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McLean v. Air Methods Corporation, Inc.

United States District Court, Second Circuit

January 24, 2014

DAVID McLEAN and JUSTINE VIETS-McLEAN, as next friends of Eliza McLean, a minor, and Individually, Plaintiffs,
v.
AIR METHODS CORPORATION, INC., Defendant.

MEMORANDUM AND ORDER (DOCS. 72, 73, 74, 75)

J. GARVAN MURTHA, District Judge.

I. Introduction

Defendant Air Methods Corporation, Inc. ("Air Methods") has filed motions to exclude the testimony of Plaintiffs' experts Mike Clingerman, Stephen Hood Greene, and William Gamble. (Docs. 72, 73, 74.) Plaintiffs David McLean and Justine Viets-McLean, as next friend of their daughter Eliza McLean, and individually (the "McLeans"), oppose these motions and have filed a motion to strike Air Methods' experts Dr. Jonathan Muraskas and Douglas E. Stimpson. (Doc. 75.) Defendant opposes this motion. The facts in this case are discussed as they apply to the challenges of the expert testimony. For the reasons set forth below, the motions are granted in part and denied in part.

II. Discussion

A. Expert Testimony Under Daubert and the Federal Rules of Evidence

The decision to admit or exclude expert testimony lies in the Court's discretion. Zaremba v. Gen. Motors Corp. , 360 F.3d 355, 357 (2d Cir. 2004). Federal Rule of Evidence 702 governs the admissibility of expert testimony. Under that Rule, the Court has discretionary authority to determine reliability in light of the facts and circumstances of the particular case. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 158 (1999). If the Court finds the evidence admissible, the opposing party may still contest the weight of the evidence within the adversarial system. Amorgianos v. Nat'l R.R. Passenger Corp. , 303 F.3d 256, 267 (2d Cir. 2002). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 596 (1993). Rule 702 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.

Rule 702's requirement that the evidence assist the trier of fact to understand the evidence or determine a fact in issue is essentially a requirement that the evidence be relevant. Daubert , 509 U.S. at 591. In the context of scientific evidence, the issue of relevance also has been called "fit." Id . The fit of the facts and methodology to the conclusion does not have to be exact. "A minor flaw in an expert's reasoning or a slight modification of an otherwise reliable method will not render an expert's opinion per se inadmissible. The judge should only exclude the evidence if the flaw is large enough that the expert lacks good grounds' for his or her conclusions." Amorgianos , 303 F.3d at 267 (internal quotation marks and citation omitted).

Rule 702 also requires the expert testimony be the product of "reliable principles and methods." The Daubert Court set forth five factors for a court to consider in making this determination: (1) whether the theory or technique can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) whether the technique's operation is subject to standards governing its application; and (5) the general acceptance within the relevant scientific community. 509 U.S. at 593-94. This list is not exclusive, no single factor is dispositive, and the application of factors depends on the particular circumstances of the particular case. Kumho Tire , 526 U.S. at 150; see Blanchard v. Eli Lilly & Co. , 207 F.Supp.2d 308, 316 (D. Vt. 2002) ("[T]he specific factors that Daubert mentioned' need only be considered when doing so will help determine that testimony's reliability.'" (quoting id. at 142)). The Daubert principles extend equally to non-scientific testimony. Kumho Tire , 526 U.S. at 150.

Finally, the testimony must be based on sufficient facts or data. The term "data" encompasses the reliable opinions of other experts and "facts or data" is broad language allowing an expert to rely on hypothetical facts supported by the evidence. Fed.R.Evid. 702 advisory committee's note. "[E]xpert testimony should be excluded if it is speculative or conjectural; the [a]dmission of expert testimony based on speculative assumptions is an abuse of discretion." Major League Baseball Props., Inc. v. Salvino, Inc. , 542 F.3d 290, 311 (2d Cir. 2008) (internal quotation marks and citation omitted)). The Court's inquiry must focus on the methodology used by the expert, and not the conclusions reached. Daubert , 509 U.S. at 595. The Court, however, is not obligated to accept a conclusion that does not reliably flow from the facts available and methodologies used. Amorgianos , 303 F.3d at 266.

B. Application of the Standard

1. Mike Clingerman

The McLeans disclosed Mike Clingerman as an expert in helicopter maintenance and inspection. Clingerman is currently a maintenance manager at a facility that maintains and repairs aircraft. (Doc. 80-2 at 2.) Clingerman holds a Federal Aviation Administration ("FAA") Inspection Authorization and has over 20 years of experience in general aviation maintenance ...


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