West v. Bell Helicopter Textron, Inc.

• Decision Date: 09 September 2013
• Docket Number: Civil No. 10–cv–214–JL.
• Citation: 967 F.Supp.2d 479
• Parties: Kurt WEST v. BELL HELICOPTER TEXTRON, INC. et al.
• Court: U.S. District Court — District of New Hampshire

967 F.Supp.2d 479

Kurt WEST

v.BELL HELICOPTER TEXTRON, INC. et al.

Civil No. 10–cv–214–JL.

United States District Court,

D. New Hampshire.

Sept. 9, 2013.

Jesse M. Boodoo, Justin J. Wolosz, Sara Gutierrez Dunn, Joan A. Lukey, Ropes & Gray LLP, Boston, MA, for Kurt West.

John P. O'Flanagan, L. Robert Bourgeois, Banker Lopez Gassler, PA, Tampa, FL, Martha C. Gaythwaite, Phillip S. Bixby, Marie J. Mueller, Verrill Dana LLP, Portland, ME, Brian M. Quirk, Preti Flaherty Beliveau Pachios PLLP, Concord, NH, James C. Wheat, Jeffrey H. Karlin, Pierre A. Chabot, Wadleigh Starr & Peters, Manchester, NH, Jason L. Vincent, Fitzpatrick & Hunt, Tucker, Collier, Pagano, Aubert LLP, New York, NY, for Bell Helicopter Textron, Inc. et al.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

In December 2008, a helicopter piloted by the plaintiff, Kurt West, crashed to the ground in Bow, New Hampshire. West survived the crash, but suffered injuries. He then brought this products liability action against the manufacturer of the helicopter, defendant Bell Helicopter Textron, Inc.; the manufacturer of its engine, defendant Rolls Royce Corporation; and the successor-in-interest to the manufacturer of the helicopter's electronic control unit (“ECU”), defendant Goodrich Pump & Engine Control Systems, Inc. This court has subject-matter jurisdiction over this action between West, a Massachusetts citizen, and the defendants, citizens of other states, under 28 U.S.C. § 1332(a)(1) (diversity).

Though many of the underlying facts of this case remain sharply disputed as trial nears, the parties more or less agree to the following. Since obtaining his license in the late 1990s, West has worked as a helicopter pilot. In late December 2008, a few days before Christmas, West took off from an airfield in Connecticut, piloting a Bell 407 helicopter equipped with a Rolls Royce engine, which was in turn equipped with a “Full Authority Digital Engine Control” or “FADEC” system, including an ECU, manufactured by a successor-in-interest to Goodrich. The purpose of West's solo flight was to move the helicopter to a hangar in Pembroke, New Hampshire, owned by West's employer, JBI Helicopters. Before West's flight, the helicopter had been kept outside in wintry conditions at the airfield in Connecticut.

About 45 minutes into the flight, the helicopter's engine lost power, requiring West to attempt to land through a technique known as “autorotation.” West succeeded in putting the helicopter down on a residential street, but the force of the landing caused him injuries, including, he claims, a worsening of his pre-existing gastrointestinal syndrome. West also suffers from post-traumatic stress disorder (“PTSD”) as a result of the crash, though the parties dispute the severity of that condition.

The parties also dispute what caused the engine in West's helicopter to lose power, or “flame out.” West alleges that the flame-out resulted from a defect in the FADEC that caused the closure of a valve supplying fuel to the engine—specifically, that the ECU mistakenly registered an errant electric signal from the circuit board as an “overspeed” event necessitating that the fuel supply be cut. This is known as a “false overspeed solenoid activation,” or “FOSSA,” event. The defendants attack this theory on several grounds. They argue that the engine lost power because it ingested ice or snow left on the helicopter as a result of its improper cleaning by West and a co-worker before West took off from the airfield in Connecticut. The defendants also say that West improperly executed the autorotation procedure, adding to the impact of the landing.

The parties have filed several motions seeking to exclude proffered expert testimony and other evidence from the upcoming jury trial. The court heard oral argument on these motions on the record following the final pre-trial conference in this matter. The court's rulings on those motions follow.

I. Expert challenge motions

West and the defendants challenge much of each other's anticipated expert testimony. “The touchstone for the admission of expert testimony in federal court litigation is Federal Rule of Evidence 702.” Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir.2007). Under that rule,

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. As the structure of this rule suggests, before the factfinder in a case can consider expert testimony over the adverse party's objection, the trial judge, serving as “gatekeeper,” must determine whether the testimony satisfies the relevant foundational requirements. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

While the party seeking to introduce the testimony bears the burden of proving its admissibility, id. at 592, 113 S.Ct. 2786, the burden is not especially onerous, because “Rule 702 has been interpreted liberally in favor of the admission of expert testimony.” Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir.2006). Like all evidence, expert testimony is admissible only if it relevant, i.e., if it has any tendency to make a fact of consequence to the action more or less probable than it would be without the testimony, Fed.R.Evid. 401. See, e.g., United States v. Pena, 586 F.3d 105, 110 (1st Cir.2009). Applying these standards, the court makes the following rulings on the parties' motions challenging each others' experts.

A. Defendants' motions to limit Chen's testimony (doc. nos. 158, 160, 163)

The defendants move to exclude several anticipated opinions from Peter Chen, a mechanical engineer West has retained to testify as to the cause of the accident. The defendants' objections to these opinions go largely to their weight, rather than their admissibility. The one exception is Chen's proffered opinion that the revised version of the FADEC (released at the time of West's accident but not installed in his helicopter) would have prevented the crash. This opinion appears to based on the theory that the revised FADEC would have warned West of the FOSSA event but, even if that is so, there is no reason to believe that the warning would have enabled West to avoid the crash or to lessen its impact. So that opinion is excluded as irrelevant. SeeFed.R.Evid. 401, 402. But these motions are otherwise denied insofar as they seek to limit Chen's testimony.

B. Defendants' motions to limit Bloomfield's testimony (doc. nos. 158, 159)

The defendants move to exclude several anticipated opinions from John Bloomfield, a systems engineer West has retained to testify as to the cause of the accident. Many of the defendants' objections to Bloomfield's expected testimony depend either on their view of the anticipated trial evidence, which West disputes, or their characterization of Bloomfield's deposition testimony, which the court does not entirely share. The exceptions are Bloomfield's opinions that (1) ice and snow did not cause the crash, since he acknowledged at his deposition that, given his lack of expertise with aircraft engines, he has no opinion on that subject; in any event, this opinion is also cumulative to Chen's, (2) a planned upgrade to the capacitors in the ECU would have prevented the crash, an opinion that West does not defend in his objection to the motion, and (3) the revised FADEC would have prevented the crash, which is inadmissible for the reason set forth at Part I.A, supra. Accordingly, the motions are granted as to those opinions, but otherwise denied.

C. Defendants' motion to limit Dr. Agarwal's testimony (document no. 170)

West has long suffered from gastrointestinal (“GI”) problems, including, for at least seven years prior to the crash, intermittent abdominal pain and loose stools, and, for about 19 months or so before the crash, constipation. West reported, in fact, that prior to the accident he was having only one bowel movement each week and that “every once in a while” he would experience constipation, accompanied by nausea and vomiting, that was relieved only by an enema. About six months prior to the accident, West was diagnosed with pelvic floor dysmotility, a progressive weakening of the muscles surrounding the anus that work to expel stool, resulting in chronic constipation.

West has retained Dr. Suresh Agarwal to testify as to whether the helicopter crash caused West's pre-existing GI problems to worsen. Dr. Agarwal, now the chief of trauma, acute care surgery, and burn and surgical care at the University of Wisconsin Hospital, previously held a similar position at Boston University Medical Center, where he practiced for nearly ten years. He has also held academic appointments at both institutions. Dr. Agarwal practices both trauma surgery (treating patients suffering from injuries caused by external forces) and acute care surgery (treating patients suffering from emergent conditions like gall bladder disease, obstructed hernias, and a variety of colonic diseases). While at Boston University, Dr. Agarwal also maintained a “fairly busy elective practice in which [he] took care of basically anything that was in the abdomen.”

1. Causation opinion

Based on reviewing West's medical records, and speaking with him for an hour or so by telephone, Dr. Agarwal has formed the opinion that the helicopter crash “caused, or significantly contributed to causing, [an] exacerbation” in West's GI condition so that he “has virtually lost all ability to pass solid waste on his own,” i.e., without assistance from an enema. Dr. Agarwal opines that...