McLean et al v. Air Methods Corporation, Inc.

Filing 91

MEMORANDUM AND ORDER denying 71 Motion for Summary Judgment. It is hereby ORDERED that the parties shall conduct a second ENE session with David L. Cleary, Esq. before July 25, 2014. They shall share in payment of compensation to the Evaluator and shall inform the Court in writing, by June 13, 2014, of the date selected for the additional session. Signed by District Judge J. Garvan Murtha on 5/29/2014. (kak) Text clarified on 5/29/2014 (jlh).

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DAVID MCLEAN and JUSTINE VIETS- :
MCLEAN, as next friends of Eliza McLean, :
a minor, and Individually,
:
:
Plaintiffs,
:
:
v.
:
:
AIR METHODS CORPORATION, INC., :
:
Defendant.
:
____________________________________:

Case No. 1:12-cv-241-jgm

MEMORANDUM AND ORDER
(Doc. 71)
I.

Introduction
In October 2012, Plaintiffs David McLean and Justine Viets-McLean, as next friend of their

daughter Eliza McLean, and individually (collectively, the “McLeans”), brought this diversity action
in federal court. (Doc. 1.) The McLeans allege negligence against Corporate Jets, Inc. (“Corporate
Jets”), which Defendant Air Methods Corporation, Inc. (“Air Methods”) acquired in 2007.
(Doc. 70.) The claim arises from a delay in the Corporate Jets helicopter flight carrying Eliza shortly
after her birth in northern Michigan in 2001. Air Methods moves for summary judgment dismissing
the case in its entirety. (Doc. 71.) The McLeans oppose the motion. (Doc. 85.) For the reasons
below, Air Methods’ motion is denied.
II.

Factual Background1
On July 26, 2001, Eliza McLean was born prematurely at Northern Michigan Hospital in

Petoskey, Michigan. (Doc. 71-2 ¶ 1; Doc. 1 ¶ 34.) Her parents, who live in Vermont, were in
Michigan for a family reunion. (Doc. 1 ¶ 35.) A neonatologist recommended transferring Eliza to

1

Unless otherwise indicated, the following facts are undisputed.

the University of Michigan Hospital in Ann Arbor, which had a high-frequency ventilator.
(Doc. 71-2 ¶ 2; Doc. 88 ¶ B.) The University of Michigan agreed to accept Eliza and sent a
“Survival Flight” helicopter to pick her up. (Doc. 71-2 ¶ 8; Doc. 88 ¶ B.) The helicopter flew north
to Petoskey from Ann Arbor in approximately 95 minutes. (Doc. 71-2 ¶ 9; Doc. 88 ¶ I.) Corporate
Jets was the contractor that provided piloting and maintenance services for the University of
Michigan’s Survival Flight helicopter transport program. (Doc. 71-2 ¶ 3; Doc. 88 ¶¶ C-D.)
At approximately 1:59 a.m. on July 27, 2001, the helicopter took off from Petoskey carrying
the pilot, Eliza, and four University of Michigan medical personnel. (Doc. 71-2 ¶ 10; Doc. 88 ¶ J.)
Two minutes later, the helicopter aborted its flight and immediately landed because of a burning
smell on board. (Doc. 71-2 ¶ 11; Doc. 88 ¶ K.) The medical team then decided to transport Eliza
in an ambulance toward Ann Arbor and meet a second Survival Flight helicopter en route.
(Doc. 71-2 ¶ 12; Doc. 88 ¶ L.) As the ambulance headed south, the second helicopter took off from
Ann Arbor but stopped in Saginaw, Michigan to refuel. (Doc. 71-2 ¶¶ 12-13; Doc. 88 ¶¶ L, M, T.)
The helicopter then flew from Saginaw to meet Eliza and the medical team at the West Branch
Community Airport in West Branch, Michigan. (Doc. 71-2 ¶ 13; Doc. 88 ¶ M, T.) At
approximately 4:18 a.m., the helicopter took off from West Branch with Eliza and the medical team,
arriving at the University of Michigan Hospital at approximately 5:15 a.m. (Doc. 71-2 ¶ 14; Doc. 88
¶ N.) The McLeans allege that during the last 25 minutes of the flight, Eliza suffered oxygen
desaturations causing a serious brain injury. (Doc. 72-1 ¶ 15; Doc. 88 ¶ O.)
Much of the remaining issues are disputed. The McLeans contend that if the first helicopter
had not been forced to abort its flight, Eliza’s transport would have taken 95 minutes instead of
more than three hours. (Doc. 71-2 ¶ 16.) Had this been the case, the McLeans assert Eliza would
have had access to care at the University of Michigan Hospital during the oxygen desaturations that

2

would have prevented her injury. Id. ¶ 17. The McLeans also allege the second helicopter’s stop to
refuel unnecessarily delayed Eliza’s arrival. Id. ¶ 20. They claim that if the helicopter had left
Ann Arbor with more fuel, it could have met Eliza and the medical team at one of three other
airports, any of which would have meant an earlier arrival at the hospital. (Doc. 88 ¶ T.)
Largely through experts, the parties dispute whether Corporate Jets negligently maintained
the helicopter and if so, whether that was the cause of the burning smell. The McLeans contend,
and Air Methods contests, that the source of the smell was the Modular Medical Cabinet, or “med
tower,” in the helicopter. (Doc. 71-2 ¶ 18; Doc. 71-1 at 6.) The med tower is a removable piece of
equipment containing air and suction pumps, oxygen regulators, an I.V. solution warmer, A.C.
outlets, and an electrical inverter. Id. ¶ 22; Doc. 88 ¶ V.
III.

Discussion
A.

Legal Standard

Summary judgment is appropriate only where the parties’ submissions show that there is no
genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56. “[T]he district court must draw all factual inferences in favor of, and take all
factual assertions in the light most favorable to, the party opposing summary judgment.” Coollick v.
Hughes, 699 F.3d 211, 219 (2d Cir. 2012). The court’s function is not to resolve disputed issues of
fact but only to determine whether there is a genuine issue of material fact to be tried. See, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rule v. Brine, Inc., 85 F.3d 1002, 1011
(2d Cir. 1996). “If, as to the issue on which summary judgment is sought, there is any evidence in
the record from which a reasonable inference could be drawn in favor of the opposing party,
summary judgment is improper.” Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir. 1997) (internal
quotation marks and citation omitted). Credibility assessments, choices between conflicting versions

3

of the events, and the weighing of evidence are matters for the jury, not for the court on a motion
for summary judgment. See, e.g., Fed. R. Civ. P. 56(e) 1963 advisory committee’s note; Anderson,
477 U.S. at 255.
B.

Analysis

In this diversity action, the Court applies federal procedural law and Vermont substantive
law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The Court has already performed its
procedural gate-keeping duty under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and the Federal Rules of Evidence -- for the most part, the parties’ expert testimony is
admissible. See McLean v. Air Methods Corp., Inc., No. 1:12-cv-241-jgm, 2014 WL 280343 (D. Vt.
Jan. 24, 2014) (Doc. 90). The experts will assist the trier of fact as to issues outside common
knowledge, and “the opposing party may still contest the weight of the evidence within the
adversarial system.” Id. at *1 (citing Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267
(2d Cir. 2002)); see Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”).
To support a negligence claim in Vermont, “a plaintiff must show that [1] the defendant
owed her a legal duty, that [2] the defendant breached that duty, that [3] the breach was the
proximate cause of the plaintiff’s injury, and that [4] she suffered actual loss or damage.” Lenoci v.
Leonard, 21 A.3d 694, 697 (Vt. 2011). The “crux” of Air Methods’ argument on summary judgment
is that the McLeans cannot establish Corporate Jets’ negligence caused the burning smell that forced
the first helicopter to abort its flight. (Doc. 89 at 2.) Proving “causation requires both ‘but-for’ and
proximate causation.” Collins v. Thomas, 938 A.2d 1208, 1211 (Vt. 2007). But-for causation means
that the plaintiff’s damages would not have occurred without the defendant’s tortious conduct. Id.

4

Proving proximate cause requires showing that “the defendant’s negligence was ‘legally sufficient to
result in liability.’” Id. (quoting Black’s Law Dictionary 234 (8th ed. 2004)). In other words, the
damages must be “within the natural flow of injurious consequences” arising from the defendant’s
breach of duty. Id. (internal quotation marks and citation omitted).
Proximate cause is “ordinarily an issue to be resolved by the jury unless the proof is so clear
that reasonable minds cannot draw different conclusions or where all reasonable minds would
construe the facts and circumstances one way.” Roberts v. State, 514 A.2d 694, 696 (Vt. 1986)
(internal quotation marks and citation omitted); see also Collins, 938 A.2d at 1211; Estate of Sumner
v. Dep’t of Soc. & Rehab. Servs., 649 A.2d 1034, 1036 (Vt. 1994). Air Methods specifically argues
that the report and testimony of Mike Clingerman, the McLeans’ expert witness on helicopter
maintenance, “fails as an evidentiary matter” to establish that Corporate Jets’ employees negligently
caused the burning smell on the first helicopter. (Doc. 89 at 2.) Viewing all factual assertions in the
light most favorable to the nonmovants, the Court disagrees and finds the McLeans have “come
forward with evidence that would be sufficient to support a jury verdict in [their] favor.” Burt Rigid
Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002) (citation omitted).
Both the McLeans and Air Methods have introduced experts to assist with aviation issues
outside the lay juror’s common knowledge and experience. On January 24, 2014, the Court ruled
Clingerman’s report and testimony largely admissible, denying much of Air Methods’ motion to
preclude his testimony. McLean, 2014 WL 280343, at *3. (Doc. 90 at 4-6.) Clingerman concludes
Corporate Jets had a history of maintenance problems with its med towers that went unrepaired.
(Doc. 80-2 at 4-5). His opinion is based on reviewing Corporate Jets’ maintenance records for the
helicopters and deposition transcripts of various Corporate Jets employees. McLean, 2014 WL
280343, at *3. Based on this review, it is Clingerman’s opinion that Corporate Jets’ regular failure to

5

comply with company and industry standards “with regard to the maintenance, inspection, repair,
and documentation” of the med towers aboard the helicopters led to the use of a med tower “with
unresolved problems” on Eliza’s flight, and the burning smell was “most probably” caused by a
mechanical failure in the med tower’s air pump. (Doc. 80-2 at 4). Clingerman also believes an
inverter and loose wires may have played a role as well, but conceded in his deposition that only the
air pump was, more likely than not, the cause of the burning smell. See Doc. 71-1 at 8 (quoting
Clingerman). Although expert testimony, of course, “does not alone have to meet the proponent’s
burden of proof on a particular issue,” USGen New England, Inc. v. Town of Rockingham, 862
A.2d 269, 276 (Vt. 2004) (citation omitted), the Court finds -- viewing Clingerman’s report and
testimony in the light most favorable to the nonmovants -- a reasonable inference can be drawn in
favor of the McLeans that Corporate Jets’ negligent maintenance of the med tower caused the
burning smell. The Court notes it has ruled Air Methods’ experts admissible as well and will not
now, on summary judgment, assess the credibility and weight of the competing experts’ proffered
testimony (or that of any other witness).2
The McLeans have demonstrated a material factual dispute about the cause of the burning
smell that precludes summary judgment. At the very least, reasonable minds could “draw different
conclusions” on causation based on the evidence presented. Roberts, 514 A.2d at 696. Air Methods

2

Wilkins v. Lamoille County Mental Health Services, Inc., 889 A.2d 245 (Vt. 2005), upon
which Air Methods relies to argue Clingerman’s testimony is insufficient, is inapposite. In Wilkins,
the trial court, although not formally ruling on the admissibility of the plaintiff’s expert, rejected it as
“so deficient in ‘substance’ and ‘basis’ that ‘it would not be admissible under Vermont Rule of
Evidence 702.’” Id. at 248 n.2 (quoting the trial court). The Supreme Court of Vermont found “no
error in the court’s ruling that expert testimony was required” in the medical malpractice claim. Id.
at 253. Because the “plaintiff failed to adduce an expert opinion that decedent’s suicide would not
have occurred in the absence of defendant’s alleged negligence . . . [she thus] failed to establish the
essential causal element of her claim.” Id. at 248. That is simply not the case here. In contrast, the
Court has ruled Clingerman’s testimony (along with both parties’ other experts) largely admissible
and finds that the McLeans have established a material factual dispute on causation.
6

has introduced its own expert, Douglas E. Stimpson, who concludes Corporate Jets did not cause
the burning smell aboard the first flight and the second pilot used the correct procedure when
refueling at Saginaw. See McLean, 2014 WL 280343, at *5. A jury could find Air Methods’
evidence more persuasive, but the Court’s function on summary judgment is not to pick among
experts’ conflicting opinions it has already ruled admissible.
As a final note, the parties spill considerable ink on the McLeans’ reliance (and, in turn, their
experts’ reliance) on circumstantial evidence. There are two types of evidence -- direct and
circumstantial -- and Vermont makes no distinction between them. See, e.g., In re LeBlanc,
No. 2006-168, 2006 WL 5838950, at *2 (Vt. Oct. 1, 2006) (unpublished) (“[T]he law generally makes
no distinction between the weight or significance accorded to direct evidence, such as eyewitness
testimony, and circumstantial evidence, which is used to indirectly prove a fact. Indeed,
circumstantial evidence is routinely admitted and relied upon in civil cases -- which employ a
preponderance of the evidence standard -- to prove the essential elements of the claim.” (internal
citation omitted)). The Supreme Court of Vermont has long held that causation in negligence claims
may be established through direct evidence, circumstantial evidence, or both. See Healy v. Moore,
187 A. 679, 689 (Vt. 1936) (“Negligence and contributory negligence, or its absence, and proximate
cause, may be shown by circumstantial evidence, if sufficient to justify the inference.”); Hatch v.
Daniels, 117 A. 105, 106-07 (Vt. 1922) (“As presented by this record, the question of proximate
cause was one of fact, and the burden of proof was on the plaintiff. It was not necessary, however,
that this fact should be proved by direct and positive testimony. It was enough, if there was
evidence, direct or circumstantial, from which a logical inference of the causal relation could be
drawn.”); see also Cannata v. Wiener, 789 A.2d 936, 939 (Vt. 2001) (“[C]ircumstantial evidence is
enough to survive summary judgment on the issue of proximate cause of an attorney’s negligence.”

7

(internal quotation marks and citation omitted)); accord United States v. Ebinger, 386 F.2d 557, 560
(2d Cir. 1967) (“It is no objection to the finding of causation that . . . the evidence linking [the
defendant] to the fire was circumstantial; even purely circumstantial evidence may properly be found
to outweigh conflicting direct testimony.”).
That the McLeans rely on circumstantial, not direct evidence, does not mean this Court has
applied, as Air Methods fears, a “circumstantial evidence theory [] heretofore confined to strict
product liability” cases. (Doc. 89 at 8.) It does note that the strict product liability cases the
McLeans cite are inapplicable, as they cannot take advantage of a relaxed burden of proof on
causation or any other element of their claim -- a jury may not simply presume the burning smell
was the result of Corporate Jets’ negligence. But viewing all factual assertions in the light most
favorable to the nonmovants, the McLeans have simply come forward with evidence sufficient to
support a favorable jury verdict. See Tolan v. Cotton, No. 13-551, --- S. Ct. ---, 2014 WL 1757856,
at *1 (U.S. May 5, 2014) (per curiam) (reiterating “the axiom that in ruling on a motion for summary
judgment, ‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor.’” (quoting Anderson, 477 U. S. at 255)). It is now for the jury, not this Court, to
decide whether Corporate Jets breached its duty of care to Eliza and if so, whether any damages are
“within the natural flow of injurious consequences” sufficient to establish proximate cause under
Vermont law. Collins, 938 A.2d at 1211 (internal quotation marks and citation omitted).
IV.

Conclusion
For the above reasons, Air Methods’ motion (Doc. 71) is DENIED.
Upon review of the Evaluator’s report filed July 1, 2013 (Doc. 48), it is hereby ORDERED

that the parties shall conduct a second ENE session with David L. Cleary, Esq. before July 25, 2014.

8

They shall share in payment of compensation to the Evaluator and shall inform the Court in writing,
by June 13, 2014, of the date selected for the additional session.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 29th day of May, 2014.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

9