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Prudential Insurance Company of America v. Textron Aviation, Inc.

United States District Court, D. Kansas

April 27, 2018

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Plaintiff,
v.
TEXTRON AVIATION, INC. f/k/a/ HAWKER BEECHCRAFT GLOBAL CUSTOMER SUPPORT, LLC and HAWKER BEECHCRAFT SERVICES, INC., Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff brings this action to recover damages that its aircraft sustained during a hail storm. Plaintiff contends that defendant negligently caused that damage when it left the aircraft on a runway (instead of placing it inside a hangar) during the hail storm. Both parties have moved for summary judgment. Plaintiff's Motion for Summary Judgment (Doc. 105) asserts that its delivery of the aircraft to defendant for maintenance and repairs created a bailment relationship that imposed a duty on defendant to safeguard the aircraft. Plaintiff asserts that the summary judgment facts establish that defendant breached that duty and negligently caused the aircraft to sustain damages amounting to $501, 000. Plaintiff thus asks the court to enter judgment as a matter of law in its favor for $501, 000.

         In contrast, defendant's Motion for Summary Judgment (Doc. 84) asserts that Kansas law imposed no duty to put the aircraft in a hanger while it was at defendant's facility for maintenance and repairs. And, even if a duty existed, defendant argues, plaintiff's negligence claim fails as a matter of law because plaintiff offers no expert opinion to establish causation, as Kansas law requires.

         For reasons explained below, the court agrees with defendant. So, it grants defendant's Motion for Summary Judgment. The court also denies plaintiff's Motion for Summary Judgment. The court explains how it reaches these conclusions, below.

         I. Motions to Exclude and Strike

         Before considering the parties' summary judgment motions, the court addresses two other motions that defendant has filed. First, defendant filed a Motion to Exclude the Expert Testimony of Brad Guyton. Doc. 86. Second, defendant filed a Motion to Strike. Doc. 109. The court first addresses the Motion Strike and then turns to the Motion to Exclude.

         A. Motion to Strike

         Defendant's Motion to Strike (Doc. 109) asks the court to strike certain material from plaintiff's Motion for Summary Judgment (Docs. 105 & 106) and plaintiff's Opposition to defendant's summary judgment motion (Doc. 97).

         Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Our court has refused to apply Rule 12(f) to strike responses and replies to motions because this Rule applies only to “pleadings, ” and a response or a reply to a motion “is not a ‘pleading' that the [c]ourt may strike under Rule 12(f).” Fox v. Pittsburg State Univ., 258 F.Supp.3d 1243, 1251 (D. Kan. 2017) (citing Fed.R.Civ.P. 7(a) (listing documents considered pleadings)); see also Williams v. Alpine Banks of Colo., No. Civ. A. 05CV02475WDMME, 2006 WL 905333, at *2 (D. Colo. Apr. 7, 2006) (denying a motion to strike because “[m]otions, briefs in support of motions, responses to motions, replies to responses to motions, and other papers are not pleadings under the Federal Rules and cannot be stricken by the [c]ourt under Rule 12(f)”).

         Also, our court disfavors motions to strike. Landrith v. Gariglietti, No. 11-2465-KHV, 2012 WL 171339, at *1 (D. Kan. Jan. 19, 2012), aff'd, 505 Fed.Appx. 701 (10th Cir. 2012); Semsroth v. City of Wichita, No. 06-2376-KHV-DJW, 2008 WL 45521, at *2 (D. Kan. Jan. 2, 2008); Nwakpuda v. Falley's, Inc., 14 F.Supp.2d 1213, 1215 (D. Kan. 1998). Courts usually deny motions to strike absent a showing of prejudice against the moving party. Semsroth, 2008 WL 45521, at *2. And, “any doubt [about] the utility of the material to be stricken should be resolved against the motion to strike.” Landrith, 2012 WL 171339, at *1.

         Here, defendant seeks an order striking certain material from plaintiff's Motion for Summary Judgment and its Opposition to defendant's summary judgment motion. These documents are not pleadings that the court may strike under Rule 12(f). Also, defendant asks the court to strike certain material because, it contends, the material is inadmissible on summary judgment. For example, defendant seeks to strike: (1) certain deposition testimony of Nathan Marcus (Jordache Enterprises, Inc.'s corporate representative) because he lacks knowledge to support the testimony; (2) the unsworn expert report of Brad Guyton because it is hearsay; and (3) certain statements of fact that violate Fed.R.Civ.P. 56 or D. Kan. Rule 56.1, because they either include multiple allegations in one statement or lack specific citations to the factual record.[1] But, instead of striking this proffered summary judgment evidence, the “better approach is for the court to consider each [piece of proffered evidence] and, to the extent it may assert a fact which is not admissible evidence, simply exclude the requested fact from the court's ultimate findings.” Murray v. Edwards Cty. Sheriff's Dep't, 453 F.Supp.2d 1280, 1284 (D. Kan. 2006) (denying a motion to strike an affidavit on summary judgment); see also Jones v. Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003) (affirming district court's evidentiary ruling that denied a motion to strike an affidavit on summary judgment and instead “relied on the declarations to the extent that they contained relevant and admissible material, ignoring inadmissible and irrelevant statements”); Nelson v. Allstate Ins. Co., No. 92-2309-JWL, 1993 WL 105120, at *6 (D. Kan. Mar. 8, 1993) (denying a motion to strike an affidavit and holding that “[i]f the affidavit contains material that is not admissible or relevant, the Court will ignore it.”). The court follows that approach here and denies defendant's Motion to Strike.

         B. Defendant's Motion to Exclude Expert Testimony

         Defendant's Motion to Exclude Expert Testimony (Doc. 86) asks the court to exclude Brad Guyton's opinions about: (1) the aircraft's diminution in value; and (2) defendant's duty to keep the aircraft in a hanger while it was at defendant's facility for maintenance. Defendant makes several arguments supporting its Motion to Exclude Mr. Guyton's expert testimony under Fed.R.Evid. 702. First, defendant asserts that the court must exclude Mr. Guyton's proffered expert testimony about alleged diminution because he is not qualified to value or appraise aircraft. Second, defendant argues that Mr. Guyton's opinions about alleged diminution are unreliable because he used a flawed methodology to form his opinions. Finally, defendant asserts that Mr. Guyton's opinions about defendant's duty to hangar the aircraft are neither relevant nor reliable because they conflict with his own testimony about his industry experience as well as the facts of this case.

         To resolve the parties' pending summary judgment motions, the court only needs to address defendant's third argument-whether Mr. Guyton's opinions about defendant's duty to hangar the aircraft are admissible under Fed.R.Evid. 702. The court agrees with defendant. Mr. Guyton's opinion about defendant's purported duty of care is neither relevant nor reliable under the circumstances here. The court thus excludes Mr. Guyton's proffered expert testimony on this subject. But, to resolve the parties' cross motions for summary judgment, the court need not address the admissibility of Mr. Guyton's diminution in value opinions. So, the court grants defendant's Motion to Exclude in part and denies it in part. The court grants defendant's Motion to Exclude Mr. Guyton's opinions about defendant's duty to hangar the aircraft. The court denies the remainder of defendant's motion as moot.

         1. Legal Standard

         The court has a “gatekeeping obligation” to determine the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). When it performs this gatekeeping duty, the court has broad discretion to decide whether to admit expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996) (quoting Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)). The admissibility of expert testimony is governed by Federal Rule of Evidence 702. It provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         The court must apply a two-part test to determine admissibility. Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). First, the court must determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or education' to render an opinion.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting Fed.R.Evid. 702). Second, the court “‘must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.'” Id. (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006)) (further citations omitted).

         To qualify as an expert witness, the witness must possess “such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (internal quotation omitted). To determine whether the expert's testimony is reliable, the court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

         In Daubert, the Supreme Court identified four factors-though not exhaustive-that trial courts may consider when determining reliability of proffered expert testimony under Fed.R.Evid. 702. They are: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. Id. at 593-94. The Supreme Court has emphasized that these four factors are not a “definitive checklist or test, ” and that a court's gatekeeping inquiry into reliability “must be tied to the facts of a particular case, ” Kumho Tire, 526 U.S. at 150, and thus may involve other pertinent considerations.

         But in some cases, “the relevant reliability concerns may focus upon personal knowledge or experience, ” rather than the Daubert factors and scientific foundation. Id. For such testimony to satisfy the reliability standard, it “must be ‘based on actual knowledge, and not mere “subjective belief or unsupported speculation.”'” Pioneer Ctrs. Holding Co. Emp. Stock Ownership Plan & Trust v. Alerus Fin., N.A., 858 F.3d 1324, 1341-42 (10th Cir. 2017) (quoting Mitchell v. Gencorp, Inc., 165 F.3d 778, 780 (10th Cir. 1999) (quoting Daubert, 509 U.S. at 590)). “When expert opinion ‘is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot support a jury's verdict' and will be excluded.” Id. at 1342 (quoting Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993)).

         “The proponent of expert testimony bears the burden of showing that the testimony is admissible.” Conroy, 707 F.3d at 1168 (citing Nacchio, 555 F.3d at 1241). “[R]ejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee notes. While Daubert unquestionably assigns a gatekeeper role for to trial judges, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof” remain “the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted).

         The court has discretion to determine how to perform its gatekeeping function under Daubert. Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). “The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.” Id. (citations omitted). In this case, the parties do not request a hearing. And after reviewing the exhibits filed with the motions carefully, the court finds that the record provides sufficient information to render a decision without a hearing.

         2. Analysis

         Applying the two-part test to determine the admissibility of Mr. Guyton's expert testimony, the court first considers whether Mr. Guyton is qualified to render the expert opinion. Plaintiff asserts that Mr. Guyton is qualified to testify about defendant's duty to hangar the aircraft based on his 30-plus years of experience in the aircraft industry. Mr. Guyton previously worked for defendant's predecessor company in several, different roles including Director of Maintenance. Mr. Guyton now owns and operates BAG Aviation, Inc., a company that provides consulting services to buyers and sellers of aircraft. BAG Aviation, Inc. provides support to its clients with the pre-buy inspection, working with a broker, aircraft sales, and other technical advisory services. Also, Mr. Guyton was involved in the underlying facts leading to this lawsuit. Plaintiff hired Mr. Guyton as a contractor to assist with technical day-to-day maintenance and repairs on its aircraft while the aircraft was at defendant's facility. Mr. Guyton worked as a portable Director of Maintenance, and he oversaw the maintenance and airworthiness of plaintiff's aircraft until plaintiff sold it.

         The court agrees that Mr. Guyton's experience-including his 30 years of experience in the aircraft industry-qualifies him to provide expert testimony about the standard of care for safeguarding aircraft during maintenance. Indeed, an expert witness's testimony “can rely solely on experience.” See United States v. Nacchio, 555 F.3d 1234, 1258 (10th Cir. 2009). Thus, Mr. Guyton's proffered expert testimony satisfies the first step of the two-step test.

         But it's the second of the two-part test that presents the problems. This second step requires plaintiff to show that Mr. Guyton's opinions are relevant and reliable. And as the Tenth Circuit has explained, an expert witness's testimony based solely on experience “‘must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.'” Id. (quoting Fed.R.Evid. 702 advisory committee's note (2000)). The Tenth Circuit has explained the reason for this requirement: “The trial court's gatekeeping function requires more than simply ‘taking the expert's word for it.'” Id. (quoting Fed.R.Evid. 702 advisory committee's note (2000)). “‘[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.'” Id. (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

         Here, Mr. Guyton opined that it is “customary within the industry that if an aircraft is at a facility for maintenance that it's kept inside a hanger.” Doc. 85-1 at 36 (Guyton Dep. 140:21-141:1). Mr. Guyton bases this opinion on his experience in the aircraft industry. Yet, his testimony about that experience and the facts of this case contradict his proffered opinion.

         Mr. Guyton testified, based on his knowledge and his understanding from working with defendant, that “it's not possible to keep aircraft hangared all the time.” Doc. 85-1 at 36 (Guyton Dep. 139:8-12). Also, this statement is consistent with Mr. Guyton's testimony about his previous experience working for defendant's predecessor. During that employment, Mr. Guyton helped make decisions about moving aircraft around the facility to ramp space and hangar space. Mr. Guyton acknowledged that the facility, at times, had too many aircraft to keep them all inside the hanger. When that happened, Mr. Guyton decided which aircraft to place in a hangar based on the aircraft's schedule and its release date.

         Mr. Guyton recognizes that maintenance facilities use different procedures and charge customers different rates to pay for hangar space. But, in this case, Mr. Guyton never signed any authorization to pay for hangar space at defendant's facility when he was working as plaintiff's contractor and as its portable Director of Maintenance. Also, Mr. Guyton acknowledged that the parties' contract never required defendant to store the aircraft in a hangar. And Mr. Guyton does not recall plaintiff-his ultimate boss, in effect-ever asking him to have the aircraft placed in a hangar.

         Throughout the time that plaintiff's aircraft was located at defendant's facility, Mr. Guyton never directed defendant to place the aircraft in a hangar. Mr. Guyton also does not know if defendant had hangar space available for the aircraft on June 5, 2014-the date when the hail storm occurred. Before the June 5 storm, Mr. Guyton knew that another storm had occurred at defendant's facility. And, during that earlier storm, the aircraft was parked outside. After he learned about the earlier storm, Mr. Guyton never asked defendant to put the aircraft in the hangar. Also, he neither provided any follow-up instructions nor gave any specific directions to defendant after he learned that the aircraft was outside (and not in a hangar) during the earlier storm.

         Despite Mr. Guyton's testimony about industry standards and the facts involved in this case-things that directly conflict with his opinion-Mr. Guyton nevertheless opines that defendant had a duty to place plaintiff's aircraft in a hangar. But Mr. Guyton concedes that he can produce no literature supporting this opinion. And he knows of no published authority supporting his opinion. Also, Mr. Guyton testified that none of his training in the aircraft industry addressed the issue whether-and when-a maintenance facility should store an aircraft inside a hangar.

         In sum, Mr. Guyton's deposition testimony demonstrates that his opinion is not “tied to the facts” of this particular case. Kumho Tire, 526 U.S. at 150. Mr. Guyton's opinion also conflicts with his own deposition testimony about the industry standard for placing an aircraft in a hangar at a maintenance facility. His opinion also contradicts the facts here-namely, that the parties' contract never imposed any duty on defendant to hangar the aircraft; Mr. Guyton never directed defendant to place the aircraft in a hanger (even after he knew that the aircraft was outside at defendant's facility during an earlier storm); and he never provided any follow-up instructions to defendant about how it should store the aircraft. Instead, the only connection between the facts here and Mr. Guyton's opinion is “‘the ipse dixit of the expert.'” Id. at 157 (quoting Joiner, 522 U.S. at 146).

         Such an opinion will not help the trier of fact, making it inadmissible under Fed.R.Evid. 702. See, e.g., United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003) (affirming district court's exclusion of expert testimony as unreliable because the expert “never explained why his personal experience was a sufficient basis for his opinion” and thus his “proposed testimony did not ‘rest [ ] on a reliable foundation'” and “would not have “‘assist[ed] the trier of fact' as required by Rule 702.” (first quoting Kumho Tire, 526 U.S. at 141; then quoting Fed.R.Evid. 702)); Davis v. BellSouth Telecomm., Inc., No. 7:10-cv-02851-LSC, 2012 WL 3637762, at *5 (N.D. Ala. Aug. 16, 2012) (excluding expert opinion that conflicted with the expert's deposition testimony about his experience and industry knowledge), aff'd, 541 Fed.Appx. 910 (11th Cir. 2013).

         All these considerations convince the court that it should exclude Mr. Guyton's opinion about defendant's purported duty to place the aircraft in a hangar. By this Order, it does so.

         II. Motions for Summary Judgment

         The court now turns to consider the parties' Motions for Summary Judgment.

         A. ...


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