United States District Court, D. Vermont
DAVID McLEAN and JUSTINE VIETS-McLEAN, as next friends of Eliza McLean, a minor, and Individually, Plaintiffs,
AIR METHODS CORPORATION, INC., Defendant.
MEMORANDUM AND ORDER Doc. 71
J. GARVAN MURTHA, District Judge.
In October 2012, Plaintiffs David McLean and Justine Viets-McLean, as next friend of their daughter Eliza McLean, and individually (collectively, the "McLeans"), brought this diversity action
In federal court. (Doc. 1.) The McLeans allege negligence against Corporate Jets, Inc. ("Corporate Jets"), which Defendant Air Methods Corporation, Inc. ("Air Methods") acquired in 2007. (Doc. 70.) The claim arises from a delay in the Corporate Jets helicopter flight carrying Eliza shortly after her birth in northern Michigan in 2001. Air Methods moves for summary judgment dismissing the case in its entirety. (Doc. 71.) The McLeans oppose the motion. (Doc. 85.) For the reasons below, Air Methods' motion is denied.
II. Factual Background
On July 26, 2001, Eliza McLean was born prematurely at Northern Michigan Hospital in Petoskey, Michigan. (Doc. 71-2 ¶ 1; Doc. 1 ¶ 34.) Her parents, who live in Vermont, were in Michigan for a family reunion. (Doc. 1 ¶ 35.) A neonatologist recommended transferring Eliza to the University of Michigan Hospital in Ann Arbor, which had a high-frequency ventilator. (Doc. 71-2 ¶ 2; Doc. 88 ¶ B.) The University of Michigan agreed to accept Eliza and sent a "Survival Flight" helicopter to pick her up. (Doc. 71-2 ¶ 8; Doc. 88 ¶ B.) The helicopter flew north to Petoskey from Ann Arbor in approximately 95 minutes. (Doc. 71-2 ¶ 9; Doc. 88 ¶ I.) Corporate Jets was the contractor that provided piloting and maintenance services for the University of Michigan's Survival Flight helicopter transport program. (Doc. 71-2 ¶ 3; Doc. 88 ¶¶ C-D.)
At approximately 1:59 a.m. on July 27, 2001, the helicopter took off from Petoskey carrying the pilot, Eliza, and four University of Michigan medical personnel. (Doc. 71-2 ¶ 10; Doc. 88 ¶ J.) Two minutes later, the helicopter aborted its flight and immediately landed because of a burning smell on board. (Doc. 71-2 ¶ 11; Doc. 88 ¶ K.) The medical team then decided to transport Eliza in an ambulance toward Ann Arbor and meet a second Survival Flight helicopter en route. (Doc. 71-2 ¶ 12; Doc. 88 ¶ L.) As the ambulance headed south, the second helicopter took off from Ann Arbor but stopped in Saginaw, Michigan to refuel. (Doc. 71-2 ¶¶ 12-13; Doc. 88 ¶¶ L, M, T.) The helicopter then flew from Saginaw to meet Eliza and the medical team at the West Branch Community Airport in West Branch, Michigan. (Doc. 71-2 ¶ 13; Doc. 88 ¶ M, T.) At approximately 4:18 a.m., the helicopter took off from West Branch with Eliza and the medical team, arriving at the University of Michigan Hospital at approximately 5:15 a.m. (Doc. 71-2 ¶ 14; Doc. 88 ¶ N.) The McLeans allege that during the last 25 minutes of the flight, Eliza suffered oxygen desaturations causing a serious brain injury. (Doc. 72-1 ¶ 15; Doc. 88 ¶ O.)
Much of the remaining issues are disputed. The McLeans contend that if the first helicopter had not been forced to abort its flight, Eliza's transport would have taken 95 minutes instead of more than three hours. (Doc. 71-2 ¶ 16.) Had this been the case, the McLeans assert Eliza would have had access to care at the University of Michigan Hospital during the oxygen desaturations that would have prevented her injury. Id . ¶ 17. The McLeans also allege the second helicopter's stop to refuel unnecessarily delayed Eliza's arrival. Id . ¶ 20. They claim that if the helicopter had left Ann Arbor with more fuel, it could have met Eliza and the medical team at one of three other airports, any of which would have meant an earlier arrival at the hospital. (Doc. 88 ¶ T.)
Largely through experts, the parties dispute whether Corporate Jets negligently maintained the helicopter and if so, whether that was the cause of the burning smell. The McLeans contend, and Air Methods contests, that the source of the smell was the Modular Medical Cabinet, or "med tower, " in the helicopter. (Doc. 71-2 ¶ 18; Doc. 71-1 at 6.) The med tower is a removable piece of equipment containing air and suction pumps, oxygen regulators, an I.V. solution warmer, A.C. outlets, and an electrical inverter. Id . ¶ 22; Doc. 88 ¶ V.
A. Legal Standard
Summary judgment is appropriate only where the parties' submissions show that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. "[T]he district court must draw all factual inferences in favor of, and take all factual assertions in the light most favorable to, the party opposing summary judgment." Coollick v. Hughes , 699 F.3d 211, 219 (2d Cir. 2012). The court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried. See, e.g., Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986); Rule v. Brine, Inc. , 85 F.3d 1002, 1011 (2d Cir. 1996). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Fischl v. Armitage , 128 F.3d 50, 56 (2d Cir. 1997) (internal quotation marks and citation omitted). Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment. See, e.g., Fed.R.Civ.P. 56(e) 1963 advisory committee's note; Anderson , 477 U.S. at 255.
In this diversity action, the Court applies federal procedural law and Vermont substantive law. Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). The Court has already performed its procedural gate-keeping duty under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), and the Federal Rules of Evidence - for the most part, the parties' expert testimony is admissible. See McLean v. Air Methods Corp., Inc., No. 1:12-cv-241-jgm, 2014 WL 280343 (D. Vt. Jan. 24, 2014) (Doc. 90). The experts will assist the trier of fact as to issues outside common knowledge, and "the opposing party may still contest the weight of the evidence within the adversarial system." Id. at *1 (citing Amorgianos v. Nat'l R.R. Passenger Corp. , 303 F.3d 256, 267 (2d Cir. 2002)); see Daubert , 509 U.S. at ...