967 F. Supp. 2d 479
D.N.H.2013Background
- December 2008: Kurt West piloted a Bell 407 with a Rolls‑Royce engine and a FADEC/ECU; mid‑flight the engine flamed out and West made an autorotation landing, suffering injuries and alleged worsening of preexisting GI disorder and PTSD.
- West sues Bell Helicopter Textron, Rolls‑Royce, and Goodrich successor for product defect (theory: ECU falsely registered an electrical impulse as an overspeed event — “FOSSA” — closing fuel valve). Defendants blame ice/snow ingestion and/or pilot error in autorotation.
- Extensive expert disclosures and Daubert/FRE 702 challenges were filed by both sides; court held a pretrial hearing and ruled on multiple motions to exclude or limit expert testimony and other evidentiary issues.
- Key disputed evidentiary topics: admissibility/limits on liability experts (Chen, Bloomfield), medical causation (Dr. Agarwal), psychiatric opinion on life‑expectancy (Dr. Ford), cellphone and de‑icing evidence, NTSB Board accident report, evidence of other accidents and remedial measures, and undisclosed lay witnesses offering expert opinions.
- Court applied Daubert/Rule 702 gatekeeper analysis, FRE 401/402 relevance, FRE 403 prejudice balancing, FRE 407 (subsequent remedial measures), Rule 26/37 discovery‑sanctions standards, and 49 U.S.C. § 1154(b) re NTSB reports.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Chen and Bloomfield liability opinions | Their engineering/system opinions reliably show ECU FOSSA caused flameout | Defendants attack methodology, relevance, and some specific sub‑opinions | Court denied most challenges as going to weight; excluded opinions speculating that a revised FADEC (not installed) would have prevented crash as irrelevant |
| Dr. Agarwal — causation for worsened GI condition | Crash caused significant exacerbation; used differential diagnosis and literature/clinical experience | Defendants: insufficient data to rule out natural progression; relied on anecdote | Court admitted the causation opinion (denied exclusion); permitted voir dire outside jury and preservation to renew exclusion later; allowed supplemental report; excluded topics Agarwal disclaimed expertise on |
| Dr. Ford — life expectancy and PTSD contribution to GI worsening | Life‑expectancy risk and PTSD contributing to GI exacerbation | Defendants: life‑expectancy not recoverable under NH law; PTSD‑GI link challenged because Ford is not a gastroenterologist | Court excluded opinion on shortened life expectancy as irrelevant under NH law; allowed Ford to testify that PTSD contributed to GI worsening (can rely on Agarwal) |
| Cellphone use evidence | Cellphone use irrelevant to causation; last call ended >10 minutes before flameout | Defendants: earlier calls allow inference of distraction later (texting, browsing) | Court barred expert testimony that cellphone use distracted or caused crash (irrelevant/speculative); allowed limited admissibility of cellphone use to impeach West's ability to observe pre‑flameout helicopter behavior up to ~10 minutes before event |
| NTSB Board accident report | West sought to use report or experts to rely on it | Defendants argued statute and NTSB regs bar use | Court barred use of the NTSB Board accident report or reliance on it by experts under 49 U.S.C. § 1154(b) and NTSB regs; factual investigator reports remain available per regulation |
| Evidence of other accidents and remedial measures | West sought to admit other Bell/FADEC incidents to prove common defect and notice | Rolls‑Royce/Goodrich argued dissimilarity, prejudice, or Rule 407 exclusion for post‑accident upgrades | Court allowed evidence of prior accidents as substantially similar under plaintiff’s FOSSA theory (differences go to weight); excluded evidence of subsequent remedial measures (post‑accident ECU upgrades) under Rule 407; some pre‑accident/post‑manufacture updates excluded as irrelevant |
| Undisclosed lay witnesses offering expert opinions | West contended experienced pilots/mechanics may give lay opinion based on experience | Defendants: such testimony is expert testimony requiring Rule 26(a)(2) disclosure | Court precluded any undisclosed witnesses from testifying as experts (excluded expert opinion from Newcomb, Sharkey, etc.); allowed lay testimony limited to personal, non‑specialized observations |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (gatekeeping standard for expert testimony)
- Crowe v. Marchand, 506 F.3d 13 (1st Cir. 2007) (Rule 702 framework)
- Levin v. Dalva Bros., 459 F.3d 68 (liberal interpretation favoring admissibility of experts)
- Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248 (differential diagnosis as method)
- Milward v. Acuity Specialty Prods. Grp., 639 F.3d 11 (weak factual underpinning affects weight not admissibility)
- Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1 (expert may rely on other experts' opinions; affects weight)
- Moulton v. Rival Co., 116 F.3d 22 (admissibility of prior accidents requires substantial similarity)
- Chiron Corp. v. NTSB, 198 F.3d 935 (statutory bar on admitting Board accident reports interpreted strictly)
- Harriman v. Hancock County, 627 F.3d 22 (mandatory preclusion sanction for failure to disclose expert under Rule 26)
- Weir v. Crown Equip. Corp., 217 F.3d 453 (irrelevant design changes not causally related are inadmissible)