Schopp et al v. American Airlines Inc.

Filing 103

ORDER granting in part and denying in part 35 Motion to Strike ; granting in part and denying in part 60 Motion to Strike ; granting in part and denying in part 62 Motion in Limine; granting 63 Motion in Limine; granting 64 Motion in L imine; denying 65 Motion in Limine; granting in part and denying in part 66 Motion in Limine; denying 95 Motion for Attorney Fees; denying as moot 99 Motion to Strike. The Court reserves ruling on 58 Motion in Limine. Parties to provi de supplemental memoranda on issue regarding usage of seat belts on aircraft flying over international waters. Deadline for plaintiffs to file their memorandum is 5/15/2017. Deadline for defendant to file its memorandum/response is 5/30/17. See Omnibus Order for details. Signed by Magistrate Judge John J. O'Sullivan on 4/13/2017. (mms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23630-CIV-MORENO/O’SULLIVAN
DEAN SCHOPP and JO ANN SCHOPP,
Plaintiffs,
v.
AMERICAN AIRLINES, INC.,
Defendant.
/
OMNIBUS ORDER
THIS MATTER is before the Court on the parties’ respective Daubert motions
and motions in limine that United States District Judge Federico A. Moreno referred to
the undersigned pursuant to 28 U.S.C. §636(b)(1)(A). (DE# 67, 2/28/17). Having
reviewed the applicable filings and law, and having held a hearing on April 12, 2017,
and for the reasons stated in Court, it is
ORDERED AND ADJUDGED as follows:
1.

Defendant American Airline, Inc.’s Motion to Exclude the Testimony of
Plaintiff’s Expert Witness, Captain Douglas W. Smith (DE# 35, 1/7/17) is
GRANTED IN PART. The defendant seeks to exclude Captain Smith’s
testimony on the grounds that his opinions are not reliable, not based on
sufficient facts or data, and not helpful to the trier of fact. Motion at 1
(DE# 35, 1/7/17). Additionally, the defendant seeks to exclude Captain
Smith’s Supplemental Expert Report dated December 12, 2016 on the
ground that it and the opinions expressed therein concerning Hurricane
Joaquin were not timely disclosed. Id. at 2, 7. Under Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 589 (1993), and Rule 702 of the Federal Rules of

Evidence, the Court serves as a gatekeeper to the admission of scientific
evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340
(11th Cir. 2003) (citing Daubert, 509 U.S. 579, 589 (1993) (other citations
omitted). To determine the admissibility of expert testimony under Rule 702, the
Court must undertake the following three-part inquiry:
(1) [T]he 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 by Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or specialized expertise, to
understand evidence or to determine a fact in issue.
Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros
Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589)
(other citation omitted). The Eleventh Circuit cautioned that although some
overlap among the inquiries regarding expert qualifications, reliability and
helpfulness exist, “these are distinct concepts that courts and litigants must take
care not to conflate.” Id. at 1341. Rule 702 provides in pertinent part 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
applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. See Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd.,
326 F.3d 1333, 1340-41 (11th Cir. 2003). The undersigned finds that Captain

Smith is qualified to provide expert testimony regarding what an airlines
crew should do when it anticipates air turbulence regarding warnings and
seat belt inspection. In the last paragraph of Captain Smith’s initial Expert

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Report dated November 18, 2016, the opinions expressed in the
sentences beginning with “Also, if the flight crew ...” and ending with “not
done on the subject flight” remain. See Smith Expert Report 11/18/17
(DE# 35-4, 1/7/17). The undersigned finds that portions of Captain
Smith’s expert reports address issues that do not offer technical, scientific
or specialized knowledge that is comprehensible by the average juror
without the assistance of an expert. Because expert testimony is not
necessary, the portion of Captain Smith’s opinion in his initial Expert
Report on the issues of: seat pitch limiting a passenger’s ability to clear
another passenger to return to a middle or window seat; that more rows of
seats on an aircraft increase the airlines’ revenue by having more
passengers; and that the plaintiffs did nothing unreasonable or improper
ARE STRICKEN. Additionally, Captain Smith’s expert opinion in his
supplemental Expert Report dated December 6, 2016 is likewise limited to
the basis and opinion previously given. The defendant may re-depose
Captain Smith within 30 days of the date of this Order to alleviate any
prejudice the defendant may have incurred as a result of the late
disclosure of the supplement report.
2.

The undersigned RESERVES RULING on the Plaintiffs’ Motion in Limine
to Exclude All References to U.S. Federal Aviation Regulations
Concerning Seat Belt Use (DE# 58, 2/14/17) until after the parties submit
their respective supplemental briefing on whether the United States
Federal Aviation Regulations (“FARs”) concerning the usage of seat belts
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apply to the defendant’s aircraft when flying over international waters. It is
further ORDERED AND ADJUDGED that the plaintiffs shall file a
supplemental memorandum of law by May 15, 2017 and the defendant
shall file a response by May 30, 2017. The memoranda shall not exceed
five (5) pages in length.
3.

Plaintiffs’ Motion to Exclude Defendant’s Proposed Expert Witness J.F.
Joseph (DE# 60, 2/15/17) is GRANTED IN PART and DENIED IN PART.
The plaintiffs seek to exclude certain testimony of J.F. Joseph on the
ground that “expert testimony regarding matters outside of the witness’s
expertise is inadmissible, even if the expert is qualified to testify about
other matters.” Cordoves v. Miami-Dade County, 104 F. Supp. 3d 1350,
1358 (S.D. Fla. 2015). Applying Daubert and Rule 702 as discussed in
Paragraph 1 above, the undersigned will address each topic of testimony
in the order presented in the plaintiffs’ motion. The motion in limine is
DENIED as to Opinion #1 (compliance with Defendant’s procedures and
protocols). The motion in limine is GRANTED as to Opinion #2
(obligations of passengers to wear seat belts). The motion in limine is
DENIED as to Opinion #3 (election of safest route) and as to Opinion #4
(isolated and unpredictable nature of in-flight turbulence encounters). The
motion in limine as to Opinion #5 (failure of plaintiffs to wear seat belts),
Opinion #6 (unbelted passengers sustained injuries), and Opinion #7 (“low
pitch” seating) ARE GRANTED because these opinions are not helpful to
a jury. See Discussion in Paragraph 1 above.
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4.

Defendant American Airlines, Inc.s’ Motion in Limine to Exclude Evidence
Regarding Insurance, Financial Worth or Assets and Memorandum of
Law in Support (DE# 62, 2/17/17) is GRANTED IN PART as to mention of
liability insurance, net worth or total assets of the defendant, but not as to
mention of resources that the defendant had available to it to “take all
necessary measures to avoid the damage” caused to the plaintiffs.

5.

Defendant American Airlines, Inc.s’ Motion in Limine to Preclude
Testimony That American Airlines, Inc.’s Actions Were Reckless (DE# 63,
2/17/17) is GRANTED. The plaintiffs’ expert is prohibited from describing
the defendant’s conduct using the term “reckless.” The plaintiffs’ expert
may use other adjectives to describe the defendant’s conduct.

6.

Defendant American Airlines, Inc.s’ Motion in Limine Regarding Cockpit
Voice Recorder (DE# 64, 2/17/17) is GRANTED because the Court has
previously ruled that the defendant was not under a legal obligation to
preserve the cockpit recorder and the probative value is outweighed by
the unfair prejudice to the defendant.

7.

Defendant American Airlines, Inc.s’ Motion in Limine to Preclude
Reference or Use of the Term Hangman’s Fracture or Related Testimony
(DE# 65, 2/17/17) is DENIED. The undersigned finds that “hangman’s
fracture” is common terminology that a medical doctor used when
describing the injuries to the plaintiff, Mr. Schopp. The probative value
outweighs any unfair prejudice to the defendant.

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8.

Plaintiffs’ Omnibus Motion in Limine (DE# 66, 2/17/17) is GRANTED IN
PART AND DENIED IN PART. The undersigned RESERVES RULING on
Subject #1 (references to seat belt fastening instructions as mandatory
and legally required) until after the parties complete the supplemental
briefing on this issue. The motion in limine is GRANTED as to Subjects
#2 (“Special Drawing Rights”) and #3 (Cap on damages). The motion in
limine as to Subject #4 (damage to the upper cabin due to plaintiffs) is
DENIED AS MOOT. The motion in limine as to Subject #5 (imputed
contributory negligence of Mr. Schopp to Mrs. Schopp) is GRANTED.
The motion in limine as to Subject #6 (Power Point location of hurricane)
is DENIED WITHOUT PREJUDICE to renew at trial if the defendant
cannot meet the evidentiary requirements for its admission. The motion
in limine as to Subject # 7 (Captain Joseph flying as Blue Angels) is
DENIED because Captain Joseph’s position as the Chief Safety Officer
for the Blue Angels is relevant to his expertise.

9.

The Plaintiffs’ Verified Motion for Attorney’s Fees and Expenses (DE# 95,
4/1/17) is DENIED. The defendants were justified in asserting their
position regarding ASAP. Although the issue regarding the Passenger
Name Record (“PNR”) was closer, the plaintiff requested the PNR in a
Request for Production and the undersigned ordered the defendant to
answer as an interrogatory.

It is further ORDERED AND ADJUDGED that the Plaintiffs’ Motion to Strike
Defendant’s Notices of Supplemental Authority and Attached Authority [D.E. # 97 and
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98] (DE# 99, 4/10/17) is DENIED AS MOOT because the defendant is not relying on
the case law.
DONE AND ORDERED in Chambers at Miami, Florida this 13th day of April,
2017.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Moreno
All counsel of record

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