Eiserman et al v. Kentucky Power Company et al

Filing 170

MEMORANDUM OPINION & ORDER: The United States' motion 124 in Limine regarding Daubert Issues is GRANTED in part and DENIED in part. Signed by Judge Danny C. Reeves on 04/21/2016.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
ERWIN EDWARD EISERMAN, et al.,
Plaintiffs,
V.
KENTUCKY FUEL CORPORATION,
et al.,
Defendants.

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Civil Action No. 5: 14-444-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of the United States’ motion to limit the

opinion testimony of three proposed expert witnesses.

[Record No. 124]

Because its

objections to two of the proposed experts are now moot, the United States’ motion will be
denied in part. However, the motion will be granted insofar as it seeks to limit the testimony
of the third proposed expert, Clyde Pittman.
I.
On July 29, 2013, Plaintiff Erwin Eiserman, acting in the scope of his employment
with the Kentucky State Police, was a passenger in a helicopter operated by Andrew Croddy,
an agent of the United States Drug Enforcement Agency. [Record Nos. 66, 79, and 84] The
helicopter crashed when it made contact with a utility wire in a remote area of Breathitt
County, Kentucky. [Record Nos. 79 and 147-1] Eiserman and Croddy sustained serious
injuries from the crash.
Eiserman and his wife filed a Complaint in Breathitt Circuit Court, seeking
compensatory and punitive damages from Kentucky Power Company (“the power
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company”), Consol of Kentucky, Inc. (“Consol”), and John Doe, an unknown Consol
employee. [Record No. 1-1, pp. 11-20] The Complaint alleged that the unmarked utility line
was constructed and owned by the power company and Consol. Id. at 13. In a Third Party
Complaint, the power company and Consol sought apportionment and contribution from
Croddy. Id. at pp. 5-10. After Croddy removed the case to this Court, the United States
substituted itself in place of Croddy. [Record Nos. 1 and 11]
The plaintiffs later amended their Complaint, adding Kentucky Fuel Corporation
(“KFC”) as a defendant. [Record No. 53] The plaintiffs allege that KFC also “constructed,
and/or owned or leased” the utility line that caused the crash. Id. at 2. Thereafter, they
amended the Complaint a second time to include the United States as a defendant. [Record
No. 79]
The United States filed crossclaims against the power company, Consol, and KFC,
alleging that all three entities were negligent in maintaining the utility line. [Record No. 94]
The United States sought reimbursement for worker’s compensation expenses it paid to
Croddy. Id. It has now been established that KFC owned the utility line at the time of the
accident, and all claims against the power company and Consol have been dismissed.
[Record Nos. 144, 155, and 156] However, the United States’ crossclaim against KFC
remains pending. The plaintiffs’ claims against the United States, KFC, and John Doe are
pending as well.
II.
The admission of expert testimony is governed by Rule 702 of the Federal Rules of
Evidence, which provides,

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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 Rule reflects the Supreme Court’s holding in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Fed. R. Evid. 702 advisory committee’s
note (2000 Amendments). In Daubert, the Court explained that Rule 702 is intended to
provide a flexible framework for deciding whether expert testimony is sufficiently reliable
for presentation to the jury. 509 U.S. at 594. See also United States v. Jones, 107 F.3d 1147,
1156 (6th Cir. 1997) (finding that the trial judge still serves an important gatekeeping role
after Daubert, requiring him to determine whether evidence is not only relevant, but also
reliable.). While trial court judges serve as evidentiary gatekeepers, rejection of expert
testimony is the exception rather than the rule. See Fed. R. Evid. 702 advisory committee’s
note (2000 Amendments).
III.
In its motion in limine, the United States seeks to prevent three of the proposed expert
witnesses from testifying that Croddy caused the crash by operating the helicopter at an
altitude below 500 feet. [Record No. 124]

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A.

Clyde Pittman

The United States seeks to limit the expert testimony of Clyde Pittman, an electrical
engineer retained by KFC.1 [Record No. 124-1, pp. 4-5] For a number of years, Pittman
worked for the Federal Aviation Administration (“FAA”). [Record No. 124-2, p. 2] In his
report, Pittman primarily addresses: (i) whether KFC was required to notify the FAA that the
utility line existed and (ii) whether the FAA regulations obligated KFC to mark the line so
that it would be readily visible to air traffic. [Record No. 124-3] Pittman also briefly
discusses the FAA regulation governing the minimum flying altitude for aircraft. Id. at 7.
Pittman concludes that the FAA notice and marking requirements do not apply to the utility
line. Id. at 13. Further, he states that, “had the pilot not descended below 500 ft above
ground level as prescribed by FAR 91.119[,] the crash never would have happened.” Id.
The United States does not seek to exclude Pittman’s opinion regarding the FAA’s
notice and marking requirements. Instead, it argues that Pittman is not qualified as an expert
on proper helicopter operation. [Record No. 124-1, p. 5] Pittman is not a pilot. [Record No.
124-2, p. 3] Further, during his time with the FAA, he did not investigate any airline crashes
nor is he trained to do so. Id. at 2. He also testified during his deposition that his opinion
regarding the case pertained strictly to the question of whether “the power line owners or
companies [were obligated] to report this line area to the FAA[.]” Id. at 3.
The United States also criticizes Pittman for relying on the altitude and visibility
findings from other reports instead of conducting his own independent investigation.

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Pittman’s report states that it was prepared for Attorney Randy May. [Record No. 124-3,
p. 2] Randy May represents the power company and Consol, but Consol and KFC filed a joint
response defending Pittman’s expert report and opinion. [Record No. 130] Because Consol and
the power company have been dismissed, this opinion will refer to Pittman as KFC’s proposed
expert.

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[Record No. 124-1, p. 5] However, the Court need not decide this particular point because
Pittman’s testimony establishes that he is not qualified to offer an expert opinion regarding
the proper flying altitude for helicopters. KFC has failed to offer any contrary proof. In fact,
the record does not contain any evidence showing that Pittman has experience or special
knowledge regarding helicopter operations.
Moreover, Pittman’s conclusion on this subject does not meet Rule 702’s requirement
that expert opinion “help the trier of fact to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702(a). The fact that the utility line was less than 500 feet above the
ground is well-established by the evidence. Thus, a layperson could conclude, without an
expert’s assistance, that the helicopter would not have made contact with the utility line if
Croddy had kept the helicopter above 500 feet. Any juror could easily reach that conclusion
without “scientific, technical, or other specialized knowledge.” Id. See Ancho v. Pentek
Corp., 157 F.3d 512, 517 (7th Cir. 1998) (An expert “must testify to something more than
what is obvious to the layperson in order to be of any particular assistance to the jury.”)
(internal quotation marks and citation omitted). Therefore, the United States’ motion will be
granted insofar as it seeks to limit Pittman’s testimony to his area of expertise, namely FAA
notice and marking regulations.
B.

John Derald Morgan

The United States also seeks to limit the testimony of John Derald Morgan, an
electrical engineer retained by the power company. [Record No. 124-1, pp. 6-7] The power
company responded, objecting to the United States’ motion. [Record No. 128] However, the
power company is no longer a party.

And because no other party has addressed the

admissibility of Morgan’s testimony, the United States’ objections to Morgan’s testimony
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will be denied as moot. The United States may renew its motion if another party proposes to
introduce Morgan’s testimony during the upcoming trial.
C.

Gregory Feith

Finally, the United States’ motion challenges the expert opinion of Gregory Feith, a
former National Transportation Safety Board investigator retained by the plaintiffs. [Record
No. 124-1, p. 7] However, the United States has since withdrawn its in limine request
regarding Feith. [Record No. 142, p. 4] Accordingly, insofar as the motion seeks to limit
Feith’s proposed testimony, it will be denied as moot.
IV.
For the foregoing reasons, it is hereby
ORDERED that the United States’ motion in limine regarding Daubert issues
[Record No. 124] is GRANTED, in part, and DENIED, in part, as explained more fully
above.
This 21st day of April, 2016.

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