Rodgers et al v. Beechcraft Corporation et al

Filing 207

OPINION AND ORDER by Judge Claire V Eagan ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 2/10/2017); taking motion(s) under advisement; granting in part and denying in part 52 Motion to Exclude; gra nting in part and denying in part 56 Motion to Exclude; granting in part and denying in part 57 Motion to Exclude; granting in part 150 Motion to Strike; accepting 182 Report and Recommendation; finding as moot 189 Report and Recommen dation; accepting 190 Report and Recommendation; accepting 195 Report and Recommendation; accepting 196 Report and Recommendation (Re: 191 REPORT AND RECOMMENDATION by Magistrate Judge Paul J Cleary (Amended) ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

JAMES RODGERS and SHERYLL
RODGERS, individually and as Husband
and Wife; and CHRISTOPHER EVANS and
JILL EVANS, individually and as Husband
and Wife,
Plaintiffs,
v.
BEECHCRAFT CORPORATION, f/k/a
Hawker Beechcraft Corporation, a Kansas
Corporation; HAWKER BEECHCRAFT
GLOBAL CUSTOMER SUPPORT, LLC,
f/k/a Hawker Beechcraft Services, Inc.,
a Kansas limited liability company,
Defendants.

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Case No. 15-CV-0129-CVE-PJC

OPINION AND ORDER
Defendants Beechcraft Corporation (Beechcraft) and Hawker Beechcraft Global Customer
Support, LLC (HBGCS) filed motions (Dkt. ## 52, 56, 57, 60) to exclude the testimony of each of
plaintiffs’ expert witnesses, and they have also filed a motion (Dkt. # 150) asking the Court to
exclude affidavits of plaintiffs’ experts that were submitted in response to defendants’ motions to
exclude expert testimony. These motions were referred to the magistrate judge and a hearing was
held on September 7 and 8, 2016, and the magistrate judge has entered reports and recommendations
as to each of the pending motions. Dkt. ## 182, 183, 189, 190, 191, 195, 196. Objections to the
reports and recommendations have been filed by plaintiffs and defendants, and the Court has
reviewed the reports and recommendations, the parties’ objections, and any responses to the
objections.

I.
On March 16, 2015, plaintiffs James Rodgers and Christopher Evans filed this case alleging
a manufacturer’s products liability claim against Beechcraft and a negligence claim against
Beechcraft and HBGCS. Their spouses, Sheryll Rodgers and Jill Evans, also allege claims of loss
of consortium against defendants. James Rodgers and Christopher Evans were passengers on a
Beech Premier 390 aircraft, manufactured by Beechcraft in 2008, that was flying from Tulsa,
Oklahoma to South Bend, Indiana on March 17, 2013. During the flight, plaintiffs allege that both
engines of the plane were inadvertently shut down and the pilot was unable to restart both of the
engines due to a defective electrical distribution bus system. Dkt. # 28, at 5-6. The pilot was unable
to successfully land the plane and it crashed near the South Bend Airport, and James Rodgers and
Christopher Evans were injured in the crash. Plaintiffs allege that the alternate landing gear system
failed to deploy properly during the attempted landing and that the alternate landing gear system was
defectively designed. Id. at 12.
In June 2016, plaintiffs filed a motion to file a second amended complaint (Dkt. # 93) adding
a theory of product defect based on the aircraft flight manual (AFM), and they allege that the AFM
contains faulty instructions for restarting the electrical generator following a dual engine shutdown.
Id. at 4-5. Defendants opposed plaintiffs’ motion to amend on the ground that plaintiffs’ motion was
untimely. The Court found that plaintiffs had established good cause to amend the complaint
outside of the deadline established in the scheduling order for parties to file motions to amend. Dkt.
# 128, at 6. However, plaintiffs’ motion was filed on the same day as defendants’ motion for
summary judgment, and the Court considered that there was a legitimate question as to whether the
motion to amend was filed in an attempt to avoid summary judgment. Id. at 7. The Court

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determined that evidence relating to the AFM would be offered at trial even if the motion to amend
were denied, and defendants would not be prejudiced by granting the motion to amend. Plaintiffs
were permitted to file a second amended complaint. The Court declined to make a finding that any
specific evidence, such as expert testimony, was admissible in support of plaintiffs’ AFM defect
theory, and plaintiffs were cautioned that “they must show that they have made timely disclosure
of the expert opinions and that their experts have been made available for deposition about any
opinions concerning the AFM checklists.”
Before plaintiffs filed the motion to amend, defendants had filed motions to exclude the
expert testimony of plaintiffs’ experts. Dkt. ## 52, 56, 57, 60. Plaintiffs responded to the motions,
and included a new affidavit from each of their experts as part of their response. Defendants filed
a motion to strike the affidavits as improper supplementation of plaintiffs’ expert reports. Dkt. #
150. The motions to exclude expert testimony and the motions to strike the affidavits were referred
to the magistrate judge for a report and recommendation. The magistrate judge has entered a report
and recommendation on each of the motions, and the Court has received an objection to each report
and recommendation from plaintiffs and /or defendants. The deadline to file responses to the
objections has expired, and the reports and recommendations are ripe for consideration.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within fourteen days of service of the recommendation.
Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d
573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the
magistrate judge in whole or in part. FED. R. CIV. P. 72(b).
III.
A.
Defendants have filed motions challenging the qualifications of plaintiffs’ expert witnesses
and the reliability of the methodology used by those experts to reach their opinions. In Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that district courts
must initially assess the admissibility of “scientific” expert testimony under Fed. R. Evid. 702. The
Supreme Court extended the gatekeeper role of federal district courts to all expert testimony in
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In Bitler v. A.O. Smith Corp., 400 F.3d
1227 (10th Cir. 2005), the Tenth Circuit discussed the role of district courts in considering a Daubert
challenge to the admissibility of expert testimony. First, the court should make a preliminary finding
that the expert is qualified to testify. Id. at 1232-33. Next, the proponent of expert testimony must
establish that the expert used reliable methods to reach his/her conclusion and that the expert’s
opinion is based on a reliable factual basis. Id. at 1233. The Tenth Circuit cited four factors that
district courts should apply to make a reliability determination:
(1) whether a theory has been or can be tested or falsified; (2) whether the theory or
technique has been subject to peer review and publication; (3) whether there are known or
potential rates of error with regard to specific techniques; and (4) whether the theory or
approach has “general acceptance.”
Id. at 1233 (citing Daubert, 509 U.S. at 593-94). The Tenth Circuit was clear that “a trial court’s
focus generally should not be upon the precise conclusions reached by the expert, but on the
methodology employed in reaching those conclusions.” Id. In other cases, the Tenth Circuit has
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emphasized that any analytical gap in an expert’s methodology can be a sufficient basis to exclude
expert testimony under Daubert. Trucks Ins. Exchange v. MagneTek, Inc., 360 F.3d 1206, 1212-13
(10th Cir. 2004); Goebel v. Denver & Rio Grande Western R. Co., 346 F.3d 987, 992 (10th Cir.
2003). Under Daubert, “‘any step that renders the analysis unreliable . . . renders the expert’s
testimony inadmissable. This is true whether the step completely changes a reliable methodology
or merely misapplies that methodology.’” Mitchell v. Gencorp Inc., 165 F.3d 778, 783 (10th Cir.
1999) (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994)).
Defendants also argue that plaintiffs have improperly attempted to supplement their expert
disclosures by offering new expert opinions in response to defendants’ motion for summary
judgment (Dkt. # 94), and defendants argue that the new opinions were not timely disclosed under
Fed. R. Civ. P. 26. The Federal Rules of Civil Procedure require an expert witness to prepare a
report containing a “complete statement of all opinions to be expressed and the basis and reasons
for them . . . .” Fed. R. Civ. P. 26(a)(2)(B). A party’s failure to disclose the identity of an expert
witness or provide a timely expert report requires the court to automatically exclude expert
testimony unless the violation of Rule 26(a)(2) was justified or was harmless under the
circumstances. Fed. R. Civ. P. 37(c)(1); Jacobsen v. Deseret Book Co., 287 F.3d 936, 951-52 (10th
Cir. 2002). A court may exclude specific opinions or bases for the expert’s opinions that were not
fairly disclosed in the expert’s report. Keach v. United States Trust Co., 419 F.3d 626, 641 (7th Cir.
2005). The Tenth Circuit has identified four factors to determine whether a violation of Rule
26(a)(2) was harmless or justified: (1) the prejudice or surprise to the party against whom the
testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or

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willfulness. Woodworker’s Supply, Inc., v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Cir. 1999).
Under Rule 26 (a)(2)(D)(ii), any expert evidence that “is intended solely to contradict or
rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C)”
must be exchanged within 30 days after the opposing party’s disclosure. In contrast to rebuttal
expert evidence, a party is required to supplement expert disclosures under Rule 26(e) “in a timely
manner if the party learns that in some material respect the disclosure or response is incomplete or
incorrect . . . .” Fed. R. Civ. P. 26(e)(1)(A). A party must supplement its expert disclosures “by the
time the party’s pretrial disclosures under Rule 26(a)(3) are due.”
Under Rule 26(e), a party is under a duty to supplement “in a timely manner if the party
learns that in some material respect the disclosure is incomplete or incorrect and if the additional and
corrective information has not otherwise been made known to the other parties during the discovery
process or in writing . . . .” Rule 26(e)(1) does not permit parties to produce “supplemental reports
whenever they believe such reports would be ‘desirable’ or ‘necessary’ to their case,” and
supplemental reports are permitted “(1) upon court order; (2) when the party learns that the earlier
information is inaccurate or incomplete; or (3) when answers to discovery requests are inaccurate
or incomplete.” Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005). Although parties are
permitted to supplement expert disclosures, Rule 26(e) “does not give license to sandbag one’s
opponent with claims and issues which should have been included in the expert witness’ report.”
Leviton Mfg. Co., Inc. v. Nicor, Inc., 2007 WL 1306759 *4 (D.N.M. April 20, 2007) (quoting Beller
v. United States, 221 F.R.D. 696, 701 (D.N.M. 2003)). As one court has noted:
A supplemental expert report that states additional opinions or rationales or seeks to
“strengthen” or “deepen” opinions expressed in the original expert report exceeds the
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bounds of permissible supplementation and is subject to exclusion under Rule
37(c)(1). “To rule otherwise would create a system where preliminary [expert]
reports could be followed by supplementary reports and there would be no finality
to expert reports, as each side, in order to buttress its case or position, could
‘supplement’ existing reports and modify opinions previously given. This result
would be the antithesis of the full expert disclosure requirements stated in Rule
26(a).
Cook v. Rockwell Int’l Corp., 2006 WL 3533049 *87 (D. Colo. Dec. 7, 2006) (citations omitted).
Permitting late supplementation of expert reports also has the effect of denying the opposing party
the opportunity to file a meaningful Daubert motion as to questionable expert testimony. See Miller
ex rel. S.M. v. Bd. of Educ. of Albuquerque Public Schools, 455 F. Supp. 2d 1286, 1299 (D.N.M.
2006).
B.
The magistrate judge recommends that defendants’ motion to exclude the testimony of
plaintiff’s electrical expert, John Bloomfield, be granted in part and denied in part. Dkt. # 195.
Plaintiffs and defendants object to the magistrate judge’s report and recommendation. Dkt. ## 197,
200. The magistrate judge also recommends that the Court exclude the affidavit submitted by
Bloomfield, because his affidavit was intended to rebut the opinions of defendant’s experts but it
was not timely submitted to defendants pursuant to Rule 26(a)(2)(D)(ii). Dkt. # 182. Plaintiffs
assert that Bloomfield’s affidavit was simply a “consolidation” of the opinions stated in his original
report, and they object to the magistrate judge’s recommendation to exclude the affidavit submitted
in response to defendants’ motion to exclude Bloomfield’s testimony. Dkt. # 186, at 9.
Bloomfield’s original report was provided to defendants on February 1, 2016. He has a
degree in industrial and systems engineering from the Georgia Institute of Technology, and he states
that he is an expert in “avionics, aircraft electrical systems, aircraft electrical distribution, avionics

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integration,” and “all electro/mechanical systems and hydro/mechanical systems and sub-systems.”
Dkt. # 52-6, at 4, 57. Bloomfield opined that the “Premier 390, N26DK aircraft suffered a
manufacturing defect that was present from the time of manufacture that caused widespread
electrical system failures that ultimately caused the crash.” Id. at 5-6 (emphasis in original). In the
alternative, he stated that, “although highly unlikely, if this defect was induced at the time of
compliance with [Service Bulletin] SB-24-3868, it was because the kit used for compliance (3903622) was defective in failing to properly instruct on installation procedures;” thus, Beechcraft’s
conduct rendered the aircraft defective. Id. at 6. Bloomfield examined the aircraft wreckage on
February 24, 2015 and he participated in a more detailed inspection of the electrical components
harvested from the aircraft two days later. Id. at 13. During these examinations, he found a loose
screw that connected a feed wire to an electrical bus on the pilot’s side of the aircraft, and he
claimed that the screw had been loose since the original assembly of the aircraft. Id. at 21.
Bloomfield explained that a “wiring improvement” was made to the aircraft pursuant to Service
Bulletin 24-3868, but the loose screw was not touched as part of the repair. Id. at 22. He claims that
a component inspection of screws that connect wires and electrical bus bars to circuit breakers
consistently showed that the screws were not torqued to the correct tightness, and he opines that this
is evidence of poor assembly practices and quality control. Id. at 32. According to Bloomfield, all
electrical services that depended on power coming from the feeder wire attached to the loose
electrical connection would become unreliable, and an intermittent electrical connection would
cause many components of the aircraft to stop working. Id. at 33. He also opined that a loose
electrical connection would cause voltage spikes that can damage the aircraft’s systems. Id. at 3435. Blooomfield believes that the aircraft’s battery switch was in the “On” position, rather than the

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“Standby” position, when the aircraft crashed. Id. at 39. In addition to the aircraft’s electrical
system, Bloomfield offered an opinion that the alternate gear extension system of the aircraft was
defectively designed, because the force required to drop the landing gear into place greatly exceeded
the design specifications. Id. at 45. In addition, the indicators showing that the landing gear is
locked do not function when there is an electrical failure, and a pilot could not determine if the
landing gear were locked without electrical power. Id. at 46.
In his deposition, Bloomfield admitted that he incorrectly opined in his report that the feeder
wire connected to the “loose” screw was not touched when the aircraft was serviced pursuant to SB
24-3868, and the feeder wire actually had to be removed to accomplish the repair. Dkt. # 52-9, at
6-7. He clarified that he believed that screw became loose during the repair and not at the time the
aircraft originally left control of the manufacturer. Id. at 12-13. He explained that the he did not
have any actual evidence that the aircraft’s electrical system suffered from voltage spikes, but he
was certain that the loose connection he found would have caused voltage spikes. Id. at 10.
Bloomfield stated that it was not possible from examining the aircraft’s surge protectors if the
aircraft suffered from voltage spikes, and he did not offer any opinion as to the adequacy of the
aircraft’s voltage suppression system. Id. at 11.
In response to defendants’ motion for summary judgment and Daubert motions, Bloomfield
prepared an affidavit re-stating many of the opinions contained in his original report, but he clarified
that he would not testify that a loose electrical connection existed since the date the plane was
manufactured. Dkt. # 116-1, at 13. However, he stated a new opinion concerning the adequacy of
the aircraft’s voltage suppressors to contain any voltage spikes caused by the allegedly loose
electrical connection, and he expanded on his opinion that the instruction manual provided by

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Beechcraft for installation of a repair kit was defective. Id. at 8, 16. As to the instruction manual
issue, Bloomfield opined that the instructions failed to “adequately describe ‘the order and method
of removing and replacing’ the service wire to the pilot’s essential bus,” as required by 14 C.F.R.
app. G23.3(b)(3). Id. at 15-16. Bloomfield also rebutted arguments asserted by defendants in their
Daubert motion, and he attached 96 pages of evidentiary materials to his affidavit in an attempt to
bolster his opinions.
The magistrate judge recommended that the Court exclude Bloomfield’s affidavit as
untimely rebuttal, and he states that the evidentiary materials attached to the affidavit could have
been submitted with Bloomfield’s original report. Dkt. # 182, at 10-11. Plaintiffs object to the
report and recommendation and argue that the affidavit simply rephrased and consolidated opinions
stated in Bloomfield’s expert report and deposition testimony.1 Dkt. # 186, at 19. To the extent that
the affidavit contains any new opinions, plaintiffs claim that the affidavit is appropriate
supplementation to clarify any incomplete opinions stated in Bloomfield’s original report. Id.
Defendants have responded to plaintiffs’ objection and argue that Bloomfield’s affidavit states new
opinions that should have been disclosed in his original report, and plaintiffs have failed to provide
any justification for the untimely disclosure of these new opinions. Dkt. # 188, at 7-8.
The Court has reviewed Bloomfield’s expert report, deposition testimony, and affidavit, and
finds that the affidavit (Dkt. # 116-1) should be excluded. To the extent that the affidavit simply

1

Plaintiffs claim that “[d]efendants clearly did not understand the technical aspects” of
Bloomfield’s expert report and that it was necessary for Bloomfield to state his opinions “in
a less complex and more easily understood manner” in responding to defendants’ Daubert
motion. Dkt. # 186, at 13. Plaintiffs may disagree with defendants’ characterization of
Bloomfield’s opinions, but there is no basis to support plaintiffs’ argument that defendants
did not understand Bloomfield’s expert report.
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restates Bloomfield’s opinions, the affidavit is essentially irrelevant and the Court will review
Bloomfield’s expert report and deposition testimony in ruling on defendants’ Daubert motion.
However, Bloomfield’s affidavit goes beyond simply re-packaging his original report and he clearly
states a new opinion as to the sufficiency of the aircraft’s voltage suppression system. In addition,
he expands on his opinion as to the adequacy of the instructions for installation of a repair kit. He
makes no attempt in his affidavit to show that he has learned of new evidence since the drafting of
his original report that would render his original report incomplete or inaccurate. A plain reading
of Bloomfield’s affidavit is that he is seeking to rebut arguments made in defendants’ Daubert
motion, and he does not claim to be correcting any inaccuracy or omission in his original report.
Under Fed. R. Civ. P. 26(2)(D)(ii), a rebuttal opinion must be provided within 30 days of the other
party’s disclosure. Bloomfield attached a supplemental report of defendants’ expert Robert Winn,
Ph. D, to the affidavit, which supplemental report was provided to plaintiffs on May 6, 2016. Dkt.
# 116-1. At the latest, Bloomfield’s rebuttal report would have been due no later than June 5, 2016,
and the disclosure of Bloomfield’s affidavit in July 2016 was untimely. The Court finds that
Bloomfield’s affidavit was not appropriate supplementation, and the Court will not consider the
affidavit in ruling on defendants’ motion to exclude Bloomfield’s testimony.
Defendants have raised numerous objections to the admissibility of Bloomfield’s testimony,
and these objections can be broken down into two broad categories. First, defendants argue that
Bloomfield made factual errors in his report and deposition testimony, and he should be precluded
from offering factually inaccurate testimony. Dkt. # 52, at 11-14. Second, defendants argue that
Bloomfield used an unreliable methodology to reach his opinions, and the Court should exercise its
gatekeeper function to exclude scientifically unreliable expert testimony. The magistrate judge

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recommended that defendants’ motion to exclude Bloomfield’s testimony be granted in part and
denied in part, and both parties have filed objections to the report and recommendation.
The Court will initially consider defendants’ challenges to alleged factual inaccuracies in
Bloomfield’s expert report. Defendants have identified five alleged errors in Bloomfield’s expert
report:
1.

Bloomfield incorrectly opined that the loose electrical connection that allegedly
caused numerous electrical systems to fail existed since the time the aircraft left the
control of the manufacturer.

2.

In light of the first error, Bloomfield acknowledged that many of the 18 electrical
components allegedly damaged by voltage spikes could not have been damaged due
to the loose electrical connection.

3.

Bloomfield incorrectly testified in his deposition that the cockpit voice recorder was
connected to the pilot’s essential bus, and he acknowledged that the Cockpit Voice
Recorder (CVR) is actually connected to the co-pilot’s essential bus.

4.

Defendants assert that Bloomfield incorrectly stated that the battery switch was in
the ON position at the time of the crash, but he incorrectly assumed that he was
reviewing photographs taken at the time of the crash.

5.

Bloomfield opined that the force necessary to deploy the alternate landing gear was
200 to 300 percent greater than required by Beechcraft’s specifications, but he based
this opinion on an incorrect pull force of 25 pounds.

Plaintiffs concede that Bloomfield was mistaken as to points one and two and they will not offer his
testimony on these issues, but they argue the remaining alleged errors go to weight, rather than the
admissibility, of Bloomfield’s testimony. Dkt. # 116, at 12-13. The magistrate judge found that
plaintiff’s motion was moot as to points one and two, and he agreed that the remaining alleged errors
went to the weight of Bloomfield’s testimony. None of the parties has objected to this aspect of the
magistrate judge’s ruling, and the Court finds that this portion of the magistrate judge’s report and
recommendation should be accepted.

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Defendants have raised numerous objections to Bloomfield’s testimony based on his
methodology and alleged gaps in his data, and they argue that he should be prohibited from
testifying due to the unreliable basis for his testimony. The first issue raised by defendants is
Bloomfield’s proposed testimony that a loose electrical connection caused electrical systems to fail
and caused voltage spikes that resulted in an intermittent electrical supply. The magistrate judge
recommended that Bloomfield be prohibited from testifying on these points, because he performed
no testing or calculations to support his opinions. Dkt. # 195, at 11-15. Plaintiff responds that
testing or calculations were unnecessary because Bloomfield’s proposed testimony is based on
established scientific principles. Dkt. # 197, at 5-6. Even assuming that plaintiff is correct, these
general scientific principles were described only in Bloomfield’s now-excluded affidavit, and there
is no explanation of any general scientific principles in Bloomfield’s expert report. During his
deposition, Bloomfield acknowledged that he did not conduct any testing on the allegedly damaged
electrical components and he admitted he did not have any evidence to support his theory that
voltage spikes occurred. Dkt. # 52-9, at 9-10. Plaintiffs argue that there is circumstantial evidence
supporting Bloomfield’s opinions on these issues, because two passengers at different times
observed electrical malfunctions. Dkt. # 197, at 6. However, Bloomfield does not mention this
evidence in his report or deposition testimony, and there is no basis for the Court to find that
Bloomfield considered this evidence in reaching his opinions. The Court accepts the magistrate
judge’s recommendation that Bloomfield’s testimony that the loose electrical connection caused any
electrical systems to fail or that voltage spikes occurred should be excluded.
Defendants argue that Bloomfield should be prohibited from offering any testimony about
the design of the alternate landing gear system, because Bloomfield has no professional experience

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designing an alternate landing gear system and he did not conduct any testing as to his proposed
alternate design.2 Dkt. # 52, at 19, 20. It is undisputed that Bloomfield has no professional
experience designing an alternate landing gear system, because he admitted to this fact in his
deposition. Dkt. # 52-9, at 3. He opined that the alternate landing gear was defective, because in
situations where the subject aircraft lacked electrical power there would be no way for the pilot to
determine if the alternate landing gear is locked. Dkt. # 52-6, at 46-48. He proposed a method to
remedy this alleged defect, but his report does not state whether his alternate design is actually used
in the industry or whether it would be feasible on the subject aircraft. Id. at 49. Finally, he opined
that the alternate landing gear was defective because the design allowed debris to accumulate in the
wheel well, but he does not state whether this actually occurred in this case. Id. at 50. The
magistrate judge recommended that Bloomfield’s opinion on these issues be excluded, because
Bloomfield lacks the relevant experience in aircraft design and there is no evidence that
accumulation of debris in the wheel well contributed to the crash. Plaintiffs argue that design
experience is not a prerequisite for qualification of an expert, and they claim that Bloomfield has
sufficient experience as a pilot and with the mechanical systems of an aircraft to allow him to testify
about alleged defects with the alternate landing system. Dkt. # 197, at 7-9. The Court has reviewed
Bloomfield’s report and he opines that debris could be caught in the wheel well, but he does not
actually state that this occurred in this case. He should not be permitted to testify about a

2

Defendants also object to the admissibility of Bloomfield’s testimony as to Sommer and
Bloomfield’s testing of the alternate landing gear on exemplar aircraft, and they argue that
Sommer and Bloomfield failed to follow the proper protocol for deploying the alternate
landing gear. Dkt. # 200, at 4-7. This issue is more thoroughly dealt with by the magistrate
judge and the parties in discussing Sommer’s proposed testimony, and the Court will not
separately rule on this issue as to Bloomfield.
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hypothetical cause that allegedly added to the pull force necessary to lock the alternate landing gear
in place unless this is supported by evidence.3 As to Bloomfield’s proposal for an alternate design,
he has no experience designing an alternate landing gear system and he has not tested his proposed
alternate design. The Court accepts the magistrate judge’s report and recommendation to exclude
Bloomfield’s proposed testimony as to defects in the alternate landing gear system.
Plaintiffs also object to the magistrate judge’s recommendation that Bloomfield’s testimony
as to deficiencies with the AFM as to use of the alternate landing gear be excluded. Dkt. # 197, at
11. Plaintiffs claim that Bloomfield can testify about deficiencies in the AFM based on his
experience as a pilot. Id. at 11. The magistrate judge noted that Bloomfield is certified to fly a
“single-engine, prop-driven aircraft,” but he has no experience flying a jet such as the aircraft at
issue in the case. Dkt. # 195, at 20. Bloomfield’s deposition testimony shows that he disavowed
any expertise on “piloting question[s]” and that he was not testifying as a “piloting expert.” Dkt.
# 52-9, at 26. In his expert report, Bloomfield does not claim to have any expertise in drafting
instruction manuals, and he identifies himself as an expert in “electro/mechanical systems and
hydro/mechanical systems.” Dkt. # 52-6, at 4. The Court finds that Bloomfield lacks the necessary

3

Plaintiffs cite the deposition testimony of Shawn Korr, a Beechcraft employee, who testified
that some minimal amount of increase in the pull force necessary to lock the alternate
landing gear into place should be expected after the aircraft leaves the control of the
manufacturer. Dkt. # 118-8, at 2. However, Korr was clear that this was a minimal amount
and he does not directly link this increase in pull force to debris in the wheel well. Id. In any
event, Bloomfield does not cite Korr’s deposition testimony in his expert report or reference
the testimony in his deposition.
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qualifications to opine as to the sufficiency of the AFM’s instructions concerning the use of the
alternate landing gear.4
Defendants object to the magistrate judge’s recommendation that Bloomfield’s testimony
concerning the existence of a loose screw and Bloomfield’s “washer torque testing” be permitted,
because they argue that this testimony will be irrelevant in the light of the exclusion of Bloomfield’s
testimony that voltage spikes allegedly damaged the aircraft’s electrical components. The magistrate
judge recommended that Bloomfield be permitted to testify that he observed a loose screw and that
screw was loose when the aircraft crashed. Dkt. # 195, at 16. The Court has accepted the magistrate
judge’s recommendation that Bloomfield be prohibited from testifying that the loose screw caused
voltage spikes that damaged the aircraft’s electrical components and caused intermittent power
supply, but the Court cannot determine at this time if the existence of a loose screw is entirely
irrelevant. Unlike Bloomfield’s other opinions, he conducted testing on this issue and has an
adequate factual basis to testify that he discovered a loose screw. The Court declines at this time
to exclude Bloomfield’s testimony on the existence of a loose screw, but plaintiffs are advised that
they will be required to show that this testimony is relevant in light of the exclusion of Bloomfield’s
testimony concerning voltage spikes and damage to electrical components.
C.
Defendants ask the Court to exclude the testimony of Donald and Colin Sommer on the
grounds that the proposed expert testimony is unreliable and that Donald and Colin Sommer lack
the necessary qualifications to testify about certain topics. Dkt. # 57. The motion was referred to

4

The magistrate judge also recommended that Bloomfield’s testimony on this issue would be
cumulative, because plaintiffs have at least two other experts more qualified to testify about
the AFM. Dkt # 195, at 20.
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the magistrate judge for a report and recommendation and, following a hearing, the magistrate judge
recommended that the Court grant in part and deny in part defendants’ motion. Dkt. # 196.
Plaintiffs and defendants object to the report and recommendation. Dkt. ## 198, 199. The Court
will also consider the magistrate judge’s report and recommendation concerning Donald Sommer’s
affidavit (Dkt. # 117-6) attached to plaintiffs’ response to defendants’ motion to exclude the
testimony of Donald and Colin Sommer, because defendants argue that the affidavit was not proper
supplementation of expert disclosures under Rule 26.. Plaintiffs state that they have no intention
of calling Colin Sommer as a witness, and the Court accepts the magistrate judge’s recommendation
that all objections to Colin Sommer’s proposed testimony are moot.5 Dkt. # 196, at 3.
Sommer graduated from the University of Michigan with a bachelor of science in
engineering, and he performed graduate work in instrumentation and testing systems. Dkt. # 57-6,
at 36. Sommer holds certification from the Federal Aviation Administration (FAA) as an airline
transport pilot, commercial pilot, flight instructor, ground inspector, and mechanic. Id. He is an
experienced pilot with over 16,000 hours of flight time. Id. at 37. Sommer is the president and
owner of Aeroscope, Inc. and, inter alia, Aeroscope performs accident reconstruction and analysis
following an airplane crash. Id. at 36. Sommer is a member of the Aircraft Owners and Pilots
Association, the International Society of Air Safety Investigators, The Missouri Board for
Architects, Professional Engineers, Professional Land Surveyors and Landscape Architects, and the
National Association of Flight Instructors. Id. at 37. Sommer’s curriculum vitae states that he
specializes in aircraft accident reconstruction, in-flight and stationery instrumentation systems and

5

All further references on this Opinion and Order to “Sommer” will be to Donald Sommer
unless otherwise specified.
17

testing, mechanical and hydraulic systems, aircraft performance, failure analysis, interpretation of
FAA regulations, pilot reactions, and pilot training.
Sommer examined the aircraft wreckage, listened to the CVR, and examined witness
statements, and he opined that multiple aircraft system failures caused the crash and that pilot error
was not a contributing factor. Dkt. # 117-9, at 30. Sommer concluded that the “shutdown of both
engines was a relatively easy problem to solve had the other systems involved been in proper
operating condition.” Id. Sommer faulted the electrical system of the aircraft and noted that a loose
wire connected to the essential bus had been “arcing, overheating, and interrupting power service
to critical aircraft systems.” Id. He opined that a design defect in the alternate landing gear system
prevented the alternate landing gear from deploying during Caves’ attempted landing of the aircraft,
and he states that Beechcraft failed to warn pilots of the “extremely large pull forces” required to
operate the alternate landing gear system. Id. at 31. He claims that Beechcraft and HBGCS were
negligent for failing to diagnose and repair alleged defects in the aircraft’s electrical system and
alternate land gear when the aircraft was in their control, and he further opined that both defects
existed from the time the aircraft was manufactured. Id. He also states a legal opinion that BHGCS
was acting as the agent of Beechcraft when it performed repairs on the aircraft. Id.
Sommer’s expert report was provided to defendants on January 31, 2016. Defendants filed
a motion to exclude Sommer’s testimony, and an affidavit from Sommer (Dkt. # 117-6) was attached
to plaintiffs’ response to defendants’ motion. The affidavit explains the operation of the main
landing gear and alternate landing gear in significantly more detail than Sommer’s original expert
report, and he states that he is qualified to offer an opinion about the design of an alternate landing
gear system based on his education and experience. Dkt. # 117-6, at 3-4. He also claims that he is

18

qualified to offer an expert opinion about the AFM as it applies to the operation of the alternate
landing gear. Id. at 4. In his original report, Sommer cites the Maintenance Manual for the subject
aircraft to establish the distance the release mechanism for the alternate landing gear needs to be
pulled to be locked into place, but he does not discuss any alleged inadequacy in the AFM.6 Dkt.
# 117-9, at 19. Sommer’s affidavit explains the testing he performed on the alternate landing gear
of exemplar aircraft, and this aspect of Sommer’s affidavit summarizes testing that was described
in his original expert report. Dkt. # 117-6, at 6; Dkt. # 117-9, at 28-29. Sommer also describes new
testing that he conducted on the pull mechanism of the alternate landing gear, and he restates his
opinion that Caves acted as a reasonably prudent pilot under the circumstances. Dkt. # 117-6, at 7-8.
The Court has reviewed Sommer’s original expert report and affidavit, and the Court
independently concludes that the affidavit should be disregarded when the Court in determining the
admissibility of Sommer’s testimony. There is no basis for the Court to treat the affidavit as
supplemental, because it either seeks to reinforce previously stated opinions based on evidence that
was available to Sommer when he drafted his original report, or attempts to rebut criticisms of his
methodology with new testing or analysis. Under Rule 26, Sommer’s original report should have
been his complete report and he should have promptly supplemented his report if he determined that
his report was incomplete or inaccurate. Dahlberg v. MCT Transp., LLC, 571 F. App’x 641, 645
(10th Cir. July 8, 2014) (Rule 26 requires that an expert’s initial report fully disclose the expert’s
opinions and the bases for those opinions, and expert evidence that is not timely disclosed should

6

The Maintenance Manual is a separate document from the AFM, and plaintiffs state that the
Maintenance Manual is much longer and that it “cannot be kept on the flight deck or
consulted by a busy pilot in an emergency.” Dkt. # 117, at 10.
19

be excluded unless the untimely disclosure was substantially justified or harmless).7 Instead,
Sommer drafted an affidavit more fully describing the bases for his opinions only after defendants
filed a motion to exclude his testimony, and it apparent that he is attempting to refute arguments
made by defendants in their Daubert motion. This is not an appropriate reason for a party to
supplement expert disclosures. Asbury v. MNT, Inc., 2014 WL 6914235, *2 (D.N.M. Apr. 22,
2014). Plaintiffs argue that Sommer’s affidavit should not be excluded merely because certain
opinions were phrased “phrased differently.” Dkt. # 186, at 22. However, Sommer’s affidavit goes
well beyond rephrasing his original opinions; the affidavit provides new data and analysis in support
of his opinions that should have been disclosed in his original expert report. To extent that Sommer
does rephrase his opinions, the affidavit is unhelpful to the Court in reviewing the admissibility of
Sommer’s report, and the Court will consider his presumably complete original report in ruling on
defendants’ Daubert motion. The Court accepts the magistrate judge’s report and recommendation
that Sommer’s affidavit was not proper supplementation under Rule 26. Dkt. # 182, at 13-15.
The Court will now consider the magistrate judge’s recommendations as to the admissibility
of the opinions stated in Sommer’s expert report.8 The magistrate judge recommended that the
Court exclude Sommer’s opinion that the alternate landing gear was defectively designed, but he
recommended that Sommer be permitted to testify as to an opinion disclosed in his deposition that
the AFM instructions concerning the use of the alternate landing gear were inadequate. Dkt. # 196,

7

Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. 32.1: 10th Cir. R. 32.1.

8

Defendants asked the Court to prevent Sommer from offering legal opinions and plaintiffs
failed to respond this argument. The magistrate judge recommended that Sommer be
precluded from offering a legal opinion and no objection has been made to this
recommendation, and the Court accepts this recommendation. Dkt. # 196, at. 13.
20

at 6-7. Plaintiffs object to the magistrate judge’s recommendation that Sommer be prohibited from
testifying that the alternate landing gear system was defectively designed. Dkt. # 198, at 4-6.
Plaintiffs ask the Court to consider substantive products liability law, and they argue that Sommer
should be permitted to testify that an ordinary pilot would find the alternate landing gear system
unreasonably dangerous due to the pull force required. Id. at 4-5. Plaintiffs also argue that Sommer
has knowledge of basic engineering principles, and they claim that he is qualified to offer an opinion
about design even if he has not personally designed an alternate landing gear system. Id. at 6. The
Court agrees with the magistrate judge that Sommer lacks the necessary qualifications to testify
about the design of the alternate landing gear. Sommer does not design aircraft or aircraft
components as part of his profession, and his consulting work is almost entirely related to offering
litigation opinions in support of plaintiffs. Dkt. # 57-7, at 3-4 (Sommer’s consulting work is
between 90 to 90 percent litigation-related, and of that amount he testifies on behalf of plaintiffs in
95 percent of cases). Sommer has not designed an aircraft or an alternate landing gear system. Id.
at 5-6. He considers himself to be “very knowledgeable” about aircraft design, but the mere fact that
Sommer believes that he is knowledgeable about a topic does not qualify him to offer expert
testimony on aircraft design. Id. at 7. Plaintiffs have not shown that Sommer has the necessary
experience to testify about aircraft design. Plaintiffs argue that Sommer has a general knowledge
of engineering principles, but there is no evidence in his report that he attempted to apply those
principles in this case. Sommer simply conducted testing to establish the pull force necessary to
lock the alternate landing gear in exemplar aircraft, but he did not conduct any analysis to identity
a specific design defect in the alternate landing gear in the subject aircraft, and there is no analysis
in his report that would support the existence of a design defect.

21

Defendants object to the magistrate judge’s recommendation that Sommer be permitted to
testify about the adequacy of the AFM instructions. There is no dispute that Sommer is an
experienced pilot, but defendants argue that Sommer lacks any experience designing alternate
landing gear or preparing a flight manual. The Court finds that Sommer should be permitted to offer
an opinion concerning the AFM, because this was disclosed during his deposition and defendants
had an opportunity to examine Sommer about this issue. However, the scope of testimony permitted
at trial is limited to only what was disclosed during his deposition, and he may not expand upon the
opinion or his basis for that opinion if he testifies at trial.
Defendants object to the magistrate judge’s recommendation that Sommer be permitted to
testify as to the results of his pull force testing on the alternate landing gear of exemplar aircraft.
In his report, Sommer states that he tested the pull force necessary to deploy the alternate landing
gear on three exemplar aircraft, and Sommer reports that substantially more force was required to
lock the alternate landing gear into place than was called for in the Maintenance Manual. Dkt. #
117-9, at 28. He states that he tested the alternate landing gear using guidelines established by the
International Civil Aviation Organization. Id. at 29. Sommer further states that the testing
procedures were consistent with the United States Air Force Guide to Mishap Investigation, the
United States Navy Handbook for Aircraft Accident Investigation, The National Transportation
Safety Board (NTSB) Major Investigation Manual, the Transport Safety Board of Canada
Investigations Manual, and the University of Southern California Manual of Aircraft Accident
Investigation. Id. at 29-30. Defendants argue that the only reliable testing method to measure the
pull for needed to deploy the alternate landing gear is contained in the Maintenance Manual, and
they claim that Sommer’s opinion concerning the pull force should be excluded because he failed

22

to follow the proper methodology. Dkt. # 57, at 20. In addition, defendants have identified
irregularities in Sommer’s testing procedure, such as pulling the handle to the side or jerking the
handle, and they argue that these departures from the accepted testing procedure render Sommer’s
opinion concerning the pull force unreliable. The Court agrees with the magistrate judge that the
objections raised by defendants do not require the Court to exclude Sommer’s testimony as to his
pull force testing. Defendants’ objections to Sommer’s testing on exemplar aircraft go to the weight
of his testimony, rather than his admissibility, because it appears that Sommer used a methodology
for testing the pull force needed to deploy the alternate landing gear that is accepted in the industry.
Defendants argue that the only reliable testing methodology is contained in the Maintenance
Manual, but this issue is disputed and the Court cannot resolve this dispute based on the materials
presented by the parties. Defendants may cross-examine Sommer about alleged irregularities with
his testing of exemplar aircraft, but he should be permitted to testify about pull force testing
conducted on exemplar aircraft.9
Plaintiffs object to the magistrate judge’s recommendation that Sommer’s opinions
concerning Caves’ performance as a pilot be excluded. Dkt. # 198, at 7. Sommer opined that Caves
was “trained, qualified, experienced and capable of performing the subject mission” and that pilot
error was not a cause of the accident. Dkt. # 117-9, at 30. Plaintiffs argue that Caves had the
necessary licencing and training to fly the subject aircraft and Sommer is qualified based on his
experience as a pilot to testify as to Caves’ training. Dkt. # 198, at 9. Plaintiffs’ argument fails to

9

The Court’s analysis of the admissibility of Sommer’s testimony concerning the pull force
testing also applies to defendants’ arguments to exclude Bloomfield’s testimony on this
issue. However, plaintiffs are advised that they will not be permitted to offer cumulative
testimony on the pull force testing, and plaintiffs may choose whether they want Bloomfield
or Sommer to give expert testimony on this issue.
23

take into account the full scope of Sommer’s opinions, because Sommer’s opinions went well
beyond the adequacy of Caves’ training. Sommer did opine that Caves had the required training and
licensing and this would be within the scope of Sommer’s expertise. However, he further opined
that Caves took “all the steps to be expected by a prudent and reasonable pilot to ensure that the
subject aircraft was mechanically sound and airworthy prior to departure.” Dkt. # 117-9, at 30.
There are no facts stated in Sommer’s expert report concerning Caves’ pre-flight procedure before
the aircraft took off on the day of the accident, and there is no basis for Sommer’s opinion that
Caves took all necessary steps to ensure that the aircraft was mechanically sound. In addition,
Sommer opines that accident was caused by a series of system failures and he rules out pilot error
as a cause of the accident. Id. There was evidence available to Sommer that Caves allowed a nonpilot to operate the aircraft and that Caves had problems in his training with “switchology” and
following checklists. Dkt. # 57-7, at 14. The problem is not simply that there is evidence that
conflicts with Sommer’s opinion, because this could go only to the weight of Sommer’s opinion.
Instead, Sommer’s report entirely ignores this evidence, and it appears from Sommer’s deposition
that he conducted a minimal investigation into Caves’ training and simply disregarded evidence
concerning inadequate training and pilot error. Sommer admits that he conducted no investigation
into whether Caves had been trained to use the alternate landing gear, and he acknowledges that
Caves was responsible for allowing a passenger to improperly manipulate the aircraft’s controls.
Id. at 15. Sommer should be permitted to testify as to any certifications or licenses held by Caves
and the requirements for obtaining such licenses or certifications, but he may not testify that Caves
acted “reasonably or prudently” before or during the flight.

24

Plaintiffs object to the magistrate judge’s recommendation that Sommer be prohibited from
testifying contrary to certain undisputed facts. Dkt. # 198, at 10. Defendants asked the Court to
prevent Sommer from testifying in contradiction to the following undisputed facts:
(1) that “the weather was checked and weather was not a causal factor to the crash;” (2)
“pulling back of both power levers behind the gate resulted in a dual engine shutdown on the
accident flight;” (3) the right wing was damaged on the landing attempt during the second
go-round; and (4) the pilot lost aerodynamic control on the attempted take-off and could not
recover.
Dkt. # 196, at 13. Plaintiffs did not address this issue in their response to defendants’ motion to
exclude Sommer’s testimony, and the magistrate judge recommended that the Court grant
defendants’ request due to plaintiff’s lack of objection. See Dkt. # 117. Although plaintiffs now
challenge defendants’ arguments concerning Sommer’s testimony about undisputed facts, plaintiffs’
arguments should have been raised in their response to defendants’ motion to exclude Sommer’s
testimony and the arguments were not presented to the magistrate judge. “[C]ourts are not required
to reward a lack of diligence by reviewing arguments not seasonably raised before the magistrate.”
Thomas American Stone & Bldg., Inc. v. White, 142 B.R. 449 (D. Utah 1992) (citing PatersonLeitch Co. Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988));
see also AG Equipment Co. v. AIG Life Ins. Co., Inc., 2009 WL 137479 (N.D. Okla. Jan. 20, 2009)
(declining to consider objections to a ruling of the magistrate judge when the arguments were not
initially presented to the magistrate judge).

Plaintiffs object to the magistrate judge’s

recommendation but they make no attempt to show that this issue was contested before the
magistrate judge, and the Court declines to consider arguments raised for the first time in an
objection to a report and recommendation.

25

D.
Defendants filed a motion (Dkt. # 56) seeking to exclude the testimony of Frank Graham in
its entirety, and the motion was referred to the magistrate judge for a report and recommendation.
The magistrate judge recommended that defendants’ motion be granted in part and denied in part,
but his recommendation that Graham be permitted to testify on some issues is conditioned on
plaintiffs’ compliance with certain conditions necessary to cure Graham’s failure to fully disclose
the data underlying his opinions. Dkt. # 190. Plaintiffs have filed an objection (Dkt. # 193) to the
report and recommendation, and defendants have not filed an objection or a response to plaintiffs’
objection. Defendants also ask the Court to exclude an affidavit attached to plaintiffs’ response to
defendants’ motion to exclude Graham’s testimony, and the magistrate judge found and
recommended that the affidavit was not proper supplementation of Graham’s expert disclosures.
Dkt. # 182, at 12-13. Plaintiffs object to the magistrate judge’s recommendation concerning the
admissibility of Graham’s affidavit. Dkt. # 186, at 20-21.
Graham is the president of AeroVox Forensic Investigations & Research, Inc. (AeroVox),
and he states that AeroVox is a “multi-disciplinary firm specializing in air crash litigation support
and aviation safety consulting.” Dkt. # 56-5, at 1. The primary expert services that Graham
provides are CVR analysis and flight data visualization. Id. at 2. Graham has a bachelor’s degree
in German from the University of North Carolina and master of science degree from Winthrop
University. Graham took course work in furtherance of a doctorate in speech pathology, but he
completed flight training and became a flight instructor before completing his doctorate. Id. In
1991, he was hired by American Eagle as a pilot, and he developed an interest in CVR analysis and
accident reconstruction. Id. Graham does not maintain his pilot’s license and he has not been

26

permitted to legally fly without an instructor since 2003. Dkt. # 56-4, at 4. Graham has received
a Certificate of Aviation Safety Management from the Embry-Riddle Aeronautical University, and
he has completed the Basic Safety School and Aircraft Accident Investigations courses taught by
the Air Line Pilots Association. Dkt. # 56-5, at 3.
Graham reached out to plaintiffs’ counsel after he learned about the lawsuit, and he was
retained by plaintiffs to analyze the CVR. Graham was clear during his deposition testimony that
he was not retained as a piloting expert or an electrical expert. Dkt. # 54-4, at 8, 14. On February
1, 2016, Graham produced an expert report (Dkt. # 56-5) but he did not have access to the CVR from
the accident when he prepared the report. See Dkt. # 120-5, at 2. Graham opined that the “subject
aircraft could not be successfully landed with the front (nose) gear deployed and the main gear
retracted,” and he stated that there was an unsuccessful attempt to start the second engine before the
crash. Dkt. # 56-5, at 6. Although he did not have access to the CVR, he issued a series of opinions
generally criticizing the quality of the transcripts of CVRs prepared by the NTSB following any
airplane crash, and he claims that it is possible to completely reconstruct the accident by analyzing
the CVR in light of other data. Id. at 7-11. In February 2016, the magistrate judge entered a
protective order allowing both parties to have access to the CVR audio files. Dkt. # 40. Graham
prepared a supplemental expert report after he had an opportunity to examine the CVR audio files,
as well as audio recordings of communications between the aircraft and air traffic control (ATC).
Dkt. # 120-5, at 3. Graham identified alleged errors in the NTSB’s transcript of the CVR, and he
criticized the aircraft sound exemplar recordings prepared by Beechcraft used to conduct an audio
examination of the CVR audio files. Dkt. # 120, at 27-28. He opined that the pilot exhibited
“extraordinary situational awareness, professionalism, checklist use, compliance with FAA

27

regulations, and excellent knowledge of aircraft systems . . . .” Graham claimed to hear “static
noise, more likely than not, electrical in origin,” beginning approximately four seconds before the
pilot attempted to restart the second engine and continuing until the end of the recording. Id. at 28.
Graham further stated that he listened for stress levels in the pilot’s voice and the pilot “exhibited
little, if any, psychological stress before, during, and after the emergency.” Id. at 29.
Graham appeared for a deposition on May 12, 2016. Defense counsel asked Graham why
he did not bring the necessary equipment to provide a demonstration of his methodology, and
Graham responded that defense counsel made an untimely request for Graham to bring his
equipment to the deposition.10 Dkt. # 56-4, at 13. Graham initially stated that he did not own the
equipment anymore and that he did not need it. Id. at 13. However, he clarified that he had
equipment for two people to listen to the audio files on which he heard certain sounds, but the
equipment was “hardwired in my office” and he would present such a demonstration only “on my
terms and probably off the record.” Id. Graham testified that he last held a valid pilot’s license in
2003 and he had flown jet aircraft only in a simulator. Id. at 4. Defense counsel asked if Graham
was aware that Caves had problems during his pilot training, and Graham responded that he would
defer to plaintiffs’ piloting expert on such matters. Id. at 8. Graham testified that he had only heard
of one instance in which a plane landed with only the front landing gear locked, and his entire
investigation on this issue was a one hour search on the Internet. Id. at 9. Graham did not obtain
his own exemplar sound recordings of mechanical sounds from a Premier 390 aircraft and he relied
on exemplar sound recordings made by Beechcraft in reaching his opinions. Id. at 10. Graham

10

The parties do not dispute that defense counsel sent an e-mail to plaintiffs’ counsel the day
before Graham’s deposition requesting that Graham bring his equipment to the deposition.
28

testified that he heard electrical signals and noises coming from the aircraft, but he would defer to
plaintiffs’ electrical expert to explain the cause of the sounds. Id. at 14, 24. Defense counsel asked
Graham to explain how certain spectrogram images supported his opinions as to the cause of certain
sounds, and Graham frequently responded “asked and answered” when asked to explain his answers.
Id. at 15, 21, 22, 23. Graham opined that Caves was not acting stressed and that the circumstances
were “not necessarily” stressful, because Graham described 6,000 or 7,000 feet of altitude as “all
the space in the world” to restart the engines. Id. at 26.
In response to defendants’ motion to exclude Graham’s testimony, Graham drafted an
affidavit and stated that he was “qualified to render expert opinions regarding Caves’ situational
awareness, professionalism, checklist use, compliance with FAA regulations, and knowledge of
aircraft systems,” and he explained that he performed forensic analysis of the CVR and ATC audio
files to reach his opinions. Dkt. # 120-4, at 3. Graham did not offer any new opinions as to Caves’
stress level of piloting performance, and the affidavit was apparently drafted to rebut challenges to
the methodology he employed. However, he did offer one new opinion that he had “very serious
concerns about the conduct of counsel for defendants in [his] deposition” and he did not believe that
he was treated appropriately. Id. at 5. Graham attached “.wav files” to his affidavit. These files
were produced to defendant on June 29, 2016, and the files appear to be spectrogram images
prepared by Graham. Id. at 18-27. Defense counsel sought clarification on what the images were
supposed to represent, and plaintiffs’ counsel has refused to provide any explanation as to the source
of the images or the sounds being analyzed in the spectrograms. Dkt. # 150, at 4; Dkt. # 150-1.
The magistrate judge recommended that the Court exclude Graham’s affidavit and the
exhibits attached to the affidavit, because the exhibits should have been disclosed when Graham

29

drafted his supplemental report in April 2016 and the affidavit is an improper attempt to bolster
Graham’s opinions. Plaintiffs object to the magistrate judge’s recommendation and claim that the
affidavit was prepared to “consolidate” the opinions stated in Graham’s original and supplemental
reports in response to defendants’ motion to exclude Graham’s testimony. Dkt. # 186, at 20-21.
Plaintiffs do not object to the magistrate judge’s recommendation that the “.wav files” be excluded.
Id. at 5. The Court agrees with the magistrate judge that Graham’s affidavit is not proper
supplementation under Rule 26. The affidavit is an attempt to bolster the basis for certain opinions
stated in Graham’s original and supplemental reports.

Graham could have explained his

methodology in greater detail during his deposition, but he refused to answer questions about his
methodology or timely produce supporting documentation. The additional information contained
in the affidavit about Graham’s methodology was available to him when he drafted his initial and
supplemental expert reports, and the Court finds that the affidavit (Dkt. # 120-4) should be excluded.
Plaintiffs object to the magistrate judge’s recommendation to exclude Graham’s opinions on
piloting and electrical issues and the magistrate judge’s recommendation that plaintiffs make
Graham available for a supplemental deposition at their own expense. Dkt. # 193. Plaintiffs do not
object to the magistrate judge’s recommendation that Graham be precluded from testifying that a
plane could not be landed with only the nose landing gear locked into place. Id. at 2-3. Defendants
have not filed an objection to the report and recommendation or a response to plaintiffs’ objection.11

11

The Court has independently reviewed defendants’ motion to exclude Graham’s testimony
and associated briefing, and the Court accepts the magistrate judge’s recommendations to
exclude Graham’s opinion as to the landing gear and his recommendation that Graham’s
criticism of sound exemplars do not render his testimony wholly inadmissible. See Dkt. #
190, at 7-8, 12-14. The parties did not object to the magistrate judge’s report and
recommendation as to these issues.
30

The Court will initially consider the magistrate judge’s recommendation that Graham be
permitted to testify that he heard “static,” but that he should be precluded from offering an opinion
that the static was an “electrical noise” or evidence of an electrical defect. Dkt. # 190, at 8. Graham
testified in his deposition that he heard electrical signals or noise but he could not identify the source
of the sound, and he deferred to plaintiffs’ electrical expert to determine the origin of the sound.
Plaintiffs object that Graham should be permitted to testify that the sound is “electrical noise,” as
opposed to acoustic noise. Dkt. # 193, at 3. However, Graham admitted that he is not an electrical
expert and he should not be permitted to describe the static he heard as “electrical noise.” He may
testify that he heard static on the CVR, but if he is permitted to describe the static as “electrical
noise” he will be implying that there was an electrical defect occurring that contributed to the crash.
He admits that electrical issues are outside of his expertise and he may not testify that the static is
electrical in origin.
Plaintiffs object to the magistrate judge’s recommendation that Graham be prohibited from
testifying as to the lack of stress in Caves’ voice “before, during, and after the emergency.” Dkt.
# 193, at 8-9. The magistrate judge noted that the CVR stopped working about two minutes after
the engines were shut down and there are at least six minutes before the crash that were not recorded
on the CVR. Even if the complete CVR were available, Graham did not limit his opinions to voice
stress and he intends to offer an opinion that Caves exhibited “extraordinary situational awareness,
professionalism, checklist use, compliance with FAA regulations, and excellent knowledge of
aircraft systems.” Dkt. # 120-5, at 27. It would be misleading to allow Graham to testify that Caves
was calm “before, during, and after” the engines were shut off when he lacks a reliable basis to offer
such an opinion. Graham also lacks any basis to know whether Caves acted appropriately as a pilot,

31

and he acknowledged during his deposition that he was not expressing any opinions in this case on
piloting issues. Dkt. # 56-4, at 8. The Court accepts the magistrate judge’s recommendation to
exclude Graham’s opinion as to Caves’ voice stress.
Plaintiffs object to the magistrate judge’s recommendation that they make Graham available
for a supplemental deposition, and that they pay defendants’ travel costs and any costs charged by
Graham for the deposition. Dkt. # 193, at 6 n.2. Plaintiffs claim that defendants waited until one
day before Graham’s deposition to request a demonstration and the filtered audio files created by
Graham, and they state that defendants are already in possession of the CVR and ATC audio files.
Id. at 5. The magistrate judge found and recommended that Graham failed to cooperate during
discovery due to his failure to timely supplement his expert disclosures with enhanced or filtered
audio files that he used to reach his opinions as to what sounds he identified, such as the movement
of the thrust lever, on the audio files. Dkt. # 190, at 9. The magistrate judge explained that the
spectrograms produced by Graham by themselves do not assist defendants with determining how
Graham correlated sounds with actions taken by the pilot, and defendants were not required to file
a motion for production of documents to obtain documents that Graham was obligated to disclose
under Rule 26. The Court has reviewed plaintiffs’ objection and they largely ignore the magistrate
judge’s actual recommendation and the basis for that recommendation. Instead, plaintiffs focus on
defendants’ failure to file a motion for production and defendants’ request one day before Graham’s
deposition for a demonstration of his methodology.12 Dkt. # 193, at 5-6. The Court agrees with the

12

Plaintiffs repeatedly argue that defendants requested a demonstration just one day before
Graham’s deposition. The timing of defendants’ request seems irrelevant in light of
Graham’s statement that he would provide a demonstration “only . . . on my terms and
probably off the record.” Dkt. # 56-4, at 13.
32

magistrate judge that Graham’s failure to produce the filtered audio files he used to reach his opinion
is governed by Rule 26, and it was unnecessary for defendants to file a motion to compel. Graham
acknowledged in his deposition that the spectrograms do not independently show how he reached
his opinions, and he could not adequately explain by simply looking at spectrogram images how he
determined that the pilot was manipulating the thrust lever. Dkt. # 56-4, at 16. Graham should have
come to his deposition prepared to fully explain the basis for his opinions, and the magistrate judge’s
recommendation for plaintiffs’ to make Graham available for a supplemental deposition and for
plaintiffs to bear the costs of that supplemental deposition is an appropriate remedy for Graham’s
failure to abide by the expert disclosure requirements of Rule 26. The Court accepts the magistrate
judge’s recommendation that plaintiffs make Graham available for a supplemental deposition and
that plaintiffs pay defendants’ travel costs and Graham’s fees.
E.
The magistrate judge recommends that the Court exclude much of the proposed testimony
of plaintiffs’ piloting expert, Michael Haider.13 Before considering the admissibility of Haider’s
testimony under Daubert, the magistrate judge noted that there is a substantial issue as to whether
Haider actually “prepared” his expert report. Haider admitted during his deposition that plaintiffs’
counsel actually drafted the expert report signed by Haider and that he had minimal involvement in
reaching the opinions expressed in the report. However, this was not expressly raised by defendants
as a reason to exclude Haider’s testimony and plaintiffs were not compelled to respond to this issue.
The magistrate judge did not formally make a recommendation regarding the origin of Haider’s

13

The magistrate judge filed an amended report and recommendation (Dkt. # 191) as to
defendants’ motion to exclude Haider’s testimony, and the magistrate judge’s original report
and recommendation (Dkt. # 189) is moot.
33

report and its compliance with Rule 26. The magistrate judge did recommend that Haider be
permitted to testify as to the following four topics only:
•

First, if an aircraft is functioning properly, a pilot should be able to recover from the
loss of both engines in flight by following a prescribed sequence. Aircraft are
designed and manufactured in a manner that allows the pilot to restart both engines
in the event they shut down simultaneously in flight. [Dkt. No. 60-7, p. 5]

•

Second, that pilot Caves properly followed the [South Bend airport’s] Tower
instructions when they directed him to do a flyaround upon observing that his main
landing gear did not deploy. [Id., p.6].

•

Third, that pilots are unable to land when only the nose landing gear is deployed and
the main landing gear remains retracted . . . . [Id., p.7].

•

Fourth, a pilot would be unable to safely land a plane if it had a defective landing
gear that did not fully deploy or certain specific electrical and manufacturing defects.
[Id., at p. 6-7]

Dkt. # 191, at 33-34.
Plaintiffs object to the magistrate judge’s report and recommendation, but they completely
ignore the magistrate judge’s lengthy discussion concerning the origin of Haider’s expert report.
Dkt. # 193. Defendants have filed a response to plaintiffs’ objection and they argue that the Court
should inquire into the circumstances behind the drafting of Haider’s expert report before
considering the specific objections raised by plaintiffs. The Court has reviewed the briefing on
defendants’ motion to exclude Haider’s testimony (Dkt. ## 60, 118, 140), the magistrate judge’s
report and recommendation (Dkt. # 191), plaintiff’s objection to the report and recommendation,
and defendant’s response to plaintiff’s objection, and finds that the Court must preliminarily assess
whether Haider’s expert report was drafted in compliance with Rule 26. Under Rule 26, a written
report must be “prepared and signed” by an expert. Haider admitted in his deposition that he did
not actually write his expert report that was provided to defendants on February 1, 2016, and the

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report was actually written by plaintiffs’ counsel. Dkt. # 60-4, at 10. Haider also admits that he did
not receive any materials from plaintiffs’ counsel until January 30, 2016, and he “reviewed” but did
not “read” those materials before he signed the report prepared by plaintiffs’ counsel. Id. at 5. This
issue was raised in defendants’ motion to exclude Haider’s testimony (Dkt. # 60), defendants’ reply
(Dkt. # 140), the magistrate judge’s report and recommendation (Dkt. # 191), and defendants’
response to plaintiffs’ objection (Dkt. # 194), and plaintiffs have failed to provide any response on
the issue of the authorship of Haider’s expert report. The magistrate judge declined to make a
recommendation on this issue because it was not directly raised by defendants as a basis to exclude
Haider’s testimony, but he did provide a thorough discussion of the applicable law and the facts and
plaintiffs should have provided a meaningful response. The Court cannot assess the admissibility
of Haider’s testimony without knowing whether he actually considered evidentiary materials,
formed his own opinions, and drafted his own report in compliance with Rule 26, and plaintiffs are
directed to file a brief detailing their communications with Haider before and during the preparation
of his expert report and plaintiffs’ counsel’s role in the drafting of Haider’s report.14 Plaintiffs shall
also submit copies of all communications between Haider and plaintiffs’ counsel leading up to the
signing of Haider’s report, and plaintiffs’ counsel shall also submit copies of all draft experts reports
and identify who prepared the report. Plaintiffs may file the brief and supporting documentation
under seal if it is necessary to preserve attorney/client privilege.

14

The Court notes that Haider submitted a revised report (Dkt. # 60-7) in April 2016 and an
affidavit in response to defendants’ motion to exclude Haider’s testimony. However, if
Haider’s initial report was not prepared in compliance with Rule 26, he will not have made
a timely disclosure of his proposed expert testimony and it is unclear if Rule 26 would allow
an expert to supplement his opinions when he did not timely file an original expert report.
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IT IS THEREFORE ORDERED that the Report and Recommendation (Dkt. ## 182, 183)
is accepted, and Defendants’ Motion to Strike Improper “Supplementation” by Plaintiffs’ Experts
(Dkt. # 150) is granted in part, and the affidavits of Bloomfield, Sommer, and Graham will not be
considered in ruling on defendants’ Daubert motions. The motion is under advisement as to
defendants’ request to exclude Haider’s affidavit.
IT IS FURTHER ORDERED that the Report and Recommendation (Dkt. # 195) is
accepted, and Defendants’ Motion to Limit and/or Exclude the Testimony of John Bloomfield (Dkt.
# 52) is granted in part and denied in part as stated in the Report and Recommendation (Dkt. #
195).
IT IS FURTHER ORDERED that the Report and Recommendation (Dkt. # 196) is
accepted, and Defendants’ Motion to Limit and/or Exclude the Testimony of Don and Colin
Sommer (Dkt. # 57) is granted in part and denied in part as stated in the Report and
Recommendation (Dkt. # 196).
IT IS FURTHER ORDERED that the Report and Recommendation (Dkt. # 190) is
accepted, and Defendants’ Motion to Exclude and/or Limit the Testimony of Frank Graham (Dkt.
# 56) is granted in part and denied in part as stated in the Report and Recommendation (Dkt. #
190).
IT IS FURTHER ORDERED that plaintiffs shall file a supplemental brief no later than
February 10, 2017 explaining who drafted Haider’s expert report and what, if any, information
Haider actually reviewed before signing the report.

Plaintiff shall submit copies of all

correspondence, e-mails, and other communications between Haider and plaintiffs’ counsel from
on or before February 1, 2016. Plaintiffs shall also submit copies of any drafts of Haider’s initial

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expert report and identify who prepared the expert report. Plaintiffs’ brief and supporting
documentation may be filed under seal if it necessary to preserve attorney/client privilege.
IT IS FURTHER ORDERED that the magistrate judge’s Report and Recommendation
(Dkt. # 189) as to defendant’s motion to exclude Haider’s testimony is moot in light of the filing
of an Amended Report and Recommendation (Dkt. # 191), which remains under advisement.
DATED this 3rd day of February, 2017.

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