Stephenson v. Honeywell Int'l Inc

703 F.Supp.2d 1250

Armour D. STEPHENSON, III, et al., Plaintiffs,v.HONEYWELL INTERNATIONAL, INC., Defendant.

Case Nos. 07-2494-JWL, 07-2498-JWL, 07-2499-JWL, 07-2501-JWL.

United States District Court D. Kansas.

April 2, 2010.

COPYRIGHT MATERIAL OMITTED

John W. Kurtz, Hubbard & Kurtz, L.L.P., Kirk R. Presley, Monsees, Miller, Mayer, Presley & Amick, PC, Christopher J. Stucky, R. Douglas Gentile, Douthit, Frets, Rouse, Gentile & Rhodes, LLC, Charles H. McKenzie, Accurso Law Firm, Kansas City, MO, Steven H. Mustoe, Mustoe Carter, LLC, Prairie Village, KS, John Harl Campbell, Osage Beach, MO, Mark A. Corder, Mark A. Corder, P.A., Olathe, KS, for Plaintiffs.

Hugh E. Handeyside, V.L. Woolston, Perkins & Coie, Seattle, WA, Jason L. Bush, Polsinelli Shughart PC, Overland Park, KS, Thomas G. Kokoruda, William L. Yocum, Polsinelli Shughart PC, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This diversity action, removed from state court, arises out of an airplane crash that resulted in the deaths of the pilot and all four passengers. This consolidated action encompasses the wrongful death claims under Kansas law of the heirs of the four passengers against defendant Honeywell International, Inc., who repaired one of the airplane's engines. ¹ The matter is presently before the Court on the parties' motions to exclude expert testimony and for summary judgment. As more fully set forth in this opinion, the Court rules as follows: Defendant's motion to exclude expert testimony by plaintiffs' expert Donald Sommer (Doc. # 178) is denied. Plaintiffs' motion to exclude expert testimony by defendant's experts Gregory Feith, John Maris, and Allen Parmet (Doc. # 182) is granted in part and denied in part. The motion is granted with respect to Dr. Parmet's opinions concerning the pilot's ethanol level, medication side effects unrelated to susceptibility to spatial disorientation, “rogue pilot” behavior, and the credibility of the pilot's spouse, and such testimony will be excluded at trial; the motion to exclude is denied in all other respects. Plaintiffs' motion for summary judgment on defendant's attempt to compare the fault of the pilot (Doc. # 180) is denied. Finally, defendant's motion for summary judgment on plaintiffs' strict liability and warranty claims (Doc. # 176) is granted, and defendant is awarded judgment on those claims.

I. Stipulated Facts

The parties have stipulated to the following facts, as set forth in the pretrial order.

Armour Stephenson, Jr., Shirley Stephenson, Kevin Holzer, and Lewis Smith died in an airplane crash shortly after takeoff on January 21, 2005, in Overland Park, Kansas. The aircraft was piloted that day by James Kingston, who also perished in the crash. For a period of eight years leading up to the flight, Mr. Kingston had been diagnosed with and treated for diabetes and hypertension, and he took prescription medications for those conditions and for high cholesterol.

At the time of its departure from Johnson County Executive Airport in Overland Park, the aircraft was loaded in excess of its maximum certified gross weight. Air traffic control instructed the pilot to climb to an altitude of 3000 feet and to execute a right turn to a heading of 130 degrees. The aircraft entered a climbing turn after takeoff and climbed to approximately 2200 feet, after which time the pilot did not communicate with air traffic control. The aircraft subsequently emerged from the cloud deck and crashed to the ground while in a right banked turn.

The aircraft's engines were manufactured by defendant's predecessor-in-interest in 1979. In 2003, the left engine was sent to defendant for repair, and the engine was returned to service as airworthy.

Plaintiffs, heirs of the decedent passengers, bring wrongful death claims against defendant under Kansas law, based on theories of negligent repair of the left engine, strict product liability, and breach of implied warranty. Plaintiffs contend that the crash was caused by the failure in flight of the left engine, which failure resulted from defendant's negligent repair of that engine in 2003. Defendant disputes that the left engine failed during the flight, and it contends that the crash likely resulted from the pilot's disorientation or incapacitation during flight.

II. Defendant's Motion to Exclude Expert Testimony

Defendant moves to exclude the opinions of plaintiffs' expert, Donald Sommer, concerning the aircraft's flight path and airspeed before the crash.

A. Governing Standards

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court instructed that district courts are to perform a “gatekeeping” role concerning the admission of expert scientific testimony. See id. at 589-93, 113 S.Ct. 2786; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702.

In order to determine that an expert's opinions are admissible, this Court must undertake a two-part analysis: first, the Court must determine that the witness is qualified by “knowledge, skill, experience, training, or education” to render the opinions; and second, the Court must determine “whether the witness' opinions are ‘reliable’ under the principles set forth” in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.2001). The rejection of expert testimony is the exception rather than the rule. See Fed.R.Evid. 702 advisory committee notes.

To qualify as an expert, the witness must possess such “knowledge, skill, experience, training, or education” in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth. LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004). In determining whether the proffered testimony is reliable, the Court assesses whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue. See Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The Daubert Court listed four factors relevant to assessing reliability: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error associated with the theory; and (4) whether the theory has attained widespread or general acceptance. Id. at 592-94, 113 S.Ct. 2786. In Kumho Tire, however, the Supreme Court emphasized that these four factors are not a “definitive checklist or test” and that a court's inquiry into reliability must be “tied to the facts of a particular case.” Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience,” rather than the Daubert factors and scientific foundations. Id. (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir.2004)). The district court has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Id. at 152, 119 S.Ct. 1167.

B. Analysis

In seeking to exclude Mr. Sommer's opinions concerning the aircraft's flight path and airspeed, defendant first argues that those opinions are impermissibly based on the opinions of a non-disclosed, non-testifying expert, Richard Boscardin. In his deposition, Mr. Sommer testified that his staff reconstructed the flight path, using certain computer programs, under his instruction and control. Mr. Sommer also testified that Mr. Boscardin, an independent contractor, performed the MANAT analysis for the reconstruction under Mr. Sommer's control and using Mr. Sommer's inputs. MANAT is a computer program that reduces radar data for a flight to figures for pitch, roll, yaw, speed, angle, and other characteristics.

Defendant argues that because a person other than Mr. Sommer performed the MANAT analysis, the reliability of that method cannot be tested. Defendant was free to ask any questions concerning that analysis in its deposition of Mr. Sommer, however, and defendant has not shown that Mr. Sommer failed or was unable to answer any such questions. Moreover, because plaintiffs do not intend to offer Mr. Boscardin as a witness at trial, they were not required to disclose him as an expert, and his qualifications are not at issue. See Fed.R.Civ.P. 26(a)(2).

Defendant also argues that Mr. Sommer should not be permitted merely to parrot another expert's opinions. See, e.g., Ash Grove Cement Co. v. Employers Ins. of Wausau, 246 F.R.D. 656, 661 (D.Kan.2007) (expert was not permitted simply to parrot or recite opinions and knowledge of other expert and fact witnesses). Despite Mr. Sommer's reference to the MANAT “analysis” performed by Mr. Boscardin, however, there is no indication that Mr. Boscardin independently formed opinions concerning the flight path that Mr. Sommer merely adopted without his own judgment. Mr. Sommer relied on something prepared by another at Mr. Sommer's direction; there is no rule prohibiting an expert's use of assistants if the ultimate opinions are those of the expert and he is qualified to give those opinions. Defendant has not challenged Mr. Sommer's...