Multiple Daubert Challenges in Piper Plane Crash

Plaintiffs and defendants in a negligence suit brought a total of nine motions to exclude expert witness testimony, with two motions succeeding, and a third succeeding in part.

The plaintiffs, who were permanently disabled and confined to wheelchairs after their plane crash, sued the company that they allege improperly overhauled the plane's engine. Both sides retained experts to opine on the crash, the engine and the life care plans of the plaintiffs.

In Larry Crouch, et al., v. John Jewell Aircraft, Inc. (U.S. District Court, W.D. Ky, Jan. 12, 2016), Crouch, the pilot/owner, and Teddy Hudson, the passenger, crashed when the plane's engine failed an hour into their flight. Crouch claimed that the engine magneto's mounting flanges broke due to fatigue fractures caused by excessive engine vibration, which in turn was caused by an improper engine overhaul performed by Jewell.

Opinions Outside Area of Expertise Excluded

Jewell made a Daubert challenge of Crouch's aircraft accident reconstruction expert witness, Bernard Coogan, seeking to bar his opinions concerning alleged increases in engine vibrations and Jewell's engine modifications, but not his other opinions, including that Crouch was not at fault for the crash and that he took reasonable actions after he lost engine power.

While the court noted Coogan's "impressive credentials" as an aircraft accident reconstruction expert, it found that he was not an engineering or metallurgy expert, even though he was a certified mechanic and had worked as a metallurgy technician. Coogan did not participate in the "teardown" inspection of the engine and relied on another of the Crouch's expert witness opinions for his own vibration opinion. The court noted that, while an expert does not have to perform an independent examination of evidence, the expert witness cannot "merely parrot" the opinions of another expert nor be allowed to be the "… mouthpiece of a scientist in a different speciality." The court excluded Coogan's opinions concerning increased engine vibrations.

In turn, Crouch and Hudson moved to exclude portions of the expert testimony of Jewell's aircraft accident reconstructionist expert witness, Doug Stimpson, an FAA-certified instructor pilot, who had concluded that the possibility of serious injuries "… could likely have been greatly reduced (50%)" if they had worn their shoulder harnesses on landing as required by FAA regulations, that Crouch failed to give the FAA required pre-flight safety briefing regarding shoulder harnesses, and that Crouch should have attempted to land in any of numerous more suitable sites.

During his deposition, Stimpson admitted that he could not make a causal link between the shoulder harnesses and the injuries of Crouch and Hudson. As with the accident reconstructionist Coogan, the court found Stimpson testifying beyond his expertise, making a causal link to injuries.

In Jewell's response brief, it argued that Stimpson should be allowed to testify that the use of shoulder harnesses "had the potential" to reduce injuries. The court rejected that argument, as Stimpson could not testify that the harnesses "had the potential" to reduce injuries when the opinion in his expert report made a causal link, finding that the harnesses "would most likely" have reduced their injuries.

As to Stimpson's opinion that there were numerous more suitable landing sites than the one chosen by Crouch, the court noted that the opinion was based on an undated Google Earth image that was assumed to have been made at least five years after the crash, and no testimony or evidence was able to confirm that the potential landing sites were empty or suitable at the time of the crash.

The court granted the Crouch's motion to exclude Stimpson's opinion on suitable landing sites and partially granted their motion to exclude the shoulder harnesses opinion, limiting Stimpson's opinion to Crouch's failure to give a proper safety briefing.

Lack of Subspecialized Credentials Does Not Disqualify an Opinion

Jewell moved to exclude the opinions of Crouch's mechanical engineering expert witness, Richard Wartman, specifically his opinions on engine vibrations and the standard of care applicable to airframe and power plant mechanics. Jewell argued that Wartman was not an expert on the work of FAA-certified engine mechanics and that his opinion on alleged vibrations lacked a "reliable scientific basis."

Wartman's primary experience was with military engine mechanics as an aerospace engineer at the Naval Supporting Office and as an instructor of aircraft structural failures and analysis at the Navy's School of Aviation Safety. His expert opinion was that Jewell performed a number of improper engine modifications during the overhaul and that these led to the vibrations which caused the fatigue fractures, which caused the engine failure.

Jewell argued that in Wartman's deposition he admitted that certain of the engine modifications only had the potential to increase vibrations and might not have increased engine vibrations at all. The court noted that, under Daubert, "… experts are not required to testify to what is known to a certainty." Under Rule 702, expert testimony on causation only requires that "… the expert testimony be derived from inferences based on a scientific method … not that they know answers to all the questions a case presents."

Jewell's contention that Wartman was unqualified to testify regarding civil aircraft was rejected by the court as well. It found that "[w]hen an expert possesses experience and knowledge concerning a general field, his lack of specific certifications or unfamiliarity with pertinent regulatory standards does not disqualify him from opining on matters within his expertise." The lack of certain certifications can, however, be "… fodder for cross-examination at trial."

Daubert Does Not Require Experts to Perform Tests

Crouch's allegation of negligence was supported by his materials science engineer and metallurgist expert witness, William Carden, who performed a materials failure analysis/engineering investigation of the engine and its components. Carden concluded that Jewell had used incorrect roller pins and made other modifications which increased engine vibrations. Jewell claimed that these opinions were inadmissible as Carden did not measure the alleged increase in engine vibrations.

Carden had performed an analysis of the engine using scanning electron microscopy, x-ray energy dispersive spectroscopy, optical stereomicroscopy, and made other examinations as well, but he did not measure the alleged increase of engine vibrations.

While the court noted that testing is always desirable, it rejected Jewell's challenge of Carden's opinion. " Daubert does not require an expert to come in and actually perform tests in any given situation," the court said, quoting Clark v. Chrysler Corp., 310 F.3d 461, 467 (6th Cir. 2002). Jewell might have valid arguments against Carden's testimony, but the proper place for those would be through cross-examination at trial.

Jewell moved as well to exclude Crouch's general aviation mechanic expert witness, Mark Seader, for essentially the same reasons it moved to exclude Carden: Seader had not performed any tests but rather relied on his "physical observations and personal experience."

Seader had his forensic firm's mechanics inspect the engine and he performed his own inspection of the engine, concluding much the same as Carden had, including that Jewell made a number of defective modifications during its overhaul of the engine which led to an increase in engine vibrations, which caused the fatigue fractures. This included observations that two of the crankshaft counterweight pins were the wrong part number, not the one specified by the engine manufacturer, Lycoming.

The court found, as with Carden, Seader's methodology and procedures were reliable because his theories could be tested. Jewell in fact did have one of its experts conduct tests using the allegedly inappropriate pins to determine their effect on vibration. Seader's expert opinion was admissible under Daubert — Jewell could cross-examine Seader on his finding and introduce its own expert's findings.

Methodologies Can Rely on Probabilities

Crouch moved to exclude the testimony of Jewell's expert metallurgist, Dr. Roch Shipley, arguing he relied on simple assumptions and did not make reliable determinations.

Shipley had concluded that the magneto did not separate mid-flight, but separated on impact from the force of the crash. The crash was caused, Shipley said, by an unapproved gasket and clamp installation done after Jewell's overhaul. Crouch argued that Shipley's method for determining the actual force at impact was a simple observation of the airplane wreckage, and that he had not accounted for the pre-existing stress fractures in the magneto flange.

The court disagreed, finding that Shipley's methodology closely resembled a "differential diagnosis" (a process of elimination by probabilities) in which he considered all the relevant information, including the stress fractures, and came to a different conclusion than the Plaintiff's experts. Disagreement on conclusions is not a reason to exclude an opinion, the court said, but it is "proper fodder" for cross-examination.

The Quality of Data Used is Not a Daubert Concern

Jewell moved to exclude the opinions of Crouch's vocational expert witness, Dr. Ralph Crystal, arguing that they were unreliable and "based on stale data." Crystal used Crouch's adjusted gross income rather than the income listed on his W-2s, which Jewell argued artificially inflated Crystal's calculation of Crouch's lost wages, significantly inflating damage estimates.

The court disagreed. It found Crystal's opinion reliable as it used a standard methodology. The admissibility of expert testimony "… does not rise and fall on whether an opinion is ultimately correct" — that is a determination for the jury, the court ruled. In his deposition, Crystal had stated that adjusted gross income was the standard way of determining income in estimating lost wages. The court noted that Crystal may also have had a valid reason to do so as Crouch was a business owner whose earnings would not be fully reflected in his W2s.

Jewell contended that Crystal used "stale data" from a report he prepared in 2009 for a previous products liability action in Alabama, and that he should have updated his report. Again, the court found that this was a question as to the weight to be given to Crystal's opinions by the jury, not to their admissibility. Daubert is concerned with "principles and methodology," not conclusions, the court said.

Jewell had also argued that Crystal's opinions were unreliable as he could not "describe the scientific process" of his assessment. The court dismissed this as Fed. R. Evid Rule 702 "… does not require a scientific basis for every expert opinion."

Jewell continued in its effort to exclude Crystal's opinions, arguing that they should be excluded under Rule 703 because Crystal relied on information from Crouch and Hudson's attorneys and did not independently analyze their conditions. Jewell cited the fact that, just before Crystal was deposed, he asked Crouch and Hudson's counsel if there was any update on them since he wrote his report four years earlier. He was told nothing had changed. Crystal did not re-interview them himself.

The court rejected this argument as well, finding that Crystal had originally conducted independent interviews, reviewed records, reports and tax returns, and conducted standardized tests. The report was valid when written. The lack of an updated report could affect the weight of Crystal's opinions but not their admissibility.

Jewell's motion to exclude Crystal's opinions regarding Mrs. Crouch's lost income was also denied. Mrs. Crouch had stopped working, and stated that she would have continued working for three more years if her husband had not been injured. Jewell argued that an expert opinion was unnecessary because the jury could do the simple math of multiplying her annual salary by three.

The court rejected the argument, finding that, even though the jury might be able to calculate the damages, Crystal's testimony would help the jury determine those damages.

Similarly, the Crouch moved to exclude the opinions of Dr. Frank Slesnick, an economics expert witness, because of the data he used to form his opinion. Slesnick estimated the cost of the life care plans developed by Jewell's expert and critiqued the Crouch's expert cost estimate of plans developed by their expert.

Crouch contended that Slesnick's estimate was unreliable due to his "selection of inputs" into his methodology, and that he did not provide the basis and reasons for his opinions, as required under Federal Rules of Civil Procedure 26(a)(2).

To make his estimates, Slesnick selected data from the Bureau of Labor Statistics, specifically a thirteen year time period for prescription drugs and a twenty year time period for medical services and commodities, time periods which the Couch found arbitrary, violating Daubert.

The court noted that, while experts cannot pick any data set to base their opinions, the U.S. Court of Appeal for the Seventh Circuit had previously ruled that trial judges should not "assess the quality of the data inputs [experts] select[] in employing the growth rate extrapolation methodology … such issues concern weight and are best left to the jury." Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 767 (7th Cir. 2013).

Daubert Challenges: Low Risk, High Reward

The odds of successfully challenging expert opinions are often low, whether the challenges are made under Daubert or otherwise, but they remain a relatively low cost tool with the potential to exclude high value testimony.