Escobar v. European Aeronautic Defence and Space Company et al

Filing 478

ORDER DENYING PLAINTIFF'S MOTION IN LIMINE NO. 1: LIMITING THE EXPERT TESTIMONY OF DOUGLAS E. STIMPSON (ECF No. 428 ) and GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFF'S MOTION IN LIMINE NO. 2: PROHIBITING REFERENCE TO THE PROBABLE CA USE REPORT OF THE NATIONAL TRANSPORTATION SAFETY BOARD (ECF No. 429 ) - Signed by JUDGE HELEN GILLMOR on 1/8/2020. Plaintiff's Motion in Limine No. 1: Limiting The Expert Testimony Of Douglas E. Stimps on (ECF No. 428) is DENIED. Plaintiff's Motion in Limine No. 2: Prohibiting Reference To The Probable Cause Report Of The National Transportation Safety Board (ECF No. 429) is GRANTED, IN PART, AND DENIED, IN PART. Follows oral order of 1/7/2020 Hearing at ECF 476 (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VIOLETA ESCOBAR, also known as
VIOLETA ESCOBAR CLINE,
Individually and as Personal
Representative for the ESTATE
OF NATHAN CLINE, Deceased,

)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
NEVADA HELICOPTER LEASING LLC, )
)
Defendant.
)
)
______________________________________ )

Civ. No. 13-00598 HG-WRP

ORDER DENYING PLAINTIFF’S MOTION IN LIMINE NO. 1: LIMITING THE
EXPERT TESTIMONY OF DOUGLAS E. STIMPSON (ECF No. 428)
and
GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFF’S MOTION IN
LIMINE NO. 2: PROHIBITING REFERENCE TO THE PROBABLE CAUSE REPORT
OF THE NATIONAL TRANSPORTATION SAFETY BOARD (ECF No. 429)
In November 2011, a helicopter piloted by the Plaintiff’s
husband crashed on the island of Molokai.

Plaintiff filed a

complaint against Defendant Nevada Helicopter Leasing LLC, the
owner of the Subject Helicopter, asserting negligence and strict
liability claims.
In July 2016, the Federal District Court granted Defendant
Nevada Helicopter Leasing LLC’s Motion for Summary Judgment.
Plaintiff appealed and in February 2019, the case was
remanded.

The Ninth Circuit Court of Appeals found that there
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was an issue of fact as to whether Defendant Nevada Helicopter
Leasing LLC (“Nevada Leasing”) had actual possession or actual
operational control of the Subject Helicopter at the time of the
crash.
The Court ordered a bifurcated trial.

The first trial is

limited to the factual questions identified by the Appellate
Court to determine whether Defendant Nevada Leasing may be held
liable as the lessor of the Subject Helicopter pursuant to 49
U.S.C. § 44112(b).
Plaintiff has filed two motions in limine regarding the
first trial.
ANALYSIS

Plaintiff’s Motion in Limine No. 1: Limiting The Expert Testimony
Of Douglas E. Stimpson (ECF No. 428)
Plaintiff’s Motion in Limine No. 1 seeks to limit the expert
testimony of Defendant’s expert Douglas E. Stimpson.
On October 30, 2019, the Court held a Daubert to determine
what Mr. Stimpson could say at trial.
2019, ECF No. 402).

(Minutes from October 30,

Mr. Stimpson testified for nearly two hours.

(Id.)
The Court issued a written order detailing its ruling that
Mr. Stimpson may testify as an expert in the aviation industry.
(ORDER DENYING PLAINTIFF’S MOTION TO STRIKE THE EXPERT DISCLOSURE
OF DOUGLAS E. STIMPSON AS UNTIMELY AND PERMITTING DOUGLAS E.

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STIMPSON TO TESTIFY AS AN EXPERT IN THE AVIATION INDUSTRY AND
DEFERRING RULING ON HIS ABILITY TO TESTIFY AS AN ACCIDENT
RECONSTRUCTION EXPERT, ECF No. 420).
1.

Mr. Stimpson Is Qualified And Permitted To Testify As
An Expert In The Aviation Industry

On May 1, 2019, Defendant disclosed the written report for
Mr. Douglas Stimpson along with his curriculum vitae pursuant to
the Magistrate Judge’s March 25, 2019 Rule 16 Scheduling Order.
(ECF No. 376).
After receiving the May 1, 2019 written disclosure,
Plaintiff filed a Motion to Strike Mr. Stimpson as an expert on
May 13, 2019.

(ECF No. 379).

In response and pursuant to the Court’s briefing schedule,
Defendant submitted an Opposition to Plaintiff’s Motion and
included an affidavit from Mr. Stimpson that explained further
the basis for his expertise in the aviation field regarding ondemand and commuter operations.

(June 17, 2019 Affidavit

attached as Ex. 10 to Def.’s Opp., ECF No. 386-10).
On October 30, 2019, the Court held a Daubert hearing and a
hearing on Plaintiff’s Motion to Strike Mr. Stimpson.
402).

(ECF No.

Mr. Stimpson testified for nearly two hours and was

subject to extensive cross-examination by Plaintiff’s counsel.
Following the hearing, the Court issued a written order
denying Plaintiff’s Motion to Strike.
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(Order dated November 25,

2019, ECF No. 420).

The Court specifically found that Mr.

Stimpson is permitted to testify in the first trial as an expert
in the aviation industry concerning on-demand and commuter
aircraft operations.

(Order at p. 17, ECF No. 420).

The Court explained that the May 1, 2019 disclosure that
contained the written expert report and curriculum vitae for Mr.
Stimpson was timely disclosed pursuant to the Magistrate Judge’s
Rule 16 Scheduling Order.

(Id. at pp. 10-11).

Plaintiff’s Motion in Limine No. 1 argues that Mr.
Stimpson’s June 17, 2019 Affidavit should be excluded from trial.
Defendant concedes that it does not seek to introduce the June
17, 2019 Affidavit at trial and it will not be admitted.

Mr.

Stimpson, however, is not precluded from testifying in conformity
to the information contained in his June 17, 2019 Affidavit.

Mr.

Stimpson may set forth the basis for his expertise before the
jury to allow the jury to evaluate his credibility and the weight
of his testimony.

Plaintiff had extensive opportunity to cross-

examine Mr. Stimpson about his expertise during the Daubert
hearing and there is no prejudice to the Plaintiff in allowing
him to testify in conformity with his Affidavit.
Plaintiff’s Motion in Limine No. 1 is an attempt to relitigate issues regarding Mr. Stimpson’s expertise that Plaintiff
either already unsuccessfully argued or could have previously
raised.

The Court finds no basis to alter its prior decision.

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Contrary to Plaintiff’s argument, the June 17, 2019 Affidavit did
not inappropriately attempt to “shore up his initial report to
address the weaknesses in his [May 1, 2019 disclosure.”
Motion at p. 11, ECF No. 428-1).

(Pla.’s

Pursuant to the numerous

filings and testimony at the Daubert hearing, the Court found Mr.
Stimpson is amply qualified to testify as an expert in the
aviation industry, specifically with respect to on-demand and
commuter aircraft.

Plaintiff may cross-examine Mr. Stimpson at

trial.
2.

Defendant Does Not Seek To Introduce Mr. Stimpson’s
Expert Report Or Affidavit At Trial

Plaintiff’s Motion also seeks to preclude the introduction
of both Mr. Stimpson’s written expert report and his affidavit
submitted in support of the Daubert hearing.
Defendant states that it does not intend to offer Mr.
Stimpson’s written report or his affidavit at trial.

Expert

reports are generally inadmissible hearsay but may be admissible
if there is an exception to hearsay.

Fed. R. Evid. 802.

For

example, Defendant is not precluded from refreshing Mr.
Stimpson’s recollection with his expert report.
3.

Accident Reconstruction Is Not Relevant To The
Operational Control Issue Raised In The First Trial

Finally, Plaintiff seeks a ruling regarding Mr. Stimpson’s

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ability to testify as an accident reconstructionist.
Court has already addressed this issue.

Again, the

In its November 25, 2019

Order, the Court stated:
The Court reserves ruling on Stimpson as an accident
reconstruction expert until the conclusion of the first
trial. The cause of the helicopter accident is not
relevant for the first phase of the bifurcated trial.
The first trial is limited to the factual issues
identified by the Ninth Circuit Court of Appeals in its
Memorandum Opinion.
(Order at pp. 17-18, ECF No. 420).
Plaintiff’s Motion in Limine No. 1 (ECF No. 428) is DENIED.

Plaintiff’s Motion in Limine No. 2: Prohibiting Reference To The
Probable Cause Report Of The National Transportation Safety Board
(ECF No. 429)

Plaintiff’s Motion in Limine No. 2 seeks to prohibit
reference to what she refers to as “the probable cause report” of
the National Transportation Safety Board (“NTSB”) regarding the
cause of the November 10, 2011 helicopter accident.
Neither party has disclosed any NTSB reports as trial
exhibits for the first trial.
Defendant agrees that it does not intend to introduce the
NTSB’s probable cause report into evidence at the first stage of
the bifurcated trial, because the cause of the accident is not
relevant to the issue of operational control.
Defendant maintains, however, that the NTSB probable cause
report contains findings of fact that are admissible and may be
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relevant for the second phase of trial, if such a trial is
necessary.
Defendant also states that it should not be precluded from
using the NTSB reports “not related to probable cause for
purposes of refreshing a witness’s recollection or for other
evidentiary purposes.”
1.

(Def.’s Opp. at p. 4, ECF No. 433).

The National Transportation Safety Board

The National Transportation Safety Board (“NTSB”) is a
federal agency responsible for investigating aviation accidents,
determining probable cause of accidents, and making
recommendations to help protect against future accidents.
U.S.C. §§ 1131, 1132, 1135.

49

The NTSB does not promulgate or

enforce air safety regulations, and it does not adjudicate claims
over liability for accidents.

Gibson v. Nat’l Transp. Safety

Bd., 118 F.3d 1312, 1314-15 (9th Cir. 1997).

The NTSB is charged

with analyzing accidents in order to make recommendations to
prevent similar accidents in the future.

Chiron Corp. and

PerSeptive Biosystems, Inc. v. Nat’l Transp. Safety Bd., 198 F.3d
935, 937 (D.C. Cir. 1999).
An officer or employee of the NTSB may enter a site where an
accident has occurred and do anything necessary to conduct an
investigation.

49 U.S.C. § 1134(a)(1).

The NTSB may inspect and

test aircraft that has been involved in an accident and it has

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the sole discretion to determine how those tests are to be
conducted.

49 U.S.C. § 1134(b),(d).

An NTSB investigation is a fact-finding proceeding with no
formal issues to be adjudicated and no adverse parties as it is
not conducted for the purposes of determining the rights or
liabilities of any person or entity.

49 C.F.R. § 831.4.

The federal regulations explain that the NTSB creates two
different types of reports: “Board accident reports” and “factual
accident reports”.
2.

49 C.F.R. § 835.2.

NTSB Board Accident Reports Are Not Admissible

49 U.S.C. § 1154(b) states that “Board Accident Reports”
should not be admitted into evidence at trial.

49 U.S.C. §

1154(b) provides:
No part of a report of the Board, related to an
accident or an investigation of an accident, may be
admitted into evidence or used in a civil action for
damages resulting from a matter mentioned in the
report.
49 U.S.C. § 1154(b).

The regulations define a “Board

Accident Report” as “the report containing the Board’s
determinations, including the probable cause of an accident,
issued either as a narrative report or in a computer format
(‘briefs’ of accidents).”

49 C.F.R. 835.2.

The Ninth Circuit Court of Appeals has held that NTSB Board
Accident Reports are not admissible at trial.

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Benna v. Reeder

Flying Service Inc., 578 F.2d 269, 272-73 (9th Cir. 1978).
The NTSB Board Accident Reports are not admissible because
the conclusions or opinions of the administrative agencies or
boards or any testimony reflecting directly or indirectly on the
ultimate views or findings of the agency or board tend to usurp
the function of the jury.

Universal Airline v. E. Air Lines, 188

F.2d 993, 1000 (D.C. Cir. 1951).
Pursuant to 49 U.S.C. § 1154(b) and 49 C.F.R. § 835.2, the
NTSB Board Accident Reports concerning the November 10, 2011
helicopter accident are not admissible at trial.
at 272-73.

Benna, 578 F.2d

The Parties are precluded from referencing the NTSB

Board’s Accident Reports, the legal conclusions, opinions, or
probable cause determinations of the NTSB before the jury.

See

Dowe v. Nat’l Railroad Passenger Corp., 2004 WL 1375692, *6-*7
(N.D. Ill. May 28, 2004).
3.

NTSB Factual Accident Reports May Be Admissible

A NTSB “Factual Accident Report” is defined in the federal
regulations as “the report containing the results of the
investigator’s investigation of the accident.

The Board does not

object to, and there is no statutory bar to, admission in
litigation of factual accident reports.”

49 C.F.R. § 835.2.

Factual Accident Reports from the NTSB are admissible at
trial.

Sheesley v. The Cessna Aircraft Co., 2006 WL 1084103, *37

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(D.S.D. Apr. 20, 2006).

The federal regulations also allow for

limited testimony to be provided by employees of the NTSB.
C.F.R. § 835.3.

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The scope of the NTSB employees’ testimony is

limited to the following:
[T]he firsthand information they obtained during an
investigation that is not reasonably available
elsewhere, including observations recorded in their own
factual accident reports. Consistent with the
principles cited in § 835.1 and this section, current
Board employees are not authorized to testify regarding
other employee’s reports, or other types of Board
documents, including but not limited to safety
recommendations, safety studies, safety proposals,
safety accomplishments, reports labeled studies, and
analysis reports, as they contain staff analysis and/or
Board conclusions.
49 C.F.R. § 835.3(c).
The Ninth Circuit Court of Appeals has permitted the use of
NTSB Factual Accident Reports so long as they do not express
agency views or conclusions as to the probable cause of the
accident.

See Protectus Alpha Nav. Co., LTD. v. N. Pac. Grain

Growers, Inc., 767 F.2d 1379, 1385 (9th Cir. 1985); Dunn v. Grand
Canyon Airlines, Inc., 66 F.3d 334, 1995 WL 547723, at *3 (9th
Cir. 1995).
Plaintiff’s Motion in Limine No. 2 (ECF No. 429) is GRANTED,
IN PART, AND DENIED, IN PART.
The NTSB Board Accident Reports concerning the legal
opinions and conclusions regarding the probable cause for the
November 10, 2011 helicopter accident are not admissible at
trial.
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The NTSB Factual Accident Reports are admissible, with the
exception of any portion that expresses agency views or
conclusions as to the probable cause of the accident.
CONCLUSION
Plaintiff’s Motion in Limine No. 1: Limiting The Expert
Testimony Of Douglas E. Stimpson (ECF No. 428) is DENIED.
Plaintiff’s Motion in Limine No. 2: Prohibiting Reference To
The Probable Cause Report Of The National Transportation Safety
Board (ECF No. 429) is GRANTED, IN PART, AND DENIED, IN PART.
IT IS SO ORDERED.
Dated: January 8, 2020, Honolulu, Hawaii.

Violeta Escobar, also known as Violeta Escobar Cline,
Individually, and as Personal Representative for the Estate of
Nathan Cline, Deceased v. Nevada Helicopter Leasing, LLC, Civil
No. 13-00598 HG-WRP; ORDER DENYING PLAINTIFF’S MOTIONS IN LIMINE
NO. 1: LIMITING THE EXPERT TESTIMONY OF DOUGLAS E. STIMPSON (ECF
No. 428) and GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFF’S
MOTION IN LIMINE NO. 2: PROHIBITING REFERENCE TO THE PROBABLE
CAUSE REPORT OF THE NATIONAL TRANSPORTATION SAFETY BOARD (ECF No.
429)
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