Maltez v. Trepel Airport Equipment GMBH

Filing 75

ORDER on 41 Defendant's Daubert Motion. Signed by Magistrate Judge Jonathan Goodman on 11/30/2017. (jdo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 16-24465-CIV-MARTINEZ/GOODMAN
ROY MALTEZ,
Plaintiff,
v.
TREPEL AIRPORT EQUIPMENT
GMBH,
Defendant.
______________ _________/
ORDER ON DEFENDANT’S DAUBERT MOTION
Defendant Trepel Airport Equipment GMBH moves to exclude under Daubert
evidence and testimony of Plaintiff Roy Maltez’s expert, Linda A. Small. [ECF No. 41].
Maltez filed an opposition response. [ECF No. 44]. Trepel filed a reply. [ECF No. 49].
After the parties consented to the Undersigned issuing final orders on dispositive pretrial motions, United States District Judge Jose E. Martinez referred all pretrial matters
to me. [ECF Nos. 21, p. 2; 26].
For the reasons outlined below, the Undersigned grants in part and denies in
part the Daubert motion. The Undersigned prohibits Small, an expert in aspects of the
aviation industry, from opining at trial on whether Trepel breached its purchase and
sale contract with American Airlines for a Challenger 700 aircraft tractor and from

opining on how that contract should be interpreted. Small, however, is permitted to
testify about whether the training Maltez received from a Trepel employee was
adequate. Although Small’s opinions are hardly free from challenge, Trepel will be able
to vigorously pursue those challenges through cross-examination.
I.

Factual Background
Maltez, an American Airlines employee, was hurt while training on an aircraft

pushback tractor called the Challenger 700, which Trepel manufactures and sold to
American. The Challenger 700 weighs about 50 tons and is designed to push and tow
the wide-body Boeing 777 aircraft along airport aprons and tarmacs. Maltez claims that
Trepel’s trainer negligently conducted the training, causing him injury. Maltez also
contends that tractor is not intended to transport persons or property.
In 2013, American bought two Challenger 700s from Trepel for use at Miami
International Airport. As part of this sale, Trepel agreed to provide “their own factory
service engineer” to conduct “full maintenance and operational training free of charge.”
Trepel further represented that the “services provided shall be performed by [qualified]
and efficient employees.” The written agreement also provided that Trepel “shall be
responsible for the direct supervision” of its employees, including the factory-service
engineer. Trepel then provided a syllabus outlining course content for its trainer to
follow, which is entitled: “Train the Trainer – Operator Trepel Model Challenger 700.”
On December 18, 2013, a Trepel factory-service engineer from Germany named
2

Sebastian Kraemer was at Miami International Airport to, among other things, conduct
the “Train the Trainer” training for Challenger 700 operators. The trainees included
Maltez and an American co-employee, Josue M. Perez. Kraemer is a mechanic by trade
with no formal education, training, certifications, credentials, degrees, or diplomas
pertaining to conducting training on the operation of airport ground-service equipment.
Maltez points out that Trepel does not have any written policies, procedures, or
manuals directing its trainers on how to conduct this type of training. According to the
training syllabus that Trepel produced, the training was to last “4 HR +” and include
“safety instructions for operation,” “work with the Trepel Operator Manual,”
“classroom” training, and a “test drive.”
On the afternoon of December 18th, Maltez and Perez attended training with
Kraemer. Neither Maltez nor Perez had ever operated the Challenger 700 or even sat
inside one before. Maltez and Perez testified that, contrary to the training syllabus, they
were not given classroom training. Moreover, both testified that Kraemer did not
review the Operator’s Manual with them or provide a “handout.” They say that,
instead, Kraemer led them out to the airport apron, provided a brief overview of the
Challenger 700’s features while sitting inside the tractor’s cab, and then had Perez drive
the Challenger 700 from the apron to the tarmac.
During that drive, Kraemer did not fasten his lap belt or insist or ensure that
Maltez and Perez wore lap belts or demonstrate where the lap belts were located. The
3

Challenger 700 does not have stickers or warning lights regarding lap belt usage. And
one piece of the Challenger 700’s lap belts is capable of being “tucked” out of sight.
Approximately 5 to 10 minutes into the test drive, Kraemer instructed Perez to
bring the Challenger 700 to a complete stop near the maintenance hangar. Kraemer then
pressed a button on the dashboard. The button disengaged the Challenger 700’s front
end suspension, a fact unknown to Maltez or Perez. Next, Kraemer instructed Perez to
drive over a depressed storm drain -- an uneven surface on the tarmac -- to perform
what he termed an “unbalanced maneuver.” Because the front-end suspension was
deactivated, the Challenger 700 bounced violently as it drove over the drain.
According to Maltez, Kraemer knew that the Challenger 700 could bounce
violently if driven over an uneven surface with the front-end suspension disengaged.
Nevertheless, Kraemer did not warn his trainees nor insist that they fasten their lap
belts before performing the “unbalanced maneuver.” As the Challenger 700 bounced,
Maltez was thrown out of his seat and hit the cab’s roof, suffering injuries to his neck
and aggravating a pre-existing back injury.
Linda Small’s Expert Opinion
Small has worked in the airline industry for more than 30 years. Since 2009, she
has worked for Delta Global Services as a Safety and Compliance Auditor for all
ground-handling activities, including “Train the Trainer” training for the operation of
pushback tractors. She currently serves or has served in that capacity for several
4

airlines, including American Airlines. In addition, Small has worked as a “Hub General
Manager” at John F. Kennedy International Airport, was “Station Manager” for Delta
Air Lines in New Orleans and Gainesville, Florida; was “Assistant Station Manager” in
Las Vegas and Seattle; and was the Vice President and part owner of Airways of New
Mexico. In addition to domestic airports, Small has also managed an airport station in
Panama City, Panama.
In her current employment, Small supervises and oversees “Train the Trainer”
training sessions involving ground-service equipment, including aircraft pushback
tractors. In addition, she regularly conducts safety audits of these training sessions, and
is authorized to correct and, when necessary, call for a “Safety Stop” when she observes
unsafe training practices. Maltez contends that Small is intimately familiar with the
qualifications that trainers must have, the trainer’s responsibilities to trainees during a
training session, training procedures and protocol, and industry safety standards and
regulatory compliance for training sessions.
For its part, Trepel focuses on other aspects of Small’s background -- aspects
relating to other aspects of the aviation industry. For example, according to Small’s CV,
she is a “[s]enior executive and field operations manager with extensive experience in
all aspects of airport customer service,” and is a “specialist in assessing call center sales
and productivity issues to provide high performing teams with revenue conversion
skill sets.” [ECF No. 41-3, p. 8 (emphasis added)]. Before she was employed by GPE
5

Aviation Consulting Group, Small was affiliated with Delta Airlines. She has never
worked for American Airlines or Trepel. She has never operated a Trepel Challenger
700, and her updated CV does not expressly state that she conducts or supervises “Train
the Trainer” training sessions for any type of aircraft tractor or tug.
Small inspected American’s Challenger 700 (although Trepel says that it was not
advised of her inspection at the time and has not been provided with any records
concerning the inspection). Small also met with Maltez on April 11, 2017. Her opinions
are in addition based on her review of the deposition transcripts (and exhibits) of
Kraemer, Trepel’s Rule 30(b)(6) corporate representative, Maltez, and Perez. She also
reviewed American’s contract with Trepel, the parties’ written discovery responses, and
Trepel-produced documents (including an incident report, training syllabus, the
Challenger 700’s Operator’s Manual, and Trepel’s video demonstration of the
“unbalanced maneuver”).
Small’s “interim report” indicates that Trepel breached a contract provision by
not providing a “qualified” trainer. Trepel notes that she provided this opinion even
though the contract does not contain the term “trainer” or set forth qualification
requirements.
At trial, Small is expected to offer non-scientific, experience-based opinions and
testimony applying the facts of this case to the industry-based safety requirements
specific to conducting training on aircraft pushback tractors used on airport tarmacs
6

and aprons. Small will offer opinions concerning: (1) the specific credentials and
qualifications that trainers should have to train others on the use and operation of
ground-service equipment, including pushback tractors like the Challenger 700; (2) the
industry’s safety standards and regulatory requirements for training on the use and
operation of aircraft pushback tractors conducted on airport tarmacs and aprons; and
(3) whether Kraemer’s “Train the Trainer” session complied with those standards.
More specifically, Small’s opinion is that Kraemer did not have the necessary
education, training, or credentials to properly and safely conduct “Train the Trainer”
training and that he conducted the training in a manner that fell well below industry
safety standards. According to Small’s final summary in her updated expert report,
Kraemer did not use appropriate standards in a myriad of ways: he did not hold a
training class; he did not provide an information handout; he did not review the
operational restraints and safety equipment of the Challenger 700; he did not give the
American employees a question and answer session; he began to operate the equipment
with a student in the driver seat; he did not review any interior safety restraint system;
he waited until after the Challenger was moving to direct the driver to adjust the
mirrors; and he generally operated the tractor unsafely.
Trepel contends that Small is not competent to offer her opinions. Moreover, it
says that her opinions amount to nothing more than a conclusory statement
unsupported by any independent testing. It also argues that her opinions are not
7

helpful because they concern topics within a layperson’s common understanding. And
finally, it contends that her opinions are cumulative. This last point, however, is more of
an evidence-based objection than a Daubert challenge.
II.

Legal Standard
The admission of expert testimony is governed by Federal Rule of Evidence 702,

as explained and refined by the United States Supreme Court in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999). Under this framework, district courts are charged with a gatekeeping function
“to ensure that speculative, unreliable expert testimony does not reach the jury.”
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).
Rule 702 provides that:
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. The Supreme Court has stated that “[t]he inquiry envisioned by Rule
702 is . . . a flexible one.” Daubert, 509 U.S. at 594. “Many factors will bear on the
inquiry,” and no “definitive checklist or test” exists. Id. at 593.
To fulfill its obligation under Daubert, a trial court engages in a three-part inquiry
8

and considers the following:
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.
Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-1292 (11th Cir. 2005) (internal quotations
omitted).
Although there is inevitably some overlap among these three basic factors of
qualifications, reliability, and helpfulness, they are distinct concepts and should not be
merged together. See generally United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.
2004).
The second area of inquiry referenced above requires “an exacting analysis of the
proffered expert’s methodology.” McCorvey, 298 F.3d at 1257. That analysis takes into
consideration a number of factors, including: (1) whether the expert’s methodology can
be, and has been, tested; (2) whether the expert’s scientific technique has been subjected
to peer review and publication; (3) whether the method employed has a known rate of
error; and (4) whether the technique is generally accepted in the scientific community.
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003); Rink,
400 F.3d at 1292. These factors, however, are non-exhaustive. Kumho Tire, 526 U.S. at
150; Rink, 400 F.3d at 1292. Thus, “[i]n evaluating the reliability of an expert’s method . .
. a district court may properly consider whether the expert’s methodology has been
9

contrived to reach a particular result.” Rink, 400 F.3d at 1293 n.7 (citing Gen. Elec. Co. v.
Joiner, 522 U.S. 136 (1997)).
The burden of establishing the reliability of an expert’s opinions rests on the
proponent of that expert’s testimony. Frazier, 387 F.3d at 1260. As part of its gatekeeper
role, the district court has “broad discretion in determining whether to admit or exclude
expert testimony, and its decision will be disturbed on appeal only if it is manifestly
erroneous.” Evans v. Mathis Funeral Home, 996 F.2d 266, 268 (11th Cir. 1993).
To warrant or permit the use of expert testimony, two conditions must be
met: first, the subject matter must be closely related to a particular
profession, business or science and not within the common knowledge of
the average layman; second, the witness must have such skill, experience
or knowledge in that particular field as to make it appear that his opinion
would rest on substantial foundation and would tend to aid the trier of
fact in his search for truth.
Faircloth v. Lamb-Grays Harbor Co., 467 F.2d 685, 694 (5th Cir. 1972) (internal quotation
omitted).
III.

Analysis
One may correctly say that the majority of Small’s experience in the aviation

industry appears to be in “call center operations including productivity, training and
software programs implementation.” Indeed, in the “skills summary” section of her CV,
Small describes herself as “[a] specialist in assessing call center sales and productivity
issues to provide high performing teams with revenue conversion skill sets.” As such,
one may be tempted to conclude that her experience is not directly relevant to the
10

opinions she has rendered in this case about Kraemer’s competence and training and
whether his conduct on the day in question met applicable standards. Similarly, one
may reason that her self-described specialization does not appear directly relevant to
the expertise expected from an expert opining on safety and training for massive
aircraft tractors.
Nevertheless, there are other areas in her background that appear more relevant
to the opinions she seeks to give in this case. That includes being a “Hub General
Manager” at John F. Kennedy International Airport, “Station Manager” for Delta Air
Lines in New Orleans and Gainesville, Florida; “Assistant Station Manager” in Las
Vegas and Seattle; the Vice President and part owner of Airways of New Mexico; and
manager of airport station in Panama City, Panama. Moreover, she currently supervises
and oversees “Train the Trainer” training sessions involving ground service equipment,
including aircraft pushback tractors, and regularly conducts safety audits of these
training sessions.
An expert need only be minimally qualified to provide an expert opinion, and
any objections to the level of her expertise typically go to the credibility and weight of
the expert’s opinion, not its admissibility. Bouton v. Ocean Props., Ltd., No. 16-CV-80502,
2017 WL 4792488, at *7 (S.D. Fla. Oct. 23, 2017). The test is “whether the subject matter
of the witness’s proposed testimony is sufficiently within the expert’s expertise.” In re
Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F. Supp. 2d 1348, 1367
11

(M.D. Ga. 2010) (citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001)).
There is no requirement that Small must have had experience driving this
specific Challenger 700 equipment in order to provide an expert opinion on the safety
and training issues surrounding this equipment.
Rule 702 requires an expert witness to have “specialized knowledge” regarding
the area of testimony. Fed. R. Evid. 702(a). The basis of this specialized knowledge “can
be practical experience as well as academic training and credentials.” Am. Tech. Res. v.
United States, 893 F.2d 651, 656 (3d Cir. 1990); Hammond v. Int’l Harvester Co., 691 F.2d
646, 653 (3d Cir. 1982) (same).
Courts have liberally interpreted the specialized knowledge requirement and
concluded that the liberal admissibility of expert testimony “extends to the substantive
as well as the formal qualification of experts.” See, e.g., In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 741 (3d Cir. 1994); Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998).
Nevertheless, mistakes, defects, omissions, problems, weaknesses and warts with
an expert’s opinion do not necessarily mean that the court must exclude the opinion. To
the contrary, many challenges to expert testimony ultimately can be viewed as an attack
on the weight of the expert’s opinions, which can be addressed at trial through vigorous
cross-examination, rather than to admissibility. See generally Holiday Inns, Inc. v. Holiday
Out in Am., 481 F.2d 445, 447 (5th Cir. 1973) (“format of the questions and the manner of
conducting the survey” go to “weight of [the] evidence”); Pods Enters., Inc. v. U-Haul
12

Int’l, Inc., 12-01479, 2014 WL 2625297, at **2–3 (M.D. Fla. June 12, 2014) (“improper
universe” and “improper questioning” were “technical deficiencies” that “go to the
weight of [the] opinions, not their admissibility”); Hoff v. Steiner Transocean, Ltd., No. 1222329, 2014 WL 273075, at *4 (S.D. Fla. Jan. 24, 2014) (“As long as a reliable basis exists
for the expert’s opinion, it is admissible, and it is then up to the parties to vet the
opinion before the jury”); Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., No.
CIV.A.1:04CV2112CAP, 2007 WL 4563873, at **7-8 (N.D. Ga. July 17, 2007) (finding
allegedly flawed survey universe and question formats were technical deficiencies of
weight, not admissibility).
As explained in Small’s final report, she is trained to audit “[p]ushback tractors
for all narrow body and wide body” and “passenger boarding bridges, de-icing trucks
and miscellaneous ramp transportation vehicles.” [ECF No. 44-9, p. 1]. And she is also
“charged with identifying the operational risks of unsafe work practices and
remediating them through a thorough review of training shortcomings to achieve a
compliant and safe operation.” Id.
The Undersigned agrees with Maltez that Small has adequate experience and
knowledge to offer her opinion testimony at trial. Trepel, of course, may well be able to
impeach her conclusions by highlighting some of the defense-oriented points outlined
above. But that is insufficient to justify an order excluding all of her expert opinions,

13

even if the potential impeachment goes to the heart of her experience and credentials. 1
Small’s testimony also satisfies the “fit” of Daubert. At trial, Small will offer nonscientific, experience-based opinions and testimony applying the facts of this case to the
industry based safety requirements specific to conducting training on aircraft pushback
tractors on airport tarmacs and aprons.
Small has identified the underlying data and industry standards that guide her
opinions. Non-scientific, experience-based opinions and testimony is admissible when it
is properly grounded, well-reasoned, and not speculative. United States v. Masferrer, 367
F. Supp. 2d 1365, 1373 (S.D. Fla. 2005). Accordingly, Small should be permitted to testify
on whether Trepel acted in compliance with industry standards. See, e.g. Pleasant Valley
Biofuels, LLC v. Sanchez-Medina, No. 13-23046-CIV, 2014 WL 11881018, at *2 (S.D. Fla.
July 11, 2014) (explaining that “an expert may opine as to industry standards and
whether a party has complied with those standards[.]”).
The Undersigned also finds unconvincing the argument that Small’s expert
opinions will not assist the jury. Operating a 50-ton aircraft tractor is not akin to driving
a car, the type of activity that a lay juror is likely familiar with and that might not be
appropriate for expert testimony.
Defendant also seeks to strike Small’s testimony as cumulative because Maltez is
an American trainer and knows about the manner in which American conducts
Trepel notes that Small did not cite to any specific publication, rule, or guideline
to support her opinions. That scenario is certainly fodder for cross-examination at trial.

1

14

training. This argument is not convincing for several reasons. First, Maltez’s knowledge,
experience, and understanding of how training works is based on his experience at
American only -- he is likely unqualified to opine on industry standards, regulatory
requirements, or the like. Second, Maltez is the plaintiff in this case -- not an expert
witness. Third, determining whether any witness would be providing cumulative
testimony is a decision best left to the trial judge during the actual trial.
Nevertheless, the Undersigned does agree with Trepel’s argument that Small
should not be permitted to provide expert opinion testimony on how the contract
should be interpreted and what contractual duties Trepel was obligated to provide.
There are many reasons why Small should not be allowed to provide that type of
testimony. Small’s initial or “interim” report mentions contract interpretation
conclusions. So does her final, “updated” report. On page two of this final report, for
example, Small says that “[t]he contract entered into by American and Trepel commits
the manufacturer to providing a ‘qualified’ trainer.” [ECF No. 44-9, p. 2]. She then
opines that “Trepel failed to do so [i.e., failed to comply with the purported contractual
requirement] by presenting [] Kraemer as the corporate Train the Trainer qualified
employee.” Id.
Small is not an attorney, let alone an attorney specializing in contracts.
Additionally, contract interpretation is an issue of law and cannot be the subject of
expert testimony. See generally Montgomery v. Aetna Cas. & Surety Co., 898 F.2d 1537,
15

1540–41 (11th Cir. 1990) (stating that “the construction of [a contract] is a question of
law for the court,” and holding that expert testimony regarding a party’s duties under a
contract “was a legal conclusion, and therefore should not have been admitted.”). 2 As
such, even if expert opinion testimony on contract interpretation might theoretically be
permissible in this case, Small is not the one to provide it. She lacks the training,
background and experience.
IV.

CONCLUSION
For the reasons set forth above, and based on the considerable discretion

afforded trial courts when ruling on the admissibility of expert testimony, the
Undersigned denies in large part Trepel’s Daubert motion but grants it in small part
(concerning contract interpretation issues).
DONE and ORDERED in Chambers, in Miami, Florida, November 30, 2017.

Copies furnished to:
The Honorable Jose E. Martinez
All Counsel of Record

Trepel has also filed a separate motion in limine to exclude any testimony,
evidence, or reference to contract interpretation or breach of contract at trial. [ECF
No. 53]. The Undersigned will address that motion in a separate order.

2

16