Escobar v. Nev. Helicopter Leasing LLC

VIOLETA ESCOBAR, also known as VIOLETA ESCOBAR CLINE,Individually and as Personal Representativefor the ESTATE OF NATHAN CLINE, Deceased, Plaintiff, v. NEVADA HELICOPTER LEASING LLC, Defendant.

Civ. No. 13-00598 HG-WRP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

November 25, 2019

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE THE EXPERT DISCLOSURE OF DOUGLAS E. STIMPSON (ECF No. 379) AS UNTIMELY

AND

PERMITTING DOUGLAS E. STIMPSON TO TESTIFY AS AN EXPERT IN THE AVIATION INDUSTRY

AND

DEFERRING RULING ON HIS ABILITY TO TESTIFY AS AN ACCIDENT RECONSTRUCTION EXPERT

In November 2011, a helicopter piloted by the Plaintiff's husband crashed on the island of Molokai.

In November 2013, Plaintiff filed a complaint against Defendant Nevada Helicopter Leasing LLC and other defendants, asserting state law negligence and strict liability claims.

In July 2016, the Court granted Defendant Nevada Helicopter Leasing LLC's Motion for Summary Judgment.

In March 2017, Plaintiff entered into a Stipulation to dismiss her case against the remaining defendants pursuant to a settlement agreement.

Following the March 2017 settlement, Plaintiff appealed the Court's July 2016 Order granting summary judgment to Defendant Nevada Helicopter Leasing LLC.

In February 2019, the Ninth Circuit Court of Appeals reversed the District Court's summary judgment order and proceedings were remanded to this Court.

Upon remand, on March 25, 2019, the Magistrate Judge held a Rule 16 Scheduling Conference. The Magistrate Judge issued a scheduling order that permitted the Parties to engage in discovery and to provide expert disclosures based on the factual issues identified by the Ninth Circuit Court of Appeals. The deadline for Defendant Nevada Helicopter Leasing LLC to provide expert disclosures was set for May 1, 2019.

Pursuant to the Rule 16 Scheduling Order, on May 1, 2019, Defendant Nevada Helicopter Leasing LLC disclosed the expert report of Douglas E. Stimpson.

Plaintiff objects to the disclosure as being untimely. Plaintiff's objection is without merit. Stimpson's May 1, 2019 Report is timely and is specifically permitted pursuant to the Magistrate Judge's March 25, 2019 Second Amended Rule 16 Scheduling Order.

Plaintiff also objects to Stimpson being called as an expert based on his qualifications.

Defendant seeks to call Stimpson as an expert in two separate fields.

First, Defendant seeks to call Stimpson as an expert in the aviation industry, specifically with respect to on-demand and commuter aircraft operations and the requirements set forth in Federal Aviation Administration Regulations Part 135, 14 C.F.R. § 135 et seq.

Second, Defendant Nevada Helicopter Leasing LLC seeks to call Stimpson as an accident reconstruction expert.

PLAINTIFF'S MOTION TO STRIKE EXPERT DISCLOSURE OF DOUGLAS E. STIMPSON (ECF No. 379) is DENIED. The Court RULES, as follows:

(1) Defendant's expert disclosure of Douglas E. Stimpson is timely. The expert disclosure was timely noticed in conformity with the Court's March 25, 2019 Scheduling Order.

(2) Stimpson is permitted to testify in the first trial as an expert in the aviation industry, including on-demand and commuter aircraft operations.

(3) The Court reserves ruling on Stimpson as an accident reconstruction expert until the conclusion of the first trial. The cause of the helicopter accident is not relevant for the first phase of the bifurcated trial. The first trial is limited to the factual issues identified by the Ninth Circuit Court of Appeals in its Memorandum Opinion, as to whether Defendant Nevada Helicopter Leasing LLC had actual possession or operational control of the subject helicopter at the time of the crash.

At the conclusion of the first trial, the Court will address Plaintiff's request to file a rebuttal toStimpson's accident reconstruction report.

PROCEDURAL HISTORY

On November 6, 2013, Plaintiff filed her Complaint. (ECF No. 1).

On July 17, 2015, Plaintiff filed her First Amended Complaint. (ECF No. 32).

On July 21, 2016, the Court issued an ORDER GRANTING DEFENDANT NEVADA HELICOPTER LEASING LLC'S MOTION FOR SUMMARY JUDGMENT. (ECF No. 172).

On March 3, 2017, the Court issued a STIPULATION FOR DISMISSAL OF ALL CLAIMS BY AND BETWEEN PLAINTIFF VIOLETA ESCOBAR AND AIRBUS GROUP, S.E. WITH PREJUDICE. (ECF No. 347).

On March 30, 2017, Plaintiff filed a Notice of Appeal of the Court's Order on Summary Judgment. (ECF No. 348).

On February 11, 2019, the Ninth Circuit Court of Appeals issued a Memorandum Opinion and reversed and remanded proceedings. (ECF No. 358).

On March 5, 2019, the Mandate was issued. (ECF No. 359).

On March 25, 2019, the Magistrate Judge held a Rule 16 Scheduling Conference. (ECF No. 366).

On the same date, the Magistrate Judge issued the SECOND AMENDED SCHEDULING ORDER. (ECF No. 368).

Pursuant to the Magistrate Judge's Scheduling Order (ECF No.368), on May 1, 2019, Defendant disclosed the expert report of Douglas E. Stimpson. (ECF No. 376).

On May 13, 2019, Plaintiff filed PLAINTIFF'S MOTION TO STRIKE THE EXPERT DISCLOSURE OF MR. DOUGLAS E. STIMPSON. (ECF No. 379).

On June 17, 2019, Defendant filed its Opposition. (ECF No. 386).

On July 10, 2019, Plaintiff filed her Reply. (ECF No. 390).

On October 4, 2019, the Court held a Status Conference and allowed additional briefing on the issue and set a hearing for Mr. Stimpson to testify in support of his expert disclosure. (ECF No. 395).

On October 15, 2019, Plaintiff filed a Memorandum in Support of its Motion to Strike Douglas E. Stimpson. (ECF No. 396).

On October 25, 2019, Defendant filed its Exhibit List. (ECF No. 398).

On October 28, 2019, Plaintiff filed her Exhibit List. (ECF No. 400).

On the same date, Plaintiff filed her Objections to Defendant's Exhibit List. (ECF No. 401).

On October 30, 2019, the Court held an evidentiary hearing on Plaintiff's Motion to Strike the Expert Disclosure of Mr. Douglas E. Stimpson and allowed Mr. Stimpson to testify. (ECF No. 402).

STANDARD OF REVIEW

Federal Rule of Evidence 702 provides that "scientific, technical, or other specialized knowledge" by a qualified expert is admissible if it will "help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Civ. P. 702.

The United States Supreme Court, in Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993), held that the District Court has a gatekeeping responsibility to objectively screen expert testimony to ensure that it is not only relevant, but reliable. The District Court's obligation applies to technical and other specialized knowledge as well as testimony based on scientific knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999).

The Ninth Circuit Court of Appeals has explained that expert testimony is relevant if the evidence logically advances a material aspect of the party's case. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463-64 (9th Cir. 2014). The Court considers if an expert's testimony has a reliable basis in the knowledge and experience of the relevant discipline. Kumho, 526 U.S. at 149.

The District Court's inquiry into the admissibility of an expert's testimony, pursuant to Daubert, is a flexible one. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960,969 (9th Cir. 2013). The trial court has discretion to decide how to test an expert's testimony for reliability, as well as relevance, based on the particular circumstances of the case. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). The reliability of an expert's testimony about a relevant issue is best attacked by cross examination, contrary evidence, and attention to the burden of proof, not by exclusion. Daubert, 509 U.S. at 564.

The trial court is "supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable." Alaska Rent-A-Car, 738 F.3d at 969. The District Court is tasked with deciding if the expert's testimony has substance such that it would be helpful to a jury, not in deciding if the expert is right or wrong. Id. at 969-70.

I. Defendant Nevada Helicopter Leasing LLC's Expert Disclosure of Douglas E. Stimpson Is Timely

Federal Rule of Civil Procedure 26(a)(2) requires the disclosure of the identity of expert witnesses expected to give evidence at trial. The rule also requires that such disclosure be accompanied by a written report from the expert absent a stipulation or court order providing otherwise.

The timing of the expert disclosures is set forth in Federal Rule of Civil procedure 26(a)(2)(D). Fed. R. Civ. P. 26(a)(2)(D) provides that, "[a] party must make these disclosures at thetimes and in the sequence that the court orders."

A. Expert Disclosures Were Permitted In The Court's Second Amended Rule 16 Scheduling Order

On November 10, 2011, the helicopter that is subject to this lawsuit crashed on the island of Molokai.

Two years later, on November 6, 2013, Plaintiff filed the Complaint. (ECF No. 1).

Plaintiff, the wife of the helicopter pilot, asserted state law claims for strict liability and negligence against Defendant Nevada Helicopter Leasing LLC ("Nevada Leasing") and other defendants. (Id.)

On July 21, 2016, this Court granted Defendant Nevada Leasing's Motion for Summary Judgment on the ground that 49 U.S.C. § 44112, the Federal Aviation Act's Limitations on Liability statute, barred all of Plaintiff's claims against Nevada Leasing. (ECF No. 172).

Following the Court's order, Plaintiff settled her claims against the remaining defendants. (ECF No. 347).

On March 30, 2017, Plaintiff appealed the Court's order granting Nevada Leasing summary judgment. (ECF No. 348).

On February 11, 2019, the Ninth Circuit Court of Appeals issued a Memorandum Opinion reversing the Court's summary judgment order, finding there was genuine issues of material fact at issue regarding whether Nevada Leasing had operational controlof the helicopter at the time of the crash. (ECF No. 358).

On March 5, 2019, the mandate was issued. (ECF No. 359)...