Sikkelee v. Precision Airmotive Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JILL SIKKELEE, individually and as No. 4:07-CV-00886

personal representative of the ESTATE

OF DAVID SIKKELEE, Deceased, (Judge Brann)

Plaintiff,

v.

PRECISION AIRMOTIVE

CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION

MARCH 1, 2021

I. BACKGROUND

In 2007, Jill Sikkelee filed a complaint related to the 2005 death of her

husband, David Sikkelee; that complaint was subsequently twice amended, most

recently in 2011.1 In the second amended complaint, Sikkelee alleges that David

Sikkelee’s private plane crashed after the screws holding the plane’s MA-4SPA

model carburetor’s fuel bowl to its throttle body loosened, causing the engine to

lose power. She alleges that Lycoming Engines (“Lycoming”), a subsidiary of

Avco Corporation, designed, manufactured, and sold the engine that incorporated

the allegedly defective carburetor. Sikkelee further alleges that Lycoming was

aware of numerous problems and defects with the screws and locking mechanism

that attached the carburetor halves together but failed to correct those issues and

instead covered them up. Lycoming in turn argues that no mechanical issues

contributed to the crash. Rather, it asserts that Mr. Sikkelee tried to climb in

altitude too quickly to avoid mountains during takeoff, which resulted in an

aerodynamic stall that caused the plane to lose lift and crash.

In 1969, Lycoming manufactured the engine installed on David Sikkelee’s

aircraft at the time of the accident. The engine underwent an overhaul in 2004,

during which an overhauled model MA-4SPA carburetor was installed on the

airplane. The carburetor was designed and manufactured by Marvel-Schebler and

was overhauled by Kelly Aerospace (“Kelly”). Kelly holds a Federal Aviation

Administration (FAA) Parts Manufacturer Approval (PMA) certificate2 and an

FAA repair station certificate authorizing it to manufacture replacement parts, and

to repair and overhaul carburetors independently of the engine manufacturer.

During the 2004 carburetor overhaul, Kelly replaced a number of parts, including

the fuel bowl screws, lock tab washers, and fuel bowl gasket. The carburetor also

2 An FAA PMA certification is a combined design and production approval for modification

and replacement articles. The design approval phase of the PMA process certifies that a

replacement or modification article complies with the airworthiness standards of eligible

products (aircraft, engine, or propeller). The applicant shows this compliance through tests and

included a replacement throttle body and fuel bowl of unknown age, origin, and

condition.3

In 2014, this Court granted Lycoming partial summary judgment on the

ground that the FAA’s issuance of a type certificate for the engine meant that the

federal standard of care had been satisfied and Lycoming was not negligent or

strictly liable.4 The Court denied summary judgment on Sikkelee’s failure-to-warn

claims, which were based on Lycoming’s alleged violation of 14 C.F.R. § 21.3 due

to its failure to “report any failure, malfunction, or defect in any product, part,

process, or article” that Lycoming made.5

On appeal, the United States Court of Appeals for the Third Circuit held that

“field preemption does not apply to state-law aircraft products liability claims

because (1) the Federal Aviation Act, the General Aviation Revitalization Act of

1994, and the regulations promulgated by the [FAA] reflect that Congress did not

intend to preempt aircraft products liability claims in a categorical way; (2)

Congress has not created a federal standard of care for persons injured by defective

airplanes; and (3) the type certification process cannot as a categorical matter

displace the need for compliance in this context with state standards of care.”6 The

3 Doc. 617 at 8-9.

4 Doc. 495.

5 Id.

6 Sikkelee v. Precision Airmotive Corp., 907 F.3d 701, 708 (3d Cir. 2018) (quoting Sikkelee v.

Precision Airmotive Corp., 822 F.3d 680, 683, 696 (3d Cir. 2016)) (internal quotation marks

Third Circuit thus held that “aircraft products liability cases like Sikkelee’s may

proceed using a state standard of care, subject to traditional principles of conflict

preemption, including in connection with the specifications expressly set forth in a

given type certificate.”7

On remand, Lycoming again moved for summary judgment, asserting that

Sikkelee’s claims were subject to conflict preemption and would, in any event, fail

under Pennsylvania law.8 This Court again granted summary judgment in

Lycoming’s favor, concluding that Sikkelee’s claims were conflict-preempted and,

even if they were not, Lycoming was entitled to summary judgment on Sikkelee’s

strict liability and negligence claims based on Pennsylvania law.9 Sikkelee again

appealed, and the Third Circuit again reversed in part, holding that this “Court

erred in concluding Sikkelee’s claims are conflict-preempted because Lycoming

has not produced clear evidence that the FAA would not have allowed it to change

the engine’s design as set forth in the type certificate. The Court also erred in

granting Lycoming summary judgment on Sikkelee’s strict liability and negligence

claims because there are genuine disputes of material fact concerning, among other

things, causation.”10

7 Id. (internal quotation marks omitted).

8 Doc. 534.

9 Doc. 565.

After the matter was again remanded to this Court, preparations for trial

began, and Daubert motions were filed and ruled upon.11 The parties have now

filed a number of motions in limine. Sikkelee has filed five motions in limine,

including motions to preclude: (1) evidence of statistics and studies upon which

Lycoming’s expert witness Jeffrey Edwards relies in reaching his expert opinion;

(2) evidence of propeller damage comparisons conducted by Lycoming’s expert

witness Leslie Doud; (3) certain statements made by an FAA inspector; (4)

complaints about the airplane’s prior maintenance—or lack thereof; and (5)

evidence of claims that were previously resolved.12 Lycoming in turn has also

filed five motions in limine, including motions to exclude: (1) evidence of service

difficulty reports, service information records, warranty claims, and other lawsuits;

(2) the expert testimony of Michael Thomson; (3) evidence of alleged carburetor

defects that indisputably were not related to the accident; (4) evidence of

subsequent remedial measures and other post-accident evidence; and (5) the

untimely affidavit and deposition testimony of Emagene Maar.13

The parties have filed response and reply briefs, and the motions are ripe for

disposition. After reviewing the briefs and evidence, as discussed below, some of

the motions will be granted, while some will be denied.

11 Docs. 707, 708.

12 Docs. 651, 653, 655, 657, 659.

II. DISCUSSION

Courts exercise discretion to rule in limine on evidentiary issues “in

appropriate cases.”14 While motions in limine may serve as a useful pretrial tool

that enables more in-depth briefing than would be available at trial, a court may

defer ruling on such motions “if the context of trial would provide clarity.”15

“[M]otions in limine often present issues for which final decision is best reserved

for a specific trial situation.”16 Thus, certain motions, “especially ones that

encompass broad classes of evidence, should generally be deferred until trial to

allow for the resolution of questions of foundation, relevancy, and potential

prejudice in proper context.”17 Specifically, “pretrial Rule 403 exclusions should

rarely be granted . . . [as] a court cannot fairly ascertain the potential relevance of

evidence for Rule 403 purposes until it has a full record relevant to the putatively

objectionable evidence.”18 Regardless, “in limine rulings are not binding on the

trial judge, and the judge may always change his mind during the course of a

trial.”19

14 In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other

grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

15 Frintner v. TruePosition, 892 F. Supp. 2d 699, 707 (E.D. Pa. 2012).

16 Walden v. Georgia-Pacific Corp., 126 F.3d 506, 518 n.10 (3d Cir. 1997).

17 Leonard v. Stemetech Health Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013).

18 In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990).

A. Motion to Preclude Evidence of Statistics and Studies

First, Sikkelee seeks to preclude Lycoming’s expert, Jeffrey Edwards, from

introducing evidence of statistics and studies that demonstrate that the majority of

airplane accidents are caused by pilot error.20 Sikkelee argues that such evidence is

irrelevant and, thus, inadmissible under Federal Rule of Evidence 402.21

Specifically, Sikkelee contends that the prior accidents referenced in those

statistics and studies are not substantially similar to the accident at issue here, and

there is no way to examine the underlying data.22 She further asserts that the

negligence of other pilots is not probative of what caused Mr. Sikkelee’s crash and

constitutes improper propensity evidence.23 Finally, Sikkelee argues that,

regardless of whether the evidence is facially admissible, it should be excluded

under Federal Rule of Evidence 403, as any probative value is substantially

outweighed by the danger of unfair prejudice.24

Lycoming responds that Edwards may testify regarding the facts and data

that form the basis of his expert opinion, in accordance with Federal Rule of

Evidence 703, as the studies and statistics are the type relied upon by experts in the

20 Doc. 651.

21 Doc. 652.

22 Id. at 8-10.

23 Id. at 10-12.

field of aircraft accident reconstructions, and the probative value of that evidence

substantially outweighs its prejudicial effect.25

Federal Rule of Evidence 703 provides that:

An expert may base an opinion on facts or data in the case

that the expert has been made aware of or personally

observed. 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. But if the facts or data would

otherwise be inadmissible, the proponent of the opinion

may disclose them to the jury only if their probative value

in helping the jury evaluate the opinion substantially

outweighs their prejudicial effect.

Thus, “[i]f the facts are of the type ‘reasonably relied upon’ by experts in the

particular field in forming opinions or inferences upon a subject, the facts or data

need not be independently admissible in evidence” for the expert to rely upon

them.26 However, in order for those facts to be presented to the jury, the Court

must determine that the balancing test described by Rule 703 weighs in favor of

admitting the evidence at trial.

The Court concludes that, under that balancing test, the studies and statistics

upon which Edwards relies in reaching his expert opinion are not admissible at trial

in their raw form.27 As Lycoming notes in its brief in opposition to this motion,

25 Doc. 682.

26 Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002).

27 Although Sikkelee disputes that the studies and statistics are the type of evidence that aircraft

accident investigators reasonably rely upon in conducting their investigations (Doc. 687 at 2-

4), Edwards testified at the Daubert hearing that such evidence is important in determining the

Edwards relies upon the statistics and studies “to evaluate potential risk factors and

identify other potentially relevant factors regarding general aviation accidents and

evaluated whether those risk factors were present under the facts in this case.”28

After identifying risk factors that David Sikkelee allegedly presented, Edwards

“conducted a full reconstruction of the accident, considered witnesses statements,

the aircraft wreckage, and the pilot’s experience, among other factors, to

determine” the cause of the crash.29

Given this, the Court sees relatively little probative value in revealing to the

jury the statistics and information that Edwards used to determine general risk

factors for crashes—and certainly not a sufficient amount of probative value that

the Court could reasonably determine that the “probative value in helping the jury

evaluate the opinion substantially outweighs their prejudicial effect.”30 This does

not means that Edwards will not be permitted to testify as to the bases of his

opinion and how he reached that opinion.

Nevertheless, there is no reason why Edwards cannot explain his expert

opinion by merely referencing the fact that he identified certain pilot risk factors,

explain how he determined that these risk factors were present when the aircraft

relied upon by aircraft accident investigators. The Court concludes, as it did in resolving the

Daubert motion, that experts in Edwards’ field reasonably rely upon that evidence, and

Edwards therefore may rely on such statistics and studies in formulating his expert opinion.

28 Doc. 682 at 11.

29 Id.

that Mr. Sikkelee piloted crashed,31 and then explain why he believes that Mr.

Sikkelee’s actions caused the accident. There is nothing terribly difficult to

comprehend about Edwards’ opinion as it relates to the risk factors or how those

factors may have played a role in the accident. Moreover, the use of statistics and

studies to explain how Edwards determined that certain risk factors are present in

pilots may confuse the jury. Rather than be presented with a straightforward

discussion of risk factors for flying, the jury would be inundated with numbers,

statistics, and studies to try to make sense of—after having been instructed that

such numbers and statistics may not be used for any purpose other than to evaluate

Edwards’ opinion.

Accordingly, Sikkelee’s motion in limine to preclude the admission of

statistics and studies referenced in Edwards’ expert report is conditionally granted.

Edwards may testify that he identified certain pilot risk factors, set forth what those

risk factors are, and explain why he believes that those risk factors were present

when the aircraft that Mr. Sikkelee piloted crashed shortly after takeoff. Edwards

may not, however, directly reference the statistics and studies that he used to

determine that pilots in general present certain risk factors. The Court may revisit

this determination at the time of trial upon appropriate motion, should it become

31 Under the Rules of Evidence, Edwards may offer his opinion without disclosing to the jury the

facts and data underlying that opinion, except that “the expert may be required to disclose those

clear that such evidence is necessary for the jury to properly understand and

evaluate Edwards’ expert opinion.

B. Motion to Preclude Evidence of Propeller Damage Comparisons

Next, Sikkelee seeks to preclude the use of propeller damage comparisons

that Lycoming’s expert Leslie Doud conducted based on aircraft accidents

contained on the NTSB’s Public Docket.32 Doud reviewed eight accidents where

an airplane allegedly impacted the ground under high engine power, and five

accidents where an airplane allegedly impacted the ground under low or no engine

power to confirm certain damage signatures to the propeller blades under both

scenarios.33 Sikkelee contends that Doud analyzes too few accidents for his

findings to be proffered as a general principal, and he does not sufficiently analyze

the conditions involved in those accidents.34 Sikkelee argues that, additionally,

Doud fails to define what is high power and, thus, fails to establish that Mr.

Sikkelee’s accident falls into either the high or low power category, meaning that

Doud’s analysis is not sufficiently probative to be admitted into evidence.35

Sikkelee also asserts that Lycoming has not demonstrated that the accidents

that Doud analyzed are substantially similar to Mr. Sikkelee’s accident and,

therefore, has not demonstrated that the analysis is admissible.36 To the contrary,

32 Doc. 653.

33 Doc. 613-4 at 33-41.

34 Doc. 654 at 4-6.

35 Id. at 6.

Sikkelee argues that the accidents referenced by Doud were all markedly dissimilar

to Mr. Sikkelee’s accident.37 Finally, even if Doud’s analysis were facially

admissible, Sikkelee contends that it should be excluded under Federal Rule of

Evidence 403, as any probative value is substantially outweighed by its prejudice

and the danger of misleading the jury or wasting time at trial.38

Lycoming responds that Doud’s analysis is admissible under Federal Rule of

Evidence 703, as Doud applied reliable science, including relying on authoritative

documents that detail what types of propeller damage are indicative of high or low

engine power and well-accepted principals of trigonometry to calculate engine

revolutions per minute (RPM) at the time that Mr. Sikkelee’s plane impacted the

ground.39 Moreover, Lycoming contends that the accidents cited by Doud need not

be substantially similar to the accident at issue here, as Doud’s analysis is used to

verify the accuracy of the methodology that he employed to determine that

propeller damage was indicative of high engine power at the moment of impact,

and does not use it to prove causation.40 Finally, Lycoming asserts that the

probative value of Doud’s analysis is not substantially outweighed by any

prejudice.41

37 Id.

38 Id. at 13-14.

39 Doc. 683 at 6-8.

40 Id. at 10-13.

As an initial matter, although Sikkelee cites Barker v. Deere & Co.42 for the

proposition that, for Doud’s analysis to be relevant and admissible, Lycoming must

demonstrate that the accidents Doud analyzed occurred under circumstances that

are substantially similar to the accident at issue here,43 the Court finds that Barker

is not applicable here.

In Barker, the Third Circuit held that “when a plaintiff attempts to introduce

evidence of other accidents as direct proof of a design defect, the evidence is

admissible only if the proponent demonstrates that the accidents occurred under

circumstances substantially similar to those at issue in the case at bar.”44 The court

emphasized that such a requirement “is especially important in cases where the

evidence is proffered to show the existence of a design defect” since, “[i]n such

cases, the jury is invited to infer from the presence of other accidents that a design

defect existed which contributed to the plaintiffs’ injuries.”45 The Third Circuit’s

plain language differentiates Barker from this matter, as its holding was limited to

circumstances where the plaintiff introduces evidence of other accidents “as direct

proof of a design defect.”46 The court further implicitly limited its holding when it

noted that the general ruled it created applied to “prior occurrences and accidents

42 60 F.3d 158 (3d Cir. 1995).

43 Doc. 654 at 6-7.

44 60 F.3d at 162.

45 Id. at 162-63.

involving a product which is identical or substantially similar to the product which

has allegedly caused an injury.”47

Based upon the limitations present in that ruling, the Third Circuit has

distinguished Barker in circumstances where evidence of other accidents was

introduced to establish something other than direct proof of a design defect. In an

unpublished opinion, Snider v. Sterling Airways, Inc., the Third Circuit considered

an appeal of the district court’s decision to admit into evidence Certificates of

Compliance, Service Difficulty Reports, and other third-party evidence relating to

exhaust valve guide failures.48 Although there was no evidence in the record that

those accidents were substantially similar to the accident at issue in Snider, the

Third Circuit noted that “[t]his case did not involve a design defect, nor was the

evidence introduced to serve as direct evidence of a defect of any kind. Rather, it

was introduced to show that [the defendant] had knowledge that its exhaust valve

guides were dangerous.”49 Accordingly, evidence that the other accidents were

substantially similar to the accident at issue in that case was not required, and the

Third Circuit concluded that the defendant’s reliance on Barker was “patently

misplaced.”50

47 Id. (quoting 2A Louis Frumer & Melvin Friedman, Products Liability § 18.02[1], at 18-14 to

18–17 (1995) (emphasis added)).

48 758 F. App’x 283, 288 (3d Cir. 2018).

49 Id.

50 Id.; see also Samuel v. Ford Motor Co., 112 F. Supp. 2d 460, 464 (D. Md. 2000) (noting that

“the substantially similar test is only applicable if evidence is being offered to show product

Here, evidence of other accidents is not being introduced by the plaintiff as

direct proof of design defect but, rather, by the defendant to gain insight into

circumstances surrounding accident. In Doud’s opinion, the other accidents that he

analyzed help to demonstrate that, here, the airplane’s engine was operating at high

power; thus, those other accidents are not direct proof of a design defect—or lack

thereof—in the airplanes’ carburetors. Indeed, Doud’s analysis is not even being

used to prove causation—i.e., that any defect in any part of the airplane caused or

did not cause the accident. The analysis is being used to show only that the engine

was operating at high power at the time of impact; such evidence leaves open the

possibility that the accident could have been caused by any number of issues,

including mechanical issues not related to the engine. Moreover, Doud’s opinion

does not analyze the product which allegedly caused the injury—the airplane’s

carburetor—but rather, is analyzing an entirely different component—the

airplane’s propeller.

Accordingly, the Court concludes that Sikkelee’s reliance on Barker is

misplaced, and Lycoming need not demonstrate that the other accidents were

substantially similar to the accident at issue here to establish that those accidents

are relevant.51 Such evidence is not necessary for Doud’s analysis to have the

was offered as rebuttal to [expert’s] testimony about automobile stability factors, and was

intended to demonstrate general weaknesses in his testing and theories on this subject”).

51 Even if Barker were applicable here, courts generally conclude that “[w]hether accidents are

substantially similar depends largely upon the theory of the case: Differences in the nature of

“tendency to make a fact more or less probable than it would be without the

evidence.”52 Unlike when evidence of other accidents is used to demonstrate that a

defective product caused the crash, substantial similarity is not needed to

demonstrate that certain characteristics are indicative of engine power at the time

of a crash, since evidence of what caused the accident is not determinative of these

propeller damage signatures.53 Although the type of surface impacted, degree of

angle, and other issues may change the damage signatures, these are issues of

weight to be explored on cross-examination, rather than issues of admissibility.

As Sikkelee accurately notes, the McCreary white paper—upon which Doud

relies in conducting his propeller damage analysis—cautions that propeller damage

is “dependent upon the obstructions encountered, such as trees, water, soil, rocks,

etc., and the manner in which it engages such obstructions, as determined by the

speed, attitude, and path (angle) of aircraft during the impact sequence. Each

Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir. 1988) (internal quotation marks

omitted). Thus, substantial similarity is required only as to the relevant factors in the accident,

and “differences between the accidents not affecting their substantial similarity go to the

weight of the evidence and not to its admissibility.” Id. at 1408. Here, the relevant factor

would be the engines’ power at the time of impact and, despite Sikkelee’s efforts to undermine

Doud’s conclusions with respect to the power being produced during the other accidents, there

is sufficient evidence that the engines were operating under high or low power at the time of

the accidents for that issue to go to a jury. For example, Sikkelee contends that the accident

involved in NTSB case number CEN13FA364 may have been caused by engine failure, as

witnesses stated that the airplane’s engine was “sputtering” before the crash; however, the

NTSB determined that the crash was caused by the pilot’s failure to retract the wing flaps

during takeoff, not by an engine failure. See Doc. 654-4.

52 Fed. R. Evid. 401.

53 Cf. Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) (holding “that

evidence of dissimilar accidents may be admitted when relevant to the witness’s credibility.

accident is unique.”54 Despite this cautionary note, the McCreary white paper

reaches conclusions about propeller damage signatures that are generally indicative

of high or low power based upon “common findings” in all airplane accidents.55

Thus, the fact that the general characteristics of a high power impact may

not exist in all accidents where the engine was producing high power does not

undermine the general findings of the McCreary white paper—or Doud’s analysis

confirming the findings of the McCreary white paper—that certain characteristics

are generally indicative of high power—it only provides Sikkelee with fertile

ground for cross-examination.56 Similarly, the fact that the different circumstances

presented in the other accidents may have impacted the propeller damage

signatures in those instances does not render Doud’s analysis wholly irrelevant

under Federal Rule of Evidence 403, as the analysis still maintains some probative

value, given that it confirms that some propeller damage signatures are generally

indicative of an engine’s power output. Propeller damage that indicates the engine

at issue here was producing high power would, in turn, make it more likely that the

54 Doc. 625-5 at 14.

55 Id. at 9; see id. at 9-11.

56 See Structural Polymer Grp., Ltd. v. Zoltek Corp., 543 F.3d 987, 997 (8th Cir. 2008) (“As a

rule, questions regarding the factual underpinnings of the expert’s opinion affect the weight

and credibility of her testimony, not its admissibility”); First Union Nat. Bank v. Benham, 423

F.3d 855, 862 (8th Cir. 2005) (noting that, as a “general rule, the factual basis of an expert

opinion goes to the credibility of the testimony, not the admissibility, and it is up to the

engine did not fail prior to the accident, meaning that Sikkelee’s theory of the

accident is incorrect.

With respect to Sikkelee’s argument that Doud may not offer his analysis to

prove that certain propeller damage is indicative of either low or high power, since

the sample size is too small to establish such a broad principal, the Court agrees.57

That is not, however, what Doud does in his opinion; Doud’s opinion regarding the

propeller damage characteristics that are indicative of low and high power is based

primarily in the principals set forth in the McCreary white paper.58 Doud uses his

analysis not to establish a broad principal of its own, but to confirm the

information contained in an authoritative text, which is permissible.

Finally, in regard to Sikkelee’s argument that Doud’s analysis and opinion

lacks any probative value because he does not define “high power” and “low

power” and, thus, cannot establish that Mr. Sikkelee’s accident falls into the high

power category,59 the Court finds this argument to be without merit. Sikkelee’s

own expert opines that the airplane at issue here was not operating under high

power at the time of impact but, rather, was operating under low power.60

Therefore, Doud’s analysis is clearly consistent with Lycoming’s theory that the

accident here occurred when the airplane’s engine was operating under high

57 Doc. 654 at 4-5.

58 The Court previously determined that Doud’s reliance on the McCreary white paper is

appropriate, and that his opinion based on that document is reliable. Doc. 707 at 44-46.

59 Doc. 654 at 6.

power, and undermines Sikkelee’s theory that the accident occurred when the

airplane’s engine was operating under low power.61

In sum, the Court concludes that there is no basis to exclude Doud’s analysis

of propeller damage that occurred in thirteen other accidents. Consequently,

Sikkelee’s motion in limine will be denied.

C. Motion to Preclude FAA Inspector Statements

Sikkelee seeks to exclude three statements made by lead FAA investigator

Jan McDougald. McDougald was appointed to investigate the causes of the

accident in this case.62 Following her investigation, and as she was required to

do,63 McDougald completed an 8020-23 form documenting relevant information

regarding the accident.64 Form 8020-23 provides for the FAA investigator to note

factual information regarding an accident and offer a “brief explanation of issues

involved.”65 Any new information learned after the original form is completed

must be submitted by amendment.66

61 The Court notes that any ambiguity in Doud’s definitions of low or high power could have

been cleared up had counsel inquired about this issue at the Daubert hearing. Thus, any lack

of clarity is partly due to Sikkelee’s counsel, who knew the basis of this motion in limine at

the time of the Daubert hearing but failed to avail themselves of the opportunity to explore this

issue when such opportunity was presented.

62 Doc. 684-2.

63 Id. at 526.

64 Doc. 684-1.

65 Id. at 5.

McDougald completed the 8020-23 form for this accident on August 18,

2005.67 In the space provided for a narrative explanation, McDougald summarized

witness statements describing the accident.68 She also made two comments. The

first was that “[h]ad the pilot survived the accident a reexamination of his pilot

skills would be appropriate.”69 The second was that “[i]nvestigation of the aircraft

and engine components (to the extent possible due to fire damage), has not

revealed any pre-impact damage or malfunction.”70

McDougald later submitted an amended form on September 23, 2005.71 The

amendment contained additional witness statements from a woman gardening

outside her home nearby and from Sikkelee.72 The form provides that a copy of

the passenger statement was received from the NTSB several days earlier.73 And it

notes that “[p]rior to receiving the written passenger statement, neither the NTSB

nor the FAA were able to interview the passenger due to attorney intervention.”74

In neither the original nor the amended form does McDougald identify the

factual basis for her conclusions regarding the role of malfunctioning equipment or

67 Doc. 684-1 at 5.

68 Id. at 5-6.

69 Id. at 5.

70 Id. at 6.

71 Id. at 9.

72 Id.

73 Id.

74 Id. Sikkelee posits that the NTSB had arranged for a telephonic interview with the passenger

and his counsel, but that the NTSB terminated the meeting after the passenger’s counsel

objected to the presence of “in-house investigators” for Lycoming and Cessna Aircraft

the need for the pilot to have received retraining, had he survived. She does not

explain how she reached these determinations or elaborate on her reasoning.

Further, McDougald does not provide any details regarding the procedures that she

followed in completing this investigation.

Sikkelee now moves to exclude the use of the following three statements

made from the 8020-23 form completed by McDougald:

 Had the pilot survived the accident a reexamination of his pilot skills

would be appropriate;

 Investigation of the aircraft and engine components (to the extent

possible due to fire damage), has not revealed any pre-impact damage

or malfunction; and

 Prior to receiving the written passenger statement, neither the NTSB

nor the FAA were able to interview the passenger due to attorney

intervention.

Sikkelee asserts that these three statements are hearsay, and that they do not

fall within the public-records exception.75 Moreover, she maintains that, in any

event, all three statements should be excluded under Federal Rule of Evidence 403

because their probative value is substantially outweighed by the danger of unfair

prejudice and misleading the jury. The Court agrees with Sikkelee that this

evidence should be excluded under Rule 403. Accordingly, Sikkelee’s motion to

exclude will be granted.76

75 Fed. R. Evid. 803(8).

76 Because the Court finds McDougald’s statements inadmissible under Rule 403, the Court

declines to reach the question of whether this evidence falls within the public-records exception

Under Federal Rule of Evidence 403, a court may “exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”77 “The

Rule 403 balancing between the probative value of the evidence sought to be

excluded and the prejudicial effect if the evidence is admitted, is ‘at its core, an

essentially discretionary one that gives the trial court significant latitude to exclude

evidence.’”78

“Rule 403 recognizes that a cost/benefit analysis must be employed to

determine whether or not to admit evidence; relevance alone does not ensure its

admissibility.”79 In other words, “evidence may be excluded if its probative value

is not worth the problems that its admission may cause.”80 To determine whether

evidence should be excluded under Rule 403, “‘the proper equation places on one

side the maximum reasonable probative force for the offered evidence,’ while ‘the

77 Fed. R. Evid. 403.

78 Burdyn v. Old Forge Borough, 330 F.R.D. 399, 413 (M.D. Pa. 2019) (quoting Johnson v. Elk

Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir. 2002)); see also Apotex, Inc. v. Cephalon, Inc., 255

F. Supp. 3d 604, 610 (E.D. Pa. 2017) (“The court is afforded ‘very substantial discretion’ in

conducting the Rule 403 balancing test.” (quoting United States v. Long, 574 F.2d 761, 767

(3d Cir. 1978))).

79 GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d, 76, 85 (3d Cir. 2019) (internal quotation marks

omitted) (quoting Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002)).

80 Coleman, 306 F.3d at 1343; see also Forrest v. Beloit Corp., 424 F.3d 344, 355 (3d Cir. 2005)

(internal quotation marks omitted) (“There is a strong presumption that relevant evidence

should be admitted, and thus for exclusion under Rule 403 to be justified, the probative value

of evidence must be ‘substantially outweighed’ by the problems in admitting it.” (quoting

other side of the equation should include the likely prejudicial impact of the

evidence.’”81

1. First Statement

The first statement Sikkelee challenges is: “Had the pilot survived the

accident a reexamination of his pilot skills would be appropriate.” Lycoming

argues that this evidence is highly probative because it can be used to show that the

lead FAA investigator determined that the pilot’s skills were deficient. This in turn

supports the proposition that the pilot was at fault for the accident.

The Court agrees that there is some probative value in this statement.

McDougald was charged with inquiring into whether the pilot’s skills (or lack

thereof) were a factor in the accident. McDougald is also experienced, which lends

credibility to her ultimate determination. However, the probative value of her

statement is limited by the fact that McDougald lacked authority to directly order a

pilot’s reexamination; as an investigator, she was authorized only to recommend

reexamination to the FAA, which would then make its own determination after

further review.82 Consequently, though this evidence shows that McDougald

would have recommended reexamination, it does not speak to whether the FAA

would have ultimately initiated reexamination.

81 Coleman, 306 F.3d at 1344 (emphasis in original) (quoting Federal Rules of Evidence Manual

242 (Stephen A. Saltzburg et al. eds., 7th ed. 1998)).

More importantly, this statement poses a high risk of prejudice. Because the

pilot died on impact, it is not possible to determine whether McDougald would

have actually submitted this recommendation, or whether the FAA would have

subsequently adopted it and begun the reexamination process. McDougald thus

gets the last word, at least from the FAA, regarding the possible deficiency in the

pilot’s skills. This is prejudicial because a juror might reasonably infer that

McDougald’s statement is the FAA’s official position on this issue, particularly

since Sikkelee would be unable to rebut this inference by pointing to subsequent

FAA proceedings or determinations.

Further, the risk of prejudice is heightened by the fact that Sikkelee is

prohibited from introducing the NTSB’s probable cause determination.

McDougald’s report bears the FAA and the federal government’s imprimatur, and

it is likely that a jury might interpret her statement as reflecting the conclusions of

the FAA and the government more broadly. Sikkelee, however, is unable to

counter this inference by citing to the NTSB’s probable cause determination,

which ultimately concluded that the accident was likely caused by a pre-impact

aircraft malfunction. Sikkelee would be unfairly disadvantaged if Lycoming is

able to invoke a federal agency’s findings while Sikkelee is prohibited from doing

the same. As a result, the Court concludes that the probative value of this

statement is substantially outweighed by the risk of prejudice.

2. Second Statement

The second statement Sikkelee seeks to exclude provides that: “Investigation

of the aircraft and engine components (to the extent possible due to fire damage),

has not revealed any pre-impact damage or malfunction.” Lycoming plans to use

this statement as evidence that an FAA investigator determined that there was no

evidence of pre-impact aircraft malfunction.

Though this statement goes to the central issue in this case (whether a pre-

impact malfunction caused the accident), its probative value is low. McDougald

qualifies her conclusion that there was no evidence of pre-impact aircraft

malfunction with the caveat that her investigation was hampered by fire damage.

McDougald does not explain how the fire damage impacted her inspection of the

plane, and does not offer any discussion as to how her investigation was

conducted. As a result, the primary value in this statement is that it comes from an

FAA investigator, whose duty it was to investigate and offer findings regarding the

cause of the accident.

But, for reasons discussed above, this statement also poses a high risk of

prejudice. Allowing Lycoming to introduce the suggestion that a federal

investigator believes that there was no pre-impact aircraft malfunction without

allowing Sikkelee to introduce the NTSB’s probable cause finding puts Sikkelee at

an unfair disadvantage. A jury considering solely this statement might believe that

the only government investigation of this accident has found that the plane did not

malfunction. And although Sikkelee intends to produce evidence showing that

aircraft malfunction did indeed cause the accident, Sikkelee is statutorily

prohibited from showing that a government agency agrees. Consequently, the

probative value of this statement is substantially outweighed by the risk of

prejudice.

3. Third Statement

Finally, the third statement that Sikkelee seeks to exclude is: “Prior to

receiving the written passenger statement, neither the NTSB nor the FAA were

able to interview the passenger due to attorney intervention.” Lycoming suggests

that the primary purpose of introducing this evidence is to possibly impeach the

credibility of the sole surviving passenger of the accident. It also appears that

Lycoming might use this evidence to frame the passenger as uncooperative with

the FAA and NTSB investigations.

However, this evidence is not probative of either of these assertions. It was

the passenger’s attorney who objected to the interviews, on the basis that

Lycoming and Cessna Aircraft Company investigators were also on the line.

Moreover, it was the NTSB investigator who ultimately terminated the meeting

and offered to send the passenger written questions (to which he responded). This

statement thus does not provide much, if any, evidentiary support to any

characterization of the passenger as uncooperative. Further, if Lycoming seeks to

impeach the passenger’s statements, they are free to use his written responses and

other evidence from these investigations.

The risk of prejudice from this statement is also relatively high, especially

when compared to its low probative value. As discussed previously, McDougald’s

report carries the weight of the federal government. Consequently, it is possible

that the jury might interpret McDougald’s statement as implying that the

government found Craig Sikkelee to be uncooperative. It would be extremely

difficult to undermine this inference because the statement comes from an FAA

investigator who was not even present at the meeting. As a result, this statement’s

probative value is substantially outweighed by the risk of prejudice.

D. Motion to Exclude Inadmissible Complaints About Maintenance

Sikkelee moves this Court to prevent Lycoming from introducing certain

evidence that she believes to be irrelevant and prejudicial.83 Specifically, Sikkelee

seeks to exclude evidence that: (1) the aircraft was “unairworthy” because the

passenger seat did not have a shoulder harness; (2) the aircraft was allegedly in

another accident two years prior to the event at issue, which required repair to the

left wing; (3) maintenance was not conducted in a timely manner a number of

years before the accident; and (4) Precision does not like its competitors’

component parts installed in carburetors as replacement parts.84 Sikkelee claims

83 Doc. 657.

that because the defense experts who raised these issues do not claim that these

problems were causally connected to the accident, this evidence should be

excluded under Federal Rules of Evidence 401 or 403.

Lycoming’s brief in opposition only contests the fourth piece of evidence.

Lycoming claims that it does not intend to “introduce affirmatively the other

evidence raised in Sikkelee’s motion.”85 Lycoming asks the Court to reserve

ruling on the other three issues, as Sikkelee’s case-in-chief may make such

evidence relevant in rebuttal. The Court will grant this request. The motion is

denied as to issues 1-3 without prejudice to Sikkelee’s ability to raise her

objections again during trial.

The fourth question deals with a bulletin issued by Precision Airmotive (the

“Bulletin”). The Bulletin included, among others, the following statement: “This

bulletin has been issued to remind owners, operators, overhaulers, and repairers of

the Precision Airmotive Corporation aviation carburetors of the possible adverse

consequences resulting from the use of UNAUTHORIZED parts in those

carburetors.”86 Lycoming argues that the evidence from the Bulletin, and perhaps

other evidence that Precision disapproved of replacement parts, help establish that

there were substantial and unforeseeable changes to the design.87

85 Doc. 685 at 2 n.1.

86 Id. Ex. A.

Rule 401 defines relevant evidence as that which “has any tendency to make

a fact more or less probable than it would be without the evidence,” if that “fact is

of consequence in determining the action.”88 Relevant evidence is generally

admissible, while irrelevant evidence is inadmissible.89 Even relevant evidence

may be excluded, however, if “its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”90

First, I find that the evidence at issue is relevant. Rule 401 does not set a

high bar for admissible evidence.91 This evidence appears to shed some light on

the question of foreseeability. Sikkelee’s argument goes to the weight the jury

should give this evidence, rather than the question of admissibility. Of course, the

probative value of this evidence must then be weighed against the risks

contemplated by Rule 403. Sikkelee points out a number of infirmities in the

proffered evidence. Most notably, the Bulletin “does not warn of any specific

problems which actually exist in the PMA replacement components.”92 Despite

the lack of specificity, the Bulletin “contains aggressive warnings and disclaimers

88 Fed. R. Evid. 401.

89 Fed. R. Evid. 402.

90 Fed. R. Evid. 403 (emphasis added).

91 Hurley v. Atl. City Police Dep't, 174 F.3d 95, 109–10 (3d Cir. 1999) (citing In re Paoli R.R.

Yard PCB Litig., 35 F.3d at 782-83).

of liability.”93 In turn, Sikkelee claims that rebutting this evidence will necessitate

cross-examination and potentially calling a witness.94

These concerns do not justify excluding the evidence at this time. Sikkelee

has clearly laid out her plans for discrediting the evidence Lycoming intends to

introduce. It seems that any potential prejudice or confusion to the jury can be

mitigated by cross-examination and, if necessary, limiting instructions. In her

reply brief, Sikkelee analogizes to no case finding that similar evidence should be

excluded under Rule 403. Given the strong cross examination that Sikkelee clearly

intends to execute, the Court cannot say—again, at least at this time—that the

probative value of Lycoming’s evidence is substantially outweighed by the

potential problems posed by admitting it. The Court denies the motion as to this

issue without prejudice to Sikkelee’s ability to raise it again during trial.

E. Motion to Exclude Evidence of Resolved Claims

Sikkelee next seeks to exclude (1) any evidence that she settled with Kelly

and Precision, and (2) prior allegations that she raised against Kelly and others in a

South Carolina lawsuit. Sikkelee has settled her claims against Kelly and

Precision. Naturally, Kelly and Precision do not plan to offer a defense or put on a

case at trial. Nevertheless, both parties remain as nominal defendants in this action

93 Id.

for the sole purpose of allowing Lycoming to establish joint-tortfeasor status.95

Sikkelee now moves to exclude evidence of her settlement agreements under Rule

408. For purposes of judicial economy, the Court addresses in this decision only

whether the settlement evidence must be excluded. The Court reserves its opinion

on whether, and under what circumstances, allegations from the South Carolina

action may be admitted against Sikkelee.

Rule 408 generally prohibits the introduction of settlement agreements into

evidence. Motivated by “strong public policy” favoring the amicable resolution of

disputes,96 Rule 408 precludes the admission of settlement agreements where used

to “prove or disprove the validity or amount of a disputed claim.”97 “The purpose

of the rule is to encourage full and frank disclosure between the parties in order to

promote settlements rather than protracted litigation.”98 And if offers to

compromise “were to be taken as an admission of liability, voluntary efforts at

settlement would be chilled.”99

Nevertheless, Rule 408 does not rule out the admission of settlement

evidence in all circumstances.100 Rather, when not used to “prove or disprove the

95 Sikkelee v. Precision Airmotive Corp., 2011 WL 1344635, at *7 (M.D. Pa. April 8, 2011) (“[A]

non-settling defendant has a ‘right to require a codefendant settling on a pro rata release to

remain in the case through trial and verdict to establish joint tortfeasor status.’” (quoting

Claudio v. Dean Mach. Co., 786 A.2d 224, 233 (Pa. Super. 2002), rev’d on other rounds, 831

A.2d 140 (Pa. 2003))).

96 Trout v. Milton S. Hershey Med. Ctr., 572 F. Supp. 2d 591, 600 (M.D. Pa. 2008).

97 Fed. R. Evid. 408(a).

98 Olin Corp. v. Ins. Co. of N. Am., 603 F. Supp. 445, 449 (S.D.N.Y. 1985)

99 Perzinski v. Chevron Chem. Co., 503 F.2d 654, 658 (7th Cir. 1974).

validity or amount of a disputed claim,” settlements are admissible where offered

for “another purpose, such as proving a witness’s bias or prejudice, negating a

contention of undue delay, or proving an effort to obstruct a criminal investigation

or prosecution.”101 The question of whether settlement evidence should be

admitted for “another purpose” falls squarely within a district court’s discretion.102

In conducting this analysis, “courts will have to consider the language that

delineates the scope of the rule as well as the policy that supports it.”103 It is

especially important to examine the policy goals underlying Rule 408 when

deciding whether settlement evidence should be admitted for “another purpose.”104

Accordingly, the Court is cognizant that “[s]ettlements have always been looked

upon with favor,” and that the ultimate purpose of Rule 408 is to encourage

amicable resolutions.105 The Court also observes that “when the issue is doubtful,

101 Id.

102 U.S. Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 946 (5th Cir. 1990)

(“The district court has broad discretion in determining whether to admit evidence of

settlement for another purpose and we will not disturb that decision lightly.”); Leon v. Fedex

Ground Package Sys., Inc., 163 F. Supp. 3d 1050, 1069 (D.N.M. 2016) (“Settlement evidence

is not . . . automatically admissible because a party offers it for ‘another purpose’ under Rule

408.”) (citations omitted); Sterling Sav. Bank v. Citadel Dev. Co., Inc., 656 F. Supp. 2d 1248,

1254-55 (D. Or. 2009) (citing Josephs v. Pac. Bell, 443 F.3d 1050, 1064 (9th Cir. 2006);

Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 654 (4th Cir. 1988)).

103 Sterling Sav. Bank, 656 F. Supp. 2d at 1254-55 (internal quotation marks omitted) (first quoting

Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5314 (2009);

and then citing Hudspeth v. C.I.R., 914 F.2d 1207, 1213-14 (9th Cir. 1990)).

104 See, e.g., Trout, 572 F. Supp. 2d at 599 (relying on Rule 408’s “strong public policy” when

determining whether a party’s settlement agreement was admissible under Rule 408(b)).

105 Scaramuzzo v. Glenmore Distilleries, Co., 501 F. Supp. 727, 733 (N.D. Ill. 1980) (internal

quotation marks omitted) (quoting Hawthorne v. Eckerson Co., 77 F.2d 844, 847 (2d Cir.

the better practice is to exclude evidence of compromises or compromise

offers.”106

Lycoming claims that it is necessary to introduce evidence that Sikkelee has

settled with Kelly and Precision in order to provide “factual background” to the

jury explaining why these parties are absent at trial. Lycoming intends to reduce

its liability by establishing that Kelly and Precision, not Lycoming, are primarily or

wholly at fault for Sikkelee’s injuries. As a result, Lycoming maintains that

informing the jury why Kelly and Precision are no longer involved in the case is

crucial to preventing juror speculation or confusion. In Lycoming’s view, this

evidence is admissible because it is not offered for purposes of proving or

disproving liability but for “another purpose” (i.e., providing context to the jury).

In support, Lycoming cites Haynes v. Manning.107 There, the court found

that introducing the fact that the plaintiff had settled with three non-parties was

appropriate under Rule 408 to “assist the trier of fact in understanding the factual

background” of the case.108 The court reasoned that the settlements were not being

proffered to prove or disprove liability, and that “[w]ithout evidence of why the

106 Bradbury v. Phillips Petrol. Co., 815 F.2d 1356, 1364 (10th Cir. 1987).

107 717 F. Supp. 730 (D. Kan. 1989), aff’d in part, rev’d in part on other grounds, 917 F.2d 450

(10th Cir. 1990).

other [parties] were not litigants, the jury would be confused and left to

speculate.”109

However, as Sikkelee points out, several courts from within this Circuit

facing similar situations have reached the opposite conclusion.110 For example, in

Trout v. Milton S. Hershey Medical Center, the defendant, a doctor charged with

malpractice, sought to introduce evidence of the plaintiff’s settlement with the

automobile driver who had injured him (and whose actions led to the plaintiff

being treated by the doctor).111 The defendant attempted to do so on the basis that

providing evidence of this settlement was necessary to preventing the plaintiff

from receiving a double recovery.112 Nevertheless, the court declined to admit this

evidence because it was in conflict with the policy goals of Rule 408.113

109 Id. (internal quotation marks omitted) (quoting MCI Comm’n v. AT&T, 708 F.2d 1081, 1152

(7th Cir. 1983) (“[S]ettlement negotiations are admissible to explain another dispute and to

assist the trier of fact in understanding the case.”).

110 E.g., Trout, 572 F. Supp. 2d at 594 (deciding to instruct the jury at the outset of the case only

that the plaintiff had “resolved” his claims against other parties); Mavrinac v. Emergency Med.

Ass’n of Pitssburgh, 2007 WL 4190714, at *1 (W.D. Pa. Nov. 21, 2007) (quoting Sweeten v.

Layson’s Home Improvement, 2007 WL 1189359, at *2 (M.D. Pa. April 19, 2007) (rejecting

this exception because “[t]o hold otherwise . . . would ‘discourage future plaintiffs from settling

with less than all defendants.’”).

111 Trout, 572 F. Supp. 2d at 600.

112 Id.

113 Id. (noting that admitting the evidence “would result in the [plaintiff’s] compromise being

‘offered against the compromiser’ to disclaim liability for a claim unrelated to the settlement,”

and that this would run “contrary to the policies underlying Rule 408.” (quoting Young v.

Verson Allsteel Press Co., 539 F. Supp. 193, 196, 198 (E.D. Pa. 1982))). The court also found

that “admission of the settlement agreement and claim documents would infect these

proceedings with collateral issues and that this taint cannot be cured by a limiting instruction.”

Given this, the Court concludes that admitting evidence of Sikkelee’s

settlements with Kelly and Precision is unwarranted. Though Lycoming maintains

that this evidence is necessary to prevent juror confusion, its admission actually

presents a high risk of causing it. Because Lycoming plans to present evidence of

Kelly’s and Precision’s culpability, it is likely that a jury may infer that Kelly and

Precision ultimately settled with Sikkelee because they were in fact liable. This is

highly problematic because it may lead the jury to reduce Lycoming’s liability on

an improper basis. This in turn would serve to punish Sikkelee for settling a

portion of her claims and thus would run counter to the policy goals underlying

Rule 408.

While wholesale admission of this evidence is inappropriate, Lycoming’s

efforts to provide the jury with factual background is not all for naught. In Trout,

after finding settlement evidence inadmissible under Rule 408, the court

nevertheless found a limiting instruction appropriate. Specifically, the court

instructed the jury at the outset of the case that “the claims against the automobile

tortfeasor have been resolved and that it must evaluate only the liability and

damages that proximately resulted from defendants’ actions.”114

In this case, and with an eye towards fashioning a limiting instruction that

balances the interests of both parties, the Court finds itself with three options.

114 Id. (citing Mavrinac, 2007 WL 4190714, at *2). The Court determined it most appropriate to

allow the parties to deliberate and come to an agreement regarding the appropriate phrasing of

First, it might inform the jury that Sikkelee has settled with Kelly and Precision,

but instruct the jury not to speculate on the basis of this information. Second, it

might issue the same instruction but use a word or phrase other than “settlement”

(i.e., stating that the parties “resolved” their claims).115 And third, the Court may

refrain from addressing the nature of the relationship between Kelly, Precision, and

Sikkelee and simply instruct the jury not to speculate as to why Kelly Aerospace

and Precision are not present at trial.

After careful consideration, the Court deems the third option most

appropriate. Rule 408 is motivated by a strong policy favoring settlement. And

adopting an approach that might prejudice Sikkelee for entering into settlement

agreements is inconsistent with the Rule’s purpose and aims. In a case such as this

one where the question is “doubtful,” it is best practice to err on the side of

caution. Accordingly, the Court grants Sikkelee’s motion to exclude evidence of

her settlements with Kelly and Precision. But it will instruct the jury at the outset

of the case, and before it is charged, that it should not speculate as to why Kelly

and Precision are not at trial.

F. Motion to Exclude Service Defect Reports, Service Information

Records, Warranty Claims, Other Lawsuits, and Subsequent

Similar Accidents

Lycoming seeks to exclude Service Defect Reports (“SDRs”), Service

Information Records (“SIRs”), warranty claims, other lawsuits, and an NTSB

report documenting an accident occurring in 2015. All of the challenged

documents relate to prior or subsequent incidents unrelated to the accident

underlying this case. Specifically, Sikkelee seeks to introduce the SDRs to

demonstrate that Lycoming was on notice that the carburetor lock-tab washers

were possibly defective. Sikkelee also seeks to introduce the NTSB report to

demonstrate causation and the existence of a defect.

This evidence is admissible only if the Court finds that the prior or

subsequent incidents documented in these reports are “substantially similar” to the

accident at issue in this case.116 Given the parties’ efforts to narrow the focus of

Lycoming’s motion, the only issue the Court need address is whether the incidents

from the SDRs and the NTSB report are substantially similar to the accident in this

case, and thus whether they are admissible.117

The FAA maintains an SDR database that allows individuals who come in

contact with an aircraft to report problems or issues that they believe may impact

116 Nesbitt v. Sears, Roebuck & Co., 415 F. Supp. 2d 530, 535-36 (E.D. Pa. 2005) (internal

quotation marks omitted) (emphasis added) (quoting Barker v. Deere & Co., 60 F.3d 158, 162

(3d Cir. 1995)).

117 Sikkelee has not contested Lycoming’s assertions that evidence of past warranty claims and

other lawsuits are inadmissible. Because the burden of establishing substantial similarity falls

on Sikkelee, and because Sikkelee has made no effort to meet this burden, the Court grants

Lycoming’s motion on the warranty claims and other lawsuits without further discussion.

Barker, 60 F.3d at 162 (noting that the burden of demonstrating substantial similarity falls

upon the proponent of the evidence). The Court defers ruling on whether the SIRs should be

admitted, as Sikkelee has indicated she intends to file these documents under seal in a later

aviation safety.118 When a person seeks to report such a problem, she does so by

submitting an SDR, which is sent to the FAA and is then incorporated into the

larger database.119 SDRs are frequently completed by certified mechanics and

repair stations who service aircraft on a “day-to-day basis.”120 However, there is

no prohibition forbidding a non-mechanic (such as an owner or manufacturer) from

submitting an SDR.121

The SDR database is fully searchable, and it allows interested persons to

query the system to identify reports dealing with certain types of parts or certain

types of aircraft.122 For example, one might search for all reports involving a

Cessna 172 aircraft, or all reports involving aircraft that used a Lycoming 0-320

engine. The purpose of this database is “to provide assistance to aircraft owners,

operators, maintenance organizations, and the [FAA] in identifying aircraft

problems encountered during service.”123

The accident at issue in this case involved a Cessna 172 aircraft, with a

Lycoming O-320-D2C engine, and a MA-4SPA carburetor. Sikkelee claims that

properly installed lock-tab washers used to secure the carburetor’s throttle body-to-

118 Doc. 663-2 at 38:24-39:5. The primary players submitting SDRs are aircraft maintenance

facilities, owners, and operators. Id. at 45:15-16.

119 Id. at 39:8-22, 42:1-22. In the field, an SDR is sometimes referred to as an “M or D form,”

which stands for a “malfunction or defect form.” Id. at 38:24-39:10.

120 Id. at 40:3-5.

121 Id. at 41:12-18 (noting that an aircraft’s owner may submit an SDR, but opining that this would

be unlikely given that owners “are usually not maintaining carburetors”).

122 Id. at 42:13-22.

bowl screws malfunctioned and allowed the screws to come loose. Sikkelee

maintains that these loose screws caused air and fuel seepage, which resulted in the

aircraft’s engine losing power. Further, Sikkelee argues that Lycoming’s Service

Bulletin 366 (“SB-366”) failed to prevent, and instead contributed to, the accident;

SB-366, issued in 1973, instructed those servicing the MA-4SPA carburetor to

adjust the lock-tab washers in a way that Sikkelee alleges damaged them.

The fifteen SDRs that Lycoming seeks to exclude share the following

characteristics. Each involved: (1) a Cessna 172 aircraft; (2) a Lycoming O-320

engine, although there is some variety as to the precise engine configuration used

(some aircrafts had an O-320-H2AD engine, some had an O-320-D2C engine, and

others had an O-320-E2C engine); (3) an MA-4SPA carburetor; (4) an incident

where the carburetor’s throttle body-to-bowl screws became loose; and (5) an

“anomaly in engine operation.”124 All except one of the SDRs were submitted

before the accident in this case.125 The NTSB report was submitted following an

aircraft accident in 2015.

In general, “evidence of prior accidents involving the same product under

similar circumstances” is admissible to show notice, causation, or the existence of

a defect.126 But admission is only appropriate where “the proponent demonstrates

124 Doc. 678 at 2. Most SDRs reported that the engine would not turn off. E.g., Doc. 663-3 at 3,

6, 7, 13, 16, 20. However, other complaints made in the SDRs include: throttle stickiness,

vibration, air seepage and leakage, and a carburetor fire. Id. at 4, 9, 11, 13, 16, 17, 20.

125 Id. at 18 (submitted on July 29, 2005).

that the accidents occurred under circumstances substantially similar to those at

issue in the case at bar.”127 Sikkelee seeks to introduce the SDRs to show only that

Lycoming had notice that the lock-tab washers were not adequately preventing the

MA-4SPA carburetor body-to-bowl screws from loosening.128 However, Sikkelee

also seeks to use the NTSB report as evidence of causation and to show the

existence of a defect.

1. SDRs

Lycoming seeks to exclude the SDRs on three grounds. First, Lycoming

maintains that establishing notice of a possible defect is irrelevant to Sikkelee’s

design defect claims. Second, Lycoming argues that the SDRs are not

substantially similar to the accident in this case. Third, Lycoming asserts that the

probative value of the SDRs is substantially outweighed by the risk of prejudice

and should be excluded under Rule 403.

127 Nesbitt, 415 F. Supp. 2d at 535-36 (emphasis added) (internal quotation marks omitted)

(quoting Barker, 60 F.3d at 162). Because Sikkelee seeks to introduce the SDRs and NTSB

report to demonstrate, inter alia, that Lycoming had notice of the allegedly defective condition,

the Court’s prior discussion with respect to Sikkelee’s motion in limine to exclude propeller

damage comparison (Doc. 653) is inapplicable here, and Sikkelee must demonstrate substantial

similarity.

128 Lycoming maintains that the SDRs constitute hearsay and thus are inadmissible for purposes

of proving the truth of the matter asserted. Specifically, Lycoming contends that the SDRs

consist of unverified statements from persons whose identities and whereabouts are

unascertainable. The Court agrees. However, it recognizes that the rule against hearsay does

not prohibit Sikkelee from introducing the SDRs for purposes of establishing notice. See

Collins By and Through Kay v. Seaboard Coast Line R.R. Co., 675 F.2d 1185, 1193-94 (11th

Cir. 1982) (citations omitted) (recognizing that similar accidents offered to prove notice are

a. Relevance

Lycoming first argues that the question of notice is irrelevant to Sikkelee’s

remaining claims, and thus that the SDRs may not be admitted for that purpose.

Sikkelee asserts two products-liability claims, one sounding in strict liability and

the other sounding in negligence. Both are based on the same alleged design

defect (regarding the lock-tab washers) and, under these theories, Sikkelee seeks

compensatory and punitive damages. Nevertheless, Lycoming maintains that

notice is irrelevant because Sikkelee’s failure to warn claim was dismissed, and

because notice is not related to, or probative of, Sikkelee’s remaining design-defect

claims.

Lycoming’s argument falls flat because it fails to acknowledge that just

because notice is irrelevant to a design-defect claim based on strict liability does

not mean notice is irrelevant to a design-defect claim based on negligence. In

Phillips v. Cricket Lighters, the Supreme Court of Pennsylvania discussed the

distinctions between strict liability and negligence.129 As Phillips explained,

“[s]trict liability examines the product itself, and sternly eschews considerations of

the reasonableness of the conduct of the manufacturer.”130 Conversely, “a

negligence cause of action revolves around an examination of the conduct of the

defendant.”131 Phillips subsequently acknowledged that whether a harm is

129 841 A.2d 1000, 1008 (Pa. 2003).

130 Id. (citing Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 528 A.2d 590 (Pa. 1987)).

foreseeable to the defendant is relevant to determining the defendant’s

negligence.132 Of particular significance, Phillips considered evidence of past

similar accidents as probative of foreseeability.133

The reasoning in Phillips is instructive, and the Court finds that notice of

past similar accidents is sufficiently relevant to Sikkelee’s negligence claim.134

Moreover, even if notice was not relevant to Sikkelee’s negligence claim, it

certainly is relevant to her request for punitive damages. Under Pennsylvania law,

punitive damages “may be awarded for conduct that is outrageous, because of the

defendant’s evil motive or his reckless indifference to the rights of others.”135 An

inquiry into what Lycoming knew about prior similar accidents is thus highly

relevant because it tends to show whether Lycoming acted with “evil motive” or

132 Id. at 1009. Phillips found foreseeability of the harm to be one of five factors necessary to

determining the existence of a duty of care.

133 Id.

134 See, e.g., id. at 1009 (considering evidence of past similar accidents in determining whether

harm from an allegedly defective design of lighters was foreseeable); Hutchinson v. Penske

Truck Leasing Co., 876 A.2d 978, 985-86 (Pa. Super. Ct. 2005) (considering whether evidence

that a manufacturer was aware of a defect should be admitted under the substantial similarity

test); cf. Smith v. Yamaha Motor Corp., U.S.A., 5 A.3d 314, 323 (Pa. Super. 2010) (finding

knowledge of “safer alternatives” relevant to determining whether a manufacturer’s decision

not to adopt such an alternative was unreasonable, and therefore negligent); Blacker v.

Oldsmobile Div., General Motors Corp., 1995 WL 143123, at *4 (E.D. Pa. Mar. 31, 1995)

(quoting Carrecter v. Colson Equip. Co., 499 A.2d 326, 330 (Pa. Super. Ct. 1985) (internal

quotation marks omitted) (“What a defendant ‘should have known’ is a classic negligence

inquiry which our courts have held unequivocally does not belong in a [strict liability]

action.”).

135 Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984) (internal quotation marks and citations

“reckless indifference.”136 Accordingly, the Court declines to exclude the SDRs on

the basis that notice is irrelevant to Sikkelee’s claims.137

b. Substantial Similarity

Next, Lycoming contends that the SDRs are not substantially similar to the

accident in this case. The proponent of the evidence of past similar accidents bears

the burden of demonstrating substantial similarity.138 Though the accidents need

not be identical, district courts must carefully consider the facts and circumstances

underlying each scenario.139 Nevertheless, courts retain wide discretion to

determine the admissibility of evidence under the Federal Rules of Evidence,

including on the question of substantial similarity.140

Importantly, where past similar incidents are offered to prove notice (as

opposed to causation or the existence of a defect), the usual standards governing

136 See, e.g., Richetta v. Stanley Fastening Sys., L.P., 661 F. Supp. 2d 500, 513-14 (E.D. Pa. 2009)

(considering evidence of prior accidents as relevant to a determination of punitive damages but

ultimately concluding that notice of prior accidents alone could not support such an award).

137 The Court notes that it will exclude one of the SDRs as irrelevant because it was submitted

after the accident giving rise to Sikkelee’s claims occurred. That similar incidents occur after

an accident has taken place is irrelevant to showing notice of the danger. See Uitts v. Gen.

Motors Corp., 58 F.R.D. 450, 452 (E.D. Pa. 1972) (“[O]nly earlier accidents can be relevant

to the issue of notice.”); O’Connor v. AM Gen. Corp., 1992 WL 382366, at *3 (E.D. Pa. Dec.

7, 1992) (“Discovery regarding subsequent similar accidents is relevant to the issue of

causation.”). Consequently, Lycoming’s motion to exclude as to this SDR is granted.

138 Barker, 60 F.3d at 162.

139 See id. (alterations in original) (internal quotation marks omitted) (“[W]e caution that

‘substantially similar’ does not mean ‘identical.’”) (quoting Estate of Carey v. Hy-Temp Mfg.,

Inc., 929 F.2d 1229, 1235 n.2 (7th Cir. 1991)); see also Gumbs, 718 F.2d at 98; Fassett v. Sears

Holding Corp., 319 F.R.D. 143, 153 (M.D. Pa. 2017) (internal quotation marks omitted)

(quoting Barker, 60 F.3d at 162) (“The almost universal requirement . . . is that the prior

occurrence must involve facts and circumstances which are substantially similar to those

involved in the case under consideration.”).

substantial similarity are relaxed.141 When this is the case, “[t]he incidents need

only be sufficiently similar to make the defendant aware of the dangerous

situation.”142 This makes sense because proving that a defendant was aware of a

possible problem requires significantly less evidence than establishing that the

problem exists.143 Because Sikkelee seeks to introduce the SDRs solely for

establishing notice, the Court concludes that the relaxed standard applies.

In determining substantial similarity, the Court looks to three factors. These

factors ask whether the accidents involve (1) similar products, (2) used under

141 Evans v. Pa. R.R. Co., 255 F.2d 205, 210 (3d Cir. 1958) (“[W]here the offer of evidence is to

prove, not negligence, but notice of the dangerous character of the crossing, the strictness of

the requirement of similarity of conditions has frequently been relaxed.”); see Benedi v.

McNeil-P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir. 1995) (emphasis added) (“When prior

incidents are admitted to prove notice, the required similarity of the prior incidents to the case

at hand is more relaxed than when prior incidents are admitted to prove negligence.”); see also

Exum v. Gen. Elec. Co., 819 F.2d 1158, 1162-63 (D.C. Cir. 1987) (internal quotation marks

and citations omitted) (“[I]f the accident is offered to prove notice, a lack of exact similarity

of conditions will not cause exclusion provided the accident was of a kind which should have

served to warn the defendant.”); Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1083

(5th Cir. 1986) (“For purposes of proving other accidents in order to show defendants’

awareness of a dangerous condition, the rule requiring substantial similarity of those accidents

to the accident at issue should be relaxed.”); Gardner v. S. Ry. Sys., 675 F.2d 949, 952 (7th

Cir. 1982) (citations omitted); Wolf by Wolf v. Proctor & Gamble Co., 555 F. Supp. 613, 621

(D.N.J. 1982) (citing Evans, 255 F.2d at 210); Moon v. Advanced Med. Optics, Inc., 2010 WL

11500832, at *2 (N.D. Ga. Dec. 29, 2010).

142 Benedi, 66 F.3d at 1386 (citing Gardner, 675 F.2d at 952; and then citing Young v. Illinois

Cent. Gulf R.R., 618 F.2d 332, 339 (5th Cir. 1980)).

143 See Barker, 60 F.3d at 162 (citing Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268-

69 (7th Cir. 1988)) (noting that the “foundational requirement of establishing substantial

similarity is especially important in cases where the evidence is proffered to show the existence

of a design defect.”). Greater scrutiny is justified where evidence is offered to prove causation

or the existence of a defect because “the jury is invited to infer from the presence of other

accidents that a design defect existed which contributed to the plaintiffs’ injuries.” Id. at 162-

similar circumstances, and (3) suffering from similar defects.144 The Court

discusses each in turn while remaining cognizant that no factor is by itself

dispositive; rather, each goes to support or undermine the ultimate question of

whether the SDRs are substantially similar to the case at hand.

First, the SDRs involve substantially similar products. The only issue

relating to this factor involves the importance (or nonimportance) of the different

engine configurations involved in the SDRs.145 Lycoming claims that the

distinctions between these engine configurations (i.e., whether it is an O-320-

H2AD engine or an O-320-D2C engine) are significant. However, the Court is

satisfied with Sikkelee’s expert testimony opining that configuration of the engine

has no impact on the determining the effectiveness of the lock-tab washers.146

Second, the aircrafts, engines, and carburetors from the SDRs were operated

under sufficiently similar circumstances. Lycoming points to expert testimony

stating that component parts in the carburetor at issue in this case deviated in

design from the original carburetor parts. Further, Lycoming asserts that Sikkelee

has not adequately explained whether these parts could have impacted the

144 See Brooks v. Chrysler Corp., 786 F.2d 1191, 1195-96 (D.C. Cir. 1986) (looking to both

similarity of products as well as to the similarity of alleged defects); see also Stramara v.

Dorsey Trailers, Inc., 1998 WL 848053, at *2 n.1 (E.D. Pa. Dec. 7, 1998) (citing similar factors

in determining substantial similarity).

145 It appears from the record, and Lycoming does not contest, that the aircrafts and the carburetors

are the same.

146 Doc. 663-2 at 188:10-25; see also DiFrancesco v. Excam, Inc., 642 A.2d 529, 537 (Pa. Super.

Ct. 1994) (admitting evidence of similar past accidents even though they involved a different

carburetor. Lycoming thus contends that Sikkelee cannot demonstrate substantial

similarity because the SDRs do not specify what component parts were used on the

carburetors in each incident. Lycoming also challenges the SDRs because none of

the SDRs indicate compliance (or non-compliance) with SB-366.

Lycoming’s arguments are well taken, but the Court cannot conclude that

the lack of similarity on these two elements necessarily precludes introduction of

the SDRs. Under a relaxed standard, all Sikkelee must show is that the SDRs are

sufficiently similar to have provided Lycoming with notice that the lock-tab

washers may be ineffective at preventing the carburetor body-to-bowl screws from

loosening. Expecting that all component parts be the same and that compliance

with SB-366 be unequivocally demonstrated is simply too stringent a

requirement.147 Moreover, Lycoming remains free to expand at trial upon the

dissimilarities between the SDRs and the accident at hand.

Third, the alleged defects are sufficiently similar. Though acknowledging

that all of the SDRs involved incidents where the carburetor screws had come

loose, Lycoming maintains that the SDRs are dissimilar because most of the SDRs

involved instances where an engine failed to cool down, while the accident in this

case involved an engine prematurely turning off. In response, Sikkelee claims that

147 Sikkelee has also offered testimony stating that SB-366 was likely complied with because it is

common practice for aircraft mechanics and servicers to follow with applicable maintenance

it is sufficient to show that the carburetor screws were found loosened, and that

there was some type of engine malfunction.

The Court agrees with Sikkelee. Sikkelee does not need to show exact

similarity between the alleged defects in the SDRs and that in the present case.

This is especially true under the more relaxed standard, which warrants loosening

the similarity requirements. Moreover, as the Court has discussed above,

Lycoming will be able to present evidence highlighting the dissimilarities between

the SDRs and the accident in this case. Accordingly, after carefully considering all

of these factors, the Court finds the SDRs are substantially similar and denies

Lycoming’s motion to exclude.

c. Rule 403 Balancing

Finally, the Court concludes that the probative value of the SDRs is not

substantially outweighed by the risk of prejudice. The SDRs have significant

probative value because they can demonstrate that Lycoming was aware that the

lock-tab washers were ineffective at preventing the carburetor screws from

loosening. In turn, this evidence may be used to show that Lycoming knew of this

issue and yet chose not to act on it. Although the Court acknowledges there is a

risk that the jury may consider these SDRs as substantive evidence that a defect

existed, the Court believes that a limiting instruction informing the jury that this

evidence should only be considered as evidence of notice will appropriately

resolve this issue.

2. NTSB Report

Lycoming also seeks to exclude the NTSB report on the basis that it is not

substantially similar to the present case. Evidence of subsequent similar accidents

are admissible for the purposes of showing causation or the existence of a defect.148

Like with prior similar accidents, evidence of subsequent incidents are admissible

only upon a showing of substantial similarity.149 Lycoming argues that such a

showing has not been made because the NTSB report contains little information

regarding the specific type of carburetor from the plane, and because it is not clear

whether the aircraft had been maintained pursuant to SB-366.

The Court agrees. The NTSB report does not specify whether the carburetor

from the 2015 accident was the same model as that at issue here. Moreover, it

appears that the plane in the 2015 accident had not been serviced pursuant to SB-

366. This is significant for purposes because a central theory in Sikkelee’s case is

that SB-366 failed to prevent, or contributed to, the accident. While proof of

compliance may not be necessary to show notice, the Court believes that greater

similarity is needed to demonstrate causation or the existence of a defect. Taken as

a whole, the Court cannot find that the 2015 incident is sufficiently similar to

warrant admission. Accordingly, Lycoming’s motion to exclude the NTSB report

is granted.

148 Uitts, 58 F.R.D. at 452; O’Connor, 1992 WL 382366, at *3.

G. Motion to Exclude the Testimony of Michael Thomson

Lycoming has filed a motion to exclude testimony from one of Sikkelee’s

expert witnesses. This request is nothing more than a mislabeled Daubert motion

filed long after this Court’s set deadline for such motions. But even though this

motion is undoubtedly untimely, the Court has an underlying, separate

responsibility to fulfill its function as a gatekeeper of expert testimony and will

exercise its authority to review Dr. Thomson’s opinions.

The motion is denied as to Dr. Thomson’s conclusion regarding Mr.

Sikkelee’s earning potential but granted as to the opinion regarding the value of

Mr. Sikkelee’s household services. Additionally, Lycoming’s request that Dr.

Thomson’s updated report be stricken is denied. As Lycoming acknowledges, Dr.

Thomson’s report withdraws one of his original conclusions and does not add new

conclusions. There is no indication that Lycoming has been prejudiced by this

new, more narrow report.150

1. The Timeliness of the Motion

At the outset, Sikkelee notes that this motion to exclude Dr. Thomson’s

testimony is untimely. It is. This Court set an October 2, 2020 deadline for

Daubert motions. The parties displayed the ability to comply with this deadline,

filing several Daubert motions seeking to exclude expert testimony. Then

Lycoming filed this request, seeking to exclude Dr. Thomson’s testimony based on

Daubert and its progeny. This artful attempt at performing an end-run around the

Court’s scheduling deadlines has not gone unnoticed.

In its opening brief in support of this motion, Lycoming did not provide any

justification for why this was filed 70 days after this Court’s deadline for Daubert

motions.151 Perhaps in response to Lycoming’s motion (though the parties do not

explain the sequence of events clearly), Sikkelee represents that Dr. Thomson was

in the process of updating his report to account for the passage of time.152 In its

reply brief, Lycoming asserts that Sikkelee served Dr. Thomson’s updated report

on January 6, 2021.

As noted, Sikkelee mentions that this motion is untimely, but does not

devote any real effort to the argument, instead addressing Lycoming’s motion on

the merits. To the extent this argument is considered raised, however, the Court

considers it. Under the Federal Rules of Civil Procedure, a district court may

establish deadlines for parties to file motions, including Daubert motions and

motions in limine.153 Federal Rule of Civil Procedure 16 states that scheduling

orders should only be modified for good cause. This Court has discretion to

enforce its own orders.154 Lycoming has offered no reason for why it was

incapable of complying with the Court’s scheduling Order (as evidenced by the

151 See Doc. 665.

152 Doc. 677 at 2.

153 Fed. R. Civ. P. 16(b).

fact that Lycoming filed several Daubert motions on the correct day), let alone

shown good cause. And while the failure to comply with that Order could

arguably constitute a waiver of this objection, “courts have also recognized that

this general waiver rule should not trump its gatekeeper function.”155 District

courts have reached differing conclusions when faced with similar issues as a

result of the tension between these two concerns. I find that it would be

inappropriate to wholly abdicate my role as gatekeeper and allow the jury to hear

potentially unfounded expert opinions on the basis that counsel failed to comply

with the scheduling Order.156

Multiple Circuits have affirmed district court decisions evaluating untimely

Daubert motions, recognizing that it is important for the trial judge to evaluate

every expert opinion if possible.157 And in a non-precedential opinion, the Third

Circuit held that a Magistrate Judge of this Court did not abuse his discretion in

155 Fed. Trade Comm’n v. Innovative Designs, Inc., 2020 WL 758727 at *8 (W.D. Pa. Feb. 14,

2020).

156 Compare Daddio v. A.I. DuPont Hosp. for Children of Nemours Found., 650 F.Supp.2d 387,

402 (E.D. Pa. 2009) (considering an untimely Daubert motion on the merits) with Nw. Sav.

Bank & Fin. Servs. v. NS First St. LLC, 2011 WL 6180874 at *5 (M.D. Pa. Dec. 13, 2011)

(refusing to consider a Daubert motion filed more than a month after the relevant deadline).

The Court in Northwest Savings Bank noted that the motion at issue was filed just nine days

before trial was set to begin. Here, although the motion was filed more than two months after

the deadline, it was also filed almost three months before the start of trial. That provides

enough time “so that the expert's proposed testimony can be evaluated with care.” Feliciano–

Hill v. Principi, 439 F.3d 18, 24 (1st Cir. 2006).

157 See, e.g., United States v. Valencia, 600 F.3d 389, 420 (5th Cir. 2010) (“At a pretrial hearing,

the court stated that the motion to exclude was untimely, but indicated that it would entertain

the objection pursuant to its gatekeeping duty.”); Alfred v. Caterpillar, Inc., 262 F.3d 1083,

allowing an expert to testify (over an untimely Daubert motion), in part because

the Magistrate Judge considered the expert’s testimony on the merits.158

Furthermore, the Court notes that Sikkelee also filed at least one Daubert motion

after the October 2, 2020 deadline. Simply put, the Court will not allow this

procedural error to justify avoiding its gatekeeping duty, and therefore considers

the Daubert motion on its merits.

2. The Daubert Motion’s Merits

This Court has recently ruled on a number of Daubert motions from both

parties. Accordingly, I recite the relevant standard as stated in that memorandum

opinion. Federal Rules of Evidence 702 and 703 govern the admissibility of expert

testimony and set forth certain criteria for admissibility. Expanding upon those

Rules, the United States Supreme Court set forth the standard for admissibility of

expert testimony in Daubert v. Merrell Dow Pharm., Inc.159 The Court in Daubert

delegated to district courts a “gatekeeping responsibility” under Rule 702, which

requires that courts determine at the outset whether an expert witness may “testify

to (1) scientific knowledge that (2) will assist the trier of fact.”160 That gate-

keeping function demands an assessment of “whether the reasoning or

methodology underlying the testimony is scientifically valid” as well as “whether

158 Taylor v. Shields, 744 Fed. Appx. 83, 87-88 (3d Cir. 2018) (finding no abuse of discretion

where, despite denying a Daubert motion as untimely, the Magistrate Judge also “did not

neglect his underlying gatekeeper duty”).

159 509 U.S. 579 (1993).

that reasoning or methodology properly can be applied to the facts in issue.”161 A

district court “exercises more control over experts than over lay witnesses,” since

“[e]xpert evidence can be both powerful and quite misleading because of the

difficulty in evaluating it.”162

Following Daubert, the Third Circuit cast expert admissibility

determinations in light of three basic requirements: (1) qualification; (2) reliability;

and (3) fit.163 The qualification prong demands that the proffered expert possess

sufficient “specialized knowledge” to testify as an expert.164 To satisfy the

reliability prong, an expert’s opinion “must be based on the ‘methods and

procedures of science’ rather than on ‘subjective belief or unsupported

speculation.’”165 The Third Circuit has set forth eight non-exclusive factors that “a

district court should take into account” when deciding the reliability of expert

testimony:

(1) whether a method consists of a testable hypothesis; (2) whether the

method has been subject to peer review; (3) the known or potential rate

of error; (4) the existence and maintenance of standards controlling the

technique’s operation; (5) whether the method is generally accepted;

(6) the relationship of the technique to methods which have been

established to be reliable; (7) the qualifications of the expert witness

testifying based on the methodology; and (8) the non-judicial uses to

which the method has been put.166

161 Id. at 592-93.

162 Id. at 595 (internal quotation marks omitted).

163 In re Paoli R.R. Yard PCB Litig., 35 F.3d at 741-43.

164 Id. at 741.

165 Id. at 742 (quoting Daubert, 509 U.S. at 589).

With regard to the fit prong, the Third Circuit explained that admissibility

“depends . . . on the proffered connection between the scientific research or test

result . . . and [the] particular disputed factual issues.”167

The burden of proof for admissibility of expert testimony falls upon the

party that seeks to introduce the evidence.168 However, as the Third Circuit has

emphasized, “[t]he test of admissibility is not whether a particular scientific

opinion has the best foundation or whether it is demonstrably correct. Rather, the

test is whether the particular opinion is based on valid reasoning and reliable

methodology.”169

This standard is not intended to be a high one, nor is it to be applied in

a manner that requires the plaintiffs to prove their case twice—they do

not have to demonstrate to the judge by a preponderance of the evidence

that the assessments of their experts are correct, they only have to

demonstrate by a preponderance of evidence that their opinions are

reliable.170

District courts must always be cognizant of the fact that “[t]he analysis of

the conclusions themselves is for the trier of fact when the expert is subjected to

cross-examination.”171

Lycoming challenges Dr. Thomson’s testimony on three specific issues: (1)

the use of Mr. Sikkelee’s salary as a human resources director to calculate his

167 Id. at 743 (internal quotation marks omitted).

168 Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000).

169 Id. (internal quotation marks omitted).

170 Id. (internal quotation marks omitted).

earning potential; (2) the decision to use a $25 per hour rate for lost household

services; and (3) the projected losses calculated for David Sikkelee’s children.172

a. Mr. Sikkelee’s Earning Potential

Dr. Thomson opines that Mr. Sikkelee would have earned an average of

$200,000 per year for the remainder of his working life, totaling approximately

$3,600,000 in lost earnings. Dr. Thomson bases this conclusion on a “human

capital” theory. This method stems from the idea that Mr. Sikkelee’s previous

earnings of approximately $200,000 (in 2003) are a reliable indicator of his future

success. The human capital theory considers Mr. Sikkelee’s earnings proof of “his

labor market abilities and the economic value of his ‘human capital.’”173 Put

differently, because Mr. Sikkelee showed the “ability to produce this level of

earnings in the past” it would be “reasonable to assume that he would have

achieved this level of earnings in the future.”174

Lycoming argues that this methodology is unreliable because it does not

consider other mitigating factors. Lycoming’s arguments go to weight rather than

admissibility because, at bottom, they constitute disagreements with Dr.

Thomson’s methodology, facts that it believes Dr. Thomson should have

considered, and alternative methods it would have preferred. For example,

172 Lycoming represents that Dr. Thomson has withdrawn this last opinion. See Doc. 693 at 2

(“First, Thomson withdraws” his opinion “regarding economic damages sustained by David

Sikkelee’s children.”). Accordingly, the motion is denied as moot as to this issue.

173 Doc. 693 Ex. 1 at 5.

Lycoming notes that David Sikkelee’s pool business would have been seasonal,

and Dr. Thomson did not account for that. Even granting Lycoming’s position, the

fact that a business varies with the seasons does not undermine a conclusion as to

its annual success. And in any event, an expert’s failure to consider every

available fact or option “neither renders his methodology unreliable nor his report

inadmissible but, rather, goes to the weight of his testimony.”175

Lycoming offers several compelling reasons why Dr. Thomson’s conclusion

may not be accurate. But cross-examination provides the proper arena to

demonstrate any shortcomings. It seems clear that defense counsel will be able to

adequately address its concerns at that time. Other experts have used past income

to calculate future earnings, and Lycoming has not shown that the methodology is

so deficient as to warrant the extreme remedy of excluding this testimony.

Furthermore, to the extent Lycoming objects to Dr. Thomson’s use of Mr.

Sikkelee’s pool business revenue to support his conclusion, it is overruled. “The

general rule is that profits derived from a business are not to be considered as

earnings and cannot be admitted as a measure of loss of earning power, but where

they are almost entirely the direct result of personal management and endeavor,

they are an accurate measure of earning capacity and admissible as such.”176 If a

business’s success “is due principally to the personal services and attention of the

175 Voilas v. Gen. Motors Corp., 73 F.Supp.2d 452, 462 (D. N.J. 1999).

owner,” the business’s income can be used to support a conclusion as to the

owner’s earning potential.177 As Lycoming notes, David Sikkelee was the owner

of a “start-up pool company.”178 It seems reasonable to assume that the success of

a start-up is due, in large part, to the work an owner puts in to it. And Sikkelee

asserts that Dr. Thomson uses the pool company’s success as a way to illustrate

and support his opinion, rather than as an independent basis for his conclusion.179

Lycoming’s arguments are noted, but are best addressed during examination

of Dr. Thomson. If Lycoming had wished, it could have retained its own expert to

rebut Dr. Thomson. Having chosen not to, it must rely on cross-examination to

make its point to the jury.

b. David Sikkelee’s Household Services

Unlike Dr. Thomson’s opinion regarding Mr. Sikkelee’s lost earnings, the

opinion addressing the value of the household services provided by Mr. Sikkelee

cannot survive.

Dr. Thomson purports to establish the value of certain household services

performed by Mr. Sikkelee. These household services run the gamut and include

activities such as automobile repairs and maintenance, lawn care, grocery

shopping, childcare, laundry and ironing, cooking, and doing dishes.180 Dr.

177 Serhan v. Besteder, 347 Pa. Super. 11, 17 (1985); see also Angino v. Cincinnati Ins. Co., 2016

WL 245525 at *1-2 (M.D. Pa. Jan. 21, 2016).

178 Doc. 693 at 6.

179 Doc. 677 at 5.

Thomson claims that Mr. Sikkelee would have devoted somewhere between two

and three hours each day to these chores, and values these tasks at $25 per hour. In

sum, Dr. Thomson finds the economic value of Mr. Sikkelee’s lifetime household

services to be $875,744.

Dr. Thomson’s methodology in forming this opinion is, put mildly, suspect.

The $25 per hour value attributed to these services appears to have been pulled out

of a hat. Dr. Thomson begins with the admission that “[f]or many individuals, [he

has] previously used $20/hour; however, given Mr. Sikkelee’s skills and technical

abilities, an amount of $25/hour was used.”181 First, there is no explanation for

how even a $20 per hour rate would be supported. But then Dr. Thomson imposes

a premium rate based on Mr. Sikkelee’s capabilities. These skills and technical

abilities are never identified, and it is not apparent to the Court what they even are

or how they justify an increased valuation for Mr. Sikkelee’s performance of those

tasks.

Sikkelee’s brief in opposition does not inspire confidence on this issue.

First, the opposition relies exclusively on Dr. Thomson’s affidavit from 2013.

Sikkelee claims that the methodology supporting the $25 per hour valuation is

“sound, reliable and based upon [Thomson’s] thurty [sic] plus years of expertise in

the field.” Sikkelee then inserts the following from that 2013 affidavit:

Replacing these services would involve locating, hiring, supervising,

and paying many different types of workers, many of whom would be

contracted through the use of an agency or firm which provides the

needed services. To my knowledge, there is no study available which

provides information about the average market prices of so many

different types of services. Therefore, I have utilized $25 per hour as a

reasonable average figure for this particular case. I did take into

consideration the decedent’s level of education, as well as the

information within Jill Sikkelee’s deposition transcript where she

indicated that David Sikkelee assisted with laundry and household

chores, and with renovations, plumbing, tilework, electrical, and

household finance. It is through my ongoing work and research as a

labor economist over the last 30 years that I am familiar with the

replacement cost for these types of services, and they will usually

exceed $25 per hour.182

Sikkelee then immediately ends by baldly asserting that Lycoming’s

concerns go to the weight that the testimony should be given, rather than its

admissibility. That is the sum total of Sikkelee’s argument on this issue. Such a

conclusory statement is as unsupported as Dr. Thomson’s opinion. And that

opinion is itself undercut by Dr. Thomson’s strange admission that his valuation of

Mr. Sikkelee’s services could change depending on the testimony elicited at trial

from Mr. Sikkelee’s family members. Dr. Thomson suggests that depending on

whether Mr. Sikkelee “was someone who tended to be less than average, average,

or above average, in the performance of household services,” the $25 per hour

value could “be adjusted accordingly.” The Court is left to wonder why this

information was not obtained earlier and how these adjustments would be

quantified or calculated.

There is no way for the Court to assess Dr. Thomson’s methodology because

Dr. Thomson provides nothing more than conclusory assurances that his expert

opinion is reliable. There is no identifiable methodology. But an expert’s say-so

does not satisfy Daubert on its own. “Nothing in either Daubert or the Federal

Rules of Evidence requires a district court to admit opinion evidence that is

connected to existing data only by the ipse dixit of the expert.”183 Dr. Thomson

does not even offer existing data to link his conclusion to. Unlike cases where an

expert utilizes an actual source of data to determine the hourly value of household

services, here, the Court is being asked to accept Dr. Thomson’s word that his

valuation is, as he says, “reasonable.”184 While the source used by experts in those

cases is certainly not the only way to establish the value of household services, it

illustrates the point that something more than an expert’s guesswork is required.

Dr. Thomson’s conclusion may in fact be accurate; perhaps the lost

household services are worth what Dr. Thomson claims. But relying on an

expert’s ipse dixit alone does not ensure that reliable principles and methods were

183 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

184 See, e.g., Herrera v. Berkley Reg’l Ins. Co., 2021 WL 24548 at *3 (D.N.M. Jan. 4, 2021)

(admitting expert testimony where witness used “The Dollar Value of a Day: 2018 Dollar

Valuation” to determine the hourly value of household services); Riggio v. Pruneda, 2019 WL

6792775 at *1-2 (S.D. Miss. Dec. 12, 2019) (admitting expert testimony where witness used

“The Dollar Value of a Day: 2017 Dollar Valuation” to determine the hourly value of

used. Because Dr. Thomson provides nothing else, the Court cannot allow the jury

to hear this testimony.

H. Motion to Preclude Evidence of Alleged Carburetor Defects

Lycoming next seeks to exclude any evidence of carburetor defects

identified by Donald Sommer and Richard McSwain that are not alleged by

Sikkelee to have played any role in the accident at issue here.185 Lycoming

contends that any such defects are irrelevant, since the existence of those defects

does not make the likelihood that the accident occurred due to loose screws any

more or less likely.186 Even if that evidence had any relevance, Lycoming argues

that any relevance is substantially outweighed by the risk of unfair prejudice,

confusion of the issues, and misleading the jury.187 Sikkelee responds that

evidence of defects that are not alleged to have caused the accident are relevant to

establish her claim for a design defect using the consumer expectation test and

risk-utility analysis.188

Evidence of other alleged carburetor defects is not relevant to whether

allegedly loose carburetor screws—caused by Lycoming’s use of lock-tab

washers—caused the accident at issue here. Although Sikkelee argues that such

evidence is admissible to establish her design-defect-claim, the Court rejects any

185 Doc. 666.

186 Doc. 667 at 5-6.

187 Id. at 6-7.

notion that purported defects in the carburetor that are undeniably not linked to the

accident at issue here may be introduced to prove Sikkelee’s claim of a design

defect in the carburetor.

Sikkelee’s assertion is inconsistent with Pennsylvania state law as it applies

to design defect claims, which provides that “[i]n a strict liability cause of action,

the plaintiff must present evidence of a defect, evidence that the defect caused the

injury, and evidence that the defect existed at the time the product left the

manufacturer’s control.”189 Under this formulation, evidence of other defects that

are not alleged to have caused injury is irrelevant, as such evidence does not make

it more likely than not that the relevant defect caused injury or existed at the time

that the product left the manufacturer’s control. More importantly, Sikkelee’s

reading of the law would entirely untether the concept of causation from liability.

Under her theory, it would not be necessary to prove that a defect caused her

damages, only that a defect existed that made the product unsafe. This is clearly an

untenable theory under Pennsylvania tort law.190

This conclusion is in accord with decisions of other courts that have

considered similar circumstances. For example, in Carrasquilla v. Mazda Motor

189 Barnish v. KWI Bldg. Co., 980 A.2d 535, 546-47 (Pa. 2009) (emphasis added); see also Lewis

v. CRC Indus., Inc., 7 A.3d 841, 844 n.3 (Pa. Super. Ct. 2010) (“To succeed under a strict-

liability design-defect theory, a plaintiff must prove that (1) the product was defective; (2) the

defect existed when the product left the hands of the defendant; and (3) the defect caused the

injury to a reasonably foreseeable user”).

190 See Ball v. Bayard Pump & Tank Co., 67 A.3d 759, 768 (Pa. 2013) (noting that “every tort

Corp., the undersigned’s predecessor in this vicinage of this Court, the late

Honorable James F. McClure, Jr., examined alleged design defects in a vehicle.191

A claim related to “a design defect with the restraint system in the” vehicle had

been dismissed from the case, leaving only “design defect claims relating to the

lack of adequate seat back, seat track mechanism and knee bolsters.”192 Because

claims related to the vehicle’s restraint system had been dismissed, Judge McClure

concluded that evidence related to that system was “irrelevant to a decision on

liability for the remaining design defects asserted by plaintiffs.”193

Moreover, even if Sikkelee were correct that evidence of a design defect that

is unrelated to the accident is admissible to prove her claim, Sikkelee (and her

expert Donald Sommer) has presented no evidence that the other alleged defects

present an “unknowable and unacceptable to the average or ordinary consumer, or

that . . . the probability and seriousness of harm caused by the product outweigh

the burden or costs of taking precautions.”194 Accordingly, there simply is not

enough evidence for a claim related to those design defects to be presented at trial.

191 166 F. Supp. 2d 181, 185-86 (M.D. Pa. 2001).

192 Id. at 185.

193 Id. at 185-86. Cf. Parvez & Razia Yazdani v. BMW of N. Am., LLC, 188 F. Supp. 3d 486, 491-

92 (E.D. Pa. 2016) (holding that evidence related to a different vehicle and “a different alleged

design defect” was irrelevant (citing Jordan v. Gen. Motors Corp., 624 F. Supp. 72, 77 (E.D.

La. 1985))

194 Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014). Specifically, there is no evidence

that the risks associated other defects are unknowable or unacceptable to the ordinary pilot,

and no evidence as to what the burden or costs would be to take precautions against those

Finally, even if such evidence were relevant, it would be inadmissible under

Federal Rule of Evidence 403, which provides that courts “may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Evidence of design defects that are wholly and indisputably unrelated to David

Sikkelee’s accident carries minimal, if any, probative value. In contrast, such

evidence would engender unfair prejudice, as it would invite the jury to conclude

that the design defect alleged to have caused the accident must exist—and

Lycoming must be responsible for accident—because the carburetor has several

other design defects that could result in loss of engine power, instead of reaching a

conclusion based on the evidence presented.195 Accordingly, Lycoming’s motion

in limine to exclude evidence of other, irrelevant carburetor defects will be granted.

I. Motion to Preclude Subsequent Remedial Measures and Other

Post-Accident Evidence

Lycoming moves to exclude evidence related to subsequent remedial

measures as well as other communications collected from after the accident.196 For

example, Sikkelee seeks to introduce evidence of two post-accident revisions to

195 See Old Chief v. United States, 519 U.S. 172, 180 (1997) (“‘Unfair prejudice’ within its context

means an undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one” (quoting Advisory Committee’s Notes on Fed. Rule Evid. 403,

28 U.S.C. App., p. 860)).

SB-366. SB-366 addresses the procedures for inspecting the tightness of the

carburetor’s throttle body-to-bowl attaching screws.197 The two post-accident

versions of SB-366 revised the inspection procedures. Sikkelee also intends to

introduce a service letter issued in 2011, as well as evidence of post-accident

communications “concerning loose throttle body-to-bowl screws.”198 Lycoming

argues that the post-accident changes in the design of the engine and carburetor, as

well as revisions to the service bulletins, constitute subsequent remedial measures

and are barred by Federal Rule of Evidence 407. Lycoming also asks this Court to

exclude evidence of the revised service bulletins and service letters under Rule

403.

1. Subsequent Remedial Measures

Rule 407 instructs that evidence of a remedial measure taken subsequent to

an injury, that would have made the injury less likely to occur, cannot be admitted

to prove negligence, culpable conduct, defect, or the need for a warning or

instruction.199 The rule is largely animated by a social policy which seeks to

encourage “people to take, or at least not discourage[] them from taking, steps in

furtherance of added safety.”200 But Rule 407 does allow Courts to admit such

197 Doc. 669.

198 Id. at 2.

199 Fed. R. Evid. 407.

200 Id. Advisory Committee Notes; see also Wright & Miller, Fed. Prac. & Proc. § 5282, 2d ed.

(“[I]nterpretation of Rule 407 should focus on implementing the social policy of encouraging,

evidence when this public policy is not implicated; for example, a party may

introduce this evidence for impeachment purposes. A party can also do so to prove

ownership, control, or the feasibility of a precautionary measure, if any of those are

in dispute.201

2. The Court Will Consider the Issues at Trial

Given the arguments the parties raise, detailing how the evidence may be

used at trial, the Court finds it prudent to consider the context of the presentation.

Therefore, I will deny the motion without prejudice, and consider arguments

regarding the individual pieces of evidence during trial. On the day before such

evidence is to first be introduced, the Court asks counsel for Sikkelee to simply

advise the Court that it intends to introduce that evidence at some point on the

following day.

J. Motion to Exclude Emagene Maar’s Affidavit and Deposition

Testimony

Finally, Lycoming has moved to exclude the affidavit and deposition

testimony of Emagene Maar, a witness to the accident.202 Lycoming argues that

Maar’s affidavit should be excluded as a discovery sanction, pursuant to Federal

Rule of Evidence 37(c), as (1) it was produced nearly three months after the close

of discovery and there is no substantial justification for the belated affidavit, (2)

the severe prejudice cannot be cured, and (3) Sikkelee willfully violated the

201 Fed. R. Evid. 407.

Court’s Scheduling Order.203 Lycoming further contends that Maar’s deposition

testimony, also taken after the close of discovery, should be excluded because

Lycoming was not provided sufficient notice of the deposition, and therefore did

not have the opportunity to cross-examine Maar.204

Sikkelee responds that Lycoming had adequate notice of the deposition but

failed to attend and failed to attempt to reconvene the deposition for the past eight

years.205 She asserts that (1) there is no prejudice since Lycoming had sufficient

time to cure any prejudice, but failed to so do, (2) Maar’s deposition testimony is

important to the case, as it helps establish that the airplane’s engine was

experiencing mechanical difficulty while in the air prior to the crash, (3) there is no

bad faith—and there is substantial justification for the untimely deposition—

because the deposition was taken when it became apparent that Maar would be

unable to testify at trial, and (4) Lycoming was provided with adequate advanced

notice of the deposition.206 Finally, Sikkelee argues that exclusion is not warranted

under Federal Rule of Evidence 403, as Maar’s deposition testimony and earlier

statements are not inconsistent.207

Federal Rule of Civil Procedure 37(c)(1) provides for the exclusion of

evidence if a party fails to make a required production under Rule 26. Specifically,

203 Doc. 671 at 8-11.

204 Id. at 12-15.

205 Doc. 680.

206 Id. at 10-22.

that Rule provides that “[i]f a party fails to provide information or identify a

witness as required by Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial,

unless the failure was substantially justified or is harmless.”208 The “substantially

justified” standard is satisfied “if reasonable people could differ as to the

appropriateness of the contested action.”209 Courts are not limited to exclusion as a

sanction, but may also sanction a party by “order[ing] payment of the reasonable

expenses, including attorney’s fees, caused by the failure,” “inform[ing] the jury of

the party’s failure,” or imposing any “other appropriate sanctions.”210

As the Third Circuit has noted, although district courts have discretion to

exclude evidence in response to violations of pretrial disclosure deadlines,

“exclusion of critical evidence is an ‘extreme’ sanction, and thus, a district court’s

discretion is not unlimited.”211 Accordingly, in determining whether exclusion of

evidence is warranted, the Court should consider the five Pennypack212 factors:

(1) “the prejudice or surprise in fact of the party against whom the

excluded witnesses would have testified” or the excluded evidence

would have been offered; (2) “the ability of that party to cure the

prejudice”; (3) the extent to which allowing such witnesses or evidence

would “disrupt the orderly and efficient trial of the case or of other cases

208 Fed. R. Civ. P. 37(c)(1).

209 Pierce v. Underwood, 487 U.S. 552, 565 (1988) (brackets and internal quotation marks

omitted); see also Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 811-12 (11th Cir.

2017) (noting that “[s]ubstantially justified means that reasonable people could differ as to the

appropriateness of the contested action” (internal quotation marks omitted)).

210 Id.

211 ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 297 (3d Cir. 2012).

in the court”; (4) any “bad faith or willfulness in failing to comply with

the court’s order”; and (5) the importance of the excluded evidence.

The importance of the evidence is often the most significant factor.213

1. Whether Violation of Scheduling Order was Substantially

Justified

First, the Court finds that sanctions under Rule 37(c) are warranted, as

Sikkelee’s failure to timely identify Maar as a witness and depose her was not

substantially justified. It is undisputed that Sikkelee obtained Maar’s affidavit and

conducted an ex parte deposition of Maar after the close of discovery, and without

leave of the Court.214 This was a breach of the deadlines set forth by this Court, and

that breach was done knowingly.

Although Sikkelee asserts that her breach of the Court’s Scheduling Order

was justified because she needed to preserve Maar’s testimony for trial, and

“[t]here is legal authority supporting Plaintiff’s position that a party may take a

deposition after the discovery deadline when the purpose is to preserve trial

testimony,”215 the case law to which she cites is inapposite. In all three cases that

Sikkelee cites to, the parties sought—and received—leave of the court to conduct

trial depositions after the close of discovery.216 Here, Sikkelee failed to follow

213 ZF Meritor, 696 F.3d at 298 (quoting Pennypack, 559 F.2d at 904-05).

214 See Docs. 671, 680.

215 Doc. 680 at 18; see id. at 18-19.

216 See Manley v. Am. Base Corp., 337 F.3d 237, 247 (2d Cir. 2003) (noting that deposition had

been conducted “pursuant to a de bene esse proceeding ordered by the court when it appeared

that the eighty-year old California resident would not travel to New York for trial”); Branning

v. Wayne Cty., No. 3:15-CV-1936, 2018 WL 1998312, at *1 (M.D. Pa. Apr. 27, 2018)

(observing that “Plaintiff filed the motion to take the video deposition of Robert Pickney,

proper procedure, which would have been to seek leave of the Court to conduct

Maar’s deposition; rather, Sikkelee ignored Lycoming’s clear objections and

unilaterally scheduled an untimely deposition without leave of Court.

The Court is unable to find any authority that would support the correctness

of Sikkelee’s course of conduct here. To the contrary, the law is clear that “the

Federal Rules of Civil Procedure make no distinction for use of a deposition at trial

between one taken for discovery purposes and one taken for use at trial (de bene

esse),”217 and courts have uniformly concluded that parties have no right to take a

deposition after the close of discovery and that permitting an untimely deposition

rests within the discretion of the district courts.218 As such, “parties who decide

not to take a deposition during the discovery period take the risk that they will be

unable to present the testimony if the witness becomes unavailable at trial.”219

trip”); Coface Collections N. Am., Inc. v. Newton, No. CA 11-52-LPS, 2012 WL 6738391, at

*1 (D. Del. Dec. 28, 2012) (“Defendant now, after the close of discovery, seeks leave to take

de bene esse depositions”).

217 Tatman v. Collins, 938 F.2d 509, 510 (4th Cir. 1991).

218 See, e.g., Brugh v. Mount Aloysius Coll., 2019 WL 7505743, at *2 (W.D. Pa. Nov. 12, 2019)

(concluding that “[p]arties do not have a right to take depositions after the close of discovery,

and it is within the discretion of this Court to deny a party’s request to take a deposition in such

a case”); In re Horstemeyer, 557 B.R. 427, 431-32 (Bankr. D.S.C. 2016) (concluding that,

although “there is no absolute right to take a de bene esse deposition after the discovery period

has closed, it is within the court’s discretion to allow such a deposition to occur”); Anderson

v. Procter & Gamble Paper Prod. Co., 2013 WL 5651802, at *4 (E.D. Wis. Oct. 15, 2013)

(holding that “[w]hile so-called depositions for use at trial should in appropriate cases

nevertheless be allowed after the close of discovery, there is no automatic right to do so. Absent

the scheduling order providing otherwise, or agreement by the parties, good cause must be

shown”).

This case law clearly demonstrates that parties must seek permission from

the Court prior to conducting an untimely deposition to which the opposing party

objects—this course of conduct has been the universal practice before this Court,

and Sikkelee fails to point to a single case in which this practice was not followed.

Sikkelee failed to follow this well-accepted procedure, despite Lycoming twice

providing written objections to any deposition of Maar.220 The Court therefore

concludes that reasonable people would not “differ as to the appropriateness of”221

Sikkelee’s actions. Rather, reasonable people would seek leave of the Court to

conduct depositions after the close of discovery. Consequently, Sikkelee’s

violation of Federal Rule of Civil Procedure 37(c)(1) is not substantially justified,

and sanctions are warranted. The Court will therefore proceed to examine the

relevant Pennypack factors to determine if Maar’s affidavit and deposition

testimony should be excluded.

2. Whether Exclusion is Warranted Under the Pennypack

Factors

The Court concludes that, under the Pennypack factors, exclusion is

warranted. As to the first factor, there would be a great deal of prejudice to

Lycoming in admitting Maar’s affidavit or deposition testimony into evidence. In

her statements, Maar asserted for the first time that the airplane engine was

220 See Doc. 680-6; Doc. 680-11.

sputtering just prior to the accident222—Sikkelee’s experts rely on this statement to

conclude that the airplane may have been experiencing engine problems after

takeoff. This is a material change to Maar’s earlier statements where she stated

that the engine sounded as though it were operating at a low RPM223 or,

alternatively, that the engine sounded “[s]low, sluggish, like it wasn’t go’in to run”

and was “[j]ust not, not quite mak’in it, you know, just not quite in a, to the RPM’s

or, you know, to the speed that it would keep it on out and go’in.”224 The changed

testimony makes it more likely that engine issues contributed to the accident,

although Maar’s first statements do not exclude such a possibility. Critically,

because Sikkelee conducted Maar’s deposition ex parte, Lycoming had no

opportunity to cross-examine Maar and obviously would have no opportunity to

cross-examine Maar at trial should the deposition be admitted. It would be highly

prejudicial to Lycoming to admit Maar’s testimony without affording it the

opportunity to conduct any cross-examination.225

222 Doc. 671-3 at 3; Doc. 671-5 at 3.

223 Doc. 671-1.

224 Doc. 671-2 at 4.

225 The Court is not persuaded that the cases to which Sikkelee cites dictate a contrary conclusion.

In Johnson v. Fed. Exp. Corp., 2014 WL 65761, at *3 (M.D. Pa. Jan. 8, 2014), the court

concluded that there was no need to cure any prejudice because the plaintiff had sufficient time

to review new information provided for the substitute witnesses. This conclusion did not

address prejudice—the Court’s determination that there was no prejudice was based on the fact

that the plaintiff challenged replacement witnesses who possessed “substantially similar

knowledge” to the original witnesses. Id. *2. In Starry v. United States, 2017 WL 11103576,

at *1 (M.D. Pa. Sept. 13, 2017), the court determined that there was no prejudice, in part,

because the United States had an opportunity for robust cross-examination at a deposition and

As to the second Pennypack factor—the opportunity to cure any potential

prejudice—there is no possibility that Lycoming may cure any prejudice should the

affidavit or deposition testimony be presented at trial. The only opportunity for

Lycoming to cure the prejudice would be through cross-examination of Maar,

which could only happen if Maar presented live testimony at the trial.

With regard to the third factor, permitting the deposition testimony at trial

would likely not significantly disrupt the orderly and efficient trial of this case, as

the testimony is relatively short.226 However, that could change if Lycoming

understandably sought to reopen the deposition and cross-examine Maar prior to

trial. Given that trial will occur in a matter of days, Lycoming may not have

sufficient time to conduct a deposition in North Carolina, and it is possible that

trial would need to be delayed in order to accommodate Maar’s deposition.

With respect to the question of whether Sikkelee’s actions evidence any bad

faith or willfulness in failing to comply with the Court’s order, the Court concludes

that ample evidence demonstrates that Sikkelee willfully disregarded the Court’s

Scheduling Order. While Sikkelee asserts that she intended to call Maar as a

witness at trial in 2012 and did not know until after the close of discovery that

Maar could not participate in trial due to surgery on her legs,227 that does not

the broad proposition that prejudice does not exist simply because one party did not

immediately challenge the new information or evidence.

226 See Doc. 680 at 16.

excuse the failure to depose Maar during the discovery period.228 As other courts

have noted, “parties who decide not to take a deposition during the discovery

period take the risk that they will be unable to present the testimony if the witness

becomes unavailable at trial.”229

Moreover, while Sikkelee makes much of the fact that Lycoming did not

initially disclose that Edwards had contacted Maar regarding what she witnessed

during the accident,230 as Sikkelee acknowledges, Edwards did not rely on that

conversation in reaching his expert opinion. Moreover, Sikkelee noticed Maar’s

deposition before a transcript of that interview was provided to Sikkelee. It is thus

difficult to conclude that the interview conducted by Edwards somehow

precipitated Sikkelee’s belated deposition of Maar.

More importantly, as discussed above with regard to the question of whether

Sikkelee’s violation of the Rules of Civil Procedure were substantially justified,

Sikkelee knew of the discovery deadline and waited until after that deadline to

depose Maar. The appropriate way to proceed at that point would have been to

seek permission of the Court to conduct the untimely deposition, which Sikkelee

did not do. Accordingly, because Sikkelee’s conduct was willful, this factor weighs

against admitting Maar’s affidavit or deposition testimony.

228 It would seem an odd tactical decision to call a witness without first interviewing or deposing

her, as counsel would have no realistic idea of what that witness would say at trial.

229 Brugh, 2019 WL 7505743, at *2.

Finally, as to the importance of Maar’s deposition testimony, the Court

cannot conclude that such evidence is critical to the case. Plainly, Maar’s

testimony that she heard the airplane engine sputtering just before the accident is of

some import, as it helps establish the possibility of an engine failure. However,

nothing in the record indicates that the deposition testimony is important. There

has been no explanation provided to the Court as to why Maar cannot testify at

trial, which would eliminate the need to present Maar’s affidavit or deposition

testimony and render those written documents wholly unimportant, except possibly

for impeachment purposes.231

Even if Sikkelee could provide a satisfactory explanation for why Maar

cannot testify at trial, the Court views Maar’s testimony as important, but not

critical. Her testimony tends to indicate that there may have been a mechanical

issue with the airplane’s engine prior to the accident, but it is not strong evidence

of a mechanical failure, particularly in light of Maar’s earlier statements that

omitted any mention of a “sputtering” engine. In that vein, the expert opinions and

other evidence that Sikkelee has gathered are far more persuasive and probative of

the cause of the accident.

Thus, although Maar’s testimony may be important, this factor is insufficient

to outweigh the other relevant Pennypack factors that militate against admission—

231 Sikkelee indicates that Maar could not testify at the trial which was originally scheduled for

2012 because Maar had recently undergone surgery in both legs. Doc. 680 at 7. Surely, surgery

particularly the prejudice that Lycoming would suffer from its inability to cross-

examine Maar. Accordingly, the Court concludes that the Pennypack factors as a

whole weigh in favor of excluding Maar’s affidavit and deposition testimony, and

Lycoming’s motion in limine will be granted.

III. CONCLUSION

In accordance with the above discussion, the motions in limine will be granted

in part, and denied in part.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge