United States District Court, N.D. Oklahoma
JAMES RODGERS and SHERYLL RODGERS, individually and as Husband and Wife; and CHRISTOPHER EVANS and JILL EVANS, individually and as Husband and Wife, Plaintiffs,
BEECHCRAFT CORPORATION, f/k/a Hawker Beechcraft Corporation, a Kansas Corporation; HAWKER BEECHCRAFT GLOBAL CUSTOMER SUPPORT, LLC, f/k/a Hawker Beechcraft Services, Inc., a Kansas limited liability company, Defendants.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court is the amended report and recommendation
(Dkt. # 191) of Magistrate Judge Paul J. Cleary
recommending that the Court grant in part and deny in part
Defendants' Motion in Limine to Limit and/or Exclude the
Testimony of Michael Haider (Dkt. # 60). Defendants
Beechcraft Corporation (Beechcraft) and Hawker Beechcraft
Global Customer Support, LLC (HBGCS) ask the Court to exclude
the testimony of plaintiffs' piloting expert, Michael
Haider, and the Court referred the motion to the magistrate
judge for a report and recommendation. Plaintiffs have filed
an objection (Dkt. # 192) to the amended report and
recommendation, and defendants have responded to
plaintiffs' objection (Dkt. # 194). As part of their
motion, defendants argued that there was a question as to
whether Haider actually “prepared” the expert
report that was provided to defendants, and the Court ordered
supplemental briefing on this issue. Plaintiffs have filed a
supplemental brief (Dkt. # 208), defendants have responded
(Dkt. # 213), and defendants' motion to exclude
Haider's testimony and the amended report and
recommendation are ripe for adjudication.
March 16, 2015, plaintiffs James Rodgers and Christopher
Evans filed this case alleging a manufacturer's products
liability claim against Beechcraft and a negligence claim
against Beechcraft and HBGCS. Their spouses, Sheryll Rodgers
and Jill Evans, also allege claims of loss of consortium
against defendants. James Rodgers and Christopher Evans were
passengers on a Beech Premier 390 aircraft, manufactured by
Beechcraft in 2008, that was flying from Tulsa, Oklahoma to
South Bend, Indiana on March 17, 2013, and the pilot of the
aircraft was Wesley Caves. During the flight, plaintiffs
allege that both engines of the plane were inadvertently shut
down and the pilot was unable to restart both of the engines
due to a defective electrical bus distribution system. Dkt. #
28, at 5-6. The pilot was unable to successfully land the
plane, it crashed near the South Bend Airport, and James
Rodgers and Christopher Evans were injured in the crash.
Plaintiffs allege that the alternate landing gear system
failed to deploy properly during the attempted landing and
that the alternate landing gear system was defectively
designed. Id. at 12.
2016, plaintiffs filed a motion to file a second amended
complaint (Dkt. # 93) adding a theory of product defect based
on the aircraft flight manual (AFM), and they allege that the
AFM contains faulty instructions for restarting the
electrical generator following a dual engine shutdown.
Id. at 4-5. Defendants opposed plaintiffs'
motion to amend on the ground that plaintiffs' motion was
untimely. The Court found that plaintiffs had established
good cause to amend the complaint outside of the deadline
established in the scheduling order for parties to file
motions to amend. Dkt. # 128, at 6. However, plaintiffs'
motion was filed on the same day as defendants' motion
for summary judgment, and the Court considered that there was
a legitimate question as to whether the motion to amend was
filed in an attempt to avoid summary judgment. Id.
at 7. The Court determined that evidence relating to the AFM
would be offered at trial even if the motion to amend were
denied, and defendants would not be prejudiced by granting
the motion to amend. Plaintiffs were permitted to file a
second amended complaint.
second amended complaint (Dkt. # 129), plaintiffs allege
claims of negligence against Beechcraft and HBGCS, a
manufacturer's products liability claim against
Beechcraft, and loss of consortium claims against Beechcraft
and HBGCS. The second amended complaint alleges three defects
with the subject aircraft: (1) HBGCS incorrectly installed a
repair kit and created a defect in the electrical bus
distribution system that caused intermittent electrical
supply to essential systems; (2) the alternate landing gear
did not operate as represented in the design specifications;
and (3) the AFM included faulty instructions for restarting
the electrical generators following a shutdown. Dkt. # 129,
at 5-7. In addition, plaintiffs allege that defendants were
negligent due to inadequate assembly and inspection
practices, substandard wiring practices, and the design of
the alternate landing gear. Id. at 10.
deadline in the scheduling order for plaintiffs' expert
identification and production of expert reports was November
30, 2015. Dkt. # 18. Defendants agreed to extend the deadline
to January 31, 2016. January 31, 2016 was a Sunday and the
expert reports were required to be provided to defendants on
February 1, 2016. On January 19, 2016, plaintiffs sought
another extension of the deadline to identify experts until
60 days after plaintiffs received additional discovery that
their experts would need to review. Dkt. # 30. Defendants
objected to plaintiffs' request for an extension of time.
Dkt. # 32. Plaintiffs' motion was denied and they were
required make any expert disclosures no later than January
30, 2016. Dkt. # 37.
support of their claims, plaintiffs sought the services of an
expert on piloting matters and plaintiffs' counsel asked
Frank Graham, one of their expert witnesses, to contact
Haider about the possibility of providing expert opinions in
this case. Dkt. # 208-1, at 1; Dkt. # 213-1, at 5. Following
Graham's contact with Haider, Graham told Haider that he
would contact Joel LaCourse, one of plaintiffs'
attorneys, and recommend that plaintiffs retain Haider as an
expert. Dkt. # 213-1, at 5. LaCourse contacted Haider around
January 15 or 16, 2016, and LaCourse gave Haider some
information about the accident and asked Haider to consider
whether he wanted to be an expert witness for plaintiffs.
Id. Haider understood that a non-pilot passenger,
Steve Davis, shut the engines off and that Wesley Caves was
the pilot. Id. at 6. LaCourse states that he asked
Haider to review documents from the National Transportation
Safety Board (NTSB), and LaCourse outlined the opinions
likely to be provided by plaintiffs' other experts. Dkt.
# 208-1, at 2. However, LaCourse did not actually provide any
documents to Haider on January 15, 2016. Dkt. # 208-1, at 2;
Dkt. # 213-1, at 6. Haider claims that LaCourse asked Haider
if he would be willing to render an opinion as to “the
design of the electrical system and maintenance of such
system.” Dkt. # 213-1, at 6. LaCourse called Haider
later in the day and an attorney for the estates of Caves and
Davis also participated in the conversation. Haider states
that the second call was a “rehash” of his
earlier conversation with LaCourse. Id. LaCourse and
another attorney “indicated” to Haider that the
pull force required to use the alternate landing gear greatly
exceeded the specifications provided by Beechcraft.
Id. at 7.
next spoke to Haider on January 25, 2016. Dkt. # 208-1, at 3.
Haider agreed to testify on behalf of plaintiffs. Dkt. #
213-1, at 7. Haider was advised that he would have to prepare
an expert report, but he was not initially told when that
report was due. Id. LaCourse states that he sent a
retainer agreement to Haider on January 26, 2016, and he sent
“our discovery file and key documents” to Haider
for overnight delivery. Dkt. # 208-1, at 3. Haider received
the documents on January 27, 2016, and he requested
additional documents that were prepared by the NTSB.
Id. at 36. Haider's billing records show that he
received and opened the information he received from LaCourse
on January 30, 2016 and he spent one hour browsing through
and organizing the material. Dkt. # 213-2, at 1. LaCourse
contacted Haider on January 31, 2016 to discuss Haider's
opinions, and he states that they spoke for one or two hours.
Dkt. # 208-1, at 3. Haider does not recall having any
additional conversations with LaCourse, and he recalls that
he next spoke to LaCourse's co-counsel, Fred Stoops. Dkt.
# 213-1, at 8. E-mails show that LaCourse attempted to
contact Haider at 5:32 p.m. on January 31, 2016, and that
LaCourse sent an e-mail to Karman Stoops, another attorney,
at 10:50 p.m. on January 31, 2016 stating that he was on the
phone with Haider. Id. at 38, 40. In the e-mail,
LaCourse states that “I have info to tweek Mike's
report and get to him for blessing.” Id.
Haider testified in his deposition that he
“reviewed” but did not “read” all of
the documents provided to him by plaintiffs' counsel.
Dkt. # 213-1, at 9.
February 1, 2016, Fred and Karman Stoops spoke to Haider, and
they spoke to Haider about a draft report that had been sent
to him by plaintiffs' counsel. The report was drafted by
plaintiffs' counsel, and LaCourse states that the report
memorialized opinions expressed during phone conversations
with Haider. Dkt. # 208-1, at 4. Karman Stoops took notes of
the conversation, and the notes show that Haider did not
believe pilots are typically trained about a checklist for a
dual-engine failure, and it appears that Haider may have
asked for records of Caves' pilot training. Id.
at 42 (“If have training rec6 ? taught recover dual
engine). Haider testified in his deposition that a report was
e-mailed to him, and he went over the report with a
paralegal. Dkt. # 213-1, at 14. Haider could recall only one
specific change that he requested to the report, which was
that there was no checklist to restart both engines following
a dual-engine failure. Id.
disclosed Haider's report to defense counsel on February
1, 2016. Haider has a bachelor of science degree from the
United States Military Academy at West Point, and a masters
degree in procurement, acquisition, and business management
from Webster University. Dkt. # 60-5, at 9. He is a graduate
of the United States Naval Test Pilot School, and he has
nearly 7, 000 hours of flight time in various aircraft,
including the aircraft at issue in this case. Id.
The report contained a list of documents that Haider
represented that he had reviewed and considered in reaching
expert opinions, including documents from the NTSB, eight
disks of primarily discovery materials, and two deposition
transcripts. Id. at 4. Haider opines that Caves used
an acceptable method of pilot training to become certified on
the Premier 390 aircraft and that Caves was trained on how to
use the alternate landing gear, but that Caves would not have
been expected to know how to restart both engines following a
dual-engine shutdown. Id. at 5. He offered several
opinions under a broader category that a “pilot should
be able to rely on the functionality of an aircraft as
designed.” Id. Haider opines that “there
is no reason that the engines could not have been restarted
and the aircraft landed safely unless there was a defect or
failure within the electrical system, ” and goes on to
say that the aircraft experienced intermittent electrical
system failures. Id. He states that Beechcraft
failed to warn pilots of the significant pull force needed to
deploy the alternate landing gear, and he opines that the
alternate landing gear system was defectively designed.
Id. at 6. According to Haider, HBGCS serviced the
aircraft on numerous occasions and had an opportunity to
correct defects in the alternate landing gear and electrical
systems and failed to do so. Id. Finally, Haider
offered a series of opinions that Caves acted as a
“reasonably prudent pilot” and that pilot error
was not a contributing factor of the crash. Id. at
filed a motion to exclude Haider's testimony. Dkt. # 60.
Defendants argue that Haider is unqualified to offer many of
the opinions in his expert report, and they assert that he
lacks a sufficient factual foundation for his proposed expert
testimony. Defendants raised the circumstances of the
drafting of Haider's report, but this was not expressly
identified as a basis to exclude Haider's testimony.
Id. at 7. The motion was referred to the magistrate
judge for a report and recommendation. The magistrate judge
discussed the law concerning the preparation of expert
reports and questioned whether plaintiffs had violated
Fed.R.Civ.P. 26 by drafting Haider's report, but he made
no formal recommendation on this issue. Dkt. # 191, at 7-12.
The Court ordered supplemental briefing on the circumstances
under which Haider's report was prepared, because it was
necessary to determine if Haider actually
“prepared” his expert report before the Court
reaches the merits of defendants' motion to exclude
Haider's testimony. Dkt. # 207, at 34-35. Plaintiffs and
defendants have filed supplemental briefs concerning the
preparation of Haider's report. Dkt. ## 208, 213.
consent of the parties, the Court may refer any pretrial
matter dispositive of a claim to a magistrate judge for a
report and recommendation. However, the parties may object to
the magistrate judge's recommendation within fourteen
days of service of the recommendation. Schrader v. Fred
A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002);
Vega v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999).
The Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 ...