The opinion of the court was delivered by: Judge Conner
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 this court are four motions in limine:
(1) the Peases' motion(Doc. 99) to preclude evidence of Mr. Pease's expired medical certificate; (2) Lycoming's omnibus motion (Doc. 101); (3) the Peases' motion(Doc. 102) to preclude evidence pursuant to the collateral source rule; and (4) Lycoming's motion (Doc. 118) to preclude expert testimony on economic damages. For the reasons set forth below, the court will deny without prejudice the Peases' motion in limine (Doc. 99)to preclude evidence of Mr. Pease's expired medical certificate (Doc. 99), Lycoming's omnibus motion in limine (Doc. 101) and Lycoming's motion (Doc. 118) in limine to preclude expert testimony on economic damages and grant in part and deny in part the Peases' motion (Doc. 102) to preclude evidence pursuant to the collateral source rule.
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 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 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 parties filed four motions in limine. (Docs. 99, 101, 102, 118). Each motion is ripe for disposition.
A. The Peases' Motion In Limine to Preclude Evidence of Mr. Pease's Expired Medical Certificate
The Peases move to preclude evidence of Mr. Pease's expired medical certificate pursuant to Federal Rules of Evidence 401, 402, and 403. The Federal Aviation Regulations ("FAR") require that pilots obtain a valid medical certificate as a prerequisite to flying. (See 14 C.F.R. § 67). In the instant case, Mr. Pease's medical certificate expired five days before his plane crash on June 5, 2005. (See Doc. 100, at 1). The Peases argue that Mr. Pease's expired medical certificate is not relevant, and that its admission would be unduly prejudicial. (Id. at 5-9). Lycoming contends that Mr. Pease's expired medical certificate is relevant to Mr. Pease's qualifications as a pilot. (See Doc. 126, at 4).
Federal Rule of Evidence 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Only relevant evidence is admissible, and generally, all relevant evidence is admissible, unless another evidentiary rule or law provides otherwise. See FED. R. EVID. 402; see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587 (1993) (noting that the "[b]asic standard of relevance under Federal Rules of Evidence is liberal one."). The court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403; see also Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 382 (2008); Coleman v. Home Depot Inc., 306 F.3d 1333, 1343-44 (3d Cir. 2002). Thus, the court must consider whether any of the dangers described in Rule 403 substantially outweigh the probative value of Mr. Pease's expired medical certificate.
The Third Circuit has cautioned that the exclusion of potentially relevant evidence pursuant to Rule 403 is an "extreme measure" at the pre-trial stage. Hines v. Consol. Rail Corp., 926 F.2d 262, 274 (3d Cir. 1991). Evidence should rarely be excluded in limine pursuant to Rule 403 because "[a] court cannot fairly ascertain the potential relevance of evidence for Rule 403 purposes until it has a full record relevant to the putatively objectionable evidence." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1999).
The court finds that exclusion of Mr. Pease's expired medical certificate is premature at this juncture. At a minimum, Mr. Pease's expired medical certificate would be relevant to rebut evidence or testimony that "Mr. Pease was a fully qualified pilot on the day of the accident." (Doc. 126, at 4). The court cannot fairly ascertain the potential relevance of Mr. Pease's expired medical certificate for Rule 403 purposes without the context of a "specific trial situation." Am. Home Assur. Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324 (3d Cir. 1985). Accordingly, the court will deny the Peases' motion to preclude evidence of Mr. Pease's medical certificate without prejudice.*fn1
B. Lycoming's Omnibus Motion In Limine
In its omnibus motion in limine (Doc. 101), Lycoming seeks to prevent admission of various service difficulty reports, airworthiness directives, and service bulletins proffered by the Peases pursuant to Rules 401, 402, 403, 404, 801, 802, and 805 of the Federal Rules of Evidence. (See Doc. 119). Lycoming asserts that this evidence is inadmissible on three primary grounds: (1) post-sale evidence is inadmissible under the Tennessee Products Liability Act of 1978 ("TPLA"); (2) the proffered evidence is irrelevant because it is not "substantially similar or casually related" to Mr. Pease's plane crash; and (3) the proffered evidence is inadmissible hearsay. (Id.) The court will address each argument seriatim.
1. Admissibility of Post-Sale Evidence Under the TPLA
Lycoming contends that all post-sale evidence is inadmissible under the TPLA.*fn2 Specifically, Lycoming argues that the relevant inquiry under the TPLA is whether the AH1A engine was either defective or unreasonably dangerous at the time it left Lycoming's control. TENN. CODE ANN. § 29-28-105(a).
The court rejects Lycoming's contention. Tennessee courts have specifically stated that post-sale accidents are admissible in products liability cases "to show the dangerous nature of the product in question."*fn3 Flax v. DaimlerChrysler Corp., No. M2005--01768--COA--R3--CV, 2006 WL 3813655, at *17 (Tenn. Ct. App. Dec. 27, 2006) (citing Winfree v. Coca--Cola Bottling Works, 83 S.W.2d 903, 905 (1935)) aff'g in part, rev'd in part by Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 543 (Tenn. 2008). Thus, clearly the TPLA does not preclude all post-sale evidence.The court holds that under the TPLA post-sale evidence is admissible if it is relevant to prove the subject product was defective or unreasonably dangerous when it left the manufacturer's control or any other fact of consequence unless it is barred by another evidentiary rule or law.*fn4
2. Relevance and Substantial Similarity
Lycoming seeks to preclude, as irrelevant, the admission of service difficulty reports of other accidents involving TIO-540 series engines, airworthiness directives promulgated by the FAA, and service bulletins issued by Lycoming. Specifically, Lycoming argues that such evidence either pertains to different TIO-540 engines and/or involves different types of engine failure. (See Doc. 119, at 7-12, 14-16).
a. Service Difficulty Reports
The Peases seek to introduce eighty-two service difficulty reports describing "failures of components related to and located adjacent to the turbocharger" in other TIO-540 model engines to show Lycoming's knowledge of the alleged design defect. (See Doc. 134, at 9). The FAA collects service difficulty reports from the aviation community to "aid owners, operators, manufacturers, and the FAA in identifying problems encountered during aircraft service." Aerosource, Inc. v. Slater, 142 F.3d 572, 575 (3d Cir. 1998).
To establish that evidence of other accidents is relevant, the proponent has the burden of demonstrating "that the accidents occurred under circumstances substantially similar to those at issue in the case at bar." Barker v. Deere & Co., 60 F.3d 158, 162 (3d Cir. 1995); Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 198 (Tenn. Ct. App. 2008). The proponent must show that there is sufficient similarity between the other accident and the proponent's theory on how his or her accident occurred "so that the admission of the evidence will make the existence of any fact that is of consequence to the determination of the action more probable." Sweitzer v. Oxmaster, Inc., No. 09--CV-5606, 2011 WL 721907, *3 (E.D. Pa. Mar. 2, 2011) (citations and quotations omitted); see also Duran, 271 S.W.3d at 198. Mere allegations of similarity are insufficient, the proponent must appraise the court of the "specific facts" of the other accidents. Sweitzer, 2011 WL 721907, at *3. The requisite similarity necessary to satisfy this foundational requirement depends on what the other accident is offered to prove.*fn5 Barker, 60 F.3d at 162 (noting that the substantial similarity requirement is "especially important" when offered to prove the existence of a design defect); Evans v. Pa. R.R. Co., 255 F.2d 205, 210 (3d Cir. 1958).
The court cannot determine the potential relevance of the service difficulty reports at this time. The relevance of each service difficulty report can only be determined by carefully examining the specific facts of each accident. Therefore, the court will conduct an evidentiary hearing to resolve this issue prior to trial. At the hearing, the Peases will have an opportunity to lay a proper foundation for each proffered service difficulty report and the court will determine whether the prior accidents occurred under circumstances substantially similar to those at issue in the above-captioned matter. See Barker, 60 F.3d at 163.
b. Airworthiness Directives and Service Bulletins
The Peases proffer various airworthiness directives and services bulletins for three purposes: (1) to rebut that the AH1A engine is safe; (2) to demonstrate the feasibility of precautionary measures; and (3) to rebut that Lycoming acted with the imprimatur of the FAA. (Doc. 134, at 20-25). Airworthiness directives are legally enforceable rules promulgated by the FAA to correct unsafe conditions existing in an aircraft or aircraft component parts. See 14 C.F.R. § 39.1; Melville v. Am. Home Assur. Co., 584 F.2d 1306, 1315 (3d Cir. 1978). Similarly, service bulletins are issued by manufacturers to notify owners/mechanics of maintenance that must be performed to address reported post-sale equipment problems. (See, e.g., Doc. 135, Ex. 10).
As an initial matter, the court must determine if airworthiness directives and service bulletins promulgated after the sale of the subject AH1A engine are precluded by Federal Rule of Evidence 407. Rule 407 states, in pertinent part:
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: . . . a defect in a product or its design . . . . But the court may admit this evidence for another purpose, such as impeachment or--if disputed--proving ownership, control, or the feasibility of precautionary measures.
FED. R. EVID. 407. Rule 407 is inapplicable to the proffered airworthiness directives because the directives were issued by the FAA and not Lycoming. Furthermore, the advisory committees' notes to Rule 407 explicitly provide that [e]vidence of measures taken by the defendant prior to the 'event' causing 'injury or harm' do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product.*fn6 See FED. R. EVID. 407 advisory committee's notes (1997) (citing Chase v. Gen. Motors Corp., 856 F.2d 17, 21-22 (4th Cir. 1988)). Therefore, Rule 407 does not prohibit the introduction of service bulletins issued by Lycoming prior to Mr. Pease's accident. Additionally, Rule 407 does not preclude admission of service bulletins issued after Mr. Pease's plane crash if offered to prove the feasibility of precautionary measures. See FED. R. EVID. 407.
Consequently, the court must determine whether the airworthiness directives and service bulletins promulgated after the sale of the subject AH1A engine are relevant. Lycoming asserts that the airworthiness directives and service bulletins proffered by the Peases are irrelevant because they implicate different TIO-540 engine models and defects unrelated to the purported cause of Mr. Pease's plane crash. (See Doc. 119, at 14). The court cannot evaluate Lycoming's contention without examining each proffered airworthiness directive and service bulletin in the context of the purpose for which they are offered. The court will require that the Peases connect the proffered airworthiness directives and service bulletins to their theory of liability in the case sub judice. Thus, the Peases will have to demonstrate that the airworthiness directives and service bulletins involve substantially similar circumstances and that the evidence ...