SNIDER et al v. STERLING AIRWAYS, INC. et al

Filing 453

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 8/29/2017. 9/5/2017 ENTERED AND COPIES E-MAILED.(sg, )

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

ELIZABETH C. SNIDER, Individually
and as Executrix of the Estate of
DANIEL A. SNIDER, and
LEE W. SNIDER, a minor, by his
mother, ELIZABETH C. SNIDER
Plaintiffs
vs.
STERLING AIRWAYS, INC., and
CONTINENTAL MOTORS, INC.,
Defendants

:
: CIVIL ACTION
:
:
: NO. 13-CV-2949
:
:
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MEMORANDUM AND ORDER

JOYNER, J.

August 29, 2017

Pursuant to Fed. R. Civ. P. 59, Defendant Continental
Motors, Inc. filed a Motion for New Trial and to Alter or Amend
the Judgment entered on February 21, 2017, following a jury
verdict in favor of Plaintiffs and against the moving defendant
in the amount of $2,753,048.49.

After thorough review of the

trial record, this motion shall be largely denied for the reasons
set forth below.
Case History
Given that we have previously written numerous opinions
outlining the historical background of this case, at this time we
shall just briefly summarize the underlying facts relevant to the

motion presently before us.

This lawsuit arose out of the tragic

death of Daniel Snider, a United States Forest Service employee
who was killed in the crash of a single-engine aircraft on June
21, 2010 as it was approaching the William T. Piper Memorial
Airport in Lock Haven, Pennsylvania.

Mr. Snider was killed,

along with another Forest Service employee and the pilot of the
aircraft, as the result of the failure of the plane’s engine.
That engine was manufactured by Defendant Continental Motors,
Inc.

The aircraft, a 1973 Cessna T210L, was owned, operated and

maintained by Defendant Sterling Airways, Inc., of Hornell, New
York.
The gist of the Plaintiffs’ complaint in this matter is that
the accident was caused by the negligence, gross negligence,
recklessness and/or strict liability on the part of the
defendants in the manufacture, maintenance, and/or operation of
the accident airplane, its engine and component parts.

This

action was tried before the undersigned commencing on January 23,
2017 and concluding on February 16, 2017, when the jury rendered
a verdict in favor of the Plaintiffs and against Continental
Motors only1 in the amount stated above.

Alleging a variety of

reasons and errors in evidentiary rulings and the admission
and/or prohibition of evidence, Continental now moves for a new
1
While the jury did find that Defendant Sterling Motors had breached
its contract with the United States Forest Service and was negligent, it
determined that Sterling’s negligence and breach were not factual causes of
the accident.

2

trial and/or to alter or amend the judgment entered on the jury’s
verdict.
Standards Governing Motions Under Rule 59
The language of Fed. R. Civ. P. 59 is fairly broad.
Specifically, it states, in relevant part:
Rule 59.

New Trial; Altering or Amending a Judgment

(a) In General. (1) Grounds for New Trial. The court may,
on motion, grant a new trial on all or some of the issues and to any party - as follows:
(A) after a jury trial, for any reason for which a new
trial has heretofore been granted in an action at law
in federal court; or
(B) after a nonjury trial, for any reason for which a
rehearing has heretofore been granted in a suit in
equity in federal court.
...
(b) Time to File a Motion for a New Trial. A motion for a
new trial must be filed no later than 28 days after the
entry of judgment.
...
(d) New Trial on the Court’s Initiative or for Reasons Not
in the Motion. No later than 28 days after the entry of
judgment, the court, on its own, may order a new trial for
any reason that would justify granting one on a party’s
motion. After giving the parties notice and an opportunity
to be heard, the court may grant a timely motion for a new
trial for a reason not stated in the motion. In either
event, the court must specify the reasons in its order.
(e) Motion to Alter or Amend a Judgment. A motion to alter
or amend a judgment must be filed no later than 28 days
after the entry of the judgment.
A new trial may therefore be granted where there was

3

substantial error in the admission or exclusion of evidence;
error in the court’s instructions to the jury; where the jury’s
verdict was inadequate or excessive; or where the verdict is
against the weight of the evidence.

Marder v. Conwed Corp., 75

F.R.D. 48, 54 (E.D. Pa. 1977)(citing Montgomery Ward & Co. v.
Duncan, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147 (1940) and 5A
Moore’s Federal Practice P50.03[2] at 2334).

A new trial may

also be granted where the evidence was legally insufficient to go
to the jury.

Id.

In general, the ordering of a new trial is committed to the
sound discretion of the district court.

Bonjourno v. Kaiser

Aluminum & Chemical Corp., 752 F.2d 802, 812 (3d Cir. 1984).
But, “[w]hile a court may grant a new trial under Rule 59 ‘for
any reason for which a new trial has heretofore been granted in
an action at law in federal court,’ it should do so only when
‘the great weight of the evidence cuts against the verdict and a
miscarriage of justice would result if the verdict were to
stand,’” or where the verdict “shocks the conscience.” Leonard v.
Stemtech International, Inc., 834 F.3d 376, 386 (3d Cir.
2016)(quoting Rule 59(a)(1)(A) and Springer v. Henry, 435 F.3d
268, 274 (3d Cir. 2006)); Chinniah v. East Pennsboro Township,
No. 14-3355, 2015 U.S. App. LEXIS 3659, *3, 602 Fed. Appx. 558,
559 (3d Cir. March 9, 2015)(quoting Marra v. Philadelphia Housing
Authority, 497 F.3d 286, 309, n. 18 (3d Cir. 2007)).

4

Hence, the court’s “review of a jury’s verdict is limited to
determining whether some evidence in the record supports the
jury’s verdict,” as “[a] jury verdict will not be overturned
unless the record is critically deficient of that quantum of
evidence from which a jury could have rationally reached its
verdict.”

LePage’s, Inc. v. 3M, 324 F.3d 141, 146 (3d Cir.

2003); Swineford v. Snyder County, 15 F.3d 1258, 1265 (3d Cir.
1994).

Further, “[a] district court’s power to grant a new trial

is limited ‘to ensure that it does not substitute its judgment of
the facts for the facts and the credibility of the witnesses for
that of the jury.’” Stemtech, supra,(quoting Delli Santi v. CNA
Insurance Cos., 88 F.3d 192, 201 (3d Cir. 1996)).

Indeed, in

reviewing a motion for a new trial, the court is required to view
the evidence in a light most favorable to the non-moving party
and draw every reasonable and fair inference therefrom which
supports the jury’s award.

Frank C. Pollara Group, LLC v. Ocean

View Inv. Holding, LLC, 784 F.3d 177, 184 (3d Cir. 2015);
Willmore v. Willmore, Civ. A. No. 95-0803, 1996 U.S. Dist. LEXIS
5947, *9 - *10 (E.D. Pa. May 2, 1996); Gans v. Gray, 612 F. Supp.
608, 622 (E.D. Pa. 1985).
Discussion
A.

Sufficiency of Evidence as to Material Hardness

Continental Motors’ first argument essentially mirrors one
of the arguments which it raised in its Renewed Motion for Entry

5

of Judgment in its Favor as a Matter of Law.

That motion was

recently denied and the reasons therefor set forth in our
Memorandum and Order of June 28, 2017.

Specifically, CMI here

re-asserts that the jury’s verdict is against the great weight of
the evidence because the plaintiffs ostensibly offered no
evidence to prove that any alleged defect in material hardness
caused the accident aircraft’s engine to fail.

Again, in light

of the evidence presented at trial by all of the parties, we
respectfully disagree.
As is not at all unusual in negligence/product liability
cases such as this one, the jury here was tasked with assessing
two competing theories as to the underlying cause of the failure
of the No. 2 cylinder on the accident airplane’s engine.2

In

essence, it was the plaintiffs’ theory that the No. 2 cylinder
failed because of insufficient “hardness” of the exhaust valve
guide, whereas it was Defendant CMI’s belief that the breakdown
was caused by overheating of the cylinder as a consequence of
Sterling Airways’ failure to follow the correct manuals and
maintenance directives and to install the correct rocker arms
and/or bushings at the time of the 2004 engine overhaul.
Consistent with their theory of the case, the plaintiffs
presented the testimony of several witnesses with expertise in

2

Indeed, there was no dispute as to what part of the engine initiated
the failure sequence.

6

metallurgy, aircraft accident investigation, civil, materials,
and mechanical engineering and materials failure analysis, among
others.

One of those witnesses, Colin Sommer, testified that

Part #636242, which was in the No. 2 cylinder at the time of the
accident and which is believed to have been the root cause of the
crash, is an exhaust valve guide bearing a Continental part
number.

It was depicted by Continental as one of their component

parts and there is no indication anywhere that it was ever made
by anyone else.

The exhaust valve guides that were installed in

the accident engine in 2004 were manufactured in December 2003 by
Roderick Arms & Tool, an FAA-approved supplier for Continental
Motors under its Quality System.3
2/8/17,

27).

(N.T. 1/25/17, 96-98; N.T.

Those guides did not bear a Roderick part number

and in fact, Roderick could not legally sell those parts to the
public or anyone other than Continental because that part is made
only for Continental.

(N.T. 1/25/17,

108-109; Pl’s Exhibits

239, 245, 253).

3

As several of Continental’s witnesses explained, in order to obtain
approval from the Federal Aviation Administration (“FAA”) to manufacture an
aircraft engine, CMI, like all manufacturers, was first required to create a
design for its engine and then apply to the FAA for approval of that design.
(N.T. 2/8/17, p. 13). Once that process is completed and the FAA grants
approval and issues a Type Certificate, it falls to CMI as the manufacturer,
to submit a plan to the FAA’s Manufacturing Inspection District Office
(”MIDO”) on how it intends to control its manufacturing and quality to ensure
that every product is like a duplicate to what was Type Certified. (N.T.
2/8/17, pp. 14-15). As in the usual case, after CMI defined its quality
system and the FAA’s audit of that system found it to be satisfactory, in this
case too the FAA awarded a Production Certification for the production of the
engine, which in this case is the TSIO-520-H. Thereafter, the FAA conducts
periodic audits and inspections of CMI’s manufacturing facilities and those of
its suppliers to ensure ongoing compliance with the Type Certificate. (N.T.
2/8/17, pp. 16-18).

7

According to Mr. Sommer, “[p]art of the design of that valve
guide from Continental is that it has to meet a certain hardness
requirement.”

(N.T. 1/25/17, 137).

Rockwell B Hardness 75 to 90.4
140-143).

That specification is

(N.Y. 1/25/17, 138; N.T. 2/1/17,

In an effort to determine why the valve guide wore in

the manner in which it did, Mr. Sommer and another of Plaintiffs’
expert witnesses, William Carden, in tandem with the McSwain
Engineering laboratory performed a series of Rockwell B5 hardness
tests on the guides on the first five cylinders on the accident
aircraft’s engine.

Those tests resulted in readings of 68 on the

No. 1 guide, 71.6 on the No. 2 guide, 86.9 on the No. 3 guide,
68.4 for the No. 4 guide and 84.1 for the No. 5 guide.6
1/25/17, 139-140; 2/1/17, 145-156).

(N.T.

From these measurements,

4
As Mr. Sommer, among others, explained: “[h]ardness is measured in
different scales.” (N.T. 1/25/17, p. 138). “Rockwell Hardness is a hardnesstesting technique and a scale for measuring hardness of materials,” for which
“a specific set of equipment” and “specific procedures” “are outlined in the
ASTM, which is the American Society for Testing and Materials.” (Testimony of
William Carden, 2/1/17, pp. 140-141). Other scales for measuring the hardness
of materials include the HR15T, HR30T and Brinell scales. (N.T. 2/1/17, pp.
184-190). The different scales are distinguished on the basis of differentsized indenters making different-sized indentations into the material being
tested. (N.T. 2/1/17, pp. 185-188).
5

Using a Brinell hardness testing machine, a small, hard metal sphere
is pressed into the side of the material being tested resulting in a small
dimple. The dimensions of that dimple and the force used to make it are then
measured and from that a number denoting the hardness of the material is
generated. (N.T. 1/25/17, 136-137; 2/1/17, 139-141).
6

Mr. Carden took three measurements on the exhaust valve guides and
from those readings calculated the mean as well as a standard deviation. The
final readings are the calculated means. (N.T. 2/1/17,147-148).

8

both Mr. Sommer and Mr. Carden concluded that the Continental7
exhaust valve guides were out-of-compliance with its own hardness
specification.

(N.T. 1/26/17, 100, 155, 160-161; N.T. 2/2/17,

62-64).
In addition, Mr. Sommer, Mr. Carden and one of CMI’s
witnesses - Michael Ward, all testified that the cylinder
assemblies that were manufactured in December 2003 and installed
into the accident aircraft a few months later during the
overhaul, were made from a material called Ni-Resist Type 1,
which is a cast-iron alloy designed to withstand operating
temperatures well above 750 degrees on a consistent basis and
more often between 1000 and 1,300 degrees. (N.T. 1/25/17, 141142; N.T. 2/1/17, 138-139; N.T. 2/8/17, 19, 28, 200-205).
Under Continental’s quality control system, it provides a
form “Certificate of Compliance” to its suppliers for completion
and inclusion with the shipments of all of the product which it
has ordered. (N.T. 2/8/17, 46-52; CMI Exhibit 3347).

In

completing those compliance certificates, the supplier is
verifying that the parts which Continental ordered and which it

7
As we stated in footnote 6 to our June 28, 2017 Memorandum and
Order, the guides in the No. 3 and No. 5 cylinders had been replaced in 2007
with guides that were manufactured by ECI, another company and unlike the
Continental, finish-in-place guides, the ECI guides were pre-reamed or prefinished. (N.T. 1/25/17, 139; N.T. 1/26/17, 18-20; N.T. 2/1/17, 54). Since
the guides had to be extracted from the cylinders to conduct the tests and
that is a difficult procedure, the Nos. 1, 2, and 4 guides were removed
because they were in close proximity to one another. The Nos. 3 and 5 guides
were already loose and didn’t have to be extracted. The No. 6 guide was left
in place and was not tested. (N.T. 1/26/17, 162; N.T. 2/1/17, 145-146).

9

manufactured for Continental were produced in accordance with
CMI’s specifications, drawings etc. and that they are as they
should be.

(N.T. 2/8/17, 46).

Upon receipt of shipments of

valve guides from Roderick and following its own inspection
protocol as outlined on its internal “Material Acceptance Data
(MAD) Sheet,” CMI inspects a designated number of random samples8
from the various lots delivered to ensure that the guides possess
the required features and hardness and are otherwise in
compliance with its specifications.

(N.T. 1/26/17, 26-28; N.T.

2/8/17, 24-26, 36-44; Pl’s Exhibit 291).

If any of the samples

tested fail to meet specifications, the entire lot is to be
rejected and then set aside for further screening.
39-40).

(N.T. 2/8/17,

(Pl’s Exhibits 294, 296, 297; CMI’s Exhibits 3345,

3346, 3347, 3348; N.T.; N.T. 2/8/17, 26-28, 36-56).
At trial however, Plaintiffs produced evidence that despite
these procedures, on several lots of exhaust valve guides
received from Roderick in April 2002, September 2003 and in
January 2004, the Continental inspectors accepted batches of
exhaust valve guides but either did not fill out the hardness

8

Sampling inspection is an FAA-approved procedure for performing
inspections of this kind and is used not only in the manufacturing area where
parts are being produced but also in receiving. It is a methodology originally
derived back in World War II during military production and has since evolved
into an industry standard. Specifically, using statistically-based tables and
charts and depending upon the size of the lot to be inspected, a set number of
random samples of product are pulled and sampled. All of the features on the
sampled parts are inspected and tested for compliance with the designated
specifications. ( N.T. 1/26/17, 26-30; N.T. 2/8/17, 26-27).

10

designation on the data sheets as required or, in one case,
approved the lot despite it having a hardness reading of Rockwell
B 73, rather than the required minimum of 75. (N.T. 1/26/17, 2735; N.T. 2/8/17, 37-44, 53-56, 81-88; Pl’s Exhibits 294, 296,
297; CMI Exhibits 3345, 3346, 3347, 3348).
Plaintiffs additionally adduced evidence that despite the
fact that Continental’s specifications dictated that the Rockwell
B scale be used, it was not uncommon for its inspectors to employ
different hardness scales such as the HR 15 and HR 30 and then
convert those readings to a Rockwell B reading.
183-198; N.T.

(N.T. 2/1/17,

2/8/17, 77-82).

To reiterate, under the prescribed standards for overturning
a verdict or granting a new trial, we are charged with reviewing
the jury’s verdict to ascertain whether there is some evidence in
the record to support it.

In doing so here, we find that the

foregoing evidence is more than sufficient to warrant a finding
by the jury in this case that the exhaust valve guide which was
installed in the No. 2 cylinder did not satisfy the requisite
hardness minimums set by Defendant Continental itself.
As for the second prong, that is, whether Plaintiffs made a
sufficient showing that the subject accident was caused by that
inadequate hardness, we likewise find that adequate evidence was
produced to sustain the jury’s conclusion that it was.
Again, Plaintiffs’ expert witness Colin Sommer explained

11

that the purpose behind hardening is to increase wear resistance
and that exhaust valve guides in particular are subject to a
great deal of heat and wear – more so than intake valves. (N.T.
1/26/17, 17-18, 87).

He stated that his examination of the

accident aircraft’s engine showed extensive damage in that holes
had been punched through the top of the crank case in multiple
locations, and that he observed cracking and evidence of
catastrophic failure from the engine’s external side. (N.T.
1/25/17, 126, 128).

He said it was obvious from his first look

at the No. 2 cylinder, that there had been a “major catastrophic
destruction of the Number 2 piston” and “[t]here [we]re some more
components of that piston that were all found in the bottom of
the oil pan and throughout the engine.”

(N.T. 1/25/19, 128).

Mr. Sommer further testified:
“What the metallurgical examination showed was that there
was evidence of fatigue on this fracture, meaning that as
the valve was riding up and down inside the cylinder ... the
valve got crooked because of wear that was found between the
valve guide and the valve system. So as the valve gets
crooked, it starts to bang up against the valve seat, which
is the area where it seals, and eventually broke the head
off of that valve. Once the head broke off, it’s rolling
around inside the cylinder while the piston is traveling up
and down inside there at 22 times per second. ... The inside
of the cylinder is all destroyed and beat up and damaged
from the pieces of the piston and also the head of the valve
that was rolling around inside there. So that resulted in a
lot of catastrophic destruction inside the engine. As one
piston becomes destroyed, the ... Number 2 connecting rod
was very heavily damaged, and actually was torn off of the
crankshaft. It beat into the side of the crankshaft. It
punched a hole into the side of the case. It broke the
connecting rod bolt off.

12

...
So all the other damage that we saw was a result of the
destruction of the Number 2 piston. The destruction of the
Number 2 piston was the result of the failure of the Number
2 exhaust valve head, and the Number 2 exhaust valve head
was a failure of the Number 2 exhaust valve. The wear that
had occurred on that valve guide – sorry, caused the failure
which then cascaded to the destruction of the rest of the
engine.”
(N.T. 1/25/17, 128-131).

Finally, Mr. Sommer conclusively

attested: “My analysis revealed that we had a broken guide
because the guide was soft.

The broken guide caused a broken

valve, which broke the engine.”

(N.T. 1/26/17, 100).

In addition to Mr. Sommer’s testimony, William Carden said
that he too observed two cracks in the Number 2 exhaust valve
guide from the top of the valve guide down into and along the
right hand side of the guide.

He found these cracks to be very

flat rather than rough, demonstrating that the initial fracture
occurred and separated the top of the valve guide, and then the
valve guide began rubbing on top of itself or hammering itself
flat.

(N.T. 2/1/17, 126-131).

Mr. Carden also saw fatigue

striations in the course of his examination of the No. 2 exhaust
valve guide.

These striations, which appear as ridges or lines,

are indicative of fatigue cracks that propagate incrementally
over a period of time. (N.T. 2/1/17, 135-137).

Instead of

breaking all at once in a sudden failure like an overload event,
a fatigue crack begins as a tiny crack which results at lower
loads but incrementally grows and moves forward as material is
13

repeatedly loaded and unloaded generating the striations.
Eventually, a break can occur such as happened in this case where
the valve guide broke and rubbed on top of itself producing the
flat areas which were observed.

(N.T. 2/1/17, 136-137).

Mr. Carden also testified that he took measurements of the
exhaust valve guides, including the inner diameters, in the
accident aircraft’s engine using a coordinated measuring machine
and touch probe.

(N.T. 2/1/17, 113-115, 121).

He found that the

inner diameter of the No. 2 exhaust valve guide was very large,
especially at the opening into the barrel but was much smaller at
the top than it was at the bottom and was much larger than the
rest of them.

He also noted that there was quite a bit of wear

on the bottom parts of the valve guides. (N.T. 2/1/17, 121-123).
In measuring the diameter of the valve systems with handheld
blade and laser micrometers, Carden found that the clearance of
the No. 2 exhaust valve guide was much larger than all of the
others and in fact, was some 10 times the maximum clearance of
the return to service clearance limits of 7/1000 of an inch on
the bottom of the guide, such that it was bell-shaped. (N.T.
2/1/17, 124-125).

Like Mr. Sommer, Mr. Carden also testified

that it is a fundamental engineering concept that hardness and
wear are directly related. (N.T. 2/2/17, 22-23).
And as we noted in our June 28th Memorandum, “additional
evidence regarding the sequence of events leading to the engine

14

failure was provided by one of the defense witnesses, Dr. John
Morris, an expert in metallurgy, material science and failure
analysis.”

As this witness observed, everyone agreed as to what

the sequence of events leading to the failure was although they
disagreed as to what caused that sequence to commence.

As the

valves, which are situated in the cylinders, open and close, they
pass through the valve guide.

Dr. Morris explained that as the

valves move back and forth,
“there’s always going to be some wear. In this case, the
wear became very severe rather quickly. As it becomes
severe, the valve becomes kind of loose in the valve guide
and that creates a much worse mechanical situation because
it’s vibrating back and forth. When something vibrates back
and forth, it creates a cyclic load, which tends to make
materials fail in a phenomenon called fatigue. What will
happen is that under cyclic loads the material will be
damaged, the damage will accumulate and finally a crack will
form where the damage accumulates.
Here, several cracks formed in the valve guide. That would
be this third little thing here (indicating), and the top of
the valve guide broke off. At this point the valve is
really free to move, and the fatigue crack developed down at
the base of the valve and broke off the head of the valve
you see in the final failure.
I don’t go any further because once that had happened, the
cylinder failed, parts of the engine came apart, and that
was when the engine stopped operating. So I think everyone
agrees that the cause of this failure was exaggerated wear
of this valve guide causing its fatigue failure, then the
fatigue failure of the valve, and the subsequent failure of
the engine.”
(N.T. 2/8/17, 151-152).
In reviewing this evidence in the light most favorable to
the Plaintiffs as the non-movants and drawing every reasonable

15

and fair inference therefrom, we again conclude that it is more
than ample to support and justify the jury’s findings and award
in this matter.

Consequently, Defendant CMI’s motion for a new

trial on the basis of the insufficiency of the evidence as to
causation and hardness is denied.
B.

Negligence of Sterling Airways

Defendant Continental next challenges the jury’s verdict in
favor of Defendant Sterling Airways.

More specifically,

Continental claims that “[t]he evidence at trial conclusively
established that Sterling’s many maintenance deficiencies, and
its failures to comply with CMI’s service recommendations and
related negligence, were the sole cause of the engine failure
that led to the accident or, at the very least, were a
considerable contributing factor to that engine failure.”

(CMI’s

Brief in Support of Motion for New Trial and to Alter or Amend
the Judgment, at p. 12).
We agree that Continental produced sufficient evidence to
support a finding by the jury that Sterling was negligent in
disregarding certain of CMI’s maintenance recommendations and
that it could have done things better in maintaining the accident
aircraft.

Indeed, in its verdict that is precisely what the jury

did find - that Sterling Airways breached its contract with the
U.S. Forest Service and was negligent in some regards but that
despite this, neither the breach nor Sterling’s negligence were

16

factual causes of the accident.

These facts notwithstanding,

there was also more than enough evidence produced at trial that
Continental’s negligence was greater and was in fact the
proximate cause of the June 21, 2010 crash to sustain the
verdict.

On this point there was testimony from a number of

witnesses: Colin Sommer, Rodney Doss, Allen Fiedler, James Caneen
and John Goglia regarding the maintenance procedures performed by
Sterling, what manuals, directives and/or service advisories it
followed and was and/or was not required to follow in fulfilling
its maintenance obligations, and what parts were and/or should
have been in the aircraft at the time that it crashed.

The gist

of these witnesses’ testimony is that, contrary to Continental’s
assertions: (1) the rocker arms, bushings and lifters in the
engine at the time of the accident had been providing sufficient
lubrication and did not contribute to the breakdown of the
engine; (2) that Sterling Airways’ Director of Maintenance, David
Crane, followed the current manuals at the time he performed the
2004 engine overhaul (3) that in performing the maintenance on
the 1973 Cessna, Mr. Crane followed those service bulletins,
advisory circulars and instructions for continued airworthiness
which he was required to follow under the Federal Aviation
Regulations (FARs); and (4) that Sterling otherwise met all of
the required maintenance tasks for the subject aircraft.

(N.T.

1/26/17, 36-48, 55-62, 64-65; N.T. 1/31/17, 181-182, 184-203;

17

N.T. 2/1/17, 7-10, 22-25; 2/2/17, 130-131; N.T. 2/3/17, 52-60,
68-73, 75-84, 110; 2/6/17, 35-46).
Here, the thrust of CMI’s argument is that the jury credited
the testimony from the Plaintiffs’ and Sterling’s witnesses and
disregarded or gave less weight to the testimony and evidence
which it produced.

That of course, is precisely what a jury is

expected to do – weigh the evidence and the credibility of the
witnesses and make a determination as to the facts.

That the

jury performed its function in a manner which displeases
Continental and reached a decision with which Continental
disagrees is not a reason to disturb the verdict.

Accordingly,

given that we find the verdict to be supported by the evidence
presented, the motion to overturn it and/or order a new trial on
the basis of Sterling’s liability is also denied.
C.

Application of GARA

One more time, CMI reiterates its previously-raised and
rejected arguments on the basis of the General Aviation
Revitalization Act of 1994, a statute of repose which is codified
at the notes to 49 U.S.C. §40101.

This Act, colloquially known

as “GARA,” prohibits the commencement of a “civil action for
damages for death or injury to persons or damage to property
arising out of an accident involving a general aviation aircraft
... against the manufacturer of the aircraft or the manufacturer
of any new component, system, subassembly, or other part... if

18

the accident occurred...” more than 18 years after “(A) the date
of delivery of the aircraft to its first purchaser or lessee, if
delivered directly from the manufacturer; or (B) the date of
first delivery of the aircraft to a person engaged in the
business of selling or leasing such aircraft...”
§§2(a)(1)(A), (B) and 3.

GARA

Notwithstanding this general

prohibition, Section 2(a)(2) of GARA includes a “rolling
provision” which provides that:
(2) with respect to any new component, system, subassembly,
or other part which replaced another component, system,
subassembly or other part originally in, or which was added
to, the aircraft, and which is alleged to have caused such
death, injury, or damage, after the applicable limitation
period beginning on the date of completion of the
replacement or addition.
This provision has been construed to mean that “a new eighteen
year period begins when a new part is added to an aircraft if
this part is alleged to have caused an accident.”

Robinson v.

Hartzell Propller, Inc., 326 F. Supp. 2d 631, 660 (E.D. Pa.
2004).
In renewing its GARA argument, Continental submits that it
is entitled to relief for two reasons.

First, since in CMI’s

mind the finding by the jury that its negligence proximately
caused the accident should be set aside, it did not cause the
accident and the plaintiffs’ claims against it remain barred.
Second, CMI again claims that it was not the cylinder assembly
but the exhaust valve guide which caused the accident.

19

Since the

exhaust valve guide was manufactured for it by Roderick, the
rolling provision was improperly applied and it is entitled to
reversal of the verdict.
Given that we have declined to set aside the jury’s finding
that Continental’s negligence was the proximate cause of the
accident, we likewise decline to overturn the verdict for the
reason that causation has not been shown under GARA.

As for the

second prong of Moving Defendant’s argument, we re-state the
conclusions previously articulated in our June 28, 2017
Memorandum opinion denying its Renewed Motion for Entry of
Judgment Pursuant to Rule 50(b).

That is, there was clear

evidence produced at trial that the cylinders which were
installed in the accident aircraft’s engine during the 2004
overhaul were manufactured and sold by Continental Motors.
While it is true that those cylinders contained exhaust
valve guides which had been manufactured for Continental by
Roderick Arms & Tool, those guides had been designed by
Continental, were assigned a Continental part number (#636242)
and could not be manufactured or sold to any entity or company
other than CMI.

(N.T. 1/25/17, 94-99, 101, 108-123; N.T. 2/1/17,

54, 36-39; N.T. 2/3/17, 82, 104; N.T. 2/8/17, 19-28; Pl’s
Exhibits 239,245, 249, 253).

The exhaust valve guides that were

installed in the cylinder assemblies in December 2003 were
“finish” or “ream-in-place” valve guides which required that they

20

be heated up and then pushed into the cylinder head using a press
and reamed into place.

(N.T. 1/25/17, 103-104; 2/1/17, 74-76).

As we explained in footnote 3 to that Memorandum, “[r]eaming is
an industrial term for inserting a reamer, which is essentially a
drill bit or cutting tool, down into the guide and then taking
off any excess material so that it’s exactly the right dimension
to fit over the valve system.”
1/26/17, 20-21).

(N.T. 1/25/17, 104; N.T.

In so doing, Continental effectively

incorporated the exhaust valve guide into and made it a part of
its cylinder assembly.

Since it was the No. 2 cylinder which

failed, cascading into the complete failure of the Cessna’s
engine, and that cylinder was assembled by Continental in
December 2003, sold shortly thereafter to Sterling and installed
into the aircraft in 2004, this action is not and was not barred
by GARA.
D.

Use of the Term “Cylinder Assembly”

As further grounds for a new trial, Continental asserts that
the Court’s use of the term “cylinder assembly” in its charge and
on the verdict form was erroneous ostensibly because the
plaintiffs produced no evidence to support reference to the
broader system - i.e., the No. 2 cylinder rather than the exhaust
valve guide contained within it.

Again, we disagree.

As we explained above, the evidence produced at trial
evinced that while the No. 2 exhaust valve guide was indeed

21

manufactured by Roderick Arms & Tool, it was manufactured
specifically for and sold only to Continental based on a
Continental design and to Continental’s specifications and that
it bore a Continental part number.

(N.T. 1/25/17, 108-109, 137-

138; N.T. 2/1/17, 140-143; N.T. 2/8/17, 27, 33-34; Pl’s Exhibits
239, 245, 253).

The exhaust valve guides were incorporated into

and made a part of the cylinder by the reaming in place method.
(N.T. 1/25/17, 103-104; N.T. 1/26/17, 20-21; N.T. 2/1/17, 74-76;
N.T. 2/3/17, 57-60; N.T. 2/7/17, 42-44).
Furthermore, the trial record also reflects that in advance
of performing the 2004 engine overhaul, Sterling ordered and
purchased six new cylinder assemblies from Continental - there is
no evidence that it ever ordered or purchased exhaust valve
guides from Roderick.

(N.T. 2/3/17, 82, 104-105).

In 2007, when

Sterling’s annual inspection compression testing of the cylinders
revealed that two of the engine’s six cylinders failed, it
removed those two cylinders and sent them to Penn Yan
Aeronautical Services, a nearby engine overhaul facility for
closer inspection and repair.

(N.T. 2/3/17, 105-106).

Penn Yan

Aero then repaired the cylinders by replacing, inter alia, the
exhaust valve guides, ground seats and the intake valves in those
cylinders (the No. 3 and No. 5 cylinders) and returned the
cylinders to Sterling, which re-installed them into the engine.
(N.T. 2/3/17, 107-110, 121-126).

22

What’s more, at various points throughout the trial,
Defendant CMI’s own counsel and at least one of its expert
witnesses themselves referred to the part in question as a
“Continental” or “CMI guide” and/or as a cylinder assembly.
e.g., N.T. 2/2/17, 70-72; N.T. 2/8/17, 19, 28, 184, 185)

(See

In

light of this evidence, we determined that it was appropriate to
ask whether the No. 2 cylinder assembly was manufactured by
Continental Motors and whether it was added to the aircraft after
the 18-year limitation period or after June 21, 1992 on the
Verdict Slip.

And, after reviewing the trial record, we find no

error in that determination and see no reason to grant CMI a new
trial on this ground.
E.

No Duty to Warn About Use of After-Market Parts

Continental also claims that the Court’s refusal to give an
instruction about or to preclude evidence regarding CMI’s lack of
any obligation to warn about use of after-market components
warrants a new trial.

We find no merit to this argument either.

It is of course well-settled that “[a] party is entitled to
a jury instruction that accurately and fairly sets forth the
current status of the law,” and “it is the responsibility of the
trial judge to provide the jury with a clear and accurate
statement of the law.”

Douglas v. Owens, 50 F.3d 1226, 1233 (3d

Cir. 1995)(citing McPhee v. Reichel, 461 F.2d 947, 950 (3d Cir.
1972). “A court does not err merely because it does not give an

23

instruction in exactly the words a defendant submits, for ‘no
litigant has a right to a jury instruction of its choice, or
precisely in the manner and words of its own preference.”

United

States v. Sussman, 709 F.3d 155, 178 (3d Cir. 2013); De Asencio
v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007).

“In

fact, ‘it is [also] well settled that there is no error to refuse
to instruct as counsel wishes if the charge to the jury is
correct.’” Sussman, supra,(quoting United States v. Blair, 456
F.2d 514, 520 (3d Cir. 1972)).

In determining correctness, the

jury instructions are considered as a whole to determine whether
they fairly and adequately contain the law applicable to the
case.

Koppers Co. v. Aetna Casualty & Surety Co., 98 F.3d 1440,

1445 (3d Cir. 1996).
The proposed instruction which CMI here avers should have
been given reads as follows:
Failure to Warn - No Duty to Warn with Respect to AfterMarket Components
An after-market component is a replacement part or
accessory that is sold to enhance or replace an original
component in the secondary market.
The Federal Aviation Regulations only require a
manufacturer of aviation components to issue instructions
and warnings about components that the manufacturer actually
manufactures itself. An original equipment manufacturer has
no duty or obligation to provide instructions or warnings
about after-market components that are manufactured or sold
by other manufacturers.
Additionally, a manufacturer of aircraft engines only
has a duty to provide adequate instructions and warnings to
owners and FAA-certified mechanics, not directly to aircraft
24

pilots or passengers.
14 CFR 21.50
Instead, the following, general failure to warn instruction
was given:
I further instruct you, members of the jury, that even a
perfectly made and designed product may be defective if not
accompanied by proper warnings and instructions concerning
its use.
A supplier must give the user or consumer any warnings and
instructions to enable the consumer to safely use the
products for its intended purpose.
If the product carries with it some degree or inherent risk
when used for its intended purpose, the supplier must
adequately warn the consumer of the inherent risk.
I further instruct you, members of the jury, if you find
that there were warnings or instructions required to make
the cylinder assembly non-defective, which were adequately
provided by Continental Motors, then you may not find for
these defendants based on a determination that even if there
had been an adequate warning or instructions, Sterling
Airways would not have read or heeded them.
Instead, the law presumes, and you must presume, that if
there had been an adequate warning or instruction, Sterling
Airways would have found them.
(N.T. 2/15/17, 144-145).
We find the instruction given to have been an accurate
statement of the applicable law and wholly appropriate given the
evidence that was produced throughout the trial.

See, e.g., Pa.

S. S. J. I. §§ 8.02, 8.03; Berkebile v. Brantly Helicopter Corp.,
462 Pa. 83, 100, 103, 337 A.2d 893, 902, 903 (1975); Walton v.
Avco Corp., 383 Pa. Super. 518, 557 A.2d 372 (1989).

And, since

we were unable to discern the correctness of the proposed charge
25

from the authority cited therefor,9 we do not find any error in
9

Local Rule of Civil Procedure 16.1(d)(4)(a) provides in relevant

part:
(a) Requests for Jury Instructions. Requests for jury instructions are
not required with respect to familiar points of law not in dispute
between the parties. As to such matters, counsel should consider simply
listing the subject desired to be covered in the charge (e.g.
negligence, proximate cause, assumption of risk, burden of proof,
credibility, etc.), unless specific phraseology is deemed important in
the particular case. With respect to non-routine legal issues, requests
for instructions should be accompanied by appropriate citations of legal
authorities. ...
In this case, Continental cited 14 CFR §21.50 as its authority for the
requested failure to warn charge. That regulation reads quite differently
than the proposed charge:
§ 21.50 Instructions for continued airworthiness and manufacturer’s
maintenance manuals having airworthiness limitations sections.
(a) The holder of a type certificate for a rotorcraft for which a
Rotorcraft Maintenance Manual containing an “Airworthiness Limitations”
section has been issued under § 27.1529(a)(2) or § 29.1529(a)(2) of this
chapter, and who obtains approval of changes to any replacement time,
inspection interval, or related procedure in that section of the manual,
must make those changes available upon request to any operator of the
same type of rotorcraft.
(b) [Effective until Aug. 30, 2017.] The holder of a design approval,
including either the type certificate or supplemental type certificate
for an aircraft, aircraft engine, or propeller for which application was
made after January 28, 1981, must furnish at least one set of complete
Instructions for Continued Airworthiness to the owner of each type
aircraft, aircraft engine, or propeller upon its delivery, or upon
issuance of the first standard airworthiness certificate for the
affected aircraft, whichever occurs later. The Instructions must be
prepared in accordance with §§ 23.1539, 25.1529, 27.1529, 29.1529,
31.82, 33.4, 35.4, or part 26 of this subchapter, or as specified in the
applicable airworthiness criteria for special classes of aircraft
defined in § 21.17(b), as applicable. If the holder of a design
approval chooses to designate parts as commercial, it must include in
the Instructions for Continued Airworthiness a list of commercial parts
submitted in accordance with the provisions of paragraph (c) of this
section. Thereafter, the holder of a design approval must make those
instructions available to any other person required by this chapter to
comply with any of the terms of those instructions. In addition,
changes to the Instructions for Continued Airworthiness shall be made
available to any person required by this chapter to comply with any of
those instructions.
(c) To designate commercial parts, the holder of a design approval, in a
manner acceptable to the FAA, must submit:
(1) a Commercial Parts List;

26

our decision to decline to give CMI’s requested charge and to
instead give a standard instruction.
Moreover, the after-market part upon which Continental
premises its complaint here was the single-piece Superior bushing
which was found in the accident aircraft’s engine.

At trial, CMI

produced expert testimony that the cause of the accident was
inadequate lubrication to the exhaust valve guide of the No. 2
cylinder, which caused the engine to run dangerously hot thereby
resulting in excessive wear.

(N.T. 2/6/17, 127-129).

According

to Continental’s expert James Brogden, this overheating and
engine breakdown directly resulted from the installation of the
after-market single-piece rocker arm bushings during the 2004
overhaul.

(N.T. 2/6/17, 139, 155-156).

In rebuttal of this theory, Plaintiffs’ expert Colin Sommer
testified that according to Service Bulletin 97-6, the rocker arm
bushing was a part which was required to be replaced during the
2004 overhaul and according to the parts catalog, the Superior
bushing was an approved after-market replacement part for the
Continental two-piece bushing (part #639629).

(N.T. 1/26/17,

(2) Data for each part on the List showing that:
(i) The failure of the commercial part, as installed in the
product, would not degrade the level of safety of the product; and
(ii) The part is produced only under the commercial part
manufacturer’s specification and marked only with the commercial
part manufacturer’s markings; and
(3) Any other data necessary for the FAA to approve the List.

27

135-138).

At no time did Continental issue a direction of any

kind that aircraft owners, operators or mechanics should not use
the FAA, PMA-approved single piece Superior bushing with the nonsquirt hole rocker arm configuration in the TSIO-520-H engine.
(N.T. 1/26/17, 139).

Nor, in its 2010 report to the NTSB

regarding this accident, did CMI report that there was any lack
of lubrication in any of the cylinders in the accident aircraft’s
engine and made no mention of anything being wrong with the
rocker arms or lifters.

(N.T. 2/6/17, 45-48).

Thus, because

the theory of the after-market part was raised by Continental and
because the gist of this theory was not a defect in the Superior
bushing itself but rather that it should not have been used with
the rocker arm configuration in the engine, we determined that
the charge requested by CMI was not appropriate and if given,
would have had the effect of confusing the jury.

We stand by

that determination and therefore again deny CMI’s request for a
new trial on this ground.
F.

Allegedly Improper Evidentiary Rulings

Continental next argues that a new trial should be granted
for the reason that a series of purported unfair and erroneous
evidentiary rulings had the cumulative effect of causing it such
prejudice that a miscarriage of justice will result if the jury’s
verdict is allowed to stand.

Again, we respectfully disagree.

“A motion for a new trial, of course, may be grounded on an

28

allegation that evidence was admitted or excluded improperly
during the course of a trial and that such error prejudiced the
moving party’s rights to a fair trial.”

Peterson v. Valmar S. S.

Corp., 296 F. Supp. 8, 11 (E.D. Pa. 1969).

“There is, however,

no precise formula to guide a court in deciding such a motion,”
and “[a]t best, a court may employ the standard set forth in Rule
61 of the Federal Rules of Civil Procedure.”

Id.

That Rule

states:
Unless justice requires otherwise, no error in admitting or
excluding evidence - or any other error by the court or a
party - is ground for granting a new trial, for setting
aside a verdict, or for vacating, modifying, or otherwise
disturbing a judgment or order. At every stage of the
proceeding, the court must disregard all errors and defects
that do not affect any party’s substantial rights.
Fed. R. Civ. P. 61.
Generally, a wide range of discretion rests with the
district court in granting or denying a motion for a new trial.
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556,
104 S. Ct. 845, 850, 78 L. Ed.2d 663 (1984)(citing Montgomery
Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 194, 85
L. Ed. 147 (1940)); Kremser v. Keithan, 56 F.R.D. 88, 91 (M.D.
Pa. 1972).

Likewise, the application of a particular rule of

evidence by a district court is reviewed under an abuse of
discretion standard.

Sharif v. Picone, 740 F.3d 263, 267 (citing

United States v. Balter, 91 F.3d 427, 437 (3d Cir. 1996)).

Even

where there may be multiple trial errors in a case, multitude of

29

error alone is not a sufficient ground for reversal inasmuch as
“[t]he Federal Rules require that a court at every stage of the
proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”
Lockhart v. Westinghouse Credit Corporation, 879 F.2d 43, 57 (3d
Cir. 1989)(quoting Fed. R. Civ. P. 61).

Thus, if each error is

harmless, there is no basis for concluding that substantial
rights were violated.

Id.

And, through it all, the Courts

should remain mindful that “a litigant is entitled to a fair
trial but not a perfect one, for there are no perfect trials.”
McDonough Power Equipment, 464 U.S. at 553, 104 S. Ct. at
848(quoting, inter alia, Brown v. United States, 411 U.S. 223,
231-232, 93 S. Ct. 1565, 1570-1571, 36 L. Ed. 2d 208 (1972)).
1.

Preclusion of NTSB and Other Factual Reports

Under 49 U.S.C. §1154(b), “[n]o part of a report of the
Board, related to an accident or an investigation of an accident,
may be admitted into evidence or used in a civil action for
damages resulting from a matter mentioned in the report.”
Inasmuch as this Title concerns the National Transportation
Safety Board, it is axiomatic that within the meaning of this
Section, “Board” is the NTSB.

However, “[f]ederal regulations

differentiate between a ‘board accident report,’ defined as ‘the
report containing the Board’s determinations, including the
probable cause of an accident, issued either as a narrative

30

report or in a computer form,’ and a ‘factual accident report,’
defined as a ‘report containing the results of the investigator’s
investigation of the accident.’” In re Paulsboro Derailment
Cases, Master Dkt. No. 13-784, 2015 U.S. Dist. LEXIS 88899 at
*17-*18, (D. N.J. July 9, 2015)(quoting 49 C.F.R. §835.2).

As

further noted by Judge Kugler in Paulsboro,
... The regulations also provide that “no part of a Board
accident report may be admitted as evidence or used in any
suit or action for damages growing out of any matter
mentioned in such reports.” By contrast, “there is no
statutory bar to admission in litigation of factual accident
reports.” ... Circuit courts around the country have held
that the language of the statute “means what it says: No
part of the Board’s actual report is admissible in a civil
suit.” Id, at *18(quoting 49 C.F.R. §835.2 and Chiron Corp.
and Perseptive Biosystems, Inc. v. National Transportation
Safety Board, 198 F.3d 935, 941, 330 U.S. App. D.C. 188
(D.C. Cir. 1999) and citing Campbell v. Keystone Aerial
Surveys, Inc., 138 F.3d 996, 1001 (5th Cir. 1998); Thomas
Brooks v. Burnett, 920 F.2d 634, 639 (10th Cir. 1990); Benna
v. Reeder Flying Serv., Inc., 578 F.2d 269, 271 (9th Cir.
1978) and In re Jacoby Airplane Crash Litigation, No. 996073, 2007 U.S. Dist. LEXIS 69291 (D.N.J. Sept. 19, 2007)).
Here, Continental complains that the Court refused admission
into evidence of the NTSB Factual Report in its entirety but
nevertheless permitted some portions of the NTSB docket and CMI’s
Engine Analysis Report to be admitted into evidence.

This Court

permitted admission of those portions of the docket which were
exclusively factual in nature, such as what Sterling Airways and
Continental told the investigators was or was not done, and those
which were largely undisputed such as the flight path of the
accident aircraft.

The report and those portions of the docket

31

which were excluded contained opinions and/or conclusions of the
NTSB investigators and/or otherwise inadmissible hearsay.
e.g., Fed. R. Evid. 803(8).

See,

Evidence of CMI’s Engine Analysis

Report were admissible as a statement of an opposing party and
therefore was not hearsay under Fed. R. Evid. 801(d)(2).

Insofar

as we discern no error in this decision, we deny CMI’s motion for
new trial on the basis of this evidentiary ruling.
2.

Fairness and Impartiality of Evidentiary Rulings

CMI next alleges generally that the Court’s evidentiary
rulings were unfair and inconsistent and that the Court’s rulings
showed partiality in favor of the Plaintiffs and Defendant
Sterling Airways.

In addition to re-asserting its contention

with regard to the unjust preclusion of the NTSB Factual Report,
Continental claims that the U.S. Forest Service Report was also
unfairly precluded.

More particularly, Continental claims that

while “Sterling and Plaintiffs were given great latitude to
discuss one factual report, or one portion of the NTSB’s factual
investigation of the accident, but [it] was not permitted to
cross-examine the witness about any other portion.” (CMI’s Brief
in Support of Support of Motion for New Trial and to Alter or
Amend Judgment, p. 29)(emphasis in original).
Here again after reviewing the reports in question and the
pertinent portions which were sought to be admitted, the Court
determined that the probative value and relevance of the contents

32

was exceeded by its potential for undue prejudice and that to
admit the reports themselves would have allowed the introduction
of inadmissible hearsay.

While CMI makes much of the fact that a

number of Plaintiffs’ experts allegedly relied upon the reports
in reaching their conclusions, the record reflects that in
reality, the experts merely acknowledged that they had reviewed
the materials as part of their preparation of the case.
e.g. N.T. 1/26/17, 182-185).

(See,

Moreover, much of the contents of

both the United States Forest Service and NTSB Factual reports
was opinion and conclusions.10

Because it was the jury which was

charged with determining what the cause of the accident was and
which of the parties, if any, bore responsibility, we can find no
abuse of discretion in deciding to exclude the materials at
issue.
3.

The Court’s Jury Instruction to Disregard All NTSB
Factual Findings and Conclusions

Next, CMI alleges that the giving of the following
instruction to the jury operated to compound the harm and
prejudice which it purportedly sustained:
Members of the jury, during this trial you may have heard
references to the United States Forest Service Aircraft
Investigation Report, and the National Transportation Safety
Board report.

10

Furthermore, on cross-examination, CMI’s counsel specifically asked
Mr. Sommer: “[i]sn’t it true that the U.S. Forest Service found that the
aircraft was not airworthy on the day of the crash?” (N.T. 1/26/17, 184).
Any prejudice which CMI may have suffered by the Court’s refusal to permit the
U.S.F.S. Report is therefore minimal at best and certainly not of the
magnitude necessary to warrant throwing out the verdict.

33

I hereby instruct you, members of the jury, that you cannot
consider any factual findings and conclusions of these
reports in your deliberations. These reports have not been
admitted into evidence, are not evidence in this case and
cannot be considered by you. Is that understood?
(N.T. 2/15/17, 111).
Given our finding that the decision to preclude these
materials was an appropriate exercise of our discretion, we
cannot find that the giving of this instruction constituted
reversible error either.
4.

Preclusion of Terry Horton’s Testimony Concerning Oil
Analysis Findings

Continental also complains that one of its expert witnesses,
Terry Horton, was precluded from explaining to the jury the
significance of oil analysis results and specifically what
Sterling would have discovered if it had done the testing
pursuant to CMI’s service instructions.
As is clear from the record, Mr. Horton was permitted to
testify about oil analysis trend monitoring, but he was precluded
from explaining to the jury what oil analysis is and offering
expert opinion as to what such testing would have shown had it
been performed by Sterling Airways.

(N.T. 2/13/17, 20, 82-85).

Mr. Horton was precluded from so testifying because that proposed
testimony and opinion evidence was not included in his expert
reports and thus Sterling did not have the opportunity to prepare
to cross-examine him or to otherwise rebut that testimony at

34

trial.

(N.T. 2/13/17, 3-21).

Inasmuch as we believe that this

decision was appropriate to prevent unfair prejudice, we decline
to grant Continental a new trial on this ground.

See, generally,

Fed. R. Evid. 403.
5.

Colin Sommer’s Testimony on Metallurgical Processes

Continental next claims that the Court erred by permitting
Colin Sommer to testify as an expert on metallurgical processes
insofar as he was offered only as an expert in the field of
aircraft accident investigation.

Once again, we find no error in

Mr. Sommer’s testimony.
By his own admission, Mr. Sommer is not a metallurgist, but
rather a mechanical engineer, although he was designated at least
once before to give metallurgical opinions in a case concerning
the crash of an aircraft with a Lycoming engine and wrote the
chapters on metallurgy in a textbook on helicopter accident
investigations.

(N.T. 1/25/17,

52-53).

Mr. Sommer was also at

the metallurgical laboratory when the testing in this case was
being done.

(N.T. 1/25/17, 53).

Although his testimony did at

various points make reference to the various materials and alloys
which were used to make the exhaust valve guides and the
temperatures at which those materials could be expected to
soften, it is clear from a reading of his testimony as a whole
that in rendering his opinions, he was relying on the work of the
other experts and/or his own experience and that he was not

35

testifying as a metallurgical expert. (N.T. 1/25/17, 55, 141,
150-155).

“There is no prohibition against an expert relying

upon the work of another expert so long as the expert is
otherwise qualified.”

In re Processed Egg Products Antitrust

Litigation, No. 08-md-2002, 2016 U.S. Dist. LEXIS 93543 at *3
(E.D. Pa. July 18, 2016)(citing In re Zoloft Products Liability
Litigation, 26 F. Supp. 3d 466, 470 (E.D. Pa. 2015); Leese v.
Lockheed Martin Corp., 6 F. Supp. 3d 546, 553 (D. N.J. 2014);
IBEW v. Local 380 Pension Fund v. Buck Consultants, Civ. A. No.
03-4932, 2008 U.S. Dist. LEXIS 43435 at *8 - *9 (E.D. Pa. June 3,
2008).

Here there is no question but that the other experts

upon whom Mr. Sommer relied – Mr. Carden and Mr. Seader in
particular, were well qualified.

We find no reversible error in

the admission of this testimony.
6.

CMI’s Remaining Claims of Error

In addition to all of the arguments addressed above,
Continental also assigns as reversible error the Court’s
decisions to allow the following into evidence:
a) evidence concerning CMI’s Certificates of
Compliance, service difficulty reports, third-party
shop orders and warranty claims; and
b) testimony about a magazine survey of cylinders by
various manufacturers.
The gist of CMI’s argument with respect to the admission of
this evidence is that this evidence was irrelevant, prejudicial
unhelpful and confusing to the jury.
36

This Court respectfully

disagrees.

To the contrary, we found this evidence to be wholly

relevant and not unfair or unduly prejudicial to the interests of
CMI and after reviewing the trial record, we continue to so find.
Insofar as CMI has not made the requisite showing of an abuse of
this Court’s discretion in permitting the admission of this
evidence, it is not entitled to a new trial on this ground
either.
G.

Motion to Clarify, Alter or Amend the Judgment

Finally, CMI urges this Court to Amend the Judgment which
was formally entered on the docket of this matter on February 21,
2017 to dispose of the cross-claims filed on its and Sterling’s
behalf against one another.

In light of the jury’s verdict in

favor of the Plaintiffs and against Defendant Continental only,
we agree that the competing cross-claims of the Defendants for
liability over, indemnity and contribution are effectively moot.
Amendment of the verdict shall be accomplished by a separate
Order.
Conclusion
For all of the reasons outlined in the preceding pages, we
do not find that Continental is entitled to a new trial in this
matter and its Motion therefor is DENIED.
An Order follows.

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