Norman Michaels, Norman Michaels, of Estates of Martin Popowitz and Harriet Loria Popowitz, Deceased v. Avitech Inc, Also Known as Harger Aviation

Citations: 202 F.3d 746; 55 Fed. R. Serv. 37; 45 Fed. R. Serv. 3d 1275; 2000 U.S. App. LEXIS 1034; 2000 WL 96024Docket: 98-20851

Court: Court of Appeals for the Fifth Circuit; January 28, 2000; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Norman Michaels, as executor of the estates of Martin and Harriet Popowitz, appeals a summary judgment favoring Avitech, Inc. in a negligence case linked to a Cessna plane crash that killed all four occupants. The crash followed a series of maintenance activities, including the replacement of the right vacuum pump by Avitech and subsequent repairs by another company. Despite annual FAA inspections from 1991 to 1993, an oil leak was detected shortly before the crash, which the maintenance facility could not repair.

On March 1, 1994, the pilot, flying under severe weather conditions and without a current license, reported failures in the pneumatic instruments powered by the vacuum pumps before losing radar contact and crashing. The plaintiff theorizes that the left vacuum pump's failure led to increased strain on the right pump, causing its failure and ultimately resulting in the crash due to instrument failure.

While it is agreed that the left vacuum pump failed before the crash, the status of the right pump remains disputed. Michaels sued Avitech, alleging negligence in the installation and maintenance of the vacuum pump. However, the district court questioned the viability of the claims, and despite an expert witness being mentioned, the court directed Michaels to formally designate this expert by a specified deadline.

The appellate court ruled that while the expert witnesses were improperly struck, summary judgment was affirmed as no genuine questions of material fact existed that could change the outcome of the case. The claims against Avitech were transferred from Pennsylvania to the Southern District of Texas under 28 U.S.C. 1406.

On July 7, 1997, the plaintiff designated expert witnesses Douglas Stimpson and Scott Goodley, whose reports were largely duplicative. Avitech designated its own expert witnesses on September 29, 1997, and the court instructed them to file a motion for summary judgment on causation by October 31. Two days before this deadline, the plaintiff's attorney sent Avitech a lengthy fax with radar plots and reports from undisclosed experts, followed by a "Supplemental Witness/Fact Witness Designation" that introduced four new experts and revised Stimpson's report. Avitech sought to strike the original and subsequent reports, claiming they were insubstantial and untimely, leading the district court to strike all of them and enter summary judgment for Avitech, prompting the plaintiff's appeal.

The June 12, 1997, court order required the plaintiff to designate experts implicating Avitech. Stimpson's report, while brief, suggested potential negligence by Avitech regarding the installation of pumps related to the crash, noting that contamination could arise from improperly cleaned pneumatic lines. However, the report lacked direct evidence of Avitech's negligence, as maintenance records indicated compliance with cleaning protocols. Stimpson did cite oil leaks that Avitech did not address, concluding that these leaks possibly contaminated the pneumatic system, implicating Avitech as a source of contamination. Even if another facility contributed to the contamination, Avitech could still face joint and several liability if its negligence combined with that of others led to the crash, as established in relevant case law.

The Stimpson's initial report suggested potential involvement of Avitech, but the district court rejected it for failing to meet the standards set in *Sierra Club v. Cedar Point Oil Company, Inc.*, which mandates that expert reports must be detailed and thorough to prevent vague disclosures. In *Sierra Club*, the plaintiff's brief and conclusive reports were deemed non-compliant with a discovery order, though the plaintiff had admitted to non-compliance. In contrast, the district court in this case had ambiguous intentions regarding its discovery order. The plaintiff believed it only needed to identify one expert pointing to Avitech's negligence, while the defendant argued it required comprehensive disclosure of all expert opinions and theories. Due to the lack of recorded pretrial meetings, evidence regarding discussions of a discovery schedule was limited. An affidavit indicated that the June conference did not address discovery timelines, and concerns about the sufficiency of the plaintiff’s expert reports were only raised later. The district court deemed the plaintiff’s interpretation of the order as "totally unreasonable," ruling that the plaintiff violated the discovery order by not disclosing all experts and opinions upfront. Consequently, the court struck the plaintiff's expert witness designations. However, the appellate analysis concluded that the original order did not explicitly demand complete expert disclosure nor was it part of a defined or accelerated discovery plan. Thus, the plaintiff's understanding of the order was considered reasonable, and the sanction imposed for the alleged violation was inappropriate.

The defendant argues that the district court's strict actions stemmed from a belief that the plaintiff complied superficially with the initial order while strategically ignoring the shared understanding between the parties to gain an advantage by delaying expert designations. Although the court accepted the plaintiff's interpretation of the order, it still deemed it unreasonable. The district court has broad discretion to determine if disclosures are "detailed and complete" under discovery orders; however, when an order does not specify complete disclosure and no discovery schedule is established, the discretion to declare a violation is diminished. Thus, finding a violation of the discovery order based on the plaintiff's initial disclosures was deemed an abuse of discretion, and the plaintiff's timely supplemental and rebuttal reports should not have been excluded.

The district court's skepticism about the case was warranted, although the reasons for striking the expert testimony were insufficient. The court must now assess whether the plaintiff can withstand summary judgment, even with all expert evidence considered. The review of the summary judgment record is de novo, allowing affirmation on any legally sufficient grounds, with fact questions viewed favorably towards the nonmoving party. However, only admissible pretrial materials are evaluated. After reviewing the summary judgment record, it was concluded that no genuine issue of material fact exists to prevent summary judgment for the defendant.

The plaintiff initially claimed that the defendant's negligence in 1990 led to a fatal crash in 1994 but later abandoned the theory linking an oil leak to the crash during the summary judgment hearing, indicating the issue was being overemphasized. On appeal, the plaintiff failed to argue this theory, only noting that an expert criticized Avitech for its handling of the oil leak.

The abandonment of the oil leak theory is justified due to the lack of credible evidence linking a detected oil leak to the failure of the vacuum pumps, which are located at different positions in the engine. Despite some evidence that an oil leak persisted after repairs, inspections from 1990 to 1994 found no leaks, and the only leak detected before the crash was near the left vacuum pump. The plaintiff's expert failed to provide a rational explanation for how prior leaks could have affected the pumps. Therefore, there is insufficient evidence to submit the oil leak theory to a jury, warranting its dismissal in summary judgment.

The plaintiff's case now relies on allegations that Avitech negligently installed the right vacuum pump and contaminated the pump lines, asserting that this contamination caused a failure in the left vacuum pump, which subsequently overloaded the right pump, leading to the failure of both pumps and the gyroscopes. This failure allegedly resulted in the pilot's inability to navigate away from severe weather, culminating in the aircraft's destruction. While this sequence of events is plausible, the plaintiff must also contend with the potential superseding cause of the accident being the pilot's decision to fly in poor weather despite prior warnings and his lack of current licensing.

The defendant argues that the pilot's actions constitute a superseding cause, supported by expert testimony regarding the reasonableness of the pilot's decision given the weather conditions. As a result, summary judgment on the pilot's actions is not appropriate. Although some courts have deemed violations of Federal Aviation Regulations as negligence per se, there is an exception regarding licensing violations, which complicates the application of this principle in this case.

A licensing exception exists due to various reasons for non-renewal that may not reflect an operator's skill. In this case, it is irrelevant whether a licensing violation constitutes negligence per se or merely evidence of negligence. For the defendant to succeed in summary judgment, they must demonstrate that the alleged negligence was a proximate cause of the accident. Despite a licensing violation being potentially categorized as negligence per se, proximate cause remains a jury question. If the jury supports the plaintiff's theory that the aircraft crashed due to lack of instrumentation, the pilot's licensing status may be deemed irrelevant. Consequently, the defendant's defense cannot succeed in summary judgment.

However, the plaintiff has not presented sufficient evidence to establish Avitech's negligence, which leads to summary judgment in Avitech's favor. The plaintiff claims that Avitech's negligent installation of the right pump caused contamination, which subsequently failed the left pump and both pumps thereafter. The plaintiff must provide adequate evidence to raise a jury question regarding Avitech's negligence.

Key points of the plaintiff's argument include: A) discovery of debris in the system years later; B) the left pump's failure shortly after the installation of the right pump; and C) limited recorded labor hours for the installation and system check. However, records indicate Avitech did perform these tasks. The presence of debris, found four years post-installation, cannot solely implicate Avitech's actions due to multiple potential sources of contamination. Expert testimony was vital to establish causation, requiring the exclusion of alternative causes, which the plaintiff's experts failed to adequately address. Consequently, the expert opinions likely would not withstand a Daubert analysis regarding admissibility.

The plaintiff's expert's theory linking debris to negligence is likely inadmissible at trial due to its failure to exclude other causes, and while admissible evidence is required for summary judgment, the appellate court refrains from conducting a Daubert inquiry not performed by the district court. Nonetheless, it is critical to recognize that if expert evidence lacks rational probative value, it fails to meet the threshold for being "significantly probative." Under Texas law, a plaintiff does not need to exclude all proximate causes if they provide evidence of a defendant's negligence contributing to an injury; however, if the plaintiff relies solely on the inference from a dangerous condition, like contaminated pump lines, they must attempt to exclude other potential sources of negligence, akin to res ipsa loquitur principles. Since the plaintiff's expert did not rule out other contamination sources, the evidence was insufficient to establish Avitech's negligence and did not prevent summary judgment.

Regarding Avitech's time record, the plaintiff argues that 3.2 hours is inadequate for a proper installation and check, but fails to substantiate this claim. Without justification for the assertion that such tasks require more than 3.2 hours, the evidence is insufficient to challenge summary judgment on negligence. For an expert affidavit to support summary judgment, it must provide the basis and reasoning for the expert's opinion, and neither Daubert nor the Federal Rules of Evidence obligate a court to admit evidence that relies solely on the expert's assertions without supporting data.

The plaintiff argues that the left pump's failure nine days after the right pump's failure indicates negligent installation of the right pump. However, this contradicts the plaintiff's own theory that a failure in one pump increases the load on the other, leading to expected premature failure. The left pump failed at 700 hours, exceeding its warranty of 400 hours and aligning with its normal life expectancy, according to Avitech's expert testimony. The plaintiff's expert fails to analyze alternative causes for the left pump's failure, such as the age of the left pump or the potential impact of the right pump's earlier failure. Consequently, the expert's theories lack the necessary rigor to establish negligence by Avitech. The court emphasizes that inferences drawn from the evidence must be rational and not speculative, and since the plaintiff's allegations do not create a genuine issue of material fact, summary judgment is warranted. The court affirms the grant of summary judgment, noting that Texas law governs the negligence claims and reiterating that the Daubert standard for evidence evaluation remains with the district court.