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Rodgers v. Beechcraft Corp.

United States District Court, N.D. Oklahoma

February 1, 2016

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.



         Now before the Court is the amended report and recommendation (Dkt. # 191)[1] 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.


         On 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.

         In June 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.

         In the 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.

         The 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.

         In 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.

         LaCourse 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.

         On 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.

         Plaintiffs 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 7.

         Defendants 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.


         Without 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 ...

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