Johnson v. Avco Corp.. .
| Decision Date | 06 April 2010 |
| Docket Number | Case No. 4:07CV1695 CDP. |
| Citation | 702 F.Supp.2d 1093 |
| Parties | Kari JOHNSON, et al., Plaintiffs, v. AVCO CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
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Arthur A. Wolk, Matthew K. Clarke, Philip J. Ford, Wolk Law Firm, Philadelphia, PA, Edward D. Robertson, Jr., Mary D. Winter, Bartimus and Frickleton, Jefferson City, MO, Thomas P. Germeroth, Kolker and Germeroth, L.L.C., Clayton, MO, for Plaintiffs.
Claire L. Lunardini, Edward R. Moor, Jr., Thomas H. Neuckranz, James E. Beal, Williams And Montgomery, Chicago, IL, R.C. Wuestling, IV, Susan M. Schwartzkopf, Wuestling and James, L.C., St. Louis, MO, for Defendants.
The parties have filed a number of motions for summary judgment and for sanctions and to exclude or limit expert testimony. This case arises from the crash of a private airplane in Indiana that resulted in the death of the pilot and all three passengers. Plaintiffs are the decedents' next of kin and personal representatives. They bring these wrongful death actions against the manufacturers of the airplane's engine and the maintenance company that overhauled the engine in 2001, alleging those defendants are liable under theories of negligence, strict liability, and misrepresentation.
Because genuine issues of material fact remain, I will deny most of the motions for summary judgment. I will grant defendants' motion for summary judgment with respect to plaintiffs' misrepresentation claims and their claims for decedents' pain and suffering, because these claims fail as a matter of law. I will also dismiss certain plaintiffs from this action, because they are not the proper parties under Indiana law. Plaintiffs' motion for summary judgment on defendants' affirmative defenses of non-party fault is granted as to all non-parties other than the Wabash Municipal Airport and its related entities. Finally, I have determined that certain expert witnesses must be excluded from testifying, but otherwise I have denied the parties' motions to exclude, with minor limitations to the experts' testimony. I will deny all other motions.
On September 10, 2005, John and Kathleen Swan, along with their son, James Swan, and his friend, Vanessa Baer, were killed after their private airplane crashed near Wabash Municipal Airport in Wabash, Indiana. Lycoming, a defendant in this case, designed and manufactured the airplane's engine in the 1970s. Lycoming is a corporate subsidiary of defendant Avco Corporation, which is itself a corporate subsidiary of defendant Textron, Incorporated. Defendant Western Skyways performed significant maintenance on the engine in 2001.
Plaintiffs are decedents' personal representatives and next-of-kin. They filed this lawsuit in Missouri state court in September of 2007, bringing negligence, strict-liability, and misrepresentation claims against defendants. Defendants removed the case to this Court because of diversity of citizenship. I decided in November of 2009 that Indiana law applies to the issues of liability and damages. Discovery is complete, and all parties now move for summary judgment and to exclude numerous expert witnesses. The Textron defendants also move for sanctions against plaintiffs.
Plaintiffs' theory of the case is that defendant Lycoming defectively designed the engine to include a fuel clamp with a synthetic rubber cushion, composed of polychloroprene, on top of a stainless steel fuel line. According to plaintiffs, engine vibrations and heat caused the rubber cushion over fuel line number five to degrade, allowing the aluminum clamp to scratch that fuel line. Additionally, heat caused the polychloroprene cushion to release chlorine ions that formed hydrochloric acid, which further corroded the fuel line. Eventually, a hole formed, releasing fuel and causing an in-flight fire that resulted in the accident. Plaintiffs also contend that defendant Western Skyways's alleged negligence contributed to the accident, because there is evidence that Western installed an aluminum fuel clamp over fuel line no. 5, instead of a stainless steel fuel clamp as directed by Lycoming. Plaintiffs also adduce evidence that Western improperly installed the engine's crankshaft, which contributed to the engine's vibrations. In response, defendants present evidence that pilot error was the cause of the accident. I will consider the parties' motions to exclude, for sanctions, and for summary judgment in turn.
The parties have filed numerous Daubert motions directed to each other's experts. Federal Rule of Evidence 702 permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. The expert must be qualified to give her opinions on the subject through “knowledge, skill, experience, training, or education,” and the district court must consider (1) the factual basis of the expert's opinion, (2) the reliability of the method and application, and (3) the relevance of the testimony. Id.; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir.2005) (). I will first consider the merits of defendants' motions to exclude plaintiffs' experts, and then plaintiffs' motions to exclude defendants' experts.
Plaintiffs' expert Dr. Richard McSwain is a materials engineer with years of experience investigating the causes of airplane crashes for the United States military and as part of his own company. In this case, McSwain investigated the accident airplane wreckage in his lab to determine the cause of the crash. Based on his tests and observations, McSwain concluded that engine vibrations and heat caused a hole in the engine's no. 5 fuel line, which allowed fuel to escape and cause an in-flight fire.
Defendants do not contend that McSwain is unqualified or that his opinions are not relevant, but instead assert that his opinions are unreliable. In determining whether a method or principle has been reliably applied, a court must be careful to examine methodology, and not the conclusions drawn from it. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. Methodology is reliably applied if the expert completes the required procedure, the data used is “typically” relied upon, and the expert does not fail to account for relevant variables. See U.S. Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 691 (8th Cir.2009); Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir.2007); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir.2006); Blue Dane Simmental Corp. v. Am. Simmental Ass'n, 178 F.3d 1035, 1040-41 (8th Cir.1999).
Here, McSwain analyzed the airplane wreckage, including its engine, using stereomicroscopy, scanning electron microscopy, and x-ray spectroscopy. These tests revealed the presence of multi-directional contact marks on the no. 5 fuel line, and the transfer of aluminum particles onto that fuel line, which was composed of stainless steel. Based on these observations, McSwain concluded that the engine had vibrated to such an extent that the chlorine-based rubber cushion degraded, and the aluminum fuel clamp over fuel line no. 5 scratched the fuel line. McSwain's tests also revealed the presence of pit marks on the fuel line, which he opined were formed after the aluminum clamp came into contact with the fuel line. To test whether the rubber cushion degraded because of engine vibrations or because of a post-crash fire, McSwain applied flame to exemplar cushions and clamps. Instead of degrading the way the aluminum clamp and rubber cushion degraded in this accident, the rubber in the exemplars turned to ash and the aluminum clamps melted.
McSwain also discovered the presence of chlorine at the perimeter of the hole in fuel line no. 5. Because McSwain had determined that the rubber cushion was composed of polychloroprene synthetic rubber, he opined that chlorine ions had been released from the rubber cushion at some point and had formed hydrochloric acid that corroded the stainless steel fuel line until a hole formed. Scientific literature shows that chlorine-containing elastomers, such as the rubber cushion in this case, “may cause corrosion and pitting of metal surfaces because of the formation of hydrochloric acid under the service conditions.”
Finally, applying the National Fire Protection Association 422, a manual for investigating fires in airplane accidents, McSwain tested other parts of the accident wreckage to determine whether an in-flight fire had occurred. Because he found aluminum deposits on the engine's firewall-indicating that aluminum was heated and melted, and then transferred by airflow to cooler areas of the plane where it was deposited-McSwain concluded that an in-flight fire occurred. Other evidence was found that supported this conclusion, including a melted oil sump case exhibiting fire damage that could have only formed the way it did if the airplane engine was upright, although the engine was recovered upside down at the crash location.
Defendants do not contend that McSwain's methodology in forming these opinions was unsound. Instead, they contend that all of these opinions are inadmissible because McSwain did not perform tests to determine (1) whether it was possible for the engine to vibrate to such an extent that the rubber cushion would degrade; and (2) whether the engine temperature could have reached levels that chlorine ions would be released from the rubber cushion and form hydrochloric acid capable of eating through stainless steel. Citing the Eighth...
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