EVIDENTIARY ISSUES IN AVIATION CASES

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1 EVIDENTIARY ISSUES IN AVIATION CASES CHRISTOPHER S. MORIN MURRAY, MARIN & HERMAN, P.A. 101 E. Kennedy Boulevard; Suite 1810 Tampa, Florida TH ANNUAL SMU AIR LAW SYMPOSIUM February 2003 DALLAS, TEXAS

2 Christopher S. Morin* EVIDENTIARY ISSUES IN AVIATION CASES TABLE OF CONTENTS I. INTRODUCTION II. NTSB ACCIDENT REPORTS & TESTIMONY III. SIMILAR FACT EVIDENCE IV. AVIATION EXPERTS V. FORENSIC COMPUTER-GENERATED EXHIBITS VI. CONLCUSION I. INTRODUCTION Applying the law of evidence is what separates lawyers from the citizenry; it is our currency in the courtroom. The law of evidence is a friend of the trial lawyer and it gives judges the opportunity to be fair. 1 The above quote speaks volumes about the law of evidence and its importance to trial lawyers. This paper discusses the law of evidence as it relates to several select evidentiary topics that often arise in aviation cases. II. NTSB ACCIDENT REPORTS & TESTIMONY A. Accident Reports: The following federal statute and regulation illustrate the relevant federal provisions that govern the use and admissibility of NTSB aviation accident reports in civil suits. 49 U.S.C. 1154(b): Reports No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report. 2

3 49 C.F.R : Definitions -... Board accident report means the report containing the Board s determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format ( briefs of accidents). Pursuant to... the Federal Aviation Act of no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports. A Factual accident report means that the report containing the results of the investigator s investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports. 1. Board s Accident Report vs. Investigator s Factual Report : In Chiron Corp. and Perspective Biosystems, Inc., v. NTSB, 2 the Court considered the petitioner s request to change the Board s actual report for fear of its impact in future litigation. The case arose out of the September 5, 1996 cargo fire onboard Federal Express flight 1406 in which the crew was able to make an emergency landing. 3 The fire, however, destroyed the aircraft and most of the cargo. 4 The NTSB s investigation focused on Chiron s DNA synthesizer cargo as the possible source of the fire s ignition. 5 When the NTSB could not be persuaded to focus on other possible causes of the fire, Chiron set out to discover other possibilities for itself and filed formal petitions requesting Federal Express to release the cargo manifest, which FedEx refused to do on the basis that it was privileged proprietary information. 6 Chiron then filed suit to enforce FedEx s disclosure of the cargo information and argued that the information will reveal evidence that would cause the NTSB to change its report such that Chiron will not be disadvantaged if the Board s report is admitted in the lawsuit FedEx filed against them. Characterizing Chiron s position as an idol concern, the Court concluded that since no part of the Board s actual report would be admissible in a civil suit, Chiron would suffer no 3

4 injury by its inability to change it. 7 Beginning with an analysis of the federal statutory framework governing NTSB reports, the Court pointed out the distinction made in 49 C.F.R wherein the Board s report of probable cause is distinguished from the investigator s factual report. 8 Since by statute no part of the Board s actual report is admissible in a civil suit, and because it was the Board s report Chiron hoped to change, the Court concluded that Chiron would suffer no harm by its inability to change it. 9 The Court went on to add that although earlier cases had focused on an exception for the admissibility of investigator s reports, no exception analysis was necessary any longer since now codified an investigator s factual report as admissible because it is not a report of the Board Admissibility of Board s Report for Rebuttal: Although not an aviation case, Hixon Corp., v. Norfolk Southern Railway Co., 11 involved a train accident case wherein the Court admitted portions of the NTSB s findings for purposes of rebutting evidence introduced by Norfolk Southern -- evidence which included a letter written by the Director of the NTSB, Jim Hall, praising Norfolk s cleanup efforts. 12 The case involved an arsenic acid spill and during its case-in-chief Norfolk read deposition testimony from a witness that included a letter from Jim Hall, the Director of the NTSB, who praised Norfolk for its cleanup efforts. 13 Hickson objected to the testimony and argued that, if admitted, it would open the door to introduce portions of the NTSB s formal findings. 14 The Court overruled Hixon s objections and allowed the evidence to come in. During Hixon s cross examination of a witness several days later, it moved for the admission of an excerpt of the NTSB s findings. 15 The court, upon considering Norfolk s objections based on 49 U.S.C. 1154(b) s statutory bar to the admissibility of NTSB reports, allowed the evidence to come in for the limited purpose of rebutting the Hall letter previously introduced by Norfolk. After reviewing the statutory bar to 4

5 admissibility of Board reports, the Court noted that it would not have admitted portions of the NTSB report but for the circumstances created by Norfolk in introducing Director Hall s letter over Hixon s objection. 16 Because of the circumstances created by Norfolk, the Court explained that it had to admit otherwise inadmissible evidence to cure the prejudicial inference invited by Norfolk. 17 Under the invited error doctrine, the Court found itself justified in admitting otherwise inadmissible evidence because its inadmissibility was attributable to the actions of the party, Norfolk, seeking to exclude it. 18 This case represents a rather unique circumstance in which the trial court was persuaded to admit the Board s findings, which by statute may not be used in any suit or action. 19 It also reflects the broad discretion trial courts enjoy in deciding evidentiary issues. Since an evidentiary ruling is reviewed for abuse of discretion, a premium is placed on winning the evidentiary issue at the trial level since a favorable decision, even if inappropriate, is unlikely to be disturbed on appeal. B. Testimony of Board Employees: Most aviation law practitioners have at one point or another had an opportunity to request permission from the NTSB to depose an NTSB investigator in charge of any given accident that is the subject of civil litigation. The request for Board testimony is typically responded to by the NTSB s Office of General Counsel in a letter like that attached as Exhibit 1. As the enclosed NTSB response letter makes clear, the federal provisions governing Board employee testimony, like those governing accident reports, serve to significantly regulate the taking, use, and admissibility of Board testimony. The most pertinent Title 49 regulations governing Board testimony, together with a brief description of what each section addresses, is set forth below: 5

6 835.1: The general purpose of Part 835 is prescribing policies and procedures for Board testimony preventing the Board from becoming embroiled in controversial issues (i.e. civil litigation) and prohibiting the discovery of opinion testimony : Regulating the scope of testimony only as to factual information obtained during investigation, and prohibiting testimony of matters beyond the scope of their investigation or concerning expert or opinion testimony : Board employee may refer to and cite from the factual accident report while testifying; however, employee is expressly precluded from using the Board s accident report for any purpose : Deposition of Board employee is authorized in lieu of court appearance by the investigator. A copy of the transcript is typically requested to be furnished at counsel s expense to the Board s Office of General Counsel : Subpoenas should not be served and, pursuant to 49 C.F.R. part 837, Board employees are not required to bring reports, their files, or any materials to their deposition. In Coffey v. Cherokee Aviation, Inc., the Tennessee Court of Appeals considered whether the trial court erred in allowing the NTSB investigator s deposition to be read into evidence, especially since it contained the statement that the examination of the engine compartment area revealed no evidence of an in-flight fire. 20 The case involved the fatal crash of a Piper intending to land at Hilton Head Island Airport. 21 Defendant, Cherokee Aviation, had done an annual inspection on the aircraft and Plaintiffs alleged Cherokee s negligence in inspecting the fuel lines led to and caused the in-flight fire. 22 Cherokee maintained that no in-flight fire occurred. Plaintiffs argued that the investigator s report was inadmissible under the federal 6

7 regulations, under the hearsay exclusion, and that the statement did not fall within the public records and reports hearsay exception. 23 Apparently, the objectionable sentence in the investigator s deposition transcript was one that the investigator read from his corresponding factual investigation report. 24 After analyzing the federal rules governing an NTSB employee s testimony in conjunction with the rules regarding the admissibility of NTSB factual reports, including the investigator s right to refer and cite to his report during his deposition, the court found that the evidence was not barred by the applicable federal rules. 25 The Court further stated that the testimony in reference to the factual accident report was admissible under the public records and report hearsay exception. Interestingly, the factual report itself was never introduced into evidence, but was merely attached as an exhibit to the investigator s deposition, parts of which were read into evidence at trial. 26 III. SIMILAR FACT EVIDENCE Black Letter Rule: Evidence of similar happenings may be admissible to prove (1) the existence of a physical condition, situation or defect; (2) a defect or dangerous condition caused the injury; (3) the risk that defendant s conduct created; and (4) that defendant had notice of the danger. For all but notice uses, courts generally adhere to a strict substantially similar requirement for admissibility. In notice cases, however, the similarity requirements are significantly relaxed. 27 A. Evidence of Defect: In Torrington Co. v. Stutzman, 28 the Texas Supreme Court considered the issue of whether there was legally sufficient evidence of a manufacturing defect to support a judgment against the manufacturer Defendant, Torrington Co. The case arose out of the crash of Navy 7

8 helicopter that killed two Marines in July The crash was caused by a failure of a 05 bearing that was part of the helicopter s tail rotor assembly. The 05 bearing was used primarily in military applications; however, in addition to the -05 bearing the manufacturer also produced a 03 bearing that was used primarily in civilian helicopters. 30 The jury found that the bearing was defectively manufactured and awarded significant compensatory damages on behalf of the Plaintiffs. 31 Torrington appealed and argued that there was insufficient evidence for the jury to find a manufacturing defect. The Texas Supreme Court affirmed the jury s finding of a manufacturing defect based, in part, 32 on a history of problems with the 03 and 05 bearings, including evidence of a similar accident in 1991 involving the failure of a 03 bearing in a civilian helicopter. 33 Following that crash, it was determined that the 03 bearing suffered from contamination during manufacture. It was further determined the 05 bearings, made in the same location, suffered from the same problem and that the manufacturing process for the bearings was unchanged when the 05 bearing involved in the instant crash was made. 34. Based on the evidence from the similar 1991 accident involving a 03 bearin, and given that the manufacturing process suffered the same problem and was unchanged for the 05 bearings, the Court concluded that there was sufficient evidence to support the jury s finding of a manufacturer s defect (contamination) in the bearing. 35 NOTE: A bearing was manufactured for use in the hangar assembly of a UH-1N a helicopter made for the military. The 05 bearing was greased during the manufacture with Mobil 28 grease and permanently sealed; thus, it was not possible to re-grease it. Fafnir manufactured the failed number 5 bearing prior to See Appellate 517, which also includes corporate succession discussion. At trial, Ingersoll-Rand objected to the evidence 8

9 of the earlier 1991 accident, which the appellate court overruled because the evidence was relevant to the issue of negligence. (36 S.W. 3d ). In 1985 Ingersoll acquired Fafnir and created Fafnir-Torrington, a division of the Torrington Company to manufacture the 5 bearings. B. 20 years Prior Not Too Remote In Time: Evidence of a similar accident that occurred almost 20 years prior to a 1994 helicopter crash was held admissible in the case of Lopez v. Three Rivers Electric Co-operative. 36 In Lopez, Three Rivers Electric Co-op. ( Three Rivers ) was the defendant in a wrongful death action following the 1994 crash of an Army Reserve CH-47 Chinook Helicopter. 37 Four members of the U.S. Army Reserve had departed on a flight training mission and witnesses reported seeing the helicopter flying over the middle of the Osage River at an altitude of approximately 100ft. The helicopter struck power lines owned by Three Rivers that were suspended across the river and crashed, killing all four crew members onboard. 38 Plaintiffs brought suit against Three Rivers on the theory that Three Rivers was negligent in failing to warn pilots of the danger posed by the power lines spanning across that location on the river. The jury found in favor of the Plaintiffs, but attributed some comparative fault to the flight crew. 39 On appeal, Three Rivers contended, among other things, that the trial court erred in admitting a 1975 accident involving an airplane that flew into the power lines at the same location as the helicopter accident. 40 Because the validity of a state statute was also an issue on appeal, the case was transferred to the Missouri Supreme Court. The Missouri Supreme Court reviewed the trial court s decision to admit the 1975 accident and concluded that the trial court did not abuse its discretion in admitting evidence of 9

10 the prior accident since it occurred under substantially the same circumstances and resulted from the same cause. 41 The Court also noted that the remoteness of time of the prior accident goes to the weight of the evidence, and not its admissibility since the accident otherwise met the requirements of similarity-- it was of sufficient like character, occurred under substantially similar circumstances, and resulted from the same cause. 42 C. Substantially Similar Established Through Expert Testimony: In a recent case out of Louisiana, Bertrand v. Air Logistics, Inc., 43 expert testimony from a metallurgist was significant in establishing the substantially similar requirement for the admissibility of prior accidents. On November 1, 1997, Plaintiff Bertrand was employed as a drilling supervisor for an oil and gas company and was being transported between drilling platforms in the Gulf of Mexico in a Bell 206 L-3 helicopter equipped with an Allison 250-C30 engine. 44 The engine lost power in flight and the pilot performed an autorotation landing in the Gulf. Mr. Bertrand suffered significant lower back injuries, which later led to surgery, depression, and post-traumatic stress disorder. 45 The case was further complicated when, as a result of the accident, Plaintiff committed suicide. The issue with respect to the cause of the accident was the alleged failure of the turbineto-compressor coupling ( pea shooter ) in the engine that was manufactured by Allison but was maintained and installed into the helicopter by co-defendant, Air Logistics. At trial, the court allowed evidence of three prior in-flight accidents that involved the same model pea shooter at issue in the instant accident. 46 Plaintiff and Air Logistics put on expert testimony from several metallurgical engineers who theorized that an error in the manufacturing process of the pea shooter led to cracking, which combined with high stress in the splines of the turbine area caused the accident. 47 The jury found in favor of the Plaintiff and apportioned liability between Air 10

11 Logistics and Allison. On appeal, Allison argued that the trial court erred in admitting the three prior accidents involving the same model pea shooter. 48 In reviewing the evidence to determine whether they were substantially similar, the Court relied heavily on evidence from a metallurgist who testified: The cracking appears substantially similar, both in the fracture features in the microscope and the orientation down the splines. They have the same types of cracks, partial cracks at the spline s roots.... so from a metallurgical... not from looking at all of the evidence about the maintenance and everything else. But just looking at the metallurgical part, I can t distinguish them from the incident one. 49 Based on the expert s testimony, the Court held that the trail court properly admitted evidence of the three prior accidents since they were substantially similar metallurgically and could not be distinguished from each other. 50 IV. AVIATION EXPERTS F.R.E. 702: If scientific, technical, or other specialized knowledge will assist the trier or fact to understand the evidence or to determine a fact and 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. In addition to the plain language of Rule 702, trial lawyers are now well aware of the watershed 1993 United States Supreme Court case of Daubert wherein the Court held that Rule 702 imposes on the district court a gatekeeping role to ensure that expert testimony is both reliable and relevant. 51 Under Daubert, the following factors are relevant to the trial court s determination of whether there is a valid scientific basis for expert testimony: (1) whether the theory can be and has been tested; (2) whether it has been subject to peer review; (3) whether it 11

12 has a known or potential rate of error; and (4) whether it has gained general acceptance by the relevant community. 52 Because aviation cases often involve expert testimony of a scientific, technical, or specialized knowledge, reported aviation cases continue to add to the body of case law involving challenges (so-called Daubert hearings ) to expert testimony. Several recent colorful examples from aviation cases illustrate the manner in which federal courts have scrutinized expert testimony. A. The Cherry Picking Expert: In Barber v. United Airlines, Inc., 53 the Seventh Circuit upheld the trial court s exclusion of a plaintiff s expert that cherry picked facts used to support his opinion. The facts of the case arise out of a May 3, 1996 United Airlines flight from New Orleans to Chicago, which encountered moderate to severe turbulence for several moments during the latter part of the flight. 54 The fasten seatbelt sign had been turned off and Plaintiff Barber, whose seatbelt was loosely fastened, was thrown forward, striking her head and shoulders against the seat-back in front of her. Plaintiff claimed to suffer significant injuries in the accident and filed suit against United approximately two years after the incident. 55 To support her case, Plaintiff retained an aviation expert to testify that United was negligent in flying through an area where thunderstorms were predicted and because the pilots failed to properly use the radar and avoid the turbulence-causing weather system. 56 United claimed the turbulence was undetectable clear air turbulence and not thunderstorm-related turbulence. 57 Prior to trial, United filed a motion in limine to exclude Plaintiff s expert from testifying. The trial court granted United s motion and Plaintiff presented her case without expert testimony, but following the close of Plaintiff s case the district court granted United s motion 12

13 for judgment as a matter of law. 58 On appeal, Plaintiff raised the issue of the trial court s error in precluding her expert from testifying at trial. 59 The Seventh Circuit reviewed the district court s gatekeeping role under Daubert and found the exclusion of Plaintiff s expert proper because Plaintiff s expert had rejected weather data that contradicted his opinion, could not explain the basis for ignoring certain facts and data while accepting others, and generally had accepted some evidence that suited his theory while ignoring other evidence that did not. 60 The Court held that because Plaintiff s expert cherry-picked the facts he considered to render an expert opinion, the district court correctly barred his testimony because such a selective use of facts fails to satisfy the scientific method and Daubert, and it thus fails to assist the trier or fact. 61 B. Arm Chair Experts: As with scientific expert testimony, technical, non-scientific expert testimony must also be reliable and the expert witnesses properly qualified in order to be admissible. 62 In H.C. Smith Investments, LLC v. Outboard Marine Corp., the Plaintiff moved to exclude testimony of four defense witnesses intending to testify on two issues: (1) whether a complete pre-purchase inspection or merely a Part 135 inspection (maintenance records only) was required; and (2) the age and cause of corrosion that was later discovered on the subject aircraft. 63 The case involved a dispute that arose following the sale of 1969 Hawker-Siddeley aircraft in which the Defendant was employed to perform a pre-buy inspection. Approximately one year after the inspection was completed and the sale consummated, substantial corrosion was found during a 1200 hour/24 month inspection that resulted in the aircraft being grounded. 64 Since the dispute involved whether a complete pre-purchase inspection was contemplated, which should have discovered the corrosion if it existed, and the origin/cause of the corrosion, the Defendant was prepared to 13

14 offer the testimony of four expert witnesses on these topics, all of whom Plaintiff moved to exclude. 65 Even in cases where the Daubert criteria do not apply because expert testimony is more technical than scientific, the Supreme Court in Kuhmo has indicated that such testimony must still be reliable to be admissible under Rule This analysis requires the district courts to use intellectual rigor in determining whether non-scientific expert opinions are reliable, even though the Daubert factors are not helpful. 67 With regard to Plaintiff s challenge to Defendant s expert on the first issue concerning the intended scope of the inspection (complete inspection or maintenance records only), the Court concluded that the experts did not have scientific, technical, or other specialized knowledge to assist the trier of fact on this issue, principally since it involved the experts assessing another witness s credibility and the intent of the parties, both of which are not normally subjects for expert testimony. 68 In addition, the Court found that the experts qualifications did not support the proposed testimony, stating they should be excluded under Rule 403 since [t]here is no reason to hold a four-ring expert testimony circus on the subject of... credibility when it would detract from the main event-- the testimony and cross-examination of [the experts]. 69 The court reached a similar result with respect to the second issue concerning the admissibility of corrosion testimony. 70 The court first found that the experts were wholly unqualified by knowledge, skill or experience under Rule 702 to venture opinions on this issue. 71 None of the witnesses were corrosion experts or metallurgist, and none had any relevant classes, training or expertise on the topic. 72 The court went on to note that corrosion of a metal is a scientific phenomenon, which, pursuant to Daubert, requires the expert to adhere to the scientific 14

15 method for reliability. 73 Since the experts performed no corrosion testing, nor had they published papers or done any scholarly research in the field of corrosion, metallurgy, or chemistry, they could not satisfy a Daubert analysis. 74 For these reasons, the Court granted Plaintiff s motion in limine. V. FORENSIC COMPUTER-GENERATED EXHIBITS With the proliferation of economical yet highly sophisticated computers and complex animation software, it comes as no surprise that technology is playing an ever increasing role in the trial of aviation cases. Although photographs, sketches, diagrams, and charts and the like have roots well-established in the body of demonstrative and illustrative evidence law, the admissibility of forensic, computer-generated exhibits has only recently begun to garner increased attention from litigants and the courts. Several examples within the last decade arose out of complex aviation product liability cases and they serve to provide a good illustration of the admissibility issues associated with forensic animations, including how the courts have ruled on the most common objections raised by the opponents to such evidence. A. Re-creation vs. Illustration: A common objection to the use of computer-generated forensic animations at trial is that they are inaccurate re-creations rather than illustrations. Indeed, this was the major issue raised by the Defendant in Datskow v. Teledyne Continental Motors. 75 Datskow was a product liability case that arose out of an airplane crash that killed all four people onboard. Defendant, Teledyne Continental Motors ( TCM ), was sued on a theory that the aircraft s engine suffered from a defect that caused the crash. 76 After a month-long trial, the jury returned a verdict in favor of the Plaintiffs and awarded approximately $400, in total damages. 77 TCM filed a 15

16 post-trial motion and contended that the court erred in admitting Plaintiffs computer-generated video animation that showed where Plaintiffs theorized the fire began inside the engine and how it spread. 78 In particular, TCM objected to the video on the grounds that it was overly prejudicial since it was, according to TCM, more of a re-creation than an illustration of Plaintiff s expert s testimony. 79 At trial, the Court admitted the video over TCM s objections and gave a cautionary instruction to the jury that the animation was merely a means to help illustrate the expert s testimony, and that it was not intended as a re-creation of the accident. 80 In its post-trial Order, the court re-evaluated the manner in which the exhibit was offered by Plaintiffs, TCM s objections to it, and the court s cautionary instruction given at trial and concluded again that the animation was properly admitted as illustrative evidence of the expert s testimony. The court discounted TCM s contention that the jury would give the video undue weight as a re-creation and distinguished between an illustration and a re-creation as the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else s opinion of what happened. 81 Because the court made the distinction clear to the jury through its instructions, the court ruled that there was no reason for the jury to credit the illustration any more than they credit the underlying opinion. 82 B. Relevance, Unfair Prejudice, and Hearsay Objections: Several objections were made to the admission of two computer-animated videos offered by co-defendant General Motors ( GM ) in the case of Jones v. Kearfoot Guidance and Navigation Corp. 83 Jones was a wrongful death action arising out of a 1992 crash of a McDonnell Douglas H369D Helicopter equipped with an Allison 250-C20B engine manufactured by GM s Allison Gas Turbine Division. 84 Plaintiffs alleged the crash occurred as 16

17 a result of loss of power due to defects in the engine and filed a motion in limine to exclude two animated video exhibits offered by GM that contradicted Plaintiff s theory. 85 The first video was an animation of an eyewitness s observation of the helicopter moments before it crashed; the second video exhibit was an animated engine failure simulation based on opinions from GM s pilot expert regarding flight characteristics of the helicopter when confronted with an in-flight engine failure. 86 The second exhibit was based on data generated by McDonnell Douglas flight testing of an actual 369 helicopter. 87 Plaintiffs filed a motion in limine to exclude both videos on the basis that they were irrelevant, constituted inadmissible hearsay, and were unfairly prejudicial re-creations of the accident. 88 With regard to the relevance objections to both videos, the court noted the broad discretion trial courts enjoy in determining the relevance of proffered evidence under Federal Rule of Evidence 401. Rule 401 states, Relevant evidence means 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. 89 Because Plaintiffs did not dispute that the eyewitness s testimony was relevant, the only issue was whether the computer-animated video exhibit of what the eyewitness saw was relevant. The court overruled the objection by stating that the video was simply a demonstrative device to aid the eyewitness in describing what he observed. 90 Similarly, the Court also found that the second video, GM s animated engine failure, was also relevant for the purpose of the jury better understanding GM s expert s testimony. Plaintiffs hearsay objection as to the eyewitness video was premised on the witness s out-of-court statements to the NTSB regarding what the witness saw on the day of the accident. 91 Although the court acknowledged that the animation is based on a portrayal of the witness s 17

18 proposed testimony of what he observed, the video itself is not necessarily hearsay since GM intends to use the video as an illustrative aid to the witness s testimony at trial. 92 Because the animation would be used to illustrate testimony, the court found the video not to be hearsay, but merely a classic demonstrative exhibit. 93 Likewise, the same analysis applied to the simulated engine failure video. The court found that it too did not constitute hearsay because the video is not a statement offered to prove the truth of the matter asserted; rather it is offered to illustrate the expert witnesses s theory. 94 Finally, the court considered Plaintiffs objection that the videos were unduly prejudicial re-creations of the accident and because the second video (simulated engine failure) contained an inaccurate and misleading account of the helicopter s flight characteristics. 95 GM argued that because both videos were being offered as illustrations of testimony and not as re-creations of the accident, they were not unduly prejudicial, confusing or misleading. The court agreed and cited the practical distinction set forth by the Datskow court wherein it stated that it is the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else s opinion of what happened. 96 Because GM was offering the exhibits for illustrative purposes, and because the court would issue the jury a cautionary instruction that the animations were not meant to be re-creations, the court found that Plaintiffs would suffer no undue prejudice if the exhibits were admitted. 97 Accordingly, Plaintiffs motion in limine to preclude GM s use of both video exhibits was denied. 98 VI. CONCLUSION Offers and objections to NTSB accident reports and testimony, similar fact evidence, expert witnesses, and computer generated exhibits continue to confront the aviation trial lawyer. trial lawyer have their place in the trial of aviation matters. These evidentiary topics discussed above, although by no means exhaustive, provide a good illustration of the most common 18

19 evidentiary issues g:\library\christopher morin - correspondence\smu paper for 2003.doc * Attorney in the Tampa, Florida offices of Murray, Marin & Herman, P.A, specializing in aviation defense litigation that includes representation of aviation insurers, airlines, airframe and component manufacturers, aircraft and airport operators, fixed base operators and a wide array of aviation service providers in matters throughout Florida, the Southeast, the Caribbean and Latin America. 1 Edward D. Ohlbaum, Jacob s Voice, Esau s Hands: Evidence-Speak for Trial Lawyers, 31 Stet. L. Rev. 7 (2001) F.3d 935 (D.C. Cir. 1999). 3 See id. 4 See id. 5 See id. 6 See id. 7 See id. at See id. at Id. at 941; see also Daniels v. Tew Mac Aero Services, Inc., 675 A.2d 984 (Maine 1996). (providing a good illustration of the admissibility analysis of NTSB reports pursuant to federal statutes, the hearsay exclusion, and the hearsay exception for public records and reports). 10 See id. (agreeing with decisions from the 5 th, 10 th, and 9 th circuits. See Thomas Brooks v. Burnett, 920 F.2d 634 (10 th Cir. 1990); accord Jetcraft Corp. v. Flight Safety Int l, 16 F.3d 362 (10 th Cir. 1993); Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996 (5 th Cir. 1998); Benna v. Reeder Flying Serv., Inc., 578 F.2d 269 (9 th Cir. 1978) WL (E.D. Tenn. 2002). 12 See id. at *1. 13 See id. 14 See id. at *1. 15 See id. at *3 16 See id. at *5. 17 Id. 18 See id C.F.R WL (Tenn. Ct. App.) 21 See id. 22 See id. 23 See. id. 24 See id. 25 See id. at * See id. 27 MCCORMICK ON EVIDENCE 200 (John William Strong ed. 4 th ed. 1992) S.W. 3d 829 (Tex. 2001). 29 See. id. at

20 30 See id. at 834. The 05 bearing was manufactured in 1984 by Fafnir Bearings, a division of Textron, Inc. In 1985, Fafnir was purchased by Ingersoll-Rand, Torrington s parent corporation, and became a division of Torrington. 31 See id. at The similar 1991 accident involving a defective 03 bearing was only part of Court s analysis. The Court also considered testimony by various experts regarding the type of contamination, its origin, and the cause of the accident. Torrington maintained that the bearing grease may have been contaminated at the time of the accident, but it was not contaminated when it was sold. 33 See id. at See id. 35 See. id. at S.W. 3d 151 (Mo. 2000). 37 See id. at See id. 39 See id. 40 See. id. at Id. at See id. at So. 2d 1228 (La. 3d Cir. Ct. App. 2002). 44 See. id. at See id. 46 See. id. 47 See. id. at See. id. at Id. at See id. 51 Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct (1993). In 1999, the Supreme Court in Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999) extended the Daubert principles of reliability to technical or other specialized knowledge and indicated that expert testimony must have a reliable basis pursuant to Rule 702, even if the Daubert factors can not be applied S. Ct. at WL (7th Cir. 2002). 54 See id. at *1. 55 See id. 56 See id. 57 See id. 58 See. id. 59 See id. at *2. 60 Id. at *2; see also Michaels v. Avitech, Inc., 202 F. 3d 746 (5 th Cir. 2000) (excluding expert testimony and stating that where expert testimony is necessary to establish the likely cause of an aircraft disaster, a necessary ingredient of such theorizing is the exclusion of alternative causes). 61 Id. at *2 (citing Fed. R. Evid. 702). It is worth moting that the court also found that the trial court did not abuse its discretion by refusing to allow the expert to testify concerning the steps United could have taken to avoid the turbulence or to warn passengers. The fact that thunderstorms are known to cause turbulence, and that United s policy is to re-route flights to 20

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