ROBERTSON-ARMSTRONG v. ROBINSON HELICOPTER COMPANY, INCORPORATED et al

Filing 135

MEMORANDUM AND OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/19/15. 11/19/15 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULIA ROBERTSON-ARMSTRONG
v.

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ROBINSON HELICOPTER COMPANY,
INC., et al.

CIVIL ACTION

NO. 13-2810

MEMORANDUM
Bartle, J.

November 19, 2015
Plaintiff Julia Robertson-Armstrong

(“Robertson-Armstrong”) was severely injured on July 20, 2011
when a helicopter in which she was a passenger crashed in New
Jersey.

She has sued Robinson Helicopter Company, Inc.

(“Robinson”), the manufacturer of the helicopter, as well as
Nassau Helicopters, Inc. (“Nassau”), which owned and operated it
at the time of the crash. 1

Her complaint includes claims for

strict liability, negligence, negligent misrepresentation and
omission, and fraud against Robinson and a negligence claim

1. Roberston-Armstrong also sued three related business
entities: Textron, Inc. (“Textron”); AVCO Corporation (“AVCO”);
and Lycoming, a/k/a Lycoming Engines, a/k/a Lycoming Engines
Operating Division of AVCO Corporation, a/k/a Textron Lycoming
Reciprocating Engine Division (“Lycoming”). She alleged that
Lycoming had manufactured the engine of the subject helicopter
and its “fuel related components,” that Lycoming was a division
of AVCO, and that Textron was liable for AVCO’s acts under a
participation theory. On April 23, 2014 the court dismissed
Robertson-Armstrong’s claims against Lycoming and Textron. The
parties subsequently stipulated to the dismissal of
Robertson-Armstrong’s claims against AVCO and Nassau’s
crossclaims against AVCO and Textron.

against Nassau.

Robinson and Nassau subsequently filed

crossclaims against one another, each asserting that the other
is liable for the harm alleged.
Robinson has filed a number of pretrial motions
challenging Robertson-Armstrong’s experts under Daubert v.
Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993), and Rule 702 of
the Federal Rules of Evidence.

We will now consider the motion

of Robinson to preclude Robertson-Armstrong’s expert Colonel
William Lawrence (“Col. Lawrence”) from offering certain
opinions at trial.
I.
The court has a "gatekeeping" function in connection
with expert testimony.

See Gen. Elec. Co., et al. v. Joiner,

522 U.S. 136, 142 (1997); see also Daubert, 509 U.S. at 589.
Rule 702 of the Federal Rules of Evidence provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized
knowledge will help the trier of fact to
understand the evidence or to determine a
fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony
is the product of reliable principles and
methods; and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.

As our Court of Appeals has repeatedly

noted, Rule 702 embodies three requirements:
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qualification,

reliability, and fit.

Pineda v. Ford Motor Co., 520 F.3d 237,

244 (3d Cir. 2008).
An expert is qualified if he "possess[es] specialized
expertise."

Schneider ex rel. Estate of Schneider v. Fried, 320

F.3d 396, 404 (3d Cir. 2003).

This does not necessarily require

formal credentials, as "a broad range of knowledge, skills, and
training qualify an expert," and may include informal
qualifications such as real-world experience.

In re Paoli R.R.

Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).

The

qualification standard is a liberal one, and an expert may be
sufficiently qualified under Rule 702 even if "the trial court
does not deem the proposed expert to be the best qualified or
because the proposed expert does not have the specialization
that the court considers most appropriate."

Holbrook v. Lykes

Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996).
To determine reliability, we focus not on the expert's
conclusion but on whether that conclusion is "based on the
methods and procedures of science rather than on subjective
belief or unsupported speculation."

Schneider, 320 F.3d at 404

(internal quotation marks omitted).

Our analysis may include

such factors as:
(1) whether a method consists of a testable
hypothesis; (2) whether the method has been
subject to peer review; (3) the known or
potential rate of error; (4) the existence
and maintenance of standards controlling the
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technique's operation; (5) whether the
method is generally accepted; (6) the
relationship of the technique to methods
which have been established to be reliable;
(7) the qualifications of the expert witness
testifying based on the methodology; and (8)
the non-judicial uses to which the method
has been put.
Pineda, 520 F.3d at 247-48.
"[T]he test of reliability is flexible" and this court
possesses a broad latitude in determining reliability.
Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999).

Kumho
To be

reliable under Daubert, a party need not prove that his or her
expert's opinion is "correct."

Paoli, 35 F.3d at 744.

Instead:

As long as an expert's scientific testimony
rests upon good grounds, based on what is
known, it should be tested by the adversary
process –competing expert testimony and
active cross–examination – rather than
excluded from jurors' scrutiny for fear that
they will not grasp its complexities or
satisfactorily weigh its inadequacies.
United States v. Mitchell, 365 F.3d 215, 244 (3d Cir. 2004)
(quoting Ruiz–Troche v. Pepsi Cola Bottling Co., 161 F.3d 77, 85
(1st Cir. 1998)).
As for "fit," expert testimony must also "assist the
trier of fact to understand the evidence or to determine a fact
in issue."

Fed. R. Evid. 702.

Thus, to "fit," such evidence

must bear some relation to the "particular disputed factual
issues in the case."

United States v. Downing, 753 F.2d 1224,

1237 (3d Cir. 1985).

Accordingly, this factor has been
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described as one of relevance.

Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 591 (1993); Paoli, 35 F.3d at 745 & n.13.
II.
Robertson-Armstrong retained Col. Lawrence to provide
opinions on topics which include the design of the Robinson R22
helicopter, the company’s manufacturing and corporate practices,
and the company’s compliance with the Federal Aviation Regulations.
Col. Lawrence has also provided opinions on the qualifications of
the pilot of the subject helicopter, certain possible causal
factors in the crash, and the decisions made by the pilot before
and during the helicopter’s descent.
Col. Lawrence has extensive experience as a pilot in
both military and civilian applications.

A graduate of the United

States Naval Test Pilot School, he served as a United States Marine
Corps aviator for approximately 25 years, and is affiliated with
the Society of Experimental Test Pilots.

At the time of his

retirement from service in 1991, he was the senior active test
pilot in the Marine Corps and oversaw all rotocraft flight testing
for the Marine Corps, the Navy, and the Coast Guard.

He has

accumulated more than 4000 hours of flight time in various types of
aircraft, including helicopters.

Col. Lawrence’s work with

experimental and engineering flight programs has required him to
collaborate closely with engineering design teams from a number of
helicopter companies.

As part of this work, he has been involved
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in the design and installation of various helicopter systems.
Col. Lawrence has also taken part in a number of aviation crash
investigations, becoming familiar with federal aviation regulations
in the process.

Furthermore, during his approximately 49 years as

a licensed pilot, Col. Lawrence has been required to know and be
able to apply these regulations.

On several occasions, he has

testified in state and federal courts about industry regulatory
compliance.

Finally, Col. Lawrence has completed several

management courses.
Col. Lawrence provided Robertson-Armstrong’s counsel
with an expert report on July 9, 2015.

In order to prepare that

report, Col. Lawrence conducted an inspection of the wreckage of
the subject crash.

He also reviewed materials which included:

transcripts of the depositions of Robertson-Armstrong, the pilot in
the subject crash, and various Robinson employees; photographs and
blueprints of the subject helicopter; photographs from inspections
of the helicopter; medical records; and documents produced by both
parties during discovery.

He took into consideration factors such

as weather conditions, wind speed, and visibility.

He also

considered the design of the Robinson R22 model helicopter and
features specific to the subject helicopter itself, as well as the
background and qualifications of the pilot.

Based on these

considerations, Col. Lawrence set forth in his report conclusions
about the pilot’s qualifications, Robertson-Armstrong’s role during
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the flight, whether meteorology or “mechanical considerations” were
causal factors in the crash, the design of the subject helicopter
and its impact on piloting, the reasonableness of that design, the
risk-to-utility ratio of the aircraft’s design characteristics, the
degree to which Robinson considered safety a priority in helicopter
design, and Robinson’s compliance with federal regulations.
III.
Robinson acknowledges that Col. Lawrence “possesses
considerable experience in the operation of helicopters and the
standard of care for helicopter pilots” but argues that he lacks
the expertise to opine on helicopter design, corporate and
manufacturing practices, or Robinson’s regulatory compliance.

In

addition, Robinson contends that Col. Lawrence’s opinions relating
to design, corporate practices, and regulatory compliance lack a
reliable basis.

It states that those opinions are “based on pure

conjecture” and takes issue with Col. Lawrence’s reliance on other
experts.2
We agree with Robertson-Armstrong that Col. Lawrence is
qualified to opine not only on piloting and helicopter operation
but also on helicopter design and on regulatory compliance.

His

Curriculum Vitae makes clear that his piloting background has
required him to develop and maintain adequate familiarity with the
2. Robinson does not appear to challenge the “fit” of
Col. Lawrence’s testimony to the facts of this particular case.
See Pineda, 520 F.3d at 244.
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applicable federal regulations.

As a result, he “possess[es]

specialized expertise” in that area.
404.

See Schneider, 320 F.3d at

The same is true of Col. Lawrence’s knowledge of helicopter

design, which is the result of decades of close collaboration with
helicopter design professionals.
Furthermore, to the extent that Col. Lawrence’s opinions
address the design features of the subject helicopter, they appear
limited to the manner in which specific design features (or the
absence of certain features) restrict the options available to the
pilot.

For example, Col. Lawrence states in his report that “[t]he

design characteristics of the R22 helicopter are such that any
power loss, or requirement for excess power, in a high hover will
so rapidly develop in a confusing scenario that the pilot has
minimum time to react and virtually no chance of successfully
recovering control of the helicopter.”

In addition, in

characterizing the design of the R22 helicopter as “unreasonably
dangerous,” he qualifies his opinion by stating that the design is
such that “in the event of any power loss or requirement of excess
power, the pilot has no useable margin of safety.”

Finally, with

respect to the availability of safer alternative designs, he posits
that such designs “would allow aircrew to avoid the dangers
inherent in the design and provide a much wider safety margin.”

In

sum, Col. Lawrence’s design opinions relate directly to helicopter

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piloting, and as an expert in the operation of helicopters, he is
qualified to offer those opinions.
However, we cannot see why Col. Lawrence’s limited
management background should qualify him to offer the opinion that
Robinson “has made a conscious decision to abrogate its duty to put
safety first in the design and operation of its helicopters by
destroying all non-required documentation that might otherwise be
used to foster safety, and by the absence of any committees or
departments devoted to safety or risk management.”

While

Robertson-Armstrong observes that Col. Lawrence “has graduated from
numerous management courses” and “knows how to manage
organizations” as a result of his service-related responsibilities,
this experience falls short of qualifying Col. Lawrence to opine on
Robinson’s management practices.

As a result, he will be precluded

from testifying on this subject.
As to the reliability of the methodology used by
Col. Lawrence in reaching the remaining conclusions contained in
his report, he explains that his analysis involved the “in-depth”
review of numerous materials related to the crash.

Col. Lawrence

also explains that he “discussed and worked closely with” other
experts retained by Robertson-Armstrong.

The conclusions listed in

his report make clear the basis upon which Col. Lawrence formulated
each opinion.

Far from being based on “subjective belief or

unsupported speculation,” these conclusions are clearly grounded in
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“the methods and procedures of science.”
at 404.

See Schneider, 320 F.3d

Any remaining deficiencies in Col. Lawrence’s expert

testimony may be “tested by the adversary process . . . rather than
excluded from jurors’ scrutiny.”

See Mitchell, 365 F.3d at 244.

Robinson takes issue with the fact that Col. Lawrence
“defer[red] to Plaintiff’s other experts to offer opinions about
the R22 helicopter’s engine capabilities and limitations.”

Indeed,

Col. Lawrence states in his report that the subject of engine power
“was extensively discussed” during “consultation with another
expert involved in this matter.”

Col. Lawrence does not identify

the other expert with whom he consulted.

However, it is well

established that an expert witness may formulate his opinion by
relying, at least in part, on the opinions of other experts,
particularly when those other experts have been retained in the
same matter.

See Fed. R. Evid. 703; Keller v. Feasterville Family

Health Care Ctr., 557 F. Supp. 2d 671, 681 (E.D. Pa. 2008).
In sum, we will grant the motion of Robinson insofar as
it seeks to preclude Col. Lawrence from offering testimony from a
managerial standpoint about the company’s manufacturing and
corporate practices.

The motion will otherwise be denied.

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