Leahy v. Signature Engines, Inc. et al

Filing 76

ORDER denying 53 Motion in Limine; denying 54 Motion in Limine. Signed by Judge Sandra S Beckwith on 4/24/12. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Susie Leahy, individually and as
Guardian ad litem, et al,
Plaintiffs,
vs.
Signature Engines, Inc., et al,
Defendants.

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Case No. 1:10-cv-070

ORDER
Plaintiff Susie Leahy, for herself and as guardian ad litem
of her minor children, brought this wrongful death action against
Signature Engines, Inc. (“Signature”), O&N Aircraft
Modifications, Inc., Avionics, Inc., and unidentified Does.

Her

deceased husband, William Leahy, perished in the crash of a Piper
Navajo Chieftain airplane he was piloting shortly after taking
off from the North Las Vegas Airport on August 28, 2008.

All of

the named defendants had performed work or provided parts and
materials for the plane’s engines a few months before the crash.
Plaintiffs have dismissed their claims against O&N (Doc. 36)
and Avionics (Doc. 37), leaving Signature as the sole defendant.
Signature overhauled the airplane’s engines approximately five
months before the crash.

Plaintiffs generally allege that

Signature was negligent in performing that work and specifically
failed to detect a breach in an engine exhaust pipe, which

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Plaintiffs allege caused or contributed to the crash and Leahy’s
death.
Plaintiffs have filed a motion in limine seeking to exclude
the testimony of Signature’s expert, Roch J. Shipley.

(Doc. 54)

Signature has filed a motion seeking to exclude Plaintiffs’
experts Douglas Stimpson, Manuel Raefsky, and Harry Hasegawa.
(Doc. 53)

Both motions argue that the experts’ opinions are

inadmissible under Fed. R. Evid. 702 and the principles
articulated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993) and its progeny.
FACTUAL BACKGROUND
The two-engine Piper Chieftain airplane involved in this
case was owned by a California resident, Ken Park, who had
reached an agreement to sell the plane to a Korean company.

The

airplane apparently required some servicing and modifications for
a flight to Korea, and Park hired Signature in Cincinnati, Ohio
to overhaul both of the plane’s engines.
Cincinnati sometime in March 2008.

The plane was flown to

Signature removed both

engines and reinstalled them on or about April 3, 2008.

Avionics

(the dismissed defendant) installed two long range “nacelle” fuel
tanks in each engine compartment behind a firewall, and performed
an annual inspection of the plane in Cincinnati on June 25, 2008.
The owner hired pilot Fred Sorenson to fly the plane from
Cincinnati to the North Las Vegas Airport in Nevada in late June,

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where Sorenson intended to make final modifications and obtain
the necessary permits to fly the plane to Korea.
Sorenson encountered some problems with the airplane en
route from Cincinnati to North Las Vegas (described as a failed
left vacuum pump, leakage in the air conditioning system, an
engine idle problem, and a leak in an “inboard door actuator”).
A Nevada company, Lone Mountain Aviation, worked on the plane to
address these issues and performed other maintenance work,
including an oil change.

Lone Mountain issued an Export

Certificate of Airworthiness for the plane on August 14, 2008.1
On August 10, Sorenson noted in the airplane’s log book that he
completed an inspection in accordance with the airplane
manufacturer’s checklist.
At some point in August, Sorenson also installed four longrange “ferry” fuel tanks in the airplane.

This work required

Sorenson to install new fuel lines for these additional tanks.
This additional fuel system required FAA approval before the
plane could be flown, but Sorenson encountered some difficulty
obtaining that approval from the local FAA office.

The plane’s

owner then hired another pilot, Mr. Leahy, to fly the plane to
Palo Alto, California, where Leahy planned to obtain the

1

Plaintiffs also filed a lawsuit in the Nevada district
court against Lone Mountain Aviation, Inc., and sought a
transfer order under 28 U.S.C. §1407. The MDL Panel denied that
request, but the parties have apparently tried to coordinate
discovery in both cases.
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necessary FAA permits and then fly the plane to Korea.

Sorenson

sought a temporary FAA permit to allow the plane to be flown to
Palo Alto with the ferry fuel tank system installed, but this was
denied.

Sorenson was instructed to disconnect the ferry tank

fuel system and reconnect the original fuel lines prior to the
flight to Palo Alto.

(Plaintiffs’ expert Stimpson concedes that

there is no documentation verifying that either Sorenson or Leahy
removed the ferry fuel lines or reinstalled the original Piper
fuel lines.)
Leahy arrived in Las Vegas on August 28, and went with
Sorenson to the airplane.

According to Sorenson’s statement, he

and Leahy were together while Leahy “pre-flighted the airplane.”
There is documentation that Leahy bought 132 gallons of fuel that
day, and he departed the airport at 2:23 p.m.

Eight minutes

later, Leahy reported an emergency and told the air controller
that he needed to return to the airport.
reported “engine failure rough engine.”

One minute later he
Approximately two

minutes later, the plane clipped some power lines and crashed
into a house about one and a half miles short of the airport’s
runway.

Leahy died in the crash, and the plane was largely

destroyed in the resulting fire.
The NTSB investigated the crash.

According to the NTSB’s

factual report (Doc. 62, Ex. F), a “tee” fitting was found in the
wreckage, which Sorenson identified as part of the ferry fuel

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tank lines.

The NTSB noted that the fractured surfaces of the

components “visually matched each other, which was consistent
with the tee fitting having been connected to the airplane’s fuel
system at the time of the accident.”

(Id. at pg. 1g)

A piece of

another fuel line was also found at the scene, which Sorenson
believed was a piece of the original fuel line.

According to the

NTSB factual report, Sorenson said that the original line should
have been connected to the plane’s fuel system rather than the
“tee” fitting.

The NTSB and a representative from Hartzell, the

propeller manufacturer, examined the propeller assemblies and
found evidence that “little or no rotational energy” was present
in the right propeller at the time of impact, as the blades
“appeared to have been feathered.”

Hartzell’s representative

reported that at impact (based on his observations of the
assembly), the left engine was apparently producing its maximum
rated horsepower.

(Id.)

Several witnesses reported to NTSB that they had seen the
plane coming down.

One saw the right side engine putting out

black smoke; a second witness saw puffs of smoke and then a
continuous stream of white smoke from the right engine.
saw flames beneath the right engine.

He then

A third witness saw the

plane south of his position, and saw a continuous stream of white
smoke from the right engine as it descended along with fire and
flames.

He reported seeing two or three quick puffs of smoke

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from the left engine, but did not see any fire.

Another witness

who was in a car close to the crash site saw the plane coming
down, and reported seeing smoke and flames coming from its right
side.
During later inspections of the wreckage, the experts
documented an area of cracks, fractures and holes near an elbow
in the left engine’s exhaust pipe.

The right engine exhaust pipe

did not display any similar damage.
The Challenged Experts’ Opinions
Plaintiffs’ expert Douglas Stimpson concluded that the holes
and the breach observed in the left engine exhaust pipe would
have taken some time to form, “and most likely would have been
present during the engine change that was performed by Signature
Engines on April 3, 2008.”

(Stimpson also believes that damage

would have been present during Avionics inspection in June,
Sorenson’s inspection in August, and when Lone Mountain performed
its work and issued an airworthiness certificate.)

Stimpson

opined that the plane took off the day of the accident with a
defective left engine exhaust pipe, and that the holes and cracks
... allowed the hot exhaust gas to be
directed into the engine nacelle area in the
area of the engine firewall instead of being
routed overboard. This would have allowed
extreme heat to build up in the area of the
engine and firewall area. The area behind
the left engine firewall contained the
[nacelle] fuel tank that was installed by
Avionics Inc. on June 27, 2008. ...
The fire most likely started in the left
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engine/nacelle area due to the breach in the
turbo exhaust pipe that allowed superheated
exhaust gas to ignite the flammable fluids
that are located in that area. The
examination of the left side of the aircraft
revealed that it had substantially more fire
damage than the right side and that the fire
most likely started in that area.
(Doc. 62, Ex. D, Stimpson report at 7-8)
Plaintiffs also retained Harry Hasegawa, a fire sciences
consultant, who worked with Stimpson.

Hasegawa’s report notes

that most of the plane was destroyed by the crash and resulting
fire.

But he observed that “Generally, the whole left side of

[the] aircraft had been destroyed.

Although most of the right

side was destroyed, more of it remained than the left side.

The

remaining parts suffered various degrees of damage caused by the
crash impact and/or the post crash fire.”

(Doc. 53, Ex. L at 5)

Hasegawa acknowledged the eyewitnesses’ reports of fire and smoke
in the area of the right engine, but stated that his analysis
indicated that the left engine experienced problems, and that the
witnesses on the ground may have been confused due to their
orientation vis-a-vis the position of the plane as it was coming
down.
Because the fire developed so quickly after takeoff,
Hasegawa opined that the fire was ignited by flammable liquids
such as oil or gas.

He then concluded that “the fracture and

breach in the left engine turbo exhaust [pipe] would provide a
viable ignition source for an engine fire.
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Leaking turbo exhaust

gases typically reach temperatures of approximately 1600EF.”
(Id. at 7.)

He noted that Sorenson and Leahy had both reported

engine problems, and that one eyewitness reported hearing an
engine sputtering before the crash.

“All of these facts are

consistent with a malfunction and subsequent fire in the left
engine.”

(Id.)

Plaintiffs’ third expert, Manuel Raefsky, is a consulting
engineer providing technical services concerning materials
selection, materials processing, materials inspection, process
control, and failure analysis.

Following an agreed protocol in

the fall of 2011, Raefsky and others removed four samples from
the left exhaust pipe, and three from the right.

Two of the

left-side specimens included portions of the area that Stimpson
and Hasegawa pointed to as a cause of a left engine fire.

The

samples were then examined and tested, including scanning
electron microscopy fractography and metallographic exams.
Based on these examinations and the circumstances of the
accident, Raefsky opined that the “breach and associated cracking
observed in the left engine exhaust overboard pipe ... was the
result of a long term erosion process that locally thinned the
wall thickness to the point where it could no longer contain the
internal operating pressure.”

The long-term erosion of the

stainless steel pipe “thinned and pitted the base metal to the
point where it ‘blew out.’”

Raefsky believes that the erosion

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process culminating in the breech in the pipe occurred over a
significant period of time, much longer than the 26 hours of
flight operation the plane experienced between the time that
Signature overhauled the engines and the date of the crash.

He

concluded: “Had the pipe been removed at the time of overhaul,
any fire resulting from ignition by the hot [exhaust] gases would
have been prevented.”

(Doc. 53, Ex. G, Raefsky Report at 5)

Signature retained Roch Shipley, a consultant/investigator
who specializes in “... design, manufacture, materials, and
operational factors, including independent failure analyses.
Specializes in complex issues involving multiple disciplines
and/or accident reconstruction.

...

Work includes evaluation of

components from aircraft, automobiles, trucks, railroad,
industrial equipment, fire-damaged artifacts, electrical and gas
appliances, and utility equipment.”

(Doc. 62, Ex. A)

Shipley

believes that the physical evidence does not support Stimpson’s
opinion that the left engine exhaust pipe developed a hole due to
long-term erosion that was present when Signature Engines
overhauled the engines in March-April 2008.

Shipley believes

that the holes, breeches and cracks observed on the pipe were
caused during the accident or from handling of the wreckage after
the accident.

Based on photographs and his visual inspection, he

opines that external pressure on the pipe pushed material toward
the inside, and that the holes were not formed while the engines

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were in operation.

Shipley also opines that even if a small hole

(1/2 inch diameter) was present in the exhaust pipe prior to the
crash, the volume of exhaust gases leaking through that hole
would not be sufficient to ignite a fire in the scenario
hypothesized by Stimpson and Hasegawa.
Given the evidence suggesting a problem with the right
engine and the eyewitness reports of fire on the right, Shipley
concludes that a “much simpler explanation, supported by the
evidence, can be found in the fact that the subject flight was
the first flight after the installation of the un-airworthy, not
FAA approved, uncompleted, and left-in-service aircraft temporary
ferry fuel system.

Specifically, it is more likely than not that

a malfunction/leak in this system led to the failure of the right
engine.”

(Id. at 20)
ANALYSIS

Fed. R. Evid. 702 permits an expert witness who is qualified
to do so, to offer an opinion when the Court finds:
(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.
The Supreme Court held that the Rule 702 gate-keeping inquiry is
“a flexible one,” and the Court’s focus ... must be solely on

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principles and methodology, not on the conclusions they
generate.”

Daubert v. Merrell Dow, 509 U.S. at 594-95.

Although there is no definitive checklist of factors that must be
satisfied, relevant factors include whether the theory or
technique employed by an expert has or can be tested, whether it
has a known error rate, and whether it is generally accepted in
the relevant scientific or technical community.

Id. at 593-94.

The inquiry is “context-specific, and must be tied to the facts
of a particular case."

Surles ex rel. Johnson v. Greyhound

Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007).

In this case,

involving several disciplines relevant to accident investigation
and reconstruction, the expert’s personal knowledge and past
experience in those disciplines are important factors to be
considered, and somewhat less emphasis placed on whether a basic
scientific theory has been subjected to peer review or rigorous
testing.
The Supreme Court has also cautioned that “[t]he court may
not exclude an expert’s opinion because it disagrees with his
conclusions.

Nevertheless, conclusions and methodology are not

entirely distinct from one another.
extrapolate from existing data.

Trained experts commonly

But nothing in either Daubert or

the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the
ipse dixit of the expert.

A court may conclude that there is

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simply too great an analytical gap between the data and the
opinion proffered.”

General Electric v. Joiner, 522 U.S. 136,

146 (1997).
Plaintiff’s Experts
1.

Manuel Raefsky

Raefsky has a bachelor’s degree in metallurgical engineering
and post-graduate studies in materials sciences and fracture
mechanics.

He spent almost forty years in various industrial and

engineering positions, including with the Air Materials
Laboratory of the United States Navy, and ten years with a Boeing
Company division doing materials quality control and failure
analysis.

He worked for approximately 20 years as a private

consulting engineer, which included aviation work.
Raefsky’s report describes his observations of the exhaust
pipes and turbochargers at Dr. Shipley’s facilities in Sugar
Grove, Illinois, and metallurgical examinations at a facility in
Melrose Park, Illinois.

Raefsky observed that the exhaust pipe

in the area of the cracks and holes was thinner than the pipe
upstream or downstream of that area.

The inside of the left pipe

had a build up of loose and flaking material, much less than was
seen on the right pipe.

Four samples were then removed from the

left pipe (see Photograph 9 attached to his report for their
locations) and three from the right (Photograph 10) for further
testing.

Measurements of the thickness of the stainless steel

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exhaust pipe showed thickness of .052 inches at a point away from
the damaged area and closer to the turbocharger.

The pipe

thickness at the area of the cracks and holes was less than .003
inches of steel, which (according to Raefsky’s report) is only
five to six percent of sound metal.

SEM exams on the oxide layer

on sample #1 (closest to the inlet) showed continuous oxide with
occasional cracks.

The oxide layer at sample #2, the cracked

area, displayed cracking in the oxide layer.
Raefsky states that the thinning of the pipe to less than
.003 inches was due to a long term erosion process, during which
the steel pipe oxidized from the high velocity hot exhaust gas
discharged from the engine’s turbocharger.

As the oxide layer

formed and cracked under normal operation, Raefsky explained that
fresh metal would be exposed, resulting in further oxidization
and flaking.

Eventually, Raefsky concluded, the pipe’s steel

became so thin that it ‘blew out’ while the engine was in
operation.

Raefsky believes that the condition observed on the

exhaust pipe was not due to ground impact or the resulting fire,
but acknowledged that adjacent areas on the left exhaust pipe
exhibit damage caused by an external force.

Raefsky believes

that a hole or breach was present in the pipe when Signature
overhauled the engines, as it could not have developed over the
relatively short time (approximately 26 flight hours) that
elapsed before the crash.

(Raefsky Report at 6)

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Raefsky confirmed in his deposition that he will not offer
an opinion on whether there actually was a fire in the engine.
He also confirmed that he was not retained to specifically
determine when the hole appeared in the pipe.

He was asked his

opinion on that issue, however, and he testified that it was
approximately 50 to 100 flight hours before the crash.
Dep. at 42)

(Raefsky

He cited his experience with steel turbines used in

the nuclear and fossil fuel business, which over time will
corrode or erode at elbows or bends in the pipes.

Failures occur

in these areas more often because the elbow or bend alters the
direction of the gas or steam flowing through the pipe.

He

believes that the situation presented by the elbow in the exhaust
pipe is no different from his experience with turbines.

He also

cited an FAA notice about engine fires caused by cracked flange
clamps at the engine turbocharger.

He testified that if a

cracked flange clamp could cause a fire due to leaking exhaust
gases, the same principles suggest that a fire could be caused by
a hole eroded in the pipe.

(Raefsky Dep. at 72-74)

Signature does not directly challenge Raefsky’s
qualifications, and does not challenge his metallurgical tests or
his opinions that long-term erosion caused thinness in the pipe
wall.

Signature contends that Raefsky should not be permitted to

testify about internal operating pressure in the exhaust pipe,
because he did not know what that pressure was and did not

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perform any tests to determine it.

Raefsky was asked at his

deposition if he could calculate that pressure, and he began to
make that calculation using a standard formula concerning
materials mechanics.

But he also testified that in his opinion

the greatly reduced wall thickness is the reason the pipe failed
at that point, and “whatever the design pressure [of the pipe]
is, whatever pressure you want to talk about, upstream,
downstream, that three-thousandths of an inch could not contain
the pressure.

That’s why it blew out.”

(Raefsky Dep. at 31)

Signature and its experts disagree with Raefsky’s
conclusion.

But as noted above, the Court’s gate-keeping

function is to determine if a qualified expert’s opinion is
premised upon a reliable application of principles or methods to
the available facts.

Raefsky is qualified to offer an opinion on

the condition of the exhaust pipe he observed, and what caused
its appearance.

The lack of testing to calculate internal pipe

pressures does not warrant exclusion of his opinion, as he
explained why he believes such testing is not necessary.
Signature’s arguments go to the weight that the trier of fact may
give to Raefsky’s opinions, and are not a basis to exclude them.
2.

Douglas Stimpson.
Stimpson has been an aviation safety investigator for over

25 years, and has participated in many crash investigations.

He

is a licensed pilot with thousands of hours of flight time, and a

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certified airframe mechanic.

He also worked as an engineer for

Piper Aircraft during the time it manufactured the Piper Navajo
airplane.

His supplemental declaration (Doc. 61, Ex. 1 at 2)

states that he personally participated in testing over many years
on the type of airplane and engine involved in this case.

He has

tested the type of firewall installed in this model airplane; he
states that temperatures in the area of the turbo exhaust pipes
can be very high, which is why the FAA requires the firewall to
be tested to 2,000EF.

Stimpson’s supplemental declaration states

that he has worked with both Piper and with Lycoming (the engine
manufacturer) as a consultant, and has investigated many
accidents in which hot exhaust gases ignited a fuel source in an
engine compartment.
Signature contends that Stimpson’s opinion that a left
engine fire was ignited when hot gases escaped from an erosioncaused hole in the exhaust pipe is unreliable.

Stimpson admits

that any physical evidence of a pre-crash engine fire was
destroyed in the crash.

Because of this admission, Signature

argues that his opinions are premised on a series of invalid
assumptions, specifically:
(1) Leahy topped off the engine oil prior to take off.
Signature argues there is no documented evidence that he did so.
(2) The flow rate of the oil from the breather tube.
Stimpson did not do any tests to determine how much oil would be

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“blown out” of the tube if Leahy had filled the engine with oil.
(3) The precise combustible mix of fuel and air present in
the engine compartment.

Stimpson has not done any test to

confirm his opinion that there was a sufficient mix to ignite the
oil.
(4) Other sources of fuel for the fire.

Stimpson does not

have an opinion on another source, but testified that a second
possible source was engine hoses in the vicinity of the exhaust
pipe.

But Stimpson did not know the ignition temperature of the

hoses.

Signature also argues that the hoses are too far away

from that area of the exhaust pipe to permit ignition.
(5) The internal pressure in the exhaust pipe.

Stimpson

testified that he does not know what that pressure may have been.
Stimpson addressed most of these issues.

He believes that

any experienced pilot would “top off” engine oil before a flight.
He testified: “[t]here’s a good chance that Mr. Leahy either
filled up or put oil in it in his preflight, and that that
activated that breather, and that was the source of why this
flight – why the fire occurred on this flight, and not
necessarily on the flight before.”

(Stimpson Dep. at 32)

Stimpson did not test how much oil would have blown out on
Leahy’s flight because he believes there was no practical way he
could test this issue.

Each engine operates differently in terms

of normal or optimum oil usage, and he said the left engine in

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the same plane could “blow out” more oil than the right engine,
or vice versa.

Stimpson relies on the apparent function of the

oil breather tube in assuming that oil was moving through and
exiting from that tube during Leahy’s flight.

He did not test

the specific mix of oil and air that may have been present that
day, but knows from his own experience that oil emitting from the
tube does so in a mist form.

While he could not state the

precise ignition temperature of the engine hoses, he knows that
they are flammable when subjected to excessive heat, which he
believes was escaping from the eroded exhaust pipe.

The Court

finds that all of these assumptions are based upon Stimpson’s own
experience as a pilot, and his knowledge of this type of aircraft
and engine.

These assumptions are not merely speculation based

on nothing but Stimpson’s own ipse dixit.
Signature contends that Stimpson is not a “fire expert” and
cannot testify about the cause of an onboard fire.

Stimpson’s

knowledge and experience is aviation investigation, not fire
science, as he readily admitted.

But the Court finds that his

opinions are based on his knowledge of and experience with
aircraft engine failures and fires.

Signature seeks to preclude

Stimpson from testifying about other aircraft cases that involved
leaking oil filter gaskets.

Signature says these other cases are

not relevant or reliable, but it does not specifically explain
why.

Assuming that a proper factual foundation is made at trial,

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Stimpson is entitled to rely upon his experience in cases
involving similar engines from the same manufacturer.
And finally, Signature argues that Stimpson’s opinion that
the exhaust pipe was eroded to the point of failure when
Signature overhauled the engines is sheer speculation and should
be excluded.

Stimpson testified that he does not know how big

any hole in the exhaust pipe in early April 2008 might have been,
or how visible it may have been when Signature reinstalled the
engines.

But based on his experience, he testified that he could

differentiate “with positive assurance” post-accident damage to
the pipe and pre-accident erosion and thinning damage.

He relies

upon the metallurgical findings of the eroded area and the
thickness of the steel at the edges of the breach, to conclude
that the condition was not caused by external forces but by longterm erosion that Signature should have detected.

(Stimpson Dep.

at 23-24)
Stimpson’s basic opinion is that superheated exhaust gases
escaped from the pipe into the engine compartment and caused a
fire.

He bases this theory upon his knowledge and experience in

aircraft investigations, and he relies on the other experts’
findings to support his theory.

This theory and the assumptions

supporting it are not so novel that specific scientific testing
would be required to validate his assumptions or hypothesis.
That was the case, for instance, in Truck Ins. Exchange v.

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Magnetek, Inc., 360 F.3d 1206 (10th Cir. 2004), where the
district court excluded an expert’s opinion that the long-term
exposure of wood to temperatures below wood’s ignition point
could result in pyrolysis, the formation of carbon deposits that
could ignite when exposed to a ballast in a fluorescent light
fixture.

The publications that the expert relied on to opine

that the fire at issue started in this manner specifically noted
the authors’ expression of great caution about the reliability of
the theory to explain the cause of a real-world fire.

Since the

pyrolysis theory was untested and somewhat novel, the lack of
testing under real-world conditions rendered the theory
unreliable as applied to the facts of that case.

Here,

Stimpson’s inability to state the precise flow rate of oil
emitting from the breather tube, or the ignition temperature of
an engine hose, or the internal pressure on the exhaust pipe
while the engine is operating, does not require the exclusion of
his testimony.

All of Signature’s arguments are undoubtedly

interesting fodder for a vigorous cross-examination at trial.
3.

Harry Hasegawa
Hasegawa is an engineer who has specialized in fire research

since he obtained his Master’s Degree in 1975.

He worked as a

Fire Research Engineer from 1978 to 1993 at the Lawrence
Livermore National Laboratory, and participated in the design and
performance of full-scale fire tests as well as research on other

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issues relating to fire safety.

He has worked as an independent

fire consultant investigating fires involving aircraft, and
involving both residential and commercial buildings.

He states

that he has extensive experience inspecting and reviewing firedamaged aircraft to determine the cause and origin of onboard
fires.
fire

Hasegawa shares Stimpson’s opinion that a left engine

was caused by ignition of flammable fluids and/or

combustibles.
Signature does not directly challenge his qualifications,
but contends his testimony should be excluded in its entirety
because he failed to follow accepted methodology for the
investigation and analysis of fires and explosions set forth in
NFPA 921, an authoritative publication of the National Fire
Protection Association.

Hasegawa testified that NFPA 921 is

well-recognized as the accepted and authoritative guide to fire
investigations.

NFPA 921 adopts the basic tenets of the

scientific method for investigating and determining the cause of
a fire or explosion.

See Doc. 53, Ex. J, an except from the 2008

Edition of NFPA 921 describing the basic methodology: define the
problem, collect and analyze data, develop and test a hypothesis,
and select a final hypothesis.

Signature contends that Hasegawa

did not collect or analyze any data, and did not test his
hypothesis.
Hasegawa observed more extensive fire damage to the left

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engine than the right engine.

He noted that the top of the left

engine exhibited significant aluminum melting that was not seen
on the right engine.

He also stated that more of the right side

of the plane remained than the left side.

He acknowledged

several eyewitness reports of fire and smoke in or near the right
engine, but concluded that his own analysis of the available fire
evidence indicated that the left engine experienced heat and fire
problems, not the right.

He believes that “[t]here may have been

some confusion from eyewitnesses in regards to orientation.”
(Doc. 53, Ex. L)

Because the fire developed so quickly, Hasegawa

believes it must have been fueled by a highly flammable
substance, and oil or aviation fuel are obvious candidates.

And

he believes that the fracture observed on the left exhaust pipe
would provide a “viable ignition source” for an engine fire due
to the high temperatures of the exhaust gases.

Hasegawa worked

on another case involving a Lycoming engine in a Piper Saratoga
airplane, and he testified that the airflow patterns in that
engine were similar to the engine in this case.

He also noted

that both Sorenson and Leahy had reported some engine problems,
and that one eyewitness heard an engine sputtering just before
the crash.

All of this supported his opinion that the left

engine malfunctioned and experienced a fire.
Signature argues that Hasegawa did not know the distance
that separated the oil breather tube from the exhaust pipe, or

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how engine oil actually traveled from the engine through the
separator tube.

He lacked knowledge of the airflow patterns

inside the exhaust pipe, and whether the oil/air ratio in the
engine compartment that day would have been sufficient to ignite
the oil.

Signature contends that Hasegawa essentially relied

upon Stimpson’s flawed assumptions to reach the same flawed
opinion.

As discussed above, Stimpson’s assumptions are not so

flawed that Stimpson’s opinion is unreliable.

And one expert may

rely upon the opinions and conclusions reached by other experts,
so long as that reliance is reasonable and that the underlying
facts and data are of the sort that experts in his field
reasonably rely upon.

In addition to Stimpson’s observations and

conclusions, Hasegawa relied on his own observations of the
wreckage, specifically differences between the left and right
engines, the left and right sides of the airplane in general, and
between the left and right exhaust pipes.
discounted the eyewitnesses accounts.

He considered but

He worked in conjunction

with Stimpson, who he admits is more knowledgeable about this
specific airplane and engine, in reaching his opinion.

And as

with the other experts, Hasegawa states that the condition of the
wreckage precludes any meaningful “scientific” testing.
While this is a closer question than with either Raefsky or
Stimpson, the Court cannot conclude that Hasegawa’s opinions fall
“... outside the range where experts might reasonably differ, and

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where the jury must decide among the conflicting views of
different experts, even though the evidence is ‘shaky.’”
Daubert, 509 U.S. at 596.

Hasegawa is qualified in the area of

fire science, and the Court concludes that Signature’s arguments
go to the weight of his opinions and are proper material for
vigorous cross-examination.
Signature’s Expert Roch Shipley
Plaintiffs seek to exclude Signature’s expert, Roch Shipley,
from testifying about his opinions.

Shipley’s report concludes

that (1) if there was a pre-crash fire on the airplane, it was on
the right side not the left; (2) a likely cause of a right-side
fire was the unapproved ferry fuel system lines; (3) the damage
observed in the left engine exhaust pipe was created during or
after the crash; and (4) even if a hole existed in the exhaust
pipe when Leahy took off, the exhaust emitting from that hole
would not be sufficient to ignite a fire in the engine
compartment.

(Doc. 54, Ex. 2)

Shipley and his firm are technical consultants specializing
in root cause failure analysis, particularly in matters involving
aviation.

Shipley has over 20 years of consulting experience,

and prior to that worked in aerospace manufacturing research.
is a licensed professional engineer, and has a Ph.D. in
metallurgical engineering.

He co-edited a standard industry

handbook, the tenth edition of the ASM Handbook volume on

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He

“Failure Analysis and Prevention.”
Plaintiffs contend that Shipley is not a “fire expert,” and
should not be permitted to offer opinions on the cause or origin
of any engine fire.

Shipley acknowledged that Signature’s fire

expert will offer opinions in that area, and that he does not
intend to testify about where any fire may have started.

But he

was asked about statements in his report in which he discussed
the evidence that he believes does not support Stimpson’s
opinion.

In particular, Shipley noted the evidence about the

ferry fuel lines and lack of documentation that they had been
removed.

Plaintiffs attack Shipley’s testimony about his

observations of the ferry fuel “tee” fitting.

Shipley testified

that the aluminum fitting cracked and separated in the crash, but
that it “looks like there’s two different areas on that fracture
and that’s what suggests to me that there could have been a
crack, you know, not completely separated, but a crack causing a
leak in-flight.”

(Shipley Dep. at 18)

Plaintiffs argue that

Shipley did not perform any metallurgical tests to support this
opinion, and since Shipley is a metallurgist, his failure to do
so renders his testimony unreliable.
Shipley believes that the damage to the left exhaust pipe
was caused by deformation due to an external force, and not due
to a “blow out” from within as Plaintiffs’ experts have
testified.

Plaintiffs argue that Shipley did not perform any

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metallurgical tests on the pipe before reaching this opinion, and
that Raefsky’s later testing confirms that Shipley is wrong.
Shipley explained that prior to writing his report, he
intentionally refrained from any metallography tests on the pipe
in order to avoid destructive testing:
... in my opinion it was more valuable in
terms of understanding the condition of the
pipe and such to keep it in its original
condition. ... So in this case, and as you’re
well aware, there was extensive discussion
about how much destructive testing, how much
cutting of the pipe could and should be done.
Back in April 2011 it was my opinion that
there wouldn’t be a lot more information
gained, and now the pipe has had material
removed from it, so it’s more difficult for
the jury to visualize what the condition of
the pipe was prior to the holes or the pieces
being cut out of it.
(Shipley Dep. at 28-29) Shipley participated in the metallurgical
tests and examinations conducted under the agreed protocol which
Raefsky described, but explained why he felt it was unnecessary
to perform the routine metallurgical tests and analyses he was
asked about.

And Shipley explained his disagreement with

Raefsky’s conclusions reached after the destructive testing on
the exhaust pipe, stating that it was very clear to him “that the
internal pressure in this pipe did not blow out the metal.
just isn’t enough force.

There

There isn’t enough stress to do that.”

(Shipley Dep. at 45)
Plaintiffs also seek to exclude Shipley’s testimony that
even if there was hole in the left exhaust pipe when Leahy took
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off from the airport, any exhaust gases coming through that hole
could not have started a fire.

Plaintiffs contend that this

opinion is based upon unsupported assumptions about the size of
the inlet and outlet openings in the engine compartment, as well
as factors such as air speed, air flow through the compartment,
and actual operating temperatures at various points in and around
the exhaust pipe.
Signature responds that Plaintiffs’ motion and the tenor of
the examination at his deposition largely ignore Shipley’s field
of expertise, materials failure analysis, and the methodology
that applies to that field.

Instead, Plaintiffs attempt to limit

Shipley’s expertise to the field of metallurgical engineering,
and then argue that his failure to conduct “standard”
metallurgical tests renders his opinion unreliable. Plaintiffs
accuse Shipley of merely conducting a “cursory” visual
examination of the exhaust pipe, an insufficient basis upon which
to offer any expert opinions.

Signature points out that Shipley

spent many hours and took almost 1,700 photographs documenting
the condition of the pipe and the crash remains, hardly a cursory
inspection.

Shipley described his experience in examining

artifacts and materials involved in fires, and his knowledge
about how such materials respond to fire conditions.

Shipley is

well qualified in the field of materials and failure analysis,
and he applied his knowledge and experience to the information

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available along with his own observations of the wreckage to
reach his opinions.
Plaintiffs’ arguments do not warrant the exclusion of
Shipley’s testimony, as the Court finds that it is for the trier
of fact to weigh Shipley’s analyses and explanations in
evaluating the strength of his ultimate opinions.
Finally, all four of the challenged witnesses submitted
declarations in support of the parties’ respective response
briefs.

An expert may not amend or alter his prior opinions to

respond to the opposing party’s attacks on the reliability of his
opinion.

See, e.g., Pluck v. BP Oil Pipeline Co., 640 F.3d 671,

681 (6th Cir. 2011), affirming the district court’s exclusion of
an expert’s supplemental declaration filed after defendant’s in
limine motion challenging his opinion.

The court concluded that

the declaration was nothing more than an “attempt to bolster his
deficient opinion by employing a new causation methodology.”
However, an expert may further explain his opinion or, as Shipley
and Raefsky contend they have done, provide additional
explanations for certain answers to deposition questions that
counsel chose not to further explore.

An expert may also

supplement his opinion and report with additional evidence that
may come to light after the initial report.
The Court has reviewed the four declarations and concludes
that none of them improperly attempt to change or amend the

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experts’ basic methodology or their primary opinions.
CONCLUSION
Despite their obvious differences, all of the expert
witnesses generally relied on their observations of the remains
of the airplane, the available data about the accident, their
engineering and technical knowledge, and their training and
experience in reaching their opinions.

The Court concludes that

all four experts satisfy the standards of Rule 702 as articulated
in Daubert and its progeny.

The motions in limine to exclude the

experts and their testimony (Docs. 53 and 54) are therefore
denied.
SO ORDERED.
DATED: April 24, 2012

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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