Petition for Writ of Certiorari — Michaels v. Avitech, Inc.

a Supremé Court, U.&.

FILED

No. 20 67 JUL 12 2000

OFFICE OF THE CLEKA

In The

Supreme Court of the United States

¢

NORMAN MICHAELS, Executor of the Estates

of Martin Popowitz and Harriet Loria Popowitz,

Petitioner,

AVITECH, INC., also known as HARGER AVIATION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

- ARTHUR ALAN WOLKk*

Wo Lk & GENTER

1710-12 Locust Street

Philadelphia, PA 19103

(215) 545-4220

Attorney for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

O5PP

QUESTIONS PRESENTED FOR REVIEW

1. May a court of appeals make independent admis-

sibility determinations under Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. 579 (1993), where Daubert

challenges were neither raised nor decided in the court

below?

2. Does Daubert analysis apply in the same measure

on summary judgment as at trial, and what procedural

protections are necessary to allow an adequate defense of

expert evidentiary submissions at the summary judgment

stage? : |

3. What kinds of expert challenges trigger enhanced

judicial screening of expert evidence under Daubert and

its progeny?

ii

PARTIES TO THE PROCEEDING BELOW

The following persons and entities were parties

before the United States Court of Appeals for the Fifth

Circuit: Norman Michaels and Avitech, Inc. a/k/a Harger

Aviation.

Norman Michaels is an individual, a citizen and resi-

dent of New York at the time suit was filed, and is the

executor of the estates of Martin Popowitz and Harriet

Loria Popowitz, who were residents of New Jersey. Avi-

tech is a Texas corporation doing business in suburban

Houston.

een rane

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

PARTIES TO THE PROCEEDING BELOW .......... li

skp ioe Wd AER ed eee wo ee 1

| ET ee Pere ee rere rere rye 1

i i oh adn kad gdh wha eee dace 1

EMRE MINOR GIN EWE GAGE oo occ siccccedacedcncees 1

REASONS FOR GRANTING THE WRIT ........... 7

I. IT IS NOT ONLY “REMISS” FOR A REVIEW-

ING COURT TO MAKE INDEPENDENT

APPELLATE DAUBERT DETERMINATIONS

WHERE THERE HAS BEEN NO DEVELOP-

MENT OF THE ISSUE BELOW, BUT SUPER-

IMPOSING DAUBERT RULINGS ON A COLD

RECORD TRANSFERS THE GATEKEEPING

FUNCTION FROM THE DISTRICT COURT... 9

II. THE COURT’S GUIDANCE IS REQUIRED TO

DELINEATE THE PROCEDURAL PROTEC-

TIONS NECESSARY FOR DAUBERT CHAL-

LENGES IN THE SUMMARY JUDGMENT

ES Se MU aha ky ben ew we knee 12

III. HAVING EXPANDED THE “FLEXIBLE”

REACH OF DAUBERT, THE COURT

SHOULD ELABORATE ON THE KINDS OF

CIRCUMSTANCES THAT TRIGGER JUDI-

CIAL SCREENING PURSUANT TO FED. R.

PRG ca ckak se Chak 6 ke CoC Nin KRS Bees 15

66 EE heh Se hed Adeee ees wae eke ews 19

iv

TABLE OF CONTENTS - Continued

Page

APPENDIX

Opinion of the United States Court of Appeals for

the Fifth Circuit filed January 28, 2000 (Revised

NUE OT, BU ho dcdcc wea ce vies keene eee App. 1

Opinion on Judgment of the United States District

Court for the Southern District of Texas entered

September 3, THM... <n cs cuunc<cawssnasacscies App. 21

Order of the United States Court of Appeals for

the Fifth Circuit on Petition for Rehearing

Chated Apeil 15, ZOO oo. esc ccstasevkaees App. 37

a ern rere rer rT rere rer Ty Te App. 39

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..... 8

Associated Press v. United States, 326 U.S. 1 (1945)..... 8

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 14

Claar v. Burlington Northern R.R. Co., 29 F.3d 499 .

‘eo 2S Ae, RT EPP E Ter err, ore er a 15

Clark v. Takata Corp., 192 F.23d 750 (7th Cir. 1999) .... 18

Cortes-Irizarry v. Corporacion Insular de Seguros, 111

Pie: SOR COE Ge BO ckkacawccskscesns 7, 10, 13, 14

Daubert v. Merrell Dow Pharmaceuticals, Inc., 727

F. Supp. 570 (S.D. Cal. 1989), aff'd, 951 F.2d 1128

(9th Cir. 1991), rev'd, 509 U.S. 579 (1993).......... 13

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

tg Bt Serr re Tyres err rrr re passim

General Electric Co. v. Joiner, 522 U.S. 136 (1997)

wii aces iw Seen & ek Ae Ee a ee Rh, de Ey OF

Greenwell v. Boatright, 184 F.3d 492 (6th Cir. 1999) ....17'

In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717

(3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995)

pchiseeSbpgswad 06 4as enn cab been ea esas ee meee 10, 11, 16

In re TMI Litigation, 199 F.3d 158 (3d Cir. 2000),

amending 193 F.3d 613 (3d Cir. 1999).............. 14

Jaurequi v. Carter Manufacturing Co., 173 F.3d 1076

CU GO RI a onc nn kg 55 co nein ete eeasewaeeans 18

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1998)

PS PE IS ee er ee hoe HR Ee eter im, 3k, ia. 2a a7

Michaels v. Avitech, Inc., 202 F.3d 746 (5th Cir. 2000) ..... 1

vi

TABLE OF AUTHORITIES - Continued

Page

Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir.

eg) SS ree Pe pte my eee Sls 14

Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co.,

861 FF. Se 77 CROt CE Foi oboe se ccducaesceseeees 19

United States v. Charley, 189 F.3d 1251 (10th Cir.

1999), cert. denied, 120 S. Ct. 842 (2000) ........... 10

United States v. Nichols, 169 F.3d 1255 (10th Cir.),

cert. dented, 120 3. CR. Gee Choe disdebaaeuteuee 17

Viterboro v. Dow Chemical Co., 826 F.2d 420 (5th Cir.

1967). oc vc cndnddnvecvaeeessesiss eee 11

Weisgram v. Marley Co., 120 S. Ct. 1011 (2000)....... 15

STATUTES

28 USC. § 120@D) occ cckceiakeie eee 1

28 U.S.C. © 1OB6. oo ccc dieedencsuneas sae 2

Rutes oF Court

Fed. R. vik. FOGG) oc kc vencdecneaee lL, Be. Be 37

Fed. R. Bwitl. Fs ..0s<cscnwatsaeenneeeee 1, 8, 12

S. Ct. BR. 2GHaD oo. oskvcsn dees aneeeeseeeeeeeee 12

OTHER AUTHORITIES

Bercer, Procedural Paradigms For Applying The

Daubert Test, 78 Minn. L. Rev. 1345 (1994)...... 14, 16

Capra, The Daubert Puzzle, 32 Ga. L. Rev. 699

(1DDE) ....n uv cnesoncsvcncus decse hence 33, io

Mancrum, Kumho Tire Company: The Expansion Of

The Court's Role In Screening Every Aspect Of

Every Expert's Testimony At Every Stage Of The

Proceedings, 33 CreIGHTON L. Rev. 525 (2000) ....... 14

OPINIONS BELOW

The opinion of the court of appeals (App. 1-20),

which is reported at 202 F.3d 746 (5th Cir. 2000), appears

in the appendix, as does the opinion on judgment issued

by the district court in favor of the respondent and

against the petitioner (App. 21-36), which has not been

reported. Also appearing in the appendix is the final

order of the United States Court of Appeals for the Fifth

Circuit on petition for rehearing (App. 37-38).

*

JURISDICTION

On April 13, 2000, the United States Court of Appeals

for the Fifth Circuit denied a petition for rehearing of the

judgment entered January 28, 2000. This petition for writ

of certiorari is being filed within ninety days of the denial

of rehearing. The jurisdiction of the Court is therefore

invoked pursuant to 28 U.S.C. § 1254(1).

¢

RULES INVOLVED

Rules 104(a) and 702 of the Federal Rules of Evidence

appear in the appendix (App. 39).

¢

STATEMENT OF THE CASE

This cause arises from a fatal aircraft accident, and

originated in the United States District Court for the

Eastern District of Pennsylvania as two separate lawsuits,

one by Norman Michaels (Michaels) on behalf of the

estates of two of the passengers, the other by the estates

of the pilot and his wife, another passenger. Named as a

defendant in both cases was Avitech, Inc. t/a Harger

Aviation (Avitech), alleged to have been negligent in

installing, cleaning, and reinstalling part of the aircraft

pneumatic system used to power certain flight instru-

ments. Avitech filed motions to dismiss for lack of per-

sonal jurisdiction. Limited jurisdictional discovery was

conducted.

The motions to dismiss were denied, but the claims

against Avitech in both cases were severed and trans-

ferred to the Southern District of Texas pursuant to 28

U.S.C. § 1406. The cases were assigned to different judges

as unrelated cases. A motion to consolidate was granted,

the actions consolidated, and the respective plaintiffs

directed to file a joint amended complaint, which they

did.

An initial pretrial conference did not take place until

nearly eight months later, at which time the district court

advised counsel that the consolidated case had “fallen

through the cracks.” Counsel for Avitech complained to

the court that his client ran a clean shop and did nothing

which had anything to do with the happening of the

accident. Michaels assured the court his expert disagreed.

At the close of the conference, the parties were directed

to consult and consider an abatement until the Pennsyl-

_vania actions were concluded.

The district court then entered a written “order deny-

ing abatement,” which directed the plaintiffs to “desig-

nate their expert with a report that implicates Avitech”

OLLIE Fr

within eighteen days, and gave Avitech a week after that

to “say how long it will be until its expert will be ready.”

In compliance with the order denying abatement,

each set of plaintiffs designated a maintenance expert of

their own and each submitted a report addressing the

negligence of Avitech. Michaels’ expert submitted a

-report that was four pages long and included a two page

list of materials reviewed. The report explained how vac-

uum pumps are used to drive the pneumatic flight instru-

ments and the-effect of contamination found in the

components on system operation. The report “impli-

cate[d] Avitech” by discussing the aircraft maintenance

performed, and concluded that Avitech failed to properly

follow the pump manufacturer’s procedures when

removing, cleaning, and reinstalling the right pump of

vacuum pressure system, which allowed contamination

to lead to premature pump failure.

Avitech subsequently advised the court that it would

be able to make its expert witness disclosure within three

months. Though the district court had instructed Avitech

to “say how long it will be until its expert will be ready,”

Avitech forwarded reports from six experts in assorted

disciplines. At no time prior to submitting its own expert

reports did counsel for Avitech question the sufficiency of

the reports of either expert identified by either set of

plaintiffs.

-However, during a pretrial conference the same day

the plaintiffs received the defense reports, the district

court sua sponte challenged the sufficiency of the plain-

tiffs’ expert reports. The court advised that counsel for

Avitech had expressed an intention to file a summary

judgment motion, and that the court was “inclined to let

him.” The district court set a briefing schedule for the

proposed summary judgment motion, stated it was going

to stay discovery pending disposition of the motion, and

ruled that the depositions the parties had discussed tak-

ing, including fact and expert depositions, would only be

permitted to take place if counsel for Avitech agreed to

the depositions, to which counsel for Avitech did not

agree.

Shortly thereafter, Michaels served additional expert

reports addressing matters in the defense reports such as

the maintenance Avitech performed, the vacuum pump

failure mode, the weather conditions existing at the time

of the accident, and the actions of the pilot. Those reports

included a supplemental report from Michaels’ mainte-

nance expert which discussed other common sources of

contamination, ruled out water ingestion or corrosion as

the contamination source, and ruled out other mainte-

nance by another facility as the source of the debris found

in the system. The supplemental report explained that

continued operation of the pumps forced contaminants

further into the system over time, and that publications

put out by the pump manufacturer stressed to mechanics

the importance of proper cleaning in that “contamina-

tion . . . can overload the pump and cause premature

pump failure.” The supplemental report clarified the fail-

ure scenario; that is, the left pump suffered a catastrophic

failure of its internal parts and the-right pump failed as

the result of added stresses once it took over the work-

load of both pumps. The report noted the pumps would

perform properly under normal loads but would fail

when exposed to higher loads.

sailed

ee

Avitech filed a motion for summary judgment, argu-

ing that (1) there was no evidence of causal negligence by

Avitech and (2) the sole proximate cause of the accident

was the negligence of the pilot or the actions of others.

Avitech also filed a motion to strike all of plaintiffs’

expert reports, suggesting that they were submitted in

“flagrant” violation of the court’s rulings.

The district court granted the motion to strike and

the motion for summary judgment eleven months after

they were filed.

The district court held “[t]he expert witness designa-

tions violate the court’s order on timing and content.

They are struck.” (App. 21). The district court found the

interpretation of its order directing the respective plain-

tiffs to “designate their expert with a report that impli-

cates Avitech” to be “totally unreasonable” because

“{njothing in the order can reasonably be construed as

limiting the disclosure to a single maintenance report.”

(App. 25). The district court concluded that striking all

the expert designations was an appropriate sanction.

(App. 29).

Having stricken all of the expert reports, the district

court turned to the summary judgment motion, granting

the motion because the plaintiffs had no evidence that the

installation of the right vacuum pump caused or contrib-

uted to the plane crash. (App. 33). Looking to the defense

reports, the district court concluded that pilot negligence

was the sole proximate cause of the crash. (App. 35).

Michaels appealed to the United States Court of

Appeals for the Fifth Circuit, urging that the district court

erred in striking his expert designations as a sanction and

that summary judgment should not have been entered

because Michaels had discharged his burden in coming

forward with countervailing evidence on the issues of

Avitech’s negligence and the claimed intervening negli-

gence by the pilot. In its appeal brief, Avitech raised

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), for the first time, arguing the expert evidence was

insufficient as a matter of law.

The Fifth Circuit affirmed, even though it held that

the district court abused its discretion in striking the

initial report and that Michaels’ supplemental and rebut-

tal reports should not have been stricken since they were

timely disclosed. (App. 10). The Fifth Circuit likewise

found there to be a jury question on the issue of pilot

negligence. (App. 13-14).

The Fifth Circuit nevertheless upheld the entry of

summary judgment because “the expert testimony [the

district court] struck may not have survived a Daubert

hearing” and “the plaintiff has failed to provide evidence

sufficient for a reasonable juror to find for the plaintiff by

a preponderance of the evidence.” (App. 10, 14).

In reaching this result, the court of appeals consid-

ered issues neither briefed nor decided in the court

below, articulated new rules for the consideration of

expert evidence on summary judgment, and went beyond

determining whether issues of material fact existed on

the record before it. Indeed, the Fifth Circuit proceeded to

conduct its own Daubert analysis, although acknowledg-

ing “it is perhaps remiss to attempt a Daubert inquiry at

the appellate level when the district court did not per-

form one. See Cortes-Irizarry v. Corporacion Insular de

Seguros, 111 F.3d 184, 189 (1st Cir. 1994).” (App. 16).

By engaging in its own independent Daubert analysis,

rather than remanding to the district court for further

proceedings, the Fifth Circuit foreclosed any chance for

Michaels to address the claimed deficiencies in the

record, an opportunity he would have had if the Daubert

issues had been raised in the trial court. The factual

foundation of the expert evidence was not before the

district court, which granted summary judgment in an

absence of any contrary evidence once it struck all of the

plaintiffs’ expert reports as untimely.

Michaels filed a petition for rehearing and a sugges-

tion for rehearing en banc, asking the court of appeals to

revisit its decision because there was no independent

development of the Daubert issue in the court below and

the decision was contrary to Fifth Circuit precedent and

comparable decisions in other federal circuits.

Several weeks later, the Fifth Circuit issued a revised

opinion (App. 1-20) tailored to address arguments made

in the petition for rehearing. Rehearing was denied one

month later.

REASONS FOR GRANTING THE WRIT

This case presents an important question in the

administration of summary judgment motions and the

interplay between summary judgment analysis and the

Daubert admissibility analysis.

Summary judgments should be “invoked to the end

that parties may always be afforded a trial where there is

a bona fide dispute of facts between them.” Associated

Press v. United States, 326 U.S. 1, 6 (1945). The court

specifically cautioned in Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986), that the trial court’s function on

summary judgment is not “to weigh the evidence and

determine the truth of the matter but to determine

whether there is a genuine issue for trial.” The same is

true for a reviewing court.

The decision by the United States Court of Appeals

for the Fifth Circuit below conflicts with the approach of

the First Circuit regarding the appropriateness of inde-

pendent appellate determinations under Daubert in the

summary judgment context and is contrary to the Court’s

teachings about the preliminary assessment by the trial

court mandated whenever a Fed. R. Evid. 702 challenge is

made to expert evidence.

Sua sponte appellate determinations under Daubert

have due process implications. This-.case presents an

opportunity for the Court to address the use of Daubert

procedures in the summary judgment context, and to

exercise its supervisory power and provide guidance on a

number of compelling, related issues bearing on the

administration of Daubert challenges.

I. IT IS NOT ONLY “REMISS” FOR A REVIEWING

COURT TO MAKE INDEPENDENT APPELLATE

DAUBERT DETERMINATIONS WHERE THERE

HAS BEEN NO DEVELOPMENT OF THE ISSUE

BELOW, BUT SUPERIMPOSING DAUBERT RUL-

INGS ON A COLD RECORD TRANSFERS THE

GATEKEEPING FUNCTION FROM THE DISTRICT

COURT.

In its revised opinion, the Fifth Circuit stated that it

was “in no way suggesting that the Daubert gatekeeping

function may be transferred from the district court to the

court of appeals.” (App. 16). That is precisely the effect of

its decision, however.

The admissibility of Michaels’ experts’ opinions

under Daubert was not a basis for the decision of the

district court. (App. 21-36). Even so, the Fifth Circuit

went ahead and engaged in a Daubert determination of its

own, dramatically changing Daubert practice and pro-

cedure. Litigants in the Fifth Circuit may now bypass

Daubert challenges in the district court, raise Daubert for

the first time on appeal, and prevail in the absence of a

properly developed record.

Arising as it does in the summary judgment context,

the decision of the Fifth Circuit is in direct conflict with

the approach taken by the First Circuit, which has cau-

tioned:

If trial courts should be slow to employ Daubert

at the summary judgment stage, appellate

courts should be even more hesitant to head in

that direction where there has been no develop-

ment of the issue below. After all, the bifurcated

inquiry into reliability and relevance which

10

Daubert requires is best performed by trial

judges who, unlike appellate judges, have a

broader array of tools which can be brought to

bear on the evaluation of expert testimony.

Hence, we can envision few, if any, cases in

which an appellate court would venture to

superimpose a Daubert ruling on a cold, poorly

developed record when neither the parties nor

the nisi prius court has had a meaningful oppor-

tunity to mull the question.

Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d

184, 189 (1st Cir. 1997) (footnote omitted). Cf. United

States v. Charley, 189 F.3d 1251, 1264 n.16 (10th Cir. 1999)

(declining to make independent appellate determination

under Daubert when challenge made for first time on

rehearing), cert. denied, 120 S. Ct. 842 (2000).

There was no meaningful opportunity to mull the

Daubert question in the trial court, where the proceedings

were stayed by the district court while the summary

judgment motion was pending and all of Michaels’ expert

evidence stricken as a discovery sanction. Daubert was

not raised until Avitech filed its appellate brief some two

months after the Court’s holding in Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999), a case which resolved a

split among the circuits and confirmed that Daubert

applied to non-scientific expert evidence. Still, the Fifth

Circuit addressed and resolved the Daubert issue,1 even

1 The Fifth Circuit suggested that “the plaintiff’s expert’s

theory that debris was evidence of negligence would likely have

been inadmissible at trial under Daubert because it failed to

exclude other causes,” looking to the toxic tort case of In re Paoli

R.R. Yard PCB Litigation, 35 F.3d 717, 757 n.27 (3d Cir. 1994), cert.

11

though there was literally no development of the issue

before the trial court.

The Fifth Circuit’s independent Daubert determina-

tion has due process ramifications as well. Not only was

no Daubert challenge made in the court below, but the

summary judgment motion was briefed and argued prior

to the Court’s decisions in General Electric Co. v. Joiner,

522 U.S. 136 (1997), and Kumho Tire, which expounded

upon and expanded the reach of Daubert. “Given the

‘liberal thrust’ of the Federal Rules it is particularly

important that the side trying to defend the admission of

evidence be given an adequate chance to do so.” In re

Paoli Railroad Yard PCB Litigation, supra, 35 F.3d at 739. No

such chance was afforded here.

The court of appeals upheld summary judgment

because the expert evidence “would likely have been

denied, 513 U.S. 1190 (1995), as authority for the proposition that

exclusion of alternative causes is “[a] necessary ingredient” in

aircraft disaster cases. (App. 16). The suggestion by the Fifth

Circuit that all alternative causes must be ruled out is not a

prerequisite to the admissibility of expert evidence. “[I]t seems

clear that an expert must investigate to some extent other

possible causes. Obvious alternative causes need to be ruled

out. All possible causes, however, cannot be and need not be

eliminated before an expert’s testimony will be admitted.”

Capra, The Daubert Puzzle, 32 Ga. L. Rev. 699, 728 (1998). Accord

Viterboro v. Dow Chemical Co., 826 F.2d 420, 426 (5th Cir. 1987)

(“admissibility of an expert opinion [does not] depend[ ] upon

the expert disproving every possible'cause other than the one

espoused by him”). In any event, there was evidence in the

record that the Michaels’ expert did indeed reject water and

corrosion as contamination sources and ruled out an engine

washdown by another maintenance facility two weeks before

the crash as the source of the debris.

12

inadmissible” and “may not have survived a Daubert

hearing.” (App. 10, 16). Daubert and its progeny require a

more exacting assessment of admissibility, and do not

permit a trial court to exclude evidence that might or

might not be admissible or a reviewing court to similarly

speculate as to potential admissibility. In its decision, it

may truly be said, the Fifth Circuit

has so far departed from the accepted and usual

course of judicial review as to call for an exer-

cise of the court’s power of supervision.

>. CR &. 1a}.

II. THE COURT’S GUIDANCE IS REQUIRED TO

DELINEATE THE PROCEDURAL PROTECTIONS

NECESSARY FOR DAUBERT CHALLENGES IN

THE SUMMARY JUDGMENT CONTEXT.

This case raises important questions regarding how

Daubert is to be properly employed at the summary judg-

ment stage, specifically, the procedural protections avail-

able when a Daubert challenge is made in conjunction

with a summary judgment motion.

Daubert itself arose from the grant of summary judg-

ment, 509 U.S. at 582-83, as did Joiner, supra, 522 U.S. at

140, and Kumho Tire, supra, 526 U.S. at 145, where the

motion for summary judgment was also accompanied by

a motion to exclude the plaintiffs’ expert’s testimony

because his methodology failed to meet the reliability

requirement of Fed. R. Evid. 702.

In each of those cases, there was a well-developed

evidentiary record. The record before the trial and

ea

sisi ERR

13

reviewing courts in Daubert consisted of affidavits, depo-

sition transcripts, and transcripts from previous trials. See

Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F. Supp.

570, 573 (S.D. Cal. 1989), aff'd, 951 F2d 1128 (9th Cir.

1991), rev'd, 509 U.S. 579 (1993). The experts in Joiner gave

depositions, 522 U.S. at 140, as did the expert in Kumho

Tire, who gave more than one. 526 U.S. at 155-56.

The Court’s decisions have not spoken to the param-

eters of Daubert at the summary judgment stage or the

procedural protections necessary to provide parties with

sufficient process to defend their evidentiary submissions

on summary judgment. The question whether Daubert

analysis should apply in the same measure on summary

judgment as at trial is particularly troublesome.

The First Circuit recognizes that “the Daubert regime

can play a role during the summary judgment phase of

civil litigation,” but has counseled against applying the

Daubert gatekeeping function too rigorously: “A trial set-

ting normally will provide the best operating environ-

ment for the triage which Daubert demands.” Cortes-

Irizarry, supra, 111 F.3d at 188. Accord Capra, supra, 32 Ga.

L. Rev. at 757 (analyzing Daubert in the summary judg-

ment context and concluding that “the gatekeeper func-

tion should most often be suspended until the trial of the

case [because][a]ny attempt to create a sufficient record

from which reliability may be assessed at the early sum-

mary judgment stage would unnecessarily expand the

summary judgment proceeding into a full-blown trial on

the reliability issue”).

Summary judgment motions and Daubert motions

have conflicting goals, and the timing of a summary

14

judgment motion and concomitant Daubert challenge is

critical:

[The Court’s authorization in Celotex Corp. v.

Catrett, 477 U.S. 317 (1986)] of “summary judg-

ment as a substitute for trial” must be read in

conjunction with Daubert’s recognition of the

complex factors that bear on “scientific knowl-

edge” and its praise of the adversary system in

dealing with expert proof. Courts should avoid

granting motions for summary judgment unless

the parties had a full opportunity and incentives

to develop an adequate record during the dis-

covery phase.

Bercer, Procedural Paradigms For Applying The Daubert

Test, 78 Minn. L. Rev. 1345, 1380-81 (1994). “Because the

summary judgment process does not conform well to the

discipline that Daubert imposes, the Daubert regime

should be employed only with great care and circumspec-

tion at the summary judgment stage.” Cortes-Irizarry,

supra, 111 F.3d at 188.

Given this dichotomy, the Third Circuit advocates in

limine hearings as a procedural protection where Daubert

challenges are made in the context of summary judgment

motions. Compare Padillas v. Stork-Gamco, Inc., 186 F.3d

412, 417-18 (3d Cir. 1999) (where ruling on admissibility

of proffered evidence under Daubert standard turns on

factual issues, failure to hold in limine hearing may be

abuse of discretion in summary judgment context) with In

re TMI Litigation, 199 F.3d 158, 159 (3d Cir. 2000) (distin-

guishing Padillas because the district court in TMI held a

five week long in limine hearing), amending 193 F.3d 613

(3d Cir. 1999). See also MANGRUM, Kumho Tire Company: The

Expansion Of The Court's Role In Screening Every Aspect Of

Ne wre

.

tetany

.

15

Every Expert's Testimony At Every Stage Of The Proceedings,

33 CREIGHTON L. Rev. 525, 547 (2000) (“A motion for sum-

mary judgment, unaccompanied by a pretrial Daubert

evidentiary hearing, provides a less ideal procedure for

considering the admissibility of expert testimony”).

The Ninth Circuit requires serial affidavits from

experts in the context of summary judgment motions. See

Claar v. Burlington Northern R.R., 29 F.3d 499, 502 (9th Cir.

1994) (affirming district court’s requirement that experts

on summary judgment submit serial affidavits explaining

reasoning and methodology underlying their conclu-

sions).

There was a complete absence of procedural protec-

tions here. Discovery was stayed pending the summary

judgment motion. The expert designations were all

stricken as a discovery sanction, a ruling later found to be

an abuse of discretion, without a preliminary assessment

of their reliability and relevance. Compare Weisgram v.

Marley Co., 120 S. Ct. 1011, 1019 (2000) (because of pretrial

Daubert objection, party on notice of need to “shore up”

his case at all stages of the proceedings).

Ill. HAVING EXPANDED THE “FLEXIBLE” REACH

OF DAUBERT, THE COURT SHOULD ELABO-

RATE ON THE KINDS OF CIRCUMSTANCES

THAT TRIGGER JUDICIAL SCREENING PUR-

SUANT TO FED. R. EVID. 104(a).

The Fifth Circuit’s decision has far-reaching implica-

tions for Daubert jurisprudence, making the court of

appeals the de facto gatekeeper of expert testimony,

bypassing the preliminary assessment required of the

16

trial judge by Fed. R. Evid. 104(a) and Daubert, and even

bypassing the necessity of an evidentiary challenge by

the party opposing the testimony. This is contrary to the

court’s teachings. See Daubert, 509 U.S. at 592-95.

“The Court's analysis in Daubert suggests-that .. . the

evidence should be presumed to be admissible until the

opponent discharges its burden to show the contrary.”

BERGER, supra, 78 Minn. L. Rev. at 1365 (advocating that, in

civil cases, the defendant should shoulder the initial bur-

den of production triggering judicial screening under

Fed. R. Evid. 104(a), as furthering Daubert’s “gatekeeping

objective without hampering the ‘liberal thrust’ of the

Federal Rules vis-a-vis expert testimony”).

The defense here merely disputed the plaintiffs’ evi-

dence, or at least the inferences to be drawn therefrom,

which is insufficient to trigger judicial screening under

Daubert. “Effectuating the goals of Daubert requires the

defendant to meet a higher burden of production than

merely alleging infirmities in the plaintiff’s expert proof.”

Bercer, supra, 78 Minn. L.-REv. at 1373.

The court of appeals likewise concluded that

Michaels’ expert was not correct in his theories, partic-

ularly those relating to the failure of the left pump (App.

17) — the failure of which was not in dispute by the

parties. Correctness is not an admissibility requirement

under Daubert. See In re Paoli Railroad Yard PCB Litigation,

supra, 35 F.3d at 744 (“the evidentiary requirement of

reliability is lower than the merits standard of correct-

ness”). Correctness is for the jury.

Not only have the Court’s decisions been silent on

the factors which trigger Daubert analysis, but post

ea coi a essencnmsenerisianene omnes imininingeaenmnamlgaieiiheiaaciadinane

a a

A tags Mn NE!

-

17

Daubert/Joiner/Kumho decisions by the courts of appeals

do not agree whether a Daubert challenge is appropriate

where the challenge is to an expert’s conclusions rather

than to the methodology used.

_ In Daubert, the Court instructed that “[t]he focus, of

course, must be solely on principles and methodology,

not on the conclusions they generate.” Daubert, supra, 509

U.S. at 595. In Joiner, the Court suggested that “conclu-

sions and methodology are not entirely distinct from one

another.” Joiner, supra, 522 U.S. at 146. But see id. at 154

(Stevens, J., dissenting in part) (“[A] critical question

remains unanswered: When qualified experts have

reached relevant conclusions on the basis of an acceptable

methodology, why are their opinions inadmissible?”)

The Sixth and Tenth Circuits hold that a Daubert

hearing is not appropriate when an evidentiary challenge

is made to the adequacy of an expert’s conclusions, rather

than the theory or methodology underlying those conclu-

sions. See Greenwell v. Boatright, 184 F.3d 492, 497 (6th Cir.

1999) (affirming district court’s refusal to hold a Daubert

hearing where the plaintiff challenged the foundational

adequacy of the defense accident reconstructionist’s testi-

mony because a Daubert hearing is most appropriate

when challenging the scientific theory or methodology

underlying the testimony, rather than the conclusions

generated therefrom); United States v. Nichols, 169 F.3d

1255, 1263 (10th Cir.) (holding district court did not abuse

its discretion in refusing to hold a Fed. R. Evid. 104(a)

preliminary hearing because the defendant's challenges

went to the collection of items tested by forensic explo-

sives expert and the manner in which the lab work was

18

performed, rather than the expert’s theory or methodol-

ogy), cert. denied, 120 S. Ct. 336 (1999).

The Seventh and Eighth Circuits, by contrast, have

upheld the use of a Daubert hearing based solely upon a

challenge to a lack of factual foundation supporting the

expert’s opinion. See Clark v. Takata Corp., 192 F.3d 750,

759 (7th Cir. 1999) (mechanical engineer failed to estab-

lish any factual support at Daubert hearing for his opin-

ions regarding failure of lap belt or its role in causing the

plaintiff’s injuries); Jaurequi v. Carter Manufacturing Co.,

173 F.3d 1076, 1085 (8th Cir. 1999) (upholding grant of

summary judgment where the plaintiff failed to make

countervailing factual showing supporting summary tes-

timony of experts whose testimony was excluded as a

result of a Daubert hearing).

The Daubert inquiry is a flexible test, and the Court

has resisted articulating a bright-line test for its applica-

tion. Given its ever-expanding reach, however, the

Court’s guidance is necessary to provide the lower courts

with additional guidelines as to the procedures to be used

in evaluating the relevance and reliability of expert evi-

dence, particularly in the specialized summary judgment

context. |

19

CONCLUSION

The court’s role under Daubert and its progeny is to

act as a gatekeeper, not as an “armed guard.” Ruiz-Troche

v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 86 (1st

Cir. 1998). That is exactly what the court of appeals has

done, with repercussions going far beyond this contro-

versy.

For all the foregoing reasons, therefore, certiorari

should be granted.

Respectfully submitted,

ARTHUR ALAN WOLKk*

WoLk & GENTER

1710-12 Locust Street

Philadelphia, PA 19103

(215) 545-4220

Attorney for Petitioner

*Counsel of Record

App. 1

REVISED —- March 17, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20851

NORMAN MICHAELS; ET AL,

Plaintiffs,

NORMAN MICHAELS, Executor of Estates of Martin

Popowitz and Harriet Loria Popowitz, Deceased,

Plaintiff-Appellant,

versus

AVITECH INC, also known as Harger Aviation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(Filed January 28, 2000)

Before HIGGINBOTHAM and SMITH, Circuit Judges,

and DUPLANTIER’*, District Judge.

HIGGINBOTHAM, Circuit Judge:

This is a negligence action arising from the crash of a

private plane. Norman Michaels appeals the striking of

* District Judge of the Eastern District of Louisiana, sitting

by designation.

App. 2

his experts and the grant of summary judgment in favor

of Avitech, Inc. Although we find that the plaintiff’s

experts were improperly struck, we also find that no

genuine questions of material fact exist, even considering

_all of the plaintiff’s experts and reports. Thus we AFFIRM

summary judgment in favor of the defendant.

a

Norman Michaels is the executor of the estates of two

people killed in a Cessna plane crash. In 1990, an aircraft

service company known as Avitech replaced the right

vacuum pump on the Cessna and attempted to repair oil

leaks in the engine compartment. Nine days later, the left

vacuum pump failed and was replaced by a different

aircraft service company.

Each year between 1991 and 1993, the Cessna passed

FAA required inspections. A few days before March 1,

1994, a maintenance facility in New York detected an oil

leak near the turbo controller oil inlet. This facility was

unable to repair that oil leak and recommended that the

pilot investigate the leak further.

On March 1, 1994, the pilot of the aircraft took off

from New Orleans under weather conditions which

included severe thunderstorms within or surrounding his

flight path. The pilot was flying without a legally current

license and without current legal authority to fly in

instrument-only conditions. During flight, the pilot

reported the failure of pneumatic instruments that relied

on the plane’s gyroscopes which were powered by the

vacuum pumps. Soon after this failure, radar contact was

App. 3

lost. The plane broke up in midair and crashed in Ala-

bama, killing all four on board and scattering debris

across more than four miles.

The plaintiff’s theory is that the left vacuum pump

failed during flight, putting increased pressure on the

right pump. The right pump then failed because debris in

the pneumatic lines made the right pump incapable of

sustaining a higher than normal workload. The failure of

the two pumps then caused the gyroscopes to fail, as well

as the instruments which relied on them. Consequently,

the pilot was unable to navigate away from the severe

weather, which resulted in the Cessna’s destruction.

It is undisputed that the left vacuum pump failed

catastrophically before the crash, although the plane

should have been able to generate sufficient vacuum

pressure with only one pump working. The right vacuum

pump was not intact after the crash, either, although it is

disputed whether it failed before or after the plane was

destroyed.

The plaintiff sued the vacuum pump manufacturer,

along with numerous others, including Avitech, in Penn-

sylvania. The claims against Avitech were severed and

transferred to the Southern District of Texas, pursuant to

28 U.S.C. § 1406.

The plaintiff claimed Avitech negligently installed

the right vacuum pump, failed to repair oil leaks, and

failed to clean the pump lines.

After the case had been on file for over a year, the

district court held a pretrial conference and apparently

questioned the plaintiff’s ability to establish a case

On

App. 4

against Avitech. The plaintiff claimed he had an expert

witness who believed Avitech was responsible. On June

12, 1997, the district court directed the plaintiff to desig-

nate, with a report, his expert witness that implicated

Avitech. The federal rules require that the designation of

expert witnesses “shall be made at the times and in the

sequence directed by the court.” Fep. R. Civ. P. 26(a)(2)(C).

The order to designate the expert was entered June 19,

1997, with a deadline of July 7, 1997.

On July 7, 1997, the plaintiff designated an expert,

Douglas Stimpson, who provided a brief report. The

plaintiff also designated Scott Goodley, who also pro-

vided a brief report essentially duplicating Stimpson’s.

On September 29, 1997, Avitech designated several

expert witnesses with their reports. At a conference the

same day, the court directed Avitech to file its motion for

summary judgment on causation by October 31.

On October 29, 1997, two days before Avitech had to

file its motion for summary judgment, the plaintiff's

attorney sent Avitech a 21-page fax which included radar

plots and reports from previously undisclosed experts.

Over the next few days, the plaintiff also sent Avitech a

copy of a “Supplemental Witness /Fact Witness Designa-

tion” identifying the four new expert witnesses and pro-

viding a significantly revised and expanded report from

Stimpson; the plaintiff also sent a correction to his “Sup-

plemental Expert Witness/Fact Designation,” as well as a

“Second Supplemental Expert Witness Designation.”

Avitech moved to strike the plaintiff’s original report

because it was so insubstantial as to not meet the court’s

original order. Avitech moved to strike the subsequent

App. 5

reports as untimely. The district court struck them all.

The district court entered summary judgment in favor of

the defendant, and the plaintiff appealed.

Il.

The district court’s June 12, 1997, order required that

“the plaintiffs must designate their expert with a report

that implicates Avitech and any three witnesses they

believe need to be deposed.” The plaintiff’s original

expert designation and report, although brief, at least

implicates Avitech by providing some theory of Avitech’s

negligence with respect to equipment whose failure was

implicated in the crash.

Stimpson’s report claims that his examination of the

wreckage discovered debris in the pneumatic lines.

Because both pumps feed into the same lines, the replace-

ment of either pump could have contaminated these lines

if the pump lines were not properly cleaned after installa-

tion. Because both pumps were replaced in 1990, it is

conceivable that either or both installations failed to

properly clean the lines or otherwise introduced contam-

ination.

Stimpson’s report, however, provides no direct evi-

dence that Avitech failed to clean the pump lines or

negligently installed the pump. The maintenance records

cited in Stimpson’s report indicate that Avitech blew out

the lines, as required, and Stimpson gives no reason for

the claim that the pump was negligently installed.

However, Stimpson did note that the maintenance

records indicated that Avitech found numerous oil leaks

App. 6

but did not correct them. From this, Stimpson concluded

also that the failure to correct the oil leaks contaminated

the pneumatic system which led to the failure of the

pumps.

Stimpson’s report, then, facially establishes that the

_ pneumatic system may have been contaminated from oil

leaks which Avitech failed to repair. Even assuming that

Avitech cleaned the lines and that the second mainte-

nance facility perhaps did not, Stimpson’s report still

“implicates” Avitech, since it pinpoints them as one

source of contamination. If both Avitech and the subse-

quent facility were sources of contamination, however,

that does not necessarily relieve Avitech of liability, so

long as the sources of contamination combined to create a

contaminated environment which, through a string of

events, caused the plane to crash. In such an instance, the

contamination could be seen as an indivisible harm which

creates joint and several liability for the parties whose

negligence created it. See, e.g., Borel v. Fibreboard Paper

Products Corp., 493 F.2d 1076, 1095 (5th Cir. 1973); Amstadt

v. United States Brass Corp., 919 S.W.2d 644 (Tex. 1996)

(both citing Landers v. East Tex. Salt Water Disposal Co., 248

S.W.2d 731 (Tex. 1952)); cf. Chemical Exp. Carriers, Inc. v.

French, 759 S.W.2d 683 (Tex.App.-Corpus Christi 1988,

writ denied) (ground crew’s negligent failure to detect

contaminated jet fuel did not supersede the negligence of

the fuel company which delivered contaminated fuel).}

! For the purposes of this appeal, we have adopted the

parties’ implicit assumption that Texas substantive law governs

the plaintiff’s negligence claims.

App. 7

Thus, we find that the [sic] Stimpson’s original report

at least “implicated” Avitech. The district court, however,

struck the report because it did not live up to the stan-

dards of Sierra Club v. Cedar Point Oil Company, Inc., 73

F.3d 546 (5th Cir. 1996), which states that expert reports

should be “detailed and complete” so as “to avoid the

disclosure of ‘sketchy and vague’ expert information.” Id.

at 571. Sierra Club found no abuse of discretion when the

district court decided that a plaintiff's expert reports

violated a discovery order because the reports were brief

and conclusory. Id. Unlike the present case, however, the

plaintiff in Sierra Club essentially admitted that it had not

complied with the discovery order, and thus compliance

was not at issue so much as the sanction actually

imposed. Id. at 571 n.46, 572-73.

Furthermore, in Sierra Club, the district court had

expressly adopted a discovery plan, and it was an “accel-

erated” plan. Id. at 569. With respect to experts, each

party in Sierra Club had been ordered to prepare “a

complete statement of all opinions to be expressed and the

basis and reasons therefor.” Id. at 570 (emphasis added).

Thus, the plaintiff’s failure in Sierra Club to provide com-

plete disclosure was an admitted violation of an explicit

and unambiguous discovery order in the context of a

previously adopted and accelerated discovery plan.

In this case, however, the intended purpose of the

order at issue is ambiguous. The plaintiff claims that the

district court doubted that the plaintiff could find any

negligence on the part of Avitech; thus, the district court

merely wanted disclosure of some evidence of Avitech’s

negligence. The defendant claims that the district court

VE —

App. 8

doubted that the plaintiff could prove negligence, causa-

tion, and defeat the defendant’s affirmative defenses;

thus, the district court wanted the plaintiff to disclose all

of his expert evidence and theories.

Because the pretrial meetings were not recorded, we

have little evidence which reveals their content. On file is

an affidavit by an attorney for the other plaintiff below

who took part in both the June and September confer-

ences. According to her sworn statement, the parties and

court “did not discuss a discovery schedule or a trial

‘date” at the June 12, 1997 conference, which was directed

primarily toward the issue of abatement. Furthermore,

according to the affidavit, it was not until the September

conference that the court expressed doubt as to the suffi-

ciency of the plaintiff’s expert reports and set a briefing

schedule for Avitech’s summary judgment motion.

Consequently, it was the plaintiff’s alleged belief that

the June 19, 1997 order denying abatement only required

him to designate one expert who could point to some

maintenance negligence on the part of Avitech, rather

than designate and disclose all potential experts and

expert opinions regarding negligence, causation, and the

affirmative defenses.

The district court expressly found the plaintiff’s

understanding to be “totally unreasonable” and conse-

quently ruled that the plaintiff had violated the discovery

order by not disclosing all experts and opinions at once.

As a sanction for violating the discovery order, the dis-

trict court struck all of the plaintiff’s expert witness des-

ignations.

a

ep

cceminabenth

App. 9

While such a sanction may sometimes be appropriate

for the violation of discovery orders, we can find no

violation in this case because the order allegedly violated

| _ does not on its face require complete disclosure of experts

and opinions, nor was the order part of a current discov-

- . ery plan, let alone an accelerated plan.

Instead, the order simply instructed the plaintiff to

designate one expert and report which could implicate

Avitech, which the plaintiff did. Given that the district

court expressed skepticism at the plaintiff’s case, it would iid

make sense to require a brief initial disclosure on the part

of the plaintiff, for if the plaintiff could not overcome that

low hurdle, then the case could be dismissed. As such,

the plaintiff’s alleged interpretation is tenable.

The defendant suggests that the district court’s

extreme measures resulted from the court’s belief that the

plaintiff tokenly complied with the literal wording of the

initial order but purposefully ignored the common under-

standing between the parties and the court in order to

gain a tactical advantage by the late designation of

experts. While such bad faith might warrant the result in

this case, the district court accepted the plaintiff’s under-

standing of the order at face value, yet still found it to be

unreasonable.

A district court has wide latitude in determining

whether disclosure is “detailed and complete,” at least

when the discovery order requests complete disclosure.

See, e.g., Sierra Club, 73 F.3d at 571-72 n.46. However,

when a discovery order fails to specify complete dis-

closure, no current or accelerated discovery schedule is in

place, and the plaintiff has some reason to believe that

a a

ea a i a a a ae

App. 10

—— less than full disclosure is required, then the discretion to

find a violation must likewise be reduced. Thus, given the

record before us, we find that it was an abuse of discre-

tion to hold that the plaintiff’s initial disclosures violated

the discovery order. Consequently, the plaintiff’s supple-

mental and rebuttal reports should not have been struck

since it is not disputed that these reports were timely

filed under the rules.

The district court was justified in his skeptical view

of the case, as we will explain, and the expert testimony

he struck may not have survived a Daubert hearing. While

it may be that the district court believed it deprived

plaintiff of little by his-erder, the record reasons for it are

not sufficient.

Il.

It remains to determine whether the plaintiff can

withstand summary judgment, even considering all of his

experts and reports. See, e.g., In re TMI Litigation, 193 F.3d

613, 716 (3rd Cir. 1999), (considering whether improperly

excluded expert evidence sufficed to create a genuine

issue of material fact), amended by Nos. 96-7623, 96-7624,

96-7625, 2000 WL 18950 (3d Cir. Jan 04, 2000).

Our review of the summary. judgment record is de

novo and summary judgment can be affirmed on any

legally sufficient ground, even one not relied on by the

district court. See BMG Music v. Martinez, 74 F.3d 87, 89

(5th Cir. 1996). Fact questions are viewed in the light

most favorable to the nonmovant. See Hassan v. Lubbock

Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir. 1995). How-

ever, only materials in the pretrial record that would have

App. 11

been admissible evidence can be considered. See Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.

1987). After reviewing the complete summary judgment

record, we find that no genuine issue of material fact

exists which would preclude summary judgment for the

defendant. See Fep. Rute Civ. Proc. 56(e).

Essentially, the plaintiff’s theory is that a particular

chain of events which began with the defendant’s negli-

gence in 1990 led to the fatal crash in 1994. At the sum-

mary judgment hearing, however, the plaintiff

abandoned his theory that the oil leak caused the plane

crash. Plaintiff’s counsel at the hearing noted, “I think

we're getting all bogged down in the oil leak when we

shouldn’t be, because the problem that caused this air-

plane crash in our view is not the oil leak.” The plaintiff

has also abandoned the theory on appeal by failing to

argue the theory in its briefs except to mention that

“Michael’s expert faulted Avitech for not taking care of

the leak.” Brief of Appellant at 44.

The abandonment of the theory makes sense, even

though there was some evidence that after Avitech

located an oil leak and made repairs, there was still some

oil leaking. However, it was undisputed that the potential

oil leak was at the bottom of the engine and the vacuum

pumps were at the top. The plaintiff’s expert never

offered any credible theory as to how an oil leak could

have leaked upward to contaminate the vacuum pumps

other than to simply reiterate that the oil leak could

contaminate the general environment. Furthermore, it

was undisputed that three annual inspections of the air-

craft engine between 1990 and 1994 that searched for oil

leaks found none. The only oil leak ever detected was

App. 12

found near the left vacuum pump days before the fatal

crash. A New York facility was unable to repair this leak

and instead recommended that the pilot investigate it

further.

Because the plaintiff’s expert had no rational expla-

nation as to why the first oil leak mattered, given that it

disappeared after 1990, yet the 1994 oil leak did not

matter, despite the fact that it was near the pump which

catastrophically failed, there was insufficient evidence to

send the oil leak theory to a jury. Thus, this theory cannot

survive summary judgment, even if we assume the the-

ory is properly before us.

Consequently, the plaintiff must stake his case on the

allegation that Avitech negligently installed the right vac-

uum pump and contaminated the pump lines. Assuming

such negligence occurred, the plaintiff argues that over

time this contamination worked its way into the system

and during the fateful flight four years later, the contam-

ination led to a failure of the left vacuum pump, which

then placed an increased load on the right pump. The

right pump then failed, under the increased workload,

because of the contamination in the system. The failure of

both pumps caused the gyroscopes to fail, and the failure

of the gyroscopes caused certain instruments to fail. The

lack of instruments prevented the pilot from navigating

away from the most severe weather, and then the plane

was destroyed by a storm that the pilot could not escape.

This is quite a long chain of events, although it is not an

inconceivable sequence. In fact, a cursory review of the

record reveals at least some evidence that both pumps

and the gyroscopes failed during flight, and that the

pump system was contaminated.

9 SAA ERD Gh TS cre

am BI 2 i NA lll SEE OMERN IMSS EP RSENS Oh

SO on ec

App. 13

The defendant argues that the pilot was a supersed-

ing cause of the accident because he took off in bad

weather after receiving several warnings and because he

did not have a current license or instrument rating. The

record evidence, however, reveals a “battle of the

experts” as to whether the weather conditions made it

unreasonable for a pilot to take off that morning. Thus,

summary judgment is precluded as to the pilot’s decision

to fly.

It is true that some courts have held that the violation

of Federal Aviation Regulations is negligence as a matter

of law. See Associated Aviation Underwriters v. United

States, 462 F. Supp. 674, 680 (N.D. Tex. 1978) (citing Gate-

nby v. Altoona Aviation Corp., 407 F.2d 443 (3rd Cir. 1969);

Gas Service Co. v. Helmers, 179 F.2d 101 (8th Cir. 1950)).

However, the violation of licensing regulations is often an

exception to the general rule that the violation of a safety

regulation or statute is negligence per se. See Duty v. East

Coast Tender Service, Inc., 660 F.2d 933, 948-49 & nn. 1-2

(4th Cir. 1981) (in [sic ] banc) (Hall, J. dissenting) (collect-

ing cases from twenty jurisdictions, including Texas,

which have a licensing exception).

One reason for having a licensing exception is that

there may be reasons a license has not been renewed that

do not relate to the operator’s lack of skill. See REsTATE-

MENT (THIRD) OF Torts, § 12 cmt. h (D.D., 1999). For the

purposes of this case, however, it does not matter

whether the violation is negligence per se or merely

evidence of negligence. In either case, to win on summary

judgment, the defendant must show that such negligence

was the sole proximate cause of the accident as a matter

of law. See, e.g., Duty v. East Coast Tender Service, Inc., 660

App. 14

F.2d 933, 947 (4th Cir. 1981) (holding that proximate cause

is still an issue for the jury even if the violation of a

licensing regulation is negligence per se). If the jury

believes the plaintiff’s theory of the case, the fact that the

pilot did not have a current license or instrument rating

may be irrelevant, since the allegation is that the plane

crashed because it was rendered instrumentless and the

pilot was unable to navigate out of the bad weather.

Under such conditions, a jury might find that the lack of

instrumentation was a proximate cause of the accident.

For these reasons, the defendant's affirmative defense

cannot prevail on summary judgment.

Nevertheless, the plaintiff has failed to provide evi-

dence on the issue of Avitech’s negligence sufficient for a

reasonable juror to find for the plaintiff by a prepon-

derance of the evidence, which mandates summary judg-

—ment in Avitech’s favor. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249-51 (1986).

The plaintiff's contention is that Avitech’s negligent

installation of the right pump contaminated the system.

Indeed, if Avitech negligently installed the pump and

either introduced contamination or failed to remove con-

tamination, then there is a reasonable inference that such

contamination led first to the failure of the left pump nine

days later, and then led to the failure of both pumps less

than 200 flight hours after that.

However, the plaintiff still must have sufficient evi-

dence to generate a jury question that Avitech was negli-

gent in its installation of the right pump. The plaintiff

claims that Avitech did not clean out the pump lines and

check the system. However, the maintenance records

ee eee

App. 15

indicate that Avitech did. The plaintiff's assertion to the

contrary is based on three facts: (A) debris was found in

the system four years later, after the crash; (B) the left

pump failed nine days after Avitech’s installation of the

right pump; and (C) Avitech only recorded 3.2 hours of

labor for replacing the right vacuum pump, cleaning the

lines, and checking the system. We examine each in turn.

A. Pump System Debris

After Avitech replaced the right pump, the left pump

failed and was replaced a few days later. Four years later,

3 during the fatal flight, the left pump failed again fol-

lowed, allegedly, by the failure of the right pump. Addi-

tionally, the engine was cleaned at least four times after

Avitech replaced the right pump. According to the evi-

dence, all of the following can intro iuce contamination

into the system: the negligent insta!'ation of a pump, the

actual failure of a pump, engine cleaning, and even nor-

mal operation. In this case, debris was found after (1)

four years of operation, (2) four engine cleanings, (3)

three pump failures, (4) the installation of the left pump,

and (5) the discovery of an oil leak near the left pump,

which all agree was never fixed.

Given the variety of intervening events, the finding

of debris alone cannot support any rational inference that

Avitech’s installation of the right pump was negligent,

given that the plaintiff’s experts wholly fail to address

and rule out the numerous other potential causes. Had

the expert’s opinions undergone a Daubert analysis, they .

likely would not have been admissible, since an impor-

tant factor under Daubert is the testability of an expert’s

App. 16

conclusions and theory. See Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. 579, 592 (1993). In this case,

expert testimony was necessary to establish the likely

cause of an aircraft disaster. A necessary ingredient of

such theorizing, however, is the exclusion of alternative

causes. See In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717,

757, 759 n.27 (3rd Cir. 1994).

Although the plaintiff’s expert’s theory that debris

was evidence of negligence would likely have been inad-

missible at trial under Daubert because it failed to exclude

other causes, and although only admissible evidence

should be considered at summary judgment, it is perhaps

remiss to attempt a Daubert inquiry at the appellate level

when the district court did not perform one.? See Cortes-

Irizarry v. Corporacion Insular De Seguros, 111 F.3d 184, 189

(1st Cir. 1997). However, in determining whether the

plaintiff has sufficient and competent summary judgment

evidence for a given issue, it would be equally remiss for

us to ignore the fact that a plaintiff’s expert evidence

lacks any rational probative value. For if evidence gives

rise to numerous inferences which are equally plausible,

yet only one inference is consistent with the plaintiff's

theory, the plaintiff has failed to offer evidence which is

“significantly probative,” see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986), absent at least some evi-

dence that excludes the other potential causes. The reason

for this is as follows:

2 Thus, we in no way suggest that the Daubert gatekeeping

function may be transferred from the district court to the court

of appeals.

Ct RINE ABO CE IR Ow cea

A

bi aii Na Na de Aa a SS RS RRR

App. 17

Under Texas law, if a plaintiff has evidence that a

defendant’s negligence is a proximate cause of an acci-

dent, the plaintiff need not make any attempt to rule out

other proximate causes of the accident because “[t]here

can be more than one proximate cause of an injury, and

all persons whose negligent conduct contributed to the

injury are responsible for it.” Coleman v. Equitable Real

Estate Investment Management, Inc., 971 S.W.2d 611

(Tex.App.-Dallas 1998).

However, if the plaintiff’s only evidence of the defen-

dant’s negligence is an inference from the observation of

a dangerous condition such as contaminated pump lines,

then the plaintiff must at least make an attempt to rule

out other likely sources of negligence because such an

inference is essentially a form of res ipsa loquitur, even if

the plaintiff does not label it as such.

Notwithstanding the fact that res ipsa is only applica-

ble when the condition in question was under the exclu-

sive control of the defendant — which was not the case here

— res ipsa also requires an exclusion of alternative causes.

See, e.g., Harris v. National Passenger Railroad Corp., 79

F.Supp.2d 673, 679 (E.D.Tex. 1999) (“While res ipsa loquitur

alleviates the plaintiff of the burden of directly proving

causation, it is only applicable where the likelihood of

causes other than the defendant are ruled out... . ”).

Because the plaintiff’s expert made no attempt to rule

out the numerous other sources of contamination of the

alleged debris, the evidence was not “significantly proba-

tive” as to the issue of Avitech’s negligence, and thus

‘does not preclude summary judgment.

App. 18

B. Avitech’s Time Record

The plaintiff claims that 3.2 hours was insufficient

time for Avitech to correctly install the right pump, clean

the lines, and check the system, yet the plaintiff gives no

explanation for this claim. If such an installation, clean-

ing, and check takes even a fast mechanic over 7 hours,

for example, then the evidence would support an infer-

ence that perhaps the pump was installed but the lines

were never cleaned and the system never checked. How-

ever, the plaintiff's expert never justifies the conclusory

assertion that 3.2 hours was insufficient time to do the job

properly. As such, the plaintiff’s evidence, without more,

is insufficient to preclude summary judgment on the

issue of negligence. See, e.g., Boyd v. State Farm Ins. Com-

panies, 158 F.3d 326, 331 (5th Cir. 1998) (“For the purposes

of summary judgment under Fed.R.Civ.P. 56(e), an expert

affidavit must include materials on which the expert

based his opinion, as well as an indication of the reason-

ing process underlying the opinion.”); cf. General Elec. Co.

v. Joiner, 522 U.S. 136, 519 (1997) (“[N]othing in either

Daubert or the Federal Rules of Evidence requires a dis-

trict court to admit opinion evidence which is connected

to existing data only by the ipse dixit of the expert.”).

C. The Left Pump Failure

The plaintiff claims that the failure of the left pump

nine days after the failure of the right pump supports an

inference that the right pump must have been negligently

installed. This contradicts the plaintiff’s own theory that

the failure of one pump puts such an increased load on

the other pump that premature failure of the other pump

sissies aicaasaaseCi

App. 19

is expected and not uncommon. If we assume the plain-

tiff’s own theory, however, then when the right pump

failed in 1990, the left pump was immediately stressed;

thus, even before Avitech replaced the right pump, the

left pump would have sustained injury that brings risk of

premature failure. Moreover, it is undisputed that the left

pump failure occurred at the normal life expectancy of

the left pump. Specifically, the left pump failed at 700

hours, while its warranty was for only 400 hours. Avi-

tech’s undisputed expert testimony stated that the left

pump’s life span was about what could be expected. The

plaintiff still insists, however, that the failure of the left

pump is evidence that Avitech negligently installed the

right pump.

While the proximity in time of the 1990 pump fail-

ures might generate some speculation that a problem

existed with the installation of the right pump by Avitech,

the plaintiff’s expert gives no analysis of the other poten-

tial causes of the left pump’s failure, such as earlier

failure of the right pump or the age of the left pump. In

fact, it is conceivable that a problem with the left pump

led to the premature failure of the right pump before the

left pump initially failed. As with the case of the pump

debris, the plaintiff’s experts do not discuss let alone

exclude the alternative causes of the left pump’s failure.

Thus, the expert theories on this point are simply insuffi-

cient for a reasonable juror to find by a preponderance of

the evidence that Avitech committed negligence. See Rich-

oux v. Armstrong Cork Corp., 777 F.2d 296, 297 (Sth Cir.

1985) (“The inferences drawn from the record, however,

must be rational and reasonable, not idle, speculative, or

conjectural.”).

App. 20

Because none of the plaintiff’s inferences of Avitech’s

negligence are sufficient to support finding of negligence,

they do not suffice to create a genuine issue of material

fact that would preclude summary judgment. See, e.g.,

Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir.

1993) (summary judgment is appropriate if “nonmoving

party rests merely upon conclusory allegations, improb-

able inferences, and unsupported speculation”); see also

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

596 (1993) (if “the trial court concludes that the scintilla

of evidence presented supporting a position is insuffi-

cient to allow a reasonable juror to conclude that the

position more likely than not is true, the court remains

free ... to grant summary judgment”). For these reasons,

we AFFIRM the grant of summary judgment.

AFFIRMED.

matinee

ORT S ae

App. 21

Unitep States District Court

SOUTHERN DISTRICT OF TEXAS

NorMAN MICHAELS, ET AL. § CIVIL ACTION

7 Piasenee, § H-96-2395

S (Filed Sept. 3, 1998)

VERSUS 8

AvITECH, INc., §

Defendant.

Opinion on Judgment

1. Introduction.

Norman Michaels, Bonnie Weiser Brauer, and Marci

Weiser Gelb are executors of the estates of four people

killed in a plane crash in 1994. Avitech, Inc., which does

business as Harger Aviation, replaced the right vacuum

pump on the aircraft in 1990. The executors sued the

vacuum pump manufacturer along with numerous

others. Believing that the manufacturer would blame Avi-

tech, they also they sued Avitech in Pennsylvania.

Avitech asks the court to strike the plaintiffs’ expert

witness designations and for summary judgment. The

expert witness designations violate the court’s order on

timing an~ content. They are struck.

The plaintiffs have no evidence that Avitech’s

replacement of the right vacuum pump in 1990 caused or

App. 22

contributed to the plane crash in 1994. Avitech is entitled

to judgment as a matter of law.

2. The Facts.

In December 1990, Avitech installed a new right vac-

uum pump on a 1986 single-engine Cessna P-210R air-

craft. Later that month, the left vacuum pump was

replaced by a different aircraft service company; the sec-

ond company was not sued by the plaintiffs because they

mistakenly believed that Avitech replaced both pumps.

Each year between 1991 and 1993, the aircraft was

inspected under Federal Aviation Administration require-

ments.

On March 1, 1994, the pilot of the aircraft flew into a

thunderstorm. The pilot was flying without a current

license and without authority to fly in instrument

weather. The plane disintegrated.

3. The Motion to Strike Expert Witness Designations.

The rules require that designation of expert witnesses

“shall be made at the times and in the sequence directed

by the court.” Fep. R. Crv. P. 26(a)(2)(C). On June 12, 1997,

the court directed the plaintiffs to designate, with reports,

their expert witnesses that implicate Avitech. The order

was signed June 18 and entered June 19, 1997. The dead-

line for the plaintiffs’ designation was July 7, 1997.

On July 7, 1997, the plaintiffs designated two experts,

Douglas Stimpson and Scott Goodley, who provided

brief, conclusory reports. Stimpson gave three opinions;

PRBS eR TT we Nore ee eo) ek Meine et Re Se ER ay

: hash

App. 23

they do little more than restate the plaintiffs’ allegations.

The opinions are approximately one page long. Goodley

repeated, almost verbatim, two of Stimpson’s opinions.

Goodley used larger type, so his two opinions are also

approximately one page long.

On September 29, 1997, Avitech satisfied its obliga-

tion under the court’s order, designating its, expert wit-

nesses with their reports. At a conference that same day,

the court directed Avitech to file its motion for summary

judgment on causation by October 31.

On October 29, 1997, the plaintiff Michaels’s attorney

sent Avitech a 21-page facsimile which included “radar

plots” and reports from previously undisclosed experts.

On October 30, 1997, Avitech received from Michaels’s

attorney a copy of a “correction” to his “Supplemental

Expert Witness/Fact Witness Designation” and a copy of

his “Second Supplemental Expert Witness Designation.”

On November 3, 1997, after Avitech filed its motion for

summary judgment, Avitech received a copy of

Michaels’s “Supplemental Expert Witness/Fact Witness

Designation” identifying four new expert witnesses and

providing a significantly revised and expanded report

from Stimpson.

Avitech moves to strike the original Stimpson and

Goodley designations because the reports are so insub-

stantial that they do not comply with the court’s order to

provide reports with the expert witness designation. Avi-

tech moves to strike the additional designations and the

revised Stimpson report as untimely.

App. 24

4. The Original Reports.

The court’s June 12, 1997, order required that the

plaintiffs designate their experts and that the experts

provide reports implicating Avitech. Experts’ reports

must be “detailed and complete.” Sierra Club, Lone Star

Chapter v. Cedar Point Oil Company, Inc., 73 F.3d 546, 571

(5th Cir.), cert. denied, __ U.S. __, 117 S. Ct. 57 (1996)

(citing Advisory Committee Notes to Rule 26). The pur-

pose of experts’ reports “is to avoid the disclosure of

‘sketchy and vague’ expert information... ” Id.

The original reports from Stimpson and Goodley do

not meet this standard. The revised report later provided

by Stimpson does not negate the Plaintiffs’ violation of

the court’s order that it designate expert witnesses and

provide reports. “The purpose of rebuttal and supple-

mentary disclosures is just that - to rebut and to supple-

ment. These disclosures are not intended to provide an

extension of the deadline by which a party must deliver

the lion’s share of its expert information.” Sierra Club, 73

F.3d at 571.

Michaels’s attorney’s dissatisfaction with the court’s

_ requirement that he disclose his expert evidence first may

explain, but does not excuse, his decision to withhold

almost all expert evidence until after Avitech disclosed its

evidence. Rule 26 provides that the disclosures must be

made “in the sequence directed by the Court.” Argument

by counsel that the information was not available is con-

tradicted by counsel’s written statement in a letter to the

court dated October 21, 1997. In that letter, counsel stated

unequivocally that he “engaged experts long before” fil-

ing suit and that “their opinions had been expressed long

Waite iecsae ete SK psa 2b ae AR ABable eG

Neha Milnes

Ri A a a nts at

App. 25

before” Avitech was sued. The record reflects that

Michaels’s attorney elected to change the court’s

sequence for disclosing expert witnesses by providing

superficial reports and saving the bulk of his expert evi-

dence until after Avitech’s disclosure. The attempt is

unsuccessful, and the court finds that the Stimpson and

Goodley reports fail to comply with its order and with

Rule 26.

5. Later-Designated Expert Witnesses.

It is undisputed that the plaintiffs designated expert

witnesses Hoxit, Cauble, Smith, Raefsky, Swiger, and

Michaels (one of the plaintiffs) after July 7, 1997. The

plaintiffs’ counsel argues that the “the plaintiffs fairly

read the reference to an ‘expert with a report implicating

Harger’ to mean a single report from a maintenance

expert.” (the plaintiffs’ Opposition, at 8). Giving counsel

the benefit of a serious doubt and accepting counsel’s

representation of the plaintiffs’ understanding of the

order, the court finds that understanding to be totally

unreasonable. The court had expressed concern about

whether the plaintiffs could show a causal link between

Avitech and the crash. The court directed the plaintiffs to

disclose their expert evidence on that issue. Nothing in

the order can reasonably be construed as limiting the

disclosure to a single maintenance report.

Counsel’s argument that the June 1997 order was

“not a Rule 16 scheduling order” is accurate, but mean-

ingless. Rule 26 requires that expert witness disclosures

be made as “directed by the Court.” There is no mention

of a “Rule 16 Scheduling order.”

App. 26

Counsel’s argument that the late disclosures were in

rebuttal to Avitech’s designations is also without merit.

Rule 26 requires that the disclosures be made “in the

sequence directed by the court.” The court directed that

the plaintiffs go first. The plaintiffs were apparently

unhappy with that sequence, so they decided instead to

identify two expert witnesses and provide incomplete

reports. Then, after Avitech made full disclosure, the

plaintiffs would “rebut” by designating six new expert

witnesses and “supplement” by providing a revised

report increasing the number of opinions twofold and the

length of the opinions sixfold. The plaintiffs’ sequence is

not the one ordered by the court, and the court’s

sequence governs. The “supplemental designations” are

untimely.

6. Proper Sanction.

The original reports did not comply with the June

1997 order or with Rule 26, and the later disclosure of six

new expert witnesses was untimely. The court must now

determine whether striking the expert designations is an

appropriate sanction.

Rule 37(c)(1) of the Federal Rules of Civil Procedure

provides:

A party that without substantial justification

fails to disclose information required by Rule

26(a) or 26 (e)(1) shall not, unless such failure is

harmless, be permitted to use as evidence at a

trial, at a hearing, or on a motion any witness or

information not so disclosed.

es

App. 27

The court considers four factors in deciding whether to

strike the expert information that was not disclosed at the

time and in the sequence directed by the court. Sierra

Club, 73 F.3d at 572; 1488, Inc. v. Philsec Investment Corp.,

939 F.2d 1281, 1288 (5th Cir. 1991); Geiserman v. Mac-

Donald, 893 F.2d 787, 791 (5th Cir. 1990).

The first factor is the importance of the witnesses’

testimony. Clearly, expert evidence on causation is impor-

tant to the plaintiffs’ case. The importance of Goodley’s

expert report is reduced because the pneumatic system

discussed in his report and the system illustrated by the

schematic diagram included in his report are different

systems. “ ‘The importance of such proposed testimony

cannot singularly override the enforcement of local rules

and scheduling orders.’ Moreover, the claimed impor-

tance of the plaintiffs’ expert testimony merely under-

scores the need for the plaintiffs to have complied with

the court’s deadlines or at least informed the trial judge

in advance if good faith compliance was not possible.”

Barrett v. Atlantic Richfield Co., 95 F.3d 375, 381 (5th Cir.

1996) (quoting Geiserman, 893 F.2d at 792).

The second factor is the prejudice to the opposing

party of allowing the expert witnesses’ evidence. Avitech

would be materially prejudiced if the the plaintiffs were

allowed to designate six new experts and significantly

augment Stimpson’s report. Avitech had prepared its

motion for summary judgment. The plaintiffs’ delay, if

condoned, would result in additional expense to Avitech.

The third factor is the possibility of curing that preju-

dice by granting a continuance. Although a continuance

is always a possibility, the plaintiffs did not request a

App. 28

continuance and the court would not be inclined to grant

one. Had the deadline for Avitech’s motion for summary

judgment been continued, the plaintiffs’ late disclosures

would have been later. Granting a continuance does not

necessarily “deter future dilatory behavior, nor serve to

enforce local rules or court imposed scheduling orders.”

Geiserman, 893 F.2d at 792.

The fourth factor is the explanation, if any, for the

party’s failure to comply with the discovery order. In this

case, as discussed previously, the explanations offered by

the plaintiffs are unpersuasive. Michaels’s attorney states

that “the explanation for not previously providing the

expert reports is a reasonable, simple one. The plaintiffs

submitted their respective report apiece implicating

Harger in accordance with the June 19th order, and sub-

mitted the remainder of their expert reports as required

by Rule 26 of the Federal Rules of Civil Procedure.”

Michaels’s attorney had previously argued that the June

1997 order was not a “Rule 16 scheduling order” there-

fore, counsel argued, there were no “other directions

from the court” and Rule 26 required only that they

submit expert reports at least ninety days before the trial

date. As discussed above, Rule 26 does not limit “direc-

tions from the court” to Rule 16 scheduling orders. Based

on the failure of the plaintiffs to offer a rational explana-

tion for their dilatory behavior and on the earlier conduct

of Michaels’s counsel in this case, the court concludes

that the plaintiffs’ failure to comply was an intentional

attempt to obtain a tactical advantage. Counsel for Brauer

and Gelb throughout this litigation has consistently sim-

ply adopted the pleadings and actions of Michaels’s

counsel. See, e.g., Designation of Expert Witnesses (#23);

BO a et ae

App. 29

Notice of Joinder (#47, 63). Although the court does not

find that Brauer and Gelb’s attorney made the same con-

scious decision to violate the June 1997 order that

Michaels’s attorney made, their counsel’s conscious deci-

sion to rely exclusively on Michaels’s attorney leaves

Brauer and Gelb in the same position as Michaels. Fla-

grant disregard for court orders is not acceptable.

Having considered the four factors, the court finds

that the plaintiffs’ failure to comply with the June 1997

order was not justified and was not harmless. Rule 37

requires that the plaintiffs not be permitted to use the late

and inadequate expert information as evidence on a

motion.

The plaintiffs argue that Avitech never asked for a

supplement report. It is unreasonable that Avitech would

believe the plaintiffs had additional information implicat-

ing it in the plane crash. Moreover, Rule 37 does not

require that a party first move to compel before moving

to strike. Sierra Club, 73 F.3d at 572.

The court will strike the plaintiffs’ expert witness

designations.

7. The Summary Judgment Standard.

Summary judgment is granted unless there is evi-

dence “on which the jury could reasonably find for the

plaintiff. The judge’s inquiry, therefore, unavoidably asks

whether reasonable jurors could find by a preponderance

of the evidence that the plaintiff is entitled to a ver-

dict... .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986). Rule 56 is an integral part of the Federal Rules of

App. 30

Civil Procedure, recognizing a party’s right to demon-

strate that certain claims have no factual basis and to

have those unsupported claims disposed of before trial.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

The plaintiffs have the burden to show with “signifi-

cant probative evidence” that there is a material fact in

dispute. Texas Manufactured Housing Ass'n v. Nederland,

101 F.3d 1095, 1099 (5th Cir. 1996), cert. denied, __ U.S.

___, 117 S. Ct. 2497 (1997). The burden cannot be satisfied

by conclusory allegations, unsubstantiated assertions,

metaphysical doubt about the facts, or a scintilla of evi-

dence. Douglass v. United Services Automobile Ass'n, 65

F.3d 452, 459 (5th Cir. 1995), revised on other grounds, 79

F.3d 1415 (5th Cir. 1995) (en banc); Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

8. The Motion for Summary Judgment.

The plaintiffs allege that Avitech negligently installed

the right vacuum pump and negligently repaired an oil

leak, both in 1990. The plaintiffs allege that Avitech’s

negligence caused the plane crash in 1994. The plaintiffs

have no evidence that Avitech was negligent nor that the

alleged negligence was a proximate cause of the crash.

Avitech is entitled to judgment as a matter of law.

9. Right Vacuum Pump Installation.

The plaintiffs have no evidence that the right vacuum

pump was negligently installed by Avitech in 1990. The

undisputed evidence establishes that the vacuum pump

operated without problems for over three years and more

App. 31

than 280 flight hours after it was installed by Avitech.

Three FAA-required inspections, by FAA-licensed

mechanics at three different facilities, were conducted

after the new right vacuum pump was installed. Each

inspection resulted in a finding that the aircraft was

airworthy. The plaintiffs allege that Avitech violated Fed-

eral Aviation Regulations because it did not follow the

manufacturer’s instructions for installing the pump. The

plaintiffs have no evidence, however, to support this

allegation.

Even if the plaintiffs were able to produce evidence

that Avitech negligently installed the right vacuum

pump, they have no evidence that the effect of this negli-

gence would have remained after the left vacuum pump

was replaced by Glueck’s Aircraft service. The two

pumps share most of the same plumbing, and both feed

pressurized air into the same de-ice system. The plaintiffs

have not alleged negligence by Glueck’s. If Glueck’s

properly followed the manufacturer’s instructions, the

entire system would have been cleaned and inspected.

This would have removed the effect of negligence by

‘Avitech.

Even if the plaintiffs could produce evidence that any

effect of Avitech’s negligence remained after the left

pump was replaced, they have no evidence that the right

vacuum pump failed during the flight. The National

Transportation Safety Board conduced an investigation

and took photographs shortly after the crash. Although

the National Transportation Safety Board’s opinions and

conclusions about what caused the plane crash are inad-

missible under 49 U.S.C. § 1903(c), the photographs from

its report are admissible because they “do not reflect the

App. 32

Board’s evaluation of the data they contain or the

emphasis placed on that data in reaching a decision on

probable cause.” See American Airlines, Inc. v. United

States, 418 F.2d 180, 196 (5th Cir. 1969). See also Curry v.

Chevron, USA, 779 F.2d 272, 274 (5th Cir. 1985) (factual

portions of the report may be admitted). The photographs

illustrate significant differences between the condition of

the left pump, which all parties agree failed before the

crash, and the right pump. The National Transportation

Safety Board’s examination of the right pump showed no

signs of heat stress or melting of the coupling nor of

carbon deposits inside the pump housing; both condi-

tions are associated with pump failure while the engine is

running. Avitech’s mechanical engineering export exam-

ined the aircraft wreckage and concluded that the right

vacuum pump did not fail during flight. The plaintiffs

allege that “the wreckage revealed major contamination

of the entire de-ice system” which the plaintiffs claim was

“contaminated with debris generated by the failure of the

right pump.” The plaintiffs have no evidence that the de-

ice system was contaminated nor that a contamination in

the system could have been caused by a failure of the

right pump.

Even if the plaintiffs could present evidence that the

right vacuum pump failed during flight, they have no

evidence that this failure would cause the other pump to

fail and cause the plane to crash. The aircraft was

equipped with an electrically powered gyroscope and

could have been flown and. landed without the vacuum

system. Additionally, the vacuum pump system on the

Cessna P-210 contains four check valves that allow flow

App. 33

only in one direction. These check valves prevent contam-

inants from flowing between the pumps.

The plaintiffs have no evidence that Avitech negli-

gently installed the right vacuum pump on the Cessna

nor that the effect of negligent installation remained after

Glueck’s installed the left vacuum pump. The plaintiffs

have no evidence that the right vacuum pump failed

during the flight nor that a failure of the right pump

would cause the plane to crash.

10. Oil Leak Repair.

The plaintiffs allege that Avitech negligently repaired

an oil leak at the oil drain pan on the bottom of the

aircraft engine in 1990. They have no evidence, however,

to support their allegation. As discussed previously, the

airplane was inspected three times between the service by

Avitech in 1990 and the crash in 1994. There are no

records that the oil drain pan continued to leak after

Avitech released the plane in 1990, and no leaks were

noticed during the three inspections.

The plaintiffs have no evidence that a negligently

repaired oil leak caused or contributed to the crash. The

oil leak was on the bottom of the engine; the vacuum

pumps are located at the top of the engine. Oil leaks

rarely result in oil dripping from the bottom to the top.

The court also notes that a different oil leak on the

plane near the turbo controller oil inlet was detected at a

maintenance facility in New York a few days before the

crash. Maintenance personnel at the New York facility

App. 34

attempted unsuccessfully to repair the leak and recom-

mended that the pilot investigate the leak further. There

is no record that this new oil leak was successfully

repaired before the crash.

The plaintiffs have no evidence of Avitech’s negli-

gence and no evidence that an oil leak in the oil drain pan

caused or contributed to the crash. To the extent an oil

leak played a part in the crash, the leak near the turbo

controller oil inlet was nearer both in location on the

aircraft and in time to the crash.

11. Intervening Cause.

Proximate cause under Texas law “is that cause

which, in a natural and continuous sequence, unbroken

by any new and independent cause, produces the injury.”

Urbach v. United States, 869 F.2d 829, 833 (5th Cir. 1989)

(quoting Cook Consultants, Inc. v. Larson, 700 S.W.2d 231

236 (Tex. App. — Dallas 1985, writ ref’d n.r.e.). See also In

re Air Crash, 919 F.2d at 1087.

The plaintiffs have no evidence that Avitech’s

replacement of the right vacuum pump and repair of the

oil leak was negligent or, if negligent, caused the Cessna

to crash. Although this alone entitles Avitech to summary

judgment, there is also evidence that the negligence of the

pilot, Weiser, was an intervening cause of the crash that

prevents liability by Avitech.

The pilot took off in violation of federal regulations.

Weiser had not received the flight review required of all

private pilots at least every two years. See 14 C.FR.

App. 35

§ 61.56(c). Weiser was also unauthorized under the fed-

eral regulations to fly in instrument weather because he

did not have enough recent instrument experience or the

required number of instrument approaches. See 14 C.FR.

§ 61.57(a) and (d). Without a current license and instru-

ment rating, Weiser could not legally fly the aircraft with

passengers on board. See 14 C.F.R. § 61.3(a); Paul v. Petro-

leum Equipment Tools Co., 708 F.2d 168, 171 (Sth Cir. 1983)

(pilot could not legally fly corporate aircraft with pas-

sengers without a commercial pilot certificate and instru-

ment rating). One who violates a safety statute or

administrative regulation, including Federal Aviation

Regulations, is negligent as a matter of law. Associated

Aviation Underwriters v. United States, 462 F. Supp. 674,

680 (N.D. Tex. 1978).

The pilot also took off having been advised that there

were thunderstorms in his flight path. The pilot’s negli-

gent decision to fly into dangerous weather conditions

was an intervening cause of the crash. See In re Air Crash,

919 F.2d at 1087 (“the sole proximate cause of the catas-

trophe was the deliberate decision of Flight 191’s experi-

enced crew to enter Cell D, despite having observed the

tell-tale lightening that clearly marked it as a thunder-

storm.”).

The plaintiffs have no evidence of negligence by

Avitech. Even if they did, the actions of the pilot were an

intervening cause which was the sole proximate cause of

the crash in 1994. Avitech is entitled to judgment as a

matter of law.

App. 36

12. Conclusion.

The plaintiffs disregarded the court’s order about

designating expert witnesses and providing the experts’

reports. The plaintiffs’ expert witness designations will

be struck because they were untimely, inadequate, or

both.

The plaintiffs have no evidence that the installation

of the right vacuum pump caused or contributed to the

plane crash. There is undisputed evidence that the pilot

was flying in dangerous weather without a valid license.

Avitech is entitled to judgment as a matter of law.

Signed September 2 , 1998 at Houston, Texas.

/s/ Lynn N. Hughes

Lynn N. Hughes

United States District Judge

App. 37

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20851

NORMAN MICHAELS; ET AL

Plaintiffs

NORMAN MICHAELS, Executor of Estates of Martin

Popowitz and Harriet Loria Popowitz, Deceased

Plaintiff - Appellant

v.

AVITECH INC, also known as Harger Aviation

Defendant - Appellee

Appeal from the United States District Court for the

Southern District of Texas, Houston

ON PETITION FOR REHEARING AND

REHEARING EN BANC

(Filed Apr. 13, 2000)

; (Opinion 1/28/00, 5 Cir, __, __ F.3d __)

Before HIGGINBOTHAM and SMITH, Circuit Judges,

and DUPLANTIER’, District Judge.

* District Judge of the Eastern District of Louisiana, sitting

be designation.

App. 38

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no mem-

ber of this panel nor judge in regular active service on the

court having requested that the court be polled on

Rehearing En Banc, (Fep. R. App. P. and 5TH Cir. R. 35) the

Petition for Rehearing En Banc is also DENIED.

( ) The Petition for Rehearing is DENIED and the court

having been polled at the request of one of the members

of the court and a majority of the judges who are in

regular active service not having voted in favor, (Feb. R.

A. P. and 5TH Cir. R. 35) the Petition for Rehearing En

Banc is also DENIED.

( ) A member of the court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Patrick E. Higginbotham

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

ANG dhe tanta, ware wir Se

App. 39

RULES INVOLVED

Rule 104 of the Federal Rules of Evidence provides,

in pertinent part:

(a) Questions of admissibility generally. Prelimi-

nary questions concerning the qualification of a person to

be a witness, the existence of a privilege, or the admis-

sibility of evidence shall be determined by the court,

subject to the provisions of subdivision (b). In making its

determination it is not bound by the rules of evidence

except those with respect to privileges.

Rule 702 of the Federal Rules of Evidence provides:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or edu-

cation, may testify thereto in the form of an opinion or

otherwise.