In re Crash of Aircraft N93PC on July 7, 2013, at Soldotna, Alaska

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
In re Crash of Aircraft N93PC ) No. 3:15-cv-0112-HRH
) [Consolidated with
on July 7, 2013, at Soldotna, Alaska ) No. 3:15-cv-0113-HRH and
_______________________________________) No. 3:15-cv-0115-HRH]
O R D E R
Honeywell’s Motion in Limine No. 12
Honeywell moves to exclude any testimony about reports of black smoke, and any
alleged cause thereof, from the accident aircraft.1 This motion is opposed.2 Oral argument
was requested but is not deemed necessary.
Background
On July 7, 2013, a deHavilland DHC-3 “Otter” airplane operated by Rediske Air, Inc.
and piloted by Walter Rediske crashed shortly after take off from the Soldotna Airport.
Rediske and all of the passengers on board were killed in the crash. A Honeywell TPE 331-
10R-511C turboprop engine had been installed in the accident aircraft. Plaintiffs, which are
1Docket No. 403.
2Docket No. 444.
-1-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 1 of 9

the estates of the passengers and Rediske, assert wrongful death, negligence, strict product
liability, and breach of warranty claims against Honeywell.
During the NTSB investigation of the accident, Matt Isham was interviewed as an
eyewitness. Isham stated that he saw the accident aircraft as it was taking off and that “the
airplane was about 100 feet above the ground and in a ‘normal’ takeoff attitude.”3 Isham
“stated he saw a big puff of black smoke come from the exhaust on the lower right side area
of the airplane.”4 Isham stated that “[h]e was familiar with the airplane and stated he had
been a passenger in the accident airplane in the past.”5
On November 20, 2017, plaintiffs’ retained private investigator interviewed Isham.
During that interview, Isham stated that he saw the accident aircraft as “it was taking off and
I seen a big black puff of smoke come out of the exhaust. . . .”6 Isham explained that when
he said the smoke was coming out of the exhaust, he meant that “it’s got that exhaust that
came out the side there for the turbine.”7 He stated that he could tell that was where the
black smoke was coming from and that “it was black coming out, so . . . whether he [the
3Record of Conversation at 1, Exhibit A, Honeywell’s Motion in Limine No. 12 [etc.],
Docket No. 403.
4Id.
5Id.
6Interview with Matt Isham at 1, Exhibit B, Honeywell’s Motion in Limine No. 12
[etc.], Docket No. 403.
7Id. at 2.
-2-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 2 of 9

pilot] gunned it . . . I don’t know.”8 Isham stated that the black smoke “looked like a
continuous stream” and that “it wasn’t like crazy exhaust but you could definitely tell he was
getting on it.”9 Isham stated that it was his impression that the pilot was “throttling up[.]”10
Honeywell now moves to exclude any testimony about reports of black smoke and
any alleged cause thereof.
Discussion
Honeywell first moves to exclude Isham’s witness statements because they are
inadmissible hearsay. Honeywell contends that these witness statements are out of court
statements being offered to prove the truth of the matter asserted, namely that black smoke
was seen coming from the accident aircraft.
Plaintiffs concede that the NTSB’s summary of the Isham interview and the recording
and transcription of the private investigator’s interview are hearsay.11 But, as Honeywell
acknowledges in its reply brief,12 these documents should not be excluded because it is
possible that they could be admissible should Isham testify at trial and make contradictory
statements on the stand.
8Id.
9Id.
10Id.
11Plaintiffs Response in Opposition to Honeywell’s Motion in Limine No. 12 [etc.]
at 2, Docket No. 444.
12Honeywell’s Reply in Support of Motion in Limine No. 12 [etc.] at 2, Docket No.
491.
-3-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 3 of 9

Plaintiffs also argue that Isham should be able to testify at trial about his observations.
While Honeywell does not dispute that Isham could testify that he saw a puff of black
smoke, Honeywell argues that Isham should be excluded from offering any testimony as to
the cause of the black smoke. In particular, Honeywell argues that Isham’s testimony that
the black smoke could have been caused by the pilot throttling up lacks any foundation or
basis because Isham was not in the aircraft and could not know what the pilot was doing.
Honeywell also argues that any testimony as to the cause of the black smoke would be an
expert opinion, which Isham is not qualified to offer as there is no evidence that he is a pilot
or an airplane mechanic.
Plaintiff argues that Isham should be able to offer his testimony about the cause of the
black smoke pursuant to Rule 701. “Rule 701 allows a lay witness to offer opinions that are
(a) ‘rationally based on the witness’s perception,’ (b) ‘helpful’ to the jury, and (c) ‘not based
on scientific, technical, or other specialized knowledge within the scope of’ expert
testimony.” United States v. Gadson, 763 F.3d 1189, 1206 (9th Cir. 2014) (quoting FRE
701). Plaintiffs argue that Isham’s comments that the pilot was “getting on it” or “throttling
up” are rationally based on his perceptions of the aircraft, its flight, and the black smoke.
Isham can offer his testimony about what he saw on the day of the accident but he
may not testify as to causation. Causation as to the black smoke involves much more than
his layman’s observations and necessitates expert testimony. In short, Isham, who has not
been disclosed as an expert witness, may not offer an opinion as to what caused the black
smoke that he observed on the day of the accident.
-4-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 4 of 9

Honeywell next argues that plaintiffs’ experts, Colin Sommer and Arthur Coffman,
should not be allowed to testify about the black smoke because neither “has coherently
testified about the relevance of the alleged existence of black smoke” or sufficiently
explained “how a broken torsion shaft . . . can result in a puff of black smoke.”13
At his deposition, Coffman was asked whether he had “an explanation for why [the] puff of
black smoke occurred?”14 Coffman responded:
Because the engine is at its – he’s climbing out at a high power
setting; I’m going to say probably approaching max torque.
And the instant that shears, the engine – it takes approximately
two-thirds of the power produced by the power producer to
drive the compressor. That’s an industry standard. It’s been
there always with turbine engines. You have an immediate
reduction in RPM. It’s like you sat on the brake. The fuel
control wants to actually give it more fuel because it says, I’m
spooling down, I want to give fuel, because the power lever is
still asking for fuel.
So the fuel control, whatever little pressure it has left as
the pump’s spooling down – and it has a reserve pressure built
in there. Fuel is bypassed back – it’s adding fuel, trying to
accelerate. The airflow is coming down very rapidly. Engines
roll back real rapidly when you shut them off like that. So you
– the air is – it’s like the air – it’s like there’s brakes on this
engine stopping the rotation because so much torque is used to
do that. It has this little burst of fuel. And you – so you have a
reduction in air, a burst of fuel, and you’re going to get a puff of
black smoke. This has been reported in other engines that – like
spray planes that reported that they sheared a torsion shaft said,
13Honeywell’s Motion in Limine No. 12 [etc.] at 4, Docket No. 403.
14Video Deposition of Arthur Lee Coffman at 81:5-6, Exhibit D, Honeywell’s Motion
in Limine No. 12 [etc.] at 4, Docket No. 403.
-5-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 5 of 9

[w]ell, we got a puff of black smoke. Some of the flaggers or
somebody made that comment.[15]
Honeywell contends that while Coffman’s testimony appears to establish some relevancy as
to the black smoke testimony, it actually does not because Coffman’s testimony is based on
a fundamental misunderstanding of how the TPE-331 engine operates and how it would react
to a failed torsion shaft. Honeywell contends that the foregoing testimony shows that
Coffman “believed that the engine would ‘spool down’ or ‘roll back’ if the torsion shaft
failed, which would then purportedly cause his described ‘reduction in air, a burst of fuel,
and . . . puff of black smoke.’”16 But, Honeywell contends that is not what would occur, and
that Coffman conceded as much in his rebuttal expert report. In that report, Coffman stated
that
[i]n my career it has been my experience that torsion shaft
failure results in the shutdown of the engine. I have since
learned that engines may continue to run on the fuel control
governor at a minimum fuel flow depending on the condition
and settings of the fuel control unit.[17]
Honeywell argues that the foregoing establishes that Coffman’s original testimony about the
cause of the black smoke was wrong and thus any testimony related to the black smoke
would be irrelevant. Honeywell argues that if Coffman were to testify at trial that his theory
15Id. at 81:9-82:12.
16Honeywell’s Motion in Limine No. 12 [etc.] at 6, Docket No. 403.
17Coffman Rebuttal Report at 2, Exhibit F, Honeywell’s Motion in Limine No. 12
[etc.], Docket No. 403.
-6-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 6 of 9

about the cause of the black smoke applies even though he was completely wrong about the
engine design, then this would be a new and undisclosed opinion. It would also be an
unreliable opinion, according to Honeywell, as there would have to be testing done in order
to prove that the engine could generate black smoke when the torsion shaft shears.
At his deposition, Sommer was asked whether it was correct that “this being a turbine
engine, once it’s lit off, as long as it has fuel being supplied to it, it’s going to continue to run
unless something stops it[.]”18 Sommer responded:
No, not necessarily. Based upon the witness statement, there’s
a large puff of black smoke that comes out of the right side of
the aircraft which is consistent with the location of the exhaust
pipe on this airplane. That large puff of black smoke has to be
consistent with an excessively rich fuel mixture to where it was
burning up excessive fuel inside the engine. Once the engine is
decoupled, without actually doing a test, you have a large
number of variables that are going to be trying to control the
airplane. You have an overspeed governor, you have an
underspeed governor, you have the fuel control, you have the
torque limiter. And based upon these other accidents, it is not
consistent that the engine is going to continue to run after the
torsion shaft fails.[19]
Honeywell argues that this testimony is entirely speculative because as Sommer himself
testified, there was no testing done to test his theory that the engine could not continue to run
after the torsion shaft failed. Secondly, Honeywell argues that this testimony is based on a
fundamental misunderstanding of how the TPE-331 engine operates, as explained above.
18Video Deposition of Colin Sommer at 70:22-25, Exhibit C, Honeywell’s Motion in
Limine No. 12 [etc.], Docket No. 403.
19Id. at 71:1-16.
-7-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 7 of 9

Coffman’s and Sommer’s testimony about the black smoke is relevant because it goes
to the question of whether the engine failed in flight. In his expert report, Sommer opined
that “[t]he witness statements and video evidence of the crash are supportive of an inflight
engine failure. . . .”20 Plaintiffs contend that Sommer was never asked at his deposition how
the black smoke was supportive of an inflight engine failure and when he did mention the
black smoke, Honeywell’s counsel stated that he was not asking about the accident flight in
particular, but was asking generally about TPE-331 engines.21 As for any argument that there
was no testing done, as plaintiffs aptly argue, testing a sheared torsion shaft in flight is an
impossible task. And, although Honeywell insists that Coffman and Sommer have
misunderstood how the TPE-331 engine works, Honeywell has not offered, at least not in
connection with the instant motion, any evidence to support its contention that a TPE-331
engine does not work the way Coffman and Sommer said. Contrary to Honeywell’s
contention, in his rebuttal report, Coffman did not unequivocally state that the engine would
not spool down if the torsion shaft failed. Rather, Coffman merely stated that he had learned
that an engine may continue to operate after a torsion shaft fails. With what is currently
before it, the court is not convinced that Coffman’s and Sommer’s testimony about the cause
of the black smoke is irrelevant. Coffman’s and Sommer’s testimony may be wrong as
20Report of Findings at 21, Exhibit 6, Plaintiff’s Responses to Honeywell’s Motion
in Limine To Exclude the Testimony of Colin Sommer and Arthur Lee Coffman, Docket No.
278.
21Sommer Deposition at 71:17-21, Exhibit C, Honeywell’s Motion in Limine No. 12
[etc.], Docket No. 403.
-8-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 8 of 9

regards their understanding of how the TPE331 engine works; but that goes to the weight of
their opinions and testimony, not to relevancy. Their testimony about the black smoke is not
inadmissible for lack of relevancy.
But even if the black smoke testimony is relevant, which it is, Honeywell argues that
it should still be excluded under Rule 403 which provides that relevant evidence may be
excluded “if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, [or] misleading the jury[.]” Honeywell
argues that Coffman’s and/or Sommer’s testimony about the black smoke would lead a jury
to believe that an engine shutting down can cause black smoke, which Honeywell argues is
simply not the case for the engine that was in the accident aircraft.
This is yet another argument that Coffman and Sommer misunderstood how the
TPE331 engine operates. Honeywell may be able to prove as much at trial, but this does not
create a Rule 403 problem. The black smoke testimony will not be excluded on the grounds
that it is more prejudicial than probative.
Conclusion
Honeywell’s motion in limine No. 12 is granted in part and denied in part. The
motion is granted as to any opinions from Isham as to the cause of the black smoke. Such
opinions from Isham are precluded. The motion is otherwise denied.
DATED at Anchorage, Alaska, this 28th day of June 2021.
/s/ H. Russel Holland
United States District Judge
-9-
Case 3:15-cv-00112-JMK Document 527 Filed 06/28/21 Page 9 of 9