Lack of Foundation Gets Expert Witness Excluded: Minn. Ct. App.
What an expert witness sees as sufficient foundation for a professional opinion may not be the same as a court, as evidenced by the exclusion of expert testimony in a manufacturer liability case involving the crash of a single-engine airplane.
In Kedrowski v. Lycoming Engines et al (62-CV-12-9581) Minn. Ct. App., on September 3, 2010, the appellant, Mark Kedrowski, crashed his single-engine airplane shortly after takeoff from Lake Elmo Airport. Kedrowski was severely injured and had no memory of the crash, but first responders at the crash site reported that Kedrowski told them he had lost power.
In December 2012, claiming that the airplane's engine lost power and crashed, Kedrowski sued Lycoming Engines, the designer, manufacturer and vendor of the engine.
To support his claim, Kedrowski retained Donald Sommer, an engineer and aircraft accident reconstruction expert witness, who tested the engine and found it was not producing sufficient horsepower. Sommer's reconstruction team analyzed “every part and component” of the engine, and tested various components, including a number of flow-bench tests on the fuel pump, which are meant to measure a fuel pump's fuel-flow-output capability.
Although he admitted that he had never overhauled or tested a diaphragm-style fuel pump before, Sommer concluded that that the pump was defective in design and manufacture, incapable of supplying steady and adequate fuel to the engine. He identified the cause as internal fuel leaks in the fuel pump's valves.
Lycoming moved to exclude Sommer's testimony regarding accident causation and evidence of his testing of the fuel pump for lack of foundational reliability. The district court denied Lycoming's request to exclude Sommer's testimony had his evidence of testing “subject to [Lycoming's] right to interpose foundation and other appropriate objections at trial.”
After Sommer's testimony, Lycoming moved for JMOL (judgment as a matter of law), arguing that Sommer's causation opinion and the flow-bench test lacked foundational reliability.
The district court rejected Lycoming's motion. “[W]hether Sommer properly conducted the flow-bench test was a question for the jury to decide, not for the court to resolve as a matter of law.” The court did, however, note that a final ruling on the admissibility of Sommer's testing would be made at trial.
The trial continued with Lycoming's experts testifying about the tests they conducted on the fuel pump and their analysis of Sommer's flow-bench test data. Lycoming's experts testified that a certain amount of internal leakage was known and accounted for in Lycoming's specifications and that there were no design defects. Lycoming also presented evidence, and argued, that the crash was caused by pilot error.
The jury found that the fuel pump had unreasonably dangerous manufacturing defects and that those defects caused the crash, awarding Kedrowski $27.7 million.
Lycoming renewed its argument that Sommer had insufficient foundational evidence and that it was entitled to JMOL.
The district court agreed that Sommer's analysis of the results of the flow-bench test lacked foundational reliability and granted Lycoming's post-verdict JMOL motion.
Kedrowski appealed, arguing the district court erred in granting the JMOL.
The Minnesota Court of Appeals reviewed the trial court's decision, focusing on the issue of the flow-bench test. Lycomings specifications stated that the fuel pump should produce 240 pounds of fuel flow per hour at an output pressure 2 psi at 600 rpm, and 270 pounds at 2 psi and 1800 rpm. At the other extreme of 25-30 psi, the fuel pump should hit its shutoff pressure, according to the specifications. (Diaphragm-style fuel pumps reduce fuel flow the higher the output pressure.)
In its JMOL decision, the district court noted that Sommer never tested the fuel pump at its specified design of 2 psi. Sommer's testified that he did not test at 2 psi because the engine could not operate at that pressure as the fuel injector servo required an outlet pressure of at least 10 psi to allow fuel to flow from the fuel pump through the servo and into the engine. He was “interested in finding out why this engine didn't run[,] not what some blueprint said.”
Sommers did test at the pressure extremes. He testified that at 600 rpm and 22-25 psi, the fuel pump only produced 60 pounds per hour when it should have produced 240 pounds per hour. His conclusion of inadequate fuel flow at or near 25 psi was based on a similar fuel pump made by Aero Accessories, with the specifications on that fuel pump emailed to him by an Aero employee which had stated the pump should output the equivalent of 240 pounds per hour at 24-30 psi.
The trial court found Sommer's conclusions baffling as his expected fuel flow at 25 psi was the same as the design specifications stated for 2 psi (in both Lycoming and Aero's design specifications).
Yet the district court seemed most disturbed by Sommer's failure to test the fuel pump at 2 psi. Sommer had admitted that if a fuel pump met its design specifications, it was not defective, but he never performed that test.
The Missouri Appellate Court agreed with the district court that its “ruling simply held Mr. Sommer to the standard he set for himself.” The appellate court fond to great an “analytical gap between the data from the flow-bench test and Sommer's causation opinion.”
Kedrowski argued that Sommer's testing showed that the engine was not producing sufficient horsepower, but the appellate court found “that could not explain why the engine was not producing sufficient horsepower.” Kedrowski's evidence was insufficient to prove that the fuel pump rather than another engine component was responsible for a lack of power, the appellate court noted.
The appellate court affirmed JMOL in favor of Lycoming.