Service with Class Corp. v. Hawker Beechcraft Global Customer Support, LLC.

Filing 66

ORDER granting 43 Motion to Strike expert opinion ; granting in part and denying in part 44 Motion to Strike expert opinion. Signed by Judge Susan C Bucklew on 2/13/2018. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
OIL CONSULTING ENTERPRISE, INC.,
Plaintiff,
v.

Case No. 8:16-cv-3453-T-24-AEP

HAWKER BEECHCRAFT GLOBAL
CUSTOMER SUPPORT, LLC
d/b/a Hawker Beechcraft Services,
n/k/a Textron Aviation, Inc.,
Defendant.
_____________________________/
ORDER
This cause comes before the Court on two motions: (1) Defendant’s Motion to Exclude
the Opinions of Plaintiff’s Expert, William Boege, III (Doc. No. 43), which Plaintiff opposes
(Doc. No. 56); and (2) Plaintiff’s Motion to Strike Defendant’s Expert, Douglas Stimpson (Doc.
No. 44), which Defendant opposes (Doc. No. 53). The Court held a hearing on these motions on
February 7, 2018. As explained below, the motions are granted in part and denied in part.
I. Background
In December of 2014, Plaintiff Oil Consulting Enterprise, Inc. contracted with Defendant
Hawker Beechcraft Global Customer Support, LLC to perform a Phase I–IV pre-purchase
inspection on a King Air 350 aircraft at Defendant’s Tampa facility (“First Inspection”). (Doc.
No. 46-2). During the First Inspection, no major corrosion damage was discovered.
On January 7, 2016, the aircraft was taken to the Cessna Service Center in San Antonio,
Texas for a pre-purchase inspection (“Second Inspection”). During the Second Inspection,
significant corrosion was discovered.

Plaintiff contends that the extensive corrosion that was discovered during the Second
Inspection must have existed during the First Inspection. As a result, on November 23, 2016,
Plaintiff filed suit against Defendant in state court, and Defendant later removed the case to this
Court. In its amended complaint, Plaintiff alleges that Defendant breached their contract to
conduct the First Inspection and that Defendant negligently performed the First Inspection by
failing to discover the extensive corrosion on the aircraft. (Doc. No. 18).
Pending before the Court are two Daubert motions. The Court will address each motion
in turn.
II. Daubert Analysis
Federal Rule of Evidence 702 provides the following:
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.
F.R.E. 702. Rule 702 requires the district court to perform a gatekeeping function for expert
testimony. See U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). As explained by the
Frazier court:
This [gatekeeping] function “inherently require[s] the trial court to
conduct an exacting analysis” of the foundations of expert opinions
to ensure they meet the standards for admissibility under Rule 702.
The importance of Daubert's gatekeeping requirement cannot be
overstated. As the Supreme Court framed it in Kumho Tire: “[T]he
objective of that requirement is to ensure the reliability and relevancy
of expert testimony. It is to 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
2

characterizes the practice of an expert in the relevant field.” The
district court's role is especially significant since the expert's opinion
“can be both powerful and quite misleading because of the difficulty
in evaluating it.”
Id. (citations omitted). With this in mind, the Court addresses the parties’ motions.
III. Plaintiff’s Expert, William Boege, III
Defendant moves to exclude the opinions of Plaintiff’s expert, William Boege, to the
extent that he opines about corrosion rates or when any corrosion first presented itself on the
aircraft. Boege has an A&P (airframe and power plant) certification, as well as an FAA
inspection authorization. (Doc. No. 59, depo. p. 8, 11). Boege is not an expert is metallurgy or
corrosion. (Doc. No. 59, depo. p. 23). However, within the A&P curriculum, he spent about a
month learning about corrosion control. (Doc. No. 59, depo. p. 44). He has no particular
education regarding the rate of corrosion, and his knowledge on that subject comes from his
experience as a mechanic inspecting aircrafts. (Doc. No. 59, depo. p. 44). Boege’s opinions are
based on his experience as a mechanic and inspector. (Doc . No. 59, depo. p. 46–47).
Boege proffers three opinions in his expert report: (1) Defendant failed to properly
inspect the aircraft during the First Inspection; (2) Defendant failed to follow the inspection
protocols set forth by the aircraft’s manufacturer; and (3) the corrosion that was discovered
during the Second Inspection was pervasive and would have been discovered if the Maintenance
Manual and manufacturer’s protocols had been followed by Defendant during the First
Inspection. (Doc. No. 43-1). During his deposition, Boege went through the invoice of work
performed during the Second Inspection and attempted to explain why he believed some of the
issues present at the Second Inspection would have been present during the First Inspection.
(Doc. No. 59, depo. p. 93–126).
3

Defendant’s motion targets a portion of Boege’s third opinion—that the corrosion that
was discovered during the Second Inspection was so pervasive that it must have existed during
the First Inspection. Defendant challenges Boege’s qualifications to offer an expert opinion as to
the rate of corrosion and when the corrosion began. Defendant also argues that Boege’s opinion
is not the product of reliable principles and methods.
When considering the qualifications and methodology of an expert, the court must be
mindful of the following:
[E]xperts may be qualified in various ways. While scientific training
or education may provide possible means to qualify, experience in a
field may offer another path to expert status. In fact, the plain
language of Rule 702 makes this clear: expert status may be based on
“knowledge, skill, experience, training, or education.” The
Committee Note to the 2000 Amendments of Rule 702 also explains
that “[n]othing in this amendment is intended to suggest that
experience alone . . . may not provide a sufficient foundation for
expert testimony.”
Of course, the unremarkable observation that an expert may be
qualified by experience does not mean that experience, standing
alone, is a sufficient foundation rendering reliable any conceivable
opinion the expert may express. [Instead,] “while an expert's
overwhelming qualifications may bear on the reliability of his
proffered testimony, they are by no means a guarantor of reliability.
. . . [O]ne may be considered an expert but still offer unreliable
testimony.” Quite simply, under Rule 702, the reliability criterion
remains a discrete, independent, and important requirement for
admissibility.
Indeed, the Committee Note to the 2000 Amendments of Rule 702
expressly says that, “[i]f the witness is relying solely or primarily on
experience, then the witness must explain how that experience leads
to the conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied to the
facts. The trial court's gatekeeping function requires more than
simply ‘taking the expert's word for it.’” If admissibility could be
established merely by the ipse dixit of an admittedly qualified expert,
the reliability prong would be, for all practical purposes, subsumed
4

by the qualification prong.
Thus, it remains a basic foundation for admissibility that “[p]roposed
[expert] testimony must be supported by appropriate validation—i.e.,
‘good grounds,’ based on what is known.” As the Supreme Court put
it, “the Rules of Evidence—especially Rule 702—. . . assign to the
trial judge the task of ensuring that an expert's testimony . . . rests on
a reliable foundation.”
*
*
*
Exactly how reliability is evaluated may vary from case to case, but
what remains constant is the requirement that the trial judge evaluate
the reliability of the testimony before allowing its admission at trial.
Id. at 1260–62 (internal citations omitted).
The Court agrees with Defendant that Boege is not qualified to give an opinion as to the
rate of corrosion and when the corrosion began. Boege’s expertise with respect to corrosion is
that he is qualified by experience to identify existing corrosion and to correct corrosion by
neutralizing it. Such experience does not make him an expert in rates of corrosion and/or
determining when corrosion began.
Likewise, the Court agrees with Defendant that Boege did not use a reliable method in
reaching his conclusion that the corrosion that was found during the Second Inspection must
have existed during the First Inspection simply because the corrosion found during the Second
Inspection was pervasive. Boege cites to no materials or authorities on the subject of corrosion
to support his opinion that pervasive corrosion cannot occur within a year. Given his lack of
qualifications to render the opinion and lack of a reliable foundation for the opinion, the Court
agrees that Boege cannot opine that the corrosion that was discovered during the Second
Inspection was so pervasive that it must have existed during the First Inspection. To this extent,
Defendant’s motion to exclude Boege’s opinion is granted.
5

IV. Defendant’s Expert, Douglas Stimpson
Plaintiff moves the Court to strike all of the opinions of Defendant’s expert, Douglas
Stimpson. Plaintiff does not challenge Stimpson’s qualifications; instead, Plaintiff argues that
Stimpson did not use a reliable method in reaching his conclusions and that his opinions will not
help the jury.
Stimpson is an Aviation Safety Investigator and Accident Reconstructionist for airplanes
and helicopters. Stimpson asserts five opinions in his expert report. However, as to the
following four opinions, the Court rejects Plaintiff’s arguments that Stimpson did not use a
reliable method in reaching his conclusions and that his opinions will not help the jury: (1) the
aircraft was inspected by both facilities using the same criteria, and the criteria they used was in
accordance with the manufacturer’s inspection criteria; (2) Defendant inspected the aft toilet area
during the First Inspection, relief tube blockage was found and repaired, and then the area was
inspected again (consisting of a total inspection of this area by three different technicians
overseen by three different inspectors); (3) the Second Inspection found corrosion in the same
areas in which the First Inspection did not report any corrosion; and (4) it is not uncommon for
corrosion to be found between inspections when the aircraft is operated in a high salt-laden
environment.
Stimpson’s methodology for arriving at the first three of those conclusions consisted of
reviewing and interpreting the documentation of the work performed during the First Inspection
and Second Inspection. Such opinions will be helpful to the jury, who likely will not be able to
understand the documentation of the work performed without the aid of expert testimony.
Stimpson’s fourth opinion listed above—that it is not uncommon for corrosion to be

6

found between inspections when the aircraft is operated in a high salt-laden environment—is
based on his experience and education. This opinion will also be helpful to the jury, as aircraft
corrosion is not something commonly understood by lay persons.
However, Stimpson’s fifth opinion—that the corrosion discovered during the Second
Inspection was not present during the First Inspection—is flawed. The Court agrees with
Plaintiff that Stimpson did not use a reliable method in reaching this opinion.
Defendant contends that Stimpson used a reliable method for the fifth opinion, which
consists of the following: The FAA allows pilots and others to rely on the accuracy of the
inspection records at issue in the First Inspection. The next step is to determine if there is any
reason not to rely on the records. Since there is evidence that at least some corrosion inspection
and repair occurred during the First Inspection, such provides a basis for relying on the
inspection records for the First Inspection. The inspection records from the First Inspection
indicate that a corrosion inspection was conducted (due to the inspectors and supervisors
checking off the boxes to indicate that the work was performed) and that all corrosion that was
found was repaired. Therefore, based on the inspection records from the First Inspection,
Stimpson concludes that there was no corrosion that existed that was not repaired.
The Court finds that this is not a reliable methodology for determining whether all of the
corrosion that existed during the First Inspection was actually discovered and corrected. As
such, the Court strikes this opinion and will not allow Stimpson to testify that because the
inspection records from the First Inspection indicate that all of the corrosion that existed was
identified and corrected, there was no corrosion that existed during the First Inspection that was
discovered during the Second Inspection.

7

V. Conclusion
Accordingly, it is ORDERED AN ADJUDGED that:
(1)

Defendant’s Motion to Exclude the Opinions of Plaintiff’s Expert, William
Boege, III (Doc. No. 43) is GRANTED to the extent that Boege cannot opine that
the corrosion that was discovered during the Second Inspection was so pervasive
that it must have existed during the First Inspection.

(2)

Plaintiff’s Motion to Strike Defendant’s Expert, Douglas Stimpson (Doc. No. 44)
is GRANTED IN PART AND DENIED IN PART: The motion is granted to the
extent that the Court will not allow Stimpson to testify that because the inspection
records from the First Inspection indicate that all of the corrosion that existed was
identified and corrected, there was no corrosion that existed during the First
Inspection that was discovered during the Second Inspection. Otherwise, the
motion is denied.

DONE AND ORDERED at Tampa, Florida, this 13th day of February, 2018.

Copies to:
Counsel of Record

8