WM Aviation, LLC et al v. Cessna Aircraft Company

Filing 138

ORDER: The Report and Recommendation of the Magistrate Judge 88 is adopted, confirmed, and approved in all respects and is made a part of this Order for all purposes, including appellate review, except with respect to the Magistrate Judge's determination as to whether Mr. Ginsburg's testimony would be relevant. Plaintiffs' Fed. R. Evid. 702 and Daubert Motion Regarding Cessna's Expert, Paul Ginsberg 64 is GRANTED. Mr. Ginsberg's testimony and opinions are excluded from evidence at trial. Signed by Judge Charlene Edwards Honeywell on 10/18/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WM AVIATION, LLC and TRICOR
INTERNATIONAL CORPORATION,
Plaintiffs,
v.

Case No: 6:11-cv-2005-Orl-36GJK

CESSNA AIRCRAFT COMPANY,
Defendant.

ORDER
This cause comes before the Court upon the Report and Recommendation filed by
Magistrate Judge Gregory J. Kelly on May 3, 2013.

(Doc. 88.)

In the Report and

Recommendation, Judge Kelly recommends granting the Daubert motion filed by the Plaintiffs,
WM Aviation, LLC (“WM Aviation”) and Tricor International Corporation (“Tricor”)
(collectively “Plaintiffs”), Plaintiffs’ Fed. R. Evid. 702 and Daubert Motion Regarding Cessna’s
Expert, Paul Ginsberg (Doc. 64) (“Ginsberg Daubert Motion”). On May 17, 2013, Defendant
Cessna Aircraft Company (“Cessna” or “Defendant”) filed its Objections to the Report and
Recommendation (“Objections”). (Doc. 94.) Plaintiffs filed their Opposition to Defendant’s
Objections on June 3, 2013 (“Opposition”).

(Doc. 102.)

Accordingly, the Report and

Recommendation is ripe for review.
I.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that “a party may

serve and file specific written objections to . . . proposed findings and recommendations.” Once
a timely objection to the Report and Recommendation is made, the district judge “shall make a

de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Jeffrey S. v. State
Board of Education of State of Georgia, 896 F.2d 507, 512 (11th Cir. 1990). The district judge
may accept, reject, or modify in whole or in part, the report and recommendation of the
magistrate judge. Fed. R. Civ. P. 72(b)(3). The district judge may also receive further evidence
or recommit the matter to the magistrate judge with further instructions. Id. The district judge
reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v.
Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
II.

ANALYSIS
Defendant Cessna asserts two objections to Magistrate Judge Kelly’s Report and

Recommendation: (1) the Magistrate Judge committed error in his application of the Daubert
factors; and (2) contrary to the Magistrate Judge’s recommendation, Mr. Ginberg’s testimony
would be both relevant and helpful to a jury.
As the Magistrate Judge noted in the Report and Recommendation, Rule 702 of the
Federal Rules of Evidence controls the admission of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, 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 issue; (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 case.
Fed. R. Evid. 702.
Rule 702 compels district courts to perform a “gatekeeping” function, an exacting
analysis of the foundations of expert opinions to ensure they meet the standards for admissibility
under the rule. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citations and

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quotations omitted).

This requirement is to ensure the reliability and relevancy of expert

testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176
(1999).
Thus, in determining the admissibility of expert testimony under Rule 702, courts must
engage in a rigorous three-part inquiry, determining 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 as determined by the sort of inquiry mandated in Daubert;
and (3) the testimony assists the trier of fact, through the application of scientific,
technical, or specialized expertise, to understand the evidence or to determine a
fact in issue.
Frazier, 387 F.3d at 1260 (citations omitted). “While there is inevitably some overlap among the
basic requirements – qualification, reliability, and helpfulness – they remain distinct concepts
and the courts must take care not to conflate them.” Id. It is the proponent of expert testimony
who bears “the burden to show that his expert is qualified to testify competently regarding the
matters he intended to address; the methodology by which the expert reached his conclusions is
sufficiently reliable; and the testimony assists the trier of fact.” Id. (citations and internal
quotations omitted).
The Supreme Court has stated that, in order for a trial judge to determine whether the
expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand
or determine a fact in issue, this entails “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 v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). Some factors that bear on this inquiry are:
1)

whether the expert’s theories, methods or techniques can be or have been
tested;

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2)
3)
4)

whether the technique, method, or theory has been subject to peer review
and publications;
whether the known or potential rate of error of the technique when applied
is acceptable; and
whether the technique, method, or theory has been generally accepted in
the scientific community.

Daubert, 509 U.S. at 593-94. The Supreme Court was clear, however, that this was not a
definitive or exhaustive list and was intended to be applied in a flexible manner. Id.; see also
United Fires and Casualty Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (1999). The focus is on
the scientific validity and the evidentiary relevance and reliability of the principles and
methodology underlying a proposed submission. Daubert, 509 U.S at 594-95.
A.

The Magistrate Judge’s Application of the Daubert Factors
1.

Whether the Magistrate Judge Applied the Daubert Factors in a Rigid
Manner

Cessna argues that instead of applying these factors in a flexible manner as the Supreme
Court dictated, the Magistrate Judge incorrectly applied them in a rigid manner. Obj. at 8. In
doing so, Cessna contends, the Magistrate Judge’s recommendation was based on “erroneous
facts or a clear error of judgment.” Id.
Here, Cessna mischaracterizes the Magistrate Judge’s recommendation when it stated:
“The Magistrate Judge rigidly applied the Daubert factors by summarily concluding that because
Cessna did not address any of these factors . . ., its failure to do so ‘demonstrates why Mr.
Ginsberg’s opinion is not admissible,’ . . . [and that] that would not form a basis in and of itself
to reject Mr. Ginsberg’s testimony.”

Id. at 9-10.

In fact, there were two factors that

demonstrated to the Magistrate Judge that Mr. Ginsburg’s opinion was inadmissible. See R&R
at 12. One was indeed that Cessna did not address any of the Daubert factors aside from
generally asserting that Mr. Ginsburg used peer reviewed techniques and approved scientific
techniques. Id. In addition, however, the Magistrate Judge found problematic the fact that Mr.

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Ginsburg did not opine that the right reverse thruster on the aircraft at issue (the “Aircraft”) had a
uniquely identifiable sound that could be plotted, but that the spectrogram plots created by Mr.
Ginsburg merely indicated that the sound was consistent with what he heard. Id.
Cessna must remember that the burden is on it to establish the admissibility of its
proposed expert’s opinions. Although it is true that the Daubert factors neither necessarily nor
exclusively apply to all experts in every case, the trial court may consider one or more of those
factors when doing so will help determine the reliability of an expert’s opinion or testimony.
Kumho, 526 U.S. at 141. Here, it was Cessna that referenced the Daubert factors in its response
to the Ginsburg Daubert Motion by stating, generally, that Mr. Ginsburg used peer reviewed
techniques and approved scientific techniques. Doc. 78 at 4 (“Response”). Yet, Cessna did not
provide any further information specifying what peer group reviewed the techniques, who
approved the techniques, or who deemed the techniques scientific besides Mr. Ginsburg.
Once a party has alluded to the fact that one or more of the Daubert factors has been met,
the burden is on that party to provide a basis for making that statement in order to enable the
Court to make a determination as to whether the statement is valid. Here, Cessna did not do so.
That omission, the fact that Cessna did not address any of the other Daubert factors – not even to
state why one or more of those factors did not apply to this expert’s opinion – and Mr.
Ginsburg’s failure to opine as to whether the Aircraft’s right reverse thruster had a uniquely
identifiable sound that could be plotted on the audio spectrogram together convinced the
Magistrate Judge that Cessna had failed to fulfill its burden of establishing that Mr. Ginsburg’s
opinion was admissible under Rule 702. See Kumho, 526 U.S. at 156 (emphasizing that the fact
that none of the Daubert factors indicated that the testimony was reliable, that the expert’s own
analysis revealed no countervailing factors operating in favor of admissibility that could

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outweigh those identified in Daubert, and that the parties identified no such factors in their
briefs, taken together, indicated that the expert’s testimony was unreliable); id. at 158
(concluding that it was within the trial court’s discretion to find the expert’s testimony
inadmissible when the court based its decision upon the expert’s failure to satisfy either the
Daubert factors or any other set of reasonable reliability criteria). Here, the Magistrate Judge
did not exclusively or rigidly rely on the Daubert factors in concluding that Mr. Ginsburg’s
opinion was predicated on the ipse dixit1of Mr. Ginsburg and should not be admitted. R&R at
12. Thus, Cessna’s objection here fails.
2.

Whether Mr. Ginsberg’s Testimony Satisfied Daubert

Cessna next argues that the Magistrate Judge did not articulate why he believed Mr.
Ginsburg’s testimony did not satisfy the reliability factors outlined in Daubert and failed to
consider reliable data that formed the basis of Mr. Ginsberg’s opinion. Obj. at 10. These
objections have no merit.
First, as noted above, the Magistrate Judge determined that Cessna did not address certain
Daubert factors and found Cessna’s general statement that Mr. Ginsburg satisfied other factors to
be unsupported. Next, the Court considers the data Cessna argues the Magistrate Judge failed to
consider in determining that Mr. Ginsburg’s testimony was unreliable. Cessna states that the
Magistrate Judge failed to consider: 1) that Mr. Ginsburg studied approximately 25 to 30 Cessna
Citation aircraft landings; 2) that Cessna provided Mr. Ginsburg with a test recording of
purportedly the exact landing scenario of the Aircraft that Cessna recreated using the same model
aircraft; 3) that Mr. Ginsburg determined that he heard the sound of a right reverse thruster in
this test recording, and he plotted the frequencies of this sound onto a visual aid; 4) that Mr.
1

Ipse dixit means: “He himself said it; a bare assertion resting on the authority of an individual.”
Black’s Law Dictionary (Rev. 4th Ed. 1968).

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Ginsburg studied the Aircraft’s cockpit voice recorder (“CVR”) channels; 5) that Mr. Ginsburg
matched a sound on the CVR channels that he identified as the reverse thruster that he found to
be identical to the test aircraft sample provided by Cessna; 6) that Mr. Ginsburg plotted the
frequencies of this sound from the CVR onto a visual aid and compared this plot to the test
recording plot; and 7) that Mr. Ginsburg saw that the visual frequencies of both plots matched.
Obj. at 10-11. Cessna argues that this audible matching, followed by time and frequency
analysis comparisons, are accepted standard procedures. Id. at 11.
The above passage contains a mixture of method and data. The data consists of: 1) the 25
– 30 Cessna Citation aircraft landings Mr. Ginsburg studied; 2) the test recording provided by
Cessna; and 3) the sounds from the Aircraft’s CVR channels. Mr. Ginsburg then used this data
1) to compare the sounds on the test recording to the sounds from the CVR channels (the socalled “audible matching”), and 2) to create and compare the visual frequency plots of the test
recording to those of the CVR channels (the so-called “frequency matching”).
First, Cessna’s claim that Mr. Ginsburg studied approximately 25 – 30 Cessna Citation
aircraft landings is unsupported by the record.

Mr. Ginsburg makes no mention of these

observations in either his report (Doc. 78-1) or in his deposition testimony. Cessna merely notes
in paragraph 34 of its Response to the Ginsburg Daubert Motion, without citation, that: “multiple
Cessna Citation landings were studied by Mr. Ginsburg.” Resp. ¶ 34. At the end of this
paragraph, a citation to Mr. Ginsburg’s deposition is provided. Id. This deposition passage asks:
“What information did you get from that YouTube demonstration that played any role in your
analysis in th[is] case?” See Doc. 78-5 (Ginsburg Dep. 28:6-8.) Mr. Ginsburg’s response was:
“. . . I watched and listened to a number of landings of Citations and noted the increase in sound
and characteristics of the sounds when the reverse thrusters were deployed and activated or

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powered.” Id. at 28:9-14. This deposition excerpt reveals that Mr. Ginsburg did testify that he
watched and listened to Cessna Citation aircraft landings on YouTube, but does not specify the
number of landings observed. Moreover, the Magistrate Judge did take note of Mr. Ginsburg’s
viewing of these online videos but concluded that his opinion would not be helpful to a jury in
this respect because viewing videos was “within the perception and understanding of a lay
person. (R&R at 9, 14.) The Magistrate Judge observed: “Although Defendant asserts that a
typical lay juror has no experience identifying the sound of a thrust reverser, Mr. Ginsberg
himself admitted that his knowledge of what a reverse thruster in a Cessna Citation sounds like
was gleaned from viewing and listening to online videos.” Id. at 13-14.
Second, the Magistrate Judge also considered the fact that a test recording was provided
by Cessna to Mr. Ginsburg, stating: “In formulating his expert report, Mr. Ginsburg obtained . . .
a recording of a ‘right-side reverse thruster’ tested on a different Cessna Citation aircraft . . . .”
Id. at 8. From this, the Magistrate Judge concluded: “Listening to a recording and determining
whether a particular sound can be heard is undoubtedly within the province of a lay person.” Id.
at 14.
Third, the Magistrate Judge also considered that Mr. Ginsburg listened to sounds from
the Aircraft’s CVR channels, stating: “In formulating his expert report, Mr. Ginsburg obtained
three recordings from the Aircraft’s cockpit voice recorder . . . .” Id. at 8. The Magistrate Judge
noted that: “Defendant admits that listening to the CVR allows a person to hear the pilots’
attempts to slow the aircraft by using the very thrusters they have just partially deactivated.” Id.
at 13. From this, the Magistrate Judge also concluded that: “Listening to a recording and
determining whether a particular sound can be heard is undoubtedly within the province of a lay
person.” Id. at 14.

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As far as the frequency matching “method” that Mr. Ginsburg used, the Magistrate Judge
explained that the problem with this is that it is completely based on what Mr. Ginsburg says he
identified as a right reverse thruster sound, and that determination was based on what he heard,
from both the test recording and the CVR channels. Id. at 12. There was no independent basis
for determining that the plot frequencies were both created from the sound of a right reverse
thruster apart from Mr. Ginsburg stating that that is what it was. Id. Thus, the issue is not
whether the frequency plots match, but rather whether the frequencies themselves are of a right
reverse thruster sound. Id. As for the audible matching method, the Magistrate Judge again
noted that, since Mr. Ginsburg educated himself by listening to reverse thrusters and comparing
those sounds to the sounds from the CVR, so too could a jury. Id. at 14.
3.

Whether The Magistrate Judge Improperly Weighed the Credibility of Mr.
Ginsberg’s Testimony and Relied on Inadmissible Expert Testimony

Here, Cessna argues that the Magistrate Judge erred in relying on inadmissible expert
testimony regarding the concept of “gain,” an amplification of signals that creates the volume
heard. Obj. at 12. Cessna also argues that any criticism regarding Mr. Ginsburg’s failure to
consider “gain” goes to the weight of the testimony, not to its admissibility. Id.
First, Cessna argues that the excluded testimony of the rebuttal expert, James B. Reames
(“Reames”), offered to challenge the lack of information available to Mr. Ginsburg regarding the
calibration of the microphones in the cockpit area and the “gain” when the CVR was
downloaded to another tape. Id. Cessna contends that the Magistrate Judge relied on this
inadmissible testimony to support his conclusion that Mr. Ginsberg’s testimony was unreliable.
Id. Plaintiffs correctly note that the Magistrate Judge did not refer to Mr. Reames’ opinions or
proposed testimony in the Report and Recommendation. Opp. at 14. In fact, Mr. Ginsburg
testified in his deposition that he had no information regarding the calibration of the Aircraft’s

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pilot microphones (Ginsburg Dep. 59:13-60:7) and admitted that he did check for or test the
“gain” in the microphones, “[t]he amplitude of the signal from each of the microphones”
(Ginsburg Dep. 60:8-66:19). The Magistrate Judge cited to the portions of Mr. Ginsburg’s
deposition where Mr. Ginsburg discussed calibration and “gain,” and also used the definition of
“gain” used by Mr. Ginsburg in his deposition. R&R at 9.
Second, with respect to the Magistrate Judge’s analysis, he noted, in a footnote, that Mr.
Ginsburg’s opinion that the right reverse thruster was activated depended on the volume he heard
on the right side microphone even though he had no knowledge of the gain in the microphones.
Id. at 12 n. 5. The Magistrate Judge’s main point, however, as noted above, was to challenge the
applicability of the frequency plots as they were completely based on what Mr. Ginsburg says he
heard as a right reverse thruster sound and had no independent source of identification. Id. at 12.
Thus, Cessna’s objections here have no merit.
B.

The Magistrate Judge’s Determination that Mr. Ginsberg’s Testimony Was
Neither Relevant Nor Helpful to the Jury

Cessna argues that, contrary to the Magistrate Judge’s determination, Mr. Ginsburg’s
testimony and the spectrograph plots he created purportedly showing that the reverse thruster
sound was coming from the right thruster would be relevant and helpful to a jury. Obj. at 12.
Expert testimony assists the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a fact in issue. See Frazier, 387
F.3d at 1260 (citations omitted). It must also be relevant to an issue in the case. See Daubert,
509 U.S. at 591.
Cessna contends that the Magistrate Judge was incorrect in concluding that whether the
Aircraft’s right reverse thruster was activated was not relevant to Cessna’s affirmative defense
alleging that the Aircraft’s pilots were negligent, which caused or contributed to Plaintiffs’

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alleged damages. Obj. at 13; R&R at 13. The Magistrate Judge concluded that Mr. Ginsburg’s
testimony “w[ould] not be helpful to the jury because it is not related to an issue in this case.”
R&R at 13.
Cessna alleged as an affirmative defense that the pilots “may have acted negligently in
failing to properly operate . . . the [A]ircraft . . . .” Doc. 40 at 8 (“Amended Answer”). In
Cessna’s Response to the Ginsburg Daubert Motion, it argues that “[d]ue to the crew’s lack of
familiarity with the aircraft’s systems[,] they improperly applied reverse thrust to only one
engine upon landing, which resulted in the aircraft veering off the runway.”

Resp. at 2

(emphasis omitted). Thus, clearly, if the pilots activated the right reverse thruster during landing,
this would support Cessna’s affirmative defense that the pilots were negligent and caused the
crash. Accordingly, Mr. Ginsburg’s testimony regarding whether a right reverse thruster can be
heard on the Aircraft’s CVR would be relevant to whether the right reverser thruster was
activated improperly during the landing.
Cessna also contends that Mr. Ginsburg’s testimony would be helpful to a jury because
they are not qualified to determine the issue of whether a right reverse thruster was activated
“without enlightenment from those having a specialized understanding of the subject involved in
the dispute.” Obj. at 14 (quoting the advisory committee notes from Fed. R. Evid. 702). Cessna
goes on to state that: “Mr. Ginsburg’s testimony will explain to the jury what the right reverse
thruster sounds like, how that sound is depicted on the CVR and his spectrogram will visually
help the jury to understand . . . the deployment of the right reverse thruster by the pilots while
landing the aircraft.” Obj. at 14. The problem here is that Mr. Ginsburg cannot be said to have a
specialized understanding of the sound of a right reverse thruster where his determination as to

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what constitutes that sound is based on unreliable means, as the Magistrate Judge has concluded,
a conclusion with which this Court agrees.
III.

CONCLUSION
The Court agrees with the Magistrate Judge that Defendant Cessna has failed to meet its

burden of establishing that Mr. Ginsburg’s opinion is admissible under Federal Rule of Evidence
702.

See Fed. R. Evid. 702.

Therefore, after careful consideration of the Report and

Recommendation of the Magistrate Judge, in conjunction with an independent examination of
the file, the Court is of the opinion that, except with respect to the Magistrate Judge’s
determination as to whether Mr. Ginsburg’s testimony would be relevant, the Report and
Recommendation should be adopted, confirmed, and approved.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge (Doc. 88) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review, except with respect to the Magistrate Judge’s
determination as to whether Mr. Ginsburg’s testimony would be relevant.
2. Plaintiffs’ Fed. R. Evid. 702 and Daubert Motion Regarding Cessna’s Expert, Paul
Ginsberg (Doc. 64) is GRANTED. Mr. Ginsberg’s testimony and opinions are
excluded from evidence at trial.
DONE and ORDERED in Orlando, Florida on October 18, 2013.

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Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Gregory J. Kelly

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