In a products liability action against an aircraft manufacturer arising out of a crash of a Beech Premier 390 aircraft in South Bend, Indiana on March 17, 2013, a district judge in the Northern District of Oklahoma precluded certain testimony from plaintiffs’ expert witnesses because plaintiffs failed to timely disclose the opinions they sought to introduce at trial and improperly attempted to supplement their expert disclosures by offering new expert opinions to defeat defendants’ motion for summary judgment.

Noting that allowing late supplementation of expert reports has the effect of denying the opposing party the ability to file a meaningful Daubert motion, the court refused to allow supplementation and held the experts to their original opinions. Then the court analysed the original opinions in light of each expert’s actual experience in the field and significantly limited their testimony.

The court excluded in part the proposed testimony of a well-known aviation accident reconstruction expert regarding defects in the design of the aircraft’s electrical system and landing gear system. The court ruled that the expert’s opinion regarding defects in the design of the landing gear system should be excluded on the ground that the expert lacked the necessary qualifications to offer an opinion about design because “he does not design aircraft or aircraft components as part of his profession and his consulting work is almost entirely related to offering litigation opinions in support of plaintiffs.” The court held that “the mere fact that Sommer believes that he is knowledgeable about a topic does not qualify him to offer expert testimony on aircraft design.” The court also noted that there is no analysis in his report that would support the existence of a design defect.

The court precluded a second expert’s opinions regarding alternative design as to which he conducted no testing or calculations. The court noted that the expert had no experience designing the proposed alternate design and had never tested it.

Finally, the court ordered plaintiffs to submit for the court's review all communications between plaintiffs' counsel and their piloting expert, and all drafts of reports to identify whether the expert prepared his report or whether the report was prepared by counsel. Normally this material is protected from disclosure, however, the expert admitted during his deposition that his report was written by counsel and that he had "reviewed" but not "read" the materials provided to him by counsel prior to signing the report. Based on this testimony, the defendants moved to preclude his testimony. The court will now examine whether the expert "actually considered evidentiary materials, formed his own opinions and drafted his own report in compliance with Rule 26" of the Federal Rules of Civil Procedure.

Rodgers v. Beechcraft Corp., 2017 U.S. Dist. LEXIS 15372 (N.D. Ok. Feb. 3, 2017)