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
Motion to Strike August 6, 2019 Sommer Affidavit
Defendant Honeywell International Inc. moves to strike the August 6, 2019 affidavit
of Colin Sommer.1 This motion is opposed.2 Honeywell has withdrawn its request for oral
argument,3 and the court deems oral argument unnecessary.
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. Plaintiffs, which are the
estates of the passengers and Rediske, assert wrongful death, negligence, strict liability and
breach of warranty claims against defendants Honeywell International, Inc.; Recon Air
Corporation; and Texas Turbine Conversions, Inc.
1Docket No. 298.
2Docket Nos. 324 and 325.
3Docket No. 358.
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The subject aircraft was modified in 2010. The modifications were approved under
Supplemental Type Certificates (STCs) and included a Texas Turbine Engine Conversion
and a Baron Short Takeoff & Landing (STOL) kit. The engine conversion included the
installation of a Honeywell TPE331 turbine engine. Recon Air installed both the engine and
the Baron STOL Kit.
Colin Sommer is one of plaintiffs’ retained experts. On December 22, 2016,
Sommer’s original expert report was disclosed.4 In that report, Sommer offered eleven
opinions:
1. Pilot Rediske was qualified and properly certificated to
act as pilot in command of N93PC during the subject
flight.
2. The witness statements and video evidence of the crash
are supportive of an inflight engine failure compounded
with an aft center of gravity, which resulted in loss of the
control of the aircraft.
3. Installation of the STOL kit by Recon changed the center
of gravity envelope for the aircraft. The aft of limits
center of gravity during the subject flight was exacer-
bated by the STOL kit installation.
4. The torsion shaft aft bushing failed and caused heavy
damage and scoring to the torsion shaft aft bushing land.
5. The torsion shaft runout was far beyond normal specifi-
cations for type of application.
6. The torsion shaft in the subject Honeywell International,
Inc. TPE331-10R-511C failed in-flight, shortly after
departure from the Soldotna Airport in Soldotna, AK.
This is evidenced by the damage to the torsion shaft aft
4Exhibit D, Plaintiffs’ Responses to Honeywell’s Motion to Strike Colin Sommer’s
August [6] 2019 Affidavit, Docket No. 324.
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bushing land and condition of the inner diameter of the
main shaft.
7. The condition of the compressor impellers and turbine
wheel assemblies is consistent with an engine that was
not producing power at impact. There was relatively
little damage to the tips of the turbine blades, all turbine
blades remained securely attached to the wheels and the
convex surfaces of the turbine blades didn’t contain a
significant amount of metal spray.
8. The post-crash condition of impeller blade leading edges
and lack of foreign object damage to the impeller is
further evidence that the engine was not producing power
when it impacted the ground.
9. Michael Selhay noted in his initial investigation a lack of
metal spray and lack of foreign object debris (FOD)
damage in the engine, both of which support an engine
failure. Honeywell later changed their opinion to include
evidence of metal spray and FOD damage when they
submitted their report to the NTSB.
10. The propeller showed signatures of low power and high
RPM at the time of impact.
11. Due to the sudden reduction in engine power with the
aircraft in a climb attitude and an aft of limits CG, the
aircraft pitched up and stalled. Pilot Rediske was unable
to recover prior to impact.[5]
On August 30, 2017, Sommer was deposed.
On September 29, 2017, Honeywell served its expert disclosures, which included
reports by David Studtmann, Paul Talbert, and Thomas Gabrielson.
On October 16, 2017, Honeywell, as part of a supplemental document production,
produced engineering documents for the main shaft assembly and the torsion shaft bushing,
as well as the manufacturing and inspection records for the torsion shaft.
5Id. at 21-22.
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On December 11, 2017, a rebuttal report by Sommer was disclosed.6 Sommer stated
that his rebuttal report was “being issued to address the opinions set forth within Dr. Orloff’s
report relating to the crash of N93PC[.]”7 Dr. Orloff is an expert retained by defendant
Recon Air.
In August 2019, in support of their responses to Honeywell’s summary judgment
motion and motions to exclude expert testimony, plaintiffs submitted a 15-page affidavit
from Sommer dated August 6, 2019. Honeywell contends that this “affidavit contains
untimely and improper new, rebuttal, and cumulative opinions.”8 More specifically,
Honeywell contends that:
a. Paragraphs 1-12 contain cumulative as well as new
information about Sommer’s qualifications and method-
ologies that he allegedly employed to render opinions for
this accident.
b. Paragraph 13 contains: (1) cumulative opinions previ-
ously disclosed; (2) new rebuttal testimony to
Honeywell’s Daubert challenges as well as to the opin-
ions disclosed on September 29, 2017 by Honeywell
experts Thomas Gabrielson and David Studtmann; and
(3) an entirely new opinion, and purported factual basis
for same, regarding whether the fluctuations in the
engine’s RPMs could have been caused by pilot action.
c. Paragraphs 14-18 are directed at Plaintiffs’ theory that
the torsion shaft sheared mid-flight and that the shear
6Exhibit D, Honeywell’s Motion to Strike the New Affidavit of Colin Sommer,
Docket No. 298.
7Id. at 1.
8Honeywell’s Memorandum in Support of its Motion to Strike the New Affidavit of
Colin Sommer at 4, Docket No. 299.
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was caused by a manufacturing defect in the torsion shaft
(i.e. a bend). These paragraphs contain: (1) new pur-
ported qualifications for the purpose of attempting to
bolster Sommer’s basis for testifying about the torsion
shaft failure; (2) untimely rebuttal opinions directed at
the opinions of Honeywell’s expert Paul Talbert; and (3)
new opinions regarding torque capacity allegedly neces-
sary to shear the torsion shaft.[9]
Honeywell now moves to strike Sommer’s August 6, 2019 affidavit because it
contains improper and untimely expert opinions.
Discussion
“Rule 26 requires that a testifying expert witness provide a signed report containing,
among other things, ‘a complete statement of all opinions the witness will express and the
basis and reasons for them[.]’” Allen v. Amer. Capital Ltd., 287 F. Supp. 3d 763, 794 (D.
Ariz. 2017) (quoting Fed. R. Civ. P. 26(a)(2)(B)). “The purpose of the expert disclosure rule
is to ‘provide opposing parties reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses.’” Amer. Student
Financial Group, Inc. v. Aequitas Capital Management, Inc., Case No. 12–cv–2446–CAB
(JMA), 2015 WL 11237474, at *1 (S.D. Cal. Sept. 15, 2015) (quoting Rembrandt Vision
Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (Fed. Cir.
2013)).
9Id. at 4-5 (internal citations omitted).
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Honeywell contends that the August 6 affidavit contains a number of new opinions,
which cannot be considered supplementation. Parties have a continuing obligation to
supplement expert reports “in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1)(A). “‘Supplementation . . .
means correcting inaccuracies, or filling the interstices of an incomplete report based on
information that was not available at the time of the initial disclosure.’” Reinsdorf v.
Skechers U.S.A., 922 F. Supp. 2d 866, 880 (C.D. Cal. 2013) (quoting Keener v. United
States, 181 F.R.D. 639, 640 (D. Mont. 1998)). “[A] supplemental expert report that states
additional opinions or ‘seeks to strengthen or deepen opinions expressed in the original
expert report’ is beyond the scope of proper supplementation and subject to exclusion under
Rule 37(c).” Plumley v. Mockett, 836 F. Supp. 2d 1053, 1062 (C.D. Cal. 2010) (quoting
Cohlmia v. Ardent Health Servs., LLC, 254 F.R.D. 426, 433 (N.D. Okla. 2008)). “To
construe supplementation to apply whenever a party wants to bolster or submit additional
expert opinions would wreak havoc in docket control and amount to unlimited expert opinion
preparation.” Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 310 (M.D.N.C. 2002).
Honeywell contends that in the August 6 affidavit, Sommer opines for the first time
1) that “it would have been impossible for the pilot to repetitively move
the wheel by hand in a constant manner to generate a sound similar to
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what is on the iPhone video[;]”
2) that “the engine fluctuations which occurred on the video up to the
point of impact [were] consistent with the in-flight failure of the engine
and torsion shaft” and that these engine fluctuations “could not have
been caused by pilot input[;]” and
3) about the torque necessary to shear the torsion shaft.10
Plaintiffs dispute that Sommer’s August 6 affidavit contains any new opinions. They
argue that in the August 6 affidavit, Sommer is merely expanding on or clarifying his
opinions.11 Averments that “merely expand upon or clarify initial opinions that the
defendants had an opportunity to test during discovery” should not be stricken. Wilson Road
Development Corp. v. Fronabarger Concreters, Inc., 971 F. Supp. 2d 896, 903 (E.D. Mo.
2013). Plaintiffs insist that Sommer has consistently opined that there was engine failure on
takeoff and that the torsion shaft bent before installation of the engine. As for the allegedly
new opinion about the trim wheel, plaintiffs point out that at his deposition, Sommer testified
that the metallic sound heard on the iPhone video would not have been made by the flaps,
that “[t]he trim wheel wouldn’t make that noise[,]” and that the boost pump, control surfaces,
10August 6 Sommer Affidavit at 5-6, ¶ 13a; 10, ¶ 18, Exhibit C, Plaintiffs’ Responses
to Honeywell’s Motion to Strike Colin Sommer’s August [6], 2019 Affidavit, Docket No.
324.
11Plaintiffs also contend that Sommer’s August 6 affidavit does not contain any
rebuttal opinions, a contention with which the court agrees.
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and retractable gear would not have made that noise.12 Sommer testified that “I’ve used
dozens, hundreds of trim wheels, and I can’t imagine how it would make that” noise.13 As
for the allegedly new opinion about the engine fluctuations not being caused by the pilot,
plaintiffs point out that at his deposition, Sommer testified that the engine fluctuations were
in accordance with the engine spooling down and the governor
trying to control the propellor speed. So as the power’s lost to
the drivetrain, the governor’s going to flatten out the blades in
an attempt to maintain RPM. And it’s going to do that some-
what cyclically because it’s a hysteresis based system that is
going to chase the appropriate RPM. And that would be
consistent with the loss of the torsion shaft.[14]
Plaintiffs acknowledge that Sommer never expressly testified that the pilot could not have
made the engine RPM fluctuations but they argue that this is a logical clarification of his
opinion that the engine failure was caused by the shearing of the torsion shaft. In other
words, plaintiffs contend that because it was Sommer’s opinion that the engine failure was
caused by the shearing of the torsion shaft, it follows that the engine failure could not have
been caused by anything the pilot did. As for the allegedly new opinion about the torque
necessary to shear the torsion shaft, plaintiffs argue that all Sommer is doing in the August
6 affidavit is responding to “Honeywell[’s] claim[] that I made no calculations regarding the
12Deposition of Colin Sommer at 56:23-57:5, Exhibit A, Plaintiffs’ Responses to
Honeywell’s Motion to Strike Colin Sommer’s August [6], 2019 Affidavit, Docket No. 324.
13Id. at 27:22-23.
14Id. at 59:23-60:6.
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erroneous reading on the torque gauge in the cockpit.”15 Plaintiffs argue that in paragraph
18 Sommer is pointing out that he did offer an opinion about torque and clarifying that his
opinion did not change once he reviewed Honeywell’s engineering data, which was not
provided until after his deposition, and performed his own calculations based on this data.
Assuming for the sake of this order that Sommer’s August 6 affidavit could be
considered a supplementation of an expert’s report, it was not a timely expert disclosure. The
original scheduling and planning order in this case provided that “[d]isclosures and discovery
responses shall be supplemented in accordance with Rule 26(e) . . . [a]s new information is
acquired, but not later than 60 days before the close of discovery.”16 All discovery in this case
closed on May 31, 2019.17 Thus, any supplementation of expert reports was due by April 1,
2019. The August 6 affidavit was filed several months too late.
“Failure to comply with” with expert disclosure requirements “prevents a party from
using the expert’s non-disclosed testimony ‘on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or harmless.’” Allen, 287 F. Supp. 3d at794 (quoting Fed.
R. Civ. P. 37(c)(1)).
“Several factors [] guide the determination of whether substan-
tial justification and harmlessness exist, including (1) prejudice
or surprise to the party against whom the evidence is offered; (2)
15August 6 Sommer Affidavit at 10, ¶ 18, Exhibit C, Plaintiffs’ Responses to
Honeywell’s Motion to Strike Colin Sommer’s August [6] Affidavit, Docket No. 324.
16Scheduling and Planning Order at 3-4, Docket No. 54.
17Order re Amended Scheduling and Planning Order at 1, Docket No. 200.
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the ability of that party to cure the prejudice; (3) the likelihood
of disruption of trial; and (4) bad faith or willfulness in not
timely disclosing the evidence.”
Amarin Pharma, Inc. v. West-Ward Pharmaceuticals Int’l Ltd., 407 F. Supp. 3d 1103, 1116
(D. Nev. 2019) (quoting Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev.
2017)).
Plaintiffs argue that the late disclosure was harmless. Plaintiffs argue that Honeywell
cannot claim that it was surprised by Sommer’s averments as he was merely clarifying his
opinions. Plaintiffs also argue that Honeywell cannot claim prejudice because Sommer was
reiterating, clarifying, or expanding on his previously expressed opinions and because
Honeywell could re-depose Sommer if his August 6 affidavit were considered untimely
disclosed supplementation. Plaintiffs emphasize that a trial date has not been set in this
matter and that motions in limine are not due until 30 days after the court rules on dispositive
motions.
The late disclosure was not harmless. The August 6 affidavit was offered in response
to Honeywell’s motion for summary judgment and long after Sommer was deposed. By
waiting to submit Sommer’s affidavit until after dispositive motions had been filed, plaintiffs
have put Honeywell in the position of being unable to respond to this “clarification” of
Sommer’s opinions. While Honeywell could possibly re-depose Sommer, it is likely that
Honeywell would then have to refile its motion for summary judgment, a motion that is fully
briefed. Allowing plaintiffs to rely on this untimely disclosure would significantly disrupt
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the schedule for this case and allow plaintiffs to do an end run around the timing require-
ments of Rule 26 and the court’s scheduling and planning orders.
Conclusion
Honeywell’s motion to strike Sommer’s August 6 affidavit18 is granted. Plaintiffs may
not rely on Sommer’s August 6, 2019 affidavit and this affidavit is stricken from the record.
DATED at Anchorage, Alaska, this 22nd day of April, 2020.
/s/ H. Russel Holland
United States District Judge
18Docket No. 298.
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