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-