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Aviation Experts

Admissibility Rate: .500    (3/6) 

Michaels v. Avitech, Inc., 202 F.3d 746 (5th Cir.), cert. denied, 531 U.S. 926 (2000).  Private plane crashes.  Victims sue company that replaced plane's vacuum pump four years earlier.  Plaintiffs' experts opine that pump was negligently replaced, because: (a) plane's left vacuum pump failed shortly after replacement of right vacuum pump, arguably because of increased stress placed on left pump by malfunction in right pump; (b) debris was subsequently found in right pump system; and (c) mechanic billed only 3.2 hours to replace right pump.  As discovery sanction, district court strikes plaintiffs' expert testimony as tardy and conclusory, and awards summary judgment to defendant.  Affirmed.  Sanction of striking expert testimony was too severe, where plaintiffs could reasonably have believed that district court had directed less than full expert disclosures.  Summary judgment is nevertheless affirmed.  Plaintiffs' expert evidence probably would not have survived challenge under Daubert, but perhaps courts of appeal should not undertake Daubert analyses where district court has not done so in first instance.  Still, same defects that make experts' testimony suspect for Daubert purposes also render that testimony insufficient to establish negligence: testimony lacks any rational probative value, because it rests merely on circumstantial facts and fails to reckon with any alternative causes of those facts.  E.g.: (a) stress caused by failure of right pump could have damaged left pump prior to right pump's replacement; (b) debris was found only after four years of intervening operation and maintenance; and (c) plaintiffs offered no support for proposition that 3.2 hours was insufficient time to replace pump properly.

Barber v. United Airlines, Inc., No. 00-3546 (7th Cir. Aug. 16, 2001) (unpublished) (see the briefs).  Injured when airplane encounters turbulence, passenger sues airline.  Passenger's theory is that airline failed to exercise due care to avoid thunderstorm turbulence.  Airline's theory, and crew's testimony, is that no thunderstorm was involved and that plane encountered only unpredictable "clear air" turbulence.  Prior to trial, and without holding hearing, district court grants motion in limine excluding plaintiff's aviation expert under Daubert, because expert has addressed only weather data favorable to his opinion and has ignored data unfavorable to it without explanation.  Trial judge refuses to grant plaintiff continuance to locate new expert.  At trial, plaintiff takes stand and testifies for first time that subsequent to flight, as she was waiting inside airport to return home, pilot approached her and admitted flying through thunderstorm.  Trial judge grants judgment as matter of law to airline.  Exclusion affirmed.  On appeal, plaintiff does not challenge trial court's ruling excluding expert's testimony in reliance on cherry-picked weather data, but argues that expert should have been permitted to testify generally that thunderstorms cause turbulence.  But airline admitted as much.  Real question was whether thunderstorms were involved, and no record evidence supported their involvement.  Plaintiff's late-breaking trial testimony re pilot's alleged admission was overwhelmingly contradicted, by plaintiff's own deposition testimony as well as other witnesses.  Even plaintiff's sister testified that day was clear and sunny.  Trial court did not abuse discretion in denying continuance to find new expert, and no Daubert hearing was required because matter was fully briefed.

United States v. Mendoza, 244 F.3d 1037 (9th Cir.), cert. denied, 534 U.S. 897 (2001).  Concerned that his girlfriend will miss her connection in San Francisco for her flight to Korea, and hoping to delay its takeoff, man anonymously phones airport with bogus bomb scare.  Unbeknownst to boyfriend, plane has already left gate, and takes off before airline can respond to call.  On learning that bomb is thought to be aboard plane, pilot turns plane back towards San Francisco and summons crew to discuss how to deal with situation.  However, while plane is still airborne, boyfriend is identified and contacted, and he admits his bomb threat was hoax.  Plane again reverses course and lands safely in Korea.  Boyfriend is charged with endangering safety of aircraft in flight.  Prosecution affords pretrial disclosure of intention to call flight captain to testify about how flight was endangered.  However, captain is unavailable when trial commences, and during opening argument, prosecutors announce their intention to call co-pilot instead.  Defendant objects, claiming that co-pilot is undisclosed expert witness, and that defendant would have hired rebuttal expert if government's intention to call co-pilot had been revealed in timely manner.  Trial court overrules objection, ruling that contemplated testimony is lay opinion by percipient witness, and co-pilot testifies that flight was endangered by need to respond to bomb threat and by crew anxiety thereby caused.  Jury convicts.  Admissibility affirmed.  If testimony was expert opinion rather than lay opinion, any error was harmless, because co-pilot's extensive experience and training would have qualified him as expert, and defendant has not contested those qualifications, either in trial court or on appeal.  Failure of pretrial disclosure does not warrant reversal, because common sense indicates that both captain and co-pilot would ascribe endangerment of aircraft to emergency measures and anxiety occasioned by bomb threat.

Hyler v. Geo-Seis Helicopters, Inc., 269 F.3d 1190 (10th Cir. 2001).  Plaintiff's expert in wrongful death claim attributes helicopter crash to failed tail rotor.  District court excludes testimony under Daubert and awards judgment as matter of law to defendants.  Affirmed.  Even assuming testimony was admissible, plaintiff offered insufficient evidence to establish other necessary elements -- e.g., that rotor was defectively overhauled.

Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003).  Army UH-1 helicopter's tail fin separates from helicopter during Medivac mission in May 1999, causing crash in which two pilots are injured.  Army's investigation reveals that separation resulted from rupture of forward vertical fin spar, caused by crack originating at rivet hole.  Pilots bring separate suits in same district court, assigned to two different judges, against various entities including DynCorp, which handled helicopter inspection and maintenance under Army contract.  DynCorp raises "government contractor" defense, noting that Army's protocols required only unaided visual inspection, and contending that crack was not visible to naked eye prior to crash.  On DynCorp's motion for summary judgment, submitted in both cases, plaintiffs counter with three expert affiants: (1) B.J. Sammons, lead mechanic at helicopter's base for forty years until his retirement one day prior to accident, who opines that if properly conducted in conformity with Army procedures, inspection in October 1998 would have discovered any visible spar cracks; (2) Steve Powell, helicopter manufacturer's field investigator, who opines, based on electron microscope images of wreckage, that crack would have been visible to naked eye prior to crash; and (3) materials engineer Richard H. McSwain, Ph.D., who opines that crack would have been visible to naked eye and also through nondestructive testing.  District court strikes: (1) in one pilot's case, mechanic's testimony re October 1998 inspection; (2) field investigator's testimony that crack would have been visible; and (3) engineer's testimony re visibility of crack to naked eye.  District court then awards summary judgment to DynCorp.  Exclusions affirmed in part and reversed in part.  Even when district court's single reversible expert ruling is rectified, plaintiffs lack evidence sufficient to create genuine issue of material fact on visibility of crack at relevant time.  (1) Exclusion of mechanic's testimony appears to have rested on relevance grounds.  If so, ruling was error, because testimony was relevant to show that DynCorp's conformity to Army inspection protocols would have led to discovery of any visible spar cracks.  (2) In striking field investigator's testimony, district court relied on rationale that witness was unfamiliar with DynCorp's inspection procedures.  This was "error," because district court's rationale is unrelated to physical visibility of cracks, but district court did not abuse discretion in excluding testimony, because mere ability to operate electron microscope would not qualify witness to opine on timing or visibility of spar cracks, and because plaintiffs identified no other reliable methodology supporting investigator's opinion.  (3) In striking engineer's testimony, one district judge inappropriately based decision on irrelevant fact that engineer had not never previously seen any UH-1 helicopter, and second district judge merely alluded conclusorily to lack of "factual basis" for engineer's opinion.  Neither judge's ruling on engineer need be reversed, however, because Daubert required testimony's exclusion, since engineer relied on important inferences for which he offered no reliable basis.