Kedrowski v. Lycoming Engines, of Avco Corp.

• Decision Date: 15 May 2018
• Docket Number: A17-0538
• Parties: Mark Kedrowski, Appellant, v. Lycoming Engines, a division of AVCO Corporation, Respondent.
• Court: Court of Appeals of Minnesota

Mark Kedrowski, Appellant, v. Lycoming Engines, a division of AVCO Corporation, Respondent.

A17-0538

STATE OF MINNESOTA IN COURT OF APPEALS

May 15, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Hooten, Judge

Dissenting, Randall, Judge^*

Ramsey County District Court

File No. 62-CV-12-9581

Eric J. Magnuson, Robins Kaplan LLP, Minneapolis, Minnesota; andThomas W. Fuller, Cortney S. LeNeave, Hunegs, LeNeave & Kvas, P.A., Wayzata, Minnesota; andSharon L. Van Dyck, Fafinski Mark & Johnson, P.A., Eden Prairie, Minnesota; and

Stephen P. Watters, Watters Law Office, Minnetonka, Minnesota (for appellant)

Steven J. Wells, Timothy J. Droske, Andrew B. Brantingham, Dorsey & Whitney LLP, Minneapolis, Minnesota; and

Daniel A. Haws, John Paul J. Gatto, HKM, P.A., St. Paul, Minnesota (for respondent)Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Randall, Judge.

UNPUBLISHED OPINION

HOOTEN, Judge

Appellant pilot challenges the district court's grant of judgment as a matter of law (JMOL) in favor of respondent manufacturing company after a jury found that manufacturing defects in respondent's fuel pump caused his single-engine airplane to crash. Appellant argues that the district court abused its discretion when it excluded his expert's causation opinion because it lacked foundational reliability. He also argues that even without his expert's causation opinion, he presented sufficient evidence for the case to go to the jury. We affirm.

FACTS

Appellant Mark Kedrowski was the pilot and only occupant of a single-engine airplane when it crashed into a soybean field near the Lake Elmo Airport on September 3, 2010. Kedrowski took off from the airport, attempted to climb, then made a right-hand turn and crashed into the field shortly after takeoff. Immediately after the crash, Kedrowski told emergency responders that he "lost power and was trying to get back to the airport." Kedrowski was severely injured and now has no memory of the crash or the preceding flight.

In December 2012, Kedrowski sued respondent Lycoming Engines (Lycoming), alleging that the airplane's engine, which was a model originally designed, manufactured, and sold by Lycoming, lost power and caused the crash. Kedrowski retained DonaldSommer, an engineer and undisputed expert in aircraft accident reconstruction, to investigate the crash. Sommer explained that the airplane, a Glasair RG Super IIS, was "amateur built, which means it wasn't built by a big airplane company," and that the airplane was certified by the FAA as "special-use experimental." According to Sommer, Lycoming originally built the engine in 1973 to be installed in a helicopter, and it was later modified by another entity to be used in this airplane.

Sommer authored two expert reports and concluded that the airplane's crash was caused by design and manufacturing defects in the engine's diaphragm-style fuel pump (the accident fuel pump), a Lycoming LW-15473 that was manufactured in 2008. Despite acknowledging that he had never before overhauled or tested a diaphragm-style fuel pump, Sommer opined that the accident fuel pump had design and manufacturing defects that caused it to leak, decreased the fuel flow to the airplane's engine, and caused the airplane to crash.

In a pretrial motion in limine, Lycoming moved to exclude evidence and Sommer's testimony regarding causation and his testing of the accident fuel pump for lack of foundational reliability. The district court denied Lycoming's request to exclude evidence of Sommer's testing "subject to [Lycoming's] right to interpose foundation and other appropriate objections at trial." The district court similarily did not grant the request to exclude Sommer's testimony but limited its scope and noted that a final ruling on the admissibility of his testing would be made at trial.

The case proceeded to a nearly month-long jury trial in January 2016. Sommer testified during the trial that he believed that design and manufacturing defects in theaccident fuel pump caused the crash. Specifically, he testified that internal leaks in the accident fuel pump's valves resulted in an insufficient fuel flow to the airplane's engine and therefore the engine could not produce sufficient power for the airplane to remain in flight. Sommer described in detail the tests he conducted on various components of the airplane's engine. One of the tests he performed was a flow-bench test on the accident fuel pump. The purpose of the flow-bench test was to measure the accident fuel pump's fuel-flow-output capability in order to determine whether it was sufficient to power the airplane's engine. Sommer opined that the flow-bench test revealed that the accident fuel pump was defective and incapable of supplying steady and adequate fuel flow to the airplane's engine. At several points during Sommer's testimony, Lycoming objected to his causation opinion and the flow-bench testing, claiming a lack of foundation. The district court overruled these objections.

At the conclusion of Kedrowski's case-in-chief, Lycoming moved for JMOL. See Minn. R. Civ. P. 50.01. Lycoming argued that Kedrowski failed to prove causation because Sommer's causation opinion and the flow-bench test lacked foundational reliability. The district court denied Lycoming's motion, calling the question on causation "very close." The district court reasoned that whether Sommer properly conducted the flow-bench test was a question for the jury to decide, not for the court to resolve as a matter of law. As a result, the trial continued and Lycoming's experts testified about the tests that they conducted on the accident fuel pump and their analysis of Sommer's flow-bench test data, which they testified showed no evidence of insufficient fuel flow. In response to Kedrowski's design-defect claim, Lycoming's experts also testified that a certain amountof internal leakage was known and accounted for in Lycoming's specifications and that there were no design defects. Lycoming also presented evidence, and argued, that the crash was due to pilot error.

In a special verdict form, the jury found no design defects or pilot error, but found that the accident fuel pump had unreasonably dangerous manufacturing defects and that these manufacturing defects caused the crash and thereby Kedrowski's injuries. The jury awarded Kedrowski $27.7 million in damages.

After the verdict, Lycoming renewed its arguments that there was insufficient foundational evidence for Sommer's causation opinion and that it was entitled to JMOL.¹ See Minn. R. Civ. P. 50.02. The district court granted Lycoming's post-verdict JMOL motion, determining that Sommer's causation opinion and the analysis of the results of the flow-bench test lacked foundational reliability, and that there was no other evidence sufficient to support Kedrowski's argument that the accident fuel pump caused the airplaneto crash. Because Kedrowski was unable to establish the necessary causation element, the district court concluded that Lycoming was entitled to JMOL.

Kedrowski appeals.

DECISION

Kedrowski argues that the district court erred in granting JMOL in favor of Lycoming and requests that we reverse and remand for reinstatement of the jury verdict and entry of judgment. Lycoming asks us to affirm the district court or, alternatively in a conditional cross-appeal, requests a new trial on liability and damages in the event of a remand.

I.

Minn. R. Civ. P. 50.01(a) allows for entry of JMOL after "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." After a jury returns its verdict, a party may renew its preverdict motion for JMOL under Minn. R. Civ. P. 50.02. A post-verdict grant of JMOL is proper when an expert's causation opinion "should not have been received because [it was] based on assumptions which were not established by the evidence." Rochester Wood Specialties, Inc. v. Rions, 286 Minn. 503, 509, 176 N.W.2d 548, 552 (1970). Under Minn. R. Evid. 702, "expert testimony is admissible if: (1) the witness is qualified as an expert; (2) the expert's opinion has foundational reliability; (3) the expert testimony is helpful to the jury; and (4) if the testimony involves a novel scientific theory, it must satisfy the Frye-Mack standard." State v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011) (citing Minn. R. Evid. 702).

The key issue in this case is whether there was foundational reliability to support Sommer's causation opinion that manufacturing defects in the accident fuel pump led to insufficient fuel flow to the airplane's engine, causing it to lose power and the airplane to crash. In considering the foundational reliability of an expert's testimony, rule 702 requires district courts to: (1) analyze the testimony in light of its proposed purpose; (2) take into account "the underlying reliability, consistency, and accuracy" of the testimony's subject matter; and (3) determine whether the proffered testimony is reliable. Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 167-68 (Minn. 2012). "The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999); see also In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525, 538-39 (Minn. 2012).

Minnesota appellate courts "review a district court's evidentiary rulings, including rulings on foundational reliability, for an abuse of discretion." Doe, 817 N.W.2d at 164. Even if we would have reached a different decision regarding the sufficiency of foundation, we will not reverse the district court's decision absent a clear abuse of discretion. Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 761 (Minn. 1998); see also Kumho Tire Co. v. ...