*1 Phyllis HUDGENS, Hudgens, J. Joe
Plaintiffs-Appellants,
v. HELICOPTERS/TEXTRON,
BELL
Defendant,
DynCorp, Defendant-Appellee. Crawford, Becky
Francis Mark
Crawford, Plaintiffs-
Appellants,
v.
DynCorp, Defendant-Appellee, Helicopters/Textron, Defendant. 02-12357,
Nos. 02-13284. Appeals,
United States Court of
Eleventh Circuit.
April
Edmondson, Judge, specially Chief opinion.
concurred and filed
Cox, Judge, speciahy Circuit con- opinion.
curred and filed *2 EDMONDSON, Judge, Chief
Before COX, Judges. BARKETT and Circuit BARKETT, Judge: Circuit Hudgens and Phyllis Joe and Plaintiffs appeal Becky Crawford Francis in favor of summary judgment grants of diversity ac- these defendant helicopter crash arising out of a tions Shelby County, Alabama.
Francis Crawford and Joe Army heli- piloting a States were United 1,May mission on copter on a Medivac separat- fin helicopter’s tail 1999 when aircraft, in a crash in resulting ed from injured. severely both men were which respective pilots Each of the and their August separate filed suits on wives District of Alabama. the Northern accident, investigations con- After the aircraft’s and the ducted manufacturer, Helicopters/Textron (“Bell”), sep- that the tail fin’s determined rupture a aration resulted from (“fin fin helicopter’s vertical forward struc- spar” “spar”), component or assembly by helicopter’s tural pilot’s tail rotor is attached blade An skin covers the carriage.1 external frame of which the structural McKee, Hare, Wynn, Newell & Bruce J. investigating authorities con- part. The Newton, AL, Birmingham, for Plaintiffs- rupture caused cluded that the Appellants. originated at a rivet hole near spar. of the fin base Clark, Bradford, Jr., Paul A.
Robert W. Hill, Carter, Franco, Black, Hill, part & Cole The accident UH-1, AL, “Huey,” or heli- Defendant-Appellee. “Flat Iron” fleet Montgomery, summary judgment grant court’s and the Crawfords district 1. Both the Helicopters as a defendant named Bell to Bell. they appeal the complaints, their but do not copters Army’s maintained Fort repeated mination that engagement of the Rucker base Alabama. Under UH-1 and related in heavy lifting models , of a contract terms entered into operations could fatigue create fractures *3 Army DynCorp, DynCorp and was to that compromise the fin spar. In an Army maintain aircraft located at the base. failures, prevent effort to such the FAA agreement required DynCorp to “de- directive mandated that operators civilian termine the ... airworthiness condition of modify of these models spar the fin in a aircraft required by applicable regular as manner designed to inspection facilitate publicatiоns. tions and Such a.determina- for cracks. The directive required that inspection, tion shall on be mainte- based such modifications completed be within the checks, operational flying nance and test flight first eight subsequent hours to the required applicable Army publica- as Thereafter, directive’s issuance. operators publications tions and directives.” The inspect were to the modified fin spar for contemplated by the contract have been cracks at during least once each subse- in entered the record in the form of quent eight time, hours of flight using a spection providing checklists and manuals bright light and a 10X magnifying glass to instructions for the maintenance and re- visibility enhance the fractures. In R.l-36, H, pair of UH-1 aircraft. See Tab 1998, Helicopter/Textron circulated a exhibits 1-3.2 One checklist identifies a “Military Alert Bulletin” advising likewise inspections completed every series of to be that cracks had been found on some air- flown; day pre- a another spars crafts’ fin and recommending “tap proce- scribes a more intensive sеries of hammer” dye penetrant and fluorescent intervals; dures to carried out at longer inspections 25 flight within hours manual, spanning a third well over a receipt bulletin’s 180-day thereafter at pages, prescribes appropriate thousand intervals. means for repairing variety of defects. Army personnel stationed at Fort Rucker Army is not bound the FAA’s DynCorp’s performance monitored to en- airworthiness directives or Bell’s alert bul- compliance sure with these instructions for operation letins in Army-owned its air- the maintenance of the UH-1 fleet. See Nonetheless, Army craft. officers re- R.l-36, G, 2; R.l-44, S, Tab Tab sponsible development inspection for the procedures pertaining to the UH-1 re- accident,
Prior to the several authorities warnings. viewed both the FAA and Bell familiar with Bell’s helicop- UH-1 line of R.l-36,. P, Reasoning Tab at 1-2. that its already ters had identified fin helicopters own UH-1 had not been en- problem that authorities later.identified gaged heavy-lifting operations and subject 1997, the cause of the accident. history using helicopters its UH-1 had Federal Aviatiоn Administration (“FAA”) accident, circulated an Di- been without decided “Airworthiness rective,” reported which the FAA’s deter- adopt inspection the recommended economy, 2. For the sake of all citations to the Dist. Ct. Case No. 99-S-2041-S. The Court will, indicated, record unless otherwise refer evidentiary has satisfied itself materi- appeal to the record on v. Bell als discussed in the text of this were Helicopters, Dist. Ct. Case No. CV 99-B- filed, form, in all instances identical in both 2042-S, any corresponding without reference cases. Helicopters, to the record in v. Bell Crawford Instead, discovery, Dyn- regi- necessary repairs.4 it adhered to a After protocols.3 Corp summary judgment during aids moved used men of its asserted basis entitlement flashlight were a inspections “government contractor defense” estab- mirror. U. inspection Boyle Technologies lished in v. United helicop- the accident the crash of After Corp., 487 U.S. S.Ct. however, ter, Army departed from its (1988). Boyle L.Ed.2d articulated procedures and instituted new apply three-pronged test for courts to of the concerns ex- reflective protocols protec- decide required when and Bell FAA advisories. pressed policymakers’ tion of discretion federal *4 provided Army for fre- Specifically, the im- preemption demands of state tort law inspections to be conducted with the quent posing design liability on contractors for glass, and for magnifying a 10X aid of gov- the products supplied defects to to periodic inspections made additional be ernment. examination, x-ray dye pen- fluorescent via identity impli- the facts Despite all etrant, Post-accident x- tap and hammer. summary by DynCorp’s cated motion for seven ray inspections of the other UH-1 judgment and Hudgens’ Craw- as within the Flat Iron led to helicopters fleet suits, separate fords’ the actions plaintiffs’ in the discovery of cracks vertical were dif- not consolidated and thus two aircraft. spars of four additional None judges ferent district court ruled on the eye to the naked these cracks were visible rejected plaintiffs’ Both ar- motions. X-ray. discovered they at the time were via gument government that contractor Although complaints originally their defects, applies only design defense additional causes of ac- stated numerous that the holding instead defense extends tion, Hudgens pri- and Crawfords now by kind contracts of the entered into DynCorp. negligent marily assert that DynCorp Army. Additionally, and the failing to properly evidentiary under Alabama law both that judges ruled parties, maintain the to make materials as submitted and/or Army appears prevented to have 3. The also based its have the failure of the tail section part although fact that decision in on the helicopter." para. of R.l-1 at 7. This designed modifications advisories described plaintiffs’ complaints follows assertion inspection, neither to facilitate bulletin rec- immediately precau- after a discussion of the problem a ommended solution to the created tions advised in the FAA and Bell bulletins. spar’s apparent susceptibility the fin interpret plaintiffs' We wanton- therefore P, fatigue fractures. at 1. An theory ness claim to rest on the that failure to Army spokesperson pointed also out in a let- precautions institute these rises to the level Shelby ter Richard that because to Senator under an intentional tort Alabama law. For being UH-1 reduced size in fleet was however, infra, the reasons discussed we do accident, preceding the the decade "assets DynCorp any responsibil- not believe that had major repair simply deemed in need of were ity precautions, the FAA institute and Bell retired from service.” Id. 2. accordingly summary judg- we sustain ment to the wantonness claim. plaintiffs Apart from claims which the con- summary ceded should dismissed before and Crawfords also asserted judgment, against there now remains claim negligent failure-to-warn in their com- claim "wantonness,” premised DynCorp for plaints, for the conceded but counsel allegation DynCorp "had full and com- argument. this claim at oral knowledge, dangers, plete but steps be taken which should in order to by slightly rulings ruling protects different that this defense DynCorp modified evidence, striking expert particular certain from the claims asserted genuine no issue of mаterial fact Hudgens showed and Crawfords. of the de- as to satisfaction begin with the district court’s deter- three elements.
fense’s government mination that contractor appeal, On and Crawfords applies defense to service contracts like Boyle’s government con- argue first the one between the DynCorp. apply tractor defense does not to service Alternatively, they argue that
contracts. Applicability I. Government Contrac- even if the contractor defense Army-DynCorp tor Defense district applies, court nonetheless Maintenance Contract striking expert opinion testimony erred in In Boyle, Supreme Court ad holding had demon- dressed the issue of “when a contractor any genuine strated the absence of issue of providing military equipment to Fed fact as to satisfaction of the material its *5 eral can Government be held hable under defense’s three elements. injury
state tort
for
law
caused
de
a
502,
sign
Boyle,
defect.”
Summary judgment
appropriate
when
uniquely
The
held that
Court
one area of
genuine
“there is no
mate-
issue as
procurement
federal
interest
is the
moving party
rial fact and ...
is enti-
equipment by the United States.
Id.
judgment.as
tled to a
a matter of law.”
56(c).
defining
“significant
what counts as a
con-
Fed.R.Civ.P.
motion for
flict,”
necessary
found it
to iden-
Court
summаry judgment
exclusively
rested
tify
“limiting principle”
pre-
a
that would
protection
its asserted entitlement
government
vent
contractor defense
government
contractor defense.
interfering unduly
operation
Accordingly,
See R.l-49.
we need
with
509,108
resolve
It
whether the district court erred
of state law. Id. at
S.Ct. 2510.
504,
five-justice majority,
Boyle,
5.
In his
for
common law.”
487 U.S. at
a
enterprise
Justice Scalia remarked that this
2510.
S.Ct.
has been characterized as one of "federal
designed
promote
all-or-
quires is not
in the notion of a
principle
a
found such
different classes
nothing
as that
term
rules
“discretionary function”
Rather,
Act.6 Id.
question
Tort Claims
is whether
Federal
contract.
used
The “selection of
liability
under
subjecting
108 S.Ct.
a contractor
military equip-
design for
appropriate
significant
a
law
create
state tort
would
discretionary function
is a
ment”
interest.
unique
a
federal
conflict with
merely
involves not
Co.,
it “often
sense because
966 F.2d
Equipment
Miller
Glassco v.
analysis
judgment as
but
engineering
Cir.1992).
(11th
would be
technical, military,
balancing many
hard-pressed to conclude
exceedingly
considerations,
including
even social
recognized
interest
unique
federal
greater
the trade-off between
specifically
signifi-
potential
Boyle, as well as
effectiveness.”
safety
greater
combat
law,
not like-
state
are
cant conflict with
held that
Accordingly,
Court
Id.
present
case.
wise manifest
mili-
against
tort law
of state
enforcement
design specifications and
formulation of
preempted
must be
inas-
tary contractors
protocols
articulation of maintenance
interfere with
operation
much as its
would
very same dis-
the exercise of the
involve
by government
of discretion
the exercise
military fleet of
to decide how a
cretion
making these sensi-
charged with
officials
Holding
readied.
airworthy craft will be
judgments.
policy
tive
con-
under state law for
contractor liable
maintaining military aircraft
scientiously
and Crawfords assert
according
specified procedures
contractor
Boyle recognized
government officials’ discretion
threaten
*6
pro-
only
parties
in the casе of
defense
holding con-
manner as
precisely the same
that since
They urge
curement contracts.
design
departing
for
tractors liable
liability
private
“[i]mmunity from tort
specifications.
rule,”
general
party
exception
con-
it
extended to service
ought not be
government con-
thus hold that the
We
DynCorp
tracts such as the one between
Boyle
ap-
recognized
tractor defense
Congress or
“until
and the United States
(cid:127)
the service contract between
plicable to
on the
Supreme
explicitly
act
Court
DynCorp.
Initial Brief at
precise
Hudgens’
issue.”
24;
Initial Brief
Crawfords’
II.
the Elements
Applying
lawmaking power
the common
agree that
Contractor
Government
government contractor de-
on which the
hastily
Defense
must not be
predicated
fense is
tort
liability
to limit
under state
invoked
DynCorp
In order for
to have
Nonetheless,
govern-
we think the
law.
defense, it must establish
benefit of this
Boyle
set forth
ment contractor defense
applicability
general
the defense’s
case.
clearly applies
present
its
Army,
but also
to its contract with
three elements set forth
satisfaction of
Boyle
specifically
referred
Although
contracts,
Supreme
to ensure
analysis it re-
Court
procurement
duty
discretionary
or
“discretionary
perform a
function
6. The FTCA uses the term
agency
employee
withholding
part
or an
the United States's
of a federal
function” in
Government,
dis-
consent to suit for:
whether or not the
of the
cretion involved be abused.
[a]ny
upon
...
the exercise or
claim
based
2680(a).
§
28 U.S.C.
performance
to exercise or
or the failure
conflict”
fed-
of an air
requisite “significant
conditioning-unit,
between
specifying
policy and state law exists under the
the cooling capacity
precise
eral
but not the
construction,
this case.
particular
circumstances
manner of
a state law im-
2510;
Boyle,
posing upon
at
U.S.
S.Ct.
the manufacturer of such
Glassco,
(stating
F.2d at 642
duty
units a
of care to include a certain
“three-part
inquiry
‘signifi-
safety
elaborates the
duty
feature would not
abe
iden-
test”).
prong
anything promised
cant conflict’
As the
tical to
the Govern-
ment,
Supremе Court articulated these three
contrary.
but neither
it
be
conditions,
liability may
imposed for
no
be
The contractor
comply
could
with both
“(1)
design
military equipment
defects in
if
its
obligations
contractual
and the state-
approved reasonably
prescribed duty
the United States
sug-
care. No one
(2)
precise specifications;
equipment
gests
generally
that state law would
(3)
specifications;
conformed to those
pre-empted in this context.
supplier
warned the United States
Boyle,
“specifications” tion was considered reflects the nature of the Government offi- cer, Boyle, merely it in and not case before involved the contractor itself.” 512,108 alleged design military defect in the of a Id. S.Ct. 2510.
helicopter’s escape hatch. In the context case, In this application of the defense’s case, present we rearticulate the prong design specifi- first directs us not to defense’s three elements to foreclose liabil- cations procedures. but to maintenance (1) if ity under state tort law the United judges Army’s Both district found the approved reasonably precise States main- guidelines maintenance to constitute a (2) procedures; DynCorp’s perfor- tenance comprehensive regime *7 mance of maintenance conformed to those expected supplement through any not to (3) procedures; DynCorp and warned the procedures specifically other than those dangers United States about the in reli- They set forth. pre- also found that the procedures ance on the that were known cautions advised the FAA and Bell had DynCorp but not to the United States. affirmatively deliberately been and omitted prescribed proce- from the maintenance Reasonably
A. Precise Maintenance agree. dures. We Procedures appeal, On concede that requirement prescribed that main- Army’s procedures maintenance were procedures reasonably precise tenance reasonably precise meaning within the necessary to ensure that a close relation- government contractor defense and ship duty exists between the contract im- DynCorp required that not to institute posed by government the federal and the any procedures prescribed expressly not duty application gov- state law that Army. Hudgens, the district ernment contractor preempt: defense will succinctly high degree court described If, example, precision Army publica- for the United con- of reflected in the States purchase setting inspection procedures tracts and installation tions forth 1336 repairs perform inspections or not The court summarized aircraft.
for UH-1 Army’s tech- specifically prescribed by the “Daily Inspection Checklist” Army’s Accordingly, nical we conclude manuals. inspections, “over 130 individual requiring publica- Army’s comprehensive helicop- eight general areas of covering precise inspec- reasonably tions dictated (internal citation at 6 See R.l-47 ter.” incorporate procedures that did not tion omitted). specifically Mechanics were precautions enumerated the FAA spar fin inspect the “vertical structed advisories. and Bell cover attachment driveshaft and vertical directly cracks in the area channel for degree gearbox attachment the 90
below Dangers B. Contractor Known to the (citation omitted). The at 7 fitting.” Id. But Not the States United Checklist,” Army’s “Phased Maintenance (rather turn next to the third than inspections complet- to be prescribing second) government element of intervals, required examina- at certain ed simply defense because it is contractor so along rib ... rivet “[v]ertical.fin tion of the in this notice easily met case. This ele- (access cracks fin 10.08 for row at station requires ment contractors to inform the holes).” Id. at topmost lighting thru dangers sup- “known omitted). (citation Army’s Finally, Boyle, not to the plier but United States.” Instructions, exceed Maintenance 512,108 plain- 2510. The 487 U.S. S.Ct. length, for a com- pages provided Dyn- argument tiffs conceded at oral assembly “tailboom” plete inspection Corp has satisfied this condition. Their gave and part, of which the record, by the concession is borne out repairing a vari- “specific instructions for Army which demonstrates that assembly, ety of defects the tailboom danger aware of the which the FAA well including cracks the forward Bell had a failure and associated with omitted). (citation Id. at fin.” vertical incorporated adopt precautions certain testimony procedures. its own In addition produced deposition within DynCorp deposition testimony, Vemmer, Vemmer’s Ralph an aeronautical C. Army has submitted letters written employed by the division engineer spokesperson shortly after the accident ac- manu- develops these instructions knowledging awareness of the advisories an- Tab F. Vemmer als. See explaining imple- not to decision in the affirmative when asked swered precautions. ment recommended See FAA Bell advisories were whether the *8 O, thus hold Tab P. We the inspection from the “suggested deviations government third condition the contrac- previously had and maintenance which respect to be tor defense satisfied with to by at 217. approved Army.” the Id. been dangers engendered by non-implemen- the agreed precautions that the also Vemmer by procedures tation of the advised the implemented on not have been “should FAA and Bell. Army until the authorized Army aircraft Id. procedures.” such Inspection C. With Conformance no Hudgens present and The Crawfords Procedures contesting assertions
evidence
Vemmer’s
and;
above,
at
they
as mentioned
conceded
Our discussion thus far establishes that
duty
DynCorp
failing
that
had no
cannot be held hable
argument
DynCorp
oral
procedures
Army procedures
to
the
recommended
conformance with
institute
has
to
question
been reduced
the
of whether
Army
and the FAA.
instructions
the
fin spar
crack in the
the
visible to
reasonably precise in
omission
their
were
naked
eye
any
at
time of
inspection
measures,
precautionary
and the
of these
required
Accordingly,
before the crash.8
aware of
thus cre-
Army
danger
in deciding
DynCorp
satisfy
whether
can
Crawfords,
The
and
how-
ated.
government
per-
contractor defense’s
ever,
DynCorp’s
to
primarily seek
defeat
formance
we
prong,
only
need determine
assertion
contractor
genuine
is a
there
issue of fact as
by showing
DynCorp
that
has not
defense
visibility
eye.
to the crack’s
to the naked
might
“per-
what
satisfied
termed
question
The
of a
visibility
crack’s
prong,”
DynCorp
requires
formance
compo-
best understood to consist of two
it carried
in con-
inspections
to
out
show
First,
nent parts.
was the crack within
Army
with
procedures.
formance
The
capacity
the ocular
to
eye
human
argue
that
Army’s
is,
detect —that
was the crack
of such
despite
procedures,
incorporating
size and
that
nature
it could be seen?
the FAA
precautions
recommended
Second,
present
crack
was the
at a location
Bell,
required
still
to find
DynCorp
in the helicopter’s internal
that
structure
sрar
prior
crack
Since
the crash.7
range
was within the
of visual access
so,
DynCorp
they
mechanics
ar-
never did
achieved
mechanics
carrying out
gue
DynCorp
did not
with
conform
is,
Army’s procedures
would me-
—that
Army’s procedures.
chanics have
at
looked
the crack in the
properly
course of
inspections?
conducted
litigation
progressively
As
has
narrowed
case,
the issues involved
the contro-
plaintiffs point
they
to materials
versy
parties
as to
three
between
submitted from
witnesses to support
briefs, they argue
DynCorp
"inspec-
7.
DynCorp
their
that “if
clear directive that
conduct
performed
nonnegli-
tion,
its
checks,
had
service contract
operational
maintenance
gently, DynCorp
[the
would have discovered
required
flying
by applicable Armypub-
test
as
spar]
ordinary
crack
in the
course of ordi-
lications and directives.” Our
discussion
nary inspections (completely
divorced
question
the text
addresses
of whether
any
Directives]
Airworthiness
or
[FAA
[Bell
DynCorp's
failure to discover the
crack
Bulletins]).”
Military
Hudgens'
Alert
Initial
genuine
to create a
fact
issue of
sufficient
30;
Brief
Crawfords’ Initial Brief
publi-
conformance
those
with
plaintiffs’
We construe
inartful reference
cations
directives.
"nonnegligent”
performance
contract
adequate
performance.
mean
contract
Hence
Although DynCorp's evidentiary
submis-
interpret
quoted excerpt
we
from the
conclusively
sions fail to demonstrate
plaintiffs'
equivalent
briefs as
assertion
on unenhanced
relied
visual
DynCotp
cannot show
conformance
spections,
any
are unable
we
to locate
indica-
Army procedures
procedures
because those
Army procedures
tion in
record that
required
mechanics to discover
'
type
called for
other
examination
prior to the crash.
inspections required
course of the
before
quote
and Crawfords
also
Moreover,
plaintiffs at
crash.
counsel for the
range
say Dyn-
provisions they
of contract
*9
argument
"genuine is-
oral
characterized the
Corp
agree
violated. We
with the district
consisting
sue of
fact” in this case as
material
evidentiary
the
before
court that
materials
us
spar
that
in the assertion
the crack in the fin
genuine
do
show
fact
issue of
as to
long
prior
for a
the
"had been visible
time”
to
DynCotp’s compliance
any
the con-
with
of
crash.
provisions
by
plaintiffs.
tract
cited
the
key
our
contract's
to
determination is the
in
of an affidavit we find to have been
portion
the crack
visible
that
the contention
wrongfully excluded.
Each
stat-
witness
both of these senses.9
by the
could be seen
that
the crack
ed
Expert Testimony Per-
1. Exclusion of
of them
prior to the crash. One
eye
naked
taining
DynCorp’s
to
Conformance
particular
described a
specifically
also
Inspection
with
Procedures
should
during which mechanics
spection
exclu-
we review a district court’s
Since
spar
fin
portion
the
looked at the
of
have
expert opinion
of
for abuse
sion
evidence
was located.10
where the crack
discretion,
only if its
we will reverse
of
“manifestly
erroneous.”
decision was
DynCorp,
a motion
response
to
Joiner,
142,
512.
at
118 S.Ct.
U.S.
materials
court treated these
the district
evidence, see Fed.
expert opinion
as
A
controls the
three-pronged test
702,
portions
struck
R.Evid.
and
of
expert
determination
whether
prop
un-
is
it deemed inadmissible
evidence is admissible. Admission
materials which
“(1)
qualified
testify
is
to
expert
er if
the
in
the test
forth Daubert v. Merrell
der
set
in
the matters he
competently regarding
Pharmaceuticals,
579, 113
Dow
509 U.S.
(2)
address;
methodology by
the
tends
(1993), and
court’s Sammons expert opinions and then consider Affidavit
of ofB.J. summary judgment its of is grant piece expert opinion of first at affidavit of appears the one evidence issue light due to be reversed of in the assertion that the relevant fin 9. In addition to the materials discussed text, challenge Army and Crawfords spar could in the be seen course drawing district court’s exclusion of inspections. The affidavits of Steve Powell appear which certain handwritten notations McSwain, however, provide no and Richard they supportive as characterize their inferring any their basis for awareness on abuse of case. find no discretion part the protocols followed mechanics evi- district decision to exclude this court's particular inspections. Since in the course of dence, for ever which no foundation was laid. normally fin from view obscured argue Although Hudgens and Crawfords skin, by the tail must fin's external mechanics drawing Steve discussed in a Powell gаin open plates, panels, visu- doors and/or deposition, they refer provide the citations part al access to this aircraft. testimony he portions of Powell's 7, at failure of Powell and 1. The both clearly discussing entirely docu- different address how access would be McSwain to pointed by the dis- ment. This was first out gained by following proce- mechanics Hudgens. court trict See Memorandum testimony read dures leads us to their Opinion respect por- affidavit as with to what silent been viewed tions of have 10. The characterize Crawfords given inspection. making in the course of all three witnesses' affidavits *10 Sammons, ply B.J. an aircraft mechanic em- apply what the district court ack- ployed roughly forty at Fort Rucker for nowleged “expertise” was his n years retiring day before on the before the “maintenance inspection of UH-1H subject accident. At the time of his helicopters.” retire- Memorandum Crawford ment, Sammons was the lead Opinion mechanic on In crediting Sammons’s helicopters the fleet of expertise, which the acci- the district court necessarily de- belonged. dent craft The fault termined that the first and prongs second court striking range the district of of the test for opinion scientific evidence— statements Sammons’s affidavit. We qualification witness’s expert as an find except no abuse of discretion reliability inas- and the of his or her methodolo- much as the court gy struck Sammons’s state- respect satisfied with to Sam- —were October, ment pertaining to an opinion mons’s October, spection that he describes in inspection. some detail.11 1998 Specifically, Sammons states that properly In light of aspect this of the district DynCorp personnel instructed would have ruling, court’s we believe its exclusion of discovered on cracks this occasion Sammons’ statement was likely most Army procedures because required “a de- oversight caused poor affidavit’s inspection tailed of all of components draftsmanship.12 To the extent that boom assembly, including tail statement’s exclusion was not an oversight, R.l-38, fin spar.” vertical Tab at 1-3. the court’s determination that Sammons distriсt court’s memorandum had qualification satisfied the and reliabili- stated no basis for excluding Crawford ty prongs left exclusion to rest on a deter- portion this of Sammons’s affidavit. mination that prong the relevance was not
We understand Sammons’s use of the Any satisfied. such determination would word “cracks” to refer generically to be an abuse of discretion. As this case has cracks of a size and nature that developed, visibility permit them to by inspectors be detected October, at the time of the 1998 inspection eyesight adequate. Thus, whose we only disputed question perti- of fact read his assertion to concern nent to satisfaction of the ele- range of visual access by inspec- achieved ments of the contractor de- adhering Army’s tors procedures— fense. The and Crawfords have is, inspectors would have failed any to submit other potentially com- portion looked at the fin spar petent on showing evidence that Army inspec- which the crack was located. On this procedures tion would have led to the reading, oрinion appears Sammons’s discovery sím- crack’s other occasion. themselves, part court did not strike this at 2. The Crawfords how- of Sammons’ affidavit. Our ever, discussion of the prior summary judgment conceded pertains only district court’s error therefore qualified that Sammons was not to state an Crawford. opinion regarding whether cracks existed at any particular point considering in time. 12. The of Sammons’s affidavit dis- admissibility just quoted, of the sentence part cussed in the text of a sentence that may understandably the district court have read in full: "The cracks existed in the verti- improper reacted to Sammons's assertion re- cal fin on this date and these cracks would garding paus- existence cracks without during have been discovered if ing recognize the distinct assertion Sam- the line proper guid- mechanics had received following mons makes the words "and these.” DynCorp management.” ance from
1340 action, is products liability specifically identified causation affidavit Sammons’s ”). puzzle’ ‘piece “more than a of the Since October, inspection as an occasion the 1998 district exclusion of Sammons’s Army procedures the court’s on which conformance erroneous, manifestly the get testimony mechanics to was allowed would have striking this portion spar.13 court abused its discretion of view of the relevant of Sammons’s affidavit. portion that he took account specificity His shows spar cannot of the fact that wrongfully evidence When excluded various visually opening without examined affidavit, re-integrated into Sammons’ R.l- panels, or doors. inspection plates, read as fol- passage the relevant should affidavit, 7, Sammons’ Tab at 1. Hence lows: inspec- that evincing knowledge his while maintenance, this type repair and With necessarily examine tors would in- there should have been a detailed portion spar of the fin relevant of the function, spection components of all of the every of maintenance course assembly, including tail boom the verti- the “detailed made clear that nonetheless spar. cal fin would have been Cracks inspection” for October 1998 was called if during inspection this discovered they do so. one occasion on which would proper had line mechanics received simply this The relevance of assertion Tuscaloosa, guidance DynCorp management. City See not contestable. of (in satisfy order rele- 158 F.3d Deposition Testimony Powell Steve of expert opinion of test for evi- prong vance dence, and Crawfords also circumstantial evidence “must piece puzzle challenge striking district of merely one court’s constitute Powell, testimony deposition endeavor assemble Steve Allison, Helicopters op who jury”); investigator 184 F.3d at Bell field before microscope through an (remarking expert’s opinion, erated electron plaintiffs only photographs he took of fractured when offered as evidence which suggests portions inspections, On one or of these 13. Sammons two other more may there his affidavit that have existed other cracks of vertical fin should have conforming occasions on which mechanics by DynCorp.” at 2-3. Al- been detected Id. procedures with would have might though amena- passage have been spar. examined the relevant First,-Sammons of the fin redaction, appropriate for the ble to counsel visi- stated were "cracks agreed, prior to the and Crawfords day they ble and were before detectable ruling summary judgment, on district court's during inspec- the crash the corrosion control striking reference to Sammons's passage tion.” This PMD’s, “daily inspections phase such as court, properly struck district spections, as 50-hour as well 25-hour and unqualified opin- found Sammons to offer Hence, inspections.” subsequent his refer- ion about whether cracks existed and were inspections” ence to more of "one or these detectable before crash. believe antecedent, and we referred no identifiable passage district exclusion of the court's entire find court abused do not the district to have proper asser- because Sammons’s tacit striking it. its discretion in For these rea- procedures tion in cor- followed sons, only portion of Sammons’s affidavit inspections sev- rosion could not be control conform- that describes an occasion which accompanying ered from his assertion that Army procedures with have en- ance cracks were visible and detectable at the time the fin de- tailed examination of is his Second, inspection. such Sammons October, scription inspection. "DynCorp daily inspec- ... stated that did PMD's, phase inspections, tions such as inspections.... well as 25-hour and 50-hour *12 parts helicopter after the crash. assess such matters as when' a crack first in The district court both cases struck appeared and whether it prior was visible Powell’s assertion that the fin crack a crash. And while it is conceivable spar would have been visible to the naked that a application skilled of striation count- rationale, eye prior to the crash. As a ing could constitute a reliable means of entirely court relied on Powell’s admission formulating opinion, an such Powell stated that he had no knowledge of performed that he no counting striation procedures. Hudgens maintenance Mem- involved this case. R.l- 21; orandum Opinion at Memo- 38, 2, Tab at 35. Hudgens Crawford and Craw- Opinion randum at 15. This error in fords have therefore identity failed to even that it confounded what we have identified arguably reliable methodology underly- component parts as the two of the question ing Powell’s determination that the crack visibility. of The courts should have con- prior was visible to the According- crash. testimony simply sidered Powell’s itas ly, although the district court stated an range related to the of visual access insufficient excluding rationale for Powell’s by DynCorp inspectors, achieved also but testimony, we hold that such exclusion was as to eye’s capacity the naked to detect not an abuse of discretion. cracks of a type certain size a certain McSwain, Richard H. PhD Affidavit of metal. Richard McSwain an engineer error, Despite this we do not believe the qualification whose engineer as a materials district court abused its discretion in ex- was not contested befоre the district court. cluding testimony. Powell’s The district court struck and Crawfords have not shown that Pow- McSwain’s affidavit in opined which he experience ell’s provided a reliable basis that “the cracks were visible to the naked for his ap- the crack’s eye and also would have been detectable pearance prior crash. by the use of testing” non-destructive at specialized The two forms of expertise inspection the time of an performed 112 by using claimed Powell involved an elec- prior hours to the accident. McSwain cit tron microscope applying the tech- ed several documents as his basis for nique of striation counting, which the dis- reaching this conclusion. He relied on an trict court described as “a method used to “Aircraft 150 Hour Inspection Phase Rec determine growth the rate of of a crack.” premise ord” for the 15; inspection that an Opinion Memorandum see Crawford also was conducted 112 Opinion prior Memorandum hours to the accid We are unable to ent.14 For experi- conceive how the conclusion that the crack ence the use of an microscope, electron would have been visible and detectable at itself, time, and of could qualify a witness McSwain relied on the results of 1997, 1997, It is clear that McSwain here refers to the occurred in June October Febru- inspection same R.l-38, that Sammons characterized ary and November 1998. See taking place in October of 1998. The doc- Tab at exhibits A-D. Given the substan- text, summarizing ument identified in the periods separating tial of time these occa- “phase inspection,” 150-hour includes nota- sions, it is clear that the described spanning tions of dates October and Novem- Sammons, McSwain, variously and other R.l-38, ber of 1998. See Tab 13. Other occurring sources as in October or November materials submitted show and the same. one phase inspections preceding the crash emphasis Court has repeated Supreme study conducted titled
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spar cap replace respect in this accident differed Id. at BE018876. spar.” over very aircraft its use found telling it cracks also find We closely time the other most resembled: four other craft with- the accident on after Fort Rucker helicopters within same fleet were each in the Fort Rucker Evaluating fleet. of these soundness lay- the surface concealed beneath instance clearly aspects opinion re- of McSwain’s compromised spars thus discov- er of probabilities. Yet quires weighing X-rays. only via the use ered the likeli- explained McSwain has neither (affidavit DynCorp employee X who assigns hood to each of the unknowns he inspections all x-ray “supervised spoken “precision nor with the sort of Rucker”). Ft. None aircraft at UH-1 logic” assess the that would allow us to eye. This naked Id. were visible to the relationship experience between his with known pattern, conjunction in this engineer materials his in the Bell memoran- problem discussed Frazier, cаse. v. 322 F.3d United States dum, a strong us to raise infer- seems to (11th Cir.2003). therefore heli- that the crack on accident ence visibili- opinion regarding hold that his *15 prior not visible to the copter was likewise ty of crack at the an time of crash. 112 hours conducted before the accident properly was excluded the district materials, of these face court. explanation no McSwain’s affidavit offers opinion he formed the of how Thus, to review it remains for us crack on accident differed correct in whether the district court was subsequently those discovered the rest evidentiary parties’ determining Fort fleet. not Rucker McSwain genuine any submissions did reveal identify specific upon to only fails facts analysis issue fact. of of material Our this based, opinion his but also man- into of portion matter will take account the pattern ifests no awareness of found wrongfully affidavit struck in Sammons’s thus other feel com- helicopters. We Crawford. to liken case to those in which pelled this expert’s explain to for an failure the basis 2. Absence Genuine Issue Matеrial of of important inference mandates exclusion DynCorp’s Fact as Conformance Rider opinion. of his or her See v. Sandoz Inspection With Procedures (11th 1194, Corp.,
Pharm. 295 F.3d Cir.2002) expert opinion fall (holding In determining issue of fact whether an requires” of short what “Daubert when “genuine” the purpose defeating for require finding reliability “several summary judgment, we ask whether the ”). scientifically ‘leaps unsupported of faith’ jury is “such that a evidence reasonable reliable, To find McSwain’s a dis- nonmoving could return a verdict for the he trict court would have to determine that party.” Liberty Lobby, v. Anderson believing 2505, had some unstated basis U.S. 106 S.Ct. 91 L.Ed.2d helicopter (1986); on the to have Chapman, accident 229 F.3d determination, on In pattern making exhibited same observed we view the time, light At the the one tested Bell. same evidence most favorable (and nonmovant, infer- drawing all reasonable it would have credit his unstated party’s Augusta in that favor. Iron evidence to DynCorp enees demonstrate that has “performance” satisfied this Employers prong v. Ins. and Steel Works government (11th Cir.1988). cоntractor defense. Wausau, 855, 856 835 F.2d Here, applied these standards must be In fight of our earlier discussion of the DynCorp’s evaluate contention that no other government two elements of the con- maintaining visible to mechanics defense, tractor DynCorp we hold that has accident conformance demonstrated the absence of genuine Army’s inspection procedures. with the issue of material fact its entitle- DynCorp believe has carried this bur- ment to the protection defense’s in this den. case.
Although wrongfully por- stricken tion of Sammons’s affidavit does tend to CONCLUSION Dyn- show at least one occasion on which held, first, Having that the Corp visually mechanics should have ex- applies contractor Army- defense amined the relevant of the accident and, maintenance contract sec- helicopter’s spar, DynCorp has submit- ond, that DynCorp has demonstrated the range suggesting ted a of materials any genuine absence of issue material crack at this location was never visible fact as to its satisfaction of the defense’s еye. to the naked In addition to the the elements, three summary we AFFIRM the description memorandum and the judgment entered on behalf post-accident x-rays conducted on the the district court. fleet, remaining Fort it Rucker has sub- *16 AFFIRMED. mitted an affidavit from the mechanic who very inspection conducted the discussed affidavit,
Sammons’s states that no EDMONDSON, Judge, specially Chief fin spar cracks were visible at that concurring: U,
time. at 1. The Hudgens I I judgment, join concur Crawfords, contrast, pre- have not Judge opinion except Barkett’s for Part any support sented admissible materials to IIC. their contention that the crack on the acci- any point dent was visible at COX, Judge, specially Circuit prior to the crash. concurring: sum, all evidentiary materials de- I judgment, join concur and I serving suggest of consideration that no Judge opinion except Barkett’s for Part crack could eye be seen the naked as of IIC. October occasion as to which there is indication that mechanics fol-
lowing procedures should have
looked at the relevant
spar. visibility Since the crack’s remains only disputed pertinent issue of fact Army proce- conformance with
dures, jury we conclude that a reasonable
would have to find a preponderance of the