) that AEC's failure

to warn was the producing cause of McLennan's injuries. See Reese

v. Mercury Marine Div. of Brunswick Corp., 793 F.2d 1416, 1420 n.1

45
(5th Cir. 1986).

There is an obvious overlap between the elements of McLennan's

two strict liability theories. The primary difference between the

two is that McLennan's first theory alleges that resistor-type fuel

gauges are inherently and unreasonably dangerous when installed in

helicopters used for slinging, while his second theory alleges that

such transmitters are unreasonably dangerous in the absence of an

adequate warning or instructions addressing the potential for

inaccurate fuel gauge readings when the helicopter is used for

slinging operations. See Coleman, 2001 WL 20447 at *3. McLennan's

first theory may be summarily addressed. Stated simply, McLennan

failed to prove that resistor-type fuel transmitters are per se

unreasonably dangerous when installed on helicopters used for

slinging. As detailed above, the overwhelming record evidence is

to the contrary. Resistor-type fuel transmitters meet all

applicable regulatory and industry standards and are still widely

used in helicopters marketed for slinging operations by a number of

well-respected helicopter manufacturing companies. See Hagans v.

Oliver Machinery Co., 576 F.2d 97, 100 (5th Cir. 1978) (relying in

part upon product’s compliance with industry safety and

manufacturing standards to reject plaintiff’s strict liability

claim). Notwithstanding the extensive use of resistor-type fuel

transmitters for many years, which continues today, McLennan failed

to produce evidence of even one other accident or other injury

46
attributable to the use of such transmitters in helicopters used

for slinging operations.25 We conclude that the evidence in this

record simply does not support any rational inference that the

resistor-type fuel transmitter is inherently and unreasonably

dangerous when installed in helicopters engaged in slinging

operations.

McLennan's second theory, his allegation that AEC either

failed to warn him of the risk or failed to provide adequate

instructions on the use of the product, requires slightly more

analysis but is likewise unavailing. “The existence of the duty to

warn of danger or to instruct as to the proper usage of a product

is a question of law." Coleman, 2001 WL 20447 at *3; see also

General Motors Corp. v. Saenz, 873 S.W.2d 353, 356 (Tex. 1993);

Seagram & Sons v. McGuire, 814 S.W.2d 385, 387 (Tex. 1991).26

"There is no duty to warn when the risk associated with a product

is within the ordinary knowledge common to the community."

25
We do not intimate that such evidence is required in a strict
liability case. We merely note that, in this particular case, such
evidence would have permitted McLennan to overcome the otherwise
overwhelming evidence that the minimal risk presented by these
transmitters is outweighed by their utility to the intended users.
Absent that evidence, McLennan has simply failed to meet his burden
of establishing the essential element of an unreasonable risk of
harm or danger.
26
While the ultimate determination of whether there is a duty
to warn is a legal issue, the factual predicate required to support
the duty to warn is probably a question of fact. See Torrington
Corp. v. Stutzman, No. 99-0261, 44 Tex. Sup. Ct. J. 225, 2000 WL
1862923 at *8 (Tex. 2000); see also Smith v. Louisville Ladder Co.,
No. 99-41038, 2001 WL 862 at *5 (5th Cir. Jan. 11, 2001).

47
Coleman, 2001 WL 20447 at *3, *4 (internal quotations omitted); see

also Louisville Ladder Co., 2001 WL 862 at *5 (“under Texas law,

there is no duty to warn when the risks associated with a

particular product are matters within the ordinary knowledge common

to the community and a supplier may rely on the professional

expertise of the user in tailoring a warning”) (internal footnotes

and quotations omitted); Argubright v. Beech Aircraft Corp., 868

F.2d 764, 766 (5th Cir. 1989) ("there is no duty to warn of dangers

obvious to the user of the product”); Hagans, 576 F.2d at 103 ("In

sum, it is clear that defendant's failure to warn of an obvious

danger, admittedly known to and appreciated by plaintiff, did not

render the saw unreasonably dangerous for its intended use.");

Sauder Custom Fabrication v. Boyd, 967 S.W.2d 349, 351 (Tex. 1998)

(relying upon common knowledge defense to reject both products

liability and negligence claim); Caterpillar, Inc. v. Shears, 911

S.W.2d 379, 382 (Tex. 1995) ("Warnings about obvious hazards are

not likely to reduce the chances of injury."); Id. at 383 ("The

determination whether a manufacturer has a duty to warn is made at

the time the product leaves the manufacturer."). Whether

information about a risk is common knowledge is an objective

inquiry and the user’s knowledge is not dispositive on the issue.

See Shears, 911 S.W.2d at 383. But see Hagans, 576 F.2d at 102

("[P]laintiff admitted that he was aware of the dangers involved in

cutting knotted wood on the saw. Clearly a warning of the dangers

48
involved in using the saw would not have informed him of anything

he did not already know."). Further, the “consumer’s perspective

is that of an ordinary user of the product; not necessarily that of

an ordinary person unfamiliar with a product." Sauder Custom

Fabrication, 967 S.W.2d at 351 (determining whether the risk

associated with use was common knowledge by reference to the

knowledge common to experienced boiler workers); see also

Argubright, 868 F.2d at 766 ("Whether there is a duty to warn and

the adequacy of warnings given must be evaluated in connection with

the knowledge and expertise of those who may reasonably be expected

to use or otherwise come in contact with the product as it proceeds

along its intended marketing chain."). Thus, when determining

whether AEC had a duty to warn McLennan of the risk identified in

this case, we view that issue objectively, but from the perspective

of an experienced sling pilot, rather than from the perspective of

an ordinary consumer without the knowledge necessary to perform

that job.

The CTSB's final report on McLennan's accident states that the

potential for inaccurate fuel gauge readings caused by sticking in

a worn or dirty fuel transmitter was “common knowledge” among

flight crews at the time of the accident. The testimony from

experienced sling pilots at trial was consistent. Moreover, the

record establishes that McLennan himself was actually aware of the

risk that a helicopter equipped with a resistor-type fuel

49
transmitter might give inaccurate fuel gauge readings when the

transmitter is worn and the helicopter is routinely flown in a low

fuel application like slinging. Indeed, McLennan was actually

aware that this helicopter had that propensity before he flew that

day. More importantly, given that our inquiry is an objective one,

the record conclusively establishes that regulatory agencies like

the FAA and the CTSB, helicopter manufacturers, aircraft service

personnel, experienced sling pilots, and the employers of those

pilots were all aware of this risk, and yet the regulatory agencies

had not required the replacement of the component with any

alternative. See Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519,

527 (Tex. App.–Corpus Christi 1979, writ ref'd n.r.e.) (explaining

the regulatory process involved in obtaining an airworthiness

directive from the regulatory agency and noting that “Bell did not

have the legal power to force owners of Bell helicopters to replace

their 102 [tail rotor] systems with 117 [tail rotor] systems”).

Further, there is no evidence that the purchasers and intended

users of the helicopters had demanded any shift in the market

standard. See id. (noting that third-party opposition to a

manufacturer requested airworthiness directive may cause regulatory

authorities to rescind the directive). Even CHL, which had actual

notice of the problem, failed to comply with AEC's Recommended

Service Bulletin, which informed users that the fuel transmitter

should be replaced with a capacitor-type and set out the procedure

50
for making the change. Further, although AEC had previously

specified that a Recommended Service Bulletin was the strongest

correspondence it could send without regulatory authority, and

although AEC warned consumers who failed to comply with Recommended

Service Bulletins that they “must accept full responsibility for

the consequences of their decision,” CHL chose to replace the

transmitter with another resistor-type transmitter after the date

of the Recommended Service Bulletin laying out the procedure for

replacing the transmitter with a capacitor-type transmitter. See

Scallan v. Durion Co., 11 F.3d 1249, 1254 (5th Cir. 1994)

(concluding that the manufacturer is not liable when a purchaser,

with knowledge of the particular danger which led to the injuries,

declines to incorporate a safety item that would have eliminated or

reduced that risk).27 On the record before us, there is no other

reasonable inference but that the particular risk was both

objectively and subjectively known and a matter of common knowledge

within the relevant community of sling pilots.

McLennan also contends that AEC had a duty to warn based upon

AEC's post-sale decision to issue service letters and bulletins

relating to the safety of the helicopter. Texas courts generally

do not recognize any post-sale duty to warn of product hazards

27
While Scallan was controlled by Louisiana law, the Court's
discussion of this principle was not based in Louisiana law, and
the Court cited authority from other jurisdictions in support of
this general principle of products liability

51
arising after the sale. That general rule is modified, however, by

the availability of a negligent undertaking theory on the one hand,

and the holding of the Texas Court of Appeals in Bell Helicopter

Co. v. Bradshaw, 594 S.W.2d 519 (Tex. App.–Corpus Christi 1979,

writ ref'd n.r.e.), on the other. To the extent that McLennan's

argument is premised upon the theory that AEC voluntarily assumed

a post-sale duty to warn and then discharged that duty without

exercising reasonable care, that theory is clearly negligence-based

and unavailable in the context of a strict liability claim. See

Torrington Co., 2000 WL 1862923 at *4-5; Arkwright-Boston Mfrs.

Mut. Ins. Co., 844 F.2d at 1177, 1185; Syrie, 748 F.2d at 311-12;

Alter, 944 F. Supp. at 537 & n.3. To the extent that McLennan's

argument is premised upon the control-based duty recognized by the

Texas Court of Appeals in Bradshaw, that duty is inapplicable to

the particular facts of this case.

In Bradshaw, defendant Bell Helicopter sold the helicopter at

issue in 1961 to a third party not involved in the litigation.

Several years later, in 1969, Bell Helicopter regained a

significant degree of control over the helicopter when it was

purchased by a Bell Helicopter service station. Bell Helicopter

then retained that control until the helicopter was sold to the

plaintiffs in 1973. Id. at 530-31. The Texas court relied upon

that fact to hold that the defendant was in control of the product

on the day it was sold to the plaintiffs and that the product was

52
unreasonably dangerous at that time. Id. at 531. The court went

on to clarify that it was not adopting any rule that would place

manufacturers under a continuing duty to improve the product or to

remedy dangerous defects in a product that are discovered after the

product is sold. Id. at 531-32. The court recognized, however,

that a manufacturer may assume a negligence based post-sale duty to

ensure the continued safety of its product and that Bell Helicopter

had assumed such a duty in the context of that case. Id. at 532

(concluding that such a duty would be satisfied by the issuance of

a service bulletin recommending that the defective tail rotor

system be removed).

A few cases have suggested that the Bradshaw duty may be

applicable in a strict liability action. See Torres v.

Caterpillar, Inc., 928 S.W.2d 233, 240-41 (Tex. App.–San Antonio

1996, writ denied); Dion v. Ford Motor Co., 804 S.W.2d 302, 311

(Tex. App.–Eastland 1991, writ denied). Most cases, however, have

recognized that the Bradshaw control-based duty is probably no

broader than the well-recognized negligence-based duty to exercise

reasonable care when undertaking to provide a post-sale warning.

See Torrington Co., 2000 WL 1862923 at *4-5; Arkwright-Boston Mfrs.

Mut., 844 F.2d at 1177; Syrie, 748 F.2d at 311-12; Alter v. Bell

Helicopter Textron, Inc., 944 F. Supp. 531, 537 & n.3 (S.D. Texas

1996). Assuming arguendo that Bradshaw and subsequent Texas

authority does recognize a post-sale duty to warn in the context of

53
a strict liability claim, we reject the application of that duty in

this case. The facts in Bradshaw supported a conclusion that the

defendant manufacturer was in constructive possession of the

helicopter and had the authority to require repairs and

modifications to the product on the day it was sold in a defective

condition to the plaintiff. See Bradshaw, 594 S.W.2d at 530-31.

In this case, AEC sold the helicopter in 1980 as a AS-350-D model

helicopter. The helicopter crashed 15 years later as a model AS-

350-B. AEC was not even aware of the modification and there is no

evidence that AEC had any control whatsoever with respect to

required repairs or other modifications. Thus, assuming that the

Bradshaw duty remains viable as an independent post-sale duty

divorced from the context of a negligent undertaking, that duty is

simply inapplicable to the facts of this case. For the foregoing

reasons, we conclude that AEC owed McLennan no duty to warn of

risks already appreciated and understood by the consumer. This

conclusion, standing alone, is sufficient to require judgment in

AEC’s favor with respect to McLennan’s strict liability claim.

IV.

McLennan’s negligence claim is factually identical to his

second strict liability theory. That is, he maintains that AEC

negligently failed to warn of the risk associated with the use of

a resistor-type fuel transmitter in a helicopter engaged in

slinging operations. The legal principles governing McLennan’s

54
negligence theory, however, are distinct. See Syrie, 748 F.2d at

309 ("under Texas law, strict liability and negligence, although

sharing similar and common elements, are two entirely separate

theories of recovery in a products liability action"). Strict

products liability necessarily focuses upon the product itself, and

requires a showing that the manufacturer placed a product into the

stream of commerce that was unreasonably dangerous for a

foreseeable use. See Syrie, 748 F.2d at 307. Products liability

premised upon a showing of negligence, however, focuses upon the

conduct of the manufacturer in placing that product into the stream

of commerce, and requires a determination of whether that conduct

complies with the applicable standard of care. Id. at 307. To

prove a products liability claim premised upon a theory of

negligence, a plaintiff must demonstrate: (1) that the manufacturer

owed a duty to the plaintiff; (2) that the manufacturer breached

that duty; (3) that the plaintiff was injured: and (4) that the

manufacturer’s breach of the duty was the proximate cause of the

plaintiff’s injury or damages. Id.

McLennan centers his negligence claim upon perceived

inadequacies in AEC's service letters and bulletins. The district

court agreed, and made several findings concerning the adequacy of

AEC’s post-sale warnings about the potential for problems with the

fuel transmitter. Specifically, the district court held that AEC’s

March 1988 service letter, October 1993 service letter, and July

55
1994 service letter constituted post-sale marketing defects. All

of this correspondence was issued after the sale. Thus, as set

forth above, AEC's duty to warn must be derived from either the

Bradshaw control-based duty to warn of risks arising after the sale

or AEC's negligent performance of the warnings actually provided.

We have already held that AEC did not possess the requisite degree

of control over the helicopter at issue to impose the control-based

duty announced in Bradshaw. The remaining possibility is that AEC

is liable for negligent discharge of a duty which AEC voluntarily

assumed or undertook to perform.

"Texas law generally imposes no duty to take action to prevent

harm to others absent certain special relationships or

circumstances.” Torrington, 2000 WL 1862923 at *5. Texas law does

recognize, however, "that a duty to use reasonable care may arise

when a person undertakes to provide services to another, either

gratuitously or for compensation." Id. The required elements of

a negligent undertaking claim in this case are: (1) that AEC

undertook to provide a warning, and either knew or should have

known that such warning was necessary for McLennan’s protection;

(2) that AEC failed to exercise reasonable care when providing

those warnings; and either (3)(a) that McLennan relied upon those

warnings, or (3)(b) that AEC’s attempts to warn actually increased

the risk of harm to users like McLennan. See Torrington, 2000 WL

1862923 at *6.

56
 McLennan's claim fails under the negligent undertaking theory

as well. As an initial matter, there is no evidence supporting a

reasonable inference that AEC failed to exercise the required

degree of care when issuing the various service letters and

bulletins at issue in this case. The district court's findings

that the service letters and bulletins were inadequate, as set

forth above, were taken verbatim from McLennan's proposed findings

of fact and conclusions of law, which in turn present a clearly

erroneous interpretation of the documents themselves. Of equal

importance, McLennan did not produce any evidence that CHL or

McLennan relied upon AEC's service letters or bulletins or that

those letters and bulletins increased the risk to McLennan in any

way. To the contrary, both CHL and McLennan ignored those

warnings, and the record does not support any reasonable inference

that AEC's service letters and bulletins were misleading or that

they masked the potential for danger in any way. We conclude that

AEC did not owe McLennan any negligence-based, post-sale duty to

warn.

Even if McLennan were able to establish the applicability of

either the Bradshaw duty or the negligent undertaking theory, any

such duty would still be subject to the principle that there is no

need to warn of dangers that are generally known. See In re Air

Crash at Dallas/Fort Worth Airport, 919 F.2d at 1085 (holding in a

negligence action that the air traffic controllers failure to warn

57
of an impending danger cannot be the proximate cause of an injury

"after the pilot himself discovered its presence, appreciated the

danger, and decided to fly ahead into it."); see also Argubright,

868 F.2d at 766; Hagans, 576 F.2d at 104 (collecting authorities

for the proposition that the "universally recognized duty of a

manufacturer to warn of dangers associated with the use of his

product does not attach . . . when the danger is ‘open and obvious’

or the party to be warned is already aware of the danger.");

Shears, 911 S.W.2d at 382. We have already held that the potential

for inaccurate fuel gauge readings from a worn resistor-type

transmitter was an obvious and open risk within the common

knowledge of the relevant community, and this constitutes an

independent ground for rejecting McLennan's argument that AEC owed

any post-sale duty to warn in this case.

There is an argument, however, that the actual risk in this

case is not the risk of an inaccurate fuel gauge reading, but is

instead the risk of relying upon such a minute amount of fuel to

stay in the air. The maximum discrepancy in the fuel gauge at

issue registered 3.5 percent. The applicable air regulations, CHL

policy, the mandates of McLennan's training, the customary

practices of experienced slinging pilots, basic airmanship rules,

and the manufacturer's instructions about both the low fuel warning

light and fuel management generally, all required that McLennan be

on the ground long before he approached anything near 3.5 percent

58
remaining fuel, which would have permitted only about 3 minutes

flight time to exhaustion. These facts raise serious concerns

about whether McLennan carried his burden of proving that the

inaccurate fuel gauge reading was the producing cause of his injury

or damages.

A negligence action requires proof of proximate, rather than

producing, cause. See Stewart v. Transit Mix Concrete & Materials

Co., 988 S.W.2d 252, 255 (Tex. App.–Texarkana, writ denied).

McLennan contends that the record is sufficient to support the

district court's conclusion that McLennan satisfied his burden of

proving causation.28 McLennan relies heavily upon the presumption

under Texas law that additional warnings would have been heeded.

This rebuttable presumption developed in cases where the

manufacturer failed to give any warning at all about a foreseeable

risk. See Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832, 834 (Tex.

1986); Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex.

1972); see also General Motors Corp. v. Saenz, 873 S.W.2d 353, 357-

58 (Tex. 1993) (explaining the policy leading to adoption of the

presumption). The presumption is inapplicable, however, when the

issue is the adequacy of a warning actually given which, if heeded,

would have prevented the injury. See Saenz, 873 S.W.2d at 359

(“There is no presumption that a plaintiff who ignored instructions

28
We note that the district court did not actually enter any
finding of proximate cause. Such finding is implicit, however, in
the district court's decision.

59
that would have kept him from injury would have followed better

instructions.”); Stewart, 988 S.W.2d at 255.29 Thus, McLennan was

required to prove that AEC's failure to warn actually caused the

accident, without the benefit of any presumption that he would have

heeded additional warning, and AEC was entitled to introduce

evidence that McLennan failed to heed the warnings given in order

to establish that he would not have been dissuaded by additional

warnings.

McLennan plainly failed to meet his burden of establishing

proximate cause. McLennan ignored the documentary warnings

provided by AEC in the flight documentation and in service letters

and bulletins. McLennan further ignored the warnings given by the

pilot training him on the aircraft. McLennan then ignored

29
Stewart provides a good explanation of how the presumption
operates:
To prove causation in a failure-to-warn case, a
plaintiff is aided by a presumption that proper warnings
would have made a difference (i.e. the warnings would
have been followed had they been provided). However, the
presumption operates one way when no warning is provided,
and a different way when a warning was provided but it is
arguably inadequate. In the instance of no warning, it
is presumed that proper warnings would have been heeded.
However, no presumption arises that a plaintiff would
have heeded a better warning when, in fact, he did not
read the warning given, which if followed would have
prevented his injuries. If following the warning and
instructions actually provided would have prevented the
injury despite the warning's inadequacy, the deficiency
could not be the cause of any injury. In such a case,
the plaintiff does not have a cause of action for
failure-to-warn because there is no causation-in-fact.

988 S.W.2d at 255 (internal footnotes omitted).

60
warnings provided by the aircraft itself, including prior

discrepant performance, and more significantly, the low fuel

warning light. McLennan continued flying with the low fuel warning

light on, in violation of the flight manual and company policy,

until he was well within the 20 minute reserve fuel level required

by law. In fact, McLennan commenced at least two additional sling

loads with knowledge that he was within that 20 minute reserve. We

emphasize that there was no special exigency requiring that

different flight rules be applied on that day; McLennan was

performing what appear to be fairly routine slinging operations.

We further emphasize that, unlike the fuel gauge reading on our

automobiles, which most of us would heed before running out of gas

in any event, the consequences of fuel exhaustion in an aircraft

are much greater for the pilot and his passengers, as well as for

people and property on the ground. This is why there are

regulatory, employer-based, and basic airmanship rules which bind

a pilot in the command of his aircraft. See In re Air Crash at

Dallas/Fort Worth Airport, 919 F.2d at 1087 n.6 ("There are old

pilots, and there are bold pilots; but there are no old, bold

pilots.") (internal quotations omitted). While we in no way want

to minimize the seriousness of McLennan's injuries, neither can we

accept McLennan's premise, which is not proven in this record,

that the pilot of an aircraft may blindly trust in the accuracy of

a worn out fuel gauge, notwithstanding fuel indications contrary to

61
that reading, and notwithstanding the fact that continued flight is

in violation of regulatory authority. The consequences of such a

holding, as both a practical and precedential matter, are simply

unacceptable, and the causal connection, at least in this case, too

remote. We therefore conclude that there were no additional

warnings that AEC could have given that would have dissuaded

McLennan from continuing his flight on that ill-fated day. For

that reason, McLennan failed to establish that AEC's failure to

provide additional warnings was the proximate cause of his accident

or injuries, an essential element of his negligence claim.

Based upon this record as a whole, we are convinced that the

district court committed clear error, and that the record does not

support the conclusion that AEC's conduct was either a producing or

proximate cause of this crash. To the contrary, this crash was

caused solely by McLennan's own pilot error. Having determined

that McLennan failed to prove liability on either a strict products

liability or a negligence theory, his cross-appeal on the basis

that the district court erred by finding McLennan 40 percent liable

for the accident that led to his injuries is moot.

CONCLUSION

For the foregoing reasons, the district court's judgment in

favor of plaintiff Peter McLennan is REVERSED and JUDGMENT IS

RENDERED in favor of defendant AEC.

g:\opin\99-41036.op3 62