Free Reply - District Court of Arizona - Arizona

’l William L. Robinson (CA State Bar N0. 087647)
Carrie Kienholz Flynn (CA State Bar No. 211776)
2 NIXON PEABODY LLP
2040 Main Street, Suite 850
3 Irvine, CA 92614
Telephone: (949) 475-6900
4 Facsimile: (949) 475-6910
5 Stephen C. Yost (AZ State Bar N0. 011149)
CAMPBELL, YOST, CLAIRE & NORELL
G 101 North First Avenue, suite 2500
Phoenix, AZ 85003
7 Telephone: (602) 322-1600
Facsimile: (602) 322—1604
8
Attorneys for Defendants AEROSPATIALE,
9 SOCIETE NATIONALE INDUSTRIELLE, S.A.
,10 AND EUROCOPTER, S.A.
11 UNITED STATES DISTRICT COURT
12 DISTRICT OF ARIZONA
1 3
14 UNITED STATES AVIATION UNDERWRITERS, Case No. CIV 02—0824—PHX—EI¢IC
INC., Manager, United States Aircraft Insurance
15 Group, a New York corporation, and ROCKY REPLY BRIEF IN SUPPORT OF _
MOUNTAIN HOLDINGS, LLC, a Utah limited DEFENDANTS’ MOTION IN LIMINE TO
16 liability company, EXCLUDE EXPERT TESTIIVIONY
BASED ON UNTESTED AND
17 Plaintiffs, SPECULATIVE THEORIES
-1 8 VS.
39 AEROSPATIALE, SOCIETE NATIONALE
INDUSTRIELLE, S.A. aka Societe Nationale
20 Industrielle Aerospatiale, a French entity, and
EUROCOPTER S.A. aka Eurocopter France, a
21 French entity,
22 Defendants.
23
24 Defendants Aerospatiale, Societe Nationaie Industrielle, S.A. and Eurocopter, S.A.
25 ("Eurocopter" or "Defendants") respectfully file this reply in support of their Motion In Limine for an
26 Order to exclude any testimony based on untested and specuiative theories of causation, including
27 any reference, argument, or evidence of a jammed locking-pin causing an “0pen—centcr hydrauiic
28 system" on th subject aircraft.

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Case 2:O2—cv—OO824-EHC Document 72 Filed O9/26/2005 Page 1 of 3

1 REPLY
2 As stated in Defendants’ moving papers, Plaintiff claims that the AS350 helicopter’s
3 hydraulic system failed to repressurize during the final landing sequence of the accident flight, and at
4 deposition, its experts postulated that this failure may have been caused by the jamming of a locking
5 pin in the hydraulic servos, which in turn may have caused an "open center hydraulic system?
6 Plaintiff now states that it does not plan on offering evidence of an "open center hydraulic system"
7 (or a jammed locking pin as the cause of such an open center system) in its case-in—chief, and that its
8 expert witnesses will refer to such evidence if asked why the hydraulic system failed to repressurize.
9 However, Defendant’s expert, Bill Force, wiil testify that if the system failed to repressurize,
10 the reason is pilot error, and Plaintiff has not stated that it will refrain from referring to an "open
11- center hydraulic system" during its cross—examination of Mr. Force. Similarly, Plaintiff has not
12 provided any assurances that either its fact or expert witnesses will not, of their own accord, make
13 reference to a jammed locking pin or an "open center hydraulic systern” during their testimony. ln
14 fact, Plaintiff goes so far as to provide an offer ofproof as to the related testimony its witnesses are
15 prepared to give. Therefore, Defendants Motion In Limine is not moot, and an Order as to the
16 inadinissibility of such evidence is still required.
17 Plaintiff s Opposition, in fact, merely provides further support for Defendants’ argument that
18 any expert testimony concerning an "open center hydraulic system" theory fails to satisfy the
19 requirements of Fed. R. Evid. 702 and Dauberr v. Merrell Dow Pharms, Inc., 509 U.S. 579, 592-593
20 (1993). Plaintiff states that the theory is based on engineering drawings, the actuators themselves,
21 and “other objectively reliable data.” (Opposition, 3: l—2.) Plaintiff provides no authority, however,
22 for the proposition that a visual review of a component and some drawings (and other, unspecified,
23 data) is sufficient to meet the Dezubert strictures.1
24
25
26
27 1 Surprisingly, Plaintiffs even fail to provide declarations from the experts themselves to
support the theory or their methodology.
28
REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE TO -2- $509888]]
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Case 2:O2—cv—OO824-EHC Document 72 Filed O9/26/2005 Page 2 of 3

‘I Tellingly, Plaintiff does not, and cannot, state that the components have been tested or provide
2 any evidence that an "open-center hydraulic systein” is possible in fact rather than theory. Even if
3 possible, there is no evidence that the accident aircraft had an open center hydraulic system; no post-
4 crash anomalies were found in any ofthe aireraft’s hydraulic sewos. Furthermore, there is no
5 evidence that there is a known error rate for the theory or that it is generally accepted by experts in
6 helicopter mechanics The reliability of this untested, unsubstantiated and speculative theory cannot
7 be assessed, Plantiff’ s expert’s methodology is far from scientifically valid, and as a result, it is
8 inadmissible under Fed. R. Evid. 702 and Daubert, and should not be referred to at trial under any
9 circumstances.
1 O
1 1 Dated; September 26, 2005 Respectfully submitted,
12 NIXON PEABODY LLP
'l 3 - 3
r
William L. Robinson
15 Carrie Kienholz Flynn
Attorneys for Defendants
l6 AEROSPATIALE, SOCIETE NATIONALE
Q? INDUSTRIELLE, S.A. AND EUROCOPTER, S.A.
18 CERTIFlCA'l`E Ol? SERVICE
19 The undersigned hereby certifies that the original and one copy were tiled with the Clerk of
the United States District Court this 26th day of September, 2005.
20
The undersigned hereby certifies that a true and correct copy of the foregoing instrument was
2l served on this 26th day of September, 2005, by facsimile and U.S. Mail, on the following counsel of
record
22
23 John A. Kodani, Esq.
Jeffrey I . Williams, Esq.
24 LAW OFFICES OF JON A. KODANi
2200 Michigan Avenue
25 Santa Monica, CA 90404
26 Tele: (310) 453-6762
Fax: (3 l 0) 829-3340 ,,» ~ lg
27 ’ % ”w`WWW"i
Carrie Kienholz Flynnsff
28
REPLY BRIEF IN SUPPORT OF MOTION INLIMINE TO -3- 35393334
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Case 2:02-cv-00824-EHC

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