Knight v. Avco Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOANNA ELENA KNIGHT, No. 4:21-CV-00702

Individually and as Personal

Representative of the Estate of Charles (Chief Judge Brann)

Junior Knight, III, Deceased, and

ALLISON MICHELE GRAY

CLARKE, Individually and as Personal

Representative of the Estate of Matthew

Clarke, Deceased,

Plaintiffs,

v.

AVCO CORPORATION,

Defendant.

MEMORANDUM OPINION

AUGUST 9, 2024

I. FACTUAL BACKGROUND1

A. The Pilot and the Helicopter

Monumental Helicopters operated a helicopter flight tour, flight instruction,

and rental company out of Fort Tipton Airport in Fort Meade, Maryland.2 Among

Monumental’s fleet was a Guimbal Calibri G2 helicopter registered with the Federal

Aviation Administration as N572MD (the “Helicopter”).3 The Helicopter was

1 For ease of discussion, the factual background is largely derived from the parties’ statements

of fact filed in conjunction with Avco’s Motion for Summary Judgment.

2 Doc. 75 ¶ 14; Doc. 95 ¶ 14.

powered by a Lycoming O-360-J2A engine, produced by Defendant Avco

Corporation’s Lycoming Engines division.4 Monumental used the Helicopter, which

was restricted to Visual Flight Rules (“VFR”) flights, to provide flight training to

student pilots.5

Among those students was Charles Junior Knight II, who began flight training

with Monumental in May 2017.6 Knight’s pilot training encompassed the pilot

certification requirements set forth in 14 C.F.R. Part 61, including visual flight

weather planning requirements, flight requirements for lawfully operating under

VFR; pre-flight procedures for determining the airworthiness of the helicopter;

legally permissible altitudes for flight operations in different classes of airspace; and

procedures for responding to an engine power loss, including auto rotations.7 It also

included instruction that helicopter operation below 500 feet above ground level was

permitted if it did not pose a hazard to persons or property on the surface and the

minimum visibility requirements for VFR in Class G airspace were met: ½ mile

visibility and clear of clouds.8 Knight was instructed and required by FAA

regulations to ensure that the weather conditions in which he operated the Helicopter

met the limitations for VFR.9

4 Doc. 75 ¶¶ 1, 8.

5 Doc. 75 ¶¶ 12, 15; Doc. 95 ¶¶ 12, 15.

6 Doc. 75 ¶ 26; Doc. 95 ¶ 26.

7 Doc. 75 ¶ 27.

8 Doc. 95 ¶ 27.

9 Doc. 75 ¶ 29; Doc. 95 ¶ 29.

In April 2018, Knight received his pilot’s license, which restricted him to VFR

operations only.10 Knight continued to rent the Helicopter after receiving his license

and, in March 2019, Knight made a $50,000 investment in Monumental which

permitted him greater access to the Helicopter.11 He was given access to the key box

and the ability to reserve and fly the Helicopter with notice to Monumental.12

B. May 4, 2019 Flight and Crash

In late April 2019, Knight reserved the Helicopter for May 4, 2019 using

Monumental’s Google-calendar reservation system.13 Knight invited a friend,

Matthew Clarke, to join him on the flight.14 The flight coincided with the opening of

rockfish season in the Chesapeake Bay.15 Clarke’s brother and brother-in-law, Tim

Clarke and Ben Meredith, planned to go fishing in an area of the Bay south of Kent

Island, Maryland, where Knight and Clarke hoped to fly and take aerial photographs

of Tim and Ben in their respective fishing boats.16

Knight and Clarke took off from Tipton Airport at approximately 11:30 a.m.17

From approximately 12:00 p.m. to 12:11 p.m. the Helicopter’s flight path, speed,

and altitude were recorded by radar.18 During this period, the Helicopter circled over

10 Doc. 75 ¶ 30; Doc. 95 ¶ 30.

11 Doc. 75 ¶¶ 31-32; Doc. 95 ¶¶ 31-32.

12 Doc. 75 ¶ 33; Doc. 95 ¶ 33.

13 Doc. 75 ¶ 34; Doc. 95 ¶ 34.

14 Doc. 75 ¶ 35; Doc. 95 ¶ 35.

15 Doc. 75 ¶ 37; Doc. 95 ¶ 37.

16 Doc. 75 ¶¶ 37-38; Doc. 95 ¶¶ 37-38.

17 Doc. 75 ¶ 48; Doc. 95 ¶ 48.

18 Doc. 75 ¶ 51; Doc. 95 ¶ 51.

Kent Island and portions of the Chesapeake Bay at an altitude of 250 feet or below.19

Clarke exchanged several text messages with his brother-in-law in an effort to find

where Ben and Tim were fishing.20 The last text message, sent at 12:08 p.m. from

Clarke to Ben, asked if the pair could see the Helicopter and stated “We are hitting

the wall that we can’t fly through.”21

A few minutes later, at 12:11 p.m., the last valid data point recorded for the

Helicopter showed it flying due west at a speed of 79 knots (approximately 91 mph)

and at an altitude of 175 feet above the water.22 Shortly thereafter the Helicopter

crashed into the water and sank upon impact.23 Ryan Culberson, an eyewitness who

witnessed the crash from a fishing boat described seeing the Helicopter “beg[i]n to

lose altitude from where it was, and then within a few seconds, it plummeted at that

point down to the—towards the bay, nose-diving, and then I do recall that it did kind

of rotate in the process, but then after that, it hit the bay and a splash of water.”24

Culberson and another eyewitness, Curtis Hoover, drove their boats to the impact

19 Doc. 75 ¶ 53; Doc. 95 ¶ 53. Plaintiffs object to Avco’s statement that, based on the radar data,

the Helicopter flew at an altitude of 200 feet or below and sometimes as low as 50 feet on the

basis that “[t]here can be as much as a fifty-foot difference in the reported radar and the actual

position of the Helicopter.” Id. For present purposes, it suffices to say that, taking the margin

of error into account, the Helicopter was at an altitude of 0 to 250 feet.

20 Doc. 75 ¶ 54; Doc. 95 ¶ 54.

21 Doc. 75 ¶ 54; Doc. 95 ¶ 54. Plaintiffs aver that “the wall” refers to the “PALEO Gate,” which

is a boundary imposed by the Chesapeake Bay special flight rules. Id.

22 Doc. 75 ¶ 55; Doc. 95 ¶ 55. Plaintiffs note that the actual altitude of the Helicopter may have

differed by up to 50 feet from what was indicated by radar. Id.

23 Doc. 75 ¶ 56; Doc. 95 ¶ 56.

24 Doc. 75 ¶ 57; Doc. 95 ¶ 57.

location to attempt to provide aid to the Helicopter’s occupants; however, when they

arrived, aside from some debris, there was no sign of the Helicopter or its

occupants.25 Knight’s and Clarke’s bodies were recovered by divers later in the day

and the Helicopter remained submerged for two days until it was removed from the

water on May 6, 2019.26

C. Cause of the Crash27

1. Plaintiffs’ Theory

The O-360-J2A engine which powered the Helicopter is a direct drive,

four-cylinder, horizontally opposed, four-stroke, pushrod internal combustion

engine.28 The engine has two valves per cylinder, an intake valve and an exhaust

valve.29 Within each cylinder is a piston that is attached to a crankshaft via a

connecting rod.30 In a four-stroke engine, each piston completes four “strokes”

within the cylinder to convert chemical energy to mechanical energy: (1) the intake

stroke; (2) the compression stroke; (3) the power stroke; and (4) the exhaust stroke.31

During the intake stroke, the intake valve opens, the exhaust valve is closed, and the

piston moves away from the cylinder head, drawing an air-fuel mixture into the

25 Doc. 75 ¶ 62; Doc. 95 ¶ 62.

26 Doc. 75 ¶¶ 64-65; Doc. 95 ¶¶ 64-65.

27 In discussing the parties’ theories of the case, the Court assumes the veracity of each for the

ease of discussion. Nothing in this section, or the Opinion generally, should be understood as

the Court endorsing either parties’ version of events.

28 Compl. ¶ 11, Doc. 1; Mark Seader Expert Report, Doc. 87-1, at 2; Doc. 96, at 4-5.

29 Doc. 96, at 4.

30 Id. at 5.

31 Colin Sommer Expert Report, Doc. 85-1, at 7.

cylinder.32 The intake valve closes, the exhaust valve remains closed, and the piston

then moves toward the cylinder head, compressing—hence “compression stroke”—

the air-fuel mixture within the cylinder.33 As the piston approaches “top-dead-

center,” two spark plugs ignite the compressed air-fuel mixture, transforming

chemical energy to mechanical energy; the explosion drives the piston away from

the cylinder head, which rotates the crankshaft, which in turn powers—hence

“power stroke”—the propeller.34 The exhaust valve then opens, beginning the

exhaust stroke, and the piston moves towards the cylinder head, pushing the exhaust

gases out through the exhaust valve.35

In a pushrod engine, the valves are opened when a lobed camshaft, geared to

the crankshaft, causes a pushrod to articulate a rocker arm which, in turn, pushes the

valve into the cylinder to its open position.36 The rocker arm does not contact the

valve directly.37 Instead, it contacts a “rotator cap” that is affixed at the end of the

valve stem.38 When the camshaft rotates to its relaxed position, a valve spring forces

the valve closed against the valve seat inside the cylinder head.39

32 Id.

33 Id.

34 Id.

35 Id.

36 Doc. 96, at 5.

37 Id.

38 Id.

39 Id.

Within the cylinder head, the valve moves within a valve guide.40 The

interface between the valve stem and the valve guide is lubricated with engine oil.41

Excessively high temperatures in the exhaust valve guide can cause “coking,” or

burnt oil accumulating along the valve-to-guide interface.42 The accumulation of

burnt oil inhibits the movement of the valve within the guide, causing it to stick.43

Plaintiffs claim that the Helicopter “experienced a catastrophic engine

malfunction caused by the sticking of the number one cylinder valve.”44 The

resistance created by the coking exceeded the force of the valve spring, preventing

the exhaust valve from closing.45 This resulted in a loss of compression, which

resulted in a loss of engine power.46 Reacting to the power loss, Knight increased

collective—increased the rotor blade pitch to initiate a climb—which significantly

increased the resistance against the oncoming air.47 The engine was unable to

produce power sufficient to overcome the increase in resistance, causing rotor

droop—a decrease in the inertia of the main rotor blades—and the Helicopter could

not remain in flight.48

40 Id.

41 Id. at 6.

42 Id. at 8; Sommer Report at 9.

43 Doc. 96, at 8.

44 Compl. ¶ 18.

45 Doc. 96, at 53.

46 Id.

47 Id. at 17.

48 Id.

The coking on the valve stem was the result of a design defect. To prevent

coking, the engine must be designed to provide for adequate heat dissipation away

from the valve-to-guide interface so that temperatures do not reach the coking

threshold.49 The O-360-J2A engine dissipates heat by drawing it from the exhaust

valve face, through the stem which is filled with sodium, and expelling it through

the valve-to-guide interface into the valve guide boss.50 To prevent the temperatures

from reaching the coking threshold, the valve must rotate within the guide to ensure

heat is distributed evenly around the circumference and along the length of the valve

stem and guide so as to avoid “hot spots.”51 The design of the engine does not include

an affirmative mechanical means to cause the exhaust valve to rotate.52 Instead, the

rocker arm is designed to contact the outer surface of the rotator cap, causing it to

turn at small indices each time it is struck, and valve rotation is facilitated by engine

vibration when the valve is open.53

2. Avco’s Theory

When Plaintiffs arrived at the hangar on May 4, 2019, they did not encounter

any Monumental employees as Monumental had cancelled its scheduled sight-

seeing flights due to the weather conditions.54 While at the hangar, Clarke exchanged

49 Id. at 6.

50 Id. at 6-7.

51 Id. at 7.

52 Id.

53 Id. at 7-8.

54 Doc. 75 ¶ 41.

text messages with Ben and Tim, first telling them, at 8:29 a.m., that it “[l]ooks like

we’re going to be flying,” then, at 9:22 a.m., that he was “[h]oping this fog burns off

so we can make it happen,” and finally, at 10:36 a.m., “The closer you stayed at

Poplar Island the better chance we might have a finding you with this low ceiling

there’s flight restrictions [sic].”55 At 10:45 a.m., the National Weather Service issued

a weather update for the area surrounding Kent Island and Poplar Island that advised

of cloud ceilings below 1,000 feet, visibility below 3 statute miles, precipitation,

mist, and fog.56 At 11:02 a.m., Knight filed a flight plan with FAA flight services for

Tipton Airport and was told by the flight briefer that a VFR flight was “not

recommend[ed]” because the weather was “showing IFR conditions in that area.”57

The briefer asked Knight if he wanted a standard weather briefing, to which he

responded that he was “all set.”58 Plaintiffs took from Tipton Airport at

approximately 11:30 a.m., flying toward Kent Island where they arrived at around

12:00 p.m.59

After circling the area for approximately 11 minutes in search of Ben and

Tim’s fishing boats, the Helicopter crashed into the bay. Witnesses to the crash

indicated that the Helicopter had been flying at a low altitude through waves of

55 Id. ¶ 44.

56 Id. ¶ 45

57 Id. ¶ 46.

58 Id. ¶ 47.

59 Id. ¶¶ 48, 50.

occasionally dense fog.60 At 12:34 p.m., after the crash, the owner of Monumental

texted Knight, “I’m assuming you cancelled for weather.”61 Other witnesses stated

that they were surprised that Plaintiffs were flying in such conditions.

However, having previously committed to take Clarke on a flight, Knight felt

pressured to conduct the flight despite the weather.62 Once in flight, Knight was

distracted by the task of trying to locate Ben and Tim’s fishing boats.63 Upon flying

into a patch of fog or a cloud, Knight attempted to descend below the cloud to regain

visual contact with the water surface.64 However, because the Helicopter was at such

a low altitude, which Knight was unable to determine due to the lack of visual cues,

there was insufficient altitude for him to descend in a rapid manner.65

II. PROCEDURAL HISTORY

Plaintiffs Joanna Elena Knight and Allison Michele Gray Clarke initiated this

litigation on behalf of themselves and as the personal representatives of the estates

of Charles Junior Knight, III and Matthew David Clarke respectively with the filing

of a Complaint against Avco Corporation.66 In their Complaint, Plaintiffs bring

claims of strict liability (Count I), Negligence (Count II), and breach of express and

60 Id. ¶¶ 57-61.

61 Id. ¶ 63.

62 Gregory Feith Expert Report, Doc. 67-1, at 15-16.

63 Id.

64 Id. at 17.

65 Id. at 17-18.

66 Compl.

implied warranties (Count III).67 Roughly a year into discovery, the parties requested

to engage in a settlement conference before a Magistrate Judge pursuant to Local

Rule 16.9.1.68 Before a settlement conference was held, the parties opted to instead

proceed with the litigation.69

On October 31, 2023, Plaintiffs filed Daubert Motions seeking to exclude

Defense Experts Gregory Feith,70 Scott Shappell,71 and Timothy Tucker,72 and Avco

filed an omnibus Daubert Motion seeking to exclude Plaintiff Experts A.J. Fiedler,

Colin Sommer, and Mark Seader,73 and an accompanying Motion for Summary

Judgment.74 On April 18, 2024, Avco informed the Court that it had withdrawn Scott

Shappell as a testifying expert. On April 24, 2024, the Court held a Daubert hearing

as to the remaining contested experts. Following the hearing, the Court denied the

Motion to exclude Shappell as moot and requested supplemental briefing, which the

67 Id.

68 Nov. 9, 2022 Letter to Court, Doc. 36.

69 May 1, 2023 Status Report, Doc. 54.

70 Pls. Mot. to Exclude G. Feith, Doc. 66; Supp. Br., Doc. 67; Opp’n. Br., Doc. 97; Reply Br.,

Doc. 107.

71 Pls. Mot. to Exclude S. Shappell, Doc. 68; Supp. Br., Doc. 69; Opp’n Br., Doc. 98; Reply Br.,

Doc. 108.

72 Pls. Mot. to Exclude T. Tucker, Doc. 70; Supp. Br., Doc. 71; Opp’n Br., Doc. 99; Reply Br.,

Doc. 109.

73 Def. Daubert Mot. Doc. 64.; Supp. Br., Doc. 65; Opp’n. Br., Doc. 94; Reply Br., Doc. 110.

Colin Sommer’s father, Donald Sommer, has also been retained as an expert by Plaintiffs. For

ease of discussion, the Court refers to Colin Sommer by his last name and his father as Donald

Sommer.

74 Def. Mot. Summ. J., Doc. 73; Supp. Br., Doc. 74; Opp’n. Br., Doc. 96; Reply Br., Doc. 111.

parties have filed.75 Accordingly, the parties’ Motions are now fully briefed and ripe

for disposition.

III. FEDERAL RULE OF EVIDENCE 702

Federal Rule of Evidence 702 requires that expert testimony is (1) qualified,

(2) reliable, and (3) assists the trier of fact.76 “Before the proposed testimony gets

presented to the jury, the trial judge evaluates its admissibility based on these three

requirements.”77 “Where the admissibility of expert testimony is specifically

questioned, Rule 702 and Daubert require that the district court make explicit

findings, whether by written opinion or orally on the record, as to the challenged

preconditions to admissibility.”78

A. Qualifications

“Qualification requires ‘that the witness possess specialized expertise.’”79

Rule 702’s qualification requirement is to be liberally construed.80 The United States

Court of Appeals for the Third Circuit has instructed that courts should “eschew[]

overly rigorous requirements of expertise and [be] satisfied with more generalized

75 Apr. 29, 2024 Ord., Doc. 118; Pls. Supp. Br., Doc. 124; Def. Supp. Br., Doc. 125.

76 UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir.

2020).

77 U.S. v. Schiff, 602 F.3d 152, 172 (3d Cir. 2010).

78 Sardis v. Overhead Door Corp., 10 F.4th 268, 283 (4th Cir. 2021) (citing United States v.

Ruvalcaba-Garcia, 923 F.3d 1183, 1190 (9th Cir. 2019); Carlson v. Bioremedi Therapeutic

Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016); Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir.

2010)).

79 Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (quoting Schneider ex rel. Estate

of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003)).

80 Id. (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)).

qualifications.”81 Accordingly, “it is an abuse of discretion to exclude testimony

simply because the trial court does not deem the proposed expert to be the

best qualified or because the proposed expert does not have the specialization that

the court considers most appropriate.”82 A “broad range of knowledge, skills, and

training” suffice to qualify an expert.83

B. Reliability

“Rule 702’s reliability threshold requires expert testimony to be ‘based on

methods and procedures of science, not on subjective belief and unsupported

speculation.’”84 The opinion of a qualified expert “is admissible so long as

the process or technique [as opposed to the conclusion] the expert used in

formulating the opinion is reliable.”85 Thus, “[t]he reliability of an expert’s

conclusions and opinions hinges on the reliability of the expert’s methodology.”86

The United States Supreme Court has recognized that “the relevant reliability

concerns may focus upon personal knowledge or experience.”87 In such

81 Paoli, 35 F.3d at 741 (citing Hammond v. International Harvester Co., 691 F.2d 646, 652–53

(3d Cir. 1982); Knight v. Otis Elevator Co., 596 F.2d 84, 87–88 (3d Cir. 1979)).

82 Id. (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996)).

83 Pineda, 520 F.3d at 244 (quoting Paoli, 35 F.3d at 741).

84 UGI Sunbury, 949 F.3d at 833-34 (quoting Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d

61, 80 (3d Cir. 2017); In re TMI Litig., 193 F.3d 613, 703 (3d Cir. 1999)).

85 In re TMI Litig, 193 F.3d at 664 (citing Paoli, 35 F.3d at 742) (emphasis in original).

86 Wood v. Showers, 822 F. App’x 122, 124 (3d Cir. 2020) (citing Fed. R. Evid. 702(c)).

87 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). See also Oddi v. Ford Motor

Co., 234 F.3d 136 (3d Cir. 2000) (“[T]here may be some circumstances where one's training

and experience will provide an adequate foundation to admit an opinion and furnish the

necessary reliability to allow a jury to consider it . . . .”).

circumstances, the expert “must explain how that experience leads to the conclusion

reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.”88

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court

instructed that “[t]he focus . . . must be solely on principles and methodology, not

on the conclusions they generate.”89 Therefore, parties offering expert testimony do

not “have 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.”90

Nevertheless, because “expert evidence can be both powerful and quite

misleading,”91 courts have recognized that “the importance of the gatekeeping

function cannot be overstated.”92 A recent amendment to Rule 702 “clarif[ied] and

emphasize[d] that expert testimony may not be admitted unless the proponent

demonstrates to the court that it is more likely than to that the proffered testimony

meets the admissibility requirements set forth in the rule.”93 The amendment was

motivated by the Advisory Committee’s “observation that in ‘a number of federal

88 Fed. R. Evid. 702, Advisory Comm. Notes, 2000 Amendments.

89 509 U.S. 579, 595 (1993).

90 Paoli, 35 F.3d at 744.

91 Sardis, 10 F.4th at 283 (quoting Daubert, 509 U.S. at 592).

92 Id. (quoting United States v. Barton, 909 F.3d 1323, 1331 (11th Cir. 2018)).

93 Fed. R. Evid. 702, Advisory Comm. Notes, 2023 Amendments.

cases . . . judges did not apply the preponderance standard of admissibility to Rule

702’s requirements of sufficiency of basis and reliable application of principles and

methods, instead holding that such issues were ones of weight for the jury.’”94 The

Committee emphasized that rulings which have held “the critical questions of the

sufficiency of an expert’s basis for his testimony, and the application of the expert’s

methodology, are generally questions of weight and not admissibility” “are an

incorrect application of Rules 702 and 104(a).”95

In sum, it is for the factfinder to decide whether an expert is correct, but that

question can only go to the jury if the Court is satisfied that the expert’s opinions are

reliable by a preponderance of the evidence.

C. Fit

The issue of whether an expert’s testimony will assist the trier of fact “is

typically understood in terms of whether there is a sufficient ‘fit’ between the

expert's testimony and the facts that the jury is being asked to consider.”96 In

assessing whether an expert’s proposed testimony “fits,” courts ask “‘whether [the]

94 Sardis, 10 F.4th at 283-84 (quoting Advisory Comm. on Evidence Rules, Agenda for

Committee Meeting 17 (Apr. 30, 2021)).

95 Id. at 284 (quoting Advisory Comm., Agenda at 105, 107). See also Wood v. Showers, F.

App’x 122, 125 (3d Cir. 2020) (rejecting argument that flaws in the reliability of an expert’s

principles and methods are a question for the jury); Kumho Tire, 526 U.S. at 158-59 (Scalia, J.

concurring) (“[T]rial-court discretion in choosing the manner of testing expert reliability . . . is

not discretion to abandon the gatekeeping function . . . [and] it is not discretion to perform the

function inadequately.”).

96 Schiff, 602 F.3d at 172-73 (citing Daubert, 509 U.S. at 591).

expert testimony proffered . . . is sufficiently tied to the facts of the case that it will

aid the jury in resolving a factual dispute.’”97

Prior to the recent amendment to Rule 702, the Third Circuit instructed that

the “‘standard [for fit] is not that high,’ but ‘is higher than bare relevance’”98 As

amended, Rule 702 emphasizes that the proponent of the expert testimony must

“demonstrate[] by a preponderance of the evidence that the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact at issue.”99 Therefore, the “not that high, but higher

than bare relevance” standard appears to reflect the misapplication of Rule 702

identified by the Rules Committee.

This Court is, of course, bound by the precedential decisions of the Third

Circuit. That is especially so when the relevant precedential decision interprets an

act of Congress.100 However, that is so only because “Congress can correct any

mistake it sees” in such cases.101 That is precisely what Congress has done here.

Accordingly, this Court is not obliged to follow precedent which represents an

erroneous application of Rule 702.102 The party offering the expert testimony must

97 Id. (quoting Daubert, 509 U.S. at 591; United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.

1985)).

98 Id. (quoting Paoli, 35 F.3d at 745).

99 Fed. R. Evid. 702.

100 See Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015) (“. . . stare decisis carries enhanced

force when a decision . . . interprets a statute”).

101 Id.

102 Jakomas v. City of Pittsburgh, 342 F. Supp. 3d 632, 647 (W.D. Pa. 2018).

show, by a preponderance of the evidence, that the proffered testimony will assist

the jury or “fits” the facts of the case.103

The Third Circuit has instructed that, in weighing whether the proffered

witness testimony will help the trier of fact, “the District Court must ensure that an

expert does not testify as to the governing law of the case.”104 “[T]he line between

admissible and inadmissible expert testimony as to the customs and practices of a

particular industry often becomes blurred when the testimony concerns a party's

compliance with customs and practices that implicate legal duties.”105 “It is settled

103 In a recent decision, the Third Circuit seems to have extended this apparent misapplication of

Rule 702 to the second prong, holding that “[t]he ‘reliability and believability of expert

testimony . . . is exclusively for the jury to decide.’” United States v. Care Alternatives, 952

F.3d 89, 98 (3d Cir. 2020) (quoting United States v. Paulus, 894 F.3d 267, 277 (6th Cir. 2018)).

The language from Paulus excised in Care Alternatives changes the meaning of the sentence.

Compare Care Alternatives, 952 F.3d at 98 (“The reliability and believability of expert

testimony is exclusively for the jury to decide.”) with Paulus, 894 F.3d 277 (“The reliability

and believability of expert testimony, once that testimony has been properly admitted, is

exclusively for the jury to decide.”) (emphasis added, internal quotations and citations omitted

in both).

Adding to the confusion, the Third Circuit explicitly rejected a “lower bar for expert testimony”

where flaws “such as the reliability of an expert's principles and methods would be primarily

a question for the jury and would not be screened by the trial judge” in a non-precedential

opinion contemporaneous with Care Alternatives. Wood, 822 F. App'x at 125.

The issue in Care Alternatives was whether expert opinion was properly excluded on the basis

that it was false. As discussed above, it is well settled that “[a]n opinion may be reliable ‘even

though the judge thinks the opinion is incorrect.’” Andrews v. Brethren Mut. Ins. Co., No. 4:19-

CV-02107, 2023 WL 6690710, at *6 (M.D. Pa. Oct. 12, 2023) (quoting Paoli, 35 F.3d at 744).

Thus, Care Alternatives can perhaps be read in that narrow context.

In all events, the Court will, as discussed above, follow Third Circuit precedent which reflects

a correct application of Rule 702. See TMI Litig., 193 F.3d at 665 (observing that the proponent

of expert testimony must show the testimony is reliable by a preponderance of the evidence).

To the extent that Care Alternatives is inconsistent with Rule 702 as amended, the Court

declines to follow it for the reasons stated herein.

104 Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006).

105 Id.

law that an expert may testify about common behavior patterns in a profession or

subculture”106 so long as the expert does not testify as to “legal duties arising

therefrom.”107

IV. PLAINTIFF EXPERTS

In conjunction with its Daubert Motion, Avco filed a Motion for Summary

Judgment in which it argues that “there is no admissible evidence whatsoever that a

defect in the engine caused the accident.”108 That Motion, then, largely rests on the

premise that Plaintiffs’ experts’ opinions “are not admissible under Rule 702 and

cannot be used by Plaintiffs to make a prima facie case against Avco.”109 Therefore,

the Court begins with Avco’s Daubert Motion to Exclude Plaintiffs’ Experts. In that

Motion, Avco argues: 1) Mark Seader’s dynamometer test is neither reliable nor

relevant; 2) A.J. Fiedler’s and Colin Sommer’s causation opinions are unreliable;

and 3) Sommer’s alternative design and user expectations opinions are unreliable.110

For the reasons stated below, the Court will deny that Motion, and therefore also

deny Avco’s Motion for Summary Judgment.

106 U.S. v Price, 458 F.3d 202, 212 (3d Cir. 2006) (citing United States v. Watson, 260 F.3d 301,

307 (3d Cir. 2001) (collecting cases)).

107 First Nat'l State Bank v. Reliance Elec. Co., 668 F.2d 725, 731 (3d Cir. 1981) (per curiam).

108 Doc. 74, at 2.

109 Id. at 3. Cf. Doc. 125, at 3, n.1 (noting that Avco argues it may still prevail on its motion for

summary judgment even if the Court finds Plaintiffs’ experts’ causation opinions sufficiently

reliable). In all events, resolving the pending Daubert motions clarifies the issues presented by

Avco’s summary judgment motion.

110 See generally Doc. 65, Sections I-III.

A. Mark Seader’s Engine Test

Mark Seader, Plaintiffs’ engine test expert, conducted two tests on an

exemplar O-360-J2A to determine (i) the impact that a valve’s failure to rotate within

its guide has on heat dissipation, and (ii) the power loss resulting from a stuck valve.

Avco argues that the latter test, and all the expert opinions that rely on it, should be

excluded.111

To recreate the effect of a sticking exhaust valve, Seader modified the cylinder

head to install a bolt which, when tightened, would prevent the exhaust valve from

closing beyond 0.1”—one tenth of one inch.112 Seader chose this position so as to

avoid “the risk of the valve contacting the piston, but [keep] it open enough so that

[there was] zero compression.”113 The bolt was tightened while the engine was

running, at which point the “engine started stumbling and . . . losing power.”114

Engine power, measured by a dynamometer, decreased immediately, resulting in a

36% loss in power within approximately five seconds.115

Avco suggests that, “Despite the view shared by all of Plaintiffs’ experts that

the No. 1 exhaust valve on the accident engine was intermittently sticking and never

became ‘seized’ at any point before the accident, Seader did not design the

111 Id. at 27-34.

112 Seader Dep., Doc. 72-19, 189:24-190:2, 217:9-218:17; Hr’g Tr., Doc. 119, 66:21-67:9, 99:3-

7, 166:24-167:2.

113 Seader Dep. 218:1-3.

114 Id. 218:9-17, 219:13-15, 222:5-10, 224:18-22.

115 Hr’g Tr. 168:8-25, 177:23-178:12.

dynamometer test to replicate an intermittently sticking exhaust valve.”116 Instead,

Seader’s test “simulate[d] a seized exhaust valve, bolted in a 0.1-inch open position,

for a 6-second period.”117 Therefore, Avco asserts, the opinions based on Seader’s

test are neither reliable nor relevant.118

Plaintiffs suggest that Avco misunderstands the nature of the alleged

malfunction. Plaintiffs clarify that an “intermittent[ly] sticking valve does not mean

that the malfunction itself is intermittent. Rather, the sticking or the state of being

immobile is intermittent.”119 Put differently, Plaintiffs’ theory is that the exhaust

valve could not travel along its full range of motion. Rather than closing completely

following the exhaust stroke, the valve would remain slightly open, resulting in a

loss of compression as air is pushed out through the exhaust valve, rather than

compressed in the cylinder.

In reply, Avco accuses Plaintiffs of “chang[ing] their liability theory to avoid

the factual pitfalls on which it is based.”120 Avco asserts that there is a material

difference between a valve which is moving, even if not along its full range of travel,

and one which is sticking.121 Avco also rejects Plaintiffs’ claim that whether the

valve was moving or fixed in place is irrelevant because both failure modes result in

116 Doc. 65, at 29.

117 Id.

118 Id. at 27.

119 Id. at 40.

120 Doc. 110, at 4 n.1.

121 Id. at 5.

zero compression. Avco suggests that Plaintiffs’ position undermines Seader’s test,

“as the undisputed facts show that the No. 1 cylinder was producing compression

both before and after the accident.”122

1. Intermittently Sticking Valve

To the extent Avco argues that Plaintiffs’ characterization of the purported

malfunction as a “sticking valve” has sewn confusion, the Court agrees. The word

stuck, as commonly understood, means “[h]eld fast or trapped in some place or

position.”123 This hardly seems the best adjective to describe the failure mode

suggested by Plaintiffs and their experts.124 At the April 24, 2024 hearing, Sommer

and Seader clarified that the valve on the test engine was not, as Avco suggests in

its briefing, stuck in position; rather, the valve could move along its full range of

travel, less the last tenth of an inch prior to closing completely.125 This is consistent

with Plaintiffs’ theory of the case, which is that the engine experienced a loss in

compression from a failure of the No. 1 exhaust valve to close completely.

122 Id.

123 Stuck, Oxford English Dictionary Online Ed. (accessed July 8, 2024).

124 Because it is the term used by the parties, the Court nevertheless will refer to the purported

failure mode as that of an intermittently sticking valve for ease of discussion.

125 Supra n.112. The relevant testimony was, in large part, elicited from Colin Sommer, rather

than Seader. As Seader and Sommer collaborated on the test, as well as previous similar tests,

Hr’g Tr. 80:9-81:24, 151:22-152:3, his testimony as to the procedure which was carried out is

relevant to the analysis of Seader’s opinion. Further, Seader also confirmed, albeit less

explicitly, that the valve could still open completely once the valve was tightened. Id. at

166:24-167:2.

The Court also finds that the discussion regarding whether the valve was

permanently stuck or intermittently sticking is a red herring for the purposes of

conducting the Daubert analysis. As Seader noted, the nature of the accident meant

that there was not enough “time for intermittency.”126 Though the parties dispute

what caused the accident, they broadly agree that the nature of the accident was

immediate; the Helicopter was flying at a relatively stable altitude until it entered a

nosedive and rapidly descended into the water.

Seader testified that an intermittently sticking valve would be apparent to the

pilot immediately.127 His engine test also showed that, when the malfunction occurs,

the power loss is instantaneous.128 Sommer explains that the immediate loss in power

would result in a near immediate loss in altitude.129 Given the altitude of the

Helicopter, Knight would not have had a chance to adequately respond to an engine

malfunction.130 Therefore, while any malfunction may have resolved itself in a few

seconds,131 the Helicopter was already in the water before that could occur.

2. Weak vs. No Compression

Avco overstates the extent to which it is undisputed that the No. 1 cylinder

was producing low, but not zero, compression before and after the accident. During

126 Hr’g Tr. 183:2.

127 Id. 181:10-13.

128 Id. 181:5-9.

129 Sommer Report 18.

130 Hr’g Tr. 113:17-21.

131 Id. 149:14-18, 179:5-24.

the NTSB investigation, “[t]humb compression and suction were noted on the Nos.

2, 3, and 4 cylinders. The No. 1 cylinder was removed since it exhibited weak

compression and was examined.”132 “Thumb compression” is determined by

“put[ting a] thumb over the spark plug hole and feel[ing] for air pressure.”133 David

Harsanyi, an air safety investigator who represented Lycoming during the NTSB

investigation, conducted the thumb compression test which formed the basis for the

NTSB’s finding in its report.

During the hearing, Colin Sommer testified that he has done “numerous”

thumb compression tests and, in his experience, “the difference between nothing,

and super low, or low, or weak is very difficult to tell with your thumb.”134 A.J.

Feidler testified similarly, specifically recalling an investigation in which the NTSB

report noted thumb compression despite the fact that, due to the condition of that

engine, it would have been “impossible to have any compression.”135 Mark Seader

testified that a finding of “weak” compression via a thumb compression test is not

quantifiable.136 He further related that the NTSB’s decision to remove the No. 1

cylinder and independently test it based on “thumb pressure that was weak” is “a big

step” and suggests that there was a problem with the cylinder.137 Randall Knuteson,

132 NTSB Report, Doc. 76-1, at 6.

133 D. Harsanyi Dep., Doc. 110-2, 106:10-13.

134 Hr’g Tr. 75:2-6, 75:16-21.

135 Id. 153:10-21.

136 Id. 184:2-14.

137 Id. 161:25-162:13, 185:5-14.

Avco’s engine expert, also noted in his Report that “[w]ithout the use of a pressure

differential gauge, there was no way to quantify the actual diminished compression

noted in the #1 cylinder.”138

The Court, then, is unpersuaded by Avco’s attempts to fault Sommer for

failing to produce some “evidence or testing or science or engineering upon which

[he is] making [the] distinction [between low and zero compression.]”139 There is

nothing particularly “scientific” about the thumb compression test performed by

Harsanyi. During the intake stroke, the piston travels away from the cylinder head,

pulling air through both the properly functioning intake valve, and the

malfunctioning exhaust valve. Then, during the compression stroke, the intake valve

closes, but the malfunctioning exhaust valve remains open. As the piston moves back

toward the cylinder head, the air is pushed out through the exhaust valve, rather than

compressed within the combustion chamber. But air is not sentient. It does not know

that it can escape through the open exhaust valve. It is pushed towards the entire face

of the cylinder head, which includes the valves and the spark plug hole, with equal

force. Even at a low RPM, this process repeats itself several times a second.

Therefore, it follows that someone who places their thumb over the spark plug hole

will feel something, even if the cylinder cannot produce measurable compression.

138 R. Knuteson Expert Report, Doc. 76-34, at 18.

139 Hr’g Tr. 76:12-24.

Further, Sommer’s 21 years of experience of conducting thumb compression

tests and reading NTSB reports is more than sufficient to render his opinion that

“there’s no way to say from one person to the other person as to what’s an accurate

thumb versus an inaccurate thumb” reliable under Rule 702.140 As is Fiedler’s

similarly extensive experience, including real-world experience in a situation where

a thumb compression test produced a demonstrably false result.

3. Analysis

Plaintiffs bear the burden of showing that the “test conditions were

substantially similar” to conditions on the Helicopter.141 The Court finds by a

preponderance of the evidence that Plaintiffs have met that burden. Seader’s test was

conducted on the same model engine as was installed in the Helicopter. Inspection

and testing revealed that the No. 1 exhaust valve did not seal, resulting in a loss of

compression. As Avco notes, service records of the Helicopter reveal that there was

no such issue prior to the flight. That Charles Knight was able to pilot the Helicopter

for some time suggests that there was no issue during the flight prior to the crash.

Thus, it follows that the issue developed sometime before the inspection and after

Knight took off.

Avco suggests that the failure of the No. 1 exhaust valve to seat was “the

obvious result of plunging the engine into the brackish waters of the Chesapeake

140 Id. at 75:9-12, 76:1-11.

141 Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002).

Bay and then allowing it to sit unpreserved for 19 months.”142 Perhaps. But,

Plaintiffs’ expert Mark Hood, who Avco has not challenged, rejected that

hypothesis, instead identifying a buildup of coking as the culprit.143 To the extent

that Hood is correct, the buildup of coking—the result of burning engine oil—could

only have resulted when the engine was running. Seader’s test conditions then are,

at a minimum, “substantially similar” to the condition of the Helicopter.

Seader’s test does not suffer from the defects of the expert test at issue in

Meadows v. Anchor Longwall and Rebuild, Inc.,144 a case upon which Avco relies.

There, the expert “did not examine the specific [equipment] that [the plaintiff] was

working on at the time of the accident.”145 Here, Plaintiffs experts conducted an

extensive investigation of the specific engine pulled from the Helicopter. Further,

the expert in Meadows “conceded that his . . . tests did not replicate the accident as

he hypothesized” or “the assembly [of the equipment] that existed” at the time of the

subject accident.146 Here, Seader explicitly attempted to recreate a complete loss in

compression, which is what Plaintiffs’ experts hypothesize caused the accident.

Avco may dispute that a complete loss of compression in fact occurred, but the Court

142 Doc. 65, at 1.

143 Hood Rebuttal Report, Doc. 88-2, at 1.

144 306 F. App’x 781 (3d Cir. 2009).

145 Id. at 789.

146 Id.

finds that Plaintiffs experts have established that their opinion that such a loss of

compression did happen is reliable, if not correct.

The Court also finds unpersuasive Avco’s suggestion that Plaintiffs’ experts

have “constantly modif[ied] their opinions in order to work around the flaws pointed

out by Avco.”147 As an initial matter, it is not uncommon for facts to change or

evolve as the parties engage in discovery.148 Even so, Plaintiffs’ initial theory of the

case—that a “stuck exhaust valve in the number one cylinder caused a reduction of

engine power sufficient enough to prevent safe flight and caused the Helicopter to

depart controlled flight and impact into the Chesapeake Bay”149—is largely

unchanged after three years of litigation.150

Nor does the Court agree that the experts themselves have impermissibly

changed their opinions. Avco suggests that Plaintiffs’ experts opined for the first

time during the hearing that “the NTSB’s ‘thumb compression test’ establishing

‘weak’ compression was unreliable, and that it only took 1-2 seconds for the accident

engine to lose 36% of its power, rather than the 5 seconds they previously

asserted.”151

147 Doc. 125, at 20 n.8.

148 See Livingston v. Berger, No. CV 2019-0012, 2022 WL 613277, at *4 (D.V.I. Mar. 1, 2022)

(observing that the Federal Rules of Civil Procedure “provide the opportunity—indeed the

duty—to supplement [discovery] responses” as facts change or evolve).

149 Compl. ¶ 20.

150 Any shift in the Plaintiffs’ theory largely turns on the extent to which a “stuck” exhaust valve

describes the failure mode suggested by Plaintiffs, as discussed by the Court above.

151 Doc. 125, at 22.

Regarding the former, as Avco points out, each of Plaintiffs’ challenged

experts notes that weak compression was found via a thumb test performed during

the NTSB investigation.152 That Plaintiffs’ experts noted the findings of the NTSB

investigation as part of their own is unremarkable, and not the same as adopting its

conclusions. On the contrary, Sommer noted that the test performed by the NTSB

“has never been identified as an appropriate procedure and does not follow proper

aircraft investigation methodology.”153 Sommer also testified during his deposition

that “the position of that valve [during the NTSB investigation] is not critical or key

to my investigation because of all the other evidence that I have.”154 Further, Seader

indicated in his Rebuttal Report that he was skeptical of the NTSB’s finding.155 The

best reading of the record is that Plaintiffs’ experts did not give much credence to

the NTSB investigation, beyond its finding that there was an irregularity with the

No. 1 exhaust valve.

Avco’s argument as to the experts’ testimony regarding the time it took for

power loss to occur suffers from the same flaw. First, the radar data is not

continuous; it is recorded in “one-to-two-second intervals.”156 Any attempt to

152 Id. at 23, n.9.

153 Sommer Rebuttal Report, Doc. 85-2, at 5. Sommer’s report can also be read as rejecting only

the practice of filling the cylinder with water. At best, this portion of Sommer’s report is

ambiguous. Clearing up ambiguity during a hearing is not the same as proffering an entirely

new opinion.

154 Sommer Dep., Doc. 72-18, 135:22-136:2.

155 See Seader Rebuttal Report, Doc. 87-2, at 1 (“During this ‘thumb’ compression test, cylinders

2, 3, 4 apparently felt adequate, however cylinder #1 felt weak.”)

156 Hr’g Tr. 35:18-24.

determine when power loss occurred down to a precise second is inherently an

exercise in futility. Second, the engine test did not reveal that, once the valve’s

movement was restricted, the engine continued to produce maximum power until a

36% loss occurred after five seconds. It showed that, once the valve was restricted,

power loss was immediate and precipitous, peaking at a 36% loss.157 If a 7% power

loss would have resulted in the accident under the circumstances, then the Helicopter

would be underwater before a 36% power loss could occur. Third, while Sommer

testified at the hearing that the Helicopter would experience power loss from a stuck

valve more immediately than was measured by Seader’s test,158 he emphasized that

whether the power loss occurred within two seconds, six seconds, or anywhere in

between, had no effect on his opinion.159

One of the purposes of a Daubert hearing is to give experts a chance to explain

and even correct errors that they made in their reports.160 Insofar as Plaintiffs’

157 Seader Dep. 219:3-223:25. The Court notes that the torque and horsepower figures discussed

during the deposition do not appear to reflect a 36% loss in power. See id. 222:15-10

(discussing drop in torque from 264.42 ft/lb, or 135.94 horsepower, to 209.39 ft/b, or 107.65

horsepower, which reflects a 20.81% drop in power). However, Avco has not challenged the

data from Seader’s test, nor has either party supplied the raw data from the test to the Court.

Since Plaintiffs’ experts’ representation of a 36% loss in power is unchallenged and the Court

does not have a complete view of the relevant data, it accepts the Plaintiffs’ representation for

the purposes of evaluating the pending Daubert motions. In all events, substituting a 20% loss

in power for a 36% loss in power does not appear to have a material impact on Plaintiffs’

experts’ accident reconstruction. Based on the figures cited in Seader’s deposition, a 7.34%

power loss occurs in two seconds, increasing to 9.99% in three seconds, 12.26% in four

seconds, 15.29% in five seconds, and finally 20.81% at six seconds. Id. 219:3-23.

158 E.g., Hr’g Tr. 90:15-92:8.

159 Id. at 104:5-10.

160 Crowley v. Chait, 322 F. Supp. 2d 530, 540 (D.N.J. 2004).

experts’ testimony is inconsistent with statements they have made in their reports or

during their depositions, Avco can address those inconsistencies at trial during cross-

examination. The Court finds that any such inconsistencies do not “materially differ”

from the opinions the experts have provided throughout the litigation; rather, they

are “simply an elaboration on previously disclosed opinions.”161

Even if the Court did conclude that the opinions discussed above were

improperly disclosed for the first time at the Daubert hearing, the Court finds the

belated disclosure harmless because the opinions were not so different as to result in

any prejudice or surprise to Avco and any prejudice was sufficiently ameliorated by

the Court’s invitation to the parties to submit supplemental briefing.162 Avco can

explore any perceived inconsistencies at trial on cross examination; they are not a

ground to exclude expert testimony altogether.163

161 Cf. Stiffler v. Apple Inc., No. 21-CV-523-NR, 2023 WL 1996692, at *5 (W.D. Pa. Feb. 13,

2023) (granting Daubert motion as to opinions expert conceded were disclosed for the first

time during a Daubert hearing).

162 See Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997) (citing Meyers v.

Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904–905 (3d Cir.1977)) (listing the

so-called Pennypack factors courts are to consider before excluding evidence: 1) prejudice to

the party against whom the witnesses would testify, 2) ability to cure that prejudice, 3) notions

of judicial efficiency, and 4) bad faith). The Court also concludes that neither Plaintiffs nor

their experts have acted in bad faith.

163 TQ Delta, LLC v. 2Wire, Inc., No. CV 13-1835-RGA, 2021 WL 2954356, at *2 (D. Del. July

14, 2021) (citing Daubert, 509 U.S. at 596; Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802

F.3d 1283, 1296 (Fed. Cir. 2015); Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d 396,

405 (3d Cir. 2003)).

B. Cause of the Accident

Avco argues that Sommer’s and Fiedler’s opinions that a sticking valve

caused the accident should be excluded because they are based on “pure

speculation.”

1. Fiedler’s Reconstruction

In his report, Fiedler asserts that, in his investigation, he followed the

“methodology and guidelines found in the NTSB Basic Aircraft Investigation

Procedures & Techniques Manual and the International Civil Aviation Organization

(ICAO) Manual of Aircraft Accident Investigation.”164

Fiedler described his methodology at the Daubert hearing as beginning with

an “open mind” and “obtain[ing] whatever factual information you can” “then fine-

tun[ing the] investigation, narrowing it down.”165 The investigation employs a “team

concept” where specialists such as meteorologists, physiologists, and material

scientists conduct sub-investigations.166 In this case, Fiedler testified that the team

evaluated the weather conditions to determine if Knight’s flight comported with the

relevant regulations and if he had the skill required of such a flight.167 The team also

164 A.J. Fiedler Expert Report, Doc 72-3, at 57.

165 Hr’g Tr. 124:7-10.

166 Id. 124:10-22.

167 Id. 126:3-9.

considered the possibility that weather conditions created a situation where Knight

would have experienced spatial disorientation.168

Plaintiff expert Ronald D. Smith, an Aviation Physiologist, investigated

“whether sensory illusions and/or spatial disorientation were involved in the subject

aircraft accident.”169 He concluded 1) Knight “conducted the flight in accordance

with SFRA and VFR requirements”; 2) “impaired depth perception cannot be

attributed as a factor in this accident”; 3) “[t]he flight dynamics of the accident

aircraft do not reflect the predicted pilot response to altitude/height misperception

due to a visual illusion, which might have been associated with over-water depth

perception problems”; and 4) Knight did not experience spatial disorientation during

the accident.170 Avco has not challenged Smith’s opinion.

Plaintiff expert Lee E. Branscome, a meteorologist with Climatological

Consulting Corporation, analyzed the weather conditions and determined that “the

Helicopter was not in clouds or fog at the time of the accident.”171 Avco has not

challenged Branscome’s opinion. Fiedler adopted the conclusions—that neither

spatial disorientation nor weather were factors in the accident—in his report.172

168 Id. 126:10-12.

169 Ronald Smith Expert Report, Doc. 90-1, at 2.

170 Smith Report 13.

171 Lee. E. Branscome Expert Report, Doc. 92-1, at 7.

172 Fiedler Report at 57 (citing Smith and Branscome Reports).

Having eliminated the above factors, Fiedler then considered whether “there

is something mechanically wrong with the Helicopter.”173 At this stage, he

collaborated with Sommer and “did not see anything with the air frame components

that was contrary to Mr. Sommer’s findings.”174 Fiedler agreed with Sommer that

the lack of deformation of the flex couplings to the tail rotor drive shaft “indicates

that the system wasn’t being driven by the engine at the time of impact.”175 The

relative lack of damage to the main rotor blades also indicated to Fiedler (and

Sommer) “that the engine was not driving the main rotor system at the time of the

water impact.”176 No anomalies were found in the control system or the any of the

transmission of drive systems.177

From there, to determine what caused the loss of power, various powertrain

systems and components were analyzed.178 Fiedler evaluated the emission system,

the ignition system, and the fuel system.179 Each were ruled out.

Turning to the exhaust valve, Feidler testified that “a valve that wouldn’t

release from its guide during disassembly indicates valve stickage” which “would

result in a loss of power.”180 Because the valve would not release, it had to be

173 Hr’g Tr. 126:10-17.

174 Id. 127:23-128:3.

175 Id. 127:14-20.

176 Id. 128:23-5.

177 Id. 130:10-15.

178 Id. 129:24-130:6.

179 Id. 128:25-129:14.

180 Id. 130:2-6.

“sectioned out of the cylinder head” at which point coke deposits were found that

would prevent the valve from releasing from the guide.181 Fiedler was present at the

laboratory that tested the deposits and found that they were created by oil coking.182

The amount of coking present was such that it would prevent the spring from closing

entirely.183 Fiedler testified that, in his experience, a valve that remains open even a

couple thousandths of an inch will result in zero compression.184

2. Sommer’s Reconstruction

Sommer stated in his report185 and his testimony186 that he applied the

methodologies established by the ICAO and NTSB, as well as the United States Air

Force, United States Navy, Transport Safety Board of Canada, and University of

Southern California for aircraft accident investigation.

In his report, during his deposition, and during the Daubert hearing, Sommer

detailed extensively his investigation of the accident. Sommer determined that

Knight was qualified to conduct the subject flight and that he did so in accordance

with the relevant regulations.187 Sommer considered and ruled out human factors as

a potential cause.188 Based on witness statements and the available radar data,

181 Id. 130:22-24.

182 Id. 131:4-18.

183 Id. 133:8-11.

184 Id. at 137:9-13.

185 Sommer Report 18.

186 Hr’g Tr. 12:25-13:12.

187 Sommer Report ¶¶ 1-2; Hr’g Tr. 29:14-31:14.

188 Sommer Report ¶ 9; Hr’g Tr. 31:15-34:5; Sommer Dep. 121:9-124:14.

Sommer determined that the accident—a sudden departure from controlled flight—

would have been caused by “something rapid and relatively catastrophic.”189 Upon

investigating the wreckage, found evidence that the rotor was not being driven at the

time of the accident and did not find evidence of any other mechanical issues.190

Sommer reviewed the NTSB report which found a loss of compression in the No. 1

cylinder.191 Sommer’s investigation of the engine showed evidence of coking on the

No. 1 exhaust valve, which was stuck in the guide at the time of the examination.192

Sommer also reviewed the maintenance records, which showed a downward trend

in compression readings for the No. 1 cylinder.193

Putting all of this together, Sommer then concluded that the accident resulted

from a sudden and significant loss in power and that the condition of the engine was

consistent with such a loss in power due to a loss of compression.

3. Analysis

The Court begins its analysis by noting that Avco does not challenge the

reliability of any of the methodologies Fiedler and Sommer claim to have applied in

this case. Rather, Avco argues that their causation opinions are “not based on any

189 Hr’g Tr. 34:3-5. See also Sommer Report 3-4.

190 Hr’g Tr. 43:2-47:16; Sommer Dep. 120:21-121:24.

191 Id. 48:11-20; Sommer Report 16; Sommer Dep. 129:5-136:2.

192 Hr’g Tr. 48:8-50:5; Sommer Dep. 129:5-136:2.

193 Hr’g Tr. 97:23-98:15.

reliable principles or methodology.”194 The Court therefore assumes that the

methodologies Fiedler and Sommer claim to have applied are reliable;195 the inquiry

is whether Fiedler and Sommer’s conclusions flow from a reliable application of

those methodologies.196

a. Deductive Reasoning Approach

ICAO describes accident investigation as “a systematic process whereby all

of the possible causes of an adverse event are evaluated and eliminated until the

remaining causes are identified as applicable to that investigation.”197 “The initial

phase of the investigation process should focus on defining and obtaining data

relevant to the accident.”198 The data to be collected is grouped into four categories:

accident particulars, meteorological particulars, technical particulars, and human

factors particulars.199 The analysis of this data requires “[r]egular discussions

between the various investigation team members.”

194 E.g., Doc. 65, at 37. Cf. Doc. 110, 10 (arguing “neither Sommer nor Fiedler have reliably

applied the principles of accident reconstruction to the facts of this incident”).

195 The Court notes that courts have repeatedly held the ICAO and NTSB methodologies for

aircraft accident investigation to be reliable under Rule 702. See Ballew v. StandardAero Bus.

Aviation Services, LLC, No. 2:21-CV-747-JLB-NPM, 2024 WL 245803, at *6 (M.D. Fla. Jan.

23, 2024) (collecting cases ratifying ICAO method); Pease v. Lycoming Engines, No. 4:10-

CV-00843, 2011 WL 6339833, at *9 (M.D. Pa. Dec. 19, 2011) (“methodology used by NTSB

investigators” sufficiently reliable).

196 Fed. R. Evid. 702(d).

197 ICAO, Manual of Aircraft Accident and Incident Investigation, Doc. 93-1, ¶ 1.1.1.

198 Id. ¶ 1.2.1

199 Id.

As discussed above, both Fiedler and Sommer detail an extensive

investigation in which they considered and ruled out several potential causes of the

accident. They considered the nature of the flight as recorded by radar data and the

accident itself as reported by eyewitnesses and determined that the accident was a

sudden departure from level, controlled flight. They considered and ruled out

weather conditions as a potential cause. They considered and ruled out human

factors as a potential cause.

Turning to the Helicopter itself, they determined from the physical evidence

that the rotor was not powered at the time of the accident. Combined with the nature

of the Helicopter’s sudden descent into the water, Fiedler and Sommer reasoned that

there was a sudden, significant loss of power. They investigated the powertrain for

issues and found evidence that the No. 1 exhaust valve could not close completely.

Based on Seader’s test, they determined that the failure of the No. 1 exhaust valve

to close would have resulted in a sudden, significant loss of power.

This is precisely the sort of deductive reasoning, or “differential diagnosis”

called for by the methodologies applied by Fiedler and Sommer.200 Arguing

otherwise, Avco suggests that Fiedler and Sommer “simply chose the very last data

point for the accident flight, even though doing so ignores 11 minutes of radar data

200 Pease, 2011 WL 6339833, at *6.

showing continuous normal engine operations.”201 Not only does the record show

that neither Fiedler nor Sommer “simply chose” a moment in time that the engine

malfunction occurred, the 11 minutes of radar data showing normal flight is

consistent with their conclusion that the loss in power was sudden and significant.

The Court also finds unpersuasive Avco’s tortured reading of Sommer’s

deposition testimony.202 Sommer testified that the valve “stuck right before the

departure from controlled flight . . . around 16:11:33 [UTC],” the time of the last

radar ping.203 Later, Sommer testified that it took “a couple of seconds . . . the span

of around four to six seconds” from the time the No. 1 valve began sticking for the

engine to experience a 36% power loss.204

In the contexts it was used by Sommer, the Court does not understand the

phrase “a couple of seconds” to mean exactly two seconds.205 Nor is Sommer’s

failure to identify a precise moment in time that the valve stuck or that the Helicopter

experienced the resulting power loss significant. As discussed above, the radar data

is not continuous and Seader’s engine test showed that power dropped precipitously

from the moment the valve was stuck until reaching a 36% power loss after four to

201 Doc. 65, at 37; see also id. at 35 (discussing Fiedler’s finding that the valve stuck at the “apex

of, the top of the descent”).

202 Id. at 39.

203 Sommer Dep. 71:11-16. See also Doc. 65, at 39 (discussing Sommer’s testimony).

204 Id. (citing Sommer Dep. 101:11-102:1).

205 See id. (estimating the time from the onset of valve sticking to power loss as “a couple of

seconds . . . the span of four to six seconds”).

six seconds.206 Sommer’s test in a similar helicopter showed that even an 8% loss of

power would have made it impossible to maintain level flight.207 Therefore, the

Helicopter would have suffered a catastrophic loss of power even before the total

power loss reached 36%.

b. Conditions After Accident v. Before Accident

Avco faults Fiedler and Sommer for failing to “point to any facts or data

indicating that the No. 1 exhaust valve was sticking before the descent.”208 Fiedler

and Sommer note that the NTSB investigation found that the No.1 cylinder had weak

compression because the No. 1 exhaust valve did not close completely. When the

parties’ experts conducted their investigation, attempts to push the valve closed were

unsuccessful. When the cylinder head was disassembled, each valve except the No.

1 exhaust valve fell out of its guide, as is normal. To remove the valve and guide,

the No. 1 exhaust valve was sectioned, and the guide was split open. Buildup, which

was determined to be coking, was found on the valve which exceeded the tolerance

between the valve and the guide.

The Court is therefore unpersuaded by Avco’s argument that the “conditions

. . . consistent with valve stickage”209 found by Fiedler and Sommer “say nothing

about the actual condition of the No. 1 exhaust valve” prior to or during the

206 Supra n.156.

207 Infra nn.226-27.

208 E.g., Doc. 110, at 11.

209 Doc. 65, at 35 (quoting Fiedler Dep., Doc. 72-15, 136:8-21).

Helicopter’s descent into the water. Avco has not challenged Plaintiffs’ materials

expert Mark Hood’s opinion that “[a] coked oil deposit was present on the No. 1

exhaust valve guide and was thicker than the as-designed nominal radial clearance

between the valve stem and the guide and likely resulted in the sticking of the subject

No. 1 exhaust valve.”210 Nor does Avco dispute that oil coking occurs at

temperatures of several hundred degrees.211 The coking could not have occurred

after the accident. Therefore, it is no more of a speculative leap to conclude that it

was there at the time of the accident than it is to conclude that it must be raining

when a man walks into a building dripping wet and carrying an umbrella.212

The Court is also unpersuaded by Avco’s argument that Plaintiffs’ experts’

conclusion is based on the fact of the accident itself.213 As detailed above, Fiedler

and Sommer, consistent with the NTSB and ICAO methods of accident

investigation, conducted a thorough analysis of the conditions of the flight and the

Helicopter. That investigation revealed oil coking on the No. 1 exhaust valve. The

coking on the exhaust valve was such that the valve would be prevented from closing

entirely, which would result in a loss of compression. As Seader’s test demonstrated,

210 Supra n.142; Mark Hood Expert Report, Doc. 72-16, at 7. See also Hr’g Tr. 172:18-23 (Fiedler

testifying that he “left the actual determination of the composition of the [coking] to a materials

expert; in this case, it was Mark Hood.”).

211 Expert Report of Randall Knuteson, Doc. 72-13, at 38.

212 See Third Circuit Model Civil Jury Instruction § 1.6 (“If someone walked into the courtroom

wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be

circumstantial evidence from which you could conclude that it was raining.”).

213 Doc. 65, at 36.

that loss in compression would result in an immediate loss of power. Therefore, to

the extent that Fiedler is correct about the valve sticking, it follows that the issue

would have manifested itself at or near the moment the Helicopter descended.

The Court is unmoved by Avco’s suggestion that the valve could not have

been sticking because other indicators of valve sticking, such as galling or scoring,

were not present.214 As Seader observed in his rebuttal report, a stuck valve can result

manifest differently depending on the failure mode.215 Every possible symptom need

not be present for Plaintiffs’ experts to conclude that the valve is sticking. Avco can

certainly inquire at trial as to how Fiedler and Sommer can be so sure the valve was

sticking in the absence of certain indicators, or present its own theory, which may

well be correct. But, because the Court finds that Fiedler’s and Sommer’s opinions

that the valve was sticking are the result of a reliable application of the principles of

accident investigation and reconstruction, they will be permitted to testify.

c. Reliance on Other Experts

“[I]t is well-settled that one expert may rely upon another expert’s opinion in

formulating his own.”216 That is particularly true in instances such as this one, where

the applied methodology relies upon a “team concept.”217 Here, the Court finds by a

214 Doc. 110, at 13.

215 Seader Rebuttal Report, Doc. 87-2, at 3.

216 Carnegie Mellon U. v. Marvell Tech. Group, Ltd., 286 F.R.D. 266, 271 (W.D. Pa. 2012)

(citing Dura Auto. Sys. of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 613 (7th Cir.2002).

217 See Johnson v. Avco Corp., 702 F. Supp. 2d 1093, 1101-03 (E.D. Mo. 2010) (denying

challenge where accident reconstructionist relied on sub investigations of experts in different

fields).

preponderance of the evidence that Fiedler and Sommer are “able to testify to the

veracity” of the conclusions of the sub-investigations.218 Fiedler and Sommer need

not be physiologists or meteorologists themselves to be able to determine whether

the results of analyses by such experts are well-supported.219 Their reports220 and

testimony221 demonstrate that they did more than “simply ‘parrot’ the ideas of other

experts.”222 Accordingly, the Court finds that Fiedler and Sommer “provided

objective reasons for eliminating alternative causes of the accident.”223 Moreover, as

discussed above, the Court finds that Fiedler’s and Sommer’s “ruling in” the sticking

of the No.1 exhaust valve as a cause of the accident flows from the reliable

application of sound principles of aircraft accident investigation.224

The Court does not find significant the conflicts between Plaintiffs’ experts’

opinions identified by Avco.225 On the contrary, that Sommer reached different

218 St. Paul Fire and Marine Ins. Co. v. Nolen Group, Inc., No. CIV.A.02-8601, 2005 WL

1168380, at *9 (E.D. Pa. May 13, 2005).

219 See McReynolds v. Sodexho Marriot Services, Inc., 349 F. Supp. 2d 30, 37 (D.D.C. 2004)

(expert need not personally write computer code or be master of program to rely on it where

he testified that “[w]hen I review the computer output I am able to determine if the

programming was performed as I requested and if any significant mistakes were made in the

programming”); Astra Aktiebolag v. Andrx Pharm., Inc., 222 F. Supp. 2d 423, 492 (S.D.N.Y.

2002) (finding the expert could testify about work done by colleagues that was based on the

expert's designs).

220 See, e.g., Fiedler Report ¶ D.1. (analysis of weather conditions).

221 E.g., Hr’g Tr. 53:5-12 (Sommer testifying regarding collaboration with Seader on engine test).

222 Cf. Torain v. City of Philadelphia, No. CV 14-1643, 2023 WL 174952, at *5 (E.D. Pa. Jan. 12,

2023) (excluding testimony where expert quoted, without analysis, “essentially word for word”

nearly fourteen pages of record evidence).

223 Pease, 2011 WL 6339833, at *7.

224 Id.

225 Doc. 110, at 13.

conclusions from certain evidence suggests that he did not simply ratify the opinions

of other experts whom he relied upon. To be sure, Avco can explore these differences

on cross-examination. However, they are not differences of opinions of the sort that

call into question the reliability of the underlying opinions.

The Court also is not persuaded by Avco’s argument, raised in a footnote, that

Fiedler’s conclusion that the subject Helicopter “‘can’t sustain flight if it is

experiencing [an] engine power degradation’ of 36%-40% is inadmissible.”226 Avco

suggests that Fiedler’s opinion is unsupported because it is based on a test performed

on a different helicopter several years prior. That the test was performed years ago

is, without more, not a basis for excluding an expert’s opinion. In the prior test,

Sommer determined that a similar helicopter fitted with the same Lycoming engine

could not maintain level flight with a 7-8% loss in power.227 Though it would be

preferable if the same test were conducted on a Guimbal Cabri G2 with the same

36% loss in power, that is insufficient to exclude Fiedler’s opinion here.

First, as the estimated loss in power here is four-to-five times that was tested

by Sommer, the Court finds that it is more likely than not that a similar test run on

an exemplar helicopter would yield similar results.

Second, and more importantly, both Fiedler and Sommer explained why a

sudden loss in power would result in the departure from controlled flight without

226 Doc. 65, at 36 n.21.

227 Fiedler Dep., Doc. 72-15, 112:2-114:6.

relying on the prior test. Fiedler testified that “[i]f you have a decline in power,

decline in your RPM, your only recourse is to dramatically lower the collective.

Once you lower the collective, you’re taking away your lift, you’re going down.”228

Sommer testified that, upon an immediate loss in power “the governing system . . .

will automatically try to increase engine RPM even though the horsepower

availability has been taken away, and the action required by the pilot in order to

combat this results in the aircraft’s rotor system being unable to support the weight

of the aircraft in this scenario.”229 Sommer also testified similarly during the hearing,

providing more detail, when the Court directly questioned him on the issue.230

Avco’s suggestion that Sommer testified differently—that the subject Helicopter

could be flown at 64% power in straight and level flight—either misconstrues or

misunderstands Sommer’s testimony.231 Whether the Helicopter can be flown at

64% power in general is a matter distinct from the impact of an immediate,

unexpected 36% loss in power.

C. Alternative Design

In his report, Sommer opines that “[t]he subject O-320-J2A engine is

defectively designed in a manner that is dangerous.”232 He concludes that the design

228 Id. 114:14-20.

229 Sommer Dep. 104:1-10.

230 Hr’g Tr. 112:14-115:9.

231 Cf. Doc. 65, at 36 n.21 (quoting Sommer Dep. 103:22-104:14).

232 Sommer Report at 18.

of the cylinder system does not allow for adequate cooling.233 In particular, Sommer

faults “[t]he Lycoming friction based valve rotation design.”234 The rotation of the

valve in its guide is “critical for proper heat dissipation.”235 The failure of the valve

to rotate results in coking on the valves.236 The coking then “causes concentrated and

excessive temperatures . . . result[ing] in valve stickage and in loss of engine

power.”237

Sommer suggests that the design defect could have been ameliorated by

alternative designs.238 Specifically, Sommer offers the engines of Avco competitor

Continental Motors, Inc., which employ a “rotocoil” to reduce the incidence of stuck

valves.239 A rotocoil is a “positive valve rotation system” which incorporates a

“mechanical locking engagement much less likely to fail to cause valve rotation.”240

Avco asserts that the Court should preclude Sommer from offering this

opinion at trial “because he has not conducted, and cannot point to, any testing or

evaluations showing that Continental’s designs are safer or even feasible for

installation on a Lycoming O-360-J2A engine.”241 Plaintiffs respond that Sommer’s

comparison of service histories and review of industry publications for Avco and

233 Id. at 18-19.

234 Id. at 19 ¶ 6.

235 Id. at 19 ¶ 5.

236 Id. at 18-19.

237 Id. at 19.

238 Id.

239 Id. at 9.

240 Id. at 19, 19 ¶ 6.

241 Doc. 65, at 40.

Continental engines shows that the Continental design is safer.242 As to feasibility,

Plaintiffs point to the fact that Sommer’s proposed alternative design has been used

in other similar engines for over half a century.243 Avco replies that, “[d]espite

Plaintiffs’ efforts to dress up the steps Sommer took to evaluate the feasibility of

incorporating a Continental rotocoil into a Lycoming cylinder,” his methodology

does not satisfy Rule 702.244

1. Feasibility

At the heart of the disagreement between Avco and Plaintiffs is the extent to

which Sommer is required to test the proffered alternative design. Avco insists that

“in the case of alternative designs, testing is crucial.”245 Plaintiffs maintain that

testing is not necessary if “feasibility [c]an be established by showing the proffered

alternative design is already used in other similar products.”246

In Daubert, the Supreme Court provided a non-exhaustive set of factors for

district courts to consider when evaluating the reliability of an expert’s

methodology.247 Among those factors are whether an expert’s hypothesis is testable

242 Doc. 94, at 48.

243 Id. at 46.

244 Doc. 110, at 19. The Court notes that the discussion of Sommer’s alternative design opinions

during the Daubert hearing was relatively limited, Hr’g Tr. 59:1-63:14, and was not addressed

by either party in post-hearing supplemental briefing.

245 Doc. 65, at 42 (quoting Ortiz v. Yale Materials Handling Corp., No. CIV 03-3657FLW, 2005

WL 2044923, at *6 (D.N.J. Aug. 24, 2005)).

246 Doc. 94, at 44.

247 Paoli, 35 F.3d at 742 (citing Daubert, 509 U.S. at 592-595).

and, if so, has been tested.248 However, Daubert does not require that an expert’s

hypothesis be subjected to testing.249 While the Court must consider each factor, no

single factor is determinative.250 Avco has not provided, nor has the Court’s research

turned up any controlling authority establishing a different inquiry for opinions

regarding alternative designs. While there may be cases where the testability of an

alternative design is determinative, the Court disagrees with Avco to the extent that

it suggests that testability is a precondition of admissibility for an expert’s alternative

design opinion. An expert can demonstrate feasibility of an alternative design by

demonstrating that the design is used by other manufacturers.251

Avco’s characterization of “Sommer’s ‘verification’ process [as] limited to

confirming that a Continental rotocoil component could physically be placed into a

Lycoming cylinder” somewhat understates Sommer’s methodology.252 Conversely,

Avco overstates the extent to which Sommer testified that “more complex changes”

would be necessary.253 Sommer testified that, while he did not do any “functional

testing” of the Lycoming engine with the Continental rotocoil installed, he noted that

248 Id.

249 See id. (citing Daubert, 509 U.S. at 594) (“[T]he inquiry into whether a particular scientific

method is reliable is a flexible one.”).

250 Id.

251 Jacobson by Jacobson v. BMW of N.A., LLC, No. CV 02-181, 2006 WL 8435046, at *3 (W.D.

Pa. Feb. 22, 2006) (collecting cases).

252 Doc. 65, at 41.

253 Id. The Court notes that Sommer’s discussion of “more complex changes” is not part of the

exchange cited by Avco, as noted by Plaintiffs. Doc. 94, at 50. Avco clarifies the context of

the relevant testimony in its reply brief. Doc. 110, at 20-21.

only “slight” or “minor” modifications would be required to do so and described

those modifications.254 Combined with the fact that an Avco competitor has installed

rotocoils in their engines for over half a century, the Court finds that Sommer’s

opinion regarding the feasibility of doing so in the subject Lycoming engine is

reliable.

That is not the end of the inquiry, however. Sommer further testified that,

while the installation of the rotocoil would remedy the failure of the exhaust valves

to rotate, it “would not be the only alternative design that would be necessary to

prevent this type of coking.”255 The other changes that would be required would be

to lower the power output of the engine, change the design of the cylinder head from

a ”parallel valve head” to an “angle valve head,” “the design of the exhaust port

itself,” “the extrusion of the valve guide into the exhaust,” and the use of “normal

deck cylinders as opposed to the lightweight deck cylinders.”256

Certain of these changes are plainly feasible. The increase in horsepower from

145 to 160 was a post-certification and post-sale modification.257 Lycoming could

have simply not released the modification. Lycoming could also have used cylinders

254 Sommer Dep. 144:8-21, 177:19-178:4.

255 Id. at 145:3-10.

256 Id. at 146:13-19. See also Sommer Rebuttal Report at 7 (noting that the temperatures of the

“cold side” of a rotating valve still approached coking temperatures).

257 Sommer Report at 6-7. See also Truong v. Delta Intl. Mach. Corp., No. CV1919384JRPMJS,

2021 WL 5441802 (D.N.J. Oct. 29, 2021) (feasibility confirmed by fact that defendant was

already offering alternative design as an optional accessory).

that have larger cooling fins, as opposed to the lightweight cylinders, or otherwise

recommended an extended cooldown period.258 Regarding other changes, Sommer

offered to discuss them during his deposition.259 Avco declined to take him up on

the offer, instead focusing on the fact that Sommer had not personally tested the

“very, very similar” methods Continental has employed for decades.260 Nor did Avco

question Sommer on the issue during the Daubert hearing. Though Avco’s moving

brief raises the issue of other more complex changes, it does not substantively

discuss them. The Court therefore is left to assume that these other changes are also

feasible.261

Sommer’s alternative design conclusions are not derived from the sort of

“subjective observations and methodologies” that other courts have held insufficient

in alternative design cases.262 Sommer has identified the design flaw he believes

caused the accident and an alternative design that has been implemented for

258 Sommer Report at 11-12. See also Sommer Dep. 150:11-151:7 (discussion regarding testing

of the engine with a standard cylinder installed).

259 Sommer Dep. 178:15-17.

260 Id. at 178:18-180:10.

261 Cf. In re Johnson & Johnson Talcum Powder Products Mktg., Sales Practices and Products

Litig., 509 F. Supp. 3d 116, 144 n.20 (D.N.J. 2020) (rejecting argument raised for first time in

Daubert Motion where moving party neglected to meaningfully cross-examine witness during

hearing or discuss in post-hearing brief). But see Korsing v. U.S., No. 16-22190-CIV, 2017

WL 7794276, at *10 (S.D. Fla. Aug. 24, 2017) (burden of establishing reliability rests with

party offering testimony, notwithstanding objecting party’s failure to pursue certain lines of

questioning during a deposition). The Court emphasizes that its assumption that these other

changes are feasible does not rest solely on the fact that Avco declined to question Sommer

about them. Rather, where Sommer has offered a sufficient basis for his opinion—that these

elements of the alternative design have been incorporated by others for decades—and Avco

has not contested it, the Court has no reason to second guess Sommer’s conclusion.

262 Simmons v. Ford Motor Co., 132 Fed. Appx. 950, 952 (3d Cir. 2005).

decades.263 Though “[n]umerous courts have excluded expert testimony regarding a

safer alternative design where the expert failed to create drawings or administer

tests,”264 neither drawings or tests are required under Daubert. Here, that the

proposed alternative design has been employed by the only other manufacturer of

similar engines for decades is sufficient to show general acceptance of the design,

and that, combined with Sommer’s testing and experience is sufficient in this case

to show that the design could be implemented by Avco.265

The Court finds that the testing Sommer did perform, the fact that certain of

the changes are plainly feasible, and that the proffered design has been used in the

industry for sixty years is sufficient to render Sommer’s opinion regarding the

feasibility of the design reliable by a preponderance of the evidence.

2. Safety

Avco avers that Sommer “must provide sufficient support that the alternative

component is both functionally feasible on the defendant’s product and will make

263 Cf. id. at 953 (affirming exclusion of expert testimony where witness could not identify the

cause of accident or show that the proposed alternative design was in use by any other

manufacturer).

264 Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358-59 (2d Cir. 2004) (collecting cases).

265 Cf. id. (affirming exclusion of expert testimony where expert had not shown general

acceptance).

the product safer.”266 However, Avco does not meaningfully contest Sommer’s

opinion on this point.267

Avco makes a passing reference in its moving brief to industry publications

Sommer relies upon, arguing that neither provide the requisite foundation for his

opinion that the Continental design is safer. Avco’s argument is not well taken.

Sommer also reviewed Lycoming and Continental service bulletins, finding that

“Continental historically has not had anywhere near the number of valve-sticking

incidents or service bulletins, or advisories, or warnings that Lycoming has because

of the overall design.”268 Sommer reviewed Lycoming documents and

communications discussing cooling issues experienced by its customers.269 Sommer

considered bulletins issued by manufacturers of helicopters similar to the subject

Helicopter regarding overheating issues.270 Finally, Sommer’s opinion is based upon

his experience working with both Continental and Lycoming engines.271 Avco’s

suggestion that it is improper for Sommer to rely on publications which are not peer

reviewed is unavailing. If those publications were the sole basis for Sommer’s

266 Doc. 110, at 18.

267 After Plaintiffs noted in their opposition that Avco “focused solely on feasibility,” Doc. 94, at

49-50, Avco did not address the issue at all in its reply brief; its references to feasibility and

safety are followed by a discussion of only the former.

268 Sommer Dep. 179:6-10.

269 Sommer Report at 12, 14-16.

270 Id. at 12-13.

271 See Sommer Dep. 51:14-52:12 (discussing participation in Continental training course).

opinion, Avco’s argument may have merit. As they were simply two of several

resources Sommer considered, that is no basis for exclusion.

The Court also finds unpersuasive Avco’s suggestion that the publications are

irrelevant or undermine Sommer’s opinion. First, the cited portions of the Sky Ranch

Manual clearly discuss the different designs of the Lycoming and Continental

engines.272 Second, Sommer explained during his deposition that the failures of the

Continental rotocoils discussed in the AOPA article were attributable to improper

service of the engine.273

Avco’s halfhearted argument that Sommer’s opinion that the Continental

design is safer than the design used by Lycoming is without support is insufficient

to call into question the reliability of that opinion.

D. User Expectations

Finally, Sommer opines that “[t]he design of this engine . . . w[as] extremely

dangerous and beyond any knowledge or expectation of users of the Helicopter.”274

He faults Lycoming for “fail[ing] to take steps to adequately warn users, correct the

problem, and report the dangerous problems to regulatory authorities.”275 Avco

272 Sommer Report at 8-10. The Court also notes that Avco expert Randall Knuteson relies on the

Sky Ranch Manual in his report. Doc. 88-2, at 41.

273 Sommer Dep. 147:1-17.

274 Sommer Report at 19.

275 Id.

seeks to preclude such testimony on the grounds that Sommer is impermissibly

rendering a legal opinion and that his opinion is without support.

1. Legal Opinions

The Third Circuit has instructed that, in weighing proffered expert testimony,

“the District Court must ensure that an expert does not testify as to the governing

law of the case.”276 Under Pennsylvania law, a plaintiff pursuing a strict product

liability cause of action may establish that a product was defective by showing that

“the danger is unknowable and unacceptable to the average or ordinary

consumer.”277 This test is known as the “consumer expectations standard.”278

276 Berckeley, 455 F.3d at 217.

277 Tincher v. Omega Flex, Inc., 104 A.3d 328, 3335 (Pa. 2014). See also infra Section IV.B

(discussing Plaintiffs’ strict liability claim).

278 Id. at 387. The Court assumes, without deciding, that the consumer expectations test is

appropriate in this case. At least one court has held that the test is inappropriate in a similar

case. Cf. Yazdani v. BMW of N.A., LLC, 188 F. Supp. 3d 486 (E.D. Pa. 2016) (granting motion

to preclude use of consumer expectations test in case regarding alleged defective design of air-

cooled motorcycle engine). The Court professes some skepticism regarding Yazdani’s

reasoning. It is not immediately obvious to the Court why the danger of an engine catching fire

without warning is beyond the understanding of an ordinary consumer. Nor is it obvious that

the fact that the engine in Yazdani was an air-cooled engine makes a difference in whether a

consumer would be less likely to understand that motorcycle engines should not catch fire. Cf.

id. at 493 n.3 (“This case, however, does not involve a typical engine; rather, it concerns an

air-cooled motorcycle engine.”). But cf. Dana Hooshmand, All the Big, Modern Air-Cooled

Motorcycles You Can Still Buy…for now, motofomo (May 23, 2024), available at

https://motofomo.com/modern-air-cooled-motorcycles/ (listing air-cooled motorcycles which

are available on the market, as well as observing that “Harley-Davidson has been known for

‘big air-cooled V-twins’ forever.”). The Court is skeptical that the ordinary consumer would

not understand that Harley-Davidson motorcycles should not spontaneously combust. Further,

in this case, the Court notes that the type of engine at issue is common among helicopters like

the one in this case. On the other hand, if a motorcycle engine is beyond the comprehension of

the ordinary consumer, then it seems that a helicopter engine must be as well. Therefore, the

Court will assume that the consumer expectation test is appropriate for present purposes but

will invite the parties to brief the issue in motions in limine prior to trial. See Doc. 124 at 33-

34 (“[S]hould there be any question as to whether the consumer expectation test can be applied

Avco’s argument fails at the first step. “Whether a product is in a defective

condition is a question of fact,” not a legal conclusion.279 At trial, the jury, not the

Court, will be tasked with determining whether the engine did not perform as safely

as would be expected by an ordinary consumer.280 The Court will explain the law to

the jury, but it will play no other role in determining “whether the risk of exhaust

valve sticking ‘is unknowable and unacceptable’ to helicopter pilots.”281

Federal Rule of Evidence 704(a) explicitly permits an expert to proffer

testimony that “embraces an ultimate issue to be decided by the trier of fact.” If

Sommer “provides a solid foundation and explanation on an issue for which the

factfinder needs assistance, the factfinder might be left hanging if the witness cannot

cap off the testimony with a conclusion about the ultimate issue to which the expert

is testifying.282 This does not mean that Sommer may “merely tell the jury what

in a helicopter crash . . . this issue should be addressed through full briefing at the motion in

limine stage.”).

279 Tincher, 104 A.3d at 335 (emphasis added).

280 Pa. Suggested Standard Civil Jury Instructions, §16.20 (2020).

281 Doc. 110, at 22. At the hearing, the Court inquired whether the consumer expectation test is

appropriate here, where the defect at issue is of the sort that would be “known” to the entity or

person responsible for maintaining and servicing the helicopter, rather than the pilot. Hr’g Tr.

118:8-14. Plaintiffs suggest, and the Court agrees, that this is an issue best resolved upon full

briefing at the motion in limine stage. Supra n.278.

282 Krys v. Aaron, 112 F. Supp. 3d 181, 192 (D.N.J. 2015) (quoting 3 Stephen A. Saltzburg,

Michael M. Martin & Daniel J. Capra, Federal Rules of Evidence Manual § 704.02[1] (9th ed.

2006)). But see Doc. 65, at 46 (whether a claimed defect renders a product “‘unreasonably

dangerous beyond the contemplation of the average consumer . . . is an ultimate legal

conclusion which an expert may not draw, as it invades the province of the court and jury”)

(quoting Raley v. Hyundai Motor Co., No. CIV-08-0376-HE, 2010 WL 199976, at *7 n.16

(W.D. Okla. Jan. 14, 2010)). With due respect to my colleague in the Western District of

Oklahoma, the quoted language appears to this Court to be an incorrect statement of the law.

The authority cited in Raley held that “the proposed testimony may not go to ultimate issues

result to reach.”283 However, that the language of Sommer’s report “tracks” language

used by courts to describe the legal standard is not a basis to preclude Sommer from

testifying as to his opinion at trial.

2. Reliability

The question then is whether Sommer has “provide[d] a solid foundation and

explanation” for his opinion.284 Avco notes that “Lycoming has repeatedly provided

detailed information to its users about the diagnosis and avoidance of exhaust valve

sticking, which is an inherent possibility on all combustion-powered engines,”

including the Continental engines which Sommer says employ a safer design.285

Plaintiffs respond that Lycoming’s service publications “do not describe the type of

malfunction that occurred in this case,” “lead[ing] users to mistakenly believe that

if they simply change their oil at fifty-hour intervals and look for certain symptoms

of valve health, that they will be safe.”286 In reply, Avco asserts that “Sommer

provides no support for the distinction he draws” between the sort of valve sticking

warned against in Lycoming’s service publications and the type of malfunction he

says occurred in this case.287

of law governing the jury’s deliberations, as instructions on the law are the function of the

court.” Id. at *2 (citing United States Aviation Underwriters, Inc. v. Pilatus Business Aircraft,

Ltd., 582 F.3d 1131, 1150 (10th Cir. 2009)).

283 Krys, 112 F. Supp. 3d at 192 (quoting Fed. R. Evid. 704, Advisory Committee Notes (1972)).

284 Id.

285 Doc. 65, at 46-47.

286 Doc. 94, at 52-53.

287 Doc. 110, at 24.

The Court is unmoved by Avco’s argument that, because coking is an inherent

possibility in all combustion engines, the alleged risk of coking identified by

Sommer cannot be unknowable. Avco “conflates the question of whether a danger

is conceivable with whether an ordinary consumer would reasonably anticipate

it.”288 Sommer opines that the Lycoming engine is uniquely susceptible to coking

which presents the risk of a failure “seldom seen on Continental engines.”289

Sommer also asserts that Lycoming was aware of the increased risk of valve stickage

due to coking and did not communicate it to users.290 Insofar that Lycoming was

aware of the increased risk of coking but withheld that information from its

customers, that is strong support for the proposition that there was an inherent defect

in the subject engine unknowable to consumers.

Avco also asserts that Plaintiffs’ attempts to differentiate the carbon buildup

that is warned about in Lycoming service bulletins from oil coking miss the mark.

Here, Avco has the better of the arguments.

Lycoming Service Bulletin No. 388C (“SB 388C”) describes a “procedure to

determine exhaust valve and guide condition” that is to be completed in “300 hour

intervals or earlier if valve sticking [is] suspected.”291 It warns that “[f]ailure to

288 Roamingwood Sewer & Water Assn. v. Natl. Diversified Sales, Inc., No. 1:20-CV-00640, 2023

WL 2775149, at *8 (M.D. Pa. Apr. 4, 2023).

289 Sommer Report at 10 (quotation and citation removed).

290 Id. at 19.

291 Doc. 76-4, at AVCO_008623.

comply with the provisions of this publication could result in engine failure due to

excessive carbon build up between the valve guide and valve stem resulting in

sticking valves.”292

Plaintiffs make much of the fact that the “service literature addresses exhaust

valve sticking for the wrong reasons.”293 As Mark Seader testified during the

Daubert hearing, “all oil coking is carbon, but not all carbon is oil coking.”294 There

is nothing in the record which supports Plaintiffs’ conclusion that the procedure in

SB 388C would make a user aware of carbon buildup formed from combustion

byproducts or oil contamination, but not from oil coking. Plaintiffs’ suggestion that

the “wiggle test” described in SB 388C would not alert a user of oil coking at the

base of the valve is without support.295 As is Plaintiffs’ suggestion that SB 388C

only requires the “wiggle test” be performed if there is evidence of valve sticking.

SB 388C’s mandate that its procedure be completed “in 300 hour intervals or earlier

[if] valve sticking is suspected” plainly means that it should be performed, at a

minimum, every 300 hours, regardless if valve sticking is suspected or earlier if

292 Id.

293 Doc. 94, at 53.

294 Hr’g Tr. 164:14-17.

295 Cf. Doc. 94, at 14 n.10 (citing Carlisle Report, Doc. 91-1, at 2). Carlisle does not opine that

“the accumulation of oil coking at the base of the valve would not be detected by wiggling the

opposite end of the valve.” Id. Rather, Carlisle opines that “manufacturer service bulletins . . .

are not mandatory” under the relevant regulations and that, because there was no evidence of

valve sticking prior to the accident, it would have been “reasonable to defer [SB 388C’s]

maintenance procedure.” Carlisle Report at 2.

valve sticking is suspected.296 Plaintiffs’ experts’ attempts to simply read the 300-

hour interval out of the procedure are unavailing.

Nevertheless, as Plaintiffs note, compliance with manufacturer service

bulletins is not mandatory, notwithstanding any language in a bulletin asserting

otherwise.297 Rather, to the extent that Avco was aware of any defect which could

result in an engine failure, it was required to report the defect to the FAA.298 Sommer

explicitly faults Avco for failing to make such a report.299 Accordingly, the Court

finds by a preponderance of the evidence that Sommer’s opinion that the Lycoming

O-360-J2A engine suffered from a defect which was dangerous and unknowable to

the consumer is reliable.

V. DEFENSE EXPERTS

Plaintiffs filed motions to exclude the opinions of Gregory Feith and Timothy

Tucker (collectively “Avco’s Experts”). Broadly, Plaintiffs claim that each of the

pair’s opinions suffer from the same defect: they are “derived from an unreliable

296 Infra n.413.

297 Applicability and Enforcement of Manufacturer’s Data, FAA Ord. 8620.2B (effective Mar. 15,

2019). The Court notes that Order 8620.2B went into effect mere weeks before the accident.

Nevertheless, the previous Order was similar in all relevant respects. Applicability and

Enforcement of Manufacturer’s Data, FAA Ord. 8620.2A (effective Nov. 5, 2007, canceled

Nov. 5, 2007).

298 14 C.F.R. § 21.3(c)(10). The Court notes that 14 C.F.R. § 21.3(d)(1)(i) does not require

reporting of “[f]ailures, malfunctions, or defects” which Avco determined “[w]ere caused by

improper maintenance or use.” However, whether the valve stickage results from improper

maintenance or use is a matter of dispute between the parties. For his part, Sommer cites to

internal Avco records and communications which suggest that Avco was aware of an issue

which was not attributable to improper maintenance or use. Sommer Report at 11-12, 14-16.

299 Sommer Report at 19.

methodology not intended to be used in accident investigation and otherwise

impermissibly address [Knight’s] state of mind and speculate about what [he]

perceived.”300 In support, Plaintiffs direct the Court to Johnson v. Avco Corp.,301 in

which the Honorable Catherine Perry excluded Scott Shappell’s opinions which he

had based on a methodology called Human Factors Analysis and Classification

System (“HFACS”).302

Similar to the discussion regarding whether the failure mode proposed by

Plaintiffs’ is best described as an “intermittently sticking valve,” the Court finds that

the discussion regarding HFACS is a red herring. Shappell, the witness at issue in

Johnson and previously offered as an expert witness by Avco here, has been

withdrawn. Avco’s remaining two witnesses testified that they did not apply

HFACS. Tucker testified that he had never heard of it before this litigation,303 and

Feith testified that he does not “categorize [a pilot’s actions] the way HFACS would

typically categorize them.”304 Rather than determine whether either Tucker or Feith

did, in fact, use HFACS and then whether HFACS itself is admissible, the Court will

simply evaluate the methods both experts applied on their own merits.

300 Doc. 67, Section III (Feith); Doc. 71, Section III (Tucker).

301 701 F. Supp. 2d 1093 (E.D. Mo. 2010).

302 Doc. 67, at 9; Doc. 69, at 7-8; Doc. 71, at 15-16.

303 Hr’g Tr. 193:11-15.

304 Id. 252:14-17.

A. Gregory Feith

As an initial matter, the Court notes that, despite requesting the Court to

preclude Feith’s testimony in its entirety, Plaintiffs only challenge conclusions 5-7

of Feith’s Report.305 Avco observes in its opposition, and Plaintiffs did not dispute

in their reply, supplemental brief, or at the hearing that Plaintiffs do not take issue

with Feith’s conclusions (1) that Knight was in non-compliance with the

Monumental Helicopters User Agreement; (2) that Knight, conducting the low-level

flight, operated the Helicopter in “weather that was considered marginal VFR at best

and more likely IMC as he continued the flight over the Chesapeake Bay;” (3) the

Helicopter was flown at low levels in an erratic flight path in poor conditions; and

(4) that the nature of the crash is inconsistent with an engine malfunction.306

Therefore, the Court limits its analysis to the contested conclusions:307 (1) Knight’s

decision to initiate and continue the flight in conditions beyond his and the

Helicopter’s abilities was due to “self-induced pressure” and “continuation bias”; (2)

Knight acting as a “spotter”—actively looking for the fishing boat—diverted his

305 Doc. 67, at 4; Doc. 97, at 9 n.3; Doc. 107, at 3.

306 Feith Report at 17.

307 Insofar that Plaintiffs did intend to challenge the entirety of Feith’s report, the failure to correct

Avco’s contrary assertion despite three opportunities to do so is, as a practical matter, a

concession of the issue. Progressive Sterilization, LLC v. Turbett Surgical LLC, No. CV 19-

627-CFC, 2020 WL 3071951, at *2 (D. Del. June 10, 2020) (citing Law v. Medco Research,

Inc., 113 F.3d 781, 787 (7th Cir. 1997); Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir.

1994)); accord Transamerica Life Ins. Co. v. Daibes Gas Holdings Atlanta, L.L.C., No. CV

18-10869 (SRC), 2021 WL 1541150, at *25 (D.N.J. Apr. 20, 2021).

attention away from operating the Helicopter; and (3) Knight’s actions evidenced

hazardous “anti-authority and macho attitudes.”308

1. Weather Conditions

Central to each of Feith’s challenged opinions are the weather conditions at

the time of the accident. Feith refers to Avco’s weather expert, Dr. Elizabeth Austin,

who opined that the “[w]eather conditions in the vicinity of Kent Point included

instrument flight rules (IFR) with a cloud ceiling as low as 300 feet above ground

level, [and] visibility restrictions due to mist and fog.”309 Austin further concluded

that the weather conditions “favor[ed] the formation of steam fog over the bay prior

to and at the time of the N572MD accident.”310 Feith also notes that witnesses

reported “low cloud ceilings and limited visibility (due to patches of fog that varied

in location and density) were present in the area of the accident at the time the

N572MD crashed.”311

However, as Plaintiffs note, Feith conceded during the Daubert hearing that

the altitude of the Helicopter at the time of the accident was well below the 300-foot

cloud ceiling as determined by Austin.312 Feith suggests that both Austin and

Plaintiffs’ weather expert, Dr. Lee Branscome, only evaluated the weather

308 Id. at 17-18.

309 Id. at 10.

310 Id.

311 Id.

312 See Hr’g Tr. 261:3-262:5.

conditions “over land” at “ground-based observation points.”313 Feith’s testimony

misstates the weather experts’ reports. While both experts rely on information

collected by ground-based weather stations, they used that information, as well as

other evidence, to reconstruct the weather conditions they believe existed at the

location of the crash—that is, over the Chesapeake Bay.314 Both Austin and

Branscome found that the minimum cloud ceiling was well above the altitude of the

Helicopter at the time of the accident.315 When confronted with these

inconsistencies, Feith suggests that “nobody can say for sure” that the Helicopter

was not in “the bottom ragged edge of a cloud.”316 In his Report, Feith notes that

“[c]louds do not always form parallel to the surface,” and that “FAA visual flight

rules (VFR) require that the pilot have a minimum of one-half mile visibility and

operate the Helicopter clear of the lowest cloud base above the terrain.”317 However,

Feith fails to point to anything which supports his assertion that Knight encountered

a cloud 125 feet below the cloud ceiling.

Feith’s attempt to shift gears and suggest that the Helicopter was flying

through “[o]bscuring weather” rather than clouds is unavailing. As Feith noted in his

313 Hr’g Tr. 261:3-12.

314 See generally Lee Branscome Expert Report, Doc. 92-1; Elizabeth Austin Expert Report

Excerpt, Doc. 107-1.

315 See Branscome Report at 7 (concluding that the cloud ceiling was at least 400 feet); Austin

Report at 76 (“The weather conditions in the helicopter’s direction of travel (to the south-

southwest during the final minute of its low-level flight included a low cloud ceiling as low as

300 feet MSL, flat light, and visibility degraded by mist and areas of patchy fog.”).

316 Hr’g Tr. 262:9-14.

317 Feith Report at 15.

report, Austin opined that the weather conditions “favored” the formation of fog at

the time of the accident. However, though witnesses to the accident stated that they

saw the Helicopter fly through fog prior to the accident, Feith acknowledges that no

witness stated that the Helicopter was flying through fog at the time of the

accident.318 Rather, witnesses to the accident testified at depositions that their view

of the Helicopter at the time of the accident was unobstructed by fog or any other

obscuring weather.319 Feith offers no support for his assertion that the witnesses’

“visibility observation[s] are not reflective of the visibility as viewed from an aircraft

100 to 200 feet above the water.”320

Rule 702 may not require certainty, but Feith’s own testimony confirms that

his opinion that the Helicopter was flying through obscuring weather at the time of

the accident falls short of Rule 702’s standard for reliability. Feith’s opinion that

Knight could have been flying through a cloud is contrary to the record evidence.

Even if the conditions for fog formation existed and witness testimony that the

Helicopter was in clear air is unrepresentative of the view from the cockpit, Feith’s

opinion requires a stacking of inference upon inference that renders it unreliable.

Feith’s failure to establish that it is more likely than not that the preconditions for

318 Hr’g Tr. 256:3-4.

319 Docs. 67-2, 67-3, 67-4, 67-5.

320 Feith Report at 10.

his opinions occurred also necessarily precludes a finding that any such opinion fits

the case by a preponderance of the evidence.

2. Pilot Inattention

Feith opines that the attempt to search for the boat “resulted in a diversion of

attention from flying the Helicopter in a stabilized manner at a consistent altitude.”321

According to Feith, flying the Helicopter “would have required his undivided

attention, particularly given the weather conditions and restricted visibility.”322

Plaintiffs argue that Feith’s opinion is “rank speculation.”323 In support, Plaintiffs

argue that there is no evidence that Knight was actively involved in attempting to

“spot” the boats or that the weather conditions were such that the Helicopter would

have encountered fog or clouds prior to the crash.

Feith explains that “[s]earch missions and low-level flight operations are

significantly different than typical flight operations” as the former “requires the pilot

to exercise a high level of discipline, skill, and knowledge to successfully

accomplish the mission.”324 Feith also notes that “[c]ontrolled flight into terrain is

the top operational risk when conducting helicopter search and rescue—when an

aircraft unintentionally collides with terrain because of poor visibility.”325

321 Feith Report at 17.

322 Id.

323 Doc. 67, at 14.

324 Feith Report at 13.

325 Id.

Contrary to Plaintiffs’ assertion, that the purpose of the flight was to search

for the boats is, though not dispositive, evidence that Charles Knight was actively

engaged in looking for them.326 Even if Knight did not personally scan the Bay for

the fishing boats, his relative inexperience, and Matthew Clarke’s complete lack of

experience as a spotter working with pilots in “search” flights, makes it more likely

that the pair were performing the “mission” contrary to best practices. Plaintiffs hold

Feith to too high a standard. Feith need not be certain of his opinion for his testimony

to be admissible.327 Feith opines that “[i]t is more likely than not that Knight

participated in searching by visually scanning the area for the boat while he

maneuvered the Helicopter at a low level.”328

However, Feith does not opine that the “search” nature of the flight itself was

what caused the accident. Rather, it was the nature of the flight combined with the

weather conditions.329 As discussed above, Feith has failed to establish the factual

predicate—that “it is apparent Mr. Knight did not realize he was either about to enter

or had already entered a cloud or fog”—that opinion relies upon.330 Even if Feith

could establish beyond a shadow of a doubt that Knight personally participated in

looking for the boat, the failure to establish the reliability of the second part of his

326 Abrisch v. U.S., 359 F. Supp. 2d 1214, 1232 (M.D. Fla. 2004).

327 United States v. Mornan, 413 F.3d 372, 381 (3d Cir. 2005).

328 Feith Report at 17.

329 Id. at 17 ¶ 5.

330 Id.

causation opinion—the presence of obscuring weather—is fatal. Accordingly, the

Court will preclude Feith’s opinion regarding the nature of the flight as it is stated

in the conclusion of his report.331

The Court will not, however, at this point preclude Feith from offering

testimony regarding the risks of “search and rescue” flights. Plaintiffs do not

meaningfully dispute Feith’s opinion that search and rescue flights carry certain

risks.332 Nor do Plaintiffs’ dispute that searching for the fishing boats was the

purpose of the flight and that Clarke was actively communicating with the fishermen

in furtherance of that goal. Though a close call, the Court finds that these factors

distinguish this case from cases of distracted drivers such as those cited by

Plaintiffs.333 Unlike driving a car, flying a helicopter is not the sort of activity which

the average juror would be familiar.334 Further, the distraction at issue here is not a

momentary lapse; it is part and parcel of the nature of the flight itself.

331 Id.

332 In all events, the Court finds that Feith’s opinion on this point is well-supported.

333 E.g., Strong v. U-Haul Co. of Mass., No. 1:03-CV-00383, 2006 WL 5164822, at *8-9 (S.D.

Ohio Dec. 28, 2006) (rejecting expert opinion that accident was caused by driver distraction as

without evidentiary support). But see Failla v. George's Foods, LLC, No.

220CV07109BRMJSA, 2023 WL 7298473, at *9 (D.N.J. Nov. 6, 2023) (denying Daubert

motion as to opinion that tractor-trailer operator exhibited signs of distraction).

334 See King v. Cessna Aircraft Co., No. 03-20482-CIV, 2010 WL 1980861, at *8 (S.D. Fla. May

18, 2010) (permitting expert to testify regarding distractions in the cockpit and “the unique

environment that the pilots were operating in”); In re Air Crash at Lexington, Kentucky, Aug.

27, 2006, No. CIV.A. 506CV316-KSF, 2008 WL 2954973, *4 (E.D. Ky. July 30, 2008)

(finding that expert testimony would “assist the jury’s understanding of the many factors that

[defendant] claims contributed to pilot confusion prior to the crash”).

For the same reasons, the Court also finds that Feith’s testimony will aid the

jury. While a jury can understand the dangers posed by such momentary distractions,

the unique risks posed by the type of flight in this case is likely beyond the

understanding of the average juror.

3. Aeronautical Decision Making and Hazardous Attitudes

In his report, Feith avers that “[p]ilots are exposed to a significant number of

Human Factor (HF) issues that can have both a positive and negative influence on

pilot decision making.”335 He suggests that two such Human Factors, “Self-Induced

Pressure” and “Continuation Bias,” contributed to “Knight inadvertently fl[ying] the

Helicopter under control into the bay.”336

According to Feith, “self-induced pressure is an HF issue that both the NTSB

and the FAA have discussed historically as either a casual or contributing factor in

aircraft accidents.”337 “Self-induced pressure in aviation is typically associated with

the need to ‘accomplish the mission’ regardless of potential hazards such as weather,

terrain, pilot experience, etc.”338 “Continuation Bias . . . means the ‘unconscious

cognitive bias to continue with the original plan in spite of changing conditions.’”339

335 Feith Report, Doc. 67-1, at 15.

336 Id. at 16. Plaintiffs refer to these human factors as “internal pressures.” Doc. 67, Section IV.A.

Avco takes issue with this characterization. Doc. 97, at 19 n.10. As with other disputes in this

case, the precise term used by the parties does not materially impact the analysis.

337 Feith Report at 16.

338 Id.

339 Id. at 15 (quoting Continuation Bias Definition, SKYbrary (last accessed Mar. 26, 2024),

https://skybrary.aero/articles/continuation-bias).

Feith opines “Knight’s choice to initiate and then continue the flight into low cloud

ceilings, fog, and restricted visibility conditions was likely influenced by self-

induced pressure to be successful for Mr. Clarke’s photography mission.”340

The Court agrees with Plaintiffs that that Feith’s conclusions regarding

“motivation and internal pressures” “are matters that any lay juror could infer from

admissible evidence.”341 “Expert testimony is unnecessary—and may even be

properly excluded—if people ‘of common understanding, are as capable of

comprehending the primary facts and of drawing correct conclusions from them as

are witnesses possessed of special or peculiar training, experience, or observation in

respect of the subject under investigation.’”342 Lay jurors, without the help of expert

testimony, will be able to understand and infer from the evidence concepts such as

“internal pressures” and tunnel vision.

The same is true of Feith’s opinion that “Knight was irresponsible in his

aeronautical decision-making and exercised both anti-authority and macho

attitudes.”343 Feith avers that these attitudes were “exemplified by [Knight’s]

disregard of the Monumental Helicopters’ policies and his overconfidence in

conducting the accident flight.”344 Assuming that Knight disregarded his training or

340 Feith Report at 17 ¶ 5.

341 Doc. 67, at 13.

342 United States v. Dewitt, 943 F.3d 1092, 1096 (7th Cir. 2019) (quoting Salem v. U.S. Lines

Co., 370 U.S. 31, 35 (1962)).

343 Id. at 18 ¶ 7.

344 Id. at 16.

Monumental policies—a contention Plaintiffs dispute—lay jurors are more than

capable of concluding that an individual who flaunts the rules possesses anti-

authoritarian or macho attitudes.

The Court is cognizant that self-induced pressure, continuation bias, and anti-

authority and macho attitudes are terms of art which are used in the fields of pilot

training and aircraft accident investigation. That alone, however, is insufficient to

meet the Rule 702 standard.345 It remains that, in this case, Feith’s analysis as to

Knight’s decision making and attitudes is of the sort that is reserved for the jury.

B. Timothy Tucker

Plaintiffs challenge three opinions offered by Avco expert witness Timothy

Tucker: 1) Knight’s decision to proceed with the flight was unduly influenced by

external pressures; 2) Knight flew into the water because he was unable to perceive

a discernible horizon; and 3) the search for the fishing boats distracted Knight from

focusing on piloting the Helicopter.346

1. External Pressures

In relevant part, Tucker opines that the pressure he felt to find the boat and

not let Clarke down influenced Knight’s decision to commence and then continue

345 In re Human Tissue Products Liab. Litig., 582 F. Supp. 2d 644, 668 (D.N.J. 2008). See also

Colon ex rel. Molina v. BIC USA, Inc., 199 F. Supp. 2d 53, 80 (S.D.N.Y. 2001) (that theory

has been put to some non-judicial use insufficient to satisfy Rule 702).

346 Doc. 71, at 4-6. The Court notes that Plaintiffs refer to the “external pressures” as “internal

pressures.” Id. Further, Tucker, like Feith, offers several opinions which Plaintiffs have not

contested. The Court confines its analysis accordingly.

the flight.347 Tucker states that “[d]ealing with these external pressures to complete

a flight is a well-known risk within the helicopter community, especially on photo

flights.”348 Plaintiffs argue that Tucker’s opinion is unreliable because he “merely

identifies the existence of the get-the-job-done phenomenon as being ‘well known’

in the helicopter piloting world” then “automatically ascribes the phenomenon to the

pilot of the subject flight.”349 They maintain that “there is no way to test Mr. Tucker’s

hypothesis or ascribe any objectifiable criteria (such as rate of error and controlling

standards) to the technique.”350 Avco responds that Tucker’s opinion flows from his

“consideration of the FAA’s safety instructions and guidelines, including its

instruction that Knight evaluate any external pressures that could impact safe

flight.”351 Plaintiffs reply that Avco misses the point; whether the risks posed by

external pressures are “subjects addressed in the aviation industry . . . is irrelevant

to the inquiry” of whether Tucker’s testimony satisfies Rule 702.352 The Court

agrees.

Avco suggests that “Plaintiffs purposefully misinterpret Tucker’s report,

which . . . does not attempt to assess Knight’s personal motivation for carrying out

347 Tucker Report, Doc. 71-1, at 11 ¶ 4.

348 Id.

349 Doc. 71, at 11.

350 Id.

351 Doc. 99, at 15.

352 Doc. 109, at 5.

the accident flight.”353 Far from a misinterpretation, Plaintiffs’ understanding of

Tucker’s report flows from a plain reading of his conclusions that “increased

pressure to ‘get the job done’ . . . influenced Mr. Knight’s decision[s],” and that

Knight “did not want to let a passenger/friend down.”354

Whether Knight was aware of the risks posed by external pressures, the FAA

PAVE checklist, or the FAA’s aeronautical decision-making process says nothing

about whether external pressures, or any other risk, manifested itself. On the

contrary, it can just as easily lead to the opposite conclusion: Because Knight knew

that he should not fly under the influence of external pressures, it follows that, having

decided to fly, Knight was not subject to any external pressures.355 The fact that

pilots take risks when subject to pressures from passengers or “to get the job done”

is not a basis to conclude that Knight did so in this case.356

Tucker’s conclusion also begs the question whether Knight understood that

he should not have taken off or continued the flight once airborne or that he would

353 Doc. 99, at 13.

354 Tucker Report at 11 ¶ 4.

355 See D. Sommer Rebuttal Report, Doc. 89-2, at 7 (“Without any record of recent examination

by an instructor or examiner, the only indication of what Pilot Knight’s skills were at the time

can only be gleaned from his own determination that he had the requisite abilities and was

comfortable in conducting the flight.”). The Court emphasizes that its reference to Donald

Sommer’s opinion should not be understood as an endorsement. It appears to the Court that

the elder Sommer’s reasoning suffers from the same flaw. However, Avco has not challenged

Donald Sommer’s opinions.

356 Johnson, 702 F. Supp. 2d at 1108 (excluding expert testimony based on studies showing

“sometimes people take risks when they are eager to get home, and sometimes passengers put

pressure on pilots”).

not have absent any external pressures. That Knight was trained to and should have

conducted a self-assessment prior to the flight does not mean he did so. Tucker notes

that Knight told another pilot the morning of the flight that he was conducting an

IFR flight, despite such a flight being beyond the capabilities of Knight and the

Helicopter.357 Tucker also faults Knight for not following the requirements of

Monumental Helicopter’s Aircraft Use Agreement or receiving a weather

briefing.358 According to Tucker then, Knight’s decision making was flawed for

reasons that have nothing to do with any external pressure. There are any number of

reasons Knight may have exercised poor decision making; he may have felt

pressured by Clarke, or he may have simply been overconfident or careless. Tucker

fails to explain why he is better situated to draw that conclusion than a jury.359

That is also what distinguishes this case from Sikkelee v. Precision Airmotive

Corporation.360 The decisional errors in Sikkelee stemmed from the pilot’s

inexperience, ignorance of the risks of flying in mountains, and unfamiliarity with

the accident aircraft.361 Those phenomena, and how they may impact a pilot’s

357 Tucker Report at 5.

358 Id. at 10-11 ¶¶ 1-2.

359 See U.S. v. Han, 637 F. Supp. 3d 527, 550 (N.D. Ill. 2022), aff'd, 105 F.4th 986 (7th Cir. 2024)

(job of determining state of mind properly left to jury); In re 3M Combat Arms Earplug

Products Liab. Litig., No. 3:19MD2885, 2021 WL 948839, at *10 (N.D. Fla. Mar. 13, 2021)

(collecting cases); In re Motor Fuel Temperature Sales Practices Litig., 2012 WL 380159, at

*7 (D. Kan. Feb. 6, 2012) (“An expert witness may not speculate as to the intent or motives of

parties or others.”).

360 No. 4:07-CV-00886, 2021 WL 392101 (M.D. Pa. Feb. 4, 2021).

361 Doc. 125, at 28-29 (citing expert report at issue in Sikkelee).

decision making, are beyond the understanding of an ordinary juror. Indeed, that the

pilot himself was apparently unaware of certain risks practically confirms as much.

Conversely, how pressure to perform for a friend informs decision making is

universal to anyone who might sit on a jury, not just helicopter pilots.

Therefore, Tucker will not be permitted to testify that external pressures

influenced Knight’s decision to commence and then continue the flight. Tucker may,

however, offer testimony regarding the “well-known” risks presented by external

pressures and how pilots are trained to manage those pressures. Tucker may not offer

testimony that any such pressure actually manifested itself.

In so holding, the Court disagrees with Plaintiffs’ position expressed during

the hearing that allowing such testimony would not be unduly prejudicial because it

would invite the jury to engage in speculation.362 Though the jury is not allowed to

speculate, it is permitted to draw reasonable inferences from the evidence.363 Based

on the record before the Court, it appears that there is sufficient admissible evidence

from which a jury could reasonably infer that Knight felt pressured to fulfill a

promise to a friend. To the extent that a jury draws that inference, his decision to fly

despite his training is probative evidence that Knight was willing to conduct and

continue a flight beyond his abilities or otherwise contrary to his training.

362 Hr’g Tr. 270:10-23.

363 U.S. v. Ji, No. 18 CR 611, 2022 WL 3081868, at *5 (N.D. Ill. Aug. 3, 2022), aff'd sub nom. U.S.

v. Chaoqun, No. 23-1262, 2024 WL 3355141 (7th Cir. July 10, 2024).

2. Ability to Perceive Horizon

Tucker also opines that the “accident was caused when a non-instrument rated

pilot flying a non-instrument certified helicopter encountered instrument flight

conditions (no well-defined horizon) over a large body of water with no useable

visual references in sight.”364 Tucker states that “Knight’s low-level maneuvering

over calm water without a well-defined horizon and no visible landmarks” is

contrary to best practices under the circumstances.365 Plaintiffs argue Tucker’s

opinion is unreliable because it “permits the mere existence of an adverse weather

condition to serve as the lynchpin to causation.”366 Avco responds that “Tucker’s

report explains in detail the evidence supporting his opinions,” and offers facts stated

in the report that it says “taken together, allowed Tucker to reasonably conclude that

Knight lacked the visual reference points needed to maintain proper aircraft

orientation” under the circumstances.367 Plaintiffs reply that Avco merely “string[s]

together unrelated opinions Mr. Tucker’s report expresses and present[s] them to fill

the analytical gap Plaintiffs argue exists.”368 While the eight topics listed in Avco’s

response “are addressed in Mr. Tucker’s report, other than the weather conditions

364 Tucker Report at 11 ¶ 6.

365 Id. at 11-12 ¶ 6.

366 Doc. 71, at 15.

367 Doc. 99, at 17-19.

368 Doc. 109, at 11.

. . . they are not presented in the report as the basis for the opinion that Mr. Knight

flew the Helicopter into the water because he could not see the water.”369

When asked to respond to Plaintiffs’ argument that his opinion was “based

solely on the existence of . . . conditions which might lead to a visual illusion,”

during direct examination at the Daubert hearing, Tucker disputed only that “a visual

illusion happened here.”370 He did not meaningfully respond to the charge that his

opinion was based on the mere existence of adverse weather conditions. On cross

examination, Tucker testified that “it was absolutely impossible” for Knight to fly

the Helicopter in those conditions; “eventually, with all of the maneuvering that he

was doing, he was either going to find a boat or fly into the water.”371 He further

testified that his opinion was based on his experience flying in similar conditions, as

well as an exemplar flight he conducted, during which he “had difficulty maintaining

altitude at that low level and at a high speed.”372

The Court notes that Tucker’s spatial disorientation opinion does not suffer

from the same defect as Gregory Feith’s similar opinion. Whereas Feith’s opinion

turned on whether Knight flew through obscuring weather such as a cloud or fog,

Tucker emphasizes that his opinion does not.373 The Court also notes that, of the

369 Id. at 11-12.

370 Hr’g Tr. 201:20-202:4.

371 Id. 220:21-25.

372 Id. 223:19-224:15.

373 Id. 219:8-17.

evidence in Tucker’s report that Avco says supports his opinion, only the weather

conditions and Tucker’s exemplar or reconstruction flight are offered as a basis for

Tucker’s conclusion on this specific point.374

The question then is whether Tucker’s experience in similar weather

conditions and the difficulties he experienced in recreating Knight’s flight in more

suitable weather is a sufficient basis for Tucker’s opinion. Though the question is a

close one, the Court finds, with one caveat, that Tucker’s opinion satisfies Rule

702.375 The Court takes issue with the degree of certainty to which Tucker expresses

his opinion. In his report, Tucker concludes that, under the circumstances,

“maintaining proper aircraft orientation was impossible.”376 When pressed on this

point during the hearing, Tucker emphasized that he believed that the crash was

inevitable—Knight “was either going to find a boat or fly into the water.”377

The Court is reminded of the Infinite Monkey Theorem—an infinite number

of monkeys typing for an infinite period will eventually produce the works of

374 Cf. Doc. 99, at 17-19 (listing evidence). Though the reconstruction flight was not mentioned

as a basis for Tucker’s spatial disorientation flight in his report, he testified that his opinion

was based on the reconstruction flight, plus his experience in similar weather conditions. Supra

n.370.

375 See Specter v. Texas Turbine Conversions, Inc., No. 3:17-CV-00194-TMB, 2020 WL

7234369, at *3-4 (D. Alaska Dec. 8, 2020) (rejecting challenge to testimony of three experts

regarding special disorientation where opinions were supported by experience and review of

accident data); Langenbau v. Med-trans Corp., 167 F. Supp. 3d 983, 1001 (N.D. Iowa 2016)

(“practical experience with the weather conditions that may cause ‘spatial disorientation’ to a

pilot” as well as personal experience with the phenomenon and expert’s examination of flight

data sufficient to render opinion admissible).

376 Tucker Report at 12 ¶ 6.

377 Hr’g Tr. 220:21-25.

Shakespeare. Even the most experienced and talented helicopter pilot will crash

eventually. Conversely, even Knight was able to fly the Helicopter for a period.

Further, the longer a flight continues, the more likely it becomes that it may end

abruptly for a different reason entirely such as, for instance, a stuck exhaust valve.378

The question then is whether Tucker’s overconfidence warrants precluding

his testimony in its entirety. While it is well-established that an expert need not be

certain of their conclusion to offer testimony, there is limited caselaw regarding how

to approach cases where an expert is too certain of their conclusion. The caselaw

that does exist suggests that the proper remedy is to simply limit Tucker’s testimony

rather than preclude it altogether.379 Accordingly, the Court will permit Tucker to

offer testimony consistent with his opinion, provided he does not testify on direct

examination to any specific degree of certainty.380

378 The Court notes that Tucker separately concludes that a loss of engine power did not cause the

accident. Tucker Report at 12. Plaintiffs have not challenged this opinion.

379 See Kogut v. Cnty. of Nassau, 894 F. Supp. 2d 230, 244 (E.D.N.Y. 2012), aff'd in part sub

nom. Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017) (experts permitted to testify except

as to their views that their opinions “are matters of ‘scientific certainty’”); U.S. v. Glynn, 578

F. Supp. 2d 567, 574-75 (S.D.N.Y. 2008) (because “ballistics identification” of bullets and

firearms is not scientific, expert testimony limited to testifying that firearms match was “more

likely than not”); accord U.S. v. Johnson, No. (S5) 16 CR. 281 (PGG, 2019 WL 1130258, at

*21 (S.D.N.Y. Mar. 11, 2019), aff'd, 861 F. App’x. 483 (2d Cir. 2021) (collecting cases).

380 See U.S. v. White, No. 17 CR. 611 (RWS), 2018 WL 4565140, at *3 (S.D.N.Y. Sept. 24, 2018)

(permitting expert testimony with the limitation that expert not testify to degree of certainty).

As in White, Tucker may state his personal belief on the issue if pressed on cross-examination.

3. Pilot Inattention

As with Feith, Plaintiffs seek to exclude Tucker’s “opinion that the pilot was

distracted because he actively searched for a particular fishing boat.”381 In seeking

to preclude Tucker’s testimony on the issue, Plaintiffs overstate the extent that

Tucker opines that Knight was “distracted” by “looking out” for the boat. During the

hearing, Plaintiffs’ counsel appeared to be satisfied that Tucker’s clarification that

his “opinion is that the flight profile increased workload”—not that Knight “stopped

paying attention to his piloting duties”—remedied any perceived issues regarding

admissibility.382 Plaintiffs have also not meaningfully revisited the issue in their

supplemental brief. Therefore, the Court will deny Plaintiffs’ Motion on this issue

as moot.

C. Rebuttal

The Court briefly addresses Avco’s argument that Feith’s and Tucker’s

human factors opinions are admissible because Plaintiffs’ experts made Knight’s

character and state of mind central to their case. This argument is unavailing for two

reasons.

Sommer that “Knight complied with the FAA’s ‘standard of care,’ demonstrated

‘good judgment,’ and in no way caused or contributed to the accident.”383 The

“human factors” analysis conducted by the Sommers does not include discussion of

internal or external pressures or hazardous attitudes is absent from Donald Sommer’s

report and Colin Sommer’s affidavit. Both discuss only Knight’s “awareness for the

airspace designations” and the weather conditions, ruling out pilot error.384 Donald

Sommer’s opinion that Knight demonstrated good judgment is offered to rebut the

opinion of Scott Shappell, who is no longer being offered as an expert.385

Second, where the Court precluded testimony by Feith and Tucker, it did so

under Rule 702, not Rule 404.386 Even if Plaintiffs’ experts did make Knight’s

character and state of mind central to the case, any expert opinion evidence that Avco

seeks to admit under Rule 404(b) must still meet the requirements of Rule 702.387

VI. SUMMARY JUDGMENT

Having resolved the pending Daubert Motions, the Court turns to Avco’s

Motion for Summary Judgment.

383 Doc. 125, at 34 (citing D. Sommer Report, Doc. 89-1 at 9-10; D. Sommer Rebuttal Report,

Doc. 89-2, at 7; C. Sommer Decl., Doc. 85, at 6-8).

384 D. Sommer Report at 9-10; C. Sommer Decl. at 6-8.

385 D. Sommer Rebuttal Report at 7.

386 Cf. Kula v. U.S., No. 4:17-CV-02122, 2021 WL 1600140, at *4 (M.D. Pa. Apr. 23, 2021)

(noting that character evidence “that would otherwise be inadmissible under Rule 404 may be

admitted to rebut the opposing party’s position on a particular issue”).

387 The Court notes that Avco has not raised a Daubert challenge to any of Plaintiffs’ experts’

human factors analyses. Therefore, whether those analyses meet the Rule 702 standard is not

an issue before the Court.

A. Standard of Review

Under Federal Rule of Civil Procedure 56(a), summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to a judgment as a matter of law.” As

expressed by the Supreme Court of the United States in Celotex Corp. v. Catrett,

summary judgment is required where a party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case” on an issue that

the “party will bear the burden of proof at trial.”388 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

exists from which a rational person could conclude that the position of the person

with the burden of proof on the disputed issue is correct.”389

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.390 When the movant properly supports its

motion, the nonmoving party must then show the need for a trial by setting forth

“genuine factual issues that properly can be resolved by only a finder of fact because

they may reasonably be resolved in favor of either party.”391 The United States Court

of Appeals for the Third Circuit explains that the nonmoving party will not withstand

388 477 U.S. 317, 322 (1986).

389 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

390 Celotex, 477 U.S. at 323.

391 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

summary judgment if all it has are “assertions, conclusory allegations, or mere

suspicions.”392 Instead, it must “identify those facts of record which would contradict

the facts identified by the movant.”393

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”394 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”395 Moreover, “[i]f a party fails to properly support an assertion

of fact or fails to properly address another party’s assertion of fact as required by

Rule 56(c),” the Court may “consider the fact undisputed for purposes of the

motion.”396 Finally, although “the court need consider only the cited materials, . . .

it may consider other materials in the record.”397

B. Product Liability

Under Pennsylvania law, a plaintiff bringing a claim of strict product liability

“must establ

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