United States: Tenth Circuit Affirms Summary Judgment In Premier 390 Accident Litigation After Plaintiffs' Expert Testimony Excluded

In a lengthy and well reasoned unpublished opinion, the Tenth Circuit Court of Appeals recently affirmed a grant of summary judgment to the defendants in litigation arising from a Beechcraft Premier 390 accident on March 17, 2013. Both of the aircraft's engines inadvertently were shut down in flight; the pilot then was unable to restart the engines or lower the landing gear.

This federal court action was brought in the Northern District of Oklahoma by the two surviving passengers of the planned flight from Tulsa, OK to South Bend, IN and their spouses. The pilot and a third passenger were killed in the crash. Plaintiffs/Appellants sued Beechcraft Corporation ("Beech"), the manufacturer of the aircraft, and Hawker Beechcraft Global Customer Support ("Hawker"), which provided maintenance services for the accident aircraft. The plaintiffs alleged negligence claims against Beech and Hawker, and products liability claims against Beech.

Specifically, the plaintiffs alleged that: (1) the pilot was unable to restart the engines because the aircraft's electrical distribution bus was defective; (2) the aircraft's alternate landing gear system (needed because the engines were not restarted) was defectively designed and failed to deploy; and (3) the aircraft's flight manual contained faulty instructions for restarting the electrical generator after a dual engine shutdown, and certain "repair kit" instructions for the electrical system also allegedly were defective.

In support of their claims, plaintiffs offered the testimony of four expert witnesses: John Bloomfield, Donald Sommer, Frank Graham and Michael Haider. Beech and Hawker moved to exclude the opinions of Bloomfield, Sommer and Graham on the grounds that they were not qualified to render, or alternatively did not have an adequate basis for, most of their opinions. They moved to exclude the opinions of Haider on the grounds that he did not sufficiently prepare his expert report. They also moved the court to strike supplemental affidavits offered by the witnesses after the filing of Daubert motions by the defendants on the grounds that the affidavits' content was improper and constituted untimely supplementation.

The trial court agreed with Beech and Hawker, and excluded most of the opinions of all four experts. The Tenth Circuit found that the trial court had not abused its discretion in excluding these opinions. The trial and appellate court analysis is too detailed to address in full here. However, the following reasoning highlights are notable as you consider ways in practice to attack the opinions of opposing experts under the federal court Daubert analysis and the Federal Rules of Civil Procedure.

Among other reasons for excluding portions or all of the four experts' opinions, the Court noted that: (1) parties have a continuing obligation to supplement expert reports in a timely manner if the parties later learn the information initially provided is incomplete or incorrect; (2) supplementation normally must occur by the time a party's pretrial disclosures under Federal Rule 26(a)(3) are due; (3) if any expert's disclosure is "intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C)," that disclosure is due within 30 days of the other party's disclosure; (4) supplemental affidavits submitted in response to Daubert challenges that restate prior opinions, are not based on newly learned evidence, are based on testing or work done that could have been done in connection with the original expert report issuance or deposition testimony, or that supplement those opinions beyond the 30 day requirement, properly are rejected; (5) testing is not always required to support expert opinions, but an expert still must show under Federal Rule 702 that his opinions are based on sufficient facts or data and on reliable principles and methods; (6) Bloomfield was not qualified to render opinions about a design defect in the alternate landing gear because he had never designed a landing gear, and was not qualified to render aircraft flight manual opinions given that he had never drafted an aircraft instruction manual; (7) Sommer was not qualified to render alternate landing gear design opinions because he had no aircraft design experience, and while he did pull force testing for the alternate landing gear that was found to be admissible, he did not do any analysis to identify a specific design defect; (8) Sommer's experience as a "consumer" of the Beechcraft aircraft does not make him a design defect expert; and (9) Haider's report was properly excluded where his report was written by plaintiffs' counsel (and not sufficiently prepared by him), where he did not do independent research, where he offered design opinions outside his expertise, where he did not offer opinions based on the facts of this case, and where his billing records showed insufficient time was spent to analyze the information upon which he offered opinions.

After the exclusion of this expert testimony, the trial court found that there was no genuine issue of material fact that would allow a reasonable jury to find in favor of the plaintiffs on any of their theories of negligence or products liability. As a result, the trial court granted summary judgment to Beech and Hawker, and the Tenth Circuit affirmed the grant of summary judgment on appeal.

Finally, even though this is an unpublished opinion and therefore is not binding precedent (except under the doctrines of law of the case, res judicata, and collateral estoppel), it is very well reasoned and still can be cited as persuasive authority, consistent with federal and local rules. Rodgers v Beechcraft Corporation, No. 175045 (10th Cir. Dec. 13, 2018) (unpublished opinion).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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