Leahy et al v. Lone Mountain Aviation, Inc.

Filing 65

ORDER Denying 51 Motion in Limine and 52 Motion for Summary Judgment. IT IS FURTHER ORDERED that the parties shall submit a Joint Pretrial Order within 30 days from the date of this Order. Signed by Judge Gloria M. Navarro on 9/25/2012. (Copies have been distributed pursuant to the NEF - EDS)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4
5
6
7
8
9
10
11

SUSIE LEAHY, individually and as Guardian
ad Litem for REBECCA SUSAN LEAHY, a
minor, HANNAH JOY LEAHY, a minor, and
WILLIAM JOHN LEAHY, III, a minor,

)
)
)
)
)
Plaintiffs,
)
vs.
)
)
LONE MOUNTAIN AVIATION, INC., a
)
corporation; and DOES 1 through 20, inclusive, )
)
Defendants.
)
)

Case No.: 2:10-cv-00082-GMN-PAL
ORDER

This is diversity action filed by the sole surviving heirs of decedent William John Leahy,

12
13

Jr. – California residents Plaintiff Susie Leahy, individually, and as Guardian ad Litem for

14

Plaintiffs Rebecca Susan Leahy, Hannah Joy Leahy, and William John Leahy, III, who are

15

minors (collectively, “Plaintiffs”) – against Defendant Lone Mountain Aviation, Inc., and Does

16

1 through 20, inclusive. Pending before the Court is the Motion in Limine and Motion for

17

Summary Judgment filed by Defendant Lone Mountain Aviation, Inc. (“Lone Mountain

18

Aviation”). (ECF Nos. 51, 52.)1 Plaintiffs filed a Response (ECF No. 57) and Lone Mountain

19

filed a Reply (ECF No. 63).

20

I.

BACKGROUND
On August 28, 2008, William John Leahy, Jr. was piloting a twin-engine Piper PA-31-

21
22

350 Navajo Chieftain aircraft from Las Vegas, Nevada, to Palo Alto, California, when it

23

apparently lost power, caught on fire, and crashed shortly after takeoff, resulting in his death.

24
25

Although Lone Mountain filed the motions as one brief, the Clerk’s Office re-filed the brief so that each motion
is represented by a different docket number – the Motion in Limine at ECF No. 51, and the Motion for Summary
Judgment at ECF No. 52.
1

Page 1 of 7

1

Plaintiffs filed suit in this Court alleging two causes of action: (1) Negligence Causing

2

Wrongful Death; and (2) Strict Liability for Product Defect and Failure to Warn. (Compl., ECF

3

No. 1.) Plaintiffs also filed suit against Signature Engines, Inc. (“Signature Engines”), in the

4

United States District Court for the Southern District of Ohio, Leahy v. Signature Engines, Inc.,

5

No. 1:10-cv-00070-SSB-KLL, and requested consolidation before a Multi-District Litigation

6

Panel which was denied in June 2010. (ECF No. 29.)2

7

In its Answer, Defendant Lone Mountain Aviation admitted that it is an aircraft

8

maintenance facility that performed services on the subject aircraft prior to the crash. (ECF No.

9

15.) Specifically, Lone Mountain Aviation changed the oil and filter on the left engine on July

10

28, 2008, and issued an Export Certificate of Acceptance on August 15, 2008, for export of the

11

plane to South Korea. (Def.’s MIL-MSJ, 3:12-15.)

12

A Discovery Plan and Scheduling Order was issued in June 2010 (ECF No. 31) and an

13

extension was granted in March 2011 (ECF No. 37). Dispositive motions were due February 6,

14

2012, (ECF No. 50) and the instant motion is the sole dispositive motion that was filed before

15

this Court.

16

With the instant motion, Defendant Lone Mountain Aviation “is seeking a preliminary

17

ruling pursuant to [Federal Rule of Evidence] 104 to determine whether the opinions set forth

18

by Plaintiffs’ witnesses are admissible under [Federal Rule of Evidence] 702.” (Def.’s MIL-

19

MSJ, 5:13-14, ECF No. 51.) Defendant explains that “this is a Motion to first determine if the

20

Plaintiffs’ experts can testify and then it seeks Summary Judgment on all claims.” (Id. at 5:17-19)

21

II.

“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings,

22
23

LEGAL STANDARD

the practice has developed pursuant to the district court’s inherent authority to manage the

24
25
2

Trial is currently set for November 5, 2012. Scheduling Order, Leahy v. Signature Engines, Inc., No. 1:10-cv00070-SSB-KLL (S.D. Ohio June 27, 2012), ECF No. 78.

Page 2 of 7

1

course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Federal Rule of

2

Evidence 103(c)). In limine rulings “are not binding on the trial judge, and the judge may

3

always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758

4

n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to

5

change, especially if the evidence unfolds in an unanticipated manner).

6

The admissibility of expert testimony is governed by Federal Rule of Evidence 104,

7

which provides for a court to decide “any preliminary question about whether a witness is

8

qualified, a privilege exists, or evidence is admissible.” Fed. R. Evid. 104(a). “In so deciding,

9

the court is not bound by evidence rules, except those on privilege.” Id. In order to satisfy the

10

burden of proof for Rule 104(a), a party must show that the requirements for admissibility are

11

met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175

12

(1987) (“We have traditionally required that these matters [regarding admissibility

13

determinations that hinge on preliminary factual questions] be established by a preponderance

14

of proof.”).

15
16

Federal Rule of Evidence 702 provides that a qualified expert witness may provide
testimony in the form of an opinion if the Court finds that:
(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.

17
18
19
20
21

Fed. R. Evid. 702. In 2000 this rule was amended in response to Daubert v. Merrell Dow

22

Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny, including Kumho Tire Co. Ltd. v.

23

Carmichael, 526 U.S. 137 (1999).

24

III.

25

DISCUSSION
With the instant motion, Defendant argues that the “opinions [of Plaintiffs’ witnesses

Page 3 of 7

1

Douglas Stimpson, Harry Hasegawa, and Manuel Raefsky] do not meet the standards for

2

admissibility.” (Def.’s MIL-MSJ, 16:12-13.) To support this argument and to contradict

3

Plaintiffs’ witnesses, Defendant cites these three witnesses’ depositions, as well as to the

4

depositions of eyewitnesses to the crash, Robert Dubro, Kimberly Layton-Shah, and her son

5

Dallin Layton. (Exs. E-G, I-L to Def.’s MIL-MSJ.) Defendant also provides copies of the

6

National Transportation Safety Board (NTSB)’s reports. (Exs. C-D to Def.’s MIL-MSJ.)

7

A.

8

The parties’ briefs and exhibits provide the following factual background. The plane’s

Factual Background

9

owner had arranged to transport the plane from the United States to South Korea for sale. In

10

Cincinnati, Ohio, Signature Engines was hired to overhaul the two engines. One pilot, Fred

11

Sorenson, was originally hired to transport the plane from Cincinnati, Ohio, to Las Vegas,

12

Nevada, and then to South Korea. After flying the plane from Cincinnati to Las Vegas in June

13

or July of 2008 and encountering problems, Sorenson took the plane to Lone Mountain

14

Aviation for repair.

15

Lone Mountain Aviation changed the oil and filter on the left engine on July 28, 2008,

16

and issued an Export Certificate of Airworthiness3 on August 14, 2008, for export of the plane

17

to South Korea. (Def.’s MIL-MSJ, 3:12-15; Pls.’ Resp., 4, ECF No. 57.)

18

After delays in obtaining Federal Aviation Administration (FAA) permits in Las Vegas,

19

William John Leahy, Jr., was hired instead of Sorenson to fly the plane to Palo Alto to obtain

20

the FAA permits before then flying the plane to Korea. Leahy flew to Las Vegas by

21

commercial air on August 28, 2008 to meet with Sorenson and to transport the plane.

22
23

The NTSB report states that within minutes of departing North Las Vegas Airport
(VGT) the plane “experienced a loss of right engine power during en route climb” and Leahy

24
25

Defendant’s Motion in Limine refers to this as an “Export Certificate of Acceptance,” and uses the date August
15, 2012, but the Court will refer to the document as referenced by the Plaintiffs, and will use the date alleged by
Plaintiffs.
3

Page 4 of 7

1

“attempted an emergency landing back at VGT.” (NTSB Report, 1, Ex. C to Def.’s MIL-MSJ.)

2

Less than ten minutes after departing, Leahy “advised the Las Vegas Terminal Radar Approach

3

Control (TRACON) facility that he was declaring an emergency and desired to immediately

4

return to VGT” and he was immediately cleared. (Id.) Leahy “broadcast that he had an ‘engine

5

failure rough engine.’” (Id.) Less than fifteen minutes after departure and less than a mile and a

6

half from the airport, the plane crashed into a residential neighborhood in flames and Leahy

7

was dead. (Id. at 1-1a.)

8

Eyewitnesses reported smoke, fire and flames coming from the plane as it descended,

9

particularly the right engine. (Id. at 1a.) One eyewitness, Dubro, reported “two or three quick

10

puffs of smoke” produced by the left engine, of which “[o]ne smoke stream was about 20 feet

11

long, and then the smoke stopped.” (Id.) At the time of the accident flight, “[t]he engines’ total

12

time since last major overhaul was about 26 hours.” (Id. at 1b.)

13

B.

14

As discussed below, the Court finds that Defendant’s motion lacks clarity as to which

Analysis

15

specific opinions of the three experts are inadmissible. Defendant makes blanket statements in

16

the motion such as “there is no testimony by any of the Plaintiffs’ experts that meet with the

17

reliability requirements of FRE 702 and which would assist any trier of fact at arriving at an

18

opinion in this case.” (Def.’s MIL-MSJ, 26:6-9.) However, Defendant does not specify the

19

exact opinions that are inadmissible, nor is Defendant clear as to the factual grounds supporting

20

each argument. Instead, Defendant recites excerpts of the depositions and the NTSB reports,

21

and requests that the Court find that each witness’s testimony is completely inadmissible.

22

Defendant’s request for summary judgment in its favor likewise lacks factual support.

23
24
25

Because Defendant’s arguments focus on Stimpson, the Court addresses this first.
Defendant begins with a quotation from Stimpson’s deposition:
I believe that what occurred was a fire started in the area of the left engine
accessory area where the exhaust system vents, or it goes overboard from the
Page 5 of 7

1
2
3

turbocharger, and that a fire erupted most likely from the oil and fuel in that area,
and I'll tell you now, so you know where I'm coming from, I believe most likely it
was the oil from the oil breather system, the air-oil separator, and that caused a
fire, and ultimately caused a crash.

4

(Stimpson Deposition, Ex. I, 6:18–7:1, ECF No. 51-9.) Defendant also states that Stimpson

5

opined that “the defect in the turbo exhaust pipe would have been present at the time Signature

6

Engines overhauled the engines.” (Def.’s MIL-MSJ, 16:24-25.)

7

Defendant then argues that Stimpson’s opinion “does not comport with the findings of

8

the NTSB,” and raises questions regarding Stimpson’s deposition testimony, as well as the

9

testimony of Raefsky and Hasegawa, such as, “Why would Mr. Leahy have feathered the right

10

engine if his left engine was on fire?” and “[t]he question then is why there wasn’t a fire before

11

August 28, 2008.” (Def.’s MIL-MSJ, 17:5, 14-16, 21-22.) Defendant then argues that “[t]here

12

was no physical evidence of any in-flight fire of the left engine, and all we are looking at are

13

assumptions, conjecture and guesses on the part of these experts.” (Def.’s MIL-MSJ, 18:21-23.)

14

Defendant closes with an argument that because Raefsky, Stimpson and Hasegawa did

15

not conduct testing to simulate the accident, their testimony is without sufficient basis and must

16

be “rejected.” (Def.’s MIL-MSJ, 25:11-23.)

17

However, as explained by Plaintiffs in their Response, each witness based their opinions

18

on their observations, the reports about the accident, and their training and experience. Because

19

Defendant’s arguments are directed toward the conclusions reached by Stimpson, Raefsky and

20

Hasegawa, and not the basis for the conclusions, the Court finds no grounds on which to grant

21

the motion pursuant to Federal Rule of Evidence 702. At this time, the Court is not persuaded

22

that Plaintiffs’ witnesses rely on insufficient facts or data, or that their testimony is the product

23

of unreliable principles and methods, or unreliable application of the facts to those principles

24

and methods.

25

Also, because most of the issues raised by Defendant address the weight of the experts’

Page 6 of 7

1

opinions, and not the reliability of their testimony, the Court agrees with Plaintiffs that these

2

questions are not proper grounds for a motion in limine, but are more properly reserved for

3

cross-examination. Accordingly, the motion will be denied. Defendant may raise the issue

4

again at trial.

5

Defendant’s Motion for Summary Judgment is based on the argument that Plaintiffs

6

cannot tie Lone Mountain Aviation to the engine fire. The Court agrees with Plaintiffs that

7

Defendant’s Motion for Summary Judgment also lacks sufficient factual evidence and is

8

procedurally insufficient. Accordingly, the Motion for Summary Judgment will be denied as

9

well.

10
11
12
13
14
15

IV.

CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion in Limine and Motion for

Summary Judgment (ECF Nos. 51, 52) are DENIED.
IT IS FURTHER ORDERED that the parties shall submit a Joint Pretrial Order within
thirty (30) days from the date of this Order.
DATED this 25th day of September, 2012.

16
17

_____________________________
Gloria M. Navarro
United States District Judge

18
19
20
21
22
23
24
25

Page 7 of 7