
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1280              JUDITH A. VADALA, EXECUTRIX OF THE ESTATE OF P.A. VADALA,                 a/k/a PATRICK A., and VADALA MANAGEMENT CORPORATION,                               Plaintiffs, Appellants,                                          v.                              TELEDYNE INDUSTRIES, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Patricia  D. Stewart  with whom  Timothy  J.  Healey and  Healey &            ____________________             ___________________      ________        Stewart were on brief for appellants.        _______            Peter M. DelVecchio with whom Jerome  M. Leonard and Ropes  & Gray            ___________________           __________________     _____________        were on brief for appellee.                                 ____________________                                   January 10, 1995                                 ____________________                 BOUDIN,  Circuit Judge.   In  December of  1986, Patrick                          _____________            Vadala purchased a used  twin-engine Cessna airplane; at that            time, both the airplane  and the engines (made by  a division            of Teledyne Industries) were approximately 20 years old.   On            July  14,  1988, after  logging fewer  than  50 hours  on the            airplane, Vadala reported a loss of oil pressure in the right            engine to air traffic controllers while attempting to land at            Taunton Airport in Massachusetts.  Several minutes later, the            plane crashed and burned.  Vadala was killed, and most of the            wreckage was destroyed in the post-crash ground fire.                 Vadala's widow Judith  and Vadala Management  Corp., the            title owner of the plane,  sued Cessna and Teledyne, alleging            negligence and  breach of  warranty under  Massachusetts law.            The plaintiffs  settled with Cessna, leaving  Teledyne as the            sole  defendant.  Nearly three years  after the complaint was            served, Teledyne  moved for  summary judgment.   The district            court  granted  Teledyne's  motion  on the  ground  that  the            plaintiffs  had failed  to adduce  evidence to  support their            theory of  causation.  To understand  the plaintiffs' theory,            and  the   district  court's  reasoning,  requires   a  brief            technical explanation.                 Each  of  the Teledyne  engines  mounted  on the  Cessna            contained a  component, known as a  viscous torsional damper.            The damper attaches to the engine and functions to reduce the            engine's  twisting (or  "torsional") vibration.   Without the                                         -2-                                         -2-            damper,  the torsional  vibration of  the engine  might place            undue strain  on other  engine parts.   Control of  torsional            vibration  is  required  in  order  to  comply  with  Federal            Aviation Administration regulations.                 The  Teledyne damper  is a  small disk  comprised of  an            inner brass ring that floats in a very thin layer of silicone            fluid;  the  ring and  fluid are  encased  by an  outer steel            shell.   The silicone  fluid absorbs the  torsional vibration            and  dissipates   it  as  heat.     Exposure  to   very  high            temperatures, however, will cause  the silicone in the damper            to  solidify,  becoming  first  a  gel  and  then  a  rubbery            substance.  This process is  known as "polymerization."  When            polymerization   occurs,   the   damper's  effectiveness   is            decreased.                 An  investigation of the plane and the crash site by the            National  Transportation Safety Board  concluded that at some            point--either during  the Cessna's final  flight or afterward            in  the  ground  fire--the  silicone in  the  right  engine's            viscous torsional  damper had  polymerized.  The  left-engine            damper  had also  polymerized.   The accident  was apparently            caused when an engine  part in the right engine,  the starter            adapter, came loose from the bolts that hold it to the engine            and  compromised the oil seal,  causing the oil  to drain out            and  the  engine to  fail.   The  NTSB investigation  did not            determine what caused the holddown bolts to come loose.                                         -3-                                         -3-                 The  plaintiffs alleged  that  the  right-engine  damper            polymerization occurred  during  the flight,  which caused  a            ball  bearing  to fail,  which in  turn  caused the  bolts to            loosen.   Teledyne contended that the polymerization occurred            after the crash  in the ground fire,  and that polymerization            would not in  any event lead  to ball  bearing failure.   The            district court  looked no further than  the plaintiffs' first            premise--that  polymerization  occurred  during, rather  than            after,  the flight--and found it to be unsupported.  That was            the  basis  for the  grant of  summary  judgment in  favor of            Teledyne.                 We review a grant  of summary judgment de novo  and view                                                        _______            the  record  in the  light  most favorable  to  the nonmoving            party.   FDIC v. Bay  Street Development Corp.,  32 F.3d 636,                     ____    _____________________________            639  (1st Cir. 1994).  Here, given their theory of causation,            the plaintiffs bore the burden of  proof to show that it  was            more likely  than not that  in-flight polymerization occurred            in  the right engine damper.   E.g., Carey  v. General Motors                                           ____  _____     ______________            Corp., 387 N.E.2d  583, 585 (Mass.  1979).  Plaintiffs'  task            _____            was  to show  a  genuine factual  dispute  on this  issue  by            pointing  to  evidence  from  which  a  jury  could  find  in            plaintiffs' favor.  Anderson v. Liberty Lobby, Inc., 477 U.S.                                ________    ___________________            248 (1986).                 To show  that polymerization occurred  during the flight            and  not afterward in the  ground fire, the plaintiffs relied                                         -4-                                         -4-            centrally on affidavits and  depositions of their expert, Roy            Bourgault.  This circuit has previously held that in order to            defeat a motion for summary  judgment, an expert opinion must            "at  least include  the  factual  basis  and the  process  of            reasoning  which  makes the  conclusion  viable."   Hayes  v.                                                                _____            Douglas Dynamics, Inc., 8 F.3d 88, 92  (1993).  We agree with            ______________________            the  district court  that the  factual basis  and  process of            reasoning relied on by the plaintiffs' expert do not make his            conclusions viable.                 Bourgault examined the damper  from the right engine and            concluded that  the polymerization  had  occurred during  the            flight.    He  based  his opinion  on  his  observation  that            components  adjacent  to  the  damper in  the  right  engine,            namely, the rubber  oil seal and O rings, showed  no signs of            heat damage from the ground fire; he therefore  inferred that            polymerization  must have occurred  during flight rather than            in  the  ground fire.   As  the  district court  pointed out,            however,  Bourgault  admitted  that   he  had  no  idea  what            temperature would be required to alter  the appearance of the            O rings and oil seal.                 Bourgeault's admission is  especially damning because it            had to  be clear  to  the plaintiffs  that pretty  persuasive            testimony  from  the  expert  was needed  to  cope  with  the            inference that the right  engine damper had polymerized after            the crash.   After all,  there had  been a severe  post crash                                         -5-                                         -5-            fire; the left engine damper was also found to be polymerized            to  approximately the same extent as the right; and there was            no claim that it had been damaged in flight.  The NTSB report            said that the right engine "suffered fire and impact damages"            and, in cataloguing damaged parts, said that the right engine            damper   "had   received   extensive  heating   damage--paint            blackened and blistered."                  Abstractly,  Bourgault's conclusion that  the damper had            not been damaged by  ground-fire heat depended on the  notion            that any ground-fire heat sufficient to cause  polymerization            would also have altered the appearance of the rubber oil seal            and  O rings.  The  inference is difficult  to sustain unless            the expert  has some  notion  of how  susceptible the  latter            parts  were  to  having  their appearance  altered  by  heat.            Bourgault's testimony leaves the  impression that he had very            little idea.  Of course, he  may have had an answer--one  can            imagine  several--but  none  appears  in  his  deposition  or            affidavits.                 The only other important  basis for Bourgault's  opinion            lies  in four documents:   two Teledyne  service bulletins, a            test report  done for  Teledyne by  another company,  and the            advertisement  of a competitor.  One of the bulletins and the            test report can fairly be taken to suggest that in some cases            engine heat has caused premature reduction or loss of damping            capability in  some of  Teledyne's dampers.   Teledyne (among                                         -6-                                         -6-            other rejoinders) asserts that these  materials may establish            that dampers could  suffer in-flight damage but that  this is            no  evidence  that  the  right-engine  damper  in  this  case                                                           ______________            suffered such damage.                 This  overstates the  matter.   Certainly the  fact that            there  is a  pattern of  occurrences, reflecting  an apparent            cause and effect sequence, can strengthen the likelihood that            the  present case is  one more in  the pattern.   This is how            human beings  reason about circumstantial evidence.   But the            strength of the inference depends very much on further facts,            for example, the comparative frequency of the pattern and the            tightness of the match between  the perceived pattern and the            present accident.                 In this  case, the  materials do  not indicate  that in-            flight, heat-caused  damper failure  is a major  problem that            occurs  often; and  as for  fit, the  materials  may actually            counter the  plaintiffs' inference by  suggesting that  other            features--not present  here--tend to increase  the likelihood            of,  or  occur with,  in-flight  damper failure.    Thus, the            documents  may be of  slight help to  Bourgault's surmise, or            may actually hinder it;  but either way, they do  not bolster            his opinion sufficiently to permit a reasonable factfinder to            conclude that  this damper more  probably than not  failed in            flight.                                         -7-                                         -7-                 At oral argument, plaintiffs' counsel suggested that the            district court decision may  conflict with Daubert v. Merrill                                                       _______    _______            Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).  Daubert's            _________________________            holding--that a  scientific principle  may  sometimes be  the            basis  for expert  testimony  even if  it  is not  "generally            accepted"--has nothing  to do with  this case,  in which  the            dispute concerns an event rather than a scientific law.  More            pertinent  is  Daubert's countervailing  precept:    that the                           _______            trial  judge is  assigned  "the  task  of  ensuring  that  an            expert's testimony both rests on a reliable foundation and is            relevant to the task at hand."  113 S. Ct. at 2799.                 The  district  judge  properly  relied  on  this  latter            precept  in  deciding  that  Bourgualt's  testimony  did  not            constitute admissible expert evidence.   This was not because            of any flawed scientific principle--heat admittedly can cause            in-flight   polymerization--but   because   there    was   no            substantial  basis for concluding  that it had  done so here.            The same  result would  follow even if  Bourgault's testimony            were  admitted for what it  is worth; the  evidence not being            sufficient to  permit  a  reasonable  jury  to  find  in  the            plaintiffs'  favor,  the court  had  no  alternative but  "to            direct  a judgment,  . .  .   and likewise  to grant  summary            judgment . . . ."  Daubert, 113 S. Ct. at 2798.                               _______                 After  the  district  court  entered  summary  judgment,            plaintiffs moved to vacate the judgment under Fed. R. Civ. P.                                         -8-                                         -8-            60(b), and submitted  several additional  items of  evidence.            The district court denied  the motion on the ground  that the            evidence was  not "newly  discovered," as the  rule requires.            See, e.g.,  Parrilla-Lopez v. United States, 841  F.2d 16, 19            ___  ____   ______________    _____________            (1st  Cir. 1988).    The court  also  explained why  the  new            evidence,   even  if   considered,   would   not  alter   its            conclusions.  Because the first ground is sufficient, and the            belated evidence not especially potent, no further discussion            of the point is necessary.                 Finally, we have considered other claims offered on both            sides  but found them  lacking in substance.   In particular,            the  defense  expert  assuredly did  not  concede plaintiffs'            theory of causation; nor  is it plausible for the  defense to            argue that plaintiffs waived their entire claim by failing to            object  to  a  supposed  uncontested fact  submitted  by  the            defendant.  Judges, like  everyone else, have their failings;            but  in devising their  arguments, counsel ought  to give the            bench some credit for common sense.                 Affirmed.                 ________                                         -9-                                         -9-
