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David H. Pease, Iii and Lisa Pease v. Lycoming Engines

December 19, 2011

DAVID H. PEASE, III AND LISA PEASE, PLAINTIFFS
v.
LYCOMING ENGINES, DEFENDANT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiffs, David H. Pease III ("Mr. Pease") and Lisa Pease ("Mrs. Pease") (collectively, "the Peases"), bring this diversity action against defendant Lycoming Engines, Inc. ("Lycoming"). Presently before the court are two motions for summary judgment (Docs. 52, 67) and two motions to exclude expert testimony (Docs. 65, 66) filed by Lycoming.

I. Factual Background and Procedural History

A. Factual Background

On June 5, 2005, Mr. Pease was flying from Asheville, North Carolina, to Cincinnati, Ohio, in a Piper PA-32R-301T aircraft (the "Piper aircraft"). (Doc. 68 ¶ 1; Doc. 117 ¶ 1). During this flight, Mr. Pease's aircraft experienced an engine failure and crashed near Tazewell, Tennessee. (Id.) Mr. Pease suffered significant injuries as a result of the crash. The instant litigation is a diversity jurisdiction products liability action concerning the Piper aircraft's six-cylinder turbocharged Lycoming TIO-540-AH1A engine (the "AH1A engine") designed and manufactured by Lycoming. (Doc. 68 ¶¶ 4, 8; Doc. 117 ¶¶ 4, 8).

On June 25, 1997, the Federal Aviation Administration (the "FAA") approved the AH1A engine's type design and added the AH1A engine to Type Certificate E14EA.*fn1 (Doc. 53 ¶ 1; Doc. 90 ¶ 1). Type Certificate E14EA certifies that the AH1A engine "meets the airworthiness requirements of Part 13/33 of the Federal Aviation Regulations" and all other "applicable portions of the Civil Air Regulations/Federal Aviation Regulations provided it is installed, operated, and maintained" properly. (Doc. 53 ¶ 3; Doc. 90 ¶ 3; Doc. 54, Ex. 1, at 1, 4). The parties generally agree that inadequate oil circulation damaged the AH1A engine's internal components, but disagree about the cause.

A thumbnail sketch of the operation of an AH1A engine is essential background information. The AH1A engine contains six cylinders and a turbocharger. (Doc. 68 ¶ 8; 117 ¶ 8). Combustion within the cylinders forces pistons down the cylinder barrels. (Doc. 68 ¶ 9; 117 ¶ 9). Connecting rods clamped to crankpin journals on the crankshaft affix to each piston. (Id.) The force of the pistons moving down the six cylinders travels through the connecting rods and crankshaft, thereby rotating the propeller. (Id.) The crankcase halves support various components of the engine, including the six cylinders and the crankshaft.*fn2

(Doc. 68 ¶ 10; Doc. 117 ¶ 10). The crankshaft itself is supported during engine operation by five sets of main bearings seated within crankcase bearing supports. (Doc. 68 ¶ 12; Doc. 117 ¶ 12).

Lubrication is key to the proper operation of the engine, its pistons, and the crankshaft. Oil travels through the case valves to the main journal bearings to provide pressurized lubrication to the crankshaft. (Doc. 68 ¶ 14; Doc. 117 ¶ 14). The oil flows from the main journal bearings to the connecting rod journals through drilled passages in the crankshaft. (Id.)

The turbocharger mounts on the engine.*fn3 (Id.) An external hose connected to the rear case supplies the turbocharger with oil. (Id.) Oil enters from the top of the turbocharger to lubricate the internal moving parts. (Doc. 68 ¶ 15; Doc. 117 ¶ 15). This oil exits through the turbocharger at the bottom of the unit, entering the oil drain tank through a tube structure. (Doc. 68 ¶¶ 15-16; Doc. 117 ¶¶ 15-16). The oil flows from the oil drain tank to the rear case. (Doc. 68 ¶ 15; Doc. 117 ¶ 15).

According to the pleadings, the design defect involves the tube, which is designed to support the oil drain tank and to transfer spent oil from the turbocharger to the oil drain tank. (See Doc. 109, Ex. 2, at 29). The Peases claim that [t]he tube on the oil drain tank failed due to the overhung load and the engine vibration. Then the oil leaked out of the drain tank tube, depleting the engine of oil. Following the starvation of oil, the turbocharger failed and the turbine wheel exited the turbocharger and the tailpipe. (Doc. 117 ¶ 41 (citation and quotations omitted)). The Peases allege that the leak can be traced to a fracture in the drain tube that developed over a period of time-i.e. a fatigue fracture. (Doc. 117 ¶ 41). Lycoming contends that the fracture occurred as a result of the crash itself-i.e. an overload fracture-and did not cause the leak. (Doc. 68 ¶ 19).

Each party proffers expert testimony in support of their respective positions. One of the Peases' experts, Colin Sommer ("Sommer"), testified that "the material on the surface of the fracture on the flange is heavily smeared" and that the fracture "has a shiny appearance, [indicative of] some metal-to-metal contact, some smearing of metal that occurred . . . from the tank to the flange." (Doc. 109, Ex. 2, at 43). Sommer noted in his Rule 26 report that this "cannot occur during a single overload event and can only be the result of an in-flight failure of the weld resulting in the loss of oil from the engine." (Doc. 116, Ex. 11, at 8). The Peases' other expert, Douglas Herlihy ("Herlihy"), opined that fatigue failure is readily apparent from the presence of oil cooked and burned onto the flange outside of the oil drain pipe. (Doc. 111, Ex. 2, at 163).

In contrast, one of Lycoming's experts, Gary J. Fowler, Ph.D ("Fowler"), concluded that there is no "metallurgical evidence to indicate separation by a fatigue mechanism due to engine vibration" or "evidence of a progressive fracture mechanism on the flange." (Doc. 69, Ex. 3, at 5). Fowler observed that the fracture is on a slant and exhibits dimple rupture, which clearly demonstrates that overload failure caused the fracture. (Id. at 4-5). He also stressed that a scanning electron microscope ("SEM") examination of the fracture surface failed to demonstrate any crack expansion caused by fatigue. (Id. at 5).

B. Procedural History

On April 20, 2007, the Peases filed suit against Lycoming and fourteen other defendants in the United States District Court for the Middle District of Alabama. (Docs. 1-2). On April 19, 2010, the United States District Court for the Middle District of Alabama granted the Peases' motion to transfer venue and transferred the action to the United States District Court for the Middle District of Pennsylvania. (Doc. 11-3). The matter was reassigned to the undersigned on December 22, 2010. On December 29, 2010, the Peases filed an amended complaint against Lycoming. (Doc. 46). The Peases list six counts in their amended complaint: violation of Civil Air Regulation ("CAR") Part 13, et seq., Aircraft Engine Airworthiness (Count I); violation of Federal Aviation Regulation ("FAR") §§ 21.3 and 145.21 (Count II); violation of FAR Part 33 et seq. (Count III); reckless and careless conduct (Count IV); punitive conduct (Count V); and loss of consortium by Mrs. Pease (Count VI). (Doc. 46).

Lycoming filed two motions for summary judgment. (Docs. 52, 67). In its first motion (Doc. 52), Lycoming seeks summary judgment on federal preemption grounds, and in its second motion (Doc. 67), Lycoming seeks summary judgment pursuant to the Tennessee Products Liability Act of 1978 ("TPLA").*fn4 Lycoming also moves to exclude the testimony of the Peases' liability experts, Colin A. Sommer and Douglas R. Herlihy. (Docs. 65, 66). Each of these motions is ripe for disposition.

II. Applicable Standards of Review

A. Motion to Exclude Expert Witness

Admissibility of expert testimony is a question of law governed by Federal Rule of Evidence 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-89 (1993). The rule 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 education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

FED. R. EVID. 702; see also Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (explaining that the Rule 702 requirements constitute "the 'trilogy of restrictions on expert testimony: qualification, reliability and fit'" (quoting Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)). The trial judge acts as a "gatekeeper," charged with excluding unreliable expert testimony. See Calhoun, 350 F.3d at 321. Nonetheless, Rule 702 embraces a "liberal policy of admissibility," under which it is preferable to admit any evidence that may assist the trier of fact.

Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (quoting Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)).

B. Motion for Summary Judgment

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). Once the moving party demonstrates that there are no genuine issues of material fact, the burden shifts to the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(a).

Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

The court will first address the motions to exclude the expert testimony of Colin Sommer and Douglas Herlihy. (Docs. 65, 66). Then the court will address Lycoming's motions for summary judgment (Docs. 52, 67). For the reasons that follow, the court will deny the motions to exclude expert testimony, grant in part and deny in part Lycoming's motion for summary judgment on federal preemption grounds, and deny Lycoming's motion for summary judgment pursuant to the TPLA.

A. Motions to Exclude Expert Testimony*fn5

Lycoming contends that the expert testimony of both Sommer and Herlihy should be excluded. (See Docs. 65, 66). For the reasons stated below, the court holds that the expert testimony of Sommer and Herlihy is admissible.

1. Mr. Colin Sommer*fn6

Lycoming seeks to prevent the admission of Sommer's testimony on two grounds. First, Lycoming attacks Sommer's qualifications. (Doc. 81, 7-14, 19). Second, Lycoming argues that Sommer employed an unreliable method in analyzing the cause of the crash. (Id. at 14-20).

a. Qualifications

A witness may proffer an expert opinion only if he or she draws on some specialized "knowledge, skill, experience, training, or education" to formulate that opinion. FED. R. EVID. 702. The Third Circuit has construed this requirement liberally holding that a "broad range of knowledge, skills, and training qualify an expert as such." In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717, 741 (3d Cir. 1994). The Third Circuit has eschewed imposing "overly rigorous requirements of expertise and [has] been satisfied with more generalized qualifications." Id.; see also Hammond v. Intern'l Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982) (holding that an expert who sold automotive and mechanical equipment and taught automobile repair to high school students could testify in a products liability action despite a lack of formal education in engineering or physics); Knight v. Otis Elevator Co., 596 F.2d 84, 87-88 (3d Cir. 1979).

Lycoming contends that Sommer lacks the necessary qualifications or experience to offer expert testimony in this case. (See Doc. 81, at 7-14, 19). Lycoming asserts that Sommer is unqualified to offer expert testimony on "good manufacturing practice" or proffer testimony relating to design, manufacture, or certification of aircraft engines because he has never worked in manufacturing, designed an aircraft engine, or worked on any aspect of aircraft engine certification. (Id. at 7). Similarly, Lycoming argues that Sommer lacks the necessary qualifications to offer an opinion on the fracture because he is not a metallurgist. (Id. at 19).

Sommer's credentials are as follows. Sommer graduated with a degree in civil engineering with an emphasis on structural design from the University of Michigan in 1997. (Doc. 65, Ex. 1, at 14). At the end of 2002, Sommer joined his father's aviation consulting firm, Aeroscope, Inc. (Id. at 18). Sommer participated in a National Transportation Safety Board aircraft accident investigation course in 2004 and a University of Southern California aircraft accident investigation course in 2005. (Id. at 14-15). In 2010, Sommer attended the Teledyne Continental Motors Aviation Technician Advanced Training Program, which covered the maintenance practices and system failures of turbocharged aircraft engines similar to the AH1A engine found in Mr. Pease's Piper aircraft. (Doc. 109, Ex. 1 ¶ 12). As a licensed professional engineer in Michigan and Colorado, Sommer has extensive knowledge of structural design and internal component attachments. (Id. ¶ 2, 13). Sommer is a certified pilot of single engine aircrafts and has investigated over 300 accidents involving fixed-wing aircraft and rotorcraft.*fn7 (Id. ¶ 3, 13). In the course of these investigations, Sommer determines whether the pilot, owner, operator, mechanics, and manufacturer have complied with the Federal Aviation Regulations. (Id.)

Lycoming's contentions about Sommer's lack of experience in manufacturing or metallurgy impact only the weight of Sommer's testimony, not its admissibility. Third Circuit case law unequivocally holds that generalized qualifications are sufficient to meet the requirements of Rule 702. See, e.g., Pineda, 520 F.3d at 245 (holding that the district court abused its discretion by excluding the expert even though the expert may not have been the "best qualified expert or did not have the specialization that the [d]istrict [c]court deemed necessary." (quotations omitted)). Sommer's academic background and real-world experiences as a trained engineer and accident investigator render him more than qualified to testify as an expert on good manufacturing practices, the nature of the fracture, and the design, certification and manufacture of aircraft engines.

b. Reliability

Expert testimony is considered reliable when it is based upon sound methodology and technique. See id. at 247; In re Paoli, 35 F.3d at 744 (noting that a court's proper focus is not the conclusions of the expert but the principles and methodology utilized). Daubert counsels a flexible approach based upon an analysis of factors that are neither exhaustive nor definitive. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158 (1999). The court considers several factors in evaluating the reliability of an expert witnesses methodology, such as:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

In re Paoli, 35 F.3d at 742 n.8 (listing the factors deemed important by the Third Circuit and Supreme Court). The court is mindful, however, that "[t]he evidentiary requirement of reliability is lower than the merits standard of correctness." Id. at 744. Thus, the party proffering the expert need only establish by a preponderance of the evidence that the expert's opinion rests upon "good grounds." See Kannankeril, 128 F.3d at 807 (citation omitted); In re Paoli, 35 F.3d at 744-45 (stating that a judge may decide expert testimony has "good grounds" for a conclusion "even if the judge thinks that there are better grounds for some alternative conclusion, and "even if the judge thinks that a scientist's methodology has some flaws such that if they had been corrected, the scientist would have reached a different result."). In other words, when evaluating the admissibility of expert testimony, the court need not conclude "a particular scientific opinion has the best foundation, or even [that] the opinion is supported by the best methodology or unassailable research." In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999) (citation omitted).

Lycoming argues that Sommer's testimony should be excluded because he failed to provide any scientific methodology to support his conclusions. (Doc. 81, at 14, 19). Specifically, Lycoming contends that Sommer failed to test two of his hypotheses concerning the cause of the plane crash: (1) that a metal fracture of the drain tank tube caused by overstress resulted in engine power loss and (2) "that torsional oscillation of the crankshaft (torsional vibration) is critical to turbocharger drain tank overstress." (Doc. 81, at 17-18). Lycoming claims that Sommer failed to, inter alia, measure stresses that would occur during flight, determine any potential stressors on the drain tank like "stead state overload or fatigue caused by vibration," or "make any attempt to show a positive correlation between crankshaft torsional vibration and vibratory modes causing overstress in the drain can during specific engine conditions." (Id. at 17-18).

The court holds Sommer's opinions are supported by reliable methodology and general engineering principles. Sommer ruled out potential causes for the engine failure and crash by using a differential diagnosis approach.*fn8 (Doc. 109, Ex. 1 ¶¶ 8-9). The differential diagnosis approach is widely accepted as reliable under Daubert in the medical context. See, e.g., In re Paoli, 35 F.3d at 758; Clausen v. M/V New Carissa, 339 F.3d 1049, 1058-59 (9th Cir. 2003); Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir. 1998). The Tenth Circuit-the only circuit to address the question-has held that the use of the differential diagnosis approach in accident investigation is permissible under Daubert. See Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1236-38 (10th Cir. 2004). The Tenth Circuit stated that an expert employing the differential diagnosis approach must provide objective reasons for eliminating alternative causes and must provide "some independent evidence that the cause identified is of the type that could have been the cause." Id. at 1237 (citation omitted). The Tenth Circuit noted, however, that although an expert must demonstrate that other causes are improper, the expert does not need "to categorically exclude each and every possible alternative cause." Id. at 1238 n.6 (citation omitted).

The court finds Bitler persuasive in light of the application of the facts of the instant case to the factors enunciated in In re Paoli. The methodology employed by Sommer is prescribed and used by the National Transportation Safety Board School of Accident Investigation, the ICAO Manual for Accident Investigation, and the Southern California Safety Institute School of Accident Investigation and is widely accepted in the field of accident investigation and reconstruction. (Doc 109, Ex. 1 ¶ 4; Doc. 109, Ex. 2, at 69). Manuals and publications provided Sommer with detailed guidance and standards for applying his methodology. (Doc. 109, Ex. 1 ¶ 4). Moreover, Sommer has immense expertise in accident investigation, investigating over three hundred fixed wing and rotocraft accidents and developing detailed textual and visual publications on accident investigation methodology. (Id. ¶¶ 3-4).

Sommer provided objective reasons for eliminating alternative causes of the accident and presented independent evidence to support his conclusion that "[t]he tube on the oil drain tank failed due to the overhung load and the engine vibration" thereby causing the oil to leak and the turbocharger to fail. (Doc. 109, Ex. 2, at 60-61). Sommer's opinion that the flange of the oil drain tank sustained a fatigue failure due to excessive vibration is supported by his examination of the flange which showed oil residue and smearing and polishing. (Doc. 109, Ex. 2, at 42-43, 50; Doc. 109, Ex. 4, at 8). Sommer noted that oil residue and smearing are consistent with continued contact of the mating surfaces following the initiation of the fracture and inconsistent with an overload fracture.*fn9 (Id.) Similarly, Sommer's opinion that material overstress in the drain tank was caused by crankshaft torsional vibration was supported by, inter alia, his inspection and measurements of an exemplar aircraft and ...


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