In May 1969, John McShain, Inc. purchased an aircraft
manufactured by Cessna Aircraft Co. from Wings, Inc. for
In December 1969, several hundred landings and 147 hours of
flight later, the main landing gear of the plane collapsed as
the plane alighted on the runway in Baltimore.
After notifying Cessna, McShain had the aircraft repaired by
Butler Aviation-Friendship, Inc. at a cost of $11,734.
During the course of the overhaul, Cessna representatives
visited the Butler repair facilities.
The plane was then returned to McShain.
After 5 hours of further flight, the plane's landing gear once
more gave way upon touchdown.
The cost of repairs this time totaled $24,681.
McShain refused to fly the craft again.
McShain Arg and Suit
Files suit to rescind original contract.
Alleged defective design in the landing gear
Cessnas failure to correct that design despite knowledge of the
McShain - Reject judgment for the following
Cost of the repairs.
$5,000,000 in punitive damages.
Cessna Joined Butler as a third party defendant.
McShain Released Butler
In exchange for $10 and the right to engage Ralph Harmon as a
He worked for a Butler sister company.
He would testify as an expert witness in support of the design
Judge allow the release to be admissible
Enter into evidence
Read to the jury.
McShain FRE 408 Arg
Agreements in compromise of a claim are generally inadmissible
on the issue of liability on such claim.
Cessna's reference to the Butler-McShain agreement, McShain
insists, is such a proscribed use of evidence, since Cessna's
counsel implicitly attempted to shift blame for the second
failure from Cessna to Butler.
The evidence was in fact
admitted for the purpose of establishing the bias of Mr. Harmon,
thus falling squarely within the
exception to Rule 408.
The rule by its terms "does not require the exclusion [of]
evidence" when offered for the purpose of "proving bias or
prejudice of a witness."
We believe that Judge McGlynn did not commit reversible error in
admitting the agreement and in allowing comments upon it.
The fact that a sister corporation of Harmon's employer had been
released from liability in
exchange for Harmon's testimony cast doubt upon Harmon's
Thus, as counsel for McShain appeared to contend at oral
argument, McShain's claim is in reality that the potential
prejudice from the admission of the agreement outweighed the
agreement's probative value.