Entourage Custom Jets, LLC v. Air One MRO, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-22061-Civ-WILLIAMS/TORRES

ENTOURAGE CUSTOM JETS, LLC,

f/k/a GENESIS CUSTOM JETLINERS LLC,

and GREAT AMERICAN INSURANCE COMPANY,

Plaintiff,

v.

AIR ONE MRO, LLC, and

MIAMI EXECUTIVE AVIATION, LLC,

d/b/a SIGNATURE FLIGHT SUPPORT,

Defendant.

___________________________________________/

ORDER ON DEFENDANTS’ DAUBERT MOTION

This matter is before the Court on Miami Executive Aviation, LLC’s d/b/a

Signature Flight Support (“Miami Executive”) and Air One MRO, LLC’s (“Air One”)

(collectively, “Defendants”) Daubert motion [D.E. 66] to exclude the testimony of

Entourage Custom Jets, LLC’s f/k/a Genesis Custom Jetliners, LLC (“Genesis”) and

Great American Insurance Company’s (“Great American”) (collectively, “Plaintiffs”)

expert, Yves Lavigne (“Mr. Lavigne”). Plaintiffs responded to Defendants’ motion

on August 1, 2019 [D.E. 73] to which Defendants replied on August 27, 2019. [D.E.

83]. Therefore, Defendants’ motion is now ripe for disposition. After careful review

of the motion, response, reply, relevant authority, and for the reasons discussed

below, Defendant’s Daubert motion is DENIED.1

I. BACKGROUND

Genesis is the owner of a 1991 MD87 aircraft (the “Aircraft”). On January 8,

2015, Genesis entered into a General Terms Agreement with Air One. This allowed

Air One to provide maintenance and other services to Genesis. On June 7, 2016,

the parties entered into a Workscope Agreement to perform maintenance and

upgrade work on the Aircraft. Genesis delivered the Aircraft to Air One and at

some point, during the night of September 29, 2016 and September 30, 2016, an

unknown person burglarized the Aircraft while it was in Air One’s possession. The

burglars stole components of the Aircraft’s avionics system.

The amended complaint alleges that the burglary occurred as a result of Air

One’s negligence. Specifically, Air One failed to secure the Aircraft, left the

passenger boarding stairs next to the Aircraft, which allowed access to the Aircraft,

and failed to comply with the U.S. Transportation Security Administration Security

Directives. The amended complaint further alleges that Air One failed to have a

written security plan, adequate lighting, security cameras, an alarm system,

security training for employees, and night security guards.

Genesis immediately reported the loss to its insurer, Great American. The

policy had a $500,000 deductible and provided physical damage coverage for the

Aircraft, including damages for theft. Under the terms of the policy, Great

1 On January 27, 2020, the Honorable Kathleen Williams referred Defendants’

Daubert motion to the undersigned Magistrate Judge for disposition. [D.E. 132].

American is legally and equitably subrogated to the rights of Genesis to the extent

of the payments that Great American made under the policy. Plaintiffs therefore

seek to recover the losses they incurred as a result of the theft and have made the

following claims against Air One: (1) common law bailment, (2) negligence, (3)

subrogation as to common law bailment, (4) subrogation as to negligence, and (5)

equitable subrogation.

II. APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s

discretion and the court enjoys “considerable leeway” when determining the

admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.

Evid. 702. The party offering the expert testimony carries the burden of laying the

proper foundation for its admission, and admissibility must be shown by a

preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness

rests on the proponent of the expert opinion, whether the proponent is the plaintiff

or the defendant in a civil suit, or the government or the accused in a criminal

case.”).

“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which

admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589).2 The

purpose of this role is “to ensure that speculative, unreliable expert testimony does

not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256

(11th Cir. 2002). Also, in its role as gatekeeper, its duty is not Ato make ultimate

conclusions as to the persuasiveness of the proffered evidence. See Quiet Tech. DC-

8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)

To facilitate this process, district courts engage in a three-part inquiry to

determine the admissibility of expert testimony:

(1) the expert is qualified to testify competently regarding the matters

he intends to address; (2) the methodology by which the expert reaches

his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert; and (3) the testimony assists the trier of

fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”

“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;

“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing

Quiet Tech, 326 F.3d at 1341).

2 Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if: (a)

the expert=s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue; (b) the

testimony is based on sufficient facts or data; (c) the testimony is the product

of reliable principles and methods; and (d) the expert has reliably applied the

principles and methods to the facts of the case.

In determining the reliability of a scientific expert opinion, the Eleventh

Circuit also considers the following factors to the extent possible:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community. Notably, however, these factors do not exhaust the

universe of considerations that may bear on the reliability of a given

expert opinion, and a federal court should consider any additional

factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are

not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in

case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,

1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on

principles and methodology, not on conclusions that they generate.” Daubert, 509

U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role

under Daubert ‘is not intended to supplant the adversary system or the role of the

jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;

see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.

2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must

do a preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010)).

“[T]he objective of [the gatekeeping role] is to ensure the reliability and

relevancy of expert testimony. It is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999). The district court’s role is especially significant since the expert’s opinion

“can be both powerful and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal

Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

III. ANALYSIS

Defendants’ motion takes aim at Plaintiffs’ expert, Mr. Lavigne, who

Plaintiffs hired to provide an opinion as to the value of the loss in use for the

Aircraft. Mr. Lavigne opined that “the net amount of revenue loss . . . is

$3,172,251.” [D.E. 66-1 at 11]. Defendants contend that this opinion is

inadmissible for many reasons because Mr. Lavigne is unqualified, his methodology

is unreliable, and he fails to assist the trier of fact. For these reasons, Defendants

conclude that Mr. Lavigne fails every Daubert requirement and that he must be

excluded.

A. Whether Mr. Lavigne is Qualified

Defendants’ first argument is that Mr. Lavigne should be stricken as an

expert because he is unqualified to render an opinion in this case. Defendants

acknowledge – based on Mr. Lavigne’s summary of his educational and job

experience – that he has extensive experience in managing airline fleets in Europe

and Africa. But, Defendants argue that he has no experience in managing a charter

aircraft in the United States nor any familiarity with the use of a 1991 MD87

aircraft. Defendants suggest that there is a significant disconnect because without,

any familiarity with the specific aircraft in this case, he is unqualified to opine on

the amounts of damages that Plaintiffs suffered.

An expert may be qualified to testify in multiple ways: ‘”by knowledge, skill,

experience, training, or education’” and “not necessarily unqualified simply because

her experience does not precisely match the matter at hand.” Furmanite Am., Inc.,

506 F. Supp. 2d at 1129 (citing Maiz, 253 F.3d at 665, 669). “Determining whether

a witness is qualified to testify as an expert ‘requires the trial court to examine the

credentials of the proposed expert in light of the subject matter of the proposed

testimony.’” Clena Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661

(S.D. Fla. 2012) (quoting Jack v. Glaxo Wellcome, Inc., 239 F.Supp.2d 1308, 1314–16

(N.D. Ga. 2002)). “In other words, a district court must consider whether an expert

is qualified to testify competently regarding the matters he intends to address.”

Clena Investments, Inc., 280 F.R.D. at 661 (citing City of Tuscaloosa, 158 F.3d at

562–63).

Determining an expert’s qualifications is not a stringent inquiry “and so long

as the expert is minimally qualified, objections to the level of the expert’s expertise

[go] to credibility and weight, not admissibility.” Vision I Homeowners Ass’n, Inc. v.

Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009) (citations

omitted); see also Johnson v. Big Lots Stores, Inc., 2008 WL 1930681, *14 (E.D .La.

Apr. 29, 2008) (summarizing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507

n. 10 (5th Cir. 1999), as “explaining that after an individual satisfies the relatively

low threshold for qualification, the depth of one’s qualification may be the subject of

vigorous cross-examination”); see also Martinez v. Altec Indus., Inc., 2005 WL

1862677, *3 (M.D. Fla. Aug. 3, 2005) (quoting Rushing, 185 F.3d at 507 (“As long as

some reasonable indication of qualifications is adduced . . . qualifications become an

issue for the trier of fact rather than for the court in its gate-keeping capacity”)).

Here, Defendants complain that Mr. Lavigne is unqualified because he has

no experience (1) in the United States, (2) in the operation of an aircraft on a

charter certificate, or (3) in the operation of an MD87 aircraft. This is a plausible

argument because – while Mr. Lavigne has substantial experience in airworthiness,

airline setup, and asset management – his experience was acquired in Europe and

primarily on other planes.

But, Defendants’ argument is misplaced because “an expert’s qualifications

need not be narrowly tailored to the precise circumstances of [a] case[.]” Balthazar

Mgmt., LLC v. Beale St. Blues Co., Inc., 2018 WL 6928698, at *3 (S.D. Fla. Oct. 30,

2018); see also Furmanite Am., Inc. v. T.D. Williamson, 506 F. Supp. 2d 1126, 1129

(M.D. Fla. 2007) (“An expert is not necessarily unqualified simply because [his]

experience does not precisely match the matter at hand.”) (citing Maiz, 253 F.3d at

665). An expert “may testify regarding narrow sub-topics within his broader

expertise — notwithstanding a lack of specific experience with the narrower area —

as long as his testimony would still assist a trier of fact.” Remington v. Newbridge

Secs. Corp., 2014 WL 505153, at *4 (S.D. Fla. Feb. 7, 2014); see also Maiz, 253 F.3d

at 665 (11th Cir. 2001) (affirming the district court’s decision to permit an economic

expert to testify on damages relating to real-estate fraud, even though the expert

had no specific real-estate experience, finding the issue of damages was sufficiently

within the expert’s broader expertise).

Given Mr. Lavigne’s education credentials and substantial experience in

aircraft asset management, he meets the “relatively low threshold” for an expert to

be qualified. J.G. v. Carnival Corp., 2013 WL 752697, at *3 (S.D. Fla. Feb. 27,

2013) (citing Rushing v. Kan. City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999)

(explaining that once there exists “reasonable indication of qualifications,” those

qualifications then “become an issue for the trier of fact rather than for the court in

its gate-keeping capacity”)). Mr. Lavigne has, for example, a Master of Science

Degree in International Trades, and a Master of Arts Degree in Air Law and Air

Transport Economics. He also lectures around the world on aircraft asset

management and he has substantial work experience as an aviation consultant on

fleets in Europe and Africa.

Defendants nonetheless complain that Mr. Lavigne cannot qualify as an

expert because he has no experience with a MD87 aircraft. But, Defendants fail to

rely on a single case that requires an economic use expert to have specific

knowledge on the model of an aircraft before he or she can opine on a topic related

to it. Instead, “a witness who possesses general knowledge of a subject may qualify

as an expert despite lacking specialized training or experience, so long as his

testimony would likely assist a trier of fact.” Whelan v. Royal Caribbean Cruises

Ltd., 976 F.Supp.2d 1328, 1331 (S.D. Fla. 2013). That is, so long as the expert is

“minimally qualified, objections to the level of the expert’s expertise go to credibility

and weight, not admissibility.” Nat’l Union Fire Ins. Co. of Pittsburgh v. Tyco

Integrated Sec., LLC, 2015 WL 11251759, at *1 (S.D. Fla. July 6, 2015) (citing Clena

Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012)).

Because Mr. Lavigne meets this threshold with a wealth of knowledge related to

aircraft economics, Defendants’ motion to exclude Mr. Lavigne as unqualified is

DENIED.3

B. Whether Mr. Lavigne’s Opinions are Reliable

Defendants’ next argument is that Mr. Lavigne’s opinions are unreliable

because he lacks any dependable methodology or scientific analysis. Defendants

claim, for instance, that Mr. Lavigne has been unable to provide any example of

another MD87 aircraft operated in the United States under a charter certificate at

the hours, price, or profit that he suggests the Aircraft could have been operated.

Defendants also contend that Mr. Lavigne has not even reviewed the airworthiness

of the Aircraft nor has he provided any opinion as to the reasonable length of time it

3 While Mr. Lavigne’s experience qualifies him as an expert in this case, this is

not to say that he is impervious to impeachment. It merely means that Defendants’

arguments are more appropriately directed at the weight of Mr. Lavigne’s opinion,

as opposed to his qualifications.

should have taken to replace the missing avionics. Instead, Mr. Lavigne opines that

the Aircraft should have been able to generate over $100,000 in profit each month

for twenty-seven months between the date of the loss and the date of the expert

report without an examination of the history of the Aircraft. Defendants suggest

that this is a fatal flaw in Mr. Lavigne’s opinion because the Aircraft sat unused at

Opa Locka Airport for years prior to the date of the theft. Therefore, Defendants

request that Mr. Lavigne’s opinions be excluded for relying on nothing more than

pure speculation.

In addition, Defendants claim that Mr. Lavigne contacted unknown aviation

brokers in forming his opinions. Defendants take issue with this tactic because

none of the aviation brokers that Mr. Lavigne relied upon have purportedly been

identified to establish their independent reliability as to their knowledge of the

Aircraft. Defendants posit that they are now unable to verify if any of the

knowledge that Mr. Lavigne received was sound and that his opinions must be

excluded as a result.

“The reliability standard is established by Rule 702’s requirement that an

expert’s testimony pertain to ‘scientific . . . knowledge,’ since the adjective ‘scientific’

implies a grounding in science’s methods and procedures, while the word

‘knowledge’ connotes a body of known facts or of ideas inferred from such facts or

accepted as true on good grounds.” Daubert, 509 U.S. at 580. This entails an

assessment of whether the “methodology underlying the testimony is scientifically

valid.” Id. at 592. The four non-exhaustive factors used to evaluate the reliability

of a scientific expert opinion include the following:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community.

Frazier, 387 F.3d at 1262 (citations omitted).

There is no doubt that Defendants have presented a plethora of reasons as to

why a jury should not consider Mr. Lavigne’s opinions to be controlling. The

problem with these arguments is that none of them are sufficient for a wholesale

exclusion under Daubert. Take, for instance, Defendants’ argument that Mr.

Lavigne failed to evaluate the plane’s airworthiness, the plane’s logbooks, or the

fact that the plane sat on a ramp at the airport for years prior to the date of the

theft. None of these arguments undermine the methodology that Mr. Lavigne used

in calculating the damages that Plaintiffs sustained.

Instead, the methodology is premised on profits, costs, number of flight

hours, and revenue loss. Defendants take exception with these calculations because

they are entirely unsupported. But, Mr. Lavigne’s calculations rely, in part, on his

nineteen years of experience managing aircraft fleet costs and his gathering of data

on operational costs. Defendants then claim that Mr. Lavigne must be excluded

because he relied on unknown brokers for price and hour data. This is also an

insufficient reason to strike Mr. Lavigne because – even if more accurate evidence

could have been obtained – Defendants have not shown that Mr. Lavigne is

unreliable under Daubert. In fact, an expert “may rely on hearsay if it is of the type

of evidence reasonably relied on by experts in the particular field.” United States v.

Allen, 190 F. App’x 785, 787 (11th Cir. 2006); see also Fed. R. Evid. 703 (“If experts

in the particular field would reasonably rely on those kinds of facts or data in

forming an opinion on the subject, they need not be admissible for the opinion to be

admitted.”). And given that Mr. Lavigne testified that private luxury aircraft

owners do not publish their rates and hours, there is sufficient evidence in this

record that an expert must acquire market data from brokers. Defendants may, of

course, challenge the accuracy of this representation and the data that Mr. Lavigne

relies upon but that again goes to weight – not admissibility.

In a final attempt to undermine Mr. Lavigne, Defendants claim that they had

no way of verifying the brokers that provided data to Mr. Lavigne in his evaluation

of Plaintiffs’ damages. But, this is inaccurate because, during Mr. Lavigne’s

deposition, he specifically identified the brokers’ names, backgrounds, and contact

information that he relied upon. He also described their knowledge in the aviation

field and explained how he chose them for the data he needed to render an opinion.

[D.E. 73-2]. If Defendants wanted to learn more about these brokers and the data

that they provided, they had an opportunity to do so. They could have, for example,

interviewed the brokers and examined the specifics underlying the data that they

gave to Mr. Lavigne. Yet, Defendants apparently chose not to do so and that

decision has no bearing on whether Mr. Lavigne is now unreliable. Therefore,

Defendants’ motion to exclude Mr. Lavigne as an unreliable expert is DENIED.

C. Whether Mr. Lavigne’s Opinions are Helpful

The final factor to consider is whether an expert will be helpful to the trier of

fact. “[E]xpert testimony is admissible if it concerns matters that are beyond the

understanding of the average lay person” and offers something “more than what

lawyers for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262-

63 (citations omitted). While “[a]n expert may testify as to his opinions on an

ultimate issue of fact . . . he ‘may not testify as to his opinion regarding ultimate

legal conclusions.’” Umana-Fowler v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120,

1122 (S.D. Fla. 2014) (quoting Delatorre, 308 F. App’x at 383). The Eleventh Circuit

has also made clear that “merely telling the jury what result to reach is unhelpful

and inappropriate.” Umana-Fowler, 49 F. Supp. 3d at 1122 (citing Montgomery v.

Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)).

Defendants claim that Mr. Lavigne’s opinions will not assist the trier of fact

because they rely on unsupported data that will merely serve to confuse the jury.

The Court need not give much consideration to this argument because it is merely a

subset of the reliability prong that we have already considered. “[A]lthough there is

some overlap among the inquiries into an expert’s qualifications, the reliability of

his proffered opinion and the helpfulness of that opinion, these are distinct concepts

that courts and litigants must take care not to conflate.” Quiet Tech, 326 F.3d at

1341. Defendants have done exactly what the Eleventh Circuit has cautioned

against because they have conflated the reliability and helpfulness prong without

any new reasons in support of the latter. Because we have considered the facts and

assumptions underlying Mr. Lavigne’s opinions and found that they are more

appropriately directed at their weight – as opposed to their admissibility –

Defendants have not presented a persuasive reason as to how Mr. Lavigne’s

opinions are unhelpful to the trier of fact. Accordingly, Mr. Lavigne’s opinions do

not run afoul of the qualifications, reliability, or helpfulness prongs and thus

Defendants’ Daubert motion to exclude them is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Daubert motion to exclude Mr.

Lavigne’s opinions is DENIED. [D.E. 66].

DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of

February, 2020.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge