Free Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-K-2056

UNITED STATES AVIATION UNDERWRITERS, INC. a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, Vs.

PILATUS BUSINESS AIRCRAFT, LTD, a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation, PILATUS AIRCRAFT, LTD, A Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

Defendants Pilatus Business Aircraft, Ltd, Pilatus Flugzeugwerke Aktiengesellschaft and Pilatus Aircraft, Ltd (collectively "Pilatus") hereby move the court for Summary Judgment. This motion is made on the grounds that, although plaintiffs alleged strict product liability and negligence in their complaint, by the close of discovery they offered no evidence of defect, either manufacturing or design and no evidence of negligence. In addition, testimony by plaintiffs' expert David Rupert as to the cause of the incident is inadmissible because it is based on self-proclaimed expertise, insufficient and unreliable facts, subjective belief and unsupported speculation, not actual knowledge and it fails to eliminate other possible sources as highly improbable or demonstrate that power turbine blade failure is highly probable.

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Case 1:01-cv-02056-JLK

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This motion shall be supported by the attached Memorandum, and documents. DATED this 17th day of October 2005. By__/s Robert Schultz_______________________ Robert Schultz Law Office of Robert B. Schultz 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 E-mail [email protected] Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

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Case 1:01-cv-02056-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-K-2056

UNITED STATES AVIATION UNDERWRITERS, INC. a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, Vs.

PILATUS BUSINESS AIRCRAFT, LTD, a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation, PILATUS AIRCRAFT, LTD, A Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

PILATUS DEFENDANTS' MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT MOTION

I. Introduction In their complaint, plaintiffs alleged that while in cruise flight, "the aircraft experienced a sudden, unexpected and catastrophic failure of the engine." That is simply not true. Based on the pilot's own statement, he deliberately shut down the engine after experiencing what he described as vibration, whining noise and surging followed by a temperature spike and popping and grinding noises (called "abnormal engine symptoms" by plaintiffs' expert). Significantly, however, the engine continued to produce thrust until was shut down. Neither the pilot's reason for shutting down the engine nor what would have happened had he not shut down the engine are at issue in this motion. At issue is whether, at the close of
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discovery, plaintiffs have offered any admissible evidence that the abnormal engine symptoms described by the pilot were caused by an engine defect. Since the aircraft was never recovered, there is no physical evidence. The testimony of David Rupert, plaintiffs' expert witness regarding the cause of the abnormal engine symptoms is inadmissible because it is based on self-proclaimed expertise, insufficient and unreliable facts, subjective belief and unsupported speculation, not actual knowledge and it fails to eliminate other possible sources as highly improbable or demonstrate that power turbine blade failure is highly probable. In addition, plaintiffs offered no expert testimony on the issue of defect, a necessary element in a strict product liability case. Indeed, plaintiffs' own expert said that without physical evidence, we can never know if there was a defect in the engine. In their complaint, plaintiffs allege strict liability for defective design and manufacturing under Colorado's Product Liability Act C.R.S. §13-21-401 et. seq. and negligence. Their F.R.C.P. Rule 26a(2) expert disclosures and depositions of those experts rule out design defect and negligence leaving manufacturing defect as their sole remaining cause of action. Since plaintiffs offered no evidence of a manufacturing defect, the entire case must be dismissed. II. Undisputed Facts In response to a request by the National Transportation Safety Board (NTSB), the pilot provided a written signed statement approximately three days after the incident. For the purpose of this motion, Pilatus assumes everything the pilot said in his sworn NTSB statement is true and correct. (Attached as Exhibit A-2) According to Pilot Smith's statement he "experienced an engine malfunction en route from Hokdate, Japan to Magadan, Russia on July 8 2001 ... The engine started to vibrate and [he] heard a whining noise just in front of the fire wall. Within a

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few seconds the engine began to surge. ... [He] advanced the PCL [Power Control Lever] forward but saw no change in engine surge and vibration and noise. [He] advanced the MOR [Manual Over Ride] lever past the detent and observed the ITT [Inter Turbine Temperature] suddenly reach 1144 C. [He] reduced the PCL to idle, but the ITT remained at 1144 C and the engine was making popping and grinding noises during this event. [He] moved the condition lever [engine shut down] to the idle cutoff/feather position. The prop feathered and came to a sudden grinding stop. At 4000 ft. [he] tried an engine restart ... ITT began to rise but the prop did not rotate. [He] aborted the start attempt." Note the engine never failed. It was shut down by the pilot. Indeed the engine restarted but was shut down a second time before the propeller had an opportunity to rotate. The subject Pratt & Whitney PT6A-67B, was a turbo-prop engine. That is, the propeller was driven by the thrust from a gas turbine engine rather than a piston engine. For the benefit of the court, picture two electric fans placed face to face. Turn on one fan and its thrust will drive the second fan. If the second fan is attached to a propeller, it is essentially a turbo-prop engine. On the subject engine, a second turbine section, like the second fan, drives the propeller. The second turbine section is called the "power turbine." There are actually two turbines in series called first and second stage turbines. The fan blades on these turbines are called power turbine (PT) blades. Plaintiffs allege the abnormal engine symptoms described by the pilot prior to his shutting the engine down were caused by a power turbine blade failure of unknown cause.

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III Arguments A. To Avoid Summary Judgment, Plaintiff Must Offer Proof Of Each Element Set Forth in Section 402A Of The Restatement (Second) Of Torts. "In Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983, 988 (Colo. 1975), the Supreme Court of Colorado expressly adopted the doctrine of strict liability in tort for selling a product in a "defective condition unreasonably dangerous to the user or consumer" as stated in section 402A of the Restatement (Second) of Torts. To avoid a directed verdict in a strict liability action brought under Colorado law, a plaintiff must offer proof of each element set forth in section 402A sufficient to create an issue of fact. Belle Bonfils Mem'l Blood Bank v. Hansen, 665 P.2d 118, 125 n.12 (Colo. 1983)." Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) B. Plaintiffs' Expert Testimony That The Engine Noises Were Caused By A Power Turbine Blade Failure Is Inadmissible Because It Is Based on Self-proclaimed Expertise, Insufficient And Unreliable Facts, Subjective Belief and Unsupported Speculation, Not Actual Knowledge And it Fails To Eliminate Other Possible Sources As Highly Improbable or Demonstrate That Power Turbine Blade Failure Is Highly Probable. 1. To be admissible, expert testimony must be "based upon sufficient facts or data," "the product of reliable principles and methods," and these principles and methods must be applied "reliably to the facts of the case. Rule 104 of the Federal Rule of Evidence provides that preliminary questions concerning the qualifications of a person to be a witness or the admissibility of evidence shall be determined by the court. In the context of expert testimony, the trial court's preliminary assessment must

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consider "whether the reasoning or methodology underlying the [expert] testimony is scientifically valid and [] whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Moreover, generally, in order to be admissible, a qualified expert witness' testimony must be "based upon sufficient facts or data," "the product of reliable principles and methods," and these principles and methods must be applied "reliably to the facts of the case." Fed. R. Evid. 702. 2. An expert's self-proclaimed expertise is insufficient to satisfy Rule 702. which requires that expert testimony be based on actual knowledge and not subjective belief or unsupported speculation. Experts must not only be qualified, but must also offer opinions that are reliable and relevant. In that regard, "although an expert witness is permitted wide latitude to offer opinions, including those which are not based on first-hand knowledge or observation, the opinions must have a reliable basis. The witness' self-proclaimed expertise is insufficient to satisfy Rule 702. Lovato v. Burlington Northern & Santa Fe Ry., 2002 U.S. Dist. LEXIS 16844, 7-9 (D. Colo. 2002). at 14. Rule 702 requires that expert testimony be "based on `actual knowledge and not `subjective belief or unsupported speculation.'" Id., citing Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999). 3. The method employed by the expert in reaching his or her conclusion must be scientifically sound and the opinion must be based on facts that sufficiently satisfy Rule 702's reliability requirements.

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In Mitchell, the Tenth Circuit held that expert testimony must be supported by "appropriate validation ­ i.e. `good grounds,' based on what is known." Mitchell, 165 F.3d at 781 (citing Daubert, 509 U.S. at 590). Thus, although the plaintiff does not need to prove that the expert is indisputably correct or that the expert's theory is "generally accepted in the scientific community, the plaintiff does need to show that "the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702's reliability requirements." Id. The analysis of reliability may apply to the expert's data, the expert's method or to the expert's application of the method to the data. "Under Daubert, any step that renders the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology." Id. at 782 (quoting In re Paoli RR Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994.) 4. A tentative or speculative opinion is inadmissible. The Tenth Circuit routinely excludes from trial expert testimony that is based on speculation. In Jetcraft Corp., the Circuit made a ruling excluding expert testimony in a case involving the crash of an airplane during a training flight. Jetcraft Corp. v. Flight Safety International, 16 F.3d 362 (10th Cir. 1993). Note also Eastridge Dev. Co. v. Halpert Associates, Inc., 853 F.2d 772, 783 (10th Cir. 1988), where the court likewise found that the "tentative and speculative nature" of the expert witness' proposed testimony made the trial court's exclusion of such evidence proper.

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5. It is proper to exclude an opinion for which too great an analytical gap exists between the data and the opinion proffered. To be admissible expert testimony must be based on actual knowledge and not subjective belief or unsupported speculation. While a court should focus on an expert's methodology rather than his or her conclusions, the conclusions are not "immune from scrutiny" and in fact, a court "may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Hollander v. Sandoz Pharms. Corp., 289 F.3d 1193, 1206 (10th Cir. 2002), citing G.E. v. Joiner, 522 U.S. at 147. The court further stated that admissible expert testimony must be based on "actual knowledge and not subjective belief or unsupported speculation." Id. 6. To form a sufficient and reliable basis for an expert opinion, prior accidents must be substantially similar to the accident involved in the case at hand. To be admissible, expert testimony must also be relevant to the task at hand. Bitler v. A.O. Smith Corp., 400 F. 3d 1227, 1233 (10th Cir. 2005) (quoting Daubert, 509 U.S. at 597.) In Bitler, the Tenth Circuit dealt with the interrelated issue of admission of evidence of prior accidents. The court held that it would admit evidence of prior accidents if they were relevant, and that relevancy was based on whether there was a "substantial similarity" in the "circumstances surrounding the other accidents" and the accident involved in the case at hand. Id. at 1239, citing Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir. 1988); Black v. M & W Gear Co., 269 F.3d 1220, 1227 (10th Cir. 2001). The court held that the greater the degree of similarity, the more relevant the evidence, but that this was a "fact-specific inquiry that depends largely on the theory of the underlying defect in a particular case." Id. citing Four Corners Helicopters, Inc. v. Paton, 979 F.2d 1434, 1440 (10th Cir. 1992).

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7. An expert's opinion must eliminate other possible sources as highly improbable, and must demonstrate that the cause identified is highly probable. In relation to expert testimony, the court held that experts inferring "the best explanation for the cause of an accident" must provide "more than mere possibility" and also "eliminate other possible sources as highly improbable, and must demonstrate that the cause identified is highly probable." Id. at 1238. Further embracing the Joiner standard, the Tenth circuit held that "when the conclusion simply does not follow from the data, a district court is free to determine that an impermissible analytical gap exists between premises and conclusion." Id. at 1233, citing Joiner, 522 U.S. at 146. 8. David Rupert's conclusion that the abnormal engine symptoms described by the pilot were caused by a power turbine blade failure fails to meet the admissibility standards set forth in FRE Rule 702 and Tenth Circuit opinions. David Rupert is the only witness offered by plaintiffs as a failure analysis expert. (Separate Statement of Undisputed Material Facts attached as Exhibit A-1 "Undisputed Facts" para.1) His opinion is that the abnormal engine symptoms described by the pilot were caused by a power turbine blade failure. (Undisputed Facts para.2) This conclusion, he said, is based on "several reported incidents involving power turbine blade failures in PT6A-67D engines." (Undisputed Facts para.3) But the subject engine, a PT6A-67B, is not the same as the PT6A-67D engines Rupert said he used as his factual basis. (Undisputed Facts para. 4) The "reported incidents" that form the factual basis for Rupert's opinion were reported in service difficulty reports (SDRs). (Undisputed Facts para.5) None of the SDRs that form the factual basis for Rupert's opinion involve the subject airplane, a Pilatus PC-12, the subject

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engine, a Pratt & Whitney PT6A-67B or the subject power turbine blade, part number 304418301. (Undisputed Facts para.6) Accordingly, none of the facts, i.e. "reported incidents involving power turbine blade failures in PT6A-67D engines" support Rupert's opinion that a power turbine blade failure occurred in the subject engine on the subject airplane. Without reliable relevant facts to support his opinion, it is mere speculation and inadmissible. C. Plaintiffs Failed To Offer Proof That The Subject Power Turbine Blades Did Not Conform To The Manufacturer's Specifications, An Essential Element Of a Manufacturing Defect Case. Indeed, Plaintiffs no Evidence of a Defective Power Turbine Blade. In a manufacturing defect case, plaintiffs must offer proof that the product failed to conform to the manufacturer's specifications and was defective when it was sold. "[A] plaintiff must offer sufficient evidence that the product at issue was in a "defective condition unreasonably dangerous" at the time the product was sold to the plaintiff. White v. Caterpillar, Inc., 867 P.2d 100, 104-05 (Colo. Ct. App. 1993). . . . "The question in manufacturing defect cases is whether the product as produced conformed with the manufacturer's specifications." Camacho v. Honda Motor Co., 741 P.2d 1240, 1247 (Colo. 1987)." Id at 792 Since plaintiffs offered no evidence of the power turbine blade specifications or of any nonconformity in the subject power turbine blades, they cannot prove an essential element of their manufacturing defect case. In fact, plaintiffs' failure analysis expert David Rupert did not even state in his Rule 26 report or testify in deposition what caused the alleged power turbine blade failure and he could

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not rule out causes other than a defect. (Undisputed Facts para.7) The SDRs which form the factual basis for Rupert's opinion do not specify the causes of the power turbine blade failures. (Undisputed Facts para. 8) Plaintiffs offered no evidence that any power turbine blade on any turbo-prop engine ever failed due to a manufacturing or design defect. (Undisputed Facts para. 9) Mr. Rupert admitted in his deposition that he did not know and without physical evidence, could not know what caused the power turbine blade failure. (Undisputed Facts para.10) Therefore, even if Rupert's opinion that a power turbine blade failure occurred in the subject engine is admissible, this evidence by itself is insufficient to create an issue of fact as to defect, an essential element of their case. (Undisputed Facts para.10) D. Plaintiffs' Offered No Evidence of a Design Defect or Negligence. Plaintiffs offered no evidence of design defect or any witness qualified to testify on this subject and no evidence of negligence. (Undisputed Facts para.11 and 12) V Conclusion For the foregoing reasons, summary judgment should be entered dismissing all of plaintiffs' claims for relief. RESPECTFULLY SUBMITTED this 17th day of October 2005. By__/s Robert Schultz_______________________ Robert Schultz Law Office of Robert B. Schultz 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 E-mail [email protected] Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of October 2005, I caused the forgoing SUMMARY JUDGMENT MOTION BY DEFENDANTS PILATUS BUSINESS AIRCRAFT, LTD, PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT AND PILATUS AIRCRAFT, LTD to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

__s/ Robert Schultz__________ Law Offices of Robert B. Schultz [email protected]

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