West v . Bell Helicopter, et a l . CV-10-214-JL 9/9/13 P

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kurt West

v. Civil N o . 10-cv-214-JL Opinion N o .

Bell Helicopter Textron, Inc. et al.

MEMORANDUM ORDER

In December 2008, a helicopter piloted by the plaintiff,

Kurt West, crashed to the ground in Bow, New Hampshire. West

survived the crash, but suffered injuries. He then brought this

products liability action against the manufacturer of the

helicopter, defendant Bell Helicopter Textron, Inc.; the

manufacturer of its engine, defendant Rolls Royce Corporation;

and the successor-in-interest to the manufacturer of the

helicopter’s electronic control unit (“ECU”), defendant Goodrich

Pump & Engine Control Systems, Inc. This court has subject-

matter jurisdiction over this action between West, a

Massachusetts citizen, and the defendants, citizens of other

states, under

(a)(1) (diversity).

Though many of the underlying facts of this case remain

sharply disputed as trial nears, the parties more or less agree

to the following. Since obtaining his license in the late 1990s,

West has worked as a helicopter pilot. In late December 2008, a

few days before Christmas, West took off from an airfield in Connecticut, piloting a Bell 407 helicopter equipped with a Rolls

Royce engine, which was in turn equipped with a “Full Authority

Digital Engine Control” or “FADEC” system, including an ECU,

manufactured by a successor-in-interest to Goodrich. The purpose

of West’s solo flight was to move the helicopter to a hangar in

Pembroke, New Hampshire, owned by West’s employer, JBI

Helicopters. Before West’s flight, the helicopter had been kept

outside in wintry conditions at the airfield in Connecticut.

About 45 minutes into the flight, the helicopter’s engine

lost power, requiring West to attempt to land through a technique

known as “autorotation.” West succeeded in putting the

helicopter down on a residential street, but the force of the

landing caused him injuries, including, he claims, a worsening of

his pre-existing gastrointestinal syndrome. West also suffers

from post-traumatic stress disorder (“PTSD”) as a result of the

crash, though the parties dispute the severity of that condition.

The parties also dispute what caused the engine in West’s

helicopter to lose power, or “flame out.” West alleges that the

flame-out resulted from a defect in the FADEC that caused the

closure of a valve supplying fuel to the engine--specifically,

that the ECU mistakenly registered an errant electric signal from

the circuit board as an “overspeed” event necessitating that the

fuel supply be cut. This is known as a “false overspeed solenoid

2 activation,” or “FOSSA,” event. The defendants attack this

theory on several grounds. They argue that the engine lost power

because it ingested ice or snow left on the helicopter as a

result of its improper cleaning by West and a co-worker before

West took off from the airfield in Connecticut. The defendants

also say that West improperly executed the autorotation

procedure, adding to the impact of the landing.

The parties have filed several motions seeking to exclude

proffered expert testimony and other evidence from the upcoming

jury trial. The court heard oral argument on these motions on

the record following the final pre-trial conference in this

matter. The court’s rulings on those motions follow.

I. Expert challenge motions

West and the defendants challenge much of each other’s

anticipated expert testimony. “The touchstone for the admission

of expert testimony in federal court litigation is Federal Rule

of Evidence 702.” Crowe v . Marchand,

3 , 17 (1st Cir.

2007). Under that rule,

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 (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. As the structure of this rule suggests,

before the factfinder in a case can consider expert testimony

over the adverse party’s objection, the trial judge, serving as

“gatekeeper,” must determine whether the testimony satisfies the

relevant foundational requirements. See Daubert v . Merrell Dow

Pharms., Inc.,

(1993).

While the party seeking to introduce the testimony bears the

burden of proving its admissibility,

at 5 9 2 , the burden is

not especially onerous, because “Rule 702 has been interpreted

liberally in favor of the admission of expert testimony.” Levin

v . Dalva Bros., Inc.,

8 , 78 (1st Cir. 2006). Like all

evidence, expert testimony is admissible only if it relevant,

i.e., if it has any tendency to make a fact of consequence to the

action more or less probable than it would be without the

testimony, Fed. R. Evid. 401. See, e.g., United States v . Pena,

(1st Cir. 2009). Applying these standards, the

court makes the following rulings on the parties’ motions

challenging each others’ experts.

A. Defendants’ motions to limit Chen’s testimony (doc. nos. 1 5 8 , 1 6 0 , 163)

The defendants move to exclude several anticipated opinions

from Peter Chen, a mechanical engineer West has retained to

4 testify as to the cause of the accident. The defendants’

objections to these opinions go largely to their weight, rather

than their admissibility. The one exception is Chen’s proffered

opinion that the revised version of the FADEC (released at the

time of West’s accident but not installed in his helicopter)

would have prevented the crash. This opinion appears to based on

the theory that the revised FADEC would have warned West of the

FOSSA event but, even if that is s o , there is no reason to

believe that the warning would have enabled West to avoid the

crash or to lessen its impact. So that opinion is excluded as

irrelevant. See Fed. R. Evid. 4 0 1 , 402. But these motions are

otherwise denied insofar as they seek to limit Chen’s testimony.

B. Defendants’ motions to limit Bloomfield’s testimony

(doc nos. 1 5 8 , 159)

The defendants move to exclude several anticipated opinions

from John Bloomfield, a systems engineer West has retained to

testify as to the cause of the accident. Many of the defendants’

objections to Bloomfield’s expected testimony depend either on

their view of the anticipated trial evidence, which West

disputes, or their characterization of Bloomfield’s deposition

testimony, which the court does not entirely share. The

exceptions are Bloomfield’s opinions that (1) ice and snow did

not cause the crash, since he acknowledged at his deposition

5 that, given his lack of expertise with aircraft engines, he has

no opinion on that subject; in any event, this opinion is also

cumulative to Chen’s, (2) a planned upgrade to the capacitors in

the ECU would have prevented the crash, an opinion that West does

not defend in his objection to the motion, and (3) the revised

FADEC would have prevented the crash, which is inadmissible for

the reason set forth at Part I.A, supra. Accordingly, the

motions are granted as to those opinions, but otherwise denied.

C. Defendants’ motion to limit Dr. Agarwal’s testimony

(document n o . 170)

West has long suffered from gastrointestinal (“GI”)

problems, including, for at least seven years prior to the crash,

intermittent abdominal pain and loose stools, and, for about 19

months or so before the crash, constipation. West reported, in

fact, that prior to the accident he was having only one bowel

movement each week and that “every once in a while” he would

experience constipation, accompanied by nausea and vomiting, that

was relieved only by an enema. About six months prior to the

accident, West was diagnosed with pelvic floor dysmotility, a

progressive weakening of the muscles surrounding the anus that

work to expel stool, resulting in chronic constipation.

West has retained D r . Suresh Agarwal to testify as to

whether the helicopter crash caused West’s pre-existing GI

6 problems to worsen. D r . Agarwal, now the chief of trauma, acute

care surgery, and burn and surgical care at the University of

Wisconsin Hospital, previously held a similar position at Boston

University Medical Center, where he practiced for nearly ten

years. He has also held academic appointments at both

institutions. D r . Agarwal practices both trauma surgery

(treating patients suffering from injuries caused by external

forces) and acute care surgery (treating patients suffering from

emergent conditions like gall bladder disease, obstructed

hernias, and a variety of colonic diseases). While at Boston

University, D r . Agarwal also maintained a “fairly busy elective

practice in which [he] took care of basically anything that was

in the abdomen.”

1. Causation opinion

Based on reviewing West’s medical records, and speaking with

him for an hour or so by telephone, D r . Agarwal has formed the

opinion that the helicopter crash “caused, or significantly

contributed to causing, [an] exacerbation” in West’s GI condition

so that he “has virtually lost all ability to pass solid waste on

his own,” i.e., without assistance from an enema. D r . Agarwal

opines that “[i]t is well-established in [his] own experience and

in the medical literature that local impact to the abdomen, as

7 well as the body’s systemic response to trauma generally, can

worsen functional gastrointestinal disorders” (emphasis added).

West maintains that, in reaching the opinion that the crash

contributed to an exacerbation of West’s GI condition, D r .

Agarwal simply employed the “standard scientific technique,

widely used in medicine, of identifying a medical ‘cause’ by

narrowing the more likely causes until the most likely culprit is

isolated.” Baker v . Dalkon Shield Claimants Trust,

5 1 ,

252-53 (1st Cir. 1998). This technique is known as “differential

diagnosis,”

and the defendants do not challenge its validity

in general. Nor do they seek to exclude D r . Agarwal’s opinion

that trauma to the abdomen is a recognized cause of the worsening

of a GI disorder like West’s. Instead, the defendants argue that

Dr. Agarwal did not reliably rule out another potential cause of

the alleged exacerbation in West’s GI condition, namely, the

natural progression of the disease.

At his deposition, D r . Agarwal explained that, while pelvic

floor dysmotility is indeed “a progressive disease,” it “usually

. . . takes decades to get to the point where you require colonic

decompression with enemas,” as West did after the accident. Dr.

Agarwal described that level of the disease, in fact, as “usually

something that you see in 80-year-olds, not 40-year-olds.” At

8 the time of the crash, West was in only in his early 40s, and had

been suffering from chronic constipation for less than two years.

In challenging D r . Agarwal’s resulting opinion that the

trauma of the crash, rather than the natural progression of

West’s disease, is likely responsible for the state of his GI

condition at present, the defendants object that D r . Agarwal’s

view of the “usual” progression of pelvic floor dysmotility is

unsupported by “sufficient facts or data,” as required by Rule

702. Specifically, the defendants argue that D r . Agarwal based

his view solely “on the symptom-progression timeline of nine

patients” he has seen “who allegedly had the same GI condition as

[ ] West,” but whose “symptoms did not progress as quickly as”

his. The defendants maintain that D r . Agarwal’s experience with

such a small group of patients cannot serve as a “reliable

barometer” for the typical progression of pelvic floor

dysmotility--particularly when, as D r . Agarwal acknowledged, he

referred those patients on to subspecialists, and therefore did

not personally observe the progress of their condition. (Dr.

Agarwal also acknowledged that, in forming his opinion, he did

not review those patients’ charts, but relied on his “anecdotal

memory of what they told [him] about their symptoms and the

progression of their symptoms.”)

9 But the universe of evidence that D r . Agarwal has identified

as support for his view of the usual progression of pelvic floor

dysmotility syndrome is not so limited. The defendants emphasize

Dr. Agarwal’s testimony that, during the nine years or so he has

practiced, “[a]pproximately one patient per year or so comes to

[him] with problems related to pelvic dysmotility” (which works

out to around nine patients) and he did “not treat those

patients” but usually referred them to the colorectal surgeons in

his practice. Yet D r . Agarwal also testified that, in his

experience, he had “seen people over a ten-year period, and [ ]

never seen them go from a mild to a severe form” of the condition

during that time.

Moreover, D r . Agarwal also testified that he had relied on

medical articles and textbooks, explaining at one point that he

had “examined the timeline of disease for most of these patients

from the works of other people . . . and found that this is a

slow progressing problem” so that “most patients don’t

automatically go from mild disease to severe disease.” Later in

his deposition, in fact, D r . Agarwal identified two specific

articles that “refer to the evolution of the disease process” or

to “how people’s disease pattern progresses.”1

1 For reasons that are unclear to the court, West did not submit, or otherwise refer t o , these articles in his objection to the defendants’ motion challenging D r . Agarwal’s opinions.

10 This testimony suffices to show, at least at the pre-trial

stage, that D r . Agarwal’s opinion ruling out the natural

progression of West’s pelvic floor dysmotility as the cause of

his post-accident symptoms is based on sufficient facts and data-

-namely, his personal experience in treating patients with that

condition on a long-term basis, as well as the articles

describing the typical evolution of the disease. While, as just

outlined in part, D r . Agarwal’s deposition testimony on that

subject is arguably self-contradictory on some points and vague

on others, the Court of Appeals has cautioned that “‘[w]hen the

factual underpinning of an expert’s opinion is weak, it is a

matter affecting the weight and credibility of the testimony,’”

not its admissibility. Milward v . Acuity Specialty Prods. Grp.,

Inc.,

1 , 22 (1st Cir. 2011) (quoting United States v .

Vargas,

(1st Cir. 2006) (further quotation

marks omitted)).

This court nevertheless recognizes that the defendants’

cross-examination of D r . Agarwal in the trial setting might serve

to clarify some of his earlier testimony in a way that undermines

his clinical experience and academic research as support for his

view of the typical progression of pelvic floor dysmotility.

Accordingly, the court will provide the defendants with the

opportunity to conduct a voir dire examination of D r . Agarwal

11 outside the presence of the jury, if they wish, and to renew

their motion to exclude D r . Agarwal’s causation opinion at that

point. In the meantime, however, the defendants’ motion is

denied insofar as it seeks to exclude that opinion. The

defendants’ motion is granted insofar as it seeks to prevent D r .

Agarwal from offering opinions on a number of subjects that, at

his deposition, D r . Agarwal admitted he is not qualified to or

does not intend to offer. West has not argued that any such

opinions are nevertheless admissible.

2. Supplemental report

At his deposition, D r . Agarwal testified that West’s GI

problems did not begin worsening until July or August 2009, some

seven months after the crash. While D r . Agarwal acknowledged

that a worsening of GI symptoms would typically occur with “a

couple months” of the trauma that produced them, he attributed

the delay in the exacerbation of West’s symptoms to intestinal

surgery he underwent several weeks after the crash, in February

2009 (but which had been scheduled before the crash as an attempt

to ameliorate West’s then-existing GI problems).

Following D r . Agarwal’s deposition, however--and the

disclosure of a report from one of the defendants’ medical

experts opining that, if the December 2008 crash had in fact

caused West’s GI problems to get worse, the worsening would

12 likely have presented itself before the February 2009 surgery--

Dr. Agarwal issued a supplemental report opining that, in fact,

such a worsening had appeared. Specifically, D r . Agarwal stated

that, in contrast to his condition before the crash, West was not

“experiencing unassisted bowel movements in that five and half

week period” between the crash and the surgery, but that his

“bowel movements were accomplished with the use of colonic

cleansing irrigations.”

The defendants argue that D r . Agarwal should not be

permitted to testify to these “new opinions” at trial because

they contradict D r . Agarwal’s testimony at his deposition.

Through the supplemental report, however, D r . Agarwal was not

trying to correct his deposition testimony, but his original

expert report. And, as West points out, the Federal Rules of

Civil Procedure contemplate that a party may supplement a

disclosure, including an expert report, “in a timely manner if

the party learns that in some material respect the disclosure . .

. is incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1)(A)

(emphasis added). So the court could prevent D r . Agarwal from

testifying to his changed understanding of West’s post-accident

GI symptoms only i f , first, the report was not supplemented in a

timely manner and, second, the delay in supplementation was

neither substantially justified or harmless, see Fed. R. Civ.

13 37(c)(1). The supplementation was in fact timely under the

applicable deadline for supplemental expert reports set forth in

this court’s scheduling order and, in any event, the court can

discern no harm to the defendants from learning of D r . Agarwal’s

changed understanding of West’s post-accident medical condition

in the supplemental report instead of in the initial report.

Again, D r . Agarwal’s opinions did not change.

So the defendants’ request to prevent D r . Agarwal from

testifying as to that changed understanding as a basis for his

opinion that the accident caused West’s GI condition to worsen is

denied. The defendants, of course, are free to cross-examine D r .

Agarwal on his changed understanding.

D. Defendants’ motion to limit Ford’s testimony (document n o . 168)

The parties agree that West suffers from post-traumatic

stress disorder (“PTSD”) as a result of the crash, though they

disagree as to its severity. West has retained Charles Ford, a

psychiatrist, to testify as to the severity of West’s PTSD. The

defendants object to Ford’s opinion that, as a result of the

PTSD, West faces the risk of a shorter life expectancy. While,

in their motion and supporting papers, the defendants challenged

this opinion as unreliable under Rule 7 0 2 , Bell made an

additional point at oral argument: that, “[i]n accordance with

14 the holdings in other jurisdictions, New Hampshire does not

recognize a right to recovery of compensation, as a separate

element of damages, for the shortening of a person’s life

expectancy as a result of an injury.” Richard B . McNamara, Tort

& Insurance Practice, in 8 New Hampshire Practice § 11.13, at

11-14 (3d ed. 2003).

As support for this view, Judge McNamara’s treatise relies

on a New Hampshire case, Ham v . Maine-New Hampshire Interstate

Bridge Authority,

6 8 , 275-76 (1943), which, though

decided some 70 years ago, remains good law, so far as this court

can tell, c f . Nichols v . Estabrook,

(D.N.H.

1989) (quoting Ham for the proposition that New Hampshire does

not recognize “hedonic” damages, i.e., damages for the value of

life itself). Other authorities agree that “reduction of life

expectancy is not itself a compensable element of damages.”

Restatement (Second) Torts § 924 cmt. e, at 526 (1979); see also,

e.g., Downie v . U.S. Lines Co.,

4 4 , 346-47 (3d Cir.

1966) (applying federal maritime l a w ) ; Farrington v . Stoddard,

6 , 101 (1st Cir. 1940) (applying Maine l a w ) ; In re

Joint E . & S . Dist. Asbestos Litig.,

(E.D.N.Y. 1989) (applying New York l a w ) ; 22 Am. Jur. 2d Damages

§ 235, at 221 (2003). While there is authority to the contrary,

see, e.g., Otani ex rel. Shigaki v . Broudy,

9 2 , 200

15 (Wash. 2004) (Sanders, J., dissenting and collecting cases), this

court has no reason to believe that the New Hampshire Supreme

Court would adopt that position, in light of its holding to the

contrary in Ham.

So West cannot recover for his allegedly shortened life

expectancy under New Hampshire law. Nor is West’s life

expectancy relevant to any other issue in the case: he makes no

claim for lost future earnings, and cannot present a claim for

future medical expenses in light of his lack of sufficient

evidence discounting those expenses to net present value, see

infra Part II.C.1. Because Ford’s opinion as to West’s risk of a

shortened life expectancy is irrelevant, see Fed. R. Evid. 4 0 1 ,

the defendants’ motion to exclude it is granted.

The defendants also challenge Ford’s opinion that, if West’s

GI problems have worsened since the crash, his PTSD contributed

to that worsening. But the defendants do not challenge the

notion that PTSD can exacerbate a patient’s pre-existing GI

problems, or Ford’s qualifications to give that opinion in light

of his extensive experience in treating PTSD. Instead, the

defendants argue principally that, because Ford is not a

gastroenterologist, he cannot opine that West’s GI symptoms in

fact worsened after the crash, or that other factors were not

responsible for that worsening. Ford can, however, rely on D r .

16 Agarwal’s opinions on those subjects, and “such reliance goes to

the weight, not to the admissibility of the expert’s opinion.”

Ferrara & DiMercurio v . S t . Paul Mercury Ins. Co.,

, 9

(1st Cir. 2001). The defendants’ motion is denied insofar as it

seeks to prevent Ford from testifying that West’s PTSD

contributed to a worsening of his GI symptoms.

E. West’s motions to limit Albert’s and Stimpson’s testimony and to exclude evidence of cellphone use (document nos. 203, 243)

1. Cellphone use

Bell intends to offer expert opinion testimony from Vernon

Albert, a flight instructor, that West’s flight pattern was

consistent with the pilot’s use of a cellphone, and that, by

using his phone during flight, West carelessly distracted himself

from piloting. In objecting to these opinions, West argues that

“neither Albert nor any other witness should be permitted to

testify about [West’s] cellphone use at all,” given the lack of

evidence that his use of a cellphone during flight contributed to

the crash, or caused West’s injuries from the crash to be worse

than they otherwise would have been. As West points out, while

he made or received several calls during the flight, his last

call concluded more than 10 minutes before the flameout in his

engine occurred. Moreover, the defendants have proffered no

evidence that, prior to the flameout, West could have done

17 anything in flight that would have prevented the helicopter from

flaming out, from crashing as a result of the flameout, or from

causing the injuries he claims to have suffered in the crash.

Instead, the defendants argue that, based on West’s use of

his phone to make and receive calls earlier in the flight, the

jury can draw the inference that West was using his cellphone

later in the flight (and thus closer in time to the flameout) for

purposes other than making or receiving calls, such as texting or

browsing the Internet. In the court’s view, that would be

impermissible speculation, rather than a permissible inference.2

And, even assuming that the jury could rationally infer that West

was making some use of his phone at the time of the flameout, the

defendants have proffered no evidence that, but for that conduct,

West could have prevented the helicopter from crashing, or

lessened the impact of the crash. So the fact of West’s

cellphone use--or Albert’s opinion that it distracted West from

his piloting duties--simply has no relevance to the issues of

fault or causation in this case.3 See Fed. R. Evid. 401. West’s

2 The defendants acknowledge that they have no direct evidence that West was using his cellphone to text or browse the Internet during that time. Nor do they dispute West’s assertion that his cellphone records show that his last call concluded more than 10 minutes prior to the flameout. 3 Despite their suggestion at oral argument, the defendants also cannot introduce evidence of West’s cellphone use to show his character for carelessness, see Fed. R. Evid. 404(a)--unless, of course, West opens the door to that subject.

18 motion to exclude Albert’s anticipated opinions as to West’s

cellphone use is granted.

West’s cellphone use during flight, however, is relevant to

a different issue: his ability to observe the behavior of the

helicopter during the portion of the flight preceding the

flameout. West himself says that, during that time, he flew

“without incident or problem”--a statement on which Chen has

expressly relied in opining that the flameout was not caused by

an ingestion of snow or ice. So West’s account of no “incident

or problem” prior to the flameout appears to be relevant to the

cause of the crash, a pivotal issue in the case. In deciding

whether to credit that account, the jury can consider West’s

ability to observe any such “incident or problem,” including

whether that ability was impaired by his use of his cellphone.

Yet the court acknowledges that the record is not fully

developed on this point (it may b e , for example, that the

“problem” resulting from an ingestion of ice or snow would be so

obvious that West would have noticed it regardless of his

cellphone u s e ) , so the relevance of West’s cellphone use may need

to be re-evaluated during trial. Based on the present record,

though, the court rules that West’s cellphone use is admissible

for the limited purpose of assessing his ability to observe the

behavior of the helicopter up until the ten minutes or so prior

to the flameout. If that ruling stands, West may request a

19 limiting instruction to that effect. See Fed. R. Evid. 105.

West’s motion to exclude evidence that he used his cellphone

during the flight is denied.

2. Albert’s other opinions

West also challenges two of Albert’s other opinions: that

West inadequately de-iced the helicopter before taking off, and

improperly executed the autorotation procedure in landing.4

West’s objection to the second of these opinions goes to its

weight, not its admissibility. As to the first of the opinions,

Albert can testify that, in de-icing the helicopter, West used

non-standard products, and that a reasonable pilot in West’s

position should have known that his procedures in preparing the

helicopter for flight were insufficient to ensure its safety.

But, as Bell acknowledges, Albert cannot testify as to the

efficacy of the de-icing products that West actually used,

because he is not an expert in such matters, see Fed. R. Evid.

702, nor can Albert testify as to what West actually knew, see,

e.g., Philbrick v . eNom, Inc.,

5 2 , 365 n.18

(D.N.H. 2009) (“one witness may not testify to what was in the

head of another”). West’s motion to exclude Albert’s non-

4 At oral argument, West suggested that this opinion was irrelevant because, as a matter of law, any deficiency in West’s execution of the autorotation procedure neither bars nor limits his recovery. The court will take up that argument, which has yet to be briefed by either party, at the appropriate time.

20 cellphone opinions is granted in part and denied in part.

3. Stimpson’s opinions

Bell has designated Douglas Stimpson, an accident

reconstructionist, to testify as to the defendants’ theory that

West’s engine flamed out due to an ingestion of ice or snow

rather than a FOSSA event. West challenges two of Stimpson’s

subsidiary opinions: that regulations promulgated by the Federal

Aviation Administration (“FAA”) require the de-icing of an

aircraft in accordance with its manufacturer’s instructions, and

that West did not comply with those instructions in de-icing the

helicopter prior to his flight.

As West points out, “[e]xpert testimony proffered solely to

establish the meaning of a law is presumptively improper,” United

States v . Mikutowicz,

5 , 73 (1st Cir. 2004), so an

expert cannot opine as to the meaning of federal regulations,

Bartlett v . Mut. Pharm. Co.,

8 2 , 188 (D.N.H.

2010). Stimpson cannot testify as to what the FAA regulations

require. He can, however, testify that West’s de-icing efforts

did not comply with the manufacturer’s instructions. West argues

that Stimpson’s criticisms of those efforts are irrelevant or

unfairly prejudicial because they focus on the cleaning of the

helicopter’s exterior, even though Stimpson believes the ice that

caused the flameout originated from the inside of the engine

cover. There is evidence, however, that the ice could have

21 originated from outside of the engine cover as well. Stimpson’s

testimony as to West’s efforts in de-icing the craft’s exterior,

then, is relevant, and its probative value outweighs any

prejudicial effect. See Fed. R. Evid. 403.

Finally, West challenges Stimpson’s opinion that West was

medically unqualified to fly at the time of his accident. That

opinion is irrelevant, for the reasons explained in the next

section. See infra Part I.F. West’s motion to limit Stimpson’s

opinions is granted in part and denied in part.

F. West’s motion to exclude Parmet’s testimony (document n o . 204)

Bell has designated a physician, Alan Parmet, to testify

that, had West disclosed his pre-existing GI problems to the

examiner who medically cleared him to fly on behalf of the FAA,

West would not, in fact, have received his medical clearance to

fly prior to his fateful trip in late December 2008. As West

points out, this opinion (leaving aside his other objections to

it) is irrelevant. There is no evidence that West’s pre-existing

GI problems caused or contributed to the crash, and the

defendants cannot avoid liability for their own actions (if any)

in causing the crash on the theory that, had West disclosed those

problems to the medical examiner and lost his flight

certification as a result, he never would have been in the

helicopter in the first place. As this court has explained, such

22 a theory establishes but-for causation, but not proximate

causation, and both are necessary to prove causation in a tort

case, Elmo v . Callahan,

4 4 , 20-22--here, specifically,

to prove a comparative negligence defense.

At oral argument, Bell essentially disclaimed that it

intended to use Parmet’s opinion to support any such defense.

Instead, Bell argued that it should be able to use Parmet’s

opinion to rebut West’s anticipated efforts to cast himself as a

careful pilot who, in essence, always followed the rules.5 As

already noted, if West in fact affirmatively puts his character

for carefulness at issue, he may open the door to such evidence.

See note 3 , supra. But unless and until that happens--and the

defendants receive a ruling from the court confirming that

development--Parmet’s opinion is irrelevant. West’s motion to

exclude it is granted.

G. West’s motion to limit Gores’s and Winn’s testimony

(document n o . 205)

Goodrich has designated Mark Gores, a “component failure

analyst,” and Robert Winn, a consulting engineer, to opine as to

the cause of the crash. In relevant part, Goodrich expects Gores

5 Bell also suggests that West’s alleged failure to disclose his GI problems to the medical examiner bears on his credibility as a witness. But Bell cannot use extrinsic evidence of West’s conduct--like Parmet’s opinion that West must have misled the examiner--for that purpose. See Fed. R. Evid. 608(b).

23 to opine that, if the FOSSA event identified by West’s experts in

fact occurred, evidence of it would have shown up in post-

accident testing of the ECU, and expects Winn to testify that

West inadequately de-iced the helicopter prior to takeoff.

West’s objections to Gores’s opinions go to their weight, not

their admissibility. Goodrich explains that Winn will not

testify as to the adequacy of the de-icing efforts, but simply as

to his understanding of them insofar as that informs his opinion

that an ingestion of ice or snow caused the flameout (an opinion

West has not sought to exclude). That is permissible. See Fed.

R. Evid. 703. West’s motion to limit the opinions of Gore and

Winn is denied.

H. West’s motion to limit Atherton’s, Souza’s, and Piercy’s opinions (document n o . 206)

West moves to limit the anticipated testimony of Malvern

Atherton, Gary Souza, and Thomas Piercy, Rolls Royce employees

(or, in Piercy’s case, an outside consultant) whom the company

has designated to give certain expert opinions. West’s objection

to Atherton’s disclosed opinion--that data from the incident

recorder from West’s helicopter is consistent with the ingestion

of ice and inconsistent with a FOSSA event--goes to the weight of

that opinion, not its admissibility.

As he does with respect to Stimpson, see Part I.E.3, supra,

West argues that Piercy cannot testify that West improperly de-

24 iced the helicopter. Rolls Royce explains that Piercy will not

give that opinion, but simply state his understanding of the

de-icing efforts insofar as that informs the opinion he will

give, i.e., that the engine flamed out due to ice ingestion.

Again, that is permissible under Rule 703. See Part I.G, supra.

The court also disagrees with West that testimony about his

efforts to de-ice the exterior of the plane is unfairly

prejudicial. See Part I.E.3, supra. Piercy opined, in fact,

that ice from the exterior of the aircraft could have broken off

and entered the engine chamber during flight. West’s motion to

limit Atherton’s and Piercy’s opinion testimony is denied.

But West’s motion to limit Souza’s opinion testimony is

granted, at least in part. First, West challenges Souza’s

opinion that, based on West’s cellphone records from the day of

the crash, he spent no more than three hours preparing the

helicopter for flight. The court agrees with West that the

amount of time a person could have spent on one task in the face

of evidence that he was doing other tasks at or around the same

time is in no way a proper subject for expert testimony. See

Fed. R. Evid. 702. Second, West challenges Souza’s anticipated

opinion that the de-icing was insufficient--an opinion which

Rolls Royce does not appear to defend in its objection. So

West’s motion to exclude those opinions is granted (though, like

Piercy, Souza can testify as to his understanding of the de-icing

25 efforts insofar as it forms the basis for some other opinion

which is itself admissible).

West also objects to Souza’s anticipated opinion that Rolls

Royce acted reasonably in investigating another helicopter crash,

at Fort Rucker, Alabama. In response, Rolls Royce seems to agree

that Souza will not testify that its investigation was

“reasonable” but only that it followed the same procedures that

the company generally follows in investigating crashes of

helicopters equipped with its engines. That would not appear to

constitute expert testimony, since it relies on Souza’s personal

knowledge of how Rolls Royce conducts accident investigations

rather than any “specialized” knowledge. See Fed. R. Evid. 702.

So West’s motion is granted insofar as it seeks to prevent Souza

from characterizing Rolls Royce’s investigation of the Fort

Rucker crash as “reasonable” but is otherwise denied.

I. Motions in limine

A. Other accidents, pre-accident remedial measures, and post-accident remedial measures (document n o . 239)

1. Other accidents

In products liability cases, “[e]vidence of prior accidents

is admissible only if the proponent of the evidence shows that

the accidents occurred under circumstances substantially similar

to those at issue in the case at bar.” Moulton v . Rival Co., 116

2 , 26-27 (1st Cir. 1997) (quotation marks and ellipse

omitted). Invoking this rule, Rolls Royce seeks to exclude

evidence of several other crashes involving the same model

helicopter that was involved in his crash. These crashes

occurred i n , or over, Rhein Ruhr, Germany (1998), Padova, Italy

(1999), Fort Irwin, Calif. (2002), the Gulf of Mexico (2003),

Fort Rucker, Alabama (2007), and Loma Bonita, Mexico (2012). 6 In

urging that West has failed to show that any of these helicopter

accidents was “substantially similar” to his, Rolls Royce makes

several arguments. The court does not find them persuasive.

First, Rolls Royce argues that, because West “cannot first

establish what caused his accident, it is impossible for him to

show that any other accidents were substantially similar,”

(emphasis omitted), so evidence of those other accidents must be

excluded. Not surprisingly, this court has previously rejected

this kind of circular argument, i.e., “seeking to prevent [a

party] from even arguing [his] theory on the ground that it lacks

6 In his objection, West refers to other accidents, including in Iraq, India, Maryland, and at some unnamed location, further stating that he “does not agree that this is the complete universe of relevant, substantially similar other accidents.” Before West attempts to introduce evidence of any accident not discussed in the body of this order, he shall notify the court and adverse counsel at least 24 hours in advance so that a proceeding for him to establish the relevance of that accident outside the presence of the jury may be scheduled before or after regular court hours (in order to avoid interruption and delay of the proceedings before the jury).

27 evidentiary support, but also seeking to prevent [that party]

from adducing the very evidentiary support that [his adversary]

claims is lacking.” Masello v . Stanley Works, Inc.,

0 8 , 314 n.5 (D.N.H. 2011).

To demonstrate the relevance of other accidents, West need

not “establish” what caused his accident in the sense that he

must prove i t , but must simply articulate a supportable theory of

why his helicopter was defective and how that caused it to crash.

See Herbst v . L.B.O. Holding, Inc.,

6 2 , 269

(D.N.H. 2011). In other words, “‘[s]ubstantial similarity’ is a

function of the theory of the case.” Moulton, 116 F.3d at 2 7 .

West’s theory is that the ECU in his helicopter was defective

because it registered an errant signal from the circuit board as

an overspeed event necessitating the closure of one of the valves

supplying fuel to the engine--even though no overspeed event was

in fact occurring. As noted at the outset, this phenomenon is

known as false overspeed solenoid activation, or “FOSSA.”

That Rolls Royce understands this to be West’s theory is

revealed (among other places) in its argument that the crashes in

Germany, Italy, and Fort Irwin did not occur under circumstances

substantially similar to West’s because they involved helicopters

with ECUs that “did not contain hardware updates made in 2000 to

address, in part, alleged FOSSA events.” Part of West’s theory,

however, is that those upgrades did not, in fact, remedy the

28 defect in the ECU. Indeed, Chen states in his report that the

defendants implemented these hardware updates--which he

identifies as upgrading “the capacitors that had failed” in the

ECU’s main power supply, causing the crashes in Germany and

Italy--but “without addressing software at all.”

Chen also opines that, although the defendants introduced

the upgrades to the capacitors in the main power supply in 2000,

they had yet to be implemented in the ECUs in the helicopters

involved in two of the post-2000 crashes (Fort Irwin and the Gulf

of Mexico). Chen likewise opines that, while the 2009 crash at

Fort Rucker and the 2012 crash at Loma Bonita involved

helicopters with the upgraded version of the ECU, even that

version failed to prevent an errant electrical impulse from

registering as an overspeed event triggering the automatic

closure of the fuel valve. The result, Chen explains, is that

the alleged defect, i.e., that “the ECU was not programmed to

prevent FOSSA,” persisted after the hardware upgrades to the ECU

introduced in 2000.

This anticipated testimony suffices to show that these

crashes, although they involved helicopters with the pre-upgrade

capacitors, occurred under circumstances substantially similar to

West’s, i.e., they involved helicopters with ECUs which, like the

one in West’s helicopter, cut off fuel to the engine even in the

absence of an overspeed event. Indeed, to present substantially

29 similar circumstances, the version of the product involved in a

different accident need not have all the same features of the

version involved in the plaintiff’s accident, so long as the

plaintiff can make some showing that the alleged defect was the

same. See Moulton, 116 F.3d at 27 (affirming admission of

evidence of accidents involving potpourri pots without lids, even

though plaintiff was injured by a pot that had a lid, because

they showed “the product as designed allowed the rapid escape of

a significant amount of extremely hot liquid and was thus

defective”) (footnote omitted).

Second, Rolls Royce argues that none of these other

accidents occurred under substantially similar circumstances to

West’s because data was retrieved from the incident recorder in

his helicopter but did not indicate a FOSSA event, while the data

from the incident recorders in the other helicopters was either

never retrieved o r , if it was, indicated a FOSSA event. But

West’s theory is that, even though a FOSSA event occurred in his

helicopter, the incident recorder failed to note any data to that

effect, either because the event was too short in duration or

because the event caused the recorder to malfunction. Both of

these theories are supported by proffered expert testimony. West

has also proffered evidence tending to show that, although no

incident recorder data was retrieved from the helicopters with

the pre-upgrade ECUs (the Germany, Italy, Fort Irwin, and Gulf of

30 Mexico crashes), those crashes were nevertheless identified as

FOSSA events by one or more of the defendants (or, in the case of

the Gulf of Mexico crash, suspected as such) during post-accident

investigations. So the absence of incident recorder data, or the

presence of incident recorder data showing a FOSSA event, does

not render any of the crashes so dissimilar to West’s that

evidence of them is inadmissible.

Third, Rolls Royce argues that none of the other accidents

happened in substantially similar circumstances because “[n]one

involved flights made after the helicopter had been left outside

uncovered and exposed to blizzard-like conditions for three

days.” Chen, however, has opined that the ice and snow from the

storm did not cause the engine in West’s helicopter to flame out.

It follows that, on Chen’s theory at least, the absence of ice

and snow from the conditions of the other accidents does not

distinguish them from West’s since, in both cases, those

conditions did not cause the crash. Of course, the defendants

disagree that snow and ice played no role in West’s crash--just

as they disagree that an errant electric impulse in the ECU

caused West’s engine to flame out, and they disagree that a FOSSA

event occurred in West’s helicopter without the incident

recorder’s documenting i t . That a defendant disagrees with a

plaintiff’s theory of the case, however--and intends to introduce

evidence to the contrary--has no bearing on whether, under that

31 theory, other accidents occurred under substantially similar

circumstances. The point is that West’s theory, which is

supported by disclosed expert testimony, accounts for the

distinctions the defendants have drawn between his crash and the

others, so that “[a]ny differences in the circumstances

surrounding [the different] occurrences go merely to the weight

to be given the evidence.” Jackson v . Firestone Tire & Rubber

Co.,

(5th Cir. 1986).

Fourth and finally, Rolls Royce argues that, even if these

other accidents occurred under substantially similar

circumstances, evidence of them should be excluded as unfairly

prejudicial. See Fed. R. Evid. 403. But the other crashes have

probative value, as already discussed, and Rolls Royce does not

identify anything about any particular accident suggesting that

it will improperly inflame the passions of the jury. Instead,

Rolls Royce argues that “the jury is likely to infer from

evidence of other accidents alone that defective conditions

existed and caused [West’s] accident.” The court has little

concern that evidence of 6 other accidents over a 14 year period

presents such a risk. In any event, the defendants can guard

against any such prejudice through the testimony of their own

witnesses, cross-examination of West’s witnesses, and argument to

the jury, making the very same points to distinguish those other

accidents from West’s that they make in their motion. Rolls

32 Royce also argues that this approach will entail an “undue

expenditure of time,” which, though a legitimate concern, can be

handled by the court in imposing appropriate limits on the scope

of inquiry into each of those other accidents at trial. For now,

though, Rolls Royce’s motion to exclude evidence of the other

accidents discussed in this motion (Germany, Italy, Fort Irwin,

the Gulf of Mexico, Fort Rucker, and Loma Bonita) is denied.

2. Post-accident remedial measures

Noting that “at some point after [West’s] accident but not

because of it,” the defendants implemented further upgrades to

the ECU, Rolls Royce argues that any evidence of those upgrades

should be excluded as evidence of a subsequent remedial measure.

See Fed. R. Evid. 407. The court agrees, and West offers no

argument to the contrary.7 Rolls Royce’s motion to exclude that

evidence is granted.

3. Pre-accident remedial measures

Rolls Royce also seeks to exclude evidence of what it calls

“post-manufacture, pre-accident remedial measures.” While

acknowledging that Rule 407 does not apply to that evidence, see

7 West does argue, however, that evidence that the defendants were contemplating upgrades to the ECU prior to his accident, even if they did not implement those upgrades until after his accident, is admissible notwithstanding Rule 407. The court agrees as to Rule 4 0 7 , but reserves judgment at this point as to whether evidence of those upgrades (which are not addressed by Rolls Royce’s motion) is otherwise admissible.

33 Bogosian v . Mercedes-Benz of N . Am., Inc.,

7 2 , 481 (1st

Cir. 1997), Rolls Royce argues that evidence of such measures

should be excluded here as unfairly prejudicial, see Fed. R.

Evid. 403. The only such measure that Rolls Royce identifies in

its motion, however, is a “reversionary governor update” it

introduced in 2007, but which had yet to be installed in West’s

helicopter prior to his accident in 2008. (The reversionary

governor limits the situations in which the helicopter reverts

from an automatic setting to manual mode.) As Rolls Royce points

out, West had initially alleged that this update would have

prevented his accident, but appears to have abandoned that

theory; his liability experts, in fact, have said they hold no

opinion on whether the update would have prevented West’s crash.

Because evidence of the reversionary governor update is

irrelevant, Rolls Royce’s motion to exclude it is granted.8 See

Fed. R. Evid. 402. At the moment, the court expresses no opinion

on the admissibility of evidence of any other “post-manufacture,

pre-accident” remedial measures.

8 In his objection, West states that he “intends to offer evidence of the reversionary governor for the limited purpose of establishing that [d]efendants intended t o , but did not implement software changes related to FOSSA as part of the reversionary governor campaign.” Even assuming this is true, however, West proffers no evidence that those software changes would have prevented his crash, so this theory does not demonstrate the relevance of the reversionary governor upgrade.

34 B. Rolls Royce’s motions in limine (document n o . 240)

Rolls Royce also moves, through a single motion, to exclude

a variety of other evidence. As explained below, that motion is

granted in part and denied in part, as are certain motions that

West has filed addressing some of the same evidence.

1. Other pending litigation

Rolls Royce objects to evidence of other pending litigation

against the defendants as irrelevant or unfairly prejudicial.

But Rolls Royce does not identify any particular litigation and,

as West points out (though also without identifying any

particular litigation), lawsuits against a defendant alleging a

defect in its product can show, among other things, notice. As

this court has previously ruled, in fact, “information regarding

whether other purchasers experienced similar problems with the

product” potentially has relevance in a products liability

action. West v . Bell Helicopter Textron, Inc.,

1 7 , 5

(bracketing and quotation marks omitted). Rolls Royce’s

objection to evidence of other litigation, then, is denied

35 without prejudice to renewal at trial if and when West tries to introduce such evidence.9

2. Military personnel

The United States military makes widespread use of a version

of the Bell 4 0 7 , known as the Kiowa, which was involved in two of

the accidents discussed in the preceding section (Fort Irwin and

Fort Rucker). Fearing the prejudicial impact of the suggestion,

at trial, that the defendants’ allegedly defective products have

put American military personnel in harm’s way, Rolls Royce

objects to any evidence or argument referring to military

personnel. The court agrees that this would be unfairly

prejudicial. See Fed. R. Evid. 403. The parties shall ensure

that, in referring to other accidents, their witnesses and

exhibits make no reference to the fact that they involved

military personnel (avoiding the use of the names of the military

installations), or the fact that a version of the 407 is used for

military applications.10

9 Before West attempts to introduce evidence of any other litigation, he shall notify the court and adverse counsel at least 24 hours in advance so that a proceeding for him to establish the relevance of that litigation outside the presence of the jury may be scheduled before or after regular court hours (in order to avoid interruption and delay of the proceedings before the jury). 10 Specifically, there shall be no references to place names by “Fort” or “Base”.

36 3. Testing (see also document n o . 244)

Since West’s accident, the ECU from his helicopter has been

tested twice: once in June 2009 and again in August 2012.

During the second test, the metering valve failed. Rolls Royce

argues that the results of the second test should be excluded as

unreliable because, in essence, it occurred longer after the

crash than the first test so that the condition of the ECU could

have deteriorated in the meantime, causing the valve to fail.

This objection goes to the weight, not the admissibility, of the

test result, and can be adequately explored at trial.11 Rolls

Royce’s motion to exclude the August 2012 test results is denied.

Following the August 2012 test, the parties attempted to

agree on a protocol for testing specific components from the ECU.

They were unable to do s o . Eventually, in March 2013, after all

of the expert discovery and challenge deadlines had already

expired, West and the defendants separately moved to extend those

deadlines (and, in the case of the defendants, the trial) to

accommodate the further testing. The court denied these motions

because they failed to show good cause to extend the deadlines.

Order of Apr. 1 1 , 2013, at 2-3 (citing Fed. R. Civ. P. 16(b)(4)).

11 At oral argument, Goodrich argued that the August 2012 test results should be excluded because none of West’s experts relied on them. But neither Goodrich nor any other defendant made this argument in its motions in limine, so the court declines to consider it at this time. The defendants should renew this objection at the appropriate time during trial.

37 Rolls Royce also seeks to prevent West from suggesting that the

defendants bear any responsibility for the fact that the further

testing did not occur. In the court’s view, Rolls Royce

(together with the other defendants) and West share equal

responsibility for that fact, see

, but, in any event,

West agrees not to try to place the blame on the defendants, so

long as they do not try to place the blame on him. In fact, West

has filed his own motion seeking to prevent the defendants from

doing just that. Surprisingly, then, the parties are in

agreement. No party shall, through evidence or argument, suggest

that any other party bears responsibility for the fact that no

further testing of the ECU occurred after August 2012.

So Rolls Royce’s motion as to the absence of further testing

is granted by agreement. West’s motion on that subject, however,

appears to reach farther, seeking to prevent the defendants from

arguing that West cannot prove his claims without such testing,

because he need not show that any particular component in the ECU

failed. That argument, which the defendants contest, is more

appropriately resolved in arriving at the appropriate jury

instructions in this case, or deciding the defendants’ motion for

judgment as a matter of law, see Fed. R. Civ. P. 5 0 . West’s

motion is denied to the extent it seeks to resolve that argument

in his favor now. Furthermore, the court’s rulings on the

further testing are not intended to prevent any party from making

38 use of the mere fact that such testing did not occur (i.e.,

without regard to w h y ) , as the basis for its own expert’s

testimony, the cross-examination of another expert, or in any

other way (indeed, West’s motion does not seek any such relief). 12

4. West’s marital status (see also document n o . 248)

At the time of West’s accident, he had yet to marry his

present wife and was still married to his ex-wife. West says

that, while they were living in the same house, they were

estranged and, in fact, West was carrying on a romantic

relationship with his now-present wife. So West moves to exclude

evidence of his marital status at the time of the accident as

irrelevant and unfairly prejudicial. In the court’s view, that

request is too broad. The court will exclude, as irrelevant and

unfairly prejudicial, evidence that West was involved in a

relationship with his present wife at the time he was married to

his ex-wife wife. But evidence that, at the time of the

accident, West was still married to his ex-wife, but has since

been divorced from her and married his present wife, carries no

appreciable risk of unfair prejudice. So West’s motion to

12 West also moves (document n o . 252) to prevent evidence of any further testing on the ECU that the defendants have conducted on their own. The defendants say that they have done no such testing, however, so this motion is denied as moot.

39 exclude evidence of his marital status is granted in part and

denied in part.

Rolls Royce, for its part, seeks a jury instruction that,

because West’s present wife was not married to him at the time of

the crash, she cannot recover damages for loss of consortium.

But West’s wife has made no claim for loss of consortium, and has

not been named as a party here. Unlike Rolls Royce, the court

sees little if any risk that the jury will become confused over

whether they can award damages for a claim that has not been made

to a person who is not a party. If developments at trial suggest

otherwise, Rolls Royce may renew its request, but for now it is

denied.

B. Federal regulations (document n o . 245)

West moves to exclude the defendants’ experts from

testifying as to FAA regulations, or opining that West violated

them. As an initial matter, this relief has largely been granted

as a result of the rulings preventing Bell’s experts from

testifying that (1) West used his cellphone during flight in

alleged violation of FAA regulations, see Part I.E.1, supra, and

(2) West failed to properly disclose his pre-existing GI

condition to the medical examiner, also in alleged violation of

FAA regulations, see Part I.F, supra. As discussed in explaining

those rulings, West’s violation of those regulations (if any) had

40 no effect on the crash, so both the regulations and any opinion

that he violated them are irrelevant. As also already discussed,

the defendants’ experts cannot testify as to the meaning of any

other federal regulation either, including by opining that West

violated i t . See Part I.E.3, supra. If some FAA regulation is

relevant in some respect, the defendants may ask the court to

take judicial notice of i t , see Fed. R. Evid. 2 0 1 , or to give a

jury instruction on i t , see Bartlett,

.

West’s motion to prevent the defendants’ experts from testifying

as to federal regulations is granted.

C. Goodrich’s omnibus motion in limine (document n o . 246)

Like Rolls Royce, Goodrich has filed a single motion seeking

to exclude various kinds of evidence. That motion is granted in

part and denied in part as set forth below.

1. Special damages

Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil

Procedure requires a party to include, as part of its initial

disclosures, “a computation of each category of damages claimed.”

Goodrich complains that, despite this command, West did not

provide any such computation until he filed his final pre-trial

statement, which includes a list of various medical expenses that

West claims to have incurred as a result of the accident. (He

makes no claim for lost wages.) Goodrich argues that, for his

41 delay in providing this list, West should be precluded from

seeking to recover any of these medical expenses at trial. The

court disagrees.

As already noted, see Part I.C.2, a party’s delay in

disclosing information required by Rule 26(a) prevents it from

using that information at trial only i f , among other

considerations, the delay was neither substantially justified or

harmless. Fed. R. Civ. P. 37(c)(1). Here, West attributes his

delay in disclosing the medical expenses he claims to the

“ongoing” nature of the treatment he says the crash has

necessitated, and further states that he has “produced, on a

rolling basis, all available bills and invoices” to the

defendants. The defendants have not disagreed with this account,

which suffices to show that West’s belated disclosure was both

substantially justified and harmless. Indeed, the defendants can

hardly claim to have been surprised by the list of medical

expenses in West’s final pretrial statement if they had already

received those bills in discovery. (It is also worth noting, of

course, that the defendants have taken the depositions of West’s

experts and designated their own experts on the issue of whether

the crash produced the symptoms that West now reports, so the

nature and extent of the medical attention he has received since

the crash was extensively discussed throughout the expert

discovery phase of the litigation, which concluded nearly a year

42 prior to trial.) So Goodrich’s motion is denied to the extent it

seeks to sanction West for his belated disclosure of his medical

expenses by preventing him from recovering them at trial.

Goodrich’s motion is also denied insofar as it argues that

West cannot recover the expenses (including, significantly,

experimental sacral nerve implantation procedures that he

traveled to Australia to receive) because he lacks evidence that

they were reasonably necessitated by the injuries West sustained

in the accident. In response to the motion, West has proffered

the testimony of one of West’s treating gastroenterologists that,

as he advised West during the course of treatment, the

experimental procedures were his “best bet” for trying to relieve

the worsened GI symptoms he was suffering after the crash. And

Dr. Agarwal, as already discussed at length, will testify that it

was the crash that caused those symptoms to worsen. See Part

I.C.1, supra. So far as the court can tell at the moment, this

testimony--though sharply disputed by the defendants--suffices to

show that those procedures were reasonably necessitated by the

injuries West sustained in the crash.

Goodrich’s motion is granted, however, insofar as it seeks

to prevent West from seeking to recover his future medical

expenses, i.e., those expenses he has yet to incur. A plaintiff

cannot recover future economic damages without expert testimony

or other competent evidence discounting those damages to net

43 present value. See Reed v . Nat’l Council of Boy Scouts of Am.,

Inc.,

8 0 , 194-95 (D.N.H. 2010) (quoting Hutton

v . Essex Group, Inc.,

3 1 , 334-35 (D.N.H. 1994)).

Without such evidence, which West acknowledges he does not have,

the jury cannot be left to calculate the discounting based “upon

personal knowledge [they] may or may not possess” as to how to

perform such a calculation. Hutton,

.

Goodrich’s motion to preclude West’s recovery of future medical

expenses is granted.

2. NTSB reports

Goodrich seeks to prevent West from using at trial, in any

way, what it calls the “Probable Cause” report of his accident

issued by the National Transportation Safety Board (“NTSB”). By

“Probable Cause” report, Goodrich means (as it clarified at the

final pre-trial conference) the NTSB’s “Board accident report,”

which the NTSB defines as “the report containing [its]

determinations, including the cause of an accident, issued either

as a narrative report or in computer format.”

.

By statute, “[n]o part of a report of the [NTSB], 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 the

matter mentioned in the report.”

(b). Despite

the potential breadth of this language, the NTSB’s regulations

state that it “does not object t o , and there is no statutory bar

44 t o , admission in litigation of factual accident reports,” defined

as “the report containing the results of the investigator’s

investigation of the accident.”

. So Goodrich

does not object--at least on the basis of § 1154(b)--to the

admission of the factual accident report. But that is a separate

document from the “Board accident report,” to which Goodrich does

object, on the basis of both § 1154(b) and the NTSB regulation,

which, tracking the language of that statute, states that “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.”

.

In response, West makes several unpersuasive arguments as to

why the Board accident report is nevertheless admissible. First,

he relies on what one court has identified as the “legislative

intent” of § 1154(b) “to keep the [NTSB] from becoming embroiled

in civil litigation and to prevent the usurpation of the

factfinder’s role.” Daniels v . Tew Mac Aero Servs., Inc.,

8 4 , 988 (Me. 1996). West maintains that this case does not

give rise to those concerns but, even if that is accurate, this

court is not free to disregard the statutory language of

§ 1154(b) in favor of what courts in other jurisdictions have

identified as its underlying legislative intent. See, e.g.,

United States v . Jimenez,

3 , 20 (1st Cir. 2007).

45 Second, West repairs to other extrajurisdictional cases in

support of an argument that “the factual portions of a [sic] NTSB

report are admissible into evidence” but the “conclusions on the

probable cause of the accident are not.” Major v . CSX Transp.,

9 7 , 604 (D. Md. 2003) (quotation marks omitted)

(citing like cases). But this argument, like West’s “legislative

intent” argument, flies in the face of the statute, which

provides that “[n]o part of a report of the [NTSB], related to an

accident or an investigation of an accident, may be admitted into

evidence” (emphasis added). The caselaw cited by West does not

persuasively explain how to read “no part” to mean “portions.”

To the contrary, as one federal court of appeals has observed,

this caselaw appears to reflect a lingering misunderstanding of

the difference between “Board accident reports” (which, as just

discussed, are subject to the statute) and “factual accident

reports” (which, again, are not subject to the statute and are

therefore admissible). Chiron Corp. v . NTSB,

, 940-

41 (D.C. Cir. 1999). While this distinction serves to

distinguish these types of reports from each other, as set forth

in the NTSB’s regulations, it does not serve to distinguish the

factual findings from the probable cause conclusions within the

Board accident report itself in the manner West suggests. See

So this court is persuaded by the decision in Chiron, and

the decisions on which it relies--including decisions from three

46 other federal courts of appeals13--that “the statute means what

it says: No part of the Board’s actual report is admissible as

evidence in a civil suit.”

.

Third, West argues that, even if he cannot introduce the

Board accident report, or any part of i t , into evidence, his

expert witnesses can nevertheless rely on it in their testimony.

This argument also runs headlong into the statute itself, which

says that no part of the Board accident report “may be admitted

into evidence or used in a civil action” (emphasis added). This

court, of course, must “give effect, if possible, to every clause

and word of a statute.” Duncan v . Walker,

6 7 , 174

(2001) (quotation marks omitted). I f , as West suggests, the

statute prevents the report only from being “admitted into

evidence,” then the word “used” is deprived of any effect.

Rather than construing the statute in this disfavored way, the

court reads § 1154(b) to prevent the Board accident report from

being either admitted into evidence or used, including as the

stated basis for expert testimony.

Fourth, and finally, West complains that it is unfair to

prevent him from using the Board accident report because the

defendants “may well seek to rely on the NTSB’s factual

determinations in accidents that allegedly relate to snow and ice

13 The Court of Appeals for the First Circuit has never considered this issue.

47 ingestion.” Again, though, the defendants--and West, for that

matter--are entitled to use factual accident reports at trial

without running afoul of the statute.

. If

West is accusing the defendants of potentially trying to use the

factual portions of Board accident reports of other crashes, that

would violate the statute (and open the door to West’s use of the

Board accident report of his crash), but West’s charge is not

well-supported. He says that the defendants may try to use

photographs or other data from crashes that the NTSB

investigated, but the court is at a loss to see how that amounts

to using the resulting Board accident reports. Nor does the

court agree that the defendants would open the door to the Board

accident report of West’s crash by introducing statements or

photographs that his colleague who helped him de-ice the

helicopter provided to the NTSB during its investigation.

Subject to what the court sees as the extraordinarily unlikely

development that the defendants open the door to the Board

accident report, Goodrich’s motion to prevent West from using

that report in any way at trial is granted.

3. Capacitors in overspeed power supply

Goodrich seeks to exclude evidence of its decision, in

September 2009, to call for the upgrade of the capacitors in the

overspeed power supply of the ECU by that point. While this

decision predated West’s accident, the capacitors in the ECU in

48 his helicopter had yet to be replaced. Earlier in the

litigation, West had identified the failure of the non-upgraded

capacitors as the cause of his crash. But Goodrich argues that

West’s expert witnesses have since admitted that they do not know

whether the errant electrical signal they have identified as the

trigger for the alleged FOSSA event in his helicopter in fact

originated in the capacitors, in some other component in the ECU,

or in a short in the wiring of the ECU. West does not disagree

with this characterization of his expert’s deposition testimony

and, as already discussed, his theory is that the ECU was

defective not because any of its components (including the

capacitors) were prone to creating errant signals, but because it

recognized such signals as FOSSA events necessitating closure of

a fuel valve when in fact no such event was occurring. See Part

II.A.1, supra.

It follows, as Goodrich argues, that West cannot show that

the absence of the upgraded capacitors in his ECU had any causal

connection to his crash. As Goodrich points out, “[a]ny alleged

design defect which had nothing to do with plaintiff’s injury is

irrelevant.” Weir v . Crown Equip. Corp.,

(7th

Cir. 2000). Goodrich, however, seeks to exclude evidence of not

only that alleged defect, but of its decision, which it reached

prior to West’s crash, to upgrade the capacitors. Part of West’s

theory is that, instead of upgrading the capacitors in the ECU so

49 they would not create errant electrical impulses, Goodrich should

have reprogrammed the software in the ECU so that it would not

treat an errant electrical impulse as a FOSSA event. As this

court has previously observed, evidence that Goodrich “revised

the ECU, but did so in a way that failed to remove the defect”

that West alleges, is relevant to the issue of Goodrich’s

negligence, including as to its notice of the alleged defect.

See West,

1 7 , at 10-11.

So West can introduce evidence of Goodrich’s September 2009

decision to upgrade the capacitors rather than the software,14

but cannot introduce evidence that his helicopter lacked the

upgraded capacitors. West also cannot introduce evidence of

Goodrich’s decision, in December 2012, to tell all of its

customers that it should upgrade the capacitors by a date

certain. That is inadmissible both because it is irrelevant--

again, West has no evidence that the absence of the upgraded

capacitors caused his crash–-and because it is evidence of a

subsequent remedial measure. See Fed. R. Evid. 407.

4. West’s expert opinions

Goodrich seeks to exclude any opinions from West’s liability

experts, Chen and Bloomfield, as to the duration of the alleged

14 Goodrich, of course, can request a limiting instruction to the effect that there is no evidence the lack of upgraded capacitors contributed to West’s accident.

50 FOSSA event in West’s helicopter, but without invoking any

particular basis (e.g., relevance, unfair prejudice). As already

discussed, this court has rejected Goodrich’s challenges to those

experts’ proffered opinions on the ground that they do not

satisfy Rule 702. See Part I.A.1, supra. So this aspect of

Goodrich’s motion in limine is denied without prejudice to the

presentation of a more focused objection at trial.

Goodrich also seeks to exclude Chen’s opinion that the

company’s quality control standards are deficient, suggesting

that he has failed to opine as to a link between those standards

and the accident. The court disagrees. Chen states that, in

investigating suspected FOSSA incidents, Goodrich “stopped [its]

analysis . . . at a preliminary level instead of continuing to

ask ‘why’ . . . to get to the true root cause” (which, in Chen’s

view, is the ECU’s defect in recognizing errant electric impulses

as FOSSA events). Insofar as Goodrich challenges the reliability

of that opinion, the challenge goes to weight, not admissibility.

5. Undisclosed opinion testimony

Goodrich also seeks to exclude any expert testimony from two

witnesses who have experience in flying or maintaining

helicopters: Ray Newcomb, who owns J B I , and Roger Sharkey, who

owns another helicopter company. Goodrich argues that, even

though West failed to disclose either Newcomb or Sharkey as an

expert witness under Rule 26(a)(2), West intends to present

51 expert testimony from them at trial, including, in particular,

opinions as to whether ice and snow caused West’s engine to flame

out. West’s objection confirms this suspicion and then some,

arguing that not only Newcomb and Sharkey, but several other

witnesses who have not been designated as experts (Doug MacIver,

Carl Svenson, Warren Rooks, and Jack Goeman) should be allowed to

give opinion testimony on “topics including (without limitation)

how they clean ice and snow from helicopters, how to perform an

autorotation, what fuel spatter looks like after an engine

flameout, or the qualities of a good pilot.” West maintains that

this is simply lay opinion testimony under Rule 7 0 1 , rather than

expert opinion testimony under Rule 702.

Insofar as West is urging that these witnesses can testify

to their personal knowledge of these subjects--for example, a

witness who has worked maintaining aircraft could testify as to

how he has personally gone about removing ice and snow from

helicopters, or a witness who is a pilot could testify as to how

he has personally performed an autorotation--he is correct that

this testimony does not amount to expert opinion testimony under

Rule 702. 15 In fact, it is not “opinion” testimony at all. The

problem arises when testimony of this sort begins to stray from

testimony about how the witness has personally done these things

15 This is not to say, of course, that such testimony would be otherwise admissible here.

52 into testimony about how these things are usually done, or how

they should be done. That is opinion testimony, and, if it draws

upon the witness’s “scientific, technical, or other specialized

knowledge,” it is expert opinion testimony under Rule 702 of the

Rules of Evidence. Despite West’s suggestion to the contrary, a

pilot’s testimony about how ice or snow should be removed from a

helicopter, or how an autorotation should be performed, is

plainly expert testimony under that rule.

Indeed, West dedicates a substantial portion of his argument

in response to Goodrich’s motion to demonstrating that all of his

claimed lay witnesses “have significant personal experience in

their respective fields, including piloting, helicopter

maintenance, helicopter operation, training, and other related

areas.” Though West suggests otherwise, “[t]he dividing line

between lay opinion testimony under Rule 701 and expert opinion

testimony under Rule 702 . . . is marked by whether the opinion

is based on the expert’s ‘specialized’ knowledge, rather than

. . . whether the witness came by that knowledge ‘through

experience’ as opposed to training, education, or the other ways

that a witness can qualify to give expert testimony.” United

States v . Tanguay,

8 4 , 289 (D.N.H. 2012). 16

16 In Tanguay,

, this court distinguished some of the circuit cases on which West relies in characterizing his witness’s testimony as lay opinions, including United States v . Paiva,

4 8 , 157 (1st Cir. 1989).

53 It follows that any opinion testimony that these witnesses

give based on their “significant experience” in their fields is

expert testimony. West, however, did not disclose that any of

these witnesses would be giving expert testimony, as he was

required to do under Rule 26(a)(2), nor does he suggest that this

failure was substantially justified or harmless under Rule

37(c)(1). Where a party fails to comply with his disclosure

obligations under Rule 26(a), of course, “the baseline rule is

that the required sanction in the ordinary case is mandatory

preclusion.” Harriman v . Hancock County,

2 , 29 (1st

Cir. 2010). The court can see no reason not to apply the

baseline rule here to preclude West from offering expert

testimony from any witness whom he did not disclose under Rule

26(a)(2). These include any opinions from Newcomb or Sharkey as

to the cause of West’s accident, including that the absence of

fuel spatter indicates that ice and snow played no role. Those

are clearly expert opinions--because, as West himself pointed out

at oral argument, they are based on those witness’s extensive

experience with aircraft.

6. Worsened GI problems

Goodrich says that, late in the expert discovery phase of

this case, West (through counsel) claimed for the first time to

have “made numerous calls to his doctor” between his release from

his post-accident hospitalization in December 2008 and his

54 surgery in February 2009 “about an aggravation of his [GI]

condition.” But West did not disclose any such calls in response

to an interrogatory asking him to “identify and describe any all

medical treatment [he] received that [he] claim related in any

way to the crash,” nor did he produce medical records reflecting

them. Goodrich argues that, as a result, West should not be

allowed to present evidence of those calls at trial.

At oral argument, however, West stated (through counsel)

that he had made only one such call, to his primary care

physician, complaining of constipation after his release from the

hospital--and that the physician or his staff had advised West

that the constipation was likely the result of pain medication he

was taking at the time. Assuming that this statement is

accurate, West’s delay in disclosing that call, or the resulting

advice, was harmless. See Fed. R. Civ. P. 37(c)(1). While the

onset of West’s constipation following the crash is an important

issue in the case, see Part I.C, supra, his single call to his

doctor complaining of that problem immediately after the accident

has little if any probative value on that point. Goodrich’s

motion to prevent West from testifying as to that call as a

sanction for failing to disclose it earlier is denied.

7. Other issues

Goodrich seeks to prevent West from presenting any evidence

that the force of his landing was 10Gs, arguing that such

55 evidence must take the form of an expert opinion that West does

not have. West, however, claims to have a document created by

Goodrich stating that the force of his landing was 10Gs. The

court will resolve any objection to the admissibility of that

document at trial. Goodrich also seeks to prevent McIver,

another pilot, from testifying about a dramatic landing that he

accomplished through autorotation. Any probative value in that

testimony is outweighed by its prejudicial effect. West himself

can, and surely will, testify to his own experience in landing a

helicopter through autorotation.

D. Paul Rice’s statements (document n o . 250)

West seeks to prevent the defendants’ experts from

testifying as to what Paul Rice, who witnessed West’s efforts to

de-ice the helicopter, told those experts, as well as what Rice

told FAA personnel who investigated West’s crash. West argues

that these statements are hearsay. But an expert witness can

base his opinion testimony on inadmissible evidence, provided

that “experts in the particular field would reasonably rely on

those kinds of facts or data in forming an opinion on the

subject,” and “the proponent of the opinion may disclose them to

the jury” so long as “their probative value in helping the jury

evaluate the opinion substantially outweighs their prejudicial

effect.” Fed. R. Evid. 703.

56 Here, West does not question that experts in aviation safety

or accident reconstruction would reasonably rely on an

eyewitness’s accounts of how the aircraft involved in the

accident was de-iced. Furthermore, the probative value of those

accounts outweighs their prejudicial effect--particularly

because, as the defendants indicate in their objection, they

intend to call Rice as a witness at trial. West’s motion to

prevent the defendants’ experts from testifying as to Rice’s

statements is denied.

E. Other FADEC incidents (document n o . 251)

Bell seeks to exclude evidence of incidents, aside from

West’s accident, where he (or in one case Sharkey) claims to have

experienced a failure of the FADEC in a Bell 4 0 7 , arguing that

this evidence is irrelevant. See Fed. R. Evid. 401. In

response, West states that he does not intend to introduce such

evidence--with the exception of a FADEC incident he claims to

have experienced when he was piloting a Bell 407 after his

accident. West explains that his testimony about this incident

will show “the level and distress and discomfort that the

incident caused, as contrasted with his pre-accident reactions to

such events.” West’s account of his post-accident FADEC incident

is therefore probative on the issue of his damages, and any

potential prejudice to Bell can be cured by an appropriate

57 limiting instruction that the jury may consider that testimony

solely for that purpose. See Fed. R. Evid. 105. Bell’s motion

is denied as to that testimony, but is otherwise granted.

F. Bell’s omnibus motion in limine (document n o . 253)

Through this motion, Bell seeks an order preventing West’s

counsel from engaging in a variety of improper conduct, such as

referring to evidence outside of the record, vouching for the

credibility of witnesses, and the like. Bell has failed to

demonstrate even the slightest basis for such an order at this

point. In the event that counsel for West, or any party, engages

in improper conduct during the trial, the court will handle it at

that point. Bell’s motion is denied.

G. Publishing deposition transcripts (document n o . 254)

West seeks permission to publish to the jury portions of the

deposition transcripts of two defense witnesses, together with

the corresponding errata sheets. Use of a deposition at trial is

governed by Rule 32 of the Federal Rules of Civil Procedure,

which does not contemplate anything of the sort. West’s motion

to publish deposition transcripts to the jury is denied.

58 H. Late-disclosed documents (document n o . 172)

West seeks to prevent the defendants from using certain

documents in cross-examining his liability experts on the grounds

that Rolls Royce failed to produce those documents until a week

before those experts were deposed. West suggests that, because

his experts did not have access to those documents at the time

they authored their reports, it would be unfair for the

defendants to use the experts’ failure to account for those

documents in their reports to try to impeach their testimony.

Whatever the merits of that suggestion, the defendants stated at

oral argument that, not surprisingly, they had no intention of

cross-examining the defendants’ experts in that way. So this

motion is granted insofar as it seeks to prevent the defendants

from pursuing that line of cross-examination, but denied insofar

as it seeks to prohibit the defendants from otherwise using the

documents themselves, or the information they contain, in cross-

examining West’s liability experts.

III. Conclusion

For the foregoing reasons:

• the defendants’ motions to exclude or limit Chen’s and Bloomfield’s testimony (document nos. 158-160, 163) are GRANTED in part and DENIED in part;

• Bell’s motion to limit Ford’s testimony (document n o . 168) is GRANTED in part and DENIED in part;

59 • Bell’s motion to exclude D r . Agarwal’s testimony (document n o . 170) is DENIED;

• West’s motion to prevent the use of Rolls Royce’s late- disclosed documents (document n o . 172) is GRANTED in part and DENIED in part;

• West’s motion to limit Albert’s and Stimpson’s testimony (document n o . 203) is GRANTED in part and DENIED in part;

• West’s motion to exclude Parmet’s testimony (document n o . 204) is GRANTED;

• West’s motion to limit Gores’s and Winn’s testimony (document n o . 205) is DENIED;

• West’s motion to limit Atherton’s, Souza’s, and Piercy’s testimony (document n o . 206) is GRANTED in part and DENIED in part;

• Rolls Royce’s motion to exclude evidence of other accidents and remedial measures (document n o . 239) is GRANTED in part and DENIED in part;

• Rolls Royce’s omnibus motion to exclude evidence (document n o . 240) is GRANTED in part and DENIED in part;

• West’s motion to exclude evidence of cellphone use (document n o . 243) is GRANTED in part and DENIED in part;

• West’s motion in limine as to component testing (document n o . 244) is GRANTED in part and DENIED in part;

• West’s motion in limine to prevent the defendants’ experts from testifying as to the meaning of federal regulations, or whether he violated them (document n o . 245) is GRANTED;

• Goodrich’s omnibus motion in limine (document n o . 246) is GRANTED in part and DENIED in part;

• West’s motion to exclude evidence of his marital status at the time of the accident (document n o . 248) is GRANTED in part and DENIED in part;

• West’s motion to exclude evidence of Rice’s statements (document n o . 250) is DENIED;

60 • Bell’s motion to exclude evidence of other FADEC incidents (document n o . 251) is GRANTED in part and DENIED in part;

• West’s motion to exclude evidence of post-August 2012 testing of the ECU (document n o . 252) is DENIED as moot;

• Bell’s omnibus motion in limine (document n o . 253) is DENIED;

• West’s motion to publish deposition transcripts to the jury (document n o . 254) is DENIED; and

• all of the defendants’ motions to join in each others’ motions (document nos. 1 6 2 , 1 6 4 , 165, 255, 259) are GRANTED.

SO ORDERED.

— N ./ aLaplante Joseph p Tut-;-i-^^i C - I - ^ - I - ^ ^ r^-;^-!- ited States District Judge

Dated: September 9, 2013

cc: Joan A . Lukey, Esq. Jesse M . Boodoo, Esq. Justin J. Wolosz, Esq. Sara Gutierrez Dunn, Esq. John P. O’Flanagan, Esq. L . Robert Bourgeois, Esq. Brian M . Quirk, Esq. James C . Wheat, Esq. Jason L . Vincent, Esq. Jeffrey H . Karlin, Esq. Pierre A . Chabot, Esq. Martha C . Gaythwaite, Esq. Phillip S . Bixby, Esq. Marie J. Mueller, Esq.

61