Crouch et al v. Teledyne Continental Motors, Inc.

Filing 314

ORDER denying 214 Motion to Strike ; granting 232 Motion in Limine; granting in part and denying in part 233 Motion ; granting 234 Motion ; striking 235 Motion ; striking 236 Motion ; striking 238 Motion ; striking 239 Motion ; granting in part and denying in part 241 Motion ; granting 242 Motion all as set out. Signed by Judge Kristi K. DuBose on 6/29/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LARRY DALE CROUCH,
RHONDA MAE CROUCH,
TEDDY LEE HUDSON, and
CAROLYN SUE HUDSON,
Plaintiffs,
v.
TELEDYNE CONTINENTAL MOTORS,
INC.,
Defendant.

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Civil Action No. 10-00072-KD-N

ORDER
This action is before the Court on the motion to exclude the supplemental expert reports of
William D. Carden, Mark Seader, James E. Hall, and Richard Wartman and to exclude Carden’s
affidavit (doc. 214); the motions to exclude all or portions of the expert testimony of Barry Schiff
(doc. 232), Richard Wartman (doc. 233), Mark Seader (doc. 234), J.W. Morris, Jr. (doc. 235),
Norman Alvares (doc. 236), John Barton (doc. 238), Robert Marwill (doc. 239), Bernard Coogan
(doc. 241), and James Hall and Robert Pierce (doc. 242); and responses. Oral argument was held on
June 27, 2011.
I.

Statement of the Applicable Law
“While Federal Rules of Evidence 401 and 402 provide for the liberal admission of relevant

evidence, Rules 403, 702, and 703 mitigate against this general policy by giving trial courts
discretion to exclude expert testimony that is either unreliable or irrelevant.” Johnson v. Louisville
Ladder, 2008 WL 5122261, 7 (S.D.Ala., November 14, 2008) (citing Allison v. McGhan Medical
Corp., 184 F.3d 1300, 1310 (11th Cir.1999). In Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th
Cir.2010), the Court of Appeals for the Eleventh Circuit explained the standard set forth in Daubert

v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), as follows:
Daubert requires that trial courts act as “gatekeepers” to ensure that speculative,
unreliable expert testimony does not reach the jury. 509 U.S. at 597, n. 13, 113 S.Ct.
2786. The trial court must “make certain that an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant
field.”[ Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143
L.Ed.2d 238 (1999)].
Federal Rule of Evidence 702 governs the admission of expert testimony in federal
court, and provides that:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Applying these principles, this Court has previously held that expert testimony may
be admitted if three requirements are met. First, the expert must be qualified to
testify competently regarding the matter he or she intends to address. Second, the
methodology used must be reliable as determined by a Daubert inquiry. Third, the
testimony must assist the trier of fact through the application of expertise to
understand the evidence or determine a fact in issue. Tuscaloosa v. Harcros
Chemicals, Inc., 158 F.3d 548, 562 (11th Cir.1998).
Kilpatrick, 613 F.3d at 1335.
When the reliability of the expert’s methodology is at issue, the Eleventh Circuit instructs
that
[i]n deciding the question of reliability, the Supreme Court articulated a nonexhaustive list of relevant factors to consider: (1) whether the expert's theory can be
and has been tested; (2) whether the theory has been subjected to peer review and
publication; (3) the known or potential rate of error of the particular scientific
technique; and (4) whether the technique is generally accepted in the scientific
community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; McCorvey, 298 F.3d at
1256. The court must do “a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.” Daubert,
509 U.S. at 593-94, 113 S.Ct. 2786.
Kilpatrick, 613 F.3d at 1335.
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“The proponent of the expert testimony bears the burden of showing, by a preponderance of
the evidence, that the testimony satisfies each prong.” Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609
F.3d 1183, 1194 (11th Cir. 2010) (citing Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care, 582
F.3d 1227, 1232 (11th Cir. 2009)).

II. Analysis
A) Teledyne Continental Motors, Inc.’s (TCM) first motion to strike and exclude
expert testimony (doc. 214). TCM moves this Court to exclude the supplemental expert rebuttal
reports by William D. Carden, Mark Seader, James E. Hall, and Richard Wartman (docs. 196-1-4)
and the corrected affidavit of William Carden (doc. 197), on the basis that Plaintiffs are estopped
and precluded from asserting an “entirely new theory” - that the magneto did not completely detach
during flight but instead intermittently reattached but without providing usable power to the engine.
TCM asserts that the supplemental reports are inconsistent with the theory of the case set forth in
Plaintiffs’ complaint and their prior expert reports. TCM also argues that the supplemental expert
reports are untimely and thus did not allow TCM a reasonable opportunity for discovery.
Upon consideration of the pleadings, the Court agrees with the Plaintiffs’ response: The
supplemental reports are not clearly inconsistent with the complaint or the earlier expert reports.
Moreover, considering the timing of the deposition of TCM’s experts, the supplementation was not
untimely. TCM’s Motion to Strike is DENIED.

B) Plaintiffs’ motion to exclude certain opinions and testimony of TCM’s proposed
expert witness, Barry Schiff (doc. 232). Plaintiffs seek to exclude Mr. Schiff’s testimony that the
use of a shoulder harness would have reduced bodily injury. Plaintiffs assert that Mr. Schiff’s
testimony is not reliable because he is not qualified to give this opinion; he is not a biomedical
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engineer or a biomechanic on injury to the human body. Plaintiffs also argue that even if qualified,
Mr. Schiff has no bases from which to render the opinion as he has not reviewed any of the medical
records.
TCM argues that Plaintiffs do not dispute Mr. Schiff’s qualifications to testify as to the
responsibility and duties of a pilot and that it is axiomatic that use of a safety harness reduces
injuries (doc. 257). As support, TCM cites Tetrick v. Frazier 119 S.W.3d 89 (Ky App. 2003). In
Tetrick the court allowed a civil engineer/accident reconstruction expert to testify that the passenger
would not have had his injuries had he been wearing a seat belt. Id. The court stated that this was
not a medical opinion, but rather was expert testimony on the passenger's motion on impact. The
court reiterated “that to qualify as an expert witness concerning the seat belt defense, ‘the witness
must possess sufficient training, special knowledge, or skill to testify on the subject dealing with the
effect of non-usage of seatbelts in collisions.’ Further, ‘what must be shown is a causal relation
between the claimant's failure to wear a seatbelt and the degree of subsequent injury.’” Id. at 93-94
(quoting Bass v. Williams, Ky.App., 839 S.W.2d 559, 566 (1992)).
Barry Schiff is an experienced pilot and a flight and safety instructor. To the extent he is
offered as an expert regarding the standard of care that a pilot should follow, he appears to be well
qualified. However, Mr. Schiff is not an engineer or accident reconstruction expert. There is no
indication that he has any special knowledge regarding the specific effect of non-usage of seatbelts
or harnesses during various types of impact. Moreover, it has not been demonstrated that Mr. Schiff
has any ability or basis to testify to the causal relation between the Plaintiffs’ failure to wear a
harness and the degree of subsequent injury sustained by the Plaintiffs. Accordingly, Plaintiffs’
motion to exclude Barry Schiff’s testimony that “it is likely that the use of shoulder harnesses in the
aircraft would have reduced the extent of bodily injury” is GRANTED.

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C) TCM’s motion to exclude opinion testimony of Plaintiffs’ designated expert
Richard Wartman (doc. 233). TCM argues that Mr. Wartman’s opinion on the engine fire and the
magneto design is not admissible because his opinions are not reliable and not based upon
scientific, technical, or other specialized knowledge. TCM also argues that Mr. Wartman’s opinion
on Plaintiffs’ failure to warn claim is not reliable or relevant.
Plaintiffs respond that Mr. Wartman is qualified by knowledge, skill, experience and
training and that his testimony will aid the jury. Mr. Wartman testified at the hearing and at his
deposition regarding his qualifications. Mr. Wartman is a mechanical engineer with a Masters
Degree in structural analysis. He has been employed in various positions with the U.S. Navy
including as a lead structural engineer and as a structural design instructor. In his work with the
Navy, Mr. Wartman has designed flanges but not magnetos. Also, for seventeen years Mr.
Wartman has worked as an aviation accident investigator.
Based on Mr. Wartman’s resume (doc. 262-1) and the testimony given at the hearing the
Court finds that Mr. Wartman is qualified to render an opinion on the cause of the accident and the
design of the magneto flange. The Court also finds that Mr. Wartman’s opinion in this regard is
based on specialized knowledge, experience and training and will assist the jury.
However, the Court does not find that Mr. Wartman is qualified to opine on whether the fire
occurred in-flight or post-crash. Neither Mr. Wartman’s resume nor his testimony at the hearing or
deposition provided any basis for Mr. Wartman to opine as to when the fire occurred. Mr. Wartman
was unable to state the cause or origin of the fire. Rather he simply stated that the soot patterns
indicate a post-crash fire. This opinion is not supported by any specialized knowledge, training or
experience in identifying when the fire occurred.
Also, the Court finds that Mr. Wartman is not qualified to give an opinion regarding TCM’s
duty to warn of defects. Mr. Wartman testified that the identified problem, the use of the wrong
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gasket and clamps in attaching the magneto housing, could be corrected by warning the mechanic to
use the correct gasket and clamp. Mr. Wartman also stated that if the correct gasket and clamp were
used then the design of the flange would be fine. This testimony appears to be based on his
qualifications and expertise. However, Mr. Wartman exhibited no specialized knowledge or
experience regarding the appropriate person to give the warning to the mechanic. Rather he
generally stated that the mechanic should be warned and that if there is a design defect, the
designer/engineer has an ethical obligation to warn of problems with the design.
Accordingly, TCM’s motion to exclude the testimony of Richard Wartman is GRANTED
as to Mr. Wartman’s testimony concerning when the fire occurred and TCM’s duty to warn and
DENIED as to Mr. Wartman’s opinion concerning the cause of the crash and any design defects of
the flange.

D) TCM’s motion to strike and exclude certain portions of the expert testimony of
Mark Seader (doc. 234). TCM argues that Mr. Seader’s opinion as to the cause of the fire, the
design defect of the flange, and the supplemental opinion regarding the partial detachment of the
magneto should be excluded on the basis that he is not qualified in fire science or design defects and
is not a metallurgist. TCM also argues that Mr. Seader did not follow reliable scientific
methodology.
Plaintiffs respond that the issue is origin of the fuel to the fire and Mr. Seader is qualified to
give an opinion on fuel flow/fuel escape. Plaintiffs also argue that Mr. Seader’s opinion as to
metals is based on his experience as a mechanic not as a metallurgist.
According to Mr. Seader’s resume and testimony, he has 34 years experience as an aviation
mechanic. He also has extensive experience as an aviation forensic investigator where he gained
specialized knowledge in analysis of aircraft accidents, engine failures and component testing. Mr.
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Seader was employed by Plaintiffs to determine “the cause of the in-flight loss of power” to the
subject airplane. (Plaintiff’s Exh. 2 to the hearing) The Court finds that Mr. Seader is qualified to
render an opinion on the cause of the accident and that such opinion is based on specialized
knowledge and experience and will assist the jury.
However, Plaintiffs also wish to introduce Mr. Seader’s opinion regarding the origin and the
timing of the fire, TCM’s duty to warn and the design defects of the flange. Plaintiffs have failed to
provide any evidence that Mr. Seader is qualified to render an opinion on design defects or the
timing of the fire. Mr. Seader is not an engineer, he has no experience or education in design, thus
he cannot opine as to design defects. Moreover, he has no education or experience in determining
cause and origins of fire, nor has he any experience in determining the timing of a fire, i.e. in-flight
or post-crash.
As to the duty to warn, Mr. Seader testified that he received and relied on a lot of service
bulletins in his capacity as an airplane mechanic. Thus, Mr. Seader is certainly qualified to testify
regarding the use of service bulletins from manufacturers by mechanics in repairing and
overhauling airplane engines. However, Mr. Seader did not exhibit any specialized knowledge or
experience regarding a manufacturer’s duty in regard to warning about defects.1
Accordingly, TCM’s motion to exclude the testimony of Mr. Seader is GRANTED as to his
opinion regarding the timing of the fire, design defects of the flange and a manufacturer’s duty to
warn.

E) Plaintiffs’ Daubert motion to limit testimony of TCM’s expert J.W. Morris, Jr.
(doc. 235). Plaintiffs argue that Mr. Morris’s testimony should be limited to metallurgy, his stated
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Mr. Seader testified that he believes that it is Lycoming’s duty to put out Service Bulletins
regarding the attaching parts.
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expertise. TCM argues that the motion should be denied because there is no citation to the record,
i.e., supporting documentation, and no specific factual or legal argument in support of the motion.
Upon consideration, the motion (doc. 235) is STRICKEN for lack of specificity as to the
objectionable portion of Mr. Morris’ testimony. Plaintiffs cite to certain deposition pages as
evidence of testimony which should be excluded but do not direct the Court to the location in the
docket where the deposition pages can be found nor do the Plaintiffs’ make any specific argument
as to why the testimony is objectionable. See Hughes v. Stryker Sales Corp., 2010 WL 1961051, 3
(S.D.Ala. 2010) (addressing a motion for summary judgment and citing Witbeck v. Embry Riddle
Aeronautical University, Inc., 219 F.R.D. 540, 547 (M.D. Fla. 2004) ("That judges have no duty to
scour the file in search of evidence is an obvious corollary to the requirement that parties
specifically identify the portions of the case file which support their assertions regarding whether
genuine issues remain for trial.").

F) Plaintiffs’ Daubert motion to limit testimony of TCM’s expert Norman Alvares
(doc. 236).
Plaintiffs argue that Mr. Alvares’ testimony should be limited to that of a fire scientist and
fire protection engineer, his stated expertise. TCM argues that the motion should be denied because
there is no citation to the record, i.e., supporting documentation, and no specific factual or legal
argument in support of the motion.
Upon consideration, the motion (doc. 236) is STRICKEN for lack of specificity as to the
objectionable portion of Mr. Alvares’ testimony. Plaintiffs cite to certain deposition pages as
evidence why the testimony should be limited but do not direct the Court to the location in the
docket where the deposition pages can be found, nor do the Plaintiffs’ make any specific argument
as to why the testimony is objectionable. See Hughes v. Stryker Sales Corp., 2010 WL 1961051, 3
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(S.D.Ala. 2010) (addressing a motion for summary judgment and citing Witbeck v. Embry Riddle
Aeronautical University, Inc., 219 F.R.D. 540, 547 (M.D. Fla. 2004) ("That judges have no duty to
scour the file in search of evidence is an obvious corollary to the requirement that parties
specifically identify the portions of the case file which support their assertions regarding whether
genuine issues remain for trial.").

G) Plaintiffs’ Daubert motion to limit testimony of TCM’s expert John Barton (doc.
238).
Plaintiffs argue that Mr. Barton’s testimony should be limited to Aerospace Engineering,
strength materials and basic material characteristics, his stated expertise. TCM argues that the
motion should be denied because there is no citation to the record, i.e., supporting documentation,
and no specific factual or legal argument in support of the motion.
Upon consideration, the motion (doc. 238) is STRICKEN for lack of specificity as to the
objectionable portion of Mr. Barton’s testimony. Plaintiffs cite to certain deposition pages as
evidence why the testimony should be limited but do not direct the Court to the location in the
docket where the deposition pages can be found, nor do the Plaintiffs’ make any specific argument
as to why the testimony is objectionable. See Hughes v. Stryker Sales Corp., 2010 WL 1961051, 3
(S.D.Ala. 2010) (addressing a motion for summary judgment and citing Witbeck v. Embry Riddle
Aeronautical University, Inc., 219 F.R.D. 540, 547 (M.D. Fla. 2004) ("That judges have no duty to
scour the file in search of evidence is an obvious corollary to the requirement that parties
specifically identify the portions of the case file which support their assertions regarding whether
genuine issues remain for trial.").

H) Plaintiffs’ Daubert motion to limit testimony of TCM’s expert Robert Douglas
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Marwill (doc. 239).
Plaintiffs argue that Mr. Marwill’s testimony should be limited to aircraft design, aircraft
propulsion and fuel systems, and crash dynamics, his stated expertise. TCM argues that the motion
should be denied because there is no citation to the record, i.e., supporting documentation, and no
specific factual or legal argument in support of the motion.
Upon consideration, the motion (doc. 239) is STRICKEN for lack of specificity as to the
objectionable portion of Mr. Marwill’s testimony. Plaintiffs cite to certain deposition pages as
evidence why the testimony should be limited but do not direct the Court to the location in the
docket where the deposition pages can be found, nor do the Plaintiffs’ make any specific argument
as to why the testimony is objectionable. See Hughes v. Stryker Sales Corp., 2010 WL 1961051, 3
(S.D.Ala. 2010) (addressing a motion for summary judgment and citing Witbeck v. Embry Riddle
Aeronautical University, Inc., 219 F.R.D. 540, 547 (M.D. Fla. 2004) ("That judges have no duty to
scour the file in search of evidence is an obvious corollary to the requirement that parties
specifically identify the portions of the case file which support their assertions regarding whether
genuine issues remain for trial.").

I) TCM’s motion to strike and exclude certain portions of expert testimony of Bernard
J. Coogan (doc. 241). TCM seeks to exclude Mr. Coogan’s testimony regarding when the fire
occurred, the purported design defect of the magneto flange and TCM’s duty to warn. TCM argues
that Mr. Coogan has no experience or education to qualify him as a fire expert and that he
performed no investigation to support his theories. As to design, TCM argues that Mr. Coogan has
no aircraft design education or training and is not an engineer.
Plaintiffs clarify that they do not offer Mr. Coogan as an expert in design. Plaintiffs argue
that they offer Mr. Coogan on fire associated with airplane crashes - whether the fire occurred in10

flight or on the ground - but not as a universal expert on fire and that he is qualified to testify to
when the fire occurred.
Bernard Coogan has over 50 years experience as a pilot and over 40 years experience as an
aviation accident investigator. Mr. Coogan has investigated over 1500 airplane crashes to
determine causation; many of these during his service during the Vietnam War. Mr. Coogan has
also specifically investigated 20-25 cases to determine whether the fire occurred in-flight or postcrash and to analyze fire damage. Mr. Coogan has no formal training in fire science and does not
purport to be a general fire expert. However, expertise is not gained from formal education alone.
Mr. Coogan’s experience with the Air Force as a fire damage analyst and his experience
determining the timing of the fire provide the necessary expertise to support his opinions. Thus, the
Court finds that Mr. Coogan is qualified to give an opinion regarding the timing of the fire and that
such opinion is supported by specialized knowledge and experience and would be helpful to the
jury.2
As to the failure to warn opinion, Plaintiff has presented insufficient argument and evidence
that Mr. Coogan is qualified to give an opinion as to a manufacturer’s duty to warn. Accordingly,
TCM’s motion to exclude Mr. Coogan’s testimony is DENIED as to his opinion regarding the
timing of the fire and GRANTED as to his testimony regarding design defect and failure to warn.

J) TCM’s motion to strike and exclude expert testimony of Robert Pearce and James
Hall (doc. 242). TCM argues that all testimony or opinion by Mr. Pearce and Mr. Hall should be
excluded because their opinions are based on review of other reports and not based upon reliable
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At the hearing, TCM attempted to challenge Mr. Coogan’s ability to give testimony on
causation. The objection is untimely. Moreover, the Court finds no merit to a challenge to Mr.
Coogan’s expertise on the issue of causation.
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technical or scientific method or personal investigation. TCM argues that neither Mr. Pearce nor
Mr. Hall are qualified to give an opinion in regard to the source or origin of the engine fire.
Plaintiffs argue that Mr. Pearce and Mr. Hall are qualified by skill, knowledge and
experience to give opinions in regard to the crash, the relevant Federal Aviation Administration
regulations, and in regard to TCM’s duty to warn.
Robert Pearce and James Hall have submitted almost identical expert reports. These reports
summarize all of the evidence that Plaintiffs expect to present to the jury and then summarily put a
stamp of approval on the Plaintiffs’ evidence. While James Hall has an impressive resume,
including being the Chairman of the National Safety Transportation Board, there is nothing in the
record to support the Plaintiffs’ argument that he is qualified to render an opinion as to causation,
timing of the fire, design defects or TCM’s duty to warn.3 Mr. Hall’s background is in law and
government relations. He apparently is well qualified in those respects and is capable of running a
large government agency. However, Mr. Hall is not an engineer or aviation mechanic. There is
also insufficient evidence of any hands on experience or training as an accident investigator.
Moreover, while it is unquestioned that he has gained familiarity with what evidence is needed to
make a determination of causation in airplane accidents, this familiarity does not equate to
expertise.
Robert Pearce was not present for the hearing because of a recently incurred physical injury.
However, from the record the Court is able to discern that Mr. Pearce has over 13 years experience
investigating aviation accidents to determine causation. Mr. Pearce is also a pilot and a flight
instructor. Thus, it appears that Mr. Pearce could be a qualified expert on the issue of causation.
The problem with Mr. Pearce’s opinion is that he has not conducted any independent investigation.
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Mr. Hall was not presented at the hearing. Thus, this determination is made solely on the
arguments presented and Mr. Hall’s resume.
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Rather, he relies primarily on the investigation of other experts and simply puts his approval on
their findings. The Court does not find that this would be helpful to the jury. The Court also finds
that to any extent Mr. Pearce’s opinion is independent of the other experts, his testimony would be
cumulative. Thus, TCM’s motion to exclude Mr. Hall’s and Mr. Pearce’s testimony is GRANTED.

DONE and ORDERED this the 29th day of June, 2011.

s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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