Dudley Flying Service Inc v. Ag Air Maintenance Services Inc

Filing 71

ORDER granting in part and denying in part and taking under advisement 50 Motion in Limine. Signed by Judge Kristine G. Baker on 4/17/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
DUDLEY FLYING SERVICE, INC.
v.

PLAINTIFF

Case No. 3:13-cv-00156-KGB

AG AIR MAINTENANCE SERVICES, INC.

DEFENDANT

ORDER
Plaintiff Dudley Flying Service, Inc. (“Dudley”), brings this action against defendant Ag
Air Maintenance Services, Inc. (“Ag Air”), alleging claims of negligence; violations of the
Arkansas Deceptive Trade Practices Act (“ADTPA”), Ark. Code Ann. § 4-88-107; and a claim
for punitive damages (Dkt. No. 26). Trial is set for the week of April 20, 2015.
The Court held a pretrial hearing in this matter on Monday, April 13, 2015. Counsel for
Dudley and counsel for Ag Air were present. The Court heard argument from counsel on
Dudley’s amended motion in limine (Dkt. No. 50); Dudley’s motion for reconsideration (Dkt.
No. 56); Dudley’s objections to Ag Air’s pretrial disclosures (Dkt. No. 51); and Ag Air’s
objections to Dudley’s deposition designations, along with Dudley’s objections to Ag Air’s
deposition cross-designations (Dkt. Nos. 46, 47, 48, 49, 59, 60, 61, 62, 63, 64, 65). Counsel
raised additional issues for this Court’s consideration at the pretrial hearing. For reasons stated
on the record and in this Order, the Court rules as follows.
I.

Amended Motion In Limine

The Court grants in part, denies in part, and takes under advisement in part Dudley’s
amended motion in limine (Dkt. No. 50). As to those matters about which the Court grants an in
limine motion, all parties, their counsel, and witnesses are directed to refrain from making any
mention through interrogation, voir dire examination, opening statement, arguments or

otherwise, either directly or indirectly, concerning the matters about which the Court grants an in
limine motion, without first approaching the bench and obtaining a ruling from the Court outside
the presence of all prospective jurors and the jurors ultimately selected to try this case. Further,
all counsel are required to communicate this Court’s rulings to their clients and witnesses who
may be called to testify in this matter.
1.

Dudley moves in limine to exclude any testimony, evidence, and argument that

the manufacturer of the engine at issue in this litigation, Pratt and Whitney Canada (“PWC”), is
at fault. As an initial matter, the Court rejects Dudley’s argument that, as a matter of law, the
agreement Bruce Benthien signed with PWC for a Limited Cost Overhaul of Dudley’s engine
does not constitute a settlement. The case cited by Dudley in support of this proposition,
Williams v. Davis, 659 S.W.2d 514, 515 (Ark. Ct. App. 1983), is distinguishable from the case at
bar. In Williams, there was no written document memorializing any agreement. Here, there is a
written agreement executed by Mr. Benthien and that agreement includes a release.
Under Arkansas law, settlement agreements are treated as contracts. See Williams, 659
S.W.2d at 515. “[T]he first rule of interpretation of a contract is to give to the language
employed the meaning which the parties intended.” First Nat’l Bank of Crossett v. Griffin, 832
S.W.2d 816, 819 (Ark. 1992). “When contracting parties express their intention in a written
instrument in clear and unambiguous language, it is our duty to construe the written agreement
according to the plain meaning of the language employed.” C. & A. Constr. Co. v. Benning
Constr. Co., 509 S.W.2d 302, 303 (Ark. 1974). Based on the language of the agreement, the
Court cannot state, as a matter of law, that the agreement was not intended as a settlement
agreement (Dkt. No. 50-1).

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The agreement at the top states in bold letters that are underlined, “FOR SETTLEMENT
PURPOSES ONLY.” The agreement itself recites in pertinent part:
For this engine event [August 10, 2010], the Pratt & Whitney Canada
Corp. (“P&WC”) Investigation Report has determined that the PT Blade fracture
was initiated in fatigue at a TSN of 4995 hours. The cause of the fatigue was
found to be related to material embrittlement originating from the presence of thin
lead rich layer. It is important to mention that the source of the contaminant
remains unknown and a quality investigation will be made to determine its origin.
Unfortunately, since that no overhaul was perform on this engine, the PT Blade
set was not NDT inspected and therefore the opportunity to capture the facture
initiation was missed.
However, in the interest of good business relationship and without any
acknowledgment of liability on P&WC’s part and is not renegotiable in whole or
in part after acceptance, P&WC would like to offer Dudley Flying Services a
commercial support concession to overhaul the engine S/N RD0028 to a
serviceable condition in the same line of what is defined in the terms and
conditions stated in the Extended Engine Service Policy (EESP) – Limited Cost
Overhaul (LCO).
...
The parties agree that this commercial support offer is made in full and
final settlement of any and all claims regarding the subject event and that it is
made on the express condition that it shall at all times, before and after
acceptance, remain confidential between P&WC, Covington, AG Air
Maintenance Service and Dudley Flying Services who agree not to disclose it to
any third party, without the express prior written approval of the other parties.
...
This offer is valid for 15 days and is conditional upon the work being
performed during this shop visit at Covington Aircraft or any other P&WC shop
where P&WC will apply all the credit discount on new parts. By signing and
returning this offer, Dudley Flying Services, acknowledges having read and
understood the offer.
(Dkt. No. 50-1, at 1-3). Mr. Benthien executed this agreement on behalf of Dudley.
Further, at this point in the proceeding, this Court cannot conclude that PWC is not a
potentially liable joint tortfeasor. Ag Air’s expert witness Dr. Arun Kumar offered the following
opinion, along with several other opinions, in his report disclosed in this matter:
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The surface of the S/N 26 blade contains a high amount of lead (Pb) which
was also present in the fatigue crack origin areas and had smeared all over the
fracture surface during the crack propagation process. This lead is a residue
left from the manufacturing process of the blade by Pratt & Whitney that
caused liquid metal embrittlement cracks that became the fatigue crack
origins. Therefore, blade S/N 26 failed due to a manufacturing defect.
(Dkt. No. 37-14).
For these reasons, this Court cannot conclude that the agreement was not intended as a
settlement agreement of a potentially liable joint tortfeasor. The Court determines that this is a
circumstance in which the Court may exercise its discretion to admit evidence as to the
settlement and the amount of the settlement, depending on the proof at trial. See Howard W.
Brill & Christian H. Brill, Arkansas Law of Damages § 7.5 (5th ed. 2014) (citing St. Vincent
Infirmary Medical Center v. Shelton, 425 S.W.3d 761, 769 (Ark. 2013) (Hart, J., dissenting),
superseded by statute, 2013 Ark. Acts 1116, as recognized by J-McDaniel Const. Co. v. Dale E.
Peters Plumbing Ltd., 436 S.W.3d 458 (Ark. 2014); Ark. Kraft Corp. v. Johnson, 519 S.W.2d 74
(Ark. 1975)). In doing so, the Court acknowledges that the general approach is for the settlement
not to be introduced into evidence at trial because doing so informs the jury that one defendant,
or in this case a potentially liable joint tortfeasor, has admitted liability and might permit the jury
to use the amount of the settlement as compensation for the injuries. Brill, supra. Generally, the
preferable approach is for the court to credit the compromise payment upon the final judgment,
but that is difficult to do here given the anticipated evidence, the disputed issues of fact regarding
proximate cause, and the damages Dudley has represented it seeks.
If Ag Air seeks and is permitted by this Court to inform the jury of both the fact and
amount of the settlement, Ag Air does so at its own peril in regard to seeking later a credit or
offset from a judgment in favor of Dudley, should the jury render a verdict in Dudley’s favor.
See Ark. Kraft Corp., 519 S.W.2d at 78-79; Giem v. Williams, 222 S.W.2d 800, 804-05 (Ark.
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1949). See also Sloan v. Motorists Mut. Ins. Co., 368 F.3d 853, 855 (8th Cir. 2004) (discussing
Ark. Kraft Corp.and Giem).
Even if the agreement between Dudley, as executed by Mr. Benthien, and PWC is a
collateral source, as Dudley suggests, the Arkansas Supreme Court has recognized in the context
of personal injury that a collateral source of recovery may be introduced (1) to rebut the
plaintiff’s testimony that he or she was compelled by financial necessity to return to work
prematurely or to forego additional medical; (2) to show that the plaintiff had attributed his
condition to some other cause, such as sickness; (3) to impeach the plaintiff’s testimony that he
or she had paid his medical expenses himself; (4) to show that the plaintiff had actually
continued to work instead of being out of work, as claimed. Montgomery Ward & Co. v.
Anderson, 976 S.W.2d 382, 384-85 (Ark. 1998) (citing Evans v. Wilson, 650 S.W.2d 569, 570
(Ark. 1983)). The Court determines the reasoning behind one or more of these exceptions may
be applicable here, depending on the proof at trial, thereby making even collateral source
evidence admissible.
For these reasons, the Court denies Dudley’s motion in limine. The Court will rule on
contemporaneous objections to this evidence at trial.
2.

Dudley moves in limine to exclude any claim for credit or reduction in damages

related to Dudley’s purchase of a Limited Cost Overhaul from PWC. For the reasons set out in
regard to Point 1 above, the Court denies Dudley’s motion in limine. The Court will rule on
contemporaneous objections to this evidence at trial.
3.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

matter. Dudley seeks to exclude that any portion of the damages sought has been, or will be,
paid by any collateral source.

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4.

Dudley moves in limine to exclude the agreement between Dudley, as executed

by Mr. Benthien, and PWC under Federal Rules of Evidence 402 and 403. For the reasons set
out in regard to Point 1 above, the Court denies Dudley’s motion in limine. The Court will rule
on contemporaneous objections to this evidence at trial.
5.

Dudley moves in limine to exclude any opinions in the agreement between

Dudley, as executed by Mr. Benthien, and PWC as unsupported opinions which are inadmissible
under Federal Rule of Evidence 702. Ag Air responds by stating it is unclear to what opinions
Dudley refers. The Court denies without prejudice Dudley’s motion in limine. The Court will
rule on contemporaneous objections to this evidence at trial.
6.

Dudley moves in limine to exclude that Mr. Benthien disconnected the “Hobbs”

meter, a device that records aircraft flight time, similar to a car’s odometer. The Court takes
under advisement Dudley’s hearsay objection under Federal Rule of Evidence 801. The Court
overrules Dudley’s objections under Federal Rules of Evidence 401 and 403. To the extent
appropriate, Dudley should make contemporaneous objections to this evidence at trial.
7.

Dudley moves in limine to exclude any airframe maintenance issues. Counsel for

Ag Air represents that any discussion as to airframe maintenance issues will be limited and will
relate to how well and under what circumstances Dudley acted to maintain the aircraft. The
Court denies Dudley’s motion in limine. The Court will rule on contemporaneous objections to
this evidence at trial.
8.

To the extent the parties are in agreement, the Court grants Dudley’s motion in

limine as to this matter.
9.

To the extent the parties are in agreement, the Court grants Dudley’s motion in

limine as to this matter.

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10.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

11.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

12.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

13.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

14.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

15.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

16.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

17.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

18.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

19.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

20.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

matter.

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21.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

22.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

23.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

24.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

25.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

26.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

27.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

28.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

29.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

30.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

31.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

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32.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

33.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

34.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

35.

To the extent the parties agree, Dudley’s motion in limine is granted as to this

36.

The Court denies as moot the matters raised in paragraph 36 based on Dudley’s

matter.

matter.

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withdrawal of its motion as to matters raised in paragraph 36.
37.

Dudley seeks to exclude the opinions of defense expert, Dr. Arun Kumar,

contending that these opinions are based on invalid methodology and do not satisfy the
requirements of Federal Rule of Civil Procedure 26(a)(2)(B)(I). For the reasons set out in this
Court’s Order denying Dudley’s Daubert challenge to Ag Air’s expert, Dr. Kumar, raised in its
motion for partial summary judgment (Dkt. No. 54) and for the reasons set out in this Court’s
separate Order denying Dudley’s motion for reconsideration (Dkt. No. 70), the Court denies this
motion.
38.

Dudley moves in limine to exclude any assertion concerning maintenance that

was not performed on the engine that should have been done, other than the subject Power
Turbine Blade inspection. The Court denies Dudley’s motion in limine under Federal Rules of
Evidence 401, 402, and 403.

The Court will rule on contemporaneous objections to this

evidence at trial.

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39.

Dudley moves in limine to exclude evidence that the engine was beyond the

manufacturer’s recommended time for overhaul and that the engine had not been overhauled
before the subject blade failure. The Court denies Dudley’s motion in limine under Federal
Rules of Evidence 401, 402, and 403. The Court will rule on contemporaneous objections to this
evidence at trial.
40.

Dudley moves in limine to exclude evidence that the Power Turbine (“PT”)

Section of the engine was not sent to Covington Aircraft Engines, Inc., for inspection before the
subject blade failure. The Court denies Dudley’s motion in limine under Federal Rules of
Evidence 401, 402, and 403.

The Court will rule on contemporaneous objections to this

evidence at trial.
41.

Dudley moves in limine to exclude any evidence of the manufacturer sending

Service Bulletins to Dudley or Mr. Benthien concerning the subject Power Turbine Blade
Inspection. The Court denies Dudley’s motion in limine under Federal Rules of Evidence 401,
402, and 403. The Court will rule on contemporaneous objections to this evidence at trial.
42.

Dudley moves in limine to exclude any evidence that the engine, after repair, is

more valuable than it was prior to the failure. Specifically, Dudley contends that Ag Air has no
admissible evidence to support such an opinion because such an opinion would require expert
testimony. Dudley contends such assertions, if offered by Ag Air, are generalized, not related to
the specific engine, and do not address any reduction in value because of the damage history.
The Court takes this objection under advisement. The Court will rule on contemporaneous
objections to this evidence at trial.
43.

Dudley moves in limine to exclude any expert opinion testimony by Steve Brewer

of Ag Air. Dudley contends that there was no designation by Ag Air that Mr. Brewer was an

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expert and there has been no summary disclosure of the subject matter on which he is expected
to present evidence under Federal Rule of Civil Procedure 702, 703, or 705, or the facts and
opinions to which he is expected to testify as required by Federal Rule of Civil Procedure
26(a)(2)(C). Because it is not clear what expert opinions Dudley anticipates Mr. Brewer will
offer, the Court takes this objection under advisement. The Court will rule on contemporaneous
objections to this evidence at trial.
II.

Motion For Reconsideration

At the pretrial hearing, the Court took under advisement Dudley’s motion for
reconsideration (Dkt. No. 56). Dudley sought reconsideration of the Court’s ruling on Dudley’s
Daubert challenge to Ag Air’s expert, Dr. Arun Kumar, which Dudley raised in its motion for
partial summary judgment (Dkt. No. 54). The Court denied this motion by separate Order (Dkt.
No. 70).
III.

Objections To Pretrial Disclosures

As to Dudley’s objections to Ag Air’s pretrial disclosures, the parties may inform the
Court prior to trial to the extent there remain objections that are not the subject of the Court’s
ruling on the motions in limine, motion for reconsideration, and matters addressed by this Order.
IV.

Objections To Deposition Designations

The Court has under advisement Ag Air’s objections to Dudley’s designations of portions
of deposition testimony Dudley intends to present to the jury. By separate order, the Court will
rule on objections made to the introduction of such evidence prior to such evidence being
presented to the jury.

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V.

Ability To Call A Retained Defense Expert In Plaintiff’s Case-In-Chief

Dudley identifies as a potential witness Dudley may call in its case-in-chief Ag Air’s
retained expert James Irvin. Ag Air objects. The Court grants Ag Air’s objection. Dudley may
not call Mr. Irvin in Dudley’s case-in-chief.
Generally, courts are divided as to whether a party can call the opposing party’s
designated expert as part of its case in chief. This Court prohibits Dudley from calling Mr. Irvin
as part of its case-in-chief and examining him as a hostile witness by leading questions under
Federal Rule of Evidence 611(c). See Peterson v. Willie, 81 F.3d 1033, 1037-38 (11th Cir.
1996); N5 Technologies LLC v. Capital One N.A., 93 Fed. R. Evid. Serv. 715 (E.D. Va. 2014)
(refusing to permit an opposing party to call a witness designated as an expert but not called at
trial). There has been no showing by Dudley of special circumstances so as to convince this
Court to permit Dudley to call Mr. Irvin in its case-in-chief. See, e.g., In re Homestore.com, Inc.,
No. CV 01-11115 RSWL CWX, 2011 WL 291176, *2 (C.D. Cal. 2011) (finding that defendants
did not show exceptional need to call plaintiff’s former expert because the expert did not have a
unique field of expertise and because defendant could have designated other experts to testify on
the matter); Rubel v. Eli Lilly and Co., 160 F.R.D. 458, 460 (S.D.N.Y. 1995) (same); but see
Guinn v. CRST Van Expedited, Inc., No. CIV-09-1198-D, 2011 WL 2414393, *2 (W.D. Okla.
2011) (allowing plaintiff’s former expert to testify for the defendant because the defendant could
not retain another expert without delaying the trial).
VI.

Referencing Punitive Damages

Ag Air moves in limine to exclude any testimony, evidence, or argument regarding
punitive damages until Dudley introduces sufficient evidence to make a prima facie case that
would support such an award. Dudley contends that Ag Air’s conduct in maintaining Dudley’s

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aircraft demonstrated conscious disregard for safety and indifference to the consequences of its
actions. As a result, Dudley maintains it is entitled to punitive damages under Arkansas Code
Annotated § 16-55-206 because it claims Ag Air knew, or should have known, in the light of
surrounding circumstances that its conduct would naturally and probably result in injury or
damage and continued that conduct with reckless disregard of the consequences. This Court
determined, in ruling on Dudley’s motion for partial summary judgment, that there is a factual
dispute as to causation. For this reason, the Court denied Dudley’s motion for partial summary
judgment as to punitive damages (Dkt. No. 54, at 15-16).
Now, the Court grants Ag Air’s motion in limine on referencing punitive damages. See
City Nat’l Bank of Fort Smith v. Goodwin, 783 S.W.2d 335, 339 (Ark. 1990) (determining that,
where the issue of punitive damages is erroneously submitted to the jury, together with the
defendant’s financial condition, an award of compensatory damages cannot stand); KARK-TV v.
Simon, 656 S.W.2d 702, 705 (Ark. 1983) (same).
SO ORDERED this the 17th day of April, 2015.

____________________________________
Kristine G. Baker
United States District Judge

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