Bouret et al v. Caribbean Aviation Maintenance Corp. et al
Filing
388
ORDER denying 300 Motion in Limine; granting in part and denying in part 301 Motion in Limine; denying 302 Motion in Limine; denying 303 Motion in Limine. Signed by Judge Gustavo A. Gelpi on 1/26/12. (AH)
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
2
3
4
LIZZETTE M. BOURET
ECHEVARRIA, et al.,
5
Plaintiffs,
6
v.
7
8
9
CARIBBEAN AVIATION
MAINTENANCE CORP., et al.,
Consolidated Cases:
Civil No. 09-2034 (GAG)
Civil No. 09-2142 (GAG)
Civil No. 09-2158 (GAG)
Civil No. 09-2160 (GAG)
Defendants.
10
11
ORDER
12
Plaintiffs filed the present action against Robinson Helicopter Co. (“Robinson”), Caribbean
13
Aviation Maintenance, Corp. and Chartis Insurance Company - Puerto Rico (“CAM Defendants”)
14
(collectively “Defendants”) for the events that led to the death of Diego Vidal Gonzalez (“Vidal
15
Gonzalez”). On November 12, 2008, a Robinson R-44 helicopter piloted by Jose A. Montano
16
(“Montano”) and carrying Vidal Gonzalez suffered severe damage while attempting to land at the
17
Fernando Luis Ribas Dominicci Airport. Vidal Gonzalez was rushed to the Rio Piedras Medical
18
Center where he was treated for injuries. Vidal Gonzalez lapsed into a coma and died 59 days later.
19
Through the various consolidated actions, Vidal Gonzalez’s widow and three children (“Bouret
20
Plaintiffs”), his son (“Vidal-Shirley”), his father and sisters (“Vidal-Lampon Plaintiffs”), and
21
Montano (collectively “Plaintiffs”) brought suit against Defendants for damages claiming it was the
22
negligence of Defendants that led to the death of Vidal Gonzalez.
23
The present matter involves four motions in limine filed by CAM Defendants to exclude
24
Bouret Plaintiffs’ expert witnesses, Colin Sommer (Docket No. 300), Luis Irizarry (Docket No. 301),
25
Mark Hood (Docket No. 302) and William Lawrence (Docket No. 303), from testifying at trial.
26
Bouret Plaintiffs filed a response in opposition to all four motions (Docket No. 335). After
27
reviewing the pleadings and pertinent law, the court DENIES Docket No. 300, GRANTS IN PART
28
and DENIES IN PART Docket No. 301, DENIES Docket No. 302, and DENIES Docket No. 303.
Civil No. 09-2034 (GAG)
1
2
3
4
5
6
7
I.
2
Legal Standard
The admission of expert testimony is governed by Federal Rule of Evidence 702. That rule
provides that:
[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.
8
FED.R.EVID. 702.
9
A.
Qualifications
10
Before accepting expert testimony, a district court must determine whether the witness is
11
“qualified as an expert by knowledge, skill, experience, training, or education.” FED.R.EVID. 702.
12
“It is well-settled that ‘trial judges have broad discretionary powers in determining the qualification,
13
and thus, the admissibility, of expert witnesses.’” Diefenbach v. Sheridan Transp., 229 F.3d 27, 30
14
(1st Cir. 2000) (quoting Richmond Steel, Inc. v. Puerto Rican Am. Ins. Co., 954 F.2d 19, 20 (1st Cir.
15
1992)). There is no mechanical formula for determining whether an expert is qualified to offer
16
opinion evidence in a particular field. Santos v. Posadas De Puerto Rico Assocs., Inc., 452 F.3d 59,
17
63 (1st Cir. 2006). “The test is whether, under the totality of circumstances, the witness can be said
18
to be qualified as expert in a particular field, through any one or more of the five bases enumerated
19
in Rule 702 –knowledge, skill, experience, training, or education.” Id. at 63-64 (citations omitted).
20
B.
21
The trial court acts as a gate-keeper as the judge must ensure an expert’s testimony is both
22
relevant and is based on a reliable foundation. See Daubert v. Merrell Dow Pharm., 509 U.S. 579,
23
597 (1993); U.S. v. Mooney, 315 F.3d 54, 62 (1st Cir. 2002).
Reliability
24
The Daubert Court identified four factors that may assist the trial court in determining
25
whether scientific expert testimony is reliable: “(1) whether the theory or technique can be and has
26
been tested; (2) whether the technique has been subject to peer review and publication; (3) the
27
technique's known or potential rate of error; and (4) the level of the theory or technique's acceptance
28
within the relevant discipline.” Mooney, 315 F.3d at 62 (citing Daubert, 509 U.S. at 593–94). These
Civil No. 09-2034 (GAG)
3
1
factors were later held to apply to all expert testimony, not just scientific testimony. See Kumho
2
Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The factors are not a checklist for the trial judge
3
to follow, but rather the inquiry is flexible, allowing the trial judge to determine and adapt these
4
factors to fit the particular case at bar. See Kumho, 526 U.S. at 150; Milward v. Acuity Specialty
5
Prods. Grp., Inc., 639 F.3d 11, 15-16 (1st Cir. 2011).
6
“Daubert does not require that a party who proffers expert testimony carry the burden of
7
proving to the judge that the expert’s assessment of the situation is correct.” Milward, 639 F.3d at
8
15 (citations omitted) (internal quotation marks omitted). “The proponent of the evidence must
9
show only that ‘the expert’s conclusion has been arrived at in a scientifically sound and
10
methodologically reliable fashion.’” Id. “[T]he proponent of the evidence has the burden of
11
establishing that the pertinent admissibility requirements are met by a preponderance of the
12
evidence.” Rivera-Cruz v. Latimer, Biaggi, Rachid & Godreau, LLP, 2008 WL 2446331 at *2
13
(D.P.R. June 16, 2008). While the general focus of this inquiry is the principles and methodology
14
relied upon by the expert, the court may consider the congruity of the data and the opinion proffered
15
by the expert. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (holding court may conclude
16
there is too great an analytical gap between data and the opinion proffered); Ruiz–Troche, 161 F.3d
17
at 81. “Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit
18
opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Gen.
19
Electric Co., 522 U.S. at 146.
20
II.
Legal Analysis
21
A.
22
CAM Defendants’ motion in limine at Docket No. 300 moves to preclude Bouret Plaintiffs
23
from presenting at trial the expert testimony of accident reconstructionist, Colin Sommer
24
(“Sommer”). Particularly, his opinions regarding helicopter maintenance and piloting issues because
25
he is not qualified in either area.1
Colin Sommer (Docket No. 300)
26
27
28
1
The court notes Sommer’s qualifications as an expert regarding piloting issues are not
Civil No. 09-2034 (GAG)
4
1
CAM Defendants contend Sommer is not qualified to testify on the propriety of helicopter
2
maintenance and the adequacy of CAM’s compliance with Federal Aviation Administration
3
(“FAA”) Regulations because he lacks the requisite knowledge, skill, experience, training, and
4
education in these areas. (See Docket No. 300 at 2.) Particularly, CAM Defendants move to
5
preclude opinions 9 through 12 of Sommer’s report, which address maintenance and inspections
6
procedures. (See Docket No. 300-1 at 13 ¶¶ 9-12.) CAM Defendants argue these opinions should
7
be precluded because Sommer has never been authorized by the FAA to perform any of the
8
maintenance tasks complained of, has never managed a FAA-Certified Repair Station, does not
9
possess a FAA Airframe and Power Plant (“A&P”) mechanic’s certificate and does not posses an
10
Inspection Authorization (“IA”) certificate. (See Docket No. 300 at 6.)
11
Bouret Plaintiffs argue Sommer is qualified to testify as to the maintenance procedures
12
discussed in the opinion due to his training as an aircraft accident investigator, his work experience
13
under the supervision of a licensed A&P mechanic with an IA certificate, his participation in
14
numerous annual inspections, and his licenses as a professional engineer. The court agrees.
15
Sommer is a licensed professional engineer in Michigan and Colorado. (See Docket No.
16
300-1 at 17.) According to his curriculum vitae (“CV”), Sommer has attended Aircraft Accident
17
Investigator Training Programs at the National Transportation Safety Board Academy and the
18
Southern California Safety Institute, both of which include training in aircraft maintenance training.
19
(See Docket No. 300-1 at 16.) His CV indicates he has personally investigated accidents involving
20
Robinson helicopters. (See Docket No. 300-1 at 17-18.) Sommer specializes in helicopter accident
21
reconstruction analysis and testing, as well as FAA Regulations. (See Docket No. 300-1 at 18.) The
22
fact that Sommer does not hold a FAA A&P mechanic’s certificate with inspection authorization
23
is not dispositive, but it is a factor in the analysis. Based on Sommer’s experience, education and
24
training, the court finds his opinion regarding helicopter maintenance to be within the scope of his
25
expertise.
26
CAM Defendants further move to preclude Sommer’s opinion regarding helicopter
27
28
addressed in CAM Defendants’ motion. Therefore, his expert testimony in this area is unchallenged.
Civil No. 09-2034 (GAG)
5
1
maintenance conducted by CAM, arguing it is based on unsupported speculation as it lacks a reliable
2
evidentiary foundation. (See Docket No. 300 at 6.) According to opinion 9 of Sommer’s report,
3
“[CAM Defendants] performed maintenance on the upper left push-pull tube during the annual
4
inspection which was completed on 17 July 2008.” (See Docket No. 300-1 at 13 ¶ 9.) CAM
5
Defendants argue, “there is no evidence in the record that any CAM mechanic disconnected and/or
6
reconnected the left push-pull tube connection to the non-rotating swashplate of the subject
7
helicopter during the most recent annual inspection.” (See Docket No. 300 at 6-7.)
8
CAM Defendants reference: (1) the National Transportation Safety Board’s (“NTSB”)
9
findings during the investigation of the accident that, “[e]xamination of the inspection and
10
maintenance items performed during the most recent annual inspection revealed no procedures that
11
required the disconnection of the upper left lateral servo push-pull tube rod end at the swashplate
12
attachment ear[;]”2 and (2) the deposition testimony of Mr. Alexis Burgos (“Burgos”), the CAM
13
mechanic who performed repairs during the last annual inspection of the helicopter prior to the
14
accident, declaring he never disconnected the left push-pull tube from its top connection to the
15
nonrotating swashplate because the manual did not instruct him to do so.3 (See Docket No. 300 at
16
7-8.)
17
Upon review of Sommer’s report, the court finds his opinion on the maintenance performed
18
by CAM mechanics to be based on sufficient facts and data. Although Sommer does not specifically
19
mention he reviewed Burgos’ deposition, he did review depositions and NTSB Reports prior to
20
rendering his report. (See Docket No. 300-1 at 15.) Additionally, when addressing CAM’s
21
maintenance actions, Sommer references logbook entries. (See Docket No. 300-1 at 6.) The
22
cumulation of these facts demonstrate Sommer sufficiently relies on facts to reach his conclusions.
23
Because the court finds Sommer to be qualified as an expert and to have applied reliable methods
24
to the facts, the court DENIES CAM Defendants’ motion at Docket No. 300.
25
26
2
(See Docket No. 300-3 at 5.)
3
(See Docket No. 300-4 at 4-5.)
27
28
Civil No. 09-2034 (GAG)
6
1
B.
2
CAM Defendants’ motion in limine at Docket No. 301 moves to preclude Luis Irizarry’s
3
(“Irizarry”) expert testimony regarding helicopter maintenance and the administration of a FAA-
4
Certified Aircraft Repair Station because he lacks the requisite knowledge, skill, experience,
5
training, and education in these areas. (See Docket No. 301 at 2.) Particularly, CAM Defendants
6
move to preclude opinions 4, 6 and 11 of Irizarry’s expert report, which address maintenance,
7
installation and inspection procedures at CAM’s facility. (See Docket No. 301-1 at 19 ¶¶ 4, 6, 11.)
8
CAM Defendants argue these opinions should be precluded because Irizarry has no credentials or
9
training with respect to helicopter maintenance and has never worked as a mechanic on any type of
10
Luis Irizarry (Docket No. 301)
helicopter. (See Docket No. 301 at 5.)
11
In their opposition, Bouret Plaintiffs point to Irizarry’s training and experience as a flight
12
instructor and pilot for the last 36 years as qualification to testify on helicopter maintenance and the
13
administration of an FAA Repair Station. (See Docket No. 335 at 13.) The court disagrees that this
14
experience makes Irizarry an expert as to the maintenance issue.
15
Although inspections and mechanical work have a common nexus with piloting as pilots are
16
required to inspect the aircraft prior to flight, and Irizarry received training to qualify as a pilot-in-
17
command of a helicopter during the late 1980s, he is not a certified helicopter pilot. (See Docket
18
No. 301-2 at 4.) Irizarry’s CV reveals he has logged 14,680.9 hours of flight experience, but it does
19
not indicate whether he has flight experience with helicopters. (See Docket No. 301-7 at 4.) Irizarry
20
has never worked as a mechanic on any helicopter model, nor has he participated in the maintenance
21
of a helicopter.
22
helicopter maintenance –opinions 4 and 6– to not be within the scope of his expertise. However,
23
based on Irizarry’s experience and training as an aircraft pilot, the court finds he is qualified to
24
proffer an expert opinion as to the administration of a FAA Repair Station that maintains aircrafts.
25
Because CAM Defendants’ reliability argument as to Irizarry’s expert testimony is in regard
26
to opinion 6, the court need not address it. (See Docket No. 301 at 6.) Therefore, the court
27
GRANTS IN PART and DENIES IN PART CAM Defendants’ motion in limine at Docket No.
28
301. Irizarry is barred from proffering his opinion as to helicopter maintenance.
(See Docket No. 301-2 at 5.) Accordingly, the court finds his opinions on
Civil No. 09-2034 (GAG)
7
1
C.
2
CAM Defendants’ motion in limine at Docket No. 302 moves to preclude Mark Hood’s
3
(“Hood”) expert testimony because he lacks experience and knowledge in mechanics. (See Docket
4
No. 302 at 2.) CAM Defendants do not seek to bar Hood’s testimony as a metallurgist, but rather
5
only seek to bar his opinions as they pertain to maintenance issues. (See id.) Specifically, CAM
6
Defendants seek to preclude Hood from testifying as to opinions 8 and 10 of his expert report. (See
7
Docket No. 302 at 2-3.)
Mark Hood (Docket No. 302)
8
Bouret Plaintiffs respond highlighting Hood’s vast experience with accident reconstruction
9
and crash investigations. (See Docket No. 335 at 16.) Hood has a master’s degree from Auburn
10
University and has worked as a materials engineer and as a consultant since 1985. (See Docket No.
11
335-4.) Hood is a member of the American Society for Non-Destructive Testing and has
12
participated in conferences discussing the application of these skills in laboratories. (See id.) His
13
opinions are mainly derived from his examination of the wreckage and literature reviewed associated
14
with the helicopter and the crash. (See Docket No. 335 at 19-21.) It is uncontested that he is an
15
expert in metallurgy and accident reconstruction.
16
To the extent his opinions enter the realm of mechanics and maintenance, his opinions are
17
grounded in his areas of expertise, particularly accident reconstruction. Hood’s opinion that the
18
helicopter could become uncontrollable if the left push-pull tube became disconnected in flight and
19
his opinion that this separation occurred due to maintenance relates to his expertise in accident
20
reconstruction, as well as metallurgy. The court does not look at each opinion in a vacuum. The
21
broad experiences and expertise gained from having been involved in multiple accident
22
reconstructions, and applying his specific expertise in metallurgy to those reconstructions allows
23
Hood to opine as to the possible reasons the helicopter crashed. An expert in accident reconstruction
24
and metallurgy can properly testify, so long as the testimony is based on fact and arrived at through
25
reliable methods, as to why the helicopter crash occurred. When expert testimony is based on
26
complex issues, the testimony should not be excluded merely for fear the jury will not understand
27
the testimony, but it should be admitted and subjected to vigorous cross-examination. See Milward,
28
Civil No. 09-2034 (GAG)
8
1
639 F.3d at 15. Therefore, the court DENIES CAM Defendants’ motion in limine to preclude Hood
2
from testifying as to maintenance issues (Docket No. 302).
3
D.
4
CAM Defendants’ motion in limine at Docket No. 303 moves to preclude William
5
Lawrence’s (“Lawrence”) expert testimony, specifically, opinions 2-5, 7-8 and 10 of his report
6
regarding the piloting skills and qualifications of the R-44 helicopter’s pilot. (See Docket No. 303
7
at 3-5.) CAM Defendants contend Lawrence is not qualified to testify because he lacks the requisite
8
knowledge, skill, experience, training, or education to render an expert opinion as to the piloting of
9
a Robinson R-44 helicopter. (See Docket No. 303 at 5.)
William Lawrence (Docket No. 303)
10
Bouret Plaintiffs argue Lawrence is an expert due to, among other things, his 40-plus years
11
of flight experience with over 5,000 hours in 120 types of fixed wing and helicopter models. (See
12
Docket No. 335 at 22.) The court agrees with Bouret Plaintiffs’ assessment.
13
Lawrence is a graduate of the U.S. Navy Test Pilot School. (See Docket No. 303-4.) In
14
addition to having more than 40 years of flight experience, Lawrence has 10 years experience in
15
helicopter flight tests. (See id.) His CV indicates he has extensive experience with light, medium
16
and heavy utility, transport and attack helicopters. (See id.) Lawrence was the senior active test
17
pilot in the Marine Corps and in command of all rotorcraft flight testing for the U.S. Marine Corps,
18
U.S. Navy and U.S. Coast Guard. (See id.) Lawrence has worked with “project flights” involving
19
over 150 projects in 60 types of helicopters and fixed wing aircraft. (See id.) He has extensive
20
experience in the evaluation of helicopter flight characteristics as the result of aircraft systems
21
failures. (See Docket No. 303-1 at 3.) Lawrence also has rotary wing combat experience in Vietnam
22
and Desert Storm. (See Docket No. 303-4.) The fact that Lawrence has no R-44 helicopter training,
23
has never piloted a R-44 helicopter and is not a FAA-Certified flight instructor is not dispositive.
24
Based on Lawrence’s education, experience, knowledge, training and skill, the court finds his
25
opinions regarding piloting skills and qualifications to be within the scope of his expertise.
26
CAM Defendants’s further argue Lawrence’s opinions are unreliable because the majority
27
of his opinions are based on the following unsupported assumptions: (1) disconnection of any one
28
Civil No. 09-2034 (GAG)
9
1
of the servos renders the helicopter uncontrollable, and (2) the Robinson R-44 helicopter pilot’s
2
qualifications on November 12, 2008, whether legal or illegal, were not in the chain of events
3
causing the crash. (See Docket Nos. 303 at 9; 303-1 at 20-21 ¶¶7, 10.) The court disagrees.
4
Lawrence’s testimony is limited to a rebuttal of piloting issues contained in Philip
5
Greenspun’s (“Greenspun”) expert report. (See Docket No. 303-1 at 1-2.) In addition to
6
Greenspun’s report, Lawrence reviewed other materials such accident reports. (See Docket No. 303-
7
1 at 3-4.) Lawrence’s opinions are not only supported by his research for the case and his analysis
8
of Greenspun’s opinion, but by his knowledge, vast professional experience and training. For the
9
reasons stated above, the court DENIES CAM Defendants’ motion in limine to preclude Lawrence’s
10
testimony as an expert witness.
11
E.
12
CAM Defendants’ final argument to preclude the testimony of Bouret Plaintiffs’ expert
13
witnesses is almost identical for all four. CAM Defendants contend the opinions of Sommer,
14
Irizarry, Hood and Lawrence should be excluded pursuant to Federal Rule of Evidence 403 because
15
it would needlessly present cumulative evidence. See FED.R.EVID. 403 (stating “[t]he court may
16
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
17
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
18
wasting time, or needlessly presenting cumulative evidence.”) Expert testimony is subject to
19
exclusion pursuant to Rule 403. See U.S. v. Pires, 642 F.3d 1, 12 (1st Cir. 2011). In ruling to
20
exclude evidence based on Rule 403, the trial court has wide latitude to apply the Rule to the facts
21
of the case. See U.S. v. St. Pierre, 599 F.3d 19, 22 (1st Cir. 2010).
Federal Rule of Evidence 403 Analysis
22
In a case such as this, where the issues are complex and each expert has a different area of
23
expertise, the court finds it may be helpful to the jury to hear the testimony of each expert. While
24
the possibility remains that the jury will hear some of the evidence twice, the repetition will not
25
create undue prejudice against any particular party to the extent the court should preclude the
26
evidence based on Rule 403. Of the witnesses found to be experts by the court, each frame the
27
issues differently in the eyes of the jury. The court will not foreclose the witnesses testimony simply
28
Civil No. 09-2034 (GAG)
10
1
because there is a possibility of duplication at certain points.
2
III.
Conclusion
3
For the aforementioned reasons, the court DENIES Docket No. 300, GRANTS IN PART
4
and DENIES IN PART Docket No. 301, DENIES Docket No. 302, and DENIES Docket No. 303.
5
6
SO ORDERED.
7
In San Juan, Puerto Rico this 25th day of January, 2012.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
S/ Gustavo A. Gelpí
GUSTAVO A. GELPÍ
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?