                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2002

Stecyk v. Bell Helicopter
Precedential or Non-Precedential: Precedential

Docket No. 99-2030




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PRECEDENTIAL

       Filed July 3, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-2030/99-2051

MICHELLE S. STECYK, individually, as Executrix of the
ESTATE OF ANTHONY J. STECYK, JR., and on behalf of
ANTHONY L. STECYK, minor

v.

BELL HELICOPTER TEXTRON, INC.; DOES, 1 THOUGH
5, INCLUSIVE; UNITED STATES OF AMERICA

       (District Court #94-cv-1818)

DOROTHY L. RAYBURN, individually, as surviving spouse
of ROBERT K. RAYBURN, deceased, and on behalf of
ALAN M. RAYBURN and JACQUELINE M. RAYBURN,
surviving children of ROBERT K. RAYBURN, deceased;
ROBERT L. ANDERSON, as Executor for the Estate of
ROBERT K. RAYBURN, deceased;

v.

THE UNITED STATES OF AMERICA; BELL HELICOPTER-
TEXTRON, INC., a foreign corporation; TEXTRON INC., a
foreign corporation; ALLISON GAS TURBINE DIVISION OF
GENERAL MOTORS CORPORATION, a foreign corporation;
MACROTECH FLUID SEALING, INC., C.D.I. DIVISION
MICRODOT, INC., MICRODOT/CDI MICRODOT, INC.,
MACROTECH/CDI d/b/a MACROTECH, INC.; ALLISON
ENGINE COMPANY, INC.;

       (District Court #94-cv-4342)




KATHLEEN K. MAYAN, individually, as surviving spouse
of GERALD W. MAYAN, DECEASED, and as
Administratrix of the Estate of GERALD W. MAYAN,
deceased, and on behalf of JAMES PAUL MAYAN,
GERALD VINCENT MAYAN II and JAKE DANIEL MAYAN,
surviving sons of GERALD W. MAYAN, deceased

v.

THE UNITED STATES OF AMERICA; BELL HELICOPTER-
TEXTRON, INC.; TEXTRON, INC.; ALLISON GAS TURBINE
DIVISION OF GENERAL MOTORS CORPORATION;
MACROTECH FLUID SEALING, INC. dba MACROTECH,
INC.; MACROTECH/CDI; MICRODOT INC.;
MICRODOT/CDI, and/or C.D.I. DIVISION MICRODOT,
INC.; ALLISON ENGINE COMPANY, INC.
       (District Court #94-cv-4343)

       Dorothy Rayburn and Kathleen
       Mayan,
       Appellants (No. 99-2030)

       Bell Helicopter Textron Inc.
       Appellant (No. 99-2051)

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action Nos. 94-cv-01818/04342/04343)
District Judge: Honorable Eduardo C. Robreno

Argued on March 1, 2001

Before: SLOVITER, NYGAARD and ROTH, Circuit Ju dges

(Opinion filed July 3, 2002)

                                2


       Steven R. Punian, Esquire (Argued)
       Milton G. Sincoff, Esquire
       Andrew J. Maloney, III, Esquire
       Jacqueline M. James, Esquire
       Kreindler & Kreindler
       100 Park Avenue
       New York, NY 10017

        Attorneys for Appellants/Cross-
       Appellees Dorothy L. Rayburn and
       Kathleen K. Mayan

       Patrick J. O’Connor, Esquire
        (Argued)
       Thomas R. Harrington, Esquire
       John F. Mullen, Esquire
       James E. Robinson, Esquire
       Cozen & O’Connor
       1900 Market Street - The Atrium
       Philadelphia, PA 19103

        Attorneys for Appellee/Cross-
       Appellants Bell Helicopter Textron
       Inc.

       Ralph G. Wellington, Esquire
       J. Denny Shupe, Esquire
       Michael J. Colleran, Esquire
       Schnader, Harrison, Segal & Lewis
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103

        Attorneys for Appellee
       General Motors Corporation

       David N. Zeehandelaar, Esquire
        (Argued)
       Sheryl L. Axelrod, Esquire
       Blank, Rome, Cominsky & McCauley
       One Logan Square
       Philadelphia, PA 19103

        Attorneys for Appellee
       Macrotech Fluid Sealing, Inc.

                                3


OPINION OF THE COURT

ROTH, Circuit Judge:

These wrongful death actions arose out of the July 20,
1992 crash of a V-22 Osprey aircraft near Quantico,
Virginia. Plaintiffs are representatives of the estates of two
of the seven members of the crew. Defendants designed,
manufactured, and tested the Osprey and the components
at issue in this case. A jury trial resulted in judgment for
defendants. On appeal, plaintiffs challenge several of the
District Court’s evidentiary rulings.

For the reasons stated below, we will affirm the District
Court’s final judgment.

I. FACTS

The twin-engine Osprey combines the vertical takeoff and
landing capability of a helicopter with the cruising speed
and flying capabilities of a fixed wing aircraft. Bell
Helicopter Textron, Inc., along with Boeing Vertol Company,
designed and developed the Osprey under a contract with
the federal government. General Motors Corporation
designed and manufactured the engines under a separate
contract with the government. Macrotech Fluid Sealing,
Inc., manufactured the torquemeter shaft seal, known as
the "617 seal," under a subcontract with the Bell-Boeing
team.

On July 20, 1992, the Osprey crashed while in the
transition stage from airplane to helicopter flight. The
Osprey was attempting to land at the Quantico military
field after a two hour and forty-four minute flight from
Eglin Air Force Base in Florida. The plane’s three U.S.
Marine pilots, together with four Boeing engineers, were
killed.

The accident was investigated by a U.S. Navy Court of
Inquiry. The Court of Inquiry’s findings were then
forwarded to a superior Naval authority for review, referred
to as the First Endorsement. The Endorsement became part
of the Court of Inquiry Report.

                                4


At trial, the District Court admitted the Report, including
the Endorsement, into evidence. Both the Court of Inquiry
and the Endorsement agreed that the crash occurred after
a flammable fluid was ingested by the aircraft’s right engine
as the craft was attempting to land. The Court of Inquiry
stated that the right torquemeter shaft seal (the 617 seal)
was installed backwards and leaked, providing "the most
probable primary causal factor for the mishap." However,
the Endorsement did "not concur" with this conclusion. The
Endorsement stated that improper installation of the 617
seal was only one possible source of the leaked flammable
fluid.

Plaintiffs’ theory was that the crash was caused by a
transmission oil leak past a 617 seal that had been
installed backwards by Boeing mechanics. They contended
that Bell and Macrotech were negligent in not designing a
"Murphy-proof " seal which could not be reversed. While
such a "two-way" seal has been installed in subsequent
versions of the Osprey, the District Court precluded
evidence of this post-incident remedial measure.

For the defense, Bell contended that a 617 seal would not
leak even if reversed and presented an alternate theory of
causation that the engine failure was caused by hydraulic
fluid, not transmission oil.

Bell presented evidence of three separate tests which
concluded that a reversed 617 seal did not leak. The first
test (1992 test) had been performed by Bell employee Ken
Wilson at the request of the Court of Inquiry. The 1992
test, which was discussed in both the Court of Inquiry’s
findings and the Endorsement, concluded that a reversed
617 seal subjected to the same range of RPMs, torque,
power, heat, pressure and tilt angles as the 617 seal on the
Osprey did not leak. Plaintiffs’ experts criticized the 1992
test in several ways, including challenging the use of "new"
seals and contending that the test’s one hour and twenty
minute duration was too short. Plaintiffs did not object to
the admission into evidence of the 1992 test.

The two other reversed 617 seal tests, conducted in 1997
and 1998, were performed at Bell’s request by Wilson, who
had retired from Bell in 1995. These two tests were

                                5


videotaped, and Bell produced these videotapes to plaintiffs
five months before trial.

During the defense case at trial, when Bell attempted to
elicit testimony from Wilson about the 1997 and 1998
tests, plaintiffs objected based, inter alia, on "unfair
surprise." The court excused Wilson and ordered him and
defense expert Dr. Thomas Eagar to produce supplemental
reports for plaintiffs by 5 p.m. that day, a Friday. Shortly
thereafter, the court recessed trial until Tuesday to give
plaintiffs the opportunity to consult with their own experts
and depose Wilson and Dr. Eagar, if appropriate.

When trial resumed on Tuesday morning, plaintiffs
confirmed that they had received the reports and declined
to take any additional depositions. They asked the court to
exclude Wilson’s videotaped tests on the ground that they
were not substantially similar to the conditions on the
Osprey. After hearing argument about substantial
similarity, the court admitted the 1997 and 1998 tests. At
the close of Wilson’s testimony, plaintiffs moved to strike
his testimony regarding the 1997 and 1998 tests, again on
grounds of substantial similarity, and the court denied the
motion.

After Wilson testified, Dr. Eagar testified as an expert on
failure analysis, testing with respect to failure analysis, and
materials science. He presented an alternate theory of
causation, opining that the Osprey’s engine failure was
caused by hydraulic fluid, not transmission oil.

After a six week trial, the jury returned a verdict for the
defendants. The District Court denied post verdict motions,
and plaintiffs timely appealed to this Court.

II. STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C.
S 1332. We have jurisdiction to review the final judgment of
the District Court pursuant to 28 U.S.C. S 1291.

We review the District Court’s evidentiary rulings
principally for abuse of discretion. See General Electric v.
Joiner, 522 U.S. 136, 146 (1997) (decision to admit or
exclude expert testimony); Glick v. White Motor Co., 458

                                6


F.2d 1287, 1294-95 (3d Cir. 1972) (admission or exclusion
of tests); see also Inter Med. Supplies, Ltd. v. EBI Med. Sys.
Inc., 181 F.3d 446, 464 (3d Cir. 1999) (reviewing district
court’s admission of evidence for abuse of discretion, but
exercising plenary review over evidentiary rulings with legal
component); Complaint of Consolidation Coal Co. , 123 F.3d
126, 131 (3d Cir. 1997) (same), cert. denied, 523 U.S. 1054
(1998). To show an abuse of discretion, appellants must
show the district court’s action was "arbitrary, fanciful or
clearly unreasonable." Stich v. United States , 730 F.2d 115,
118 (3d Cir. 1984). We will not disturb a trial court’s
exercise of discretion unless "no reasonable person would
adopt the district court’s view." Oddi v. Ford Motor Co., 234
F.3d 136, 146 (3d Cir. 2000).

III. DISCUSSION

Plaintiffs first challenge the District Court’s admission of
the videotaped 1997 and 1998 tests which concluded that
a reversed 617 seal does not leak. Next, the plaintiffs argue
that Dr. Eagar’s testimony regarding a leak of hydraulic
fluid lacked an adequate factual foundation. Finally,
plaintiffs contend the District Court erred in precluding
evidence of Bell’s post-crash two-way seal designs. We
address each argument in turn.
A. The Videotaped 1997 and 1998 Tests

As proponents of the videotaped evidence, Bell had to
make a foundational showing that the 1997 and 1998 test
conditions were substantially similar to conditions on the
Osprey. See Glick, 458 F.2d at 1294; Ramseyer v. Gen.
Motors Corp., 417 F.2d 859, 864 (8th Cir. 1969). However,
as the term suggests, substantial similarity does not
require perfect identity between actual and experimental
conditions. Experimental evidence may be admitted even if
conditions do not perfectly correspond to the conditions at
issue in litigation; dissimilarities may affect the weight of
the evidence, but not its admissibility. See id. A ruling on
substantial similarity is committed to the sound discretion
of the trial judge. Id.

                                7


The record reflects that Bell satisfied this threshold of
admissibility. Wilson, who conducted the tests, explained
the protocol for each test in a written report and testified at
length about the tests. The 1997 test used an actual 617
seal installed on a replica shaft and torquemeter housing
machined from blueprints of the Osprey. The test consisted
of four phases. Each phase ran for eight to ten minutes at
pressures of up to 500 psi (pounds per square inch), which
was roughly ten times the normal operating pressure on the
617 seal on the Osprey. When oil pressure was applied to
the reversed 617 seal in this duplicate housing, the seal did
not leak.

The 1998 test used actual Osprey components including
a 617 seal, torquemeter shaft and torquemeter housing.
This configuration ran under pressure for 18 hours at 114
psi, and the reversed 617 seal did not leak. Wilson testified
that centrifugal pressure did not affect the result of the
tests. Any minimal additional pressure that would have
been generated by centrifugal forces was instead created
and surpassed by the additional pressure (500 and 114 psi)
exerted in the tests. Faced with this evidence, it was a
proper exercise of the District Court’s discretion to admit
the 1997 and 1998 tests.

By contrast, plaintiffs did not offer any rebuttal evidence
that the tests were not substantially similar to conditions
on the Osprey. Instead, plaintiffs’ counsel argued that the
1997 and 1998 tests were conducted in a static
environment, as opposed to a dynamic environment where
they would be subject to centrifugal forces and vibration.
However, as plaintiffs’ counsel admitted at oral argument,
they failed to produce a witness, a report, or any evidence
to support their argument that the lack of centrifugal forces
imposed on the seal rendered the conditions meaningfully
dissimilar. Thus, the only evidence before the District Court
was defense reports and witness testimony that the tests
were substantially similar to conditions on the Osprey. In
light of this evidence, we will not disturb the District
Court’s exercise of discretion to admit the 1997 and 1998
tests. Any dissimilarities that plaintiffs identified were
properly the subject of cross-examination.

                                8


In addition, a review of the record belies plaintiffs’
alternate contention that they were unfairly surprised by
the tests. The record reflects that plaintiffs had the
videotapes five months prior to trial and that their own
experts had viewed the videotapes. At trial, when plaintiffs
objected based on unfair surprise, the court ordered Bell to
produce supplemental reports from Wilson and Dr. Eagar
and recessed early on a Friday to give plaintiffs additional
opportunities to depose the defense witnesses and consult
with their own experts. When proceedings resumed the
following Tuesday, plaintiffs had declined to take additional
depositions. Plaintiffs argued that the tests were not
substantially similar but, as discussed above, offered no
evidence to rebut Bell’s evidence and support their
argument that a lack of centrifugal forces rendered the
tests inadmissable. Nor did plaintiffs move for a
continuance in order to get the requisite testimony.

In view of the record as set out above, we find no abuse
of discretion in the District Court’s rulings on the
admissibility of this evidence.

B. Dr. Eagar’s Testimony

Defense expert Dr. Thomas Eagar opined that the most
probable source of flammable fluid which caused the
Osprey’s engine failure was hydraulic fluid. Plaintiffs
contend that Dr. Eagar’s testimony regarding a leak of
hydraulic fluid lacked an adequate factual basis because
there was insufficient evidence of the presence of hydraulic
fluid inside the engine.

Under Rule 703 of the Federal Rules of Evidence, experts
may rely on facts from firsthand knowledge or observation,
information learned at the hearing or trial, and facts
learned out of court. Fed. R. Evid. 703.1 If the facts are of
_________________________________________________________________

1. Rule 703 provides:

       The facts or data in the particular case upon which an expert bases
       an opinion or inference may be those perceived by or made known
       to the expert at or before the hearing. If of a type reasonably relied
       upon by experts in the particular field in forming opinions or
       inferences upon the subject, the facts or data need not be
       admissible in evidence.

                                9


the type "reasonably relied upon" by experts in the
particular field in forming opinions or inferences upon a
subject, the facts or data need not be independently
admissible in evidence. Id. See In Re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 747 (3d Cir. 1994). Rule 705 provides
for the disclosure of facts underlying the expert’s opinion.
Fed. R. Evid. 705;2 see also Fed.R.Civ.P. 26(a)(2)(B) and
26(e)(1) (relating to disclosure in advance of trial of the
basis and reasons for an expert’s opinion). It is an abuse of
discretion to admit expert testimony which is based on
assumptions lacking any factual foundation in the record.
See Elcock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3d Cir.
2000) (discussing Rules 702, 703, 402 and 403 and stating
that foundational requirement for admissibility of expert
testimony is found in the "interstitial gaps" among the
federal rules). Rule 705, together with Rule 703, places the
burden of exploring the facts and assumptions underlying
the testimony of an expert witness on opposing counsel
during cross-examination. See e.g. Ratliff v. Schiber Truck
Co., Inc., 150 F.3d 949, 955 (8th Cir. 1998); Toucet v.
Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir. 1993).

Here, the record reflects a factual foundation sufficient to
support Dr. Eagar’s opinion that the most probable source
of flammable fluid was hydraulic fluid. The record shows
that, of the possible fluids involved in the accident, only
hydraulic fluid is red. A red residue was found in the
torquemeter housing. This red residue was tested for the
Court of Inquiry and found to be a good match for
hydraulic fluid. There was some hydraulic oil found in front
of the engine and it may have gotten into the engine.
Finally, a red residue containing hydraulic oil was
discovered on the engine air particle separator, adjacent to
the engine. Thus, the record reflects sufficient evidence of
hydraulic fluid solvent in places it should not have been--
_________________________________________________________________

2. Rule 705 provides:

       The expert may testify in terms of opinion or inference and give
       reasons therefor without first testifying to the underlying facts or
       data, unless the court requires otherwise. The expert may in any
       event be required to disclose the underlying facts or data on cross
       examination.

                                10


outside the engine, near the engine, and in the torquemeter
housing--to form the factual foundation for Dr. Eagar’s
testimony. It was within the discretion of the District Court
to admit such testimony.

Once Bell’s expert met the foundational requirements for
admissibility, the burden shifted to plaintiffs to explore any
deficiencies in the expert’s sources. A party confronted with
an adverse expert witness who has sufficient, though
perhaps not overwhelming, facts and assumptions as the
basis for his opinion can highlight those weaknesses
through effective cross-examination. See Ratliff , 150 F.3d at
955; Toucet, 991 F.2d at 10; cf. Daubert v. Merrell Dow
Pharm, Inc., 509 U.S. 579, 596 (1993) ("Vigorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible
evidence."). The District Court properly exercised its
discretion in admitting the testimony and permitting
appropriate cross-examination of Dr. Eagar.3
_________________________________________________________________

3. We appreciate our dissenting colleague’s criticisms of the factual
foundation for Dr. Eagar’s testimony. These criticisms, however, raise
precisely the type of issues that must be resolved by a fact-finder having
the benefit of the adversary process. By raising these concerns, the
dissent effectively conducts an independent evaluation of the weight of
the evidence -- an exercise that we believe exceeds the appropriate
boundaries of an abuse of discretion review. While the Federal Rules of
Evidence call upon the courts to serve as gatekeepers who independently
evaluate the admissibility of expert opinion testimony, they rely upon the
discretion of the trial courts -- not the discretion of the courts of
appeals. See In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999). Because
the record contains some factual basis -- albeit shaky -- for Dr. Eagar’s
testimony, the District Court did not abuse its discretion in performing
this gatekeeping function.

Moreover, we disagree with the dissent to the extent it concludes that
"no reasonable expert could base an opinion" on Dr. Eagar’s factual
foundation. In re TMI Litig., 193 F.3d at 697. Such a conclusion would
reject implicitly Dr. Eagar’s qualification to testify as an expert witness
under Rule 702 -- a determination that the plaintiffs do not challenge
and that we have no reason to reverse. See Elcock, 233 F.3d at n.13
(explaining the relationship between the foundation requirements of Rule
703 and the qualification requirements of Rule 702).

                                11


C. Post-crash Seal Designs

The Federal Rules of Evidence expressly preclude the
introduction of evidence of subsequent remedial measures
to prove a party’s negligence or culpable conduct. Fed. R.
Evid. 407.4 Rule 407 rests on the strong public policy of
encouraging manufacturers to "make improvements for
greater safety." Kelly v. Crown Equipment Co. , 970 F.2d
1273, 1276 (3d Cir. 1992). A manufacturer will be
discouraged from making improvements for the greater
safety of its products if such changes can be introduced as
evidence that the previous designs were defective. Id.
Moreover, Rule 407 "operates on the presumption that
undue prejudice is likely in certain situations . . . ." Id. at
1277. Thus, courts "routinely exclude evidence of
[subsequent remedial measures] to encourage people to
take such measures whether or not they are at fault."
Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1198 (3d
Cir. 1987) ("Petree I").

Pursuant to Rule 407, the District Court excluded
evidence that a two-way seal was used on the Osprey
following the crash. However, because defendants argued
that a one-way seal design was reasonable and that a two-
way seal was more difficult to install and "not suited for the
military environment," Plaintiffs contend that evidence of
post incident use of the two-way seal was admissible for
purposes of impeachment.

While the text of Rule 407 permits admission of
subsequent remedial measures for impeachment, we have
cautioned against permitting the exception to "swallow" the
rule. See Petree v. Victor Fluid Power, Inc., 887 F.2d 34, 39
_________________________________________________________________

4. Fed.R.Evid. 407 provides:

       When, after an injury or harm allegedly caused by an event,
       measures are taken that, if taken previously, would have made the
       injury or harm less likely to occur, evidence of the subsequent
       measures is not admissible to prove negligence, culpable conduct, a
       defect in a product, a defect in a product’s design, or a need for a
       warning or instruction. This rule does not require the exclusion of
       evidence of subsequent measures when offered for another purpose,
       such as proving ownership, control, or feasibility of precautionary
       measures, if controverted, or impeachment.

                                12


(3d Cir. 1989) ("Petree II") (impeachment exception may not
be used as "subterfuge" to prove negligence). We have
recognized that, in light of the strong public policy
considerations behind the rule and the risk of undue
prejudice, the trial judge should be afforded a healthy
deference in preserving both the rule and the exception. Id.
Under Rule 407, together with the Rule 4035 unfair
prejudice/probative value weighing, the trial court retains
broad power to insure that remedial measures evidence is
not improperly admitted under the guise of the
impeachment exception. Id.

In the instant case, the record contains a significant
amount of pre-incident impeaching testimony regarding
one-way versus two-way seals. The court admitted
considerable testimony and graphic documentation of Bell’s
receipt, review, and rejection of a pre-crash alternative
design of a two-way seal from a vendor, Longhorn Gasket.
Plaintiffs cross-examined Bell’s witness on Longhorn’s two-
way seal proposal. The jury saw an exhibit which contained
a diagram of Longhorn’s two-way seal and Bell’s evaluation
of the proposal. Using evidence of Bell’s rejection of a two-
way seal prior to the crash, plaintiffs thus had the
opportunity to impeach the defense witness’s testimony
regarding the reasonableness of the 617 seal’s one-way
design without resort to prejudicial post-incident evidence.

As we stated earlier, a district court retains considerable
discretion in determining whether otherwise excludable
remedial measures evidence should be admitted under the
impeachment exception. Here, where the evidence of the
existence of a two-way seal design prior to the accident was
sufficient for plaintiffs to effectively cross-examine the
defense witness, it was a proper exercise of the District
Court’s discretion to exclude highly prejudicial post-
incident evidence. In light of the availability of this pre-
_________________________________________________________________
5. Fed.R.Evid. 403 provides:

       Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice,
       confusion of the issues, or misleading the jury, or by considerations
       of undue delay, waste of time, or needless presentation of
       cumulative evidence.

                                13


incident impeaching evidence, it was not error for the
District Court to exclude the prejudicial post-incident
remedial measures.

IV. CONCLUSION

In light of our disposition of plaintiffs’ claims, Bell’s cross
appeal is moot. Likewise, we need not address Macrotech’s
alternative grounds for affirmance. For the foregoing
reasons, we will affirm the final judgment of the District
Court.

                                14


SLOVITER, Circuit Judge, dissenting:

It is an important evidentiary principle, one that the
majority recognizes, that "[i]t is an abuse of discretion to
admit expert testimony which is based on assumptions
lacking any factual foundation in the record." Maj. Op. at
10. The District Court in this case allowed an expert to give
testimony that was "wholly lacking foundation in the
record." Elcock v. Kmart Corp., 233 F.3d 734, 754 (3d Cir.
2002). In so doing, the District Court abused its discretion.
Because the majority finds that "[t]he District Court
properly exercised its discretion in admitting [this]
testimony," Maj. Op. at 11, I dissent.

I.

DR. EAGAR’S TESTIMONY CONCERNING
CAUSE OF CRASH

Defendants, the designers, manufacturers and testers of
the troubled Osprey aircraft, argue that the crash at issue
in this case was caused when hydraulic fluid entered the
right engine of the aircraft due to a loose hydraulic fitting.
In support of this theory, Defendants offered the testimony
of Dr. Thomas Eagar. App. at 1552-1722. Dr. Eagar
testified that "the most probable source of fuel[which
caused the aircraft’s engine to fail] was the hydraulic fluid."
App. at 1627. Dr. Eagar said that he based that opinion on
the presence of red residue "all over the torque[ ]meter
housing," App. at 1627, the gas chromatography detailed in
the GM/Allison Accident Investigation and Residue
Chemical Analysis Report (henceforth, GM/Allison Report),
see App. 2380-90, the amount of fluid in the right nacelle,
the burn damage in the upper nacelle, and the fact that
there was a loose nut on the hydraulic fitting. App. at
1627-28.

Federal Rule of Evidence 703 states that "[t]he facts or
data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made
known to the expert at or before the hearing." Fed. R. Evid.
703. This rule imposes upon a trial judge the obligation to
determine whether to admit expert testimony:

                                15


       Rule 703 thus focuses on the data underlying the
       expert’s opinion. . . . "[W]hen a trial judge analyzes
       whether an expert’s data is of a type reasonably relied
       on by experts in the field, he or she should assess
       whether there are good grounds to rely on this data to
       draw the conclusion reached by the expert." If the data
       underlying the expert’s opinion are so unreliable that
       no reasonable expert could base an opinion on them,
       the opinion resting on that data must be excluded. The
       key inquiry is reasonable reliance and that inquiry
       dictates that the "trial judge must conduct an
       independent evaluation into reasonableness." Rule
       703’s reliability standard is similar to Rule 702’s
       reliability requirement, i.e., "there must be good
       grounds on which to find the data reliable."

In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999) (alteration
in original) (citations omitted) (quoting In re Paoli R.R. Yard
PCB Litig., 35 F.3d 717, 748-49 (3d Cir. 1994)).

Appellants, plaintiffs below, contend that Dr. Eagar’s
opinion that the crash was caused by a hydraulic fuel leak
lacked a factual basis and therefore the District Court
should have excluded it. Specifically, they contest each of
the three main factual predicates for Dr. Eagar’s opinion:
(1) the presence of hydraulic fluid inside the engine, (2) the
timing of the hydraulic fluid leak, and (3) the loose nut
found on a hydraulic fitting. I discuss each of these in turn.

A. Hydraulic Fluid in the Engine

At trial, a defense attorney, in discussing Dr. Eagar’s
testimony, said that "the critical evidence . . . is that the
[GM/]Allison [R]eport shows profuse quantities of hydraulic
oil in the engine, and that’s evidence of the fact that it was
hydraulic . . . oil that caused the engine to fail." App. at
1623. Appellants challenge the "critical" factual support for
Dr. Eagar’s testimony that hydraulic fluid was found inside
the engine. I agree with Appellants. The record evidence, in
particular the GM/Allison Report, does not indicate that
hydraulic oil was found inside the engine.

The key page of the report contained a number of
findings. See App. at 2389. It indicated that infra-red scans
of a red residue, taken from the engine, showed"some
                                  16


similarities" to hydraulic fluid, "but no definitive match
could be made." App. at 2389. Instead, the residue
contained glycol ether, which Dr. Eagar conceded"is
indicative of transmission oil." App. at 1922. This is
consistent with Appellants’ theory that transmission oil,
rather than hydraulic fluid, was dumped into the engine.
Further, gas chromatography of a residue taken from the
torquemeter housing "indicated a reasonable agreement" to
hydraulic fluid, and "suggest[ed] that[it] was composed of
engine oil and hydraulic fluid." App. at 2389. However, Dr.
Eagar admitted at trial that the torquemeter housing was
outside the engine. See App. at 1924. Additionally, an
earlier section in the GM/Allison Report summarized the
findings -- that hydraulic oil could only be identified
outside the engine:

       The compressor blade track areas [inside the engine]
       showed a red trace which was not sufficient to
       determine its source. The material . . . in the
       torquemeter [outside the engine] housing, also red in
       color, is a good match to the hydraulic fluid known to
       be in use on the aircraft hydraulic system.

App. at 2385. In fact, the report concluded that the red
residue found inside the engine "was most probably the
flame sprayed compressor blade track material" and not
hydraulic oil. App. at 2388. Therefore, the only data in the
report that even remotely suggested that hydraulic oil was
found inside the engine was at best inconclusive. By the
report’s own terms, "no definitive match could be made."
App. at 2389.

Additionally, in one of their briefs, Defendants suggest
that other analyses revealed hydraulic oil in the Engine Air
Particle Separator ("EAPS"). Br. of Bell Helicopter at 10.
However, there are no reports in the record that support
this assertion. Instead, Bell cites to the GM/Allison Report,
which merely states that "[t]he only remaining source
potential is from a non-engine source entrained in the inlet
airstream," App. at 2385, and Dr. Eagar’s own testimony,
App. at 1584. In any event, as the EAPS is outside the
engine, see App. at 1907, this does not support Dr. Eagar’s
conclusion that there was hydraulic fluid in the engine.

                                  17


B. Timing of the Hydraulic Leak

Appellants also challenge Defendants’ evidence
concerning the timing of the hydraulic leak that Dr. Eagar
claimed caused the crash. Dr. Eagar claimed that the
aircraft "lost over a gallon of [hydraulic] fluid" while in
flight. App. at 1628. Appellants concede that a leak
occurred. However, they argue that the hydraulic leak
resulted from, rather than caused, the engine surges and
resulting failures. As evidence for this, Appellants rely on
the time-line from the Court of Inquiry Report, App. at
2280-372, that is based on data from the plane’s flight data
recorder. According to the Court of Inquiry Report, the first
hydraulic system failed "due to a leak" which occurred
almost twenty-seven seconds after the first engine surge,
App. at 2316, which had occurred when "a flammable
substance was consumed by the engine." App. at 2315. In
addition to data from the Osprey’s flight data recorder,
other evidence discussed in the Court of Inquiry Report
suggests that hydraulic leakage occurred after engine
failure. This evidence contributed to the report’s conclusion
that oil from the proprotor gearbox got into the aircraft’s
engine. See, e.g., App. at 2363.

Dr. Eagar rejected the conclusion of the Court of Inquiry
Report and its reliance on the flight data recorder. He
explained that the Osprey’s computer system only detected
when a system failed; it did not detect when a leak began.
App. at 1929-30. He testified that a leak could be present
"for up to 43 seconds before [it] gets big enough for the
system to detect it." App. at 1930. Defendants, however,
failed to present any evidence corroborating Dr. Eagar’s
description of how the Osprey’s systems detected hydraulic
leaks. Therefore, his claim about the timing of the hydraulic
leak and his use of this claim to support his conclusion
that the hydraulic leak played a causal role in the crash
amount to little more than unsupported assertions.

C. Loose Nut

Finally, Appellants challenge Dr. Eagar’s conclusions
concerning the loose hydraulic nut found after the crash.
According to Dr. Eagar’s testimony:

                                18


       I knew there was a loose nut . . . they had problems
       with hydraulics, they had been having leaks in
       hydraulics for six months ahead of time, and I
       specifically told the jury that I could not point out the
       exact location of this leak except I believed it was in
       the upper nacelle.

App. at 1817. Dr. Eagar also testified that he had"no direct
evidence" that the hydraulic nut in question was the source
of the leak, nor did he have further evidence of any other
loose nuts. App. at 1628 ("We don’t know that that loose
nut on the hydraulic fitting was the source of the leak.").
He merely testified that the loose nut could explain the
hydraulic leak. App. at 1932-33. Thus, even Dr. Eagar
failed to suggest that the loose nut was the probable source
of the crash. Further, the Court of Inquiry Report found the
loose hydraulic nut was caused by the impact of the
aircraft’s crash. App. at 2332. A Boeing report agreed,
finding that "the looseness resulted from a mechanical
overload at impact." App. at 2393.

D. Summary
The established factual basis for Dr. Eagar’s testimony
can be described as follows: (1) gas chromatography
indicates that hydraulic fluid was found outside the engine,
(2) hydraulic fluid is red, and a red residue was found
inside the engine, and (3) a loose hydraulic fitting was
found in the aircraft wreckage. The remaining "facts"
presented by Defendants are either flatly contradicted by
the record or are merely unsupported assertions by Dr.
Eagar. The evidence in the record fails to provide a
reasonable factual basis for Dr. Eagar’s opinion that the
crash probably resulted from a hydraulic fluid leak.

II.

I agree with the majority opinion that our standard of
review for evidentiary rulings is "principally for abuse of
discretion." Maj. Op. at 6. Such a review is not, however, an
"empty exercise." Koon v. United States , 518 U.S. 81, 98
(1996) (discussing abuse of discretion standard). This
court’s precedents and those of the Supreme Court as they
relate to expert testimony require a district court to

                                19


" ‘examine the expert’s conclusions in order to determine
whether they could reliably flow from the facts known to
the expert and the methodology used.’ " Oddi v. Ford Motor
Co., 234 F.3d 136, 146 (3d Cir. 2001) (quoting Heller v.
Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999). See
also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
("[N]othing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of
the expert."); Tyger Constr. Co., Inc. v. Pensacola Constr.
Co., 29 F.3d 137, 142 (4th Cir. 1994) ("An expert’s opinion
should be excluded when it is based on assumptions which
are speculative and are not supported by the record.")
(citing E. Auto Distribs., Inc. v. Peugeot Motors of Am., 795
F.2d 329, 337 (4th Cir. 1986). Such an examination may
lead a court to the conclusion that "there is simply too
great a gap between the data and the opinion offered." Gen.
Elec., 522 U.S. at 146. There may be a natural tendency of
judges, when presented with a technical question and a
reasonable sounding expert witness, to admit the evidence
and let the jury decide the issue. But we have a
responsibility that we may not shirk. A district court
abuses its discretion if it admits expert testimony that lacks
an adequate factual basis.

In most cases, the lack of factual support for an expert
opinion affects its weight rather than its admissibility.
However, based upon my review of the record, there simply
is no factual support for Dr. Eagar’s conclusion that a
hydraulic fluid leak caused the crash. This goes directly to
the admissibility of Dr. Eagar’s testimony, as Defendants in
effect admitted when they explicitly conditioned the
admissibility of Dr. Eagar’s testimony on that fact. App. at
1623 (describing the existence of "profuse quantities of
hydraulic oil in the engine" as "critical" evidence on which
Dr. Eagar’s testimony was based). While the evidence does
indicate that hydraulic fluid leaked outside the engine and
that a hydraulic nut was loose after the crash, Appellants
present ample evidence -- including the Osprey’s flight data
recorder, the Court of Inquiry Report, and a post-crash
analysis by Boeing -- that these did not cause the crash,
but rather resulted from it. In contrast, Defendants present
no further evidence other than the unsupported assertions

                                20


and theories of Dr. Eagar. Even when viewed in a light most
favorable to Defendants, the evidence merely suggests the
remote possibility that a hydraulic fluid leak may have
caused the Osprey’s crash. Dr. Eagar’s ultimate opinion
"that the most probable source of [engine failure] was the
hydraulic fluid," App. at 1627, was merely speculation and
without factual support. The District Court abused its
discretion in admitting this part of his testimony.

The majority’s analysis of the factual basis for Dr. Eagar’s
testimony simply recapitulates the District Court’s mistake
of accepting Dr. Eagar’s claim that the record supports his
view. The majority summarizes what it sees as the record
support for Dr. Eagar’s opinion on the cause of the crash
as follows:

       the record reflects a factual foundation sufficient to
       support Dr. Eagar’s opinion that the most probable
       source of flammable fluid was hydraulic fluid. The
       record shows that, of the possible fluids involved in the
       accident, only hydraulic fluid is red. A red residue was
       found in the torquemeter housing. This red residue
       was tested for the Court of Inquiry and found to be a
       good match for hydraulic fluid. There was some
       hydraulic oil found in front of the engine and it may
       have gotten into the engine. Finally, a red residue
       containing hydraulic oil was discovered on the engine
       air particle separator, adjacent to the engine. Thus, the
       record reflects sufficient evidence of hydraulic fluid
       solvent in places it should not have been--outside the
       engine, near the engine, and in the torquemeter
       housing--to form the factual foundation for Dr. Eagar’s
       testimony.

Maj. Op. at 10-11. Because the majority comes to the
conclusion that the record provides a basis for Dr. Eagar’s
testimony, it found that the District Court did not abuse its
discretion in admitting his testimony on this point. In
contrast, on my examination of the record evidence, Dr.
Eager’s testimony concerning the likely cause of the crash
is without basis. For this reason, I respectfully dissent.

                                21


A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

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