Romero

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

ROBERT ROMERO CIVIL ACTION NO. 23-0442

VERSUS JUDGE S. MAURICE HICKS, JR.

WESTWIND HELICOPTERS MAGISTRATE JUDGE WHITEHURST

INC., ET AL.

consolidated with

JEREMY HOLLIER CIVIL ACTION NO. 23-0484

VERSUS JUDGE S. MAURICE HICKS, JR.

WESTWIND HELICOPTERS MAGISTRATE JUDGE WHITEHURST

INC., ET AL.

MEMORANDUM RULING

Before the Court are two Daubert Motions: (1) Defendant Westwind Helicopters,

Inc.’s (“Westwind”) Daubert Motion to Exclude Certain Opinions of Plaintiff’s Expert, David

Downey (Record Document 64); and (2) Westwind’s Daubert Motion to Exclude Certain

Opinions of Plaintiffs’ Expert, Ankur Lodha (Record Document 63). The motions are fully

briefed. See Record Documents 63, 64, 68, 71, 72, 74, 75. For the reasons set forth

below, the Daubert Motions are GRANTED IN PART and DENIED IN PART.

BACKGROUND

A full recitation of the facts in this case are set forth in this Court’s prior

Memorandum Ruling on Defendants’ Motion for Summary Judgment. See Record

Document 76. In brief, this litigation arises out of the crash of a Bell 407 helicopter

operated by Westwind on October 26, 2022, during a return flight from an offshore

platform in the Gulf of Mexico to Abbeville, Louisiana. See Record Document 76 at 1–2.

The helicopter, piloted by James Bullock (“Bullock”), crashed into the Gulf after Bullock

became unconscious during the flight. See id. at 2. Plaintiffs Robert Romero (“Romero”)

and Jeremy Hollier (“Hollier”) were passengers on the flight and survived the crash. See

id. They allege that Westwind’s negligence contributed to their injuries. To support their

claims, Plaintiffs retained two experts: David Downey (“Downey”), an aviation operations

and safety specialist, and Dr. Ankur Lodha (“Dr. Lodha”), a board-certified interventional

cardiologist. See Record Documents 71-2 at 1, 64-2 at 2.

Downey was retained to evaluate Westwind’s compliance with regulatory rules and

best practices in the industry. See Record Document 64-2 at 2. His initial report and

rebuttal address (1) the malfunction and maintenance of the aircraft’s Emergency Locator

Transmitter (“ELT”); (2) the adequacy of Westwind’s Emergency Response Plan (“ERP”);

(3) Westwind’s Safety Management System (“SMS”) and General Operations Manual

(“GOM”); and (4) the sufficiency of passenger safety briefings. See Record Documents

64-2 & 67-9. Downey concludes that Westwind failed to maintain an adequate safety

culture, that the ELT paperwork and inspection records were deficient, and that

Westwind’s delay in notifying the Coast Guard unreasonably prolonged Plaintiffs’ rescue.

See Record Documents 64-2 & 67-9.

Dr. Lodha was retained to opine on the medical cause of Bullock’s incapacitation.

See Record Document 71-1. In his initial report, he concluded that Bullock “more likely

than not” suffered a cardiac arrhythmia. See id. at 3. He also opined that Bullock did not

suffer a heart attack, stroke, or pulmonary embolism. See id. Dr. Lodha revised his

opinions in a rebuttal report agreeing with Dr. Marc Sintek, Westwind’s medical expert,

that the precise cause of Bullock’s loss of consciousness “cannot be determined.” See

Record Document 71-2. He nevertheless maintained that, after an initial blackout

episode, Bullock was “neurologically intact” and “had sufficient time after his prodrome

where he could have landed the helicopter safely.” See id.

Defendants now move to exclude both experts under Federal Rules of Evidence

702 and 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc.. See 509 U.S. 579 (1993).

As to Downey, Defendants argue that his opinions lack reliable methodology, have no

proper factual or scientific basis, and extend beyond his qualifications. See Record

Document 64-1 at 2. Defendants particularly object to his conclusions regarding the ELT

malfunction, injury causation, rescue delay, passenger briefings, and Westwind’s SMS

system and GOM. See id. at 3–9. As to Dr. Lodha, Defendants argue that his medical

opinions are internally inconsistent, speculative, and outside his cardiology expertise,

especially his assertion that the pilot could have landed the helicopter safely. See Record

Document 63-1 at 3–10. Plaintiffs oppose both motions, asserting that each expert is

qualified, that their methodologies are reliable, and that any alleged weaknesses go to

the weight of the testimony rather than admissibility. See Record Documents 68, 71.

LAW & ANALYSIS

I. Relevant Standards of Law

The admissibility of expert testimony is governed by Federal Rules of Evidence

702 and 703 and the standards articulated in Daubert. See 509 U.S. 579. Rule 702

provides:

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

training, or education may testify in the form of an opinion or otherwise if the

proponent demonstrates to the court that it is more likely than not that:

(a) the expert's scientific, technical, or other specialized knowledge will help

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

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

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and

methods to the facts of the case.

Fed. R. Evid. 702. According to the Daubert Court, Rule 702 “assign[s] to the trial judge

the task of ensuring that an expert's testimony both rests on a reliable foundation and is

relevant to the task at hand. Pertinent evidence based on scientifically valid principles will

satisfy those demands.” 509 U.S. at 597; see Fed. R. Evid. 702.

Rule 703 provides that “[a]n expert may base an opinion on facts or data … that

the expert has been made aware of or personally observed.” Fed. R. Evid. 703.

Additionally, Rule 702 states that those facts or data “need not be admissible for the

opinion of the expert to be admissible.” Id. However, when the underlying facts or data

are inadmissible, they may be disclosed to the jury “only if their probative value in helping

the jury evaluate the opinion substantially outweighs their prejudicial effect.” Id.

Daubert provided an illustrative list of factors for courts to use when evaluating an

expert’s reliability. See Jackson v. N. Caddo Hosp. Serv. Dist., 2024 WL 697587, at *2

(W.D.La., 2024) (citing Daubert, 509 U.S. at 592–94). The factors include “whether [the

expert’s opinion] has been subjected to peer review and publication, its known or potential

error rate and the existence and maintenance of standards controlling its operation, and

whether it has attracted widespread acceptance within a relevant scientific community.”

Daubert, 509 U.S. at 580. The Daubert Court added, that “[t]he inquiry is a flexible one

….” Id. “In short, expert testimony is admissible only if it is both relevant and reliable.”

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002).

The Fifth Circuit has emphasized that expert testimony must be grounded in “the

methods and procedures of science” rather than “subjective belief or unsupported

speculation.” Moore v. Ashland Chem., Inc., 151 F.3d 269, 275 (5th Cir. 1998). The

proponent of the expert testimony bears the burden of proving its admissibility by a

preponderance of the evidence. See id. at 276. However, the proponent need not prove

that the expert’s opinion is correct, but only that it is reliable. See id.

Ultimately, the Court must determine whether the expert is qualified, whether the

methodology is reliable, and whether the testimony will assist the trier of fact. If these

conditions are not met, exclusion is warranted, but “[t]he rejection of expert testimony is

the exception rather than the rule.” Fed. R. Evid. 702, advisory committee's note (2000).

II. Analysis of Downey’s Expert Testimony

Defendants seek to exclude portions of Downey’s opinions. See Record Document

64. Downey is an aviation professional who has served as a pilot, flight instructor, and

safety manager. See Record Document 64-2 at 2. Downey’s expert report addresses

several categories of Westwind’s conduct, and Westwind has objected to multiple of

Downey’s opinions. However, in light of this Court’s prior Memorandum Ruling (Record

Document XX), many of the issues raised in Westwind’s Daubert Motion (Record

Document 64) are mooted. The Court will address each of Westwind’s challenges to

Downey’s opinions below.

A. Non-Activation of the ELT

Defendants contend that Downey’s opinions concerning the alleged malfunction of

the ELT should be excluded. See Record Document 64-1 at 3. The Court’s summary

judgment ruling resolved Plaintiffs’ claim of negligent ELT maintenance in Westwind’s

favor, finding no competent evidence that the ELT malfunctioned due to improper

maintenance or documentation. See Record Document 76. Because those findings

render this category of testimony immaterial to any remaining issue, Westwind’s Daubert

motion as to Downey’s ELT opinions is DENIED AS MOOT.

B. Causation of Plaintiffs’ Injuries

Defendants next move to exclude Downey’s statements attributing Plaintiffs’

injuries to the impact sequence or to alleged delays in rescue, arguing that he lacks

medical qualifications and that such opinions are not helpful to the jury. See id. at 4.

To the extent Downey opines that Plaintiffs “were injured due to high impact forces”

or that delays in rescue caused injuries to worsen, such opinions fall outside his expertise

and lack a medical foundation, as it is indisputable that Downey was not presented as a

medical expert. See Record Document 64-2 at 11. The Court therefore finds those

opinions inadmissible under Rule 702. See Fed. R. Evid. 702. However, Downey may

offer general testimony, within the scope of his aviation expertise, describing the crash

dynamics or how the impact forces would typically be experienced by passengers. Any

testimony explaining how the rescue delay contributed to Plaintiff’s injuries is DENIED AS

MOOT considering the Court’s prior Memorandum Ruling. See Record Document 76.

Therefore, the Daubert Motion on Downey’s opinions regarding the cause of Plaintiff’s

injuries is GRANTED IN PART and DENIED IN PART.

C. Timeliness of Rescue and Westwind’s Emergency Response Plan

Defendants also challenge Downey’s opinions that Westwind’s post-crash

emergency response was untimely and inconsistent with its own ERP. See Record

Document 64-1 at 4–6. Downey opined that Westwind’s delay in notifying the Coast

Guard and dispatching its company helicopter for search and rescue efforts fell below

industry standards and contributed to Plaintiffs’ injuries. See Record Document 64-2.

The Court has already granted summary judgment in favor of Defendants on

Plaintiffs’ claim of negligent notification and rescue. See Record Document 76. The Court

concluded that Plaintiffs presented no evidence linking any injury to Westwind’s alleged

delay or failure to comply with its ERP. See id. Because the underlying theory of liability

has been dismissed, Downey’s opinions concerning the timeliness or adequacy of

Westwind’s emergency response are no longer relevant to any remaining issue in this

case. Accordingly, Westwind’s Daubert motion to exclude Downey’s opinions concerning

Westwind’s rescue efforts is DENIED AS MOOT.

D. Passenger Briefing

Downey also critiques Westwind’s passenger briefing procedures. See Record

Document 64-2. The Court’s prior Memorandum Ruling (Record Document 76) held that

Plaintiffs’ negligent briefing claim is preempted and lacks evidentiary support.

Accordingly, the Daubert motion on this category of opinion is DENIED AS MOOT.

E. Westwind’s SMS and GOM

Defendants also challenge Downey’s critiques about Westwind’s safety

management system (“SMS”) and general operating manual (“GOM”). See Record

Document 64-1 at 7. Defendants argue that these opinions are irrelevant because

Plaintiffs have not shown that any alleged defect in the manuals or failure to follow the

manuals caused the crash or injuries. To the extent Downey’s SMS and GOM criticisms

pertain solely to Westwind’s corporate safety culture or regulatory paperwork, they are

irrelevant and inadmissible under Federal Rules of Evidence 401, 402, and 702.

Additionally, there is no evidence tying the SMS or GOM deficiencies to the crash or

Plaintiffs’ injuries. Therefore, the Daubert motion is GRANTED with respect to opinions

surrounding the SMS and GOM.

F. Westwind’s Allowing Bullock to Fly

Finally, Westwind contends that Downey’s opinion that Westwind “allowed a pilot

to operate a rotorcraft that resulted in the major injuries to the passengers” should be

excluded because it is an attempt to assess fault against Westwind. See Record

Document 64-1 at 9. The Court disagrees with Westwind. This statement merely contends

that Bullock, a Westwind employee, was piloting the helicopter that crashed and injured

Plaintiffs. This allegation is undisputed. Therefore, the Daubert Motion on this issue is

DENIED.

G. Conclusion

In sum, Downey is qualified to testify about aviation safety operations and flight

procedures as relevant to the remaining issues. His opinions concerning the ELT,

passenger briefings, and safety manual deficiencies are moot following summary

judgment. His medical causation statements are excluded.

III. Analysis of Dr. Lodha’s Expert Testimony

Defendants also move to exclude the opinions of Plaintiffs’ medical expert, Dr.

Lodha, an interventional cardiologist who reviewed Bullock’s medical history and autopsy

findings. See Record Document 71-1. Plaintiffs retained Dr. Lodha to opine on the cause

of Bullock’s in-flight incapacitation and to address whether the pilot could have acted

following his first episode of unconsciousness.

Dr. Lodha issued two reports. See Record Documents 71-1 & 71-2. In his initial

report, he concluded that it was “more likely than not” that Bullock suffered an arrhythmia

that caused him to lose consciousness, while ruling out a heart attack, stroke, or

pulmonary embolism as possible causes. See Record Document 71-1 at 3. In a later

rebuttal report, Dr. Lodha agreed with Defendants’ medical expert, Dr. Sinetek, that “the

cause of the syncope at this time cannot be determined.” See id. Nonetheless, he opined

that after the initial blackout episode, Bullock “had sufficient time after his prodrome where

he could have landed the helicopter safely.” See id. Westwind’s various challenges to Dr.

Lodha’s opinions will be addressed below.

A. Opinion that an Arrhythmia Caused the Blackouts

Westwind challenges Dr. Lodha’s opinion that it was “more likely than not” that

Bullock suffered from an arrhythmia, causing him to lose consciousness during the flight.

Record Document 63-1 at 9 (quoting Record Document 71-1 at 3). Dr. Lodha also opines

that “it will be difficult to point to the exact cause of loss of consciousness ….” Record

Document 71-1 at 3. Defendants challenge these opinions as speculative and

inconsistent. See Record Document 63-1.

Dr. Lodha’s conclusion that Bullock likely suffered from an arrhythmia is excluded

under Federal Rule of Evidence 702. In Curtis v. M&S Petroleum, Inc., the Fifth Circuit

stated that expert opinions “must be grounded in the methods and procedures of science

and must be more than unsupported speculation or subjective belief.” 174 F.3d 661, 668

(5th Cir. 1999) (citing Daubert, 509 U.S. at 590). Although Dr. Lodha appears to infer an

arrhythmia based on his ability to rule out other causes such as a heart attack, stroke, or

pulmonary embolism, his report offers no testing, analysis, or medical reasoning

demonstrating how he reached that conclusion. See Record Document 71-1. The report

is brief, spanning only three pages, and contains no explanation of the scientific principles

or differential diagnosis process supporting his opinion. See id. Without that reasoning,

the Court is left to speculate as to how Dr. Lodha concluded that an arrhythmia occurred.

Therefore, Westwind’s Daubert motion (Record Document 63) is GRANTED on this

issue.

However, Dr. Lodha’s discussion of the autopsy findings and his conclusion that

the results rule out a heart attack, stroke, or pulmonary embolism is supported by the

record and within his medical expertise. See id. That portion of his testimony is therefore

admissible.

B. Opinion that Bullock Could Have Acted after his First Blackout Episode

In his rebuttal report, Dr. Lodha opines that after his initial blackout episode,

Bullock “could have landed the helicopter safely.” See Record Document 71-2 at 2. To

the extent Dr. Lodha suggests that Bullock was capable of flying or landing the helicopter,

that opinion is inadmissible. See id. Dr. Lodha is a cardiologist, not an aviation expert,

and he is not qualified to give opinions about flying an aircraft or operating flight controls.

However, in his rebuttal report, Dr. Lodha explains that regardless of the cause of

the prodrome, patients who experience a brief blackout or syncopal episode often return

to normal neurological and cognitive function for a short period before another episode

occurs. See id. That portion of his testimony is within his medical expertise and is

admissible to help explain the general medical understanding of what humans, including

Bullock, experience between such blackouts.

For those reasons, Dr. Lodha may testify generally about how people normally

function between episodes of syncope, but he may not give any opinions about Bullock’s

specific ability to operate or land the helicopter. Therefore, Westwind’s Daubert motion

(Record Document 63) is GRANTED IN PART and DENIED IN PART on this issue.

C. Speculative Opinions

In Dr. Lodha’s initial report, he states that Losartan could have caused an

arrhythmia due to electrolyte abnormalities and that additional medical testing “would

have provided insights into the pilot’s health.” See Record Document 71-1 at 3. These

opinions are inadmissible. Dr. Lodha does not cite any medical evidence showing that

Bullock actually had an electrolyte imbalance or that Losartan played any role in his loss

of consciousness. He also fails to explain what “insights” the additional testing would have

provided or how those results would connect to the cause of the blackout. Additionally,

any opinion about Bullock’s compliance with medical testing or FAA certification is moot

because the Court has already granted summary judgment on all claims involving

Bullock’s pre-flight medical fitness. See Record Document 76. Accordingly, Dr. Lodha’s

statements about Losartan and hypothetical medical testing are inadmissible.

D. Conclusion

In summary, Dr. Lodha’s opinion that Bullock likely suffered an arrhythmia and his

statements regarding Losartan and additional medical testing are excluded as speculative

and lacking reliable methodology. His opinion that Bullock could have landed the

helicopter or otherwise operated it after the first blackout is also excluded, as it falls

outside the scope of his expertise. However, Dr. Lodha’s discussion of the autopsy

findings and his opinion that Bullock likely regained normal cognition between syncopal

episodes are admissible.

CONCLUSION

For the reasons stated above,

IT IS ORDERED that Westwind’s Daubert Motion to Exclude Certain Opinions of

David Downey (Record Document 64) is GRANTED IN PART and DENIED IN PART as

follows:

1. Downey’s opinions concerning the ELT, ERP, and passenger briefings are

DENIED AS MOOT in light of the Court’s prior Memorandum Ruling (Record

Document 76);

2. Downey’s opinions on the causation of Plaintiffs’ injuries and on Westwind’s SMS

and GOM are EXCLUDED under Federal Rule of Evidence 702;

3. Downey may testify, within his aviation expertise, about flight operations, crash

dynamics, and safety procedures relevant to the surviving claims; and

4. Downey’s statement that Bullock was the pilot operating the aircraft at the time of

the crash is a permissible factual observation, not a legal conclusion.

IT IS FURTHER ORDERED that Westwind’s Daubert Motion to Exclude Certain

Opinions of Dr. Ankur Lodha (Record Document 63) is GRANTED IN PART and DENIED

IN PART as follows:

1. Dr. Lodha’s opinion that an arrhythmia caused Bullock’s loss of consciousness is

EXCLUDED under Rule 702 for lack of reliable methodology;

2. His discussion of the autopsy findings and his conclusion ruling out a heart attack,

stroke, or pulmonary embolism are ADMISSIBLE;

3. His opinion that Bullock could have landed the helicopter or otherwise operated

the aircraft after the first blackout is EXCLUDED, but he may testify about

neurological function between syncopal episodes; and

4. His statements that Losartan could have caused an arrhythmia and that further

testing would have provided insight into Bullock’s health are EXCLUDED as

speculative, and any opinions related to Bullock’s pre-flight medical certification

are MOOT.

An Order accompanying this Ruling shall issue herewith.

THUS DONE AND SIGNED in Shreveport, Louisiana, this 2nd day of December,

2025.

S. MAURICE HICKS, JR.

UNITED STATES DISTRICT JUDGE

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