Ferguson et al v. Army Fleet Support, LLC et al
OPINION AND ORDER DENYING 132 MOTION to Preclude John Cochran as an Expert Witness, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 3/28/12. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
STEVEN D. FERGUSON,
LEAR SIEGLER SERVICES,
BELL HELICOPTER TEXTRON,
CIVIL ACTION NO.
OPINION AND ORDER
In this civil action, plaintiff Steven D. Ferguson
seeks to recover damages from defendant Bell Helicopter
Jurisdiction is proper under 28 U.S.C.
§ 1332 (diversity of citizenship).
The case is currently
before the court on Bell’s motion to preclude Dr. John
Cochran as an expert witness, which motion, for the
reasons set forth below, will be denied.
This action arises out of a July 16, 2007, crash of
a Bell TH-67 helicopter that severely injured civilian
flight instructor Ferguson.
At the time of the accident,
Ferguson was supervising a student pilot as he maneuvered
movement occurred, wrenching the cyclic controller from
the student pilot’s hand and causing him to lose control
of the helicopter.
The cyclic controller is basically the helicopter’s
It controls the pitch angle of the rotor
blades, which in turn dictates the lift that the blades
generate and the direction the helicopter travels.
controller moves without pilot input.
The Army investigated the crash and discovered barium
contamination in the helicopter’s servo actuators, which
assist the cyclic-control system (something akin to power
introduced into the helicopter’s hydraulic system by way
simply “6083,” that was used during the refurbishment and
Barium residue from that fluid had
previously been suspected of causing poppet-valve failure
in the Air Force’s fleet of UH-1 helicopters, and its use
was thereafter curtailed by military regulations.
the TH-67 helicopters used at Fort Rucker were exempted
maintained under civilian specifications.
Ferguson submits that the barium found in the crash
helicopter’s hydraulic system caused at least one of its
That stickiness allegedly was exacerbated by an overly
forgiving filter that permitted an excessive amount of
particulate matter to enter the helicopter’s hydraulic
system, break into smaller pieces, and ultimately wear
gouges into the metal.
Eventually, Ferguson argues, the
valve temporarily seized, forcing an abrupt uncommanded
movement of the cyclic controller.
In support of that theory, Ferguson has offered,
among other things, the deposition testimony, affidavit,
aerospace engineer with a background in flight mechanics
He investigated the crash and reached the
same conclusion as the Army’s own crash investigator: the
combination of barium and particulate matter caused the
Bell has moved, pursuant to Federal Rule of
1. The court is making its admissibility decision on
the basis of the record already before it and without a
hearing only because the parties have had an adequate
opportunity to present evidence and both parties declined
this court’s invitation to hold a hearing on the issue.
See Rudd v. Gen. Motors Corp., 127 F. Supp. 2d 1330, 1334
n.3 (M.D. Ala. 2001) (Thompson, J.) (“[T]his court will
make the [Rule 702] admissibility decisions ... on the
basis of the record already before it.”).
Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993).
“A witness who is qualified as an expert
training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical,
or other specialized knowledge will help
the trier of fact to understand the
evidence or to determine a fact in
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of
reliable principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of
The trial court must therefore serve as a gatekeeper.
Daubert, 509 U.S. at 597.
Doing so requires it to make
both a “relevance” and a “reliability” determination,
disallowing expert testimony that is either unreliable or
unhelpful to the trier of fact.
Id. at 589.
The Supreme Court has provided a non-exclusive list
of factors that may guide the trial judge’s Rule 702
decision, including whether a theory can be or has been
tested, whether it has been subjected to peer review or
acceptance within a relevant community of experts.
Those factors are not, the Supreme Court has
emphasized, a “definitive checklist” but should instead
be understood as nondispositive considerations that may
shape the trial judge’s “flexible inquiry” under Rule
Id. at 594; see also Kumho Tire Co. v. Carmichael,
526 U.S. 137, 149 (1999); United States v. Paul, 175 F.3d
906, 910–11 (11th Cir. 1999) (affirming the admission of
a handwriting expert’s testimony without specifically
applying or reviewing the Daubert factors, and explaining
necessarily nor solely applies to all experts or in every
case”). Consistent with this understanding, the advisory
amendment, while an endorsement of the Daubert conception
of the trial judge as gatekeeper, was not intended to
“codify” the specific factors it identified.
technical, engineering, or experienced-based testimony.
Daubert-style analysis should not be used to disfavor
expert testimony grounded in experience or engineering
practice, rather than in pure scientific theory:
scientific foundations, the reliability
of which will be at issue in some cases.
In other cases, the relevant reliability
knowledge or experience.... [T]here are
many different kinds of experts, and
many different kinds of expertise. Our
emphasis on the word ‘may’ [in the
question presented, whether a trial
judge may apply the Daubert factors to
nonscientific testimony] thus reflects
Daubert’s description of the Rule 702
inquiry as a flexible one.... [T]he
gatekeeping inquiry must be tied to the
facts of a particular case.”
526 U.S. at 150 (internal citations and quotation marks
To that end, Rule 702’s advisory committee
intended to suggest that experience alone--or experience
in conjunction with other knowledge, skill, training or
education--may not provide a sufficient foundation for
In sum, Rule 702 makes clear that this court is
obliged to screen expert testimony to ensure that it
stems from both a sufficient factual basis and a reliable
methodology appropriately applied to those facts.
doing so, however, the trial judge must avoid usurping
the role of the trier of fact:
“[The revised rule] is not intended to
authorize a trial court to exclude an
expert’s testimony on the ground that
the court believes one version of the
facts and not the other.... [T]he
rejection of expert testimony is the
exception rather than the rule. Daubert
did not work a seachange over federal
evidence law, and the trial court’s role
as gatekeeper is not intended to serve
as a replacement for the adversary
presentation of contrary evidence, and
careful instruction on the burden of
appropriate means of attacking shaky but
amendment (internal citations and quotations omitted).
The Eleventh Circuit has distilled that obligation
into a “rigorous three-part inquiry” where the trial
court considers whether:
“(1) the expert is qualified to
testify competently regarding the matters he intends to
address; (2) the methodology by which the expert reaches
his conclusions is sufficiently reliable ...; and (3) the
expertise, to understand the evidence or to determine a
fact in issue.”
Rosenfeld v. Oceania Cruises, Inc., 654
F.3d 1190, 1193 (11th Cir. 2011) (internal quotation
The burden is on the proponent of expert
testimony to establish that those requirements have been
met by a preponderance of the evidence.
Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010).
Bell challenges Cochran’s testimony on two grounds.
First, it argues that he lacks the familiarity with servo
actuators necessary to testify as an expert in this case.
Second, it submits that, even if Cochran were qualified
therefore his testimony must be precluded.
addresses those assertions below.
Cochran is Qualified to Testify About Barium’s
Effect on Servo Actuators:
Ferguson must show that
Cochran is qualified to testify about the specific issue
presented in this case: whether a combination of barium
and particulate matter created a temporary sticking of
one of the crash helicopter’s servo actuators, causing an
In order to carry that
education, training, and experience, as well as to the
investigation he conducted into this and other similar
Taken as a whole, the court finds by a
preponderance of the evidence that Cochran is a qualified
expert in this case.
Cochran has the relevant education that one would
expect from an expert in this field.
He holds both a
bachelor’s and a master’s degree in Aerospace Engineering
Aerospace Engineering form the University of Texas at
This makes him well-versed in the mechanics of
flight and gives him the educational background necessary
to investigate and draw conclusions about the design and
functioning of a helicopter’s component parts.
Cochran’s education led to a career in teaching.
Aerospace Engineering at Auburn University, where he has
designed and taught courses on aerospace engineering,
dynamics of flight, helicopter dynamics and control, and
He has also taught courses on
designing and simulating hydraulic systems and conducted
actuators on the Boeing 737 as well as general research
into helicopter flight dynamics.2
In addition to his
2. Some of the facts recited above are drawn from
Bell argues that Cochran’s
affidavit “is a sham” and should be stricken. Reply in
Support of Mot. to Preclude (Doc. No. 149) at 2-11.
While this court has the authority to strike an affidavit
that contradicts previously given deposition testimony
without providing an explanation for the apparently
contradictory assertions, Lane v. Celotex Corp., 782 F.2d
1526, 1529-30 (11th Cir. 1986), doing so would be
inappropriate in this case.
contained in an affidavit does not justify a district
court’s refusal to give credence to such evidence.” Id.
at 1530 (internal quotation marks omitted).
case, most of the apparent discrepancies are not actually
irreconcilable and therefore the deposition and the
affidavit are not “inherently inconsistent.” Id. Where
contradictions do exist, the court finds that they were
more likely than not the result of unclear questioning
during the deposition (i.e., instances where Cochran
apparently believed that he was being asked about the
specific servo actuator at issue in this case, while the
questioner intended to ask a more general question) and
were not due to an attempt by Cochran to help Ferguson
avoid summary judgment by offering an untrue sworn
affidavit. The court therefore declines to strike the
affidavit and will instead let the jury determine
academic and teaching pursuits, Cochran is a licensed
professional engineer in the State of Alabama.
Cochran’s extensive background in the mechanics and
dynamics of helicopter flight has qualified him as an
expert in numerous helicopter-crash cases, some of which
also involved Bell helicopters.
One such case focused on
the hydraulic controls of a Bell 206 helicopter (the
civilian equivalent of the TH-67 helicopter at issue
here) and their impact on helicopter flight.
involved a close examination of the servo actuators in a
Bell OH-58 helicopter, while yet another dealt with a
“hard over” apparently caused by a malfunctioning servo
actuator in a Sikorsky UH-60 helicopter.3
See id. (noting that it is
typically the jury’s responsibility to “resolv[e]
questions of credibility”).
3. The parties debate whether the UH-60 uses an
electric or a hydraulic servo actuator. The court sees
no reason to resolve that factual dispute at this time.
In anticipation of his work on this case, Cochran
conducted extensive research into the potential effects
of barium and particulate matter on servo actuators.
reviewed the available academic literature, investigated
the servo actuator allegedly responsible for the crash,
actuators and the accident.
That investigation enabled
Cochran to apply his general expertise in the area of
helicopter mechanics and flight to the specific issues
raised in this case.
The court finds that Cochran has extensive knowledge
of aerodynamics, servo actuators, and helicopter flight.
Moreover, he has spent considerable time applying that
knowledge to the particular issue in this case: whether
barium deposits and particulate contamination of a TH67’s
movement allegedly experienced by Ferguson just prior to
The court therefore easily concludes that he
has sufficient knowledge, skill, experience, training,
and education to be qualified as an expert in this case.
For its part, Bell makes two main arguments, each of
Cochran is a qualified expert in this case.
submits that Cochran is unqualified to testify as an
expert because he has not done any independent laboratory
testing of hydraulic-servo actuators.
testing is not the sin quo non of expertise, see Hudgens
v. Bell Helicopters/Textron, 328 F.3d 1329, 1342-44 (11th
Cir. 2003) (permitting reliance on tests conducted by
others, but finding error in the misapplication of those
tests to the helicopter crash at issue); see also Hodges
v. Mack Trucks Inc., 474 F.3d 188, 194-95 (5th Cir. 2006)
(affirming district court’s qualification of an expert
who had not personally tested the allegedly defective
testimony, sufficient knowledge of the subject matter can
come from a variety of sources.
Here, Cochran is relying
on his own substantial experience in the field as well as
investigations conducted by others that he thoroughly
reviewed.4 That Cochran failed to test the servo actuator
qualifications to opine about the potential for barium
and particulate matter to cause one to malfunction, and
any question about whether he appropriately applied the
relevant data in reaching his conclusions goes to the
reliability of his testimony (which the court addresses
below), not to his expertise.
Bell next contends that Cochran cannot be qualified
4. This distinguishes United States v. Paul, 175
F.3d 906, 912 (11th Cir. 1999), on which Bell heavily
relies, since the proposed expert in that case lacked a
background in the subject matter (handwriting analysis)
and was therefore no more qualified “than a lay person
who read ... articles [on the topic].”
discussed above, Cochran has the necessary background to
understand and apply the relevant literature in a way
that a lay person does not.
The general premise underlying this assertion
lacks merit: car mechanics often testify to the cause of
engine failure, even when they did not design the failed
component, see, e.g., Salter v. Westra, 904 F.2d 1517,
1520 (11th Cir. 1990), and gun experts can testify to
rifle mechanics and design, even when they had no role in
developing the parts at issue, see, e.g., Peterka v.
McNeil, 532 F.3d 1199, 1202 (11th Cir. 2008).
true in this particular case.
Nor is it
Here, Cochran will not be
testifying to the design process, but rather to the
potential effects of barium and particulate matter on a
servo actuator’s moving parts.
Therefore, he need not be
an expert on precisely how and why the TH-67’s servo
actuators take the form that they do; he need only be
able to testify to whether the purported contaminants
could have caused a malfunction.
Cochran possesses the
relevant knowledge, skill, education, and training to
make such a determination, and therefore his lack of
design experience does not preclude him from testifying.
hydraulic system might be a more convincing expert is not
enough to prevent Cochran from being qualified to testify
onerous (if not insurmountable) burden of identifying
(and then, presumably, competing for) the most qualified
person in the field, rather than simply choosing from
among the many adequate experts readily available.5
Reliable Scientific Evidence Supports Ferguson’s
considerable leeway in deciding in a particular case how
testimony is reliable.”
Kumho Tire, 526 U.S. at 141,
Indeed, a district court may even decide that
5. Bell’s remaining arguments on this issue range
from the factually inaccurate (its assertion that Cochran
claims to have done no analysis of hydraulic-servo
actuators) to the irrelevant (its assertion that Cochran
has never handled a fully assembled TH-67 servo
Because each argument fails to undermine
Cochran’s qualification as an expert in this case, the
court finds no need to address them seriatim.
nonscientific expert testimony (like that of an engineer)
is reliable based solely “‘upon personal knowledge or
Am. Gen. Life Ins. Co. v. Schoenthal
(quoting Kumho Tire, 526 U.S. at 150).
While this is
undoubtedly a close case, the court finds that Ferguson
has met his burden of establishing the reliability of
Cochran’s proposed testimony. That proposed testimony is
grounded in published peer-reviewed research and the
conclusions that he reaches are consistent with those of
the Army’s own internal investigation of the crash.
movement allegedly experienced by Ferguson was caused by
“transient ‘sticking’ of one of the spools in the control
valves of the lateral main rotor cyclic control servo
actuators of the accident helicopter.”
Report (Doc. No. 144, exh. A-2) at 4.
he submits, occurred because of (1) “the presence of
hydraulic fluid” and (2) “the presence of particulate
contamination in the hydraulic fluid.”6
Id. at 5.
of those potential contributing causes find support in
the academic literature and other reliable evidence that
Cochran relied on in reaching this conclusion.
The key peer-reviewed study that Cochran relies on
was written by Shashi K. Sharma and is entitled “Rust
Aircraft Hydraulic Systems.” That paper investigated the
link between valve failure in the servo actuators of the
It found that the failed poppet
valves--but not those in working condition--had a sticky
film on their surface that, upon investigation, turned
out to be barium deposits left behind when the 6083 fluid
was flushed from the hydraulic system.
The Sharma Study
6. Non-principal contributing factors allegedly
include the frequent use of this helicopter in
hover-flight conditions and feedback forces from the main
also explained an ongoing investigation tending to show
that barium attracts particulate matter, which attaches
to the sticky film.7
In the end, the study found “very
persuasive” evidence that sticky barium in the servo
“contamination of the operational hydraulic fluid with
the preservative fluid containing [barium] has resulted
It further suggested that stuck valves can
be eliminated by minimizing the amount of “preservative
fluid in the aircraft hydraulic system.”
reviewed that study while trying to identify the cause of
Ferguson’s helicopter crash.
He also conducted numerous
helicopter and nearly a dozen other TH-67 helicopters
7. Another peer-reviewed study Cochran relied on,
Hydraulic Valve Problems Caused by Oil Oxidation Products
by Akira Sasaki, concludes that particulate matter can
cause valve failure in spool-and-sleeve valves.
that had experienced uncommanded-cyclic movements while
in use at Fort Rucker.
He discovered that the servo
components “exhibited a very sticky feel,” Minor Dep.
(Doc. No. 165-12) at 36:8-22, and, when the o-rings from
those actuators were removed, he found a sticky sheen on
their surfaces that had “white particulates stuck to it,”
Id. at 53:1-2.
Further analysis showed that the crash
count[s,] especially in the 5-10 and 10-25 micron range.”
Minor Report (Doc. No. 165-11) at 3.8
As the servo
actuators moved, those particles “gouged the surfaces of
the spool and sleeve resulting in trench-like features
parallel to the direction of motion.”
Id. at 9.
According to Minor, “All of the evidence observed
suggested that [barium] had precipitated out of the 6083
fluid and formed on the outside surfaces of the spools
8. The court makes no evidentiary ruling on the
admissibility of this report and references it only as an
example of the reliable evidence Cochran used to reach
his conclusions about the cause of the accident.
and the inside surfaces of the sleeves [of the servo
Id. at 7.
His crash report and deposition
literature and the tests he conducted, the presence of
barium and excessive particulate matter in the servo
actuators caused the crash.
Cochran, himself a trained engineer, reviewed Minor’s
study and the related academic literature and likewise
concluded that the combination of barium and particulate
actuators caused the accident.
The evidence that he
relied on in reaching that conclusion
(a combination of
peer-reviewed articles and experimentation conducted by
consistent with engineering principles.
Moreover, it is
court’s gatekeeping function is best served by admitting
Bell points out that Cochran did not conduct any
tests of the crash helicopter’s servo actuators and he
relies heavily on studies conducted by others.
testimony: It only requires that this court focus more
intently on “the basic methodology employed to reach the
Kilpatrick, 613 F.3d at 1336-37.
case, it would be technically difficult and prohibitively
expensive for Cochran to have recreated in a laboratory
the conditions leading to the accident.9
9. See, e.g., Maiz v. Virani, 253 F.3d 641, 665-66
(11th Cir. 2001) (rejecting defendant’s argument that
expert’s testimony was unreliable because expert adopted
a theory “that was essentially unverifiable”); Abrams v.
Ciba Specialty Chems. Corp., 2010 WL 779276, at *7 n.13
(S.D. Ala. Mar. 2, 2010) (Steele, C.J.) (“And to the
extent that Dr. Scates’ opinions are derived from
literature review, witness interviews and data analysis,
they are not automatically rendered unreliable by their
non-susceptibility to empirical verification.”); Tiller
v. Ford Motor Co., 2006 WL 166530, at *10 (M.D. Fla. Jan.
21, 2006) (Corrigan, J.) (finding that, even though it
“would be next to impossible” to test the expert’s
theory, “his extensive training and experience renders
his opinion reliable”); McMickens v. Volkswagen of Am.,
Inc., 2003 WL 25682172, at *4 (S.D. Ala. Feb. 21, 2003)
established the underlying premises for his conclusions
conclusions about the cause of the accident.
those sources are methodologically sound and because
Cochran applied them to his work in a manner consistent
with engineering principles, the fact that he did not
conduct the testing himself does not preclude him from
testifying in this case.
Bell also asserts that the Sharma Study, because it
dealt with poppet valves, rather than spool-and-sleeve
valves, cannot support Cochran’s conclusions.
most cases, objections to the inadequacies of a study are
more appropriately considered an objection going to the
weight of the evidence rather than its admissibility.”
Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1188 (9th Cir.
(Butler, J.) (rejecting plaintiff’s argument that, since
the air bag was lost and it was therefore “impossible to
test the reliability of” the proposed expert testimony,
the testimony was unreliable).
2002); see also Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK
Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003) (noting that,
typically the “failure to include variables will affect
(internal quotation marks omitted)).
Both Minor and
Study--which found that barium is sticky and can effect
valve functioning--applies to spool-and-sleeve valves.
The court agrees:
Barium’s stickiness is in no way
dependent on the type of valve it is stuck to.
the ample evidence that its presence in spool-and-sleeve
Minor’s testing-backed conclusion that the presence of
barium in the crash helicopter’s servo actuators was a
contributing cause of the crash, is a sufficient basis
for Cochran to reliably identify barium as a cause of the
It will be up to a jury to decide whether
Cochran’s testimony is entitled to less weight because it
relies in part on studies of poppet valves, rather than
preclude John Cochran as an expert witness (doc. no. 132)
DONE, this the 28th day of March, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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