*1 burn, Cаmpbell surviving corroborated that dealt children of Robert K. Finally, amounts. the Government Rayburn, deceased; also Robert L. stated that it had a tape recording of Anderson, as Executor for the Estate Campbell proposing the of a kilogram sale Rayburn, deceased; of Robert K. of crack cocaine. conclude that we v. the District finding Court did not err -in America; The United States of Bell Hel that 1.5 kilograms of crack cocaine could icopter-Textron, Inc., foreign corpo to Campbell. attributed ration; Inc., foreign corpo Textron IV. ration; Allison Gas Turbine Division Accordingly, explained for the reasons Corporation, of General Motors a for above, we will affirm the District Court’s eign corporation; Macrotech Fluid sentence. Inc., Sealing, Microdot, C.D.I. Division Microdot, Inc., Ma Microdot/CDI SLOVITER, Judge, concurring. Circuit Macrotech, Inc.; Al crotech/CDI d/b/a This court held in United States v. Engine Company, lison Inc. (2001), Vazquez, 271 closely F.3d 93 di Mayan, individually, Kathleen K. decision, vided as sur en banc the defen viving spouse Mayan, dant’s sentence of Gerald following his conviction W. deceased, drug conspiracy plain was not error as Administratrix de of the spite the Mayan, failure to submit Estate of deceased, issue of Gerald W. drug quantity jury. to the I wrote for Mayan, on behalf of James Paul dissent that the error Mayan affected defendant’s Gerald Vincent II and Jake substantial rights, relying on the decision Mayan, surviving Daniеl sons of Ger in Apprendi Jersey. v. New Supreme Mayan, deceased, ald W. Court has now unanimously rejected that v. Cotton,
view United States v.
535 U.S.
America;
The United States of
Bell Hel
-,
122 S.Ct.
eral Corporation; Motors Macrotech Sealing, Fluid Macrotech, Inc. dba Inc.; Macrotech/CDI; Inc.; Microdot Microdot/CDI, C.D.I. Division and/or Microdot, Inc.; Engine Allison Com STECYK, Michelle individually, S. as pany, Inc. Anthony Executrix of the Estate of J. 99-2030, 99-2051, 94-CV-1818, Nos. Stecyk, Jr., Anthony behalf of 94-CV-4342, 94-CV-4343. Stecyk, minor, L. v. United States Court of Appeals, BELL TEXTRON, INC.; HELICOPTER Third Circuit. does, through 5, inclusive; United Argued March 2001.
States of America. July Filed 2002. Dorothy Rayburn, L. individually, surviving spouse Ray- K. Robert
burn, deceased, and on behalf of Alan Rayburn
M. Jacqueline Ray- M. *2 . Dorothy
lees L. Rayburn and Kathleen K.
Mayan. O’Connor,
Patrick (argued), J. Thomas Mullen, R. Harrington, John F. E. James *3 Robinson, O’Connor, Cozen & Philadel- PA, phia, appellee/cross-appellants for Bell Helicopter Textron Inc.
Ralph Wellington, G. Denny Shupe, J. Colleran, Schnader, Harrison, Michael J. Lewis, PA, Segal & Philadelphia, ap- for pellee Corporation. General Motors Zeehandelaar, David N. (argued), Sheryl Axelrod, Blank, Rome, L. Cominsky & PA, McCauley, Philadelphia, appellee Macrotech Fluid Sealing, Inc. SLOVITER, BEFORE: NYGAARD ROTH, Judges. Circuit ROTH, Judge. Circuit wrongful These death actions arose out July crash of V-22 Os- Quantico, aircraft prey Virginia. near representatives Plaintiffs are of the estates of two of the seven members of the crew. designed, manufactured, Defendants tested the Osprey and the components at issue in A jury this case. trial resultеd in judgment appeal, defendants. On plaintiffs challenge several of the District evidentiary rulings. Court’s ' below, For the reasons stated we will affirm the District judgment. Court’s final
I. FACTS The twin-engine Osprey combines the vertical takeoff landing capability of a helicopter with the cruising speed fly- ing capabilities of a wing fixed aircraft. Textron, Inc., Bell Helicopter along with Boeing Company, Vertol designed and de- R. Punían, Steven (argued), Milton veloped G. Osprey under a contract with Sincoff, III, Andrew Maloney, J. Jacque- government. the federal General Motors James, line M. Kreindler, Kreindler & Corporation designed and manufactured City, New York for appellants/cross-appel- the engines separate under a contract with post-incident re evidence of precluded Fluid Seal- Macrotech government. medial measure. manufactured ing, seal,” under seal,'known “617 as the shaft defense, Bell contended that a For the Bell-Boeing team. a subcontract if would' not leak even reversed 617 seal theory an alternate of cau- presented crashed Osprey July On failure was caused airplane sation stage from in the transition while fluid, not transmission oil. at- Osprey helicopter flight. military Quantico at the to land tempting sepa- of three presented Bell min- forty-four hour and after a two field a reversed rate tests which concluded .that Air Force Eglin Basé.in flight ute (1992 test 617 seal did not leak. first *4 Marine plane’s The three U.S. Flоrida. test) by employee Bell performed had been Boeing engi- four with pilots, together of request at the of the Court Ken Wilson neers, were killed. test, The 1992 which was dis- Inquiry. Inquiry’s of find- cussed both Court investigated by a U.S. accident was The Endorsement, concluded that and the ings The Court of Inquiry. Navy Court subjected a 617 seal to same reversed were then forwarded Inquiry’s findings heat, RPMs, review, torque, power, pres- range re- authority for Naval superior the 617 seal on the angles sure and tilt The the First Endorsement. ferred to as experts Plaintiffs’ did not leak. Osprey of the Court of part became Endorsement ways, in several criticized the 1992 test Inquiry Report. including challenging the use “new” trial, admitted At the District Court one contending and the test’s seals Endorsеment, into Report, including was too twenty minute duration hour and Inquiry Both evidence. object to the ad- Plaintiffs did not short. crash agreed that Endorsement 1992 test. into evidence of the mission was in- flammable fluid after a occurred tests, seal two other reversed 617 engine as the right aircraft’s gested by the 1998, per- were conducted 1997 The Court attempting to land. craft was Wilson, by who request at Bell’s formed right torqueme- stated that Inquiry seal) two (the from Bell in 1995. These had retired was installed seal 617 ter shaft produced and Bell leaked, videotaped, tests were “the most providing backwards five months videotapes plaintiffs for the mis- primary causal factor probable trial. However, did before the Endorsement hap.” . with this conсlusion. “not concur” trial, when case at During the defense improper instal- stated that Endorsement testimony from attempted to elicit Bell possible one the 617 seal was
lation of tests, 1998 the 1997 and Wilson about fluid. of the leaked flammable source based, alia, on objected inter plaintiffs The court excused Wil- surprise.” “unfair the crash was theory was that Plaintiffs’ him and defense and ordered past a son oil leak caused a transmission supplemen- produce Dr. Thomas backwards that had been installed 617 seal day, by p.m. 5 reports tal They contended by Boeing mechanics. thereafter, court Shortly Friday. in a negligent Macrotech were that Bell and give plain- Tuesday until seal which recessed “Murphy-рroof1' designing with their to consult opportunity tiffs the such a “two- not be reversed. While could depose Wilson subsequent experts own installed way” seal has been appropriate. if Eagar, the District Court Osprey, versions 412 Tuesday trial resumed on morn- rulings legal component); Complaint
When with ing, plaintiffs they Co., 126, confirmed had re- Consolidation Coal 123 F.3d (3d Cir.1997) (same), the reports denied, ceived and declined to take 131 cert. depositions. They additional asked the U.S. S.Ct. L.Ed.2d 526 (1998). videotaped discretion, court to exclude tests Wilson’s To show an abuse were not ground appellants substan- must show the district court’s to the conditions on the tially similar Os- “arbitrary, clearly action was fanciful or hearing argument States, about sub- prey. Aftеr v. unreasonable.” Stick United (3d Cir.1984). similarity, the court admitted the stantial F.2d We will not At 1998 tests. the close of 1997 and Wil- disturb trial court’s exercise discretion testimony, plaintiffs son’s moved to strike “no person adopt unless reasonable would testimony regarding his the 1997 and 1998 the district court’s view.” Oddi v. Ford tests, (3d Cir.2000). again grounds Co., on of substantial simi- Motor larity, and the court denied the motion. III. DISCUSSION testified,
After Dr. Eagar Wilson testi- fied as an analysis, failure test- Plaintiffs first the District challenge ing respect analysis, failure and Court’s admission of the videotaped 1997 *5 materials science. He presented alter- and 1998 tests which concluded that a re- causation, theory nate opining that the Next, versed 617 seal does not leak. Osprey’s engine by hy- failure was caused plаintiffs argue that Dr. Eagar’s testimony fluid, draulic not transmission oil. regarding a leak of fluid lacked an adequate factual Finally, foundation. trial, jury After a six week returned plaintiffs contend the District Court erred a verdict for the defendants. The District in precluding post-crash evidence Bell’s motions, post Court denied verdict two-way designs. seal We address each plaintiffs timely appealed to this Court. argument in turn. II. STANDARD OF REVIEW A. The Videotaped 1997 and 1998 Tests jurisdiction The District Court had un- proponents videotaped As § jurisdic- der 28 U.S.C. 1332. We have evidence, Bell had to make a foundational tion to review the final judgment of the showing that the 1997 and 1998 test condi District pursuant Court to 28 U.S.C. tions substantially were similar to condi § 1291. Glick, tions on the Osprey. See 458 F.2d 1294;
We review the District. Ramseyer Court’s at v. Gen. Corp., Motors (8th evidentiary rulings principally Cir.1969). for abuse of 417 F.2d Howev Joiner, discretion. er, See General Electric v. suggests, the term substantial simi 136, 146, 522 U.S. 118 S.Ct. larity does not require perfect identity be (1997) (decision L.Ed.2d 508 to admit or tween actual experimental conditions. exclude testimony); Glick v. Experimental White may be admitted - Co., Motor 458 F.2d 1294-95 even if perfectly conditions do not corre Cir.1972) (admission tests); or exclusion of spond to the conditions at in litiga issue see also Inter Supplies, tion; Med. Ltd. v. EBI dissimilarities affect the weight Med. Sys. evidence, Cir. of the not admissibility. but its 1999) (reviewing district court’s admission A ruling See id. similarity substantial discretion, of evidence for abuse but is committed to the sound discretion of the exercising plenary evidentiary review over judge. trial Id. evidence before the District that Bell satisfied reflects
The record Wilson, reports was defense witness admissibility. this threshold substantially were testimony that the tests tests, explained conducted who In Osprey. similar to conditions report in a written test for each protocol this we will not disturb light of tests. length about at and testified the District exercise discretion Court’s -seal an actual 617 test used The 1997 Any and 1998 tests. to admit the 1997 torqueme- shaft and replica on a installed plaintiffs identified dissimilarities blueprints housing machined ter subject of properly the cross-exami- were four consisted of The test Osprey. nation. ten eight ran for phase Each phases. up psi to 500 pressures minutes at addition, a review the record
n (pounds inch), which per square contention that plaintiffs’ alternate belies operating the normal ten times roughly unfairly by the surprised were tests. Osprey. seal on the on the 617 pressure plaintiffs had the The record reflects the re- applied pressure was When oil prior months videotapes five housing, duplicate seal versed 617 experts had viewed their own not leak. the seal did trial, At ob videotapes: surprise, unfair the court jected based on Osprey actual com- used test supplemental re seal, produce Bell to ordered including torquemeter a 617 ponents re from Wilson and ports con- housing. This shaft and Friday give plaintiffs early on a for 18 hours cessеd pressure ran under figuration depose the de additional opportunities 617 seal did and the reversed psi, their own and consult with centrifugal fense witnesses leak. Wilson testified *6 resumed the experts. proceedings When of the not affect result pressure did Tuesday, had declined following plaintiffs pressure additional Any minimal tests. Plaintiffs depositions. by centri- to take additional generated that would have been were not substantial argued that the tests created and sur- forces was instead fugal above, (500 but, offered as discussed ly and similar pressure passed the additional to rebut1 Bell’s -evidence no evidence in the tests. Faced psi) exerted that a lack of cen argument their support propеr it a exercise the tests inad rendered trifugal forces to admit the District Court’s discretion a move plaintiffs Nor did missable. 1998 tests. get requisite in order to continuance contrast, not plaintiffs did offer By testimony. that the tests rebuttal evidence were above, as set out In view of the record substantially to conditions similar in the Dis- find no of discretion we abuse Instead, argued plaintiffs’ counsel Osprey. admissibility of rulings on trict Court’s 1998 tests were conduct- that the 1997 and this evidence. environment, opposed to a in as ed a static they where would dynamic environment Testimony Eagar’s B.‘ Dr. subject centrifugal forces vibration. Thomas expert Dr. However, Defense counsel admitted plaintiffs’ probable source most opined a рroduce failed to argument, oral Osprey’s caused the which sup- flammable fluid witness, any evidence report, or Plain hydraulic fluid. engine centri- failure was that the lack of argument their port testimony tiffs contend the seal rendered imposed on fugal forces hydraulic fluid lacked regarding leak meaningfully dissimilar. the conditions adequate Cir.1998); factual basis because there Toucet v. Maritime Overseas (1st Cir.1993). 5, 10 Corp., 991 presence was insufficient evidence of the F.2d hydraulic fluid engine. inside the Here, the record reflects a factual foun- dation sufficient to Dr. Eagar’s Under Rule 703 of the Federal probable that the most source Evidence, experts may Rules of rely on flammable fluid was fluid. The knowledge facts from firsthand or observa that, possible record shows fluids tion, information learned at hearing or accident, involved in the only hydraulic trial, and facts learned out of court. Fed. fluid is red. A red residue was found in If R.Evid. 703.1 the facts type are torquemeter housing. This red resi- “reasonably upon” by experts relied in the due was tested for the Court of Inquiry particular field in forming opinions or in good and found to be a match for upon subject, ferences or data fluid. facts There was some oil found in independently engine need not be front of the admissible in and it have gotten engine. Finally, evidence. Id. into the See In Re Paoli R.R. a red Yard (3d Cir.1994). residue containing hydraulic Litig., PCB oil was dis- covered on the air particle sepa- provides Rulе 705 for the disclosure of rator, adjacent engine. underlying facts expert’s opinion. record reflects sufficient evidence of 705;2 Fed.R.Evid. see also Fed.R.Civ.P. draulic fluid in places solvent 26(a)(2)(B) should not 26(e)(1) (relating to disclo have engine, been—outside the near the sure in advance trial of the basis and engine, housing— reasons an expert’s opinion). It is an to form the factual foundation for Dr. Ea- abuse of discretion to expert admit testi gar’s testimony. It was within the discre- mony which assumptions is based on lack tion of the District Court to admit such ing any factual foundation the record. testimony. Elcock v. Kmart Corp., 233 F.3d (3d Cir.2000) 756 n. 13 (discussing Rules Once Bell’s met the founda 702, 703, 402 and 403 and stating that requirements tional for admissibility, the foundational requiremеnt for admissibility burden shifted to to explore any testimony is found the “in expert’s deficiencies in the sources. A *7 rules). terstitial gaps” among the federal party confronted with an expert adverse 705, together 703, Rule with Rule places sufficient, witness who has though perhaps the burden of exploring the facts and as not overwhelming, assumptions facts and sumptions underlying testimony of an as the opinion basis for his highlight can expert opposing witness on during counsel those through weaknesses effective cross- cross-examination. e.g. See v. Schi Ratliff, 955; examination. See 150 F.3d at Ratliff Co., Inc., (8th 949, ber Truck Toucet, 150 F.3d 10; 955 991 F.2d at cf. Daubert v. provides: 1. Rule 703 provides: 2. Rule 705 particular The facts data or in the case expert may testify оpinion in terms of upon expert which an bases an or give or inference and reasons therefor with- perceived inference by those or testifying out first underlying to the facts or made known to the at or before the data, requires unless the court otherwise. hearing. type reasonably If of a relied expert may required event be upon by experts particular in the field in underlying disclose the facts or data on forming opinions or upon inferences cross examination. subject, the facts or data need not be admis- sible in evidence.
415 as evidence that 579, can be introduced Pharm, Inc., changes 509 U.S. Dow Merrell (1993) Id. designs defective. 2786, previous 469 were L.Ed.2d 125 113 S.Ct. cross-examination, pre- Moreover, “operates 407 on the presentation Rule (“Vigorous likely in prejudice careful instruc- sumption that undue contrary of the tradi- proof of are Id. at 1277. burden on the certain situations....” tion attacking of means of appropriate “routinely [sub- evidence tional exclude courts evidence.”). The encourage admissible- shaky but sequent measures] remedial its dis- properly exercised District whether or to take such measures people testimony per- admitting the cretion v. they at fault.” Petree Victor are of cross-examination mitting appropriate Power, Inc., 831 F.2d Fluid Eagar.3 (“Petree I”). Cir.1987) to Rule the District Court Pursuant Designs Post-crash Seal C. two-way was that a seal excluded Evidence of The Federal Rules following the crash. Osprey on the used of evi introduction preclude the expressly However, argued because defendants measures subsequent remedial dence reasonable and one-way design seal was a con culpable or negligence party’s prove two-way more difficult seal was Rule 407 rests 407.4 Fed.R.Evid. duct. military and “not suited for install encouraging policy of strong public environment,” contend that evi- Plaintiffs improvements to “make manufacturers two-way use of the post incident dence Equip Kelly v. Crown safety.” greater im- purposes of admissible for seal Co., Cir. ment peachment. 1992). be discour A manufacturer will permits of Rule 407 the text While making improvements aged remedial mea- subsequent if such admission safety products of its greater reject im would a conclusion dissenting colleague's at 697. Such appreciate our 3. We testify Eagar’s qualification to plicitly foundation for criticisms factual criticisms, howev determi testimony. 702—a These witness under Rule an er, that must precisely type challenge of issues raise do not nation that the having by the benefit be resolved fact-finder El no reason to reverse. that we have raising process. By adversary cock, of concerns, (explaining the F.3d at 756 n. effectively an conducts the dissent require relationship foundation between the weight independent evaluation qualification re of Rule ments exceeds we believe exercise evidence—an 702). Rule quirements of an abuse appropriate boundaries Rules of While the Federal discretion review. provides: Fed.R.Evid. 4. upon to serve as courts Evidence call When, allegedly injury harm an or after independently evaluate the gatekeepers who event, are taken measures caused testimony, admissibility expert opinion *8 that, have made previously, would if taken courts - upon rely the discretion occur, likely to injury or less harm appeals. courts of the discretion of the subsequent is not measures of the evidence Litig., F.3d TMI See In re culpable negligence, prove to admissible 1999). some the record contains Because Cir. conduct, prоduct, defect in a defect shaky factual basis—albeit —for warning for a design, or a need product's its testimony, did not abuse the District Court require does not This rule gatekeeping or instruction. performing discretion in subsequent of evidence the exclusion function. pur- another when offered for measures Moreover, disagree the dissent to we control, ownership, proving pose, such “no reasonable it concludes that the extent measures, if precautionary feasibility of or Eagar's opinion” expert could base controverted, impeachment. or Litig., 193 F.3d In re TMI factual foundation. impeachment, Here, sures for we have cautioned where the the existence against permitting exception two-way “swal- of a seal design prior to the acci- low” the rule. See Petree v. Fluid dent was Victor sufficient for to effec- Power, (3d Cir.1989) tively F.2d witness, cross-examine the defense (“Petree II”) (impeachment exception may proper awas exercise of the District not be used as “subterfuge” prove negli- Court’s discretion to highly preju- exclude gence). that, recognized have in light We post-incident dicial In light evidence. strong public policy considerations the availability pre-incident of this im- behind the rule and the risk of undue peaching it was not error for the prejudice, trial judge should be afford- District Court to exclude the prejudicial ed a healthy deference in preserving both post-incident remedial measures. the rule and exception. Id. Under IV. CONCLUSION Rule together with the Rule 4035 unfair In prejudice/probative light of weighing, disposition value our of plaintiffs’ claims, the trial power court retains appeal broad to in- Bell’s cross is moot. Like- wise, sure remedial measures evidence is we need not address Macrotech’s not improperly guise grounds admitted under the alternative for affirmance. For impeachment reasons, exception. foregoing Id. we will affirm the final judgment of the District Court. case,
In the instant the record contains a significant pre-incident amount of im- SLOVITER, Circuit Judge, dissenting. peaching testimony regarding one-way It an important evidentiary principle, two-way versus seаls. The court admitted one that majority recognizes, that “[i]t testimony considerable graphic docu- is an abuse of discretion to admit mentation of receipt, review, Bell’s testimony which is based on assumptions rejection pre-crash of a design alternative lacking any factual foundation in the rec two-way of a vendor, seal from a Longhorn ord.” Maj.Op. 414. The District Court Gasket. Plaintiffs cross-examined Beil’s in this case allowed an give Longhorn’s witness on two-way pro- seal testimony that was “wholly lacking founda posal. jury saw an exhibit which con- tion the record.” Elcock v. Kmart diagram tained a of Longhorn’s two-way Corp., Cir.2000). seal and Bell’s evaluation proposal. doing, so the District Court abused its Using rejeсtion evidence of of a Bell’s two- discretion. Because the majority finds way prior crash, seal to the plaintiffs thus that “[t]he District Court properly exer had the opportunity impeach the de- cised its discretion in admitting [this] testi fense testimony witness’s regarding the mony,” 415,1 Maj.Op. at dissent. reasonableness of the 617 one-way seal’s design without prejudicial resort post- I. incident evidence. DR. EAGAR’S TESTIMONY earlier,
As we stated a district court CONCERNING CAUSE retains considerable discretion in deter- OF CRASH mining whether otherwise excludable re- medial measures evidence Defendants, should be ad- designers, manufactur- mitted impeachment under the exception. ers and testers of the troubled Osprey *9 5. provides: Fed.R.Evid. issues, confusion of the misleading оr the relevant, Although jury, by be or delay, exclud- considerations of undue probative time, ed if its substantially value is presentation out- waste of or needless weighed by danger prejudice, the of unfair cumulative evidence. i.e., reliability requirement, in to Rule 702’s at crash issue aircraft, the argue that on which good grounds fluid hydraulic “there must was caused this case aircraft due engine of the find data reliable.” right the to the entered support In fitting. hydraulic a loose to 613, 697 Litig., re TMI the testi- Defendants offered theory, (citations Cir.1999) (alteration original) in at App. Eagar. mony of Dr. Thomas R.R. Yard omitted) (quoting In re Paoli that “the Eagar testified Dr. 1552—1722. F.3d 748-49 Cir. Litig., PCB caused fuel [which probable source most 1994)). was the engine fail] to aircraft’s the contend, below, that Appellants, plaintiffs Eagar Dr. App. at 1627. fluid.” draulic that crash was Eagar’s opinion Dr. the opinion that he that based said fuel leak lacked a by hydraulic caused “all over the tor- of red residue presence therefore the District factual basis 1627, the at housing,” App. que[ ]meter Specifical- excluded it. should have the detailed in chromatography gas each, main of the three ly, contest Investigation and Accident GM/Allison Eagar’s opinion: predicates factual (hence- Analysis Report Chemical Residue fluid inside (1) hydraulic presence the App. 2380- forth, Report), see GM/Allison (2) hydraulic the timing the engine, the nacelle, right in the amount of fluid the (3) leak, nut found on a the loose fluid nаcelle, and upper damage the burn in the I discuss each of hydraulic fitting. nut the a loose on that there was fact the in turn. at 1627-28. fitting. App. hydraulic that 703 states Rule of Evidence Federal Engine in the Hydraulic Fluid A. particular data the case facts or
“[t]he opinion an or expert bases which an upon trial, attorney, discuss- At a defense by or perceived may be those inference testimony, said that “the Eagar’s ing at or before known made that the [GM/] ... is critical evidence AUi- im- This rule Fed.R.Evid. 703. hearing.” quantities [R]eport profuse shows son obligation judge a trial upon poses evi- engine, and that’s oil in the hydraulic expert testi- to admit whether determine ... fact that was dence mony: at App. fail.” that oil caused thе data on under- 703 thus focuses Rule “critical” challenge the Appellants 1623. expert’s opinion.... “[W]hen lying the testimony Dr. factual expert’s an analyzes whether judge inside fluid was found by reasonably relied on type data is of a Appellants. agree I engine. field, or she in the he should experts particular record GM/Alli- good grounds are whether there assess not indicate Report, does hydrau- son to draw the conclu- on this rely data engine. inside lic oil was found If data expert.” reached sion contained report page The key opinion so expert’s are underlying It at 2389. findings. App. number of that no reasonable unreliable a red resi- scans of that infra-red indicated them, opin- an could basе “some due, engine, showed from the taken data must be exclud- resting on that ion fluid, no de- “but similarities” reli- is reasonable key inquiry ed. App. at could be made.” finitive match inquiry dictates ance and gly- Instead, contained the-residue 2389. indepen- conduct judge “trial must “is conceded ether, which col into reasonableness.” evaluation dent App. oil.” of transmission indicative reliability standard similar 703’s Rule *10 1922. event, This is with Appellants’ consistent as the EAPS is outside the oil, theory that transmission rather engine, App. than see at this does not fluid, hydraulic dumped was into the en- Dr. conclusion that there Further, gine. gas chromatography hydraulic of a was engine. fluid the residue taken from the hous- B.
ing Timing Hydraulic Leak “indicated the agreement” reasonable fluid, hydraulic and “suggested] that [it] Appellants challenge also Defendants’ composed was of engine hydraulic oil and evidence concerning timing the However, fluid.” App. at 2389. Dr. Eagar draulic leak that claimed caused at admitted that the torquemeter the crash. Dr. Eagar claimed that air- the housing engine. was outside the App. craft “lost over a gallon [hydraulic] at 1924. Additionally, an earlier section in flight. fluid” while in App. Ap- at 1628. the summarized Report the GM/Allison pellants concede that a leak occurred. findings hydraulic oil only could be —that However, they argue hydraulic that the engine: identified outside the from, caused, leak resulted rather than compressor track blade areas [in- еngine surges resulting failures. As engine] side the showed a red trace this, Appellants evidence for rely on the which was not sufficient to determine its time-line from Inquiry the Court of Re- source. The material ... in the tor- port, App. 2280-372, at that is based quemeter engine] [outside the housing, data from plane’s flight data recorder. color, also red in good is a match to the According to the Inquiry Court of Report, hydraulic fluid known to be in use on the hydraulic system first failed “due to a hydraulic aircraft system. leak” which twenty-seven occurred almost seconds fact, engine surge, at first App. App. 2385. In report conclud- after at which ed that had occurred when “a the red flam- residue found inside the mable substance engine was consumеd probably “was most en- the flame gine.” at App. In sprayed compressor 2315. addition to blade track material” data from the flight recorder, hydraulic Osprey’s and not data App. oil. at 2388. Therefore, other evidence discussed in the Court of the report data that Inquiry Report suggests remotely even suggested oil leakage engine occurred found inside failure. was at best after This evidence contributed By report’s inconclusive. to the report’s terms, own conclusion that oil from proprotor “no definitive match App. could made.” gearbox got at 2389. into aircraft’s engine. See, e.g., at App. 2363. Additionally, briefs, in one of their De- fendants suggest analyses that other re- Dr. Eagar rejected thе conclusion of the vealed oil the Engine Air Par- Court of Inquiry Report and its reliance (“EAPS”). Separator ticle Br. of Bell on the flight data recorder. He explained Helicopter However, at 10. there are Osprey’s no computer system only reports in the record that support this as- system failed; detected when a it did not Instead, sertion. Bell cites to the detect began. leak App. GM7A1- at 1929- lison Report, which merely states 30. He testified that a leak pres- could be only remaining “[t]he source potential up ent “for to 43 seconds before gets [it] a non-engine source entrained in big enough system for the to detect it.” airstream,” inlet at App. App. Defendants, however, 1930. failed Eagar’s оwn testimony, App. at 1584. present any evidence corroborating
419 engine, found the inside was residue Osprey’s the of how description Eagar’s fitting was found (3) hydraulic a loose leaks. There- hydraulic detected systems remaining wreckage. The aircraft the the timing of the about fore, claim his are either Defendants by presented “facts” to this claim use of his leak hydraulic or are by the record flatly contradicted hydraulic the that conclusion his Dr. Ea- by assertions merely unsupported crash in the role a causal played leak to record fails the evidence gar. unsupported more than little to amount for Dr. basis factual a reasonable provide assertions. probably the crash that Eagar’s opinion fluid leak. hydraulic a from resulted Nut Loose C. n Ea- Dr. challenge Appellants Finally, II. hy- loose concerning the conclusions gar’s majority opinion the agree I with Accord- crash. after the found draulic nut evidentiary rul of review standard bur testimony: ing to of discretion.” for abuse “principally ings is they ... nut a' loose there was I knew not, how is 412. Such review Maj.Op. at had they hydraulics, problems had v. Unit Koon ever, “empty exercise.” an six hydraulics leaks having been 2035, 81, 98, 116 S.Ct. States, 518 U.S. ed time, specifically I ahead of months (1996) (discussing abuse 392 135 L.Ed.2d out point not I could jury that the told standard). pre This court’s discretion I except leak location of the exact Supreme the those of Court cedents upper nacelle. in the it was believed testimony require to they relate “ expert’s ‘examine testified Eagar also court at 1817. district App. whether to determine that the in order evidence” conclusions “no direct he had the facts reliably flow source could was question nut in draulic methodology and the evidence have further known leak, did he nor ” Co., 234 F.3d Motor Ford 1628 v. at Oddi App. nuts. used.’ other loose Cir.2001) v. Heller (quoting 136, nut on the 146 (“We that loose know that don’t 146, Indus., of the source Shaw fitting was hydraulic v. Cir.1999)). Elec. Co. also Gen. loose leak.”). that the merely testified He 118 S.Ct. Joiner, U.S. App. leak. hydraulic explain nut could (1997) (“[N]othing in ei L.Ed.2d failed even 1932-33. at Evi Rules Federal or the ther Daubert prob- was the that the loose nut suggest admit court a district Further, requires dence crash. able source to exist- that is connected opinion loose found the Report Inquiry dixit by ipse ing data by impact cáused nut was Co., Pen- Inc. v. Tyger Constr. expert.”); Boe- A at 2332. App. crash. aircraft’s (4th 137, 142 Co., 29 F.3d sacola Constr. loose- “the finding that agreed, ing report should be Cir.1994) (“An opinion expert’s overload from a mechanical resulted ness assumptions based on is excluded at 2393. App. impact.” sup- and are speculative are which Summary D. record.”) E. Auto (citing ported Am., Motors Distribs., Peugeot Inc. v. Ea- for Dr. factual basis The established Cir.1986)). (4th Such 329, 337 as fol- 795 F.2d described testimony can be gar’s the con- a court may lead indicates examination (1) chromatography gas lows: great too simply “there clusion found outside fluid of- and the the data red, gap between a red (2) fluid is engine, Elec., fered.” Gen. 522 U.S. at majority’s analysis of the factual *12 S.Ct. 512. may There be a natural tenden- basis for Dr. Eagar’s testimony simply cy judges, presented with a tech- recapitulates the District Court’s mistake question nical and a reasonable sounding of accepting Dr. Eagar’s claim that the expert witness, to admit the evidence and record supports his view. The majority jury let the decide the issue. But we have summarizes what it sees as the record a responsibility that may we not shirk. A support for Dr. Eagar’s opinion on the district court abuses its if discretion cause of the crash as follows: admits testimony that lacks an ade- the record reflects a factual foundation quate factual basis. sufficient to support Dr. Eagar’s opinion cases, In most the lack of sup- factual probable the most source of flam- port for an expert opinion affects its mable fluid hydraulic was fluid. weight rather than its admissibility. How- that, record shows of the possible fluids ever, based upon my review record, accident, involved hydraulic simply there is no factual Dr. fluid red. A red residue was found in Eagar’s hydraulic conclusion that a fluid torquemeter housing. This red resi- leak caused the crash. This goes directly due was tested for the Court of Inquiry admissibility of Dr. Eagar’s testimo- and found to be a good match for hy- ny, as Defendants in effect admitted when fluid. draulic There was some they explicitly сonditioned the admissibili- oil found front of the engine and it ty of Eagar’s testimony on that fact. may gotten have into the engine. Final- App. at 1623 (describing the existence of ly, a red residue containing hydraulic oil “profuse quantities of hydraulic oil in the was discovered on engine particle air engine” as “critical” evidence on which Dr. separator, adjacent to engine. Thus, Eagar’s based). testimony was While the the record reflects sufficient evidence of evidence does indicate that fluid hydraulic fluid places solvent in it should leaked outside the and that a not have been—outside the engine, near draulic nut was crash, loose Ap- after the engine, and in hous- pellants present ample evidence—includ- ing form the factual foundation for —to ing Osprey’s flight recorder, data testimony. Inquiry Report, and post-crash Maj.Op. at 414. Because majority analysis by Boeing did —that comes conclusion that the record crash, cause the but rather resulted from provides a basis for Dr. Eagar’s testimony, contrast, it. present Defendants no it found that the District Court did not further evidence other than unsupport- abuse its discretion in admitting his testi- ed assertions and theories of Dr. Eagar. mony on point. this In contrast, on my Even when viewed in a light most favor- examination of the record able Defendants, merely Eager’s testimony concerning the likely suggests the remote possibility that a hy- cause of the crash is without basis. For draulic fluid leak have caused the reason, this I respectfully dissent. Osprey’s crash. Dr. Eagar’s ultimate opinion “that the most probable source of
[engine failure] was the fluid,”
App. merely speculation and
without factual support. The District
Court abused its discretion in admitting part of his testimony.