Free Order on Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Pending before the Court are four motions in limine: Plaintiffs' M ot ion in Limine to 21 Exclude Evidence of Alleged Contributory Negligence [Dkt. 38], Defendants' M otion in 22 Limine t o Exclude Expert Testimony Based on Untested and Speculative Theories [Dkt. 40], 23 Defendants' M otion in Limine to Preclude Testimony from Douglas Stimpson Regarding 24 Other Accidents and Incidents [Dkt. 41], and Defendant s ' Collective M otions in Limine to 25 Exclude Evidence of Eighteen Other Accidents and Incidents [Dkt. 43]. The M otions are 26 fully briefed. 27 28 U N I T E D S T A T E S A V I A T I O N) UNDERWRITERS, INC., M anager, United) States Aircraft Insurance Group, a New) York corporation; ROCKY M OUNTAIN ) H OLDINGS, LLC, a Utah limited liabilit y ) ) company, ) Plaintiffs, ) ) ) vs. ) ) A ERO SP A T IA LE, S O C I E T E) NATIONALE INDUSTRIELLE, S.A. aka) S o c i e t e N a t i o n a l e I n d u s t r i e l l e) A e r o s p a t iale, a F ren c h e n t i t y ;) EU RO CO P T ER S.A. aka Eurocopter) ) France, a French entity, ) ) Defendants. ) No. CIV 02-0824-PHX-EHC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Case 2:02-cv-00824-EHC

Document 80

Filed 11/01/2005

Page 1 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Parties' Contentions On M ay 11, 2000, an AS350B2 helicopter crashed at Falcon F ield in M esa, Arizona. Plaintiff Rocky M ountain Holdings, LLC owned the helicopter, and P laintiff United States Aviation Underwriters, Inc. (collectively, "Plaintiffs") insured the helicopter. D efendant Aerospatiale, Societe Nationale Industrielle, S.A . des igned and manufactured the

helicopter. Defendant Eurocopter S.A. is the successor t o Defendant Societe Nationale (collectively, "Defendants"). D uring the flight leading to the crash, the helicopter was flown by a trainee pilot and an instructor pilot, and a second trainee pilot was on board as a passenger. The purpose of the training flight was to have t he trainee pilots practice flying and landing the helicopter without the hydraulic system, as required by federal regulation. See 14 C.F .R. 135.247(c) (pilots must perform flight check including recovery from simulated emergencies). The hydraulic system gives t he helicopter pilot more control over the helicopter, much like the power steering system of an automobile increases a driver's control. Flying without the hydraulic system simulates flying and landing the helicopter in the event of a hydraulic system failure. Shortly before the crash, the instruct or pilot turned off the hydraulic system by pushing the HYD TEST button. According to Plaintiffs' procedures, the trainee pilot s hould then adjust the speed of the helicopter, hit a cut-off switch releasing any p res s ure remaining in the hydraulic system, and perform a run-on landing, with the helicopter moving forward until contact with the ground brings it to a stop. If the pilots need to restart the hydraulic system after turning it off, the instructor pilot must reset t he HYD TEST button and, only after that has been done, the trainee pilot must reset the cut-off switch. Shortly before t he crash, the trainee pilot may have attempted to reset the cut-off switch, but the hydraulic system did not restart before the crash. Flying w ithout the hydraulic system, the helicopter turned to the left and crashed into the ground. The helicopter was

Case 2:02-cv-00824-EHC

Document 80

-2Filed 11/01/2005

Page 2 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

damaged and deemed a total loss as a result of the crash. None of the three pilots on board were injured. Plaintiffs filed a Complaint in this Court on M ay 6, 2002, alleging strict products liability and negligence.1 Plaintiffs allege that the design, manufacture, and warnings associat ed with the helicop ter are defective because the helicopter cannot be safely controlled without hydraulic power. D efendants respond that the helicopter is not defective and the cause of the accident was the trainee pilot's failure to control the helicopter during an attempted run-on landing with the hydraulic system intentionally shut off to simulate a hydraulic system failure. Legal S tandard Unless specifically excluded, "[a]ll relevant evidence is admissible." F ed. R. Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Fed R. Evid. 401. The Federal Rules standard of relevance is "a liberal one." Daubert v. M errell Dow Pharms., Inc., 509 U.S. 579, 587 (1993). A court may, in its discretion, exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confus ion of the issues, or misleading the jury." Fed. R. Evid. 403. Discussion Plaintiffs' Motion to Exclude Evidence of Alleged Contributory Negligence Under Arizona law, cont ributory negligence is not a defense to a claim for strict products liability. A riz. Rev. Stat. Ann. § 12-2509(B) (2004). Plaintiffs urge the Court to find that Arizona's bar of the contributory negligence defense in s t rict products liability actions requires the exclusion of evidence of Plaintiffs' conduct. Plaintiffs rely on Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 904 P.2d 861 (1995), to support their argument. Jimenez, however, did not address the issue of whether

1

Plaintiffs have abandoned the negligence claim. [Dkt. 70, p. 2, fn. 1]. -3Filed 11/01/2005

Case 2:02-cv-00824-EHC

Document 80

Page 3 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

evidence of a plaintiff's conduct is admissible in a strict products liability action. Instead, that case addressed a different issue: whether the Uniform Cont ribution Among Tortfeasors Act "changes misuse from an all-or-nothing defense to one of comparative fault." 183 Ariz. at 400, 904 P.2d at 862. This question was raised by t he trial judge's refusal to give t he jury comparative fault instructions. Id., 183 Ariz. at 402, 904 P.2d at 864. The Court held that the trial judge should have instructed the jury on comparative fault. Id., 183 Ariz. at 408, 904 P.2d at 870. Jimenez did not hold that evidence of the plaintiff's conduct must be excluded in a strict products liability action. In fact, the jury in that case arguably heard evidence that the plaintiff negligently used the product at issue. Id., 183 Ariz. at 401, 904 P.2d at 863 ("Defendant claims that Richard used t he t ool improperly by reaching too far across the trailer tongue and turning the safety guard away from him."). Evidence of a plaintiff's conduct in a strict products liability action is relevant for purposes other than proving a contributory negligence defense. Under Jimenez, the plaintiff's conduct is relevant to the defenses of assumption of the risk2 and product misuse. The Court distinguished between the three defenses, stating: "(1) 'Failure to dis cover a defect in the product which the plaintiff should, if he was reasonably diligent, have discovered', is contributory negligence; (2) 'notwithstanding the discovery of such a defect, [if] t he p laintiff nevertheless uses the article' it is assumption of risk; and (3) the plaintiff's use of the product 'for certain purposes or in a manner not reas onably foreseen by the manufacturer' is misuse." Id., 183 Ariz. at 402, 904 P.2d at 864 (quoting O.S. St ap ley Co. v. M iller, 103 Ariz. 556, 561, 447 P.2d 248, 253 (1968) (holding, inter alia, that contributory negligence is not a defense to strict p roducts liability)), see also Ariz. Rev. Stat. Ann. 12-683(3) (2004) (codifying the product misuse defense). A plaintiff's conduct, therefore, is relevant to prove either that the p laint iff did, in fact, discover the defect or that

2

Defendants did not plead the assumption of the risk defens e. T he Court will not determine whether the evidence at issue would be relevant to proving assump t ion of the risk. A s s ump t ion of the risk is discussed to clarify the nature of the other defenses relevant t o this case. -4Filed 11/01/2005

Case 2:02-cv-00824-EHC

Document 80

Page 4 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the plaintiff used the product in a manner not reasonably foreseen by the product manufacturer. Additionally, relevant conduct is admissible to prove the cause of the accident. Gosewisch v. A merican Honda M otor Co., 153 Ariz. 400, 404, 737 P.2d 376, 380 (1987) (evidence of p laint iff's negligence in failing to heed a warning on the product demonstrated that a failure to warn did not cause the accident at issue). H ere, P laintiffs move to exclude evidence of "1) The pilots' careless, reckless, or negligent use or operation of the helicopter; 2) A failure to discover, search for, or guard against possible defects in the helicopter; [and] 3) Inadequate, incomplete or improper training or instruction provided to the pilots." [Dkt. 38, p. 2]. Each of those types of evidence is relevant to proving what caused the accident, an essential element of a strict products liabilit y claim and arguably a matter for the jury to determine. Piper v. Bear

M edical Systems, Inc., 180 Ariz . 170, 174, 883 P.2d 407, 411 (Ariz. App. 1993)("Proximate causation encompasses causation-in-fact and is generally a jury question"). Plaintiffs allege the helicopter is defective because it cannot be controlled w it hout t he hy draulic s ystem functioning. With respect to that allegation, the jury could consider what steps the pilots took t o control the helicopter. M oreover, in deciding whether the hydraulic system failed to restart, it is relevant w het her the pilots properly attempted to restart the hydraulic system by resetting both the HYD TEST button and t he cut -off switch. A possible issue is whet her the pilots tried to restart the hydraulic system soon enough to prevent the cras h. Plaintiffs' expert, William Stimpson, testified in his deposition that the pilots may have waited too long to attempt to res t art t he hydraulic system. [Dkt. 42, ex. B, p. 92]. The pilots' training may be relevant to proving w hat caused the accident. Specifically, evidence of the pilots' training may be relevant because the helicopter cras h occurred during a training flight.

Case 2:02-cv-00824-EHC

Document 80

-5Filed 11/01/2005

Page 5 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs' maintenance of the helicopter- searching for and guarding against defects- is relevant to determining what caused the accident. The accident may have been caused by a failure to maintain the helicopter, or a failure of the hydraulic s y s tem may have been caused by improper maintenance. Evidence of Plaintiffs' maintenance of the helicopter arguably could assist the jury in answering those questions. Additionally, the pilots' operation of the helicop ter is admissible to determine whether Plaintiffs misused the helicopter. M isuse is "a use... of the product... in a manner... other than that which was reasonably foreseeable." Ariz. Rev. Stat. Ann. 12-683(3). The jury decides whet her a particular use of a product is reasonably foreseeable. Piper, 180 Ariz. at 176, 883 P.2d at 413 (jury had s ufficient evidence to determine adding a bacterial filter to a breathing machine was reasonably foreseeable). Plaintiffs assert the Court s hould find no misus e as a matter of law because the helicopter was being used for a training flight, which is allegedly an obviously foreseeable use. Such a determination is premature. The circumstances of the training flight are not before the Court at this time. Defendants' Motion to Exclude Expert Testimony Plaintiffs' experts are prepared to testify on cross-examination that the hydraulic system might have failed to repressurize because a locking pin in an actuator servo could have jammed when under pressure. [Dkt. 55, p. 2]. Plaintiffs' experts based this theory on "their examination of detailed engineering drawings of the servo actuators, the actuators

themselves, and other objectively reliable data." [Dkt. 55, p. 3]. Defendants move to exclude this testimony because examining the engineering drawings and the servos do not constitute reliable principles and methods. Rule 702 of t he Federal Rules of Evidence provides that expert testimony may be admitted if it is (1) "based up on sufficient facts or data," (2) "the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the cas e." See also Fed. R. Evid. 702 advisory committee's notes, and D aubert, 509 U.S. at 570). A trial court must "make certain that an expert, whether basing

Case 2:02-cv-00824-EHC

Document 80

-6Filed 11/01/2005

Page 6 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

testimony up on p rofessional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). An expert's opinion must be based on more than mere speculation. Haines v. Honolulu Shipyard, Inc., 125 F .Sup p .2d 1020, 1033 (9th Cir. 2000) (plaintiff failed to set forth any scientific basis for t he expert's opinion of the cause of plaintiff's blackout). In K umho T ire, the United States Supreme Court found a District Court did not abuse its discretion by excluding the testimony of a tire expert because the expert 's principles and methods were unreliable. The tire expert's methods and principles were unreliable because, although the expert claimed his method of examination could detect minut e t read wear differences, the expert could not use his method to determine with any certainty the amount of miles traveled on a tire. Id., 526 U.S. at 154-55. The Supreme Court concluded by stating "'nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to exis ting data only by the ipse dixit of the expert.'" Id., 526 U.S. at 157 (quoting Ge v. Joiner, 522 U .S. 136, 146 (1997) (district court properly excluded expert testimony because "experts failed to s how a link between exposure to PCB's and small cell lung cancer")). Here, the methods and principles used by Plaintiffs' experts are arguably as unreliable as those used by the tire expert in Kumho Tire. Where the tire expert in K umho Tire claimed to be able to detect minute tread wear differences but could not even detect the miles traveled on a tire, here Plaintiffs' experts claim a locking pin in an actuator servo may jam under t he amount of pressure applied before this crash but do not give any information about how much pressure would cause the locking pin to jam. [Dkt. 42, ex. A, p. 85]. Neither do Plaintiffs' experts offer any informat ion about the amount of pressure exerted on the locking pin during the flight leading to the crash. // //

Case 2:02-cv-00824-EHC

Document 80

-7Filed 11/01/2005

Page 7 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants' Collective Moti on s to Exclude Evidence of Eighteen Other Accidents and Incidents In a strict products liability case, before introducing evidence of other accidents a party must establish that the other accidents occurred in circumstances substantially s imilar to the circumstances of t he accident at issue. Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. 1992) (holding that evidence of loose labyrinth screws in sixteen other helicopter engines was admissible to prove the helicopter engine at issue was defective because it overheated due to a loose labyrinth screw), Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1269 (9th Cir. ) (showing that both airplane accidents involved the same model airplane flowing in icy conditions did not establish substantially similar circumstances). On the present record, the Court finds that this is an is s ue best resolved at trial, prior to admitting evidence of other accidents and incidents. Defendan ts' Motion to Preclude Testimony from Douglas Stimpson Regarding Other Accidents and Incidents Plaintiffs seek to have an expert, Douglas Stimpson, offer his opinion, as an expert, that the helicopter is unpredictable and unreliable when operated without hydraulics. [Dkt. 46, ex. A, p. 9]. Stimpson supports t his op inion by testifying about other accidents involving the AS350 model helicopter flown without hydraulics. Although evidence of those other accident s is arguably inadmissible, an expert may offer an opinion based on inadmissible evidence. F ed. R. Evid. 703. Inadmissible evidence forming the basis of an expert's opinion may be disclosed to the jury if its "p robat ive value in assisting the jury to evaluate the expert's opinion substantially outweighs [its] prejudicial effect." Ibid. Notwithstanding those rules, Stimpson's opinion based on the other accident s and incidents is inadmissible because it is based on documents which Congress has declared cannot be used in a civil action for damages. See 49 U.S.C. § 1154(b) (2005). St imp son bases his opinions of t he other accidents and incidents on briefs of National

Transportation Safety Board ("NTSB") Board reports.

Case 2:02-cv-00824-EHC

Document 80

-8Filed 11/01/2005

Page 8 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Section 1154(b) us es cat egorical language: "No 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 ment ioned in the report." "Report of the Board," according to the NTSB, "means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format ('briefs' of accidents)." 49 C.F.R. 835.2 (1998). An expert, therefore, cannot offer an opinion in a civil action for damages if the opinion is based on an NTSB report containing the NTSB's determinations or conclusions. Curry v. Chevron, USA, 779 F.2d 272, 274 (5th Cir. 1985) (district court properly excluded expert testimony relying on NTSB conclusions), see Protectus Alpha Navigation C. v. N ort h Pacific Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir. 1985) (affirming exclusion of report becaus e t he rep ort included NTSB conclusions). An NTSB investigator's factual accident report, however, is admissible in a civil action for damages. 49 C.F.R. 835.2, Chiron Corp. v. NTSB, 198 F.3d 935, 940 (D .C. A p p . 1999) ("Thus, because investigator's reports are now plainly admis s ible under agency

regulations, victims have acces s to necessary factual information.").3 Pursuant to NTSB regulation, "[f]actual accident report means the report containing t he results of the

Even before Section 835.2 was codified in 1998, The Tenth Circuit allowed exp ert s t o rely on factual accident rep ort s because it found 49 U.S.C. § 1154(b) only excluded NTSB Board reports. M ullan v. Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir. 1986) ("Expert witness properly relied on the factual portions of the NTSB report."). Before t he enactment of Section 835.2, t he Ninth Circuit's position on the admission of NTSB factual accident reports was unclear. See Benna v. Reeder Flying Services, Inc., 578 F .2d 269, 271 (9th Cir. 1978) (The Court s t at ed "there is no question that it was error for the jury to view [the NTSB] accident rep ort s ince by statute the report is inadmissible evidence," but found the error was harmless because the jury did not see the NTSB Board report), see also Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 34-35 (Ariz. App. 1994) ("In our view, ... the Ninth Circuit reads the prohibition against admitting NTSB reports to extend only to the probable cause conclusion and not the factual findings ."). The 1998 enactment of Section 835.2 allowing the admission of NTSB factual reports renders t he state of Ninth Circuit law before 1998 a moot point. -9Filed 11/01/2005

3

Case 2:02-cv-00824-EHC

Document 80

Page 9 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

investigator's inves t igation of the accident." 49 C.F.R. 835.2. An expert may base an opinion on NTSB factual accident rep ort s . M ullan, 797 F.2d at 848 (allowing expert witness to rely on "the factual portions of the NTSB report."). At his dep os it ion [D kt. 46, ex. B, p. 96], Stimpson testified his knowledge of other accidents comes from t he NTSB briefs collected as Exhibit C to the Declaration of William L. Robinson [Dkt. 46]. Those briefs are preliminary s ummaries of NTSB Board reports as defined in 49 C.F.R. 835.2 ("the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format ('briefs' of accidents)"). The briefs are issued by t he NTSB and posted on the NTSB website. Eight of the fourteen briefs explicitly list the NTSB's determination of the probable cause of the reported accident. Seven of the briefs stat e t hat a full narrative is available. Stimpson admits he has not looked at the final report associated with any of the accident s . [Dkt. 46, ex. B, p. 97]. Stimpson may not base his opinions on the briefs of the NTSB Board reports. 49 U.S.C. § 1154(b), 49 C.F.R. 835.2. Stimpson may bas e his opinions on the NTSB factual accident reports. 49 C.F.R. 835.2. Although Defendants provide examples of NTSB factual accident reports [Dkt. 46, ex. F], Stimpson testified that he only looked at the briefs of NTSB Board reports, not the NTSB factual accident reports. [D kt . 46, ex. B, p. 97]. Pending further order of the Court, Stimpson may not give an opinion concerning other accidents and incidents based on this record. Accordingly, IT IS ORDERED that Plaintiffs' M otion in Limine t o Exclude Evidence of Alleged Contributory Negligence is DENIED. [Dkt. 38]. IT IS FURTHER ORDERED that Defendants' M otion in Limine to Exclude Expert Testimony Based on Untested and Speculative Theories is GRANTED, based on the present record. [Dkt. 40].

Case 2:02-cv-00824-EHC

Document 80

- 10 Filed 11/01/2005

Page 10 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS FURTHER ORDERED that Plaint iffs' expert witnesses may not give testimony concerning a possible jammed locking p in in t he actuator servo of the hydraulic system of the AS350B2 helicopter, based on the present record. IT IS FURTHER ORDERED that Defendants' M otion in Limine to Preclude Testimony from Douglas Stimpson Regarding Other A ccidents and Incidents is GRANTED, based on the present record. [Dkt. 41]. IT IS FURTHER ORDERED that P laint iffs' expert, Douglas Stimpson, may not give testimony concerning his opinion of other accidents and incidents involving AS350 helicopters, based on the present record. IT IS FURTHER O RD ERED that Defendants' Collective M otions in Limine to Exclude Evidence of Eighteen O t her Accidents and Incidents is DENIED, based on the present record, without prejudice to re-urging at the time of trial. [Dkt. 43]. DATED this 31st day of October, 2005.

Case 2:02-cv-00824-EHC

Document 80

- 11 Filed 11/01/2005

Page 11 of 11