# Sikkelee v. Precision Airmotive Corporation

> District Court, M.D. Pennsylvania · March 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10409837

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409837

## Opinion text

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 t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409837. Public record. Not legal advice.