Rodgers et al v. Beechcraft Corporation et al
Filing
212
OPINION AND ORDER by Judge Claire V Eagan ; denying 43 Motion in Limine; denying 44 Motion in Limine; granting in part and denying in part 62 Motion in Limine; granting in part and denying in part 66 Motion in Limine; denying 69 Motion in Limine; denying 70 Motion in Limine; denying 71 Motion in Limine; denying 72 Motion in Limine; finding as moot 73 Motion in Limine (Re: 28 Amended Complaint, 129 Amended Complaint ) (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
In the scheduling order (Dkt. # 18), the Court set a deadline of June 6, 2016 for the parties
to file motions in limine.1 Defendants Beechcraft Corporation (Beechcraft) and Hawker Beechcraft
Global Customer Support, LLC (HBGCS) filed two motions in limine (Dkt. ## 62, 66), and
plaintiffs filed seven motions in limine (Dkt. ## 43, 44, 69, 70, 71, 72, 73). The parties’ motions in
limine are fully briefed. The motions in limine had been referred to the magistrate judge, but the
referral has been withdrawn. See Dkt. ## 76, 205.
1
In a separate opinion and order, the Court ruled on the parties’ motions in limine to exclude
expert testimony, except as to one still-pending motion (Dkt. # 60). The motions in limine
at issue in this Opinion and Order are the non-expert motions in limine.
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, and the pilot of the aircraft was Wesley
Caves. 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 bus
distribution 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
2
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.
In the second amended complaint (Dkt. # 129), plaintiffs allege claims of negligence against
Beechcraft and HBGCS, a manufacturer’s products liability claim against Beechcraft, and loss of
consortium claims against Beechcraft and HBGCS. The second amended complaint alleges three
defects with the subject aircraft: (1) HBGCS incorrectly installed a repair kit and created a defect
in the electrical bus distribution system that caused intermittent electrical supply to essential
systems; (2) the alternate landing gear did not operate as represented in the design specifications;
and (3) the AFM included faulty instructions for restarting the electrical generators following a
shutdown. Dkt. # 129, at 5-7. In addition, plaintiffs allege that defendants were negligent due to
inadequate assembly and inspection practices, substandard wiring practices, and the design of the
alternate landing gear. Id. at 10.
II.
“‘A motion in limine is a request for guidance by the court regarding an evidentiary
question,’” which the court may provide at its discretion to aid the parties in formulating trial
strategy.” Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995). Motions in limine provide a way for
the district court to rule in advance of trial on possible evidentiary disputes, because this may avoid
a lengthy interruption during the trial to resolve objections to evidence. Wilkins v. Kmart Corp., 487
F. Supp. 2d 1216, 1218 (D. Kan. 2007). A ruling on a motion in limine “is no more than a
preliminary, or advisory, opinion that falls entirely within the discretion of the district court.” Edens
v. The Netherlands Ins. Co., 834 F.3d 1116, 1130 (10th Cir. 2016). Unless otherwise stated in this
3
Opinion and Order, the Court’s rulings on evidentiary issues are preliminary and non-final and the
Court “may change its ruling at any time for whatever reason it deems appropriate.” T.G. v.
Remington Arms Co., Inc., 2014 WL 2589443, *2 (N.D. Okla. June 10, 2014).
The parties’ motions in limine are primarily based on the admissibility of evidence under
Federal Rules of Evidence 401 and 403. Under Rule 401, evidence is relevant if “(a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Fed. R. Evid. 401. However, a court may exclude
relevant evidence if “its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. “Evidence may be unfairly prejudicial if it
would likely provoke the jury’s emotional response or otherwise tend to adversely affect the jury’s
attitude toward a particular matter . . . [but] [e]vidence is not unfairly prejudicial merely because it
damages a party’s case.” Leon v. FedEx Ground Package System, Inc., 313 F.R.D. 615, 622
(D.N.M. 2016). “To be unfairly prejudicial, the evidence must have ‘an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.” United States
v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008) (emphasis in original). For the purpose of this
Opinion and Order, the Court does not know what evidence will be presented at trial and the Court
will preliminarily resolve all doubts in favor of admissibility of disputed evidence.
III.
Plaintiffs’ Motion to Exclude Evidence of Caves’ Pilot Training (Dkt. # 43)
Plaintiffs ask the Court to exclude evidence of Caves’ training in an Eclipse 500 aircraft,
because this is not the type of aircraft involved in the accident and evidence of Caves’ pilot training
4
is inadmissible under Rules 404 and 406. Dkt. # 43. Defendants respond that plaintiffs have placed
Caves’ training, specifically his ability to follow checklists, directly at issue by alleging that the
checklists in the AFM were defective and by offering expert testimony that Caves was a skilled pilot
who acted reasonably up to the time of the crash. Dkt. # 83.
Caves owned an Eclipse 500 aircraft and he received training from Keith Jones in the Eclipse
500. Dkt. # 83-6, at 4 The training occurred in February and March 2012, or about 13 months
before the crash giving rise to this lawsuit. Jones noted on one training flight that Caves failed to
follow checklist procedures, and Jones’ notes contained a number of comments “that the checklist
procedure was not either done or verbalized.” Id. at 5, 9. Jones acknowledged that the Eclipse 500
was a different aircraft than the Premier 390, and Jones could not comment on Caves’s training for
the Premier 390. Dkt. # 43-2, at 8-9. Jones recommended that Caves needed more training before
he could become certified to fly the Eclipse 500, but he believed that Caves would likely obtain the
required certification if he continued to train. Id. at 10. Instead of continuing to train in the Eclipse
500, Caves immediately put the Eclipse 500 up for sale and purchased another aircraft. Id. at 16.
In the second amended complaint, plaintiffs acknowledge that both engines were shut down during
flight before the accident on March 17, 2013, but they claim that Caves could not have restarted the
electrical generators due to an incorrect Air Start checklist in the AFM. Dkt. # 129, at 6-7.
Plaintiffs’ motion in limine to exclude evidence of Caves’ training in the Eclipse 500 aircraft
should be denied. One of plaintiffs’ theories of product defect is that the checklist in the AFM for
restarting the electrical generators is defective. Id. Defendants respond that the pilot either followed
the wrong checklist or incorrectly followed the required steps to restart the engines and/or
generators. Dkt. # 149, at 5-7. This places the pilot’s ability to follow a checklist directly at issue,
5
and evidence of Caves’ inability to correctly follow a checklist is relevant. In addition, plaintiffs
intend to offer expert testimony that Caves was a qualified and skilled pilot who was acting
reasonably under the circumstances. If plaintiffs proceed with this argument, this opens the door
to evidence that Caves had difficulty following checklists in his training. It is not necessary for the
Court to reach plaintiffs’ arguments concerning the application of Rules 404 and 406, because the
disputed evidence is relevant and admissible without treating the evidence as a prior bad act or
evidence of habit.
Plaintiffs’ Motion to Exclude Evidence of Improper Aircraft Operation (Dkt. # 44)
Plaintiffs ask the Court to exclude Caves’ statement that he regularly flew the subject aircraft
over the recommended weight limit and evidence that the overspeed warning horn was heard twice
before the aircraft’s engines were shut off by a passenger on March 17, 2013. Dkt. # 44.
Defendants respond that evidence that the overspeed warning horn went off is directly relevant to
the cause of the crash, and they argue that evidence that the pilot disregarded weight limits is
relevant to plaintiffs’ claims that the pilot was a skilled pilot who would have followed instructions
in the AFM. Dkt. # 80.
The National Transportation Safety Board (NTSB) prepared a transcript after reviewing the
cockpit voice recorder (CVR) following the crash. Caves informs his passengers that the landing
gear of the aircraft has a weight limit of 13,000 pounds, Caves states that he does not “have any
problem with [13,500 pounds].” Dkt. # 80-1, at 12. Caves goes on to say that “so even though the
book is that I don’t . . . pay a whole lot of attention to it.” Id. The transcript also shows that
overspeed warnings were heard two times before the engines were shut off. Id. at 15, 25.
6
Plaintiffs argue that the Caves’s statements concerning flying the aircraft over the
recommended weight limit and the two overspeed warnings noted in the transcript of the CVR are
irrelevant, because neither the aircraft’s weight nor speed were the cause of the crash. Dkt. # 44,
at 5. Plaintiffs cite Fed. R. Evid. 404 and 406 and argue that evidence that Caves claimed to
regularly fly the aircraft over the recommended weight limit is inadmissible.
Id. at 7-11.
Defendants respond that they are not seeking to introduce the Caves’ statement as a prior bad act
or as evidence of habit, but as rebuttal to plaintiffs’ assertions that Caves was a qualified pilot who
would have followed instructions in the AFM. This would be a permissible use of evidence that
Caves claimed to disregard the manufacturer’s recommended weight limit. Defendants would not
be prohibited under Rules 404 or 406 from rebutting plaintiffs’ claims concerning the Caves’
piloting skills and willingness to follow the manufacturer’s recommendations concerning operation
of the aircraft. Likewise, evidence that Caves set off two overspeed warnings and operated the
aircraft in excess of the speed recommended by the manufacturer is relevant as to Caves’ piloting
skills and his disregard for the manufacturer’s safety recommendations. Admission of this evidence
will not be unfairly prejudicial, because it is clear from plaintiffs’ filings that a key theme will be
that Caves was a good pilot who was operating the aircraft in compliance with his training and that
defects in the AFM and the aircraft, rather than any pilot error, caused the crash. The Court finds
that plaintiffs’ motion in limine (Dkt. # 44) is denied.
Plaintiffs’ Motion Regarding Alleged Misuse of Alternate Landing Gear (Dkt. # 69)
Plaintiffs ask the Court to exclude evidence or argument that Caves misused the alternate
landing gear or that he was contributorily negligent in failing to lock the alternate landing gear in
place. Dkt. # 69. Defendants respond that evidence of Caves’ failure to properly use the alternate
7
landing gear system tends to show that pilot error, not a product defect, was the cause of the
accident, and this evidence should not be excluded merely because the evidence may not eventually
support an instruction on a misuse defense.2
Plaintiffs’ motion in limine is not a true motion in limine to exclude evidence but, instead,
an argument that defendants should be prohibited from presenting the evidence in a particular
manner at trial. Neither side disputes that evidence of causation is relevant, but plaintiffs object to
the possibility that defendants may characterize Caves’ allegedly improper deployment of the
alternate landing gear as misuse of the aircraft. The Court finds that it would be premature to
prevent defendants from raising a defense of product misuse. As plaintiffs point out, the primary
defenses available to a defendant in a products liability claim are lack of evidence of causation,
product misuse, and voluntary assumption of the risk. Dkt. # 139, at 3. Voluntary assumption of
the risk does not appear to be at issue in this case. The Court will not defeat one of the two
remaining defenses based only on plaintiffs’ summary of the evidence that may be presented at trial.
At the jury instruction conference, the Court will consider whether to instruct on a misuse defense.
However, defendants will be permitted to argue that Caves was contributorily negligent as a defense
to plaintiffs’ negligence claim and that any alleged design flaw in the alternate landing gear system
did not cause the accident, even if plaintiffs’ motion in limine were granted. Plaintiffs’ motion in
limine (Dkt. # 69) is denied, but plaintiffs may request a limiting instruction at trial concerning the
separate defenses of product misuse (as to the products liability claim) and contributory negligence
2
Plaintiffs have alleged a manufacturer’s products liability and a negligence claim against
Beechcraft, and the parties do not dispute that contributory negligence is a defense to
plaintiffs’ negligence claim. Plaintiffs’ motion in limine goes only to their products liability
claim. See Dkt. # 139, at 6.
8
(as to the negligence claim) if defendants argue that Caves was contributorily negligent in his
operation of the alternate landing gear.
Plaintiffs’ Motion in Limine Concerning FAA Certification (Dkt. # 70)
Plaintiffs ask the Court to prevent defendants from arguing that “FAA approval or issuance
of a type, production or airworthiness certificate” means that the subject aircraft was not defective.
Dkt. # 70, at 6. Defendants respond that the FAA’s issuance of certificates and the FAA’s approval
of the AFM tend to show that the aircraft was not defectively designed, and plaintiffs’ claims that
the FAA did not rigorously examine the alternate landing gear design or the AFM can be raised on
cross-examination. Dkt. # 115, at 9.3
Plaintiffs argue that compliance with FAA regulations concerning the design and
manufacture of the subject aircraft is irrelevant, because a product may comply with federal
regulations and still be unreasonably dangerous as a matter of Oklahoma law. Dkt. # 70, at 11-12.
They claim that FAA regulations concerning the alternate landing gear and the AFM lack specificity,
and that a jury could be confused or misled by evidence of compliance with FAA regulations. Id.
at 16-20. Defendants respond that evidence of compliance with FAA regulations tends to rebut
plaintiffs’ claims that there was a design defect in the alternate landing gear and that the AFM
instructions were flawed, and the evidence will not be unfairly prejudicial or misleading for the jury.
Dkt. # 115. Although state tort law may provide the standard for liability, the Court finds that
evidence of compliance with FAA regulations is relevant, because this evidence tends to rebut
3
To the extent that the parties dispute the preemptive effect of FAA regulations, those issues
are more fully briefed in defendants’ motion for summary judgment (Dkt. # 94) and
plaintiffs’ response (Dkt. # 158). For the purpose of this Opinion and Order, the Court will
assume that FAA regulations do not preempt plaintiffs’ claims under state law.
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plaintiffs’ theories of product defect. Plaintiffs may present evidence that the applicable regulations
lack specificity or that the FAA regulations impose only minimal requirements, but this goes to the
weight of the evidence of compliance with FAA regulations rather than its admissibility. The Court
also notes that plaintiffs seek to introduce evidence of Caves’ compliance with FAA regulations
related to training and pilot licensing as proof of his skills as a pilot. Plaintiffs should be not be
permitted to use FAA regulations as a means to bolster their own case, while preventing defendants
from using compliance with regulations as a defense. Plaintiffs’ motion in limine (Dkt. # 70) to
prohibit defendants from using evidence of compliance with FAA regulations is denied.
Plaintiffs’ Motion to Exclude Evidence Concerning the Method of Pilot Training (Dkt. # 71)
Plaintiffs ask the Court to exclude evidence that Caves was trained in the aircraft itself, rather
than by use of a flight simulator, because this method of pilot training is approved by the FAA and
Caves received the proper certification to fly the subject aircraft, regardless of the training method.
Dkt. # 71. Defendants respond that evidence of Caves’ pilot training is admissible to rebut
plaintiffs’ argument that Caves was a skilled pilot who could have restarted both engines and
generators following a dual-engine shutdown. Dkt. # 113, at 14-17. Defendants claim that plaintiffs
intend to offer evidence that Caves took FAA-approved training and held the necessary type rating
to operate the subject aircraft as undisputable evidence that Caves was a skilled pilot. Evidence that
Caves’ training was inadequate is relevant to show that pilot error caused or contributed to the
accident. Id. at 23.
Plaintiffs characterize their motion in limine as a request to exclude evidence of the type of
training Caves used to obtain his type rating certification to fly the subject aircraft. The parties agree
that there are two acceptable methods under FAA regulations. A prospective pilot can receive
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training under 14 C.F.R. Part 61, and this training occurs only in the aircraft without the use of a
simulator. Dkt. # 71, at 2; Dkt. # 113, at 11. Training can also be acquired pursuant to 14 C.F.R.
Part 141/142, and the training occurs in the classroom and in a simulator. Id. The parties’ piloting
experts, Michael Haider for plaintiffs and Robert “Hoot” Gibson for defendants, dispute which
method is the better method of pilot training. Plaintiffs argue that the method of training is
irrelevant, because Caves went on a checkride with an FAA examiner and obtained the necessary
type rating to operate the subject aircraft. Dkt. # 71, at 3-5.
The Court finds that plaintiff’s motion in limine (Dkt. # 71) should be denied. Although
styled as a motion to exclude evidence of the type of training, plaintiffs’ motion is part of a broader
dispute between the parties and their experts as to the admissibility of evidence concerning Caves’
pilot training. It is a fair reading of plaintiffs’ motion in limine that plaintiffs will assert that Caves
must have been qualified pilot simply because he obtained the necessary certification to operate the
subject aircraft. Defendants have cited evidence that the method of training selected by Caves did
not include training as to a dual engine shutdown, and this would be relevant to show that pilot error
was the sole cause of the crash. Dkt. # 113, at 11-12. Plaintiffs have placed Caves’ piloting skills
at issue, particularly his ability to follow checklists and respond to a dual engine shutdown.
Depending on the manner of the plaintiffs’ presentation of evidence at trial, the method of Caves’
training may have less relevance, but it would be premature for the Court to exclude this evidence
on an in limine ruling.
Plaintiffs’ Motion to Exclude Evidence of Betting on Test Results (Dkt. # 72)
Plaintiffs ask the Court to exclude evidence that their experts Donald Sommer and John
Bloomfield placed a wager on the results of a pull force test of the alternate landing gear of an
11
exemplar aircraft. Dkt. # 72. Defendants argue that evidence that plaintiffs’ experts placed a wager
on test results is relevant to defendants’s arguments that testing was improperly performed and that
Sommer and Bloomfield may have had a motive to inflate the pull force necessary to deploy the
alternate landing gear. Dkt. # 102.
Plaintiffs state that Sommer and Bloomfield placed a $10 bet on the amount of pull force that
would be needed to deploy the alternate landing gear in an exemplar aircraft. Dkt. # 72, at 3.
Plaintiffs allege that a third-party, Jay Jones, actually pulled out the handle to deploy the alternate
landing gear, and they claim that no money ever changed hands as a result of the bet. Id. at 3-5. The
testing was conducted as part of a related lawsuit filed by Regina Caves, the wife of Wesley Caves,
and Regina Caves’ attorney, Walter Haskins, was also present during the testing. During discovery
in the related lawsuit, Regina Caves responded to an interrogatory about the testing and stated that
Sommer actually performed the testing. Dkt. # 102-1, at 4. Defendants filed motions to exclude
plaintiffs’ expert testimony concerning the pull force testing on the ground that Sommer and
Bloomfield used an unreliable methodology that inflated the pull force needed to deploy the
alternate landing gear. Dkt. ## 52, 57. The Court denied defendants’ motions to the extent that they
challenged the test results and found that defendants’ arguments went to the weight, rather than
admissibility, of Sommer’s and Bloomfield’s testimony.
The Court finds that plaintiffs’ motion to exclude evidence of betting on the test results by
Sommer and Bloomfield should be denied. There is a dispute as to whether Sommer or a third-party
conducted the testing at issue, and defendants have challenged the methodology employed by
Sommer and Bloomfield in conducting testing on exemplar aircraft. Evidence that Sommer and
Bloomfield had an incentive to inflate the pull force needed to deploy the alternate landing gear is
12
relevant, because a key issue in this case is whether Sommer and Bloomfield conducted testing on
exemplar aircraft in a manner that improperly increased the pull force for using the alternate landing
gear. Plaintiffs argue that any minimal relevance of evidence of betting on test results would be
outweighed by the unfair prejudice that would result from admission of this evidence. However,
plaintiffs argued in response to defendants’ Daubert motions that challenges to the methodology
used by Sommer and Bloomfield could be raised by defendants on cross-examination, and
disagreements about the proper methodology for testing the pull force did not require exclusion of
Sommer’s or Bloomfield’s testimony. Evidence that Sommer and Bloomfield placed a bet about
test results is a permissible basis for defendants to challenge the accuracy of such testing, and it
could also be relevant to the credibility of Sommer and Bloomfield. Any risk of unfair prejudice
is not outweighed by the relevance of the evidence. The motion in limine (Dkt. # 72) is denied.
Plaintiffs’ Motion To Exclude Evidence of Expert’s Conduct in Prior Case (Dkt. # 73)
Plaintiffs asks the Court to prevent defendants from arguing that Frank Graham, plaintiffs’
expert sound analyst, “destroyed evidence” in a prior case, because this evidence would be irrelevant
and offered for the sole purpose of embarrassing Graham. Dkt. # 73. Defendants respond that
Graham has made contradictory statements about his conduct in a prior case, and this evidence goes
to his truthfulness and credibility. Dkt. # 114, at 6. Defendants also argue that Graham’s past
conduct is consistent with his unwillingness to fully explain the basis for his opinions in this case.
Id. at 8.
Graham was an expert witness in Littlejohn v. Jet Logistics, Inc., Case No. 11-CVS-24301,
filed in Mecklenburg County, North Carolina, and he prepared animation to demonstrate an
aircraft’s flight path. Graham refused to produce an “FDR file” and claimed that the information
13
was proprietary. Dkt. # 114-4. Graham subsequently stated that he no longer had the FDR file, but
he continued to claim that the FDR file would be proprietary even if he did have a copy of the file.
Id. at 5. When deposed in this case, Graham stated that he never destroyed the FDR file and he had
it “in [his] pocket the whole time.” Dkt. # 114-1. Before his deposition in this case, Graham was
asked to give a demonstration of his methodology during his deposition, particularly as to how he
opined that certain sounds represented actions taken by the pilot. Graham gave conflicting
explanations that he no longer had the equipment and that he would refuse to demonstrate his
methodology on the ground that his technology was proprietary. In a separate opinion and order,
the Court has ordered that plaintiffs make Graham available for a supplemental deposition during
which he must provide a demonstration of his methodology or risk the exclusion of Graham’s
testimony. Dkt. # 207, at 32-33.
In light of the Court’s ruling concerning the admissibility of Graham’s testimony, the Court
finds that plaintiffs’ motion in limine to prevent defendants from cross-examining Graham about his
conduct in a prior case is moot if he complies with the requirement that he appear for a supplemental
deposition. The primary reason that defendants would introduce evidence of Graham’s conduct in
Littlejohn would be to challenge the reliability of Graham’s methodology, because Graham’s prior
conduct would be relevant to establish a general unwillingness to fully explain the basis for his
expert opinions. However, if Graham appears at a supplemental deposition, the defendants will have
seen a demonstration of Graham’s methodology and it will be less relevant that Graham was
uncooperative during his original deposition. Plaintiffs are correct that it could result in a lengthy
delay of the trial for defendants to provide adequate context to introduce evidence of Graham’s
conduct in the Littlejohn case, and for purposes of judicial economy it would be preferable if this
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evidence were unnecessary. However, that does not mean that evidence of Graham’s prior conduct
is irrelevant or that it would be unfairly prejudicial to introduce this evidence, because Graham may
continue his pattern of uncooperative behavior or combative testimony at a supplemental deposition
or at trial, and Graham could make evidence of his conduct in Littlejohn more relevant if he refuses
to cooperate with a demonstration or fully answer questions at trial. Plaintiffs’ motion in limine
(Dkt. # 73) is moot, but the parties may renew their arguments as to the relevance of this evidence
depending on Graham’s future conduct in this case.
IV.
Defendants’ Motion in Limine to Exclude of Other Electrical Defects (Dkt. # 62)
Defendants ask the Court to exclude evidence of electrical defects in the subject aircraft and
other aircraft of the same model if the alleged defects did not cause the accident in this case. They
also ask the Court to exclude lay opinion testimony concerning the cause of the accident. Plaintiffs
respond that Rick Frie should be permitted to testify about electrical problems he observed on a
flight on the subject aircraft about two weeks before the crash, and that plaintiffs’ experts should be
permitted to opine as to electrical defects in other aircraft of the same model and poor workmanship
in the subject aircraft.4 Dkt. # 119.
Admission of evidence “regarding prior accidents or complaints is ‘predicated upon a
showing that the circumstances surrounding them were substantially similar to those involved in the
4
Defendants also argue that plaintiffs’ piloting expert, Haider, should not be permitted to
testify as to his experience flying a different Premier 390 aircraft. The Court has not ruled
on defendants’ motion to exclude Haider’s testimony (Dkt. # 60), and there is a substantial
issue as to the admissibility of Haider’s testimony under Fed. R. Civ. P. 26. For the purpose
of this Opinion and Order, the Court declines to consider defendants’ argument to exclude
Haider’s proposed testimony as to his experience with a similar aircraft, but this argument
may be renewed if Haider is permitted to testify.
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present case.’” Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (quoting Karns
v. Emerson Elec. Co., 817 F.2d 1452, 1460 (10th Cir. 1987)). “Substantial similarity depends on
the underlying theory of the case.” Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.3d
1434, 1440 (10th Cir. 1992). “Differences in the nature of the defect alleged may affect a
determination whether the accidents are substantially similar.” Ponder, 834 F.2d at 1560. While
a party may lay a foundation for this evidence in the presence of the jury, the court should rule on
the admissibility of this evidence outside the presence of the jury. Wheeler v. John Deere Co., 862
F.2d 1404, 1407 (10th Cir. 1988). The party seeking to use evidence of other similar incidents has
the burden to prove the admissibility of the evidence. Black v. M & W Gear Co., 269 F.3d 1220,
1227 (10th Cir. 2001); Wheeler, 862 F.2d at 1407.
The Court finds that Frie should be permitted to testify about his observations when he was
a passenger on the subject aircraft, but he may not offer lay opinion testimony as to the cause of any
electrical malfunctions. Frie was a passenger on the subject aircraft on March 5, 2013, just twelve
days before the accident, and he reports that the aircraft suffered electrical problems during a
thunderstorm. Dkt. # 62-3, at 2. Plaintiffs’ electrical expert, John Bloomfield, opines that there was
a loose electrical connection on the pilot’s essential bus, and he claims that the loose connection
would cause electrical problems and voltage spikes. Dkt. # 52-6, at 13, 33-34. During his
deposition, Frie offered unsolicited opinions that the aircraft had electrical problems and that there
may have been a loose wire. Dkt. # 62-3, at 3, 6. Frie can testify as a fact witness as to his
observations of possible electrical malfunctions, because this goes to the condition of the aircraft
16
and the existence of possible electrical problems.5 However, Frie acknowledged that he is “not an
electrician” and he could only speculate as to the cause of any electrical problems. Id. at 3-4, 6. The
Court finds that Frie cannot offer an opinion as to the cause of any electrical problems that he
observed. Defendants can offer their own expert testimony and they can cross-examine plaintiffs’
electrical expert, Bloomfield, as to whether the allegedly loose connection could have caused the
electrical problems observed by Frie.
Defendants also ask the Court to exclude evidence that Bloomfield observed other loose
screws and missing lock washers in the aircraft wreckage, because plaintiffs have not identified any
interruption with the electrical supply that could have been caused by these loose screws. Dkt. # 62,
at 10-11. Plaintiffs respond that Bloomfield testified in his deposition that the number of loose
screws and missing lock washers was evidence of poor workmanship, and evidence of poor
workmanship is relevant to their negligence claim. Dkt. # 119, at 15-16. The Court finds that
defendants’ request to exclude evidence of loose screws and other alleged poor workmanship should
be denied, because this evidence could be relevant to plaintiffs’ negligence claim and this evidence
would not be unfairly prejudicial to defendants.
Defendants’ Motion in Limine Concerning Miscellaneous Issues (Dkt. # 66)
Defendants ask the Court to exclude any argument as to legal theories not alleged in
plaintiffs’ original or amended complaints, from offering cumulative expert testimony, and from
offering expert testimony outside the scope of the expert reports and depositions. Defendants also
ask the Court to exclude evidence concerning damages for lost income as to plaintiff James Rodgers
5
The evidence could also be relevant to defendants’ claims of pilot error, because Frie’s
testimony could show that Caves was on notice of electrical problems almost two weeks
before the crash and that he continued to operate the aircraft.
17
past the age of 60, because Rodgers testified in his deposition that he planned to retire at 60.
Defendants’ argument as to exclusion of legal theories not alleged in the original and amended
complaints is moot, because plaintiffs have been permitted to file a second amended complaint (Dkt.
# 129).
Defendants argue that plaintiffs should be prohibited from offering cumulative expert
testimony. Plaintiffs do not object to defendants’ request, but they do claim that it will be necessary
for their experts to testify about different aspects of the same alleged product defect. The Court has
reviewed the reports of plaintiffs’ experts in the context of ruling on defendants’ Daubert motions
and finds that defendants’ argument is well-founded. Plaintiffs’ experts do not simply opine as to
aspects of an alleged product defect within the scope of their expertise, but the experts repeat the
opinions of other experts as their own, even if the individual expert is not qualified to give such an
opinion. The Court’s ruling on defendants’ Daubert motions excluded many opinions offered by
plaintiffs’ experts that were outside of the respective expert’s field of expertise, and the Court’s
opinion and order (Dkt. # 207) should largely prevent the admission of cumulative expert testimony.
Plaintiffs’ experts may rely on the opinions of other experts as a basis for their own opinions to the
extent such opinions are admissible and that the individual expert previously disclosed his reliance
on the opinions of another expert in his report or deposition testimony. However, the Court will not
permit multiple experts to offer cumulative testimony merely for the purpose of repeating the same
allegations of product defect to the jury.
Defendants argue that plaintiffs should be prohibited from offering expert testimony that was
not disclosed in plaintiffs’ expert reports or deposition testimony. Plaintiffs do not object to
defendants’ argument but they argue that they should be permitted to rely on an opinions disclosed
18
in a supplemental report prepared by an expert.6 Defendants’ motion in limine should be granted
as to the exclusion of expert testimony that was not disclosed in an expert report or deposition
testimony.
Defendants’ final argument is that plaintiffs should be prohibited from offering expert
testimony concerning lost income of Rodgers beyond the age of 60, because Rodgers testified in his
deposition that he intended to retire at that age. Plaintiffs object to defendants’ request and argue
that Ralph Scott, Ph. D, should be permitted to testify as to Rodgers’ income if he had been able to
work to the age of 70. Dkt. # 121. The Court finds that defendants’ motion in limine should be
denied, because Rodger’s deposition merely suggests that he had contemplated retiring at 60. The
deposition testimony is not so conclusive that it can be treated as a binding admission that Rodgers
would have retired at age 60. However, before plaintiffs can offer Dr. Scott’s testimony concerning
Rodgers’ lost income, plaintiffs must lay a foundation that Rodgers could have and would have been
likely to work up to the age of 70.
IT IS THEREFORE ORDERED that plaintiffs’ motions in limine (Dkt. ## 43, 44, 69, 70,
71, 72) are denied.
IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine to Exclude any Evidence
that Frank Graham “Destroyed Evidence” in a Previous Case (Dkt. # 73) is moot should Graham
fully comply with the Court’s opinion and order (Dkt. # 207). However, evidence of Graham’s
conduct in a prior case may be relevant if he fails to fully cooperate at a supplemental deposition.
6
The Court’s prior opinion and order considered the admissibility of opinions stated in
supplemental reports or affidavits. Dkt. # 207.
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IT IS FURTHER ORDERED that Defendants’ Motion in Limine to Exclude Evidence of
Other Alleged Electrical Defects/Incidents (Dkt. # 62) is granted in part and denied in part:
defendants’ request to exclude lay opinion testimony concerning the cause of electrical problems
is granted; the motion is denied in all other respects.
IT IS FURTHER ORDERED that Defendants’ Motions in Limine – Miscellaneous
Evidentiary Issues (Dkt. # 66) is granted in part, moot in part and denied in part: defendants’
motion is granted as to the exclusion of cumulative expert testimony and undisclosed expert
opinions; it is moot as to claims or legal theories not alleged in the original or amended complaints;
it is denied as to the exclusion of damages evidence concerning Rodger’s lost income.
DATED this 14th day of February, 2017.
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