PETROLEUM HELICOPTERS INC V. ROLLS ROYCE CORP

Filing 261

ENTRY following final pretrial conference- ORDER granting 242 Motion to Separate Witnesses. Signed by Judge Tanya Walton Pratt on 1/24/2017. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PETROLEUM HELICOPTERS, INC.,
Plaintiff,
v.
ROLLS ROYCE CORP.,
Defendant.

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Case No. 1:15-cv-00840-TWP-DML

ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE
This matter was before the Court for a Final Pretrial Conference on January 18, 2017, at
the Indianapolis Courthouse. Plaintiff Petroleum Helicopter, Inc. (“PHI”) appeared by counsel
Michael Ross Cunningham and Bruce L. Kamplain. Defendant Rolls Royce Corp. (“Rolls
Royce”) appeared by counsel Kevin R. Tully and Howard Carter Marshall. The Court Reporter
was David Moxley. During this final pretrial conference, the trial of this case was discussed and
the following rulings were made and directions given pursuant to Trial Rule 16.
1.

Due to congestion of the Court’s trial calendar, the six-day jury trial is rescheduled to begin

on Monday, April 3, 2017, at 9:00 a.m. in Courtroom 344, Birch Bayh Federal Building and
United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. The doors to the Courtroom
will be unlocked at 7:30 a.m. Attorneys are ordered to appear by 8:00 a.m., and jury selection will
begin promptly at 9:00 a.m. The issue to be tried is Plaintiff PHI’s claim of breach of implied
warranty of merchantability against Defendant Rolls Royce.
2.

The Court reviewed the parties’ witness lists to determine who will testify and the subject

of their testimony.

a.

PHI named fourteen witnesses: Tom Yakubovich, Mike Block, Davin Landry,
Terry Kaufman, Tony Gonzelez, Stephen Edney, Rick DeJong, Doug Cook, Ron
Roessler, Sharon Desfor, Gerhard Fuchs, Rolls Royce’s Corporate Representative,
Ross Cunningham, and Bruce Kamplain. (Filing No. 210.) Rolls Royce filed
written objections to Gerhard Fuchs and raised oral objections to Ross Cunningham
and Bruce Kamplain, which are addressed later in this Entry. (Filing No. 252.)

b.

Rolls Royce presented a list of nineteen named witnesses: Stephen Edney, Dough
Cook, Raymond Claxton, Michael Weber, Kathy Hunter, Scott Brendel, Ronald
Roessler, Rege Hall, Rick Dejong, Pablo Bravo, James Joseph Dardar, Michael
Wittman, Jared Brunet, Tad J. Kling, Michael Block, Tom Yakubovich, Gerhard
Fuchs, Sharon Desfor, and Douglas Stimpson. (Filing No. 227.) PHI filed written
objections to: 1) Douglas Stimpson, 2) Michael Wittman, 3) Jared Brunet, 4) James
Joseph Dardar, 5) Pablo Bravo, 6) Tad Kling, 7) Tom Yakubovich, 8) Michael
Block, and 9) Sharon Desfor, which are addressed later in this Entry. (Filing No.
244.)

c.

There are numerous overlapping witness. To avoid calling witnesses (other than
party witnesses) more than once, the parties should conduct direct and/or crossexaminations the first time a witness is called.

3.

The Court reviewed the parties’ exhibit lists.
a.

The parties’ Joint Exhibit List designated 1,258 exhibits (Filing No. 229). PHI filed
written objections to exhibits: 1-56; 300-421; 600-669; 800-1,258 (Filing No. 241),
and Defendant filed written objections to: 1-63; 300-421; 600-669; 800-1,258. The
parties advised that recent rulings by the Court will allow them to amend and reduce

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both witness and exhibit lists. The parties are to file amended witness lists and
exhibits list by March 3, 2017.
4.

Discussion was held regarding pending motions.
a.

Rolls Royce’s Motion to Separate Witnesses (Filing No. 242) is granted. Rolls
Royce seeks to exclude witnesses from trial other than when testifying, except
designated party representatives, pursuant to Federal Rule of Evidence 615. PHI
objects, and requests that the Court allow its expert witness, Gerhard Fuchs, to
remain in the courtroom throughout the trial. PHI contends that Dr. Fuchs’
presence is essential to the presentation of its case and the purpose of Dr. Fuchs’
presence in the courtroom is to consider and address the testimony of PHI’s three
non-retained experts, rather than to rebut the testimony of Rolls Royce’s witnesses.
See United States v. Olofson, 563 F.3d 652, 661 (7th Cir. 2009) (holding a district
court did not abuse its discretion in denying a defendant’s request to allow its expert
witness to remain in the courtroom in order to rebut the opposing party’s testimony,
where the defendant failed to show that the expert’s presence was essential to the
presentation of the his case). Thus far, PHI has not met this burden. Rolls Royce’s
motion for separation of witness is granted and PHI’s objection is overruled.

b.

Rolls Royce’s Motion to Strike Dr. Fuchs’ Supplemental Expert Report (Filing No.
252).

Rolls Royce seeks to exclude Dr. Fuchs’ supplemental expert report

exchanged on January 16, 2017, outlining Dr. Fuchs’ most recent experiment
exposing No. 2 bearing materials to various heat temperatures. In his supplemental
report, Dr. Fuchs concludes that the No. 2 bearing material had to reach in excess
of 1500° Fahrenheit, contradicting the temperatures reported by Roll Royce’s

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witnesses: Claxton, Rossler, and Cook. Rolls Royce contends that the supplemental
report is untimely and allowing the opinions would amount to surprise and undue
prejudice because it fails to afford Rolls Royce the opportunity to respond. Rolls
Royce alternatively requests the Court to continue trial in order to give Rolls Royce
the opportunity to examine Dr. Fuchs’ experiment and prepare a response. Because
the trial has been continued on the Court’s motion, undue prejudice and surprise
are not likely. Rolls Royce argues that said evidence should still be excluded
“outright” because PHI’s expert should have done the testing earlier, and “we have
deadlines for a reason.” PHI was not afforded an opportunity to respond to the
Motion to Strike, therefore the Court will give PHI until January 23, 2017 to
respond, and any reply is due on or before January 26, 2017. The motion is taken
under advisement.
5.

Discussion was held regarding PHI’s Objections (Filing No. 244). PHI objects to the

following:
a.

Deposition Testimony of Douglas Stimpson. PHI objects to Rolls Royce offering
any testimony from Stimpson because Rolls Royce did not designate him as an
expert witness. PHI contends that it retained Stimpson as an expert in the parallel
Louisiana litigation, regarding its claims against Apical Industries Inc. and
Offshore Helicopter Support Services, Inc. PHI did not designate Stimpson as an
expert regarding the issues in this case, and asserts that if Rolls Royce intended to
offer Stimpson as an expert it was required to designate Stimpson as an expert
witness in its disclosures. PHI argues, because Rolls Royce did not designate
Stimpson as an expert, it may not offer Stimpson’s deposition testimony as expert

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opinion testimony at trial. In response, Rolls Royce contends that, although
Stimpson was disclosed in the Louisiana case prior to Rolls Royce’s expert
disclosure deadline in this case, Rolls Royce was unaware of Stimpson prior to
disclosing its experts. There is no dispute that Rolls Royce was required to disclose
Stimpson as an expert pursuant to Federal Rule of Civil Procedure 26(a)(2). The
Court concludes that, because Rolls Royce has not established that its failure to do
so was harmless, PHI’s objection is sustained. See Musser v. Gentiva Health
Servs., 356 F.3d 751, 758 (7th Cir. 2004) (holding a district court did not abuse its
discretion in finding that a party lacked substantial justification for failing to
disclose its witness as an expert because a “misunderstanding of the law does not
equate to a substantial justification for failing to comply with the disclosure
deadline”).
b.

Deposition Testimonies of Michael Wittman, Jared Brunet, and James Joseph
Dardar. PHI objects to Rolls Royce offering any testimony from Wittman, Brunet,
or Joseph about their efforts to recover the aircraft after it landed in the Gulf of
Mexico, asserting that the testimony is not relevant to the issues before the Court.
PHI argues in the alternative, if the Court finds that the depositions are relevant to
the issues before the Court, allowing all three depositions that outline nearly
identical facts would be unnecessarily time consuming and more prejudicial than
probative. The Court granted in part and denied in part PHI’s objection.
Evidence regarding foreseeability is allowed, however, if witnesses testify in
person, deposition testimony is unnecessary. In addition, the parties agree to

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discuss filing a stipulation of facts regarding the issue of superseding cause and
foreseeability.
c.

Deposition Testimonies of Pablo Bravo and Tad Kling. PHI objects to Rolls Royce
offering any testimony from Bravo or Kling because their testimony is not relevant
to the issues before the Court. PHI contends that Bravo’s and Kling’s testimony
relates only to whether the parties in the pending Louisiana case were negligent,
but has no bearing on Rolls Royce’s foreseeability of the loss of the helicopter when
the engine failed. The Court granted in part and denied in part PHI’s objection.
Evidence regarding foreseeability is allowed, however, if witnesses testify in
person, deposition testimony is unnecessary. In addition, the parties agree to discuss
filing a stipulation of facts regarding the issue of superseding cause and
foreseeability.

d.

Deposition Testimony of Tom Yakubovich, Michael Block, and Sharon Desfor.
PHI objects to Rolls Royce offering any deposition testimony from Yakubovich,
Block, or Desfor because these witnesses are available for trial. PHI also objects to
Rolls Royce eliciting or offering any testimony from Block regarding an unrelated
case because the testimony is irrelevant and, if allowed, would confuse the jury.
PHI contends that Block’s deposition may be used only for impeachment purposes.
Rolls Royce agrees that, because the witnesses are available, certain deposition
testimony is not required at trial. Accordingly, PHI’s objection is sustained.

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6.

Discussion was held regarding Rolls Royce’s oral objections. Rolls Royce orally objected

to the following:
a.

Testimony of Ross Cunningham and Bruce Kamplain. Rolls Royce objects to PHI
eliciting testimony from Cunningham and Kamplain regarding the reasonableness
of attorneys’ fees, arguing that Indiana law does not provide attorneys’ fees in
breach of implied warranty of merchantability cases. PHI has failed to present any
authority for an award of attorneys’ fees. The parties agree that the issue of
Plaintiff’s attorneys’ fees, if any, should be determined following the jury verdict.
The Court will allow parties to provide briefing on this matter following trial, if
appropriate.

Accordingly, the Court takes under advisement ruling on this

objection.
7.

The parties filed stipulations of fact at Filing No. 230.

8.

On January 18, 2017, the Magistrate Judge held a settlement conference and the parties did

not reach a settlement. Parties are to continue settlement negotiations with the Magistrate Judge
if appropriate.
9.

Discussion was held regarding jury selection, the length of voir dire, opening statements,

and closing arguments.
a.

The Court intends to seat a jury of seven (7) members with no alternates. A panel
of approximately twenty-five (25) prospective venire will be called. The jury
questionnaires will be available for pick-up in person at the Indianapolis
Courthouse, Room 344, at 12:00 p.m. on Friday, March 31, 2017. Parties are to
comply with the Southern District of Indiana’s Juror Questionnaire Confidentiality
Agreement.

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b.

The Court will question the prospective jurors with its standard voir dire and may
incorporate questions submitted by counsel. After the Court completes its
questioning, counsel will have up to 15 minutes per side for follow-up questions
to the panel.

c.

Challenges for cause will be exercised at the bench. Each side will have three (3)
preemptory challenges which shall be exercised simultaneously and in writing. No
back-striking will be allowed.

d.

Each side will have up to 30 minutes for opening statements. Counsel shall advise
one another before opening statements of any demonstrative exhibits they intend to
use so that any objections may be resolved before the morning of trial.

e.

The amount of time allotted for closing arguments will be determined at the close
of evidence.

10.

Discussion was held regarding Instructions and Joint Issue Instruction:
a.

The Court will provide its preliminary jury instructions to counsel no later than
Wednesday, March 29, 2017. Objections to the Court’s instructions are due no
later than 12:00 p.m. on Friday, March 31, 2017.

b.

The parties filed joint proposed final jury instructions at Filing No. 249. The parties
shall continue to review proposed final instructions based upon recent rulings made
by the Court.

c.

The parties have not filed proposed verdict forms. Parties shall file a joint proposed
verdict form by Friday, March 3, 2017.

11.

The parties filed stipulations of fact at Filing No. 230.

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12.

Discussion was held regarding deposition testimony. The Defendant submitted Deposition

Testimony Designations on January 4, 2017 (Filing No. 228). Plaintiff filed written objections on
January 11, 2017 (Filing No. 244) which are addressed above.
13.

If either party would like to use the Court’s Video Evidence Presentation System

(“VEPS”), counsel was instructed to schedule training with the Courtroom Deputy Clerk.
14.

Counsel should review Judge Pratt’s “Courtroom Procedures and Trial Practice” (Filing

No. 175) before the start of the trial.
No further discussion was held.
SO ORDERED.
Dated: 1/24/2017

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DISTRIBUTION:
Kevin R. Tully
CHRISTOVICH & KEARNEY LLP
[e-mail]
Howard Carter Marshall
CHRISTOVICH & KEARNEY LLP (NO)
[e-mail]
W. Nicholas Dietzen, IV
CHRISTOVICH & KEARNEY, LLP
[e-mail]
Alex J Whitman
CUNNINGHAM SWAIM LLP
[e-mail]
Michael Ross Cunningham
CUNNINGHAM SWAIM, LLP
[e-mail]
Bruce L. Kamplain
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]
Matthew W. Melton
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]

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