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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 926

## Text

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
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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... . 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

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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
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1169%3A1. Public record. Not legal advice.