Campbell v. Keystone Aerial Surveys, Inc.

• Decision Date: 13 April 1998
• Docket Number: No. 96-21082,96-21082
• Citation: 138 F.3d 996
• Parties: , 49 Fed. R. Evid. Serv. 263 Melva CAMPBELL, Individually and as the Natural Mother and Next Friend of Marisol Campbell, Vanessa Campbell, Thomas Campbell, Penelope Campbell, and Nakita Campbell, minors; and as personal representative of the Estate of Thomas Campbell; Marisol Campbell; Vanessa Campbell; Thomas Campbell; Nakita Campbell; Penelope Campbell, Plaintiffs-Appellants/Cross-Appellees, v. KEYSTONE AERIAL SURVEYS, INCORPORATED; et al., Defendants, Keystone Aerial Surveys, Incorporated, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 996

138 F.3d 996

40 Fed.R.Serv.3d 473, 49 Fed. R. Evid. Serv. 263

Melva CAMPBELL, Individually and as the Natural Mother and

Next Friend of Marisol Campbell, Vanessa Campbell, Thomas

Campbell, Penelope Campbell, and Nakita Campbell, minors;

and as personal representative of the Estate of Thomas

Campbell; Marisol Campbell; Vanessa Campbell; Thomas

Campbell; Nakita Campbell; Penelope Campbell, Plaintiffs-Appellants/Cross-Appellees, v. KEYSTONE AERIAL SURVEYS, INCORPORATED; et al., Defendants,

Keystone Aerial Surveys, Incorporated,

Defendant-Appellee/Cross-Appellant.

No. 96-21082.

United States Court of Appeals, Fifth Circuit.

April 13, 1998.

Rehearing Denied May 19, 1998.

George M. Fleming, Daniel James Petroski, Jr., Houston, TX, for the Campbells.

Darlene Payne Smith, Houston, TX, for Vanessa, Nakita and Penelope Campbell.

Cynthia C. Hollingsworth, Martin E. Rose, Kathleen M. Goodman, Gardere & Wynne, L.L.P., Dallas, TX, for Keystone Aerial Surveys, Inc.

Appeals from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

On May 28, 1994, a Cessna 320E airplane crashed into the wall of a canyon near Battle Mountain, Nevada. Steve Fish, the pilot, and Thomas Campbell were killed in the accident. The pilot was employed by Keystone Aerial Surveys, Inc. ("Keystone"), and Campbell was conducting aerial magnetic surveys for Keystone. This appeal arises out of a wrongful death and survival action brought by Melva Campbell, Thomas Campbell's widow, and his five children, against Keystone. ¹

I.

Thomas Campbell began working for Keystone in April 1994 as an "air mag operator," conducting aerial magnetic surveys to record geological patterns in designated areas. This kind of surveying requires low-level flight operations; at times, a pilot may fly a plane no more than 200 to 500 feet above the ground. The area that Fish and Campbell were surveying at the time of the accident has been described as hilly or mountainous. One witness described it as a "box canyon." The plane, which had been flying at a low altitude inside the canyon, crashed into a wall of the canyon.

The Campbells' negligence theory was that the plane crashed as a result of a "controlled flight into terrain." That is, they contended that the pilot had control of the plane but crashed into the terrain either because he did not see it or because he simply did not leave enough time and space to avoid it. Keystone denied that the accident resulted from pilot error and offered a number of possible alternative explanations for the crash through the testimony of their expert, Warren Wandell.

The district court granted Keystone's motion to bifurcate the trial into a liability and compensatory damages portion and a punitive damages portion. The liability and compensatory damages portion was tried to a jury, which failed to find that any negligence on Fish's part proximately caused the accident. The district court rendered judgment on the jury's verdict, and this appeal followed.

II.

The Campbells raise a variety of challenges to the testimony of Keystone's expert witness, Warren Wandell. First, they argue that the district court abused its discretion in allowing Wandell to testify because he was not timely designated. Second, they argue that the district court erred in allowing Wandell to testify because he had been employed by the National Transportation Safety Board ("NTSB" or the "Board") in the office that investigated this plane crash, and federal regulations prohibit NTSB employees from offering opinion testimony. Because we conclude that the district court abused its discretion in allowing Wandell's late-designated testimony, we vacate the district court's judgment as to liability and damages and remand for a new trial on these issues. ²

A.

Appellants first argue that the district court should have refused to allow Wandell's testimony because Keystone designated him as an expert witness outside the deadline set by the district court's scheduling order. Keystone first designated Wandell on August 1, 1996, approximately eight months after the scheduling order deadline, nearly three months after a pretrial order listing trial witnesses was entered, and only seven-and-a-half weeks before trial. Although the Campbells filed a motion to strike Wandell's testimony on August 13, 1996, the district court did not rule on that motion until the first day of trial. The district court then denied the motion to strike and allowed the Campbells to depose Wandell during the afternoon of the second day of trial.

We review the district court's decision to allow testimony by a late-designated expert for abuse of discretion. Bradley v. United States, 866 F.2d 120, 124 (5th Cir.1989). We have held that the district courts have "wide latitude" in pretrial matters and must be allowed to act with "intelligent flexibility" in this arena. Davis v. Duplantis, 448 F.2d 918, 921 (5th Cir.1971). We have instructed the district courts to consider four factors in determining whether the testimony of a late-designated expert witness should be permitted: (1) the importance of the witness's testimony; (2) the prejudice to the opposing party if the witness is allowed to testify; (3) the possibility that a continuance would cure potential prejudice; and (4) the explanation given for the failure to identify the witness. Bradley, 866 F.2d at 124 (citing Murphy v. Magnolia Elec. Power Ass'n, 639 F.2d 232, 235 (5th Cir.1981)).

In ruling on the Campbells' motion to strike, the district court failed to consider these factors. Instead, the district court simultaneously considered a motion by Keystone to strike the Campbells' expert on pilot negligence, Richard L. Taylor, and stated:

Here's what I am going to do, I am going to decide today whether Mr. Taylor testifies. If Mr. Taylor testifies, he gets Wandell. If Mr. Taylor doesn't testify, he doesn't get Wandell. That's the way its going to be.

In short, the district court failed to analyze independently whether the plaintiff's expert and the defendant's expert should have been allowed to testify.

Applying the Bradley factors, we conclude that the district court abused its discretion by allowing Wandell to testify. Not only did Keystone fail to proffer any explanation for its failure to designate Wandell in a timely fashion, ³ but the potential prejudice to the Campbells resulting from the district court's decision to allow Keystone to designate an expert in accident reconstruction shortly before trial was plain and substantial. Before Wandell was designated, Keystone had not identified a single expert witness on liability issues. The Campbells prepared their case on the assumption that theirs would be the only liability expert, apparently confident that Taylor's testimony would withstand cross-examination and be sufficient to support a jury verdict in their favor in the absence of an opposing expert. Keystone's sudden designation of Wandell left the Campbells with an inadequate opportunity to adapt the presentation of their case in light of his testimony, by, for example, obtaining and developing the testimony of their own accident reconstruction expert and preparing to cross-examine Wandell. See Bradley, 866 F.2d at 125. ⁴

Wandell's testimony was unquestionably important. Indeed, it was devastating to the Campbells' case: based on photographs of the accident scene and other investigation, Wandell cogently refuted Taylor's testimony that the accident resulted from a "controlled flight into terrain" due to pilot negligence and offered alternate explanations for the crash. Moreover, counsel for Keystone cross-examined Taylor extensively to expose that he, unlike Wandell, was not an accident reconstructionist.

The district court failed to consider whether the potential prejudice to the Campbells could be cured by a continuance. That neither party in this case requested a continuance is not surprising: the trial had already been continued twice, once over the Campbells' objection. As this court recognized in Bradley, when an expert is designated outside the deadline set by the district court in a case that has already been continued (in Bradley, three times), the party opposing the late-designated expert is put in the "untenable position" of agreeing to a continuance or going forward with an improperly designated witness. Id. at 127 n. 11. A continuance may nevertheless be the appropriate way in which to handle a late designation, especially where the expert's testimony is important. Indeed, we have repeatedly emphasized that a continuance is the "preferred means of dealing with a party's attempt to designate a witness out of time...." Id. (citations omitted). In this case, however, the district court failed to consider this option and instead required the plaintiffs to depose Wandell the afternoon of the second day of trial.

For these reasons, we conclude that the district court abused its discretion by allowing Wandell's testimony without allowing the Campbells an opportunity to obtain their own expert accident reconstructionist and time to prepare to cross-examine Wandell. Accordingly, we remand the case to the district court for a new trial on the issues of liability and damages. "Before the new trial is begun, of course, the district court should consider any further appropriate discovery and should allow the parties to prepare the presentation of their cases in light of [the expert's] expected testimony." Bradley, 866 F.2d at 127. The court may also consider whether it should impose sanctions on Keystone for the breach of its duties under the Federal Rules of Civil Procedure. See id.

B.

The Campbells also argue that the district court should have excluded all opinion testimony offered by Warren Wandell because he was formerly employed by the NTSB in the office that investigated the plane crash in question. Federal...