Lynn v. Helitec Corp.
| Decision Date | 18 December 1984 |
| Docket Number | CA-CIV,Nos. 1,s. 1 |
| Citation | 698 P.2d 1283,144 Ariz. 564 |
| Parties | Bernadette Marie LYNN, surviving spouse of Charles L. Lynn, Jr., deceased; Mary M. Baker, a widow; Claudeen Moseley, surviving spouse of Thomas Allen Moseley, deceased, for herself and as next friend and natural Guardian of the minor children of herself and Thomas Allen Moseley: Rebecca Deen Patterson (Moseley), William Davis Moseley, Benjamin Evon Moseley, Jonathan Allen Moseley, and Debra Warren (Moseley), Plaintiffs-Appellants, v. HELITEC CORPORATION; Globe Air, Inc.; AFG Corporation; Aircraft Specialties, Inc.; Aviation Specialties Company, Defendants-Appellees. 5499, 1 5712. |
| Court | Arizona Court of Appeals |
This appeal involves three consolidated wrongful death actions arising out of a May 11, 1975 airplane crash near Falcon Field in Mesa, Arizona. The plane crashed shortly after takeoff, killing all aboard including Charles Lynn, Thomas Moseley, and Basil Baker. After a lengthy jury trial the trial court entered judgment on a jury verdict in favor of the defendants-appellees.
On appeal the appellants raise two issues:
(1) Whether the trial court erred in precluding use of the pre-trial deposition of appellees' expert witness, Charles Carel, for cross-examination purposes;
(2) Whether the trial court erred in excluding testimony of Calvin Frieswyk.
The essential facts are: In 1973 appellee Aviation Specialties purchased the Super Constellation L-1049, designated N45516, from the City of Anchorage, Alaska. The plane remained in Anchorage for some time. In the summer of 1974 engines number two and three 1 were replaced. In August of that year the aircraft was flown to Falcon Field in Mesa. The plane did not fly again until a May 6, 1975 test flight.
Prior to the test flight Aviation Specialties ordered the installation of an anti-detonation injection (ADI) system. This system is designated to improve the cooling process in the engines and to enable the plane to use 100/130 octane fuel. Use of the ADI system generates more power with a lower grade fuel than would otherwise be feasible.
After the May 6, 1975 test flight the aircraft next flew on its fatal May 11th flight. On May 11th the plane began its take-off along the main runway at Falcon Field with a crew of three and three passengers. Thomas Moseley served as pilot, Charles Lynn served as flight engineer and Basil Baker, a mechanic, was a passenger on N45516. Moments after take-off, with the right main landing gear failing to retract, smoke began to stream from the rear of the number two engine nacelle. 2 The plane crashed shortly thereafter, killing all persons aboard. An examination of the wreckage revealed that the crew had feathered 3 engine number three sometime after takeoff. Also, all engines exhibited evidence of detonation. 4 Further facts will be set forth in the discussion of issues to which they relate.
At trial the appellees' accident reconstruction expert, Hubert Charles Carel, an aeronautical engineer, testified on direct examination that, in his opinion, crew mismanagement of the power caused the crash. On cross-examination the attorney for one of the appellants attempted to question Carel about Carel's August 29, 1979 deposition testimony in which he stated that one contributing factor to the crew mismanagement was a fire during takeoff in the number two engine nacelle. Appellees objected to this line of inquiry on the ground that the deposition testimony assumed facts not in evidence at the trial. Specifically, appellees claimed that Carel's opinion that a fire occurred was based on a hearsay statement of an eyewitness, Mr. Losey, contained in the National Transportation Safety Board (NTSB) report of the accident. Mr. Losey was not called as a witness by either party, nor was the NTSB report introduced into evidence. 5 The trial court sustained appellees' objection.
Carel's opinion of the cause of the crash never varied. He believed that the crash was caused by crew mismanagement of the power setting and so testified at trial. What did change was Carel's predicate to the crew mismanagement. In his deposition it was apparently Carel's opinion that there was a fire in the number two engine nacelle, that the flight engineer failed to put out the fire, that the fire then caused confusion of the crew, and as a result the crew mismanaged the power settings. At trial Carel simply testified that the crash was caused by crew mismanagement of the power without reference to the alleged fire in the number two engine nacelle. It was on this point that the appellants sought to impeach Carel with his prior allegedly inconsistent statement.
The record before us reveals the following in chambers arguments:
MR. COPPLE: ...
To clarify it, Judge, let me read the explanation that Mr. Carel gave in his deposition [apparently taken November 4, 1979].
Now, let me preface this by saying the question that was asked just previously was:
"What was the source of the smoke? And he said, "Hydraulic or oil."
Then he is asked whether he changed the opinions that he had in his deposition. He says,
[MR. COPPLE]
And then he goes on to say: "There is no physical evidence of fire to the engine."
Rule 703, Arizona Rules of Evidence, provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The comment to rule 703 explains:
This rule, along with others in this article, is designed to expedite the reception of expert testimony. Caution is urged in its use. Particular attention is called to the Advisory Committee's note to the Federal Rules of Evidence which accompanies Federal Rule 703. In addition, it should be emphasized that the standard "if of a type reasonably relied upon by experts in the particular field" is applicable to both sentences of the rule....
The Advisory Committee's Note to Federal rule 703 states:
If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data "be of a type reasonably relied upon by experts in the particular field." The language would not warrant admitting in evidence the opinion of an "accidentologist" as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied.
An expert's opinion may properly rely on facts and data from only three sources: (1) facts admitted into evidence at trial, (2) facts personally perceived by the expert, and (3) facts of a type reasonably relied upon by experts in the particular field. 11 Moore's Federal Practice pp 703.02, 703.10 (2d ed. 1982). See Baumholser v. Amax Coal Co., 630 F.2d 550 (7th Cir.1980); Ariz.R.Evid. 703; Udall & Livermore, Law of Evidence § 23, p. 38-41 (2d ed. 1982). None of the evidence admitted at trial indicated a fire in the number two engine nacelle. Nor did Carel have any personal perceptions indicating a fire.
Appellants, however, assert that Carel relied on the NTSB report, which is a type of evidence reasonably relied upon by experts in this area. The NTSB report contained Losey's statement. The above excerpt reveals that Carel's opinion expressed in the August 29th deposition relied on the hearsay statement of Losey, an eyewitness, contained in the NTSB report. The appellees do not contest appellants' characterization of Carel's deposition testimony. The source at issue here is Losey's statement, not the NTSB report. The test for admissibility of an expert's opinion based on facts not in evidence is whether the source relied upon by the expert is reliable. Baumholser v....
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