[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
____________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-12357
APRIL 25, 2003
____________________________
THOMAS K. KAHN
D. C. Docket No. 99-02042-CV -B-S CLERK
JOE J . HUD GEN S,
PHY LLIS HUD GEN S,
Plaintiffs -App ellants,
versus
BEL L HE LICO PTE RS/T EXT RON ,
Defen dant,
DYN COR P,
Defen dant-A ppellee.
____________________________
No. 02-13284
____________________________
D. C. Docket No. 99-02041-CV -S-S
FRA NCIS MA RK C RAW FOR D,
BEC KY C RAW FOR D,
Plaintiffs -App ellants,
versus
DYN COR P,
Defen dant-A ppellee,
BELL HELICOPTERS/TEXTRON,
Defen dant.
____________________________
Appe als from the Un ited States District C ourt
for the Northern District of Alabama
____________________________
(April 25, 2003)
Before EDM OND SON, C hief Judge, BAR KETT and COX , Circuit Judges.
BARKE TT, Circuit Judge:
Plaintiffs Joe and Phyllis Hudgens and Francis and Becky Crawford appeal
from grants of summ ary judgment in favor of defen dant DynCorp in these
diversity actions arising out of a helicopter crash in Shelby County, Alabama.
Francis Crawford and Joe Hudgens were piloting a United States Army
helicopte r on a M edivac m ission on May 1 , 1999 w hen the h elicopter’s tail fin
separated from th e aircraft, re sulting in a crash in which both m en wer e severely
injured. Each of the pilots and their respective wives filed separate suits on A ugust
6, 1999 in the Northern District of Alabama.
2
After the accid ent, investigations c onducted b y the Arm y and the aircraft’s
manufactu rer, Bell Helicop ters/Textron ( “Bell”), determine d that the tail fin’s
separatio n resulted from a r upture o f the helico pter’s for ward v ertical fin sp ar (“fin
spar” or “spar”), a c ompo nent of th e structur al assemb ly by wh ich the he licopter's
tail rotor blade is attached to the pilot’s carriage.1 An external skin covers the
structural frame of which the fin spar is part. The investigating authorities
concluded that the rupture was caused by a crack that originated at a rivet hole near
the base of the fin spar.
The acc ident helic opter w as part of the “Flat Ir on” fleet o f UH -1, or “H uey,”
helicopters maintained at the Army’s Fort Rucker base in Alabama. Under the
terms of a contrac t entered in to by the A rmy and DynC orp, D yncorp was to
maintain Army aircraft loc ated at the b ase. The agreem ent requ ired Dy ncorp to
“determin e the airw orthines s conditio n of. . . aircr aft as requ ired by ap plicable
regulations and publications. Such a determination shall be based on inspection,
maintenance operational checks, and test flying as required by applicable Army
publications and directives.” The publications contemplated by the contract have
been en tered in th e record in the for m of ins pection c hecklists a nd man uals
providing instructions for the maintenance and repair of UH-1 aircraft. See R.1-
1
Both the Hudgens and the Crawfords named Bell Helicopters as a defendant in their
complaints, but they do not appeal the district court’s grant of summary judgment as to Bell.
3
36, Tab H, exhibits 1-3.2 One checklist identifies a series of inspections to be
completed every day a helicopter is flown; another prescribes a more intensive
series of p rocedu res to be c arried ou t at longer intervals; a nd a third manua l,
spanning well over a thousand pages, prescribes appropriate means for repairing a
variety of defects. A rmy person nel stationed at F ort Rucker monitored Dyncorp ’s
performance to ensure compliance with these instructions for the maintenance of
the UH -1 fleet. See R.1-36, Tab G, at 2; R.1-44, Tab S, at 1.
Prior to the accident, several authorities familiar with Bell’s UH-1 line of
helicopters had already identified the fin spar problem that authorities later
identified as the cause of the subject accident. In 1997, the Federal Aviation
Administration (“FAA”) circulated an “Airworthiness Directive,” which reported
the FA A’s dete rminatio n that rep eated eng agemen t of the U H-1 an d related m odels
in heavy lifting operations could create fatigue fractures that would co mpromise
the fin spar. In an effort to prevent such failures, the FAA directive mandated that
civilian op erators o f these m odels m odify the fin spar in a mann er design ed to
facilitate inspection for cracks. The directive required that such modifications be
2
For the sake of economy, all citations to the record will, unless otherwise indicated, refer
to the record on appeal in Hudgens v. Bell Helicopters, Dist. Ct. Case No. CV 99-B-2042-S,
without any corresponding reference to the record in Crawford v. Bell Helicopters, Dist. Ct. Case
No. 99-S-2041-S. The Court has satisfied itself that the evidentiary materials discussed in the
text of this opinion were in all instances filed, in identical form, in both cases.
4
comple ted with in the first eight fligh t hours s ubsequ ent to the d irective’s iss uance.
Thereafter, operators were to inspect the modified fin spar for cracks at least once
during each subsequent eight hours of flight time, using a bright light and a 10X
magnif ying glas s to enha nce the v isibility of an y fracture s. In 199 8, Bell
Helicopter/Textron circulated a “Military Alert Bulletin” likewise advising that
cracks had been found on some aircrafts’ fin spars and recommending “tap
hammer” and fluorescent dye penetrant inspections within 25 flight hours of the
bulletin’s receipt and thereafter at 180-day intervals.
The Army is not bound by the FAA ’s airworthiness directives or Bell’s alert
bulletins in its operation of Army-owned aircraft. Nonetheless, the Army officers
responsible for the development of inspection procedures pertaining to the UH-1
reviewed both the FAA and Bell warnings. R.1-36, Tab P, at 1-2. Reasoning that
its own UH-1 helicopters had not been engaged in heavy-lifting operations and that
its history of using UH-1 helicopters had been without accident, the Army decided
not to adopt the recommen ded inspection protocols. 3 Instead, it adhered to a
regimen in which the only aids used during inspections of the fin spar were a
3
The Army also appears to have based its decision in part on the fact that although the
advisories described modifications designed to facilitate inspection, neither bulletin
recommended a solution to the problem created by the fin spar’s apparent susceptibility to
fatigue fractures. R.1-36, Tab P, at 1. An Army spokesperson also pointed out in a letter to
Senator Richard Shelby that because the UH-1 fleet was being reduced in size in the decade
preceding the accident, “assets deemed in need of major repair were simply retired from
service.” Id. at 2.
5
flashlight and inspection mirror. R.1-44, Tab U.
After the crash of the accident helicopter, however, the Army departed from
its inspection procedures and instituted new protocols reflective of the concerns
expressed in the FAA and Bell advisories. Specifically, the Army provided for
frequent inspections to be conducted with the aid of a 10X magnifying glass, and
for additional periodic inspections to be made via x-ray examination, fluorescent
dye penetrant, and tap hammer. Post-accident x-ray inspections of the seven other
UH-1 helicopters within the Flat Iron fleet led to the discovery of cracks in the
vertical fin spars of four ad ditional air craft. No ne of the se cracks were v isible to
the naked eye at the time they were discovered via X-ray.
Although their complaints originally stated numerous additional causes of
action, the Hudgens and Crawfords now primarily assert that DynCorp was
negligent under Alabama law for failing to properly maintain the helicopter and/or
to make necessary repairs. 4 After discovery, DynCorp moved for summary
4
Apart from claims which the plaintiffs conceded should be dismissed before summary
judgment, there now remains a claim against DynCorp for “wantonness,” premised on the
allegation that DynCorp “had full and complete knowledge, not only of the dangers, but of the
steps which should be taken in order to have prevented the failure of the tail section of the
helicopter.” R.1-1 at para. 7. This assertion in the plaintiffs’ complaints follows immediately
after a discussion of the precautions advised in the FAA and Bell bulletins. We therefore
interpret the plaintiffs’ wantonness claim to rest on the theory that failure to institute these
precautions rises to the level of an intentional tort under Alabama law. For the reasons discussed
infra, however, we do not believe that DynCorp had any responsibility to institute the FAA and
Bell precautions, and accordingly we sustain summary judgment as to the wantonness claim.
The Hudgens and Crawfords also asserted a negligent failure-to-warn claim in their
6
judgment on the basis of its asserted entitlement to the “government contractor
defense” established in Boyle v. United Technologies Corp., 487 U.S. 500, 108
S.Ct. 25 10, 101 L.Ed.2 d 442 ( 1988) . Boyle articulated a three-pronged test for
courts to apply when required to decide whether protection of federal
policym akers’ dis cretion d emand s preem ption of state tort law imposin g liability
on con tractors fo r design defects in produ cts supp lied to the g overnm ent.
Despite the identity of all facts implicated by DynCorp’s motion for
summary judgment as to the Hudgens’ and Crawfords’ separate suits, the
plaintiffs’ actions were not consolidated and thus two different district court judges
ruled on the motions. Both rejected the plaintiffs’ argument that the government
contractor defense applies only to design defects, holding instead that the defense
extends to contra cts of the k ind enter ed into b y Dync orp and the Arm y.
Additionally, both judges ruled that the evidentiary materials submitted by the
parties, as modified by slightly different rulings striking certain expert opinion
evidence, showed no genuine issue of material fact as to DynCorp’s satisfaction of
the defense’s three elements.
On ap peal, the H udgen s and C rawfo rds argu e first that Boyle’s government
contractor defense does not apply to service contracts. Alternatively, they argue
complaints, but counsel for the plaintiffs conceded this claim at oral argument.
7
that even if the government contractor defense applies, the district court
nonetheless erred in striking expert opinion testimony and in holding that DynCorp
had dem onstrated the absen ce of any genuin e issue of material fa ct as to its
satisfaction of the defense’s three elements.
DISCUSSION
We rev iew the d istrict cour t’s grant o f summ ary judg ment de novo, applying
the same legal stand ards as th e trial cour t. Chapman v. AI Transport, 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc). We review the district court’s exclusion of
expert o pinion e vidence for abu se of disc retion. General Electric Co. v. Joiner,
522 U .S. 136 , 142 (1 997); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306
(11th Cir. 1999).
Summary judgment is appropriate when “there is no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter of law.”
Fed. R . Civ. P. 5 6(c). D ynCor p’s motio n for su mmary judgm ent rested exclusiv ely
on its asse rted entitlem ent to the p rotection of the go vernm ent contr actor def ense.
See R.1-49 . Accor dingly, w e need o nly resolv e wheth er the distr ict court er red in
ruling that this defense protects DynCorp from the particular claims asserted by the
Hudgens and Crawfords.
We begin with the district court’s determination that the government
8
contractor defense applies to service contracts like the one between the Army and
DynC orp.
I. Applicability of Government Co ntractor Defense to Army-D ynCorp
Maintenance Co ntract
In Boyle, the Supreme Court addressed the issue of “when a contractor
providing military equipment to the Federal Government can be held liable under
state tort law for injury caused by a design defect.” Boyle, 487 U.S. at 502. The
Court approached this question as one of whether the Constitution or laws of the
United States ha d “so com mitted” a r elevant m atter “to fed eral contr ol that state
law is pre-empted and replaced, where necessary, by federal law of a content
prescribed (absent explicit statutory directive) by the courts.” Id. at 504.5
Preem ption of this kind is warranted, it held , only w hen the im position of liability
under state law would create a “significant conflict” with federal policy in an area
of “uniquely federal interest.” Id. at 507.
The Court held that one area of uniquely federal interest is the procurement
of equip ment by the Un ited States . Id. In defining what counts as a “significant
conflict,” th e Cour t found it necessar y to identif y a “limiting principle ” that wo uld
prevent the government contractor defense from interfering unduly with the
5
In his opinion for a five-justice majority, Justice Scalia remarked that this enterprise has
been characterized as one of “federal common law.” Boyle, 487 U.S. at 504.
9
operatio n of state la w. Id. at 509. It found such a principle in the notion of a
“discretion ary func tion” as th at term is u sed in the Federa l Tort C laims A ct.6 Id. at
511. The “selection of the appropr iate design for military equipment” is a
discretion ary func tion in this sense be cause it “of ten invo lves not m erely
engineering analysis but judgment as to the balancing of many technical, military,
and even social considerations, including specifically the trade-off between greater
safety and greater combat effectiveness.” Id. Accordingly, the Court held that the
enforcement of state tort law against military contractors must be preempted
inasmuch as its operation would interfere with the exercise of discretion by
government officials charged w ith making these sensitive policy judgments.
The H udgen s and C rawfo rds asser t that Boyle recognized a government
contractor defense only in the case of parties to procurement contracts. They urge
that since “[i]mmunity from tort liability for a private party is the exception to the
general rule,” it ought not be extended to service contracts such as the one between
DynCorp and the United States “until Congress or the Supreme Court explicitly act
6
The FTCA uses the term “discretionary function” in withholding the United States’s
consent to suit for:
[a]ny claim. . . based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
10
on the p recise issu e.” Hud gens’ Initial Brief at 2 4; Craw fords’ In itial Brief at 2 4.
We agree that the common lawmaking power on which the government contractor
defense is predicated must not be hastily invoked to limit liability under state tort
law. Nonetheless, we think the government contractor defense set forth in Boyle
clearly applies in the present case.
Although Boyle referred specifically to procu rement c ontracts, th e analysis
it requires is not designed to promote all-or-nothing rules regarding different
classes of contract. R ather, the q uestion is wheth er subjec ting a con tractor to
liability under state tort law would create a significant conflict with a unique
federal in terest. Glassco v. Miller Equipment Co., 966 F.2d 641, 642 (11th Cir.
1992). We would be exceedingly hard-pressed to conclude that the unique federal
interest recognized in Boyle, as well as the poten tial for sign ificant con flict with
state law, are not likewise manifest in the present case. The formulation of design
specifications and the articulation of maintenance protocols involve the exercise of
the very same discretion to decide how a military fleet of airworthy craft will be
readied. H olding a contracto r liable un der state law for con scientiou sly
maintaining military aircraft according to specified procedures would threaten
government officials’ discretion in precisely the same manner as holding
contractors liability for departing from design specifications.
11
We thus hold that the government contractor defense recognized in Boyle is
applicable to the service contract between the Army and DynCorp.
II. Applying the Elements of the G overnment Con tractor Defense
In order for DynCorp to have the benefit of this defense, it must establish not
only the d efense’s g eneral ap plicability to its contrac t with the Army , but also its
satisfaction of three elements set forth by the Supreme Court to ensure that the
requisite “significant conflict” between federal policy and state law exists under
the particu lar circum stances o f this case. Boyle, 487 U .S. at 512 ; Glassco, 966
F.2d at 6 42 (statin g that “thre e-part inq uiry elabo rates the ‘sig nificant co nflict’
prong of the test”). As the Supreme Court articulated these three conditions, no
liability may be imposed for design defects in military equipment if “(1) the United
States ap proved reasona bly precis e specifica tions; (2) the equip ment co nform ed to
those specifications; and (3) the supplier warned the United States about the
dangers in the use of the equipment that were known to the supplier but not to the
United States.” Id.
The Supreme Court’s references to “specifications” reflects the nature of the
case before it in Boyle, which involved an alleged defect in the design of a military
helicopter’s escape hatch. In the context of the present case, we rearticulate the
defense’s three elements to foreclose liability under state tort law if (1) the United
12
States appro ved reason ably precise ma intenance pro cedures; (2) D ynCorp’s
performance of maintenance conformed to those procedures; and (3) DynCorp
warned the United States about the dangers in reliance on the procedures that were
known to D ynCorp but not to the U nited States.
A. Reasonably P recise Maintenance Procedures
The req uiremen t that presc ribed m aintenan ce proce dures b e reason ably
precise is necessary to ensure that a close relationship exists between the contract
duty imposed by the federal government and the state law duty that application of
the gov ernmen t contracto r defens e will pre empt:
If, for example, the United States contracts for the
purcha se and in stallation o f an air co nditionin g-unit,
specifying the cooling capacity but not the precise
manner of construction, a state law imposing upon the
manufacturer of such units a duty of care to include a
certain saf ety feature would not be a d uty identic al to
anything promis ed the G overnm ent, but n either w ould it
be contr ary. The contracto r could c omply w ith both its
contractual obligations and the state-prescribed duty of
care. No one suggests that state law would generally be
pre-em pted in th is contex t.
Boyle, 487 U.S. at 509. The reasonable precision requirement ensures that the
government contractor defense is limited to its proper scope by requiring “that the
design f eature in q uestion w as consid ered by a Gove rnmen t officer, an d not m erely
the contractor itself.” Id. at 512.
13
In this case, application of the defense’s first prong directs us not to design
specifications but to maintenance procedures. Both district judges found the
Army’s maintenance guidelines to constitute a comprehensive regime that
DynCorp w as not expected to supplement throu gh any procedures other than those
specifically set forth. They also found that the precautions advised by the FAA
and Bell had been affirmatively and deliberately omitted from the prescribed
mainten ance pro cedures . We agree.
On appeal, the plaintiffs concede that the Army’s maintenance procedures
were reasonably precise w ithin the meaning of the governm ent contractor defense
and that D ynCor p was n ot requir ed to institu te any pro cedures not exp ressly
prescribed by the Army. In Hudgens, the district court succinctly described the
high degree of precision reflected in the Army publications setting forth inspection
procedures for UH-1 aircraft. The court summarized the Army’s “Daily Inspection
Checklist” as requiring “over 130 individual inspections, covering eight general
areas of the helicopter.” See R.1-47 at 6 (internal citation omitted). Mechanics
were specifically instructed to inspect the “vertical fin spar and vertical driveshaft
cover attachment channel for cracks in the area directly below the 90 degree
gearbox attachment fitting.” Id. at 7 (citation omitted). The Army’s “Phased
Mainte nance C hecklist,” p rescribin g 150 in spection s to be co mpleted at certain
14
intervals, r equired examin ation of th e “[v]ertical f in rib . . . alon g rivet ro w at fin
station 10.08 for cracks (access thru topmost lighting holes).” Id. at 6 (citation
omitted). Finally, the Army’s Maintenance Instructions, which exceed 1000 pages
in length, provided for a complete inspection of the “tailboom” assembly of which
the fin sp ar is part, an d gave “s pecific ins tructions for repa iring a va riety of de fects
in the tailboom assembly, including cracks in the forward spar of the vertical fin.”
Id. at 7 (citation omitted).
DynCorp produced deposition testimony from Ralph C. Vemmer, an
aeronautical engineer employed by the A rmy division that develops these
instructions and manuals. See R.1-36, Tab F. Vemmer answered in the affirmative
when asked whether the FAA and Bell advisories were “suggested deviations from
the inspection and maintenance which had previously been approved by the
Army.” Id. at 217. Vemmer also agreed that the precautions “should not have
been implemented on Army aircraft until the Army authorized such procedures.”
Id.
The Hu dgens and Crawfo rds present n o evidence co ntesting Vem mer’s
assertions and, as mentioned above, they conceded at oral argument that DynCorp
had no duty to perform any inspections or repairs not specifically prescribed by the
Army’s technical manuals. Accordin gly, we con clude that the A rmy’s
15
comprehensive publications dictated reasonably precise inspection procedures that
did not incorporate the precautions enum erated in the FAA an d Bell advisories.
B. Dangers Know n to the Contractor But N ot the United States
We turn next to the third (rather than the second) element of the government
contractor defense simply because it is so easily met in this case. This notice
element requires contractors to inform the government of dangers “known to the
supplier but not to the United States.” Boyle, 497 U.S. at 512. The plaintiffs
conced ed at oral a rgume nt that D ynCor p has satis fied this co ndition. T heir
concess ion is bo rne out b y the reco rd, wh ich dem onstrates that the A rmy w as well
aware of the danger which the FAA and Bell had associated with a failure to adopt
certain pr ecaution s not inco rporated within its own p rocedu res. In ad dition to
Vemmer’s deposition testimony, DynCorp has submitted letters written by an
Army spokesperson shortly after the accident acknowledging awareness of the
advisories and explaining the decision not to implement the recommended
precautio ns. See R.1-36, Tab O, Tab P. We thus hold the third condition of the
government contractor defense to be satisfied with respect to dangers engendered
by the no n-imple mentatio n of the p rocedu res advis ed by the FAA and Be ll.
C. Conforman ce With Inspection Procedures
Our discussion thus far establishes that DynCorp cannot be held liable for
16
failing to institute the procedures recommended by Bell and the FAA. Army
instructions were reasonably precise in their omission of these precautionary
measures, and the Army was aware of the danger thus created. The Hudgens and
Crawfords, however, primarily seek to defeat DynCorp’s assertion of the
government contractor defense by showing that DynCorp has not satisfied what
might b e termed the “perfo rmance prong ,” which requires DynC orp to sh ow it
carried out inspections in conformance with Army procedures. The plaintiffs argue
that the Army’s inspection procedures, despite not incorporating the precautions
recommended by the FAA and B ell, still required DynCorp to find the spar crack
prior to the crash.7 Since DynCorp mechanics never did so, they argue that
DynCorp d id not conform w ith the Army’s procedures.
As litigation has progressively narrowed the issues involved in this case, the
7
In their briefs, they argue that “if DynCorp had performed its service contract
nonnegligently, DynCorp would have discovered [the fin spar] crack in the ordinary course of
ordinary inspections (completely divorced from any [FAA Airworthiness Directives] or [Bell
Military Alert Bulletins].” Hudgens’ Initial Brief at 30; Crawfords’ Initial Brief at 30. We
construe the plaintiffs’ inartful reference to “nonnegligent” contract performance to mean
adequate contract performance. Hence we interpret the quoted excerpt from the plaintiffs’ briefs
as equivalent to the assertion that DynCorp cannot show conformance to Army procedures
because those procedures required mechanics to discover the spar crack prior to the crash.
The Hudgens and Crawfords also quote a range of contract provisions they say DynCorp
violated. We agree with the district court that the evidentiary materials before us do not show a
genuine issue of fact as to DynCorp's compliance with any of the contract provisions cited by the
plaintiffs. The key to our determination is the contract's clear directive that DynCorp conduct
“inspection, maintenance operational checks, and test flying as required by applicable Army
publications and directives.” Our discussion in the text addresses the question of whether
DynCorp’s failure to discover the spar crack is sufficient to create a genuine issue of fact as to
DynCorp conformance with those publications and directives.
17
controversy between the parties as to DynCorp’s conformance with Army
procedures has been reduced to the question of whether the crack in the fin spar
was visible to the naked eye at the time of any inspection required before the
crash.8 Accordingly, in deciding whether DynCorp can satisfy the government
contractor defense’s performance p rong, we need determ ine only whether there is a
genuine issue of fact as to the crack’s visibility to the naked eye.
The question of a crack’s visibility is best understood to consist of two
component parts. First, was the crack w ithin the ocular capacity of the human eye
to detect – that is, was the crack of such a size and nature that it could be seen?
Second, was the crack present at a location in the helicopter’s internal structure that
was within the range of visual access achieved by mechanics carrying out the
Army’s procedures – that is, would mechanics have looked at the crack in the
course of properly condu cted inspections?
The pla intiffs po int to mate rials they su bmitted f rom thr ee witne sses to
8
Although DynCorp's evidentiary submissions fail to demonstrate conclusively that the
Army relied only on unenhanced visual inspections, we are unable to locate any indication in the
record that Army procedures called for any other type of examination in the course of the
inspections required before the crash. Moreover, counsel for the plaintiffs at oral argument
characterized the “genuine issue of material fact” in this case as consisting in the assertion that
the crack in the fin spar “had been visible for a long time” prior to the crash.
18
support the contention that the crack was v isible in both of these senses. 9 Each
witness stated that the crack could be seen by the naked eye prior to the crash. One
of them also specifically described a particular inspection during which mechanics
should have looked at the portion of the fin spar where the crack was located.10
In respo nse to a m otion by DynC orp, the d istrict cour t treated the se materia ls
as exper t opinion evidenc e, see Fed. R. Evid. 702, and struck portions of the
materials which it deemed inadmissible under the test set forth in Daubert v.
Merre ll Dow Pharm aceuticals, 509 U.S. 579 (1993), and its progeny. After
striking the materials in part, the district court found that the plaintiffs had made no
showing that the crack was ever visible to the naked eye prior to the crash. It
accordin gly determ ined that th ere existed no gen uine issu e of mate rial fact as to
9
In addition to the materials discussed in the text, the Hudgens and Crawfords challenge
the district court’s exclusion of a drawing on which appear certain handwritten notations that
they characterize as supportive of their case. We find no abuse of discretion in the district
court's decision to exclude this evidence, for which no foundation was ever laid. Although the
Hudgens and Crawfords argue that Powell discussed the drawing in his deposition, the citations
they provide refer to portions of Powell’s testimony in which he is clearly discussing an entirely
different document. This was first pointed out by the district court in Hudgens. See
Memorandum Opinion at 16.
10
The Hudgens and Crawfords characterize all three witnesses’ affidavits as making the
assertion that the relevant portion of the fin spar could be seen in the course of Army
inspections. The affidavits of Steve Powell and Richard McSwain, however, provide no basis
for inferring any awareness on their part of the protocols followed by mechanics in the course of
particular inspections. Since the fin spar is normally obscured from view by the tail fin’s
external skin, mechanics must open plates, panels, and/or doors to gain visual access to this part
of the aircraft. R.1-38, Tab 7, at 1. The failure of both Powell and McSwain to address how
access would be gained by mechanics following Army procedures leads us to read their
testimony and affidavit as silent with respect to what portions of the fin spar would have been
viewed in the course of any given inspection.
19
DynC orp’s en titlement to the prote ction of th e gover nment c ontracto r defens e. We
review the district court’s decision to strike certain portions of the expert opinions
and then conside r wheth er its gran t of sum mary jud gment is due to b e reverse d in
light of the one portion of an affidavit we find to have been wrongfully excluded.
1. Exclusion of Expert Testimony P ertaining to DynCorp ’s Conformance
with Inspection Procedures
Since we review a district court’s exclusion of expert opinion evidence for
abuse of discretion, we will reverse only if its decision was “manifestly erroneous.”
Id. at 142.
A three-pronged test controls the determination of whether expert opinion
evidence is admissible. Admission is proper if “(1) the expert is qualified to testify
competently regarding the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently reliable as determined by
the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of
fact, throu gh the ap plication o f scientific, te chnical, o r specialize d exper tise, to
understand the evidence or to determine a fact in issue.” City of Tuscaloosa v.
Harcros Chem, Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote omitted).
Affidavit of B.J. Sammons
The first piece of expert opinion evidence at issue appears in the affidavit of
B.J. Sam mons, a n aircraft m echanic e mploye d at For t Rucke r for rou ghly for ty
20
years bef ore retirin g on the day befo re the sub ject acciden t. At the tim e of his
retirement, Sammons was the lead mechanic on the fleet of helicopters to which
the accident craft belonged. The plaintiffs fault the district court for striking a
range of statements from Sammons’s affidavit. We find no abuse of discretion
except inasmuch as the court struck Sammons’s statement pertaining to an
Octob er, 1998 inspectio n that he d escribes in some d etail. 11 Specifically, Sammons
states that properly instructed DynCorp personnel would have discovered spar
cracks on this occasion because Army procedures required “a detailed inspection
of all of the components of the tail boom assembly, including the vertical fin spar.”
R.1-38, Tab 7, at 1-3. The district court’s memorandum opinion in Crawford
stated no basis for excludin g this po rtion of S ammo ns’s affid avit.
We un derstand Samm ons’s us e of the w ord “crac ks” to ref er gener ically to
cracks of a size and nature that would permit them to be detected by inspectors
whose eyesight was adequate. Thus, we read his assertion to concern only the
range of visual access achieved by inspectors ad hering to the Army’s proced ures –
that is, whether inspectors would have looked at the portion of the fin spar on
which the crack was loc ated. On this readin g, Sam mons’s opinion appears simply
to apply what the district court acknowleged was his “expertise” in the
11
The Hudgens court did not strike this part of Sammons’ affidavit. Our discussion of the
district court’s error therefore pertains only to Crawford.
21
“maintenance and inspection of UH-1H helicopters.” Crawford Memorandum
Opinio n at 12. In crediting Samm ons’s ex pertise, the district cou rt necessa rily
determined that the first and second prongs of the test for scientific opinion
evidence – the witness’s qualification as an expert and the reliability of his or her
methodology – were satisfied with respect to Sammons’s opinion regarding the
October, 1998 inspection.
In light of this aspect of the district court’s ruling, we believe its exclusion
of Sammons’ statement was most likely an oversight caused by the affidavit’s poor
draftsmanship.12 To the e xtent that th e statemen t’s exclusio n was n ot an ov ersight,
the court’s determination that Sammons had satisfied the qualification and
reliability prongs left exclusion to rest on a determination that the relevance prong
was not satisfied. Any such determination would be an abuse of discretion. As
this case has developed, the visibility of the spar crack at the time of the October,
1998 insp ection is the only d isputed ques tion of fact pertine nt to DynC orp’s
satisfaction of the elements of the government contractor defense. The Hudgens
12
The portion of Sammons’s affidavit discussed in the text was part of a sentence that
read in full: “The cracks existed in the vertical fin on this date and these cracks would have been
discovered during this inspection if the line mechanics had received proper guidance from
DynCorp management.” R.1-38, Tab 7, at 2. The Crawfords themselves, however, conceded
prior to summary judgment that Sammons was not qualified to state an opinion regarding
whether cracks existed at any particular point in time. In considering the admissibility of the
sentence just quoted, the district court may understandably have reacted to Sammons’s improper
assertion regarding the existence of cracks without pausing to recognize the distinct assertion
Sammons makes following the words “and these.”
22
and Crawfords have failed to submit any other potentially competent evidence
showing that Army inspection procedures would have led to the crack’s discovery
on any other occasion. Sammons’s affidavit specifically identified the October,
1998 in spection as an occ asion on which confor mance to Army proced ures w ould
have allowed mechanics to get a view of the relevant portion of the spar.13 His
specificity shows that he took account of the fact that the fin spar cannot be
visually ex amined withou t openin g variou s inspectio n plates, p anels, or d oors.
R.1-38, Tab 7, at 1. Hence Sammons’ affidavit, while evincing his knowledge that
inspectors would not necessarily examine the relevant portion of the fin spar in the
course of every maintenance function, nonetheless made clear that the “detailed
13
Sammons suggests in two other portions of his affidavit that there may have existed
other occasions on which mechanics conforming with Army inspection procedures would have
examined the relevant portion of the fin spar. First, Sammons stated that “cracks were visible
and they were detectable the day before the crash during the corrosion control inspection.” R.1-
38, Tab 7, at 3. This passage was struck by the district court, which properly found Sammons
unqualified to offer an opinion about whether cracks existed and were detectable before the
crash. We believe the district court’s exclusion of the entire passage was proper because
Sammons’s tacit assertion regarding the procedures followed in corrosion control inspections
could not be severed from his accompanying assertion that cracks were visible and detectable at
the time of any such inspection. Second, Sammons stated that “DynCorp. . . did daily
inspections such as PMD’s, phase inspections, as well as 25-hour and 50-hour inspections. . . .
On one or more of these inspections, the cracks of the vertical fin spar should have been detected
by DynCorp.” Id. at 2-3. Although this passage might have been amenable to appropriate
redaction, counsel for the Hudgens and Crawfords agreed, prior to the district court’s ruling on
summary judgment, to the striking of Sammons’s reference to “daily inspections such as PMD’s,
phase inspections, as well as 25-hour and 50-hour inspections.” Hence, his subsequent reference
to “one or more of these inspections” referred to no identifiable antecedent, and we do not find
the district court to have abused its discretion in striking it. For these reasons, the only portion
of Sammons’s affidavit that describes an occasion on which conformance with Army procedures
would have entailed examination of the fin spar is his description of the October, 1998
insepction.
23
inspection” called for in October 1998 was one occasion on which they would do
so. The relevanc e of this assertion is s imply no t contestab le. See City of
Tuscaloosa, 158 F.3d at 565 (in order to satisfy relevance prong of test for expert
opinion evidence, circumstantial evidence “must merely constitute one piece of the
puzzle th at the plain tiffs ende avor to a ssemble before th e jury”); Allison, 184 F.3d
at 1320 (remarking that expert’s opinion, when offered as plaintiff’s only evidence
of causa tion in pr oducts lia bility action , is “more th an a ‘piece of the pu zzle’”).
Since th e district co urt’s exclu sion of S ammo ns’s testim ony w as manif estly
erroneous , the court abus ed its discretion in strik ing this portion of Samm ons’s
affidavit.
When the w rongfully excluded evidence is re-integrated into S ammons’
affidavit, the relevant passage should read as follows:
With this type repair and maintenance, there should have
been a detailed inspection of all of the components of the
tail boom assemb ly, includin g the ver tical fin spa r.
Cracks would have been disco vered d uring th is
inspection if the line mechanics had received proper
guidan ce from DynC orp ma nagem ent.
Depo sition Te stimon y of Steve P owell
The Hudgens and Crawfords also challenge the district court's striking of the
deposition testimony of Steve Powell, a Bell Helicopters field investigator who
operated an electron microscope through which he took photographs of fractured
24
parts of the helicopter after the crash. The district court in both cases struck
Powell's assertion that the crack in the fin spar would have been visible to the
naked e ye prior to the crash . As a ratio nale, the co urt relied e ntirely on Pow ell's
admissio n that he h ad no k nowle dge of D ynCor p's maintenance p rocedu res.
Hudgens Mem orandu m Op inion at 2 1; Crawford Mem orandu m Op inion at 1 5.
This was error in that it confounded what we have identified as the two component
parts of the qu estion of visibility. Th e courts shou ld have con sidered Po well’s
testimony not simply as it related to the range of visual access achieved by
DynCorp inspectors, but also as to the naked eye’s capacity to detect cracks of a
certain size in a certain type of m etal.
Despite this error , we do not believ e the distric t court ab used its d iscretion in
excluding Powell’s testimony. The Hudgens and Crawfords have not shown that
Powell’s ex perience pro vided a reliable b asis for his opin ion regardin g the crack’s
appearance prior to the helicopter crash. The tw o forms of specialized expertise
claimed by Powell involved using an electron microscope and applying the
technique of striation counting, which the district court described as “a method
used to determine the rate of growth of a crack.” Crawford Memorandum Opinion
at 15; see also Hudgens Memorandum Opinion at 19. We are unable to conceive
of how experien ce in the u se of an e lectron m icroscop e, in and o f itself, cou ld
25
qualify a witness to assess such matters as when a crack first appeared and whether
it was visible prior to a crash. And while it is conceivable that a skilled application
of striation counting could constitute a reliable means of formulating such an
opinion, Powell stated that he performed no striation counting on the spar crack
involved in this case. R.1-38, Tab 2, at 35. The Hudgens and Crawfords have
therefore failed to identity even an arguably reliable methodology underlying
Powell’s determination that the crack was v isible prior to the crash. Accordingly,
although the district court stated an insufficient rationa le for excludin g Pow ell’s
testimony, we hold that such exclusion was not an abuse of discretion.
Affidavit of Richard H. McSwain, Ph.D
Richard McSwain is an engineer whose qualification as a materials engineer
was not contested before the district court. The district court struck a portion of
McSwain’s affidavit in which he opined that “the cracks were visible to the naked
eye and also would have been detectable by the use of non-destructive testing” at
the time o f an insp ection pe rforme d 112 h ours pr ior to the a ccident. M cSwa in
cited several documents as his basis for reaching this conclusion. He relied on an
“Aircraft 150 Hour Phase Inspection Record” for the premise that an inspection
was co nducted 112 ho urs prio r to the acc ident. 14 For the conclusion that the crack
14
It is clear that McSwain here refers to the same inspection that Sammons characterized
as taking place in October of 1998. The document identified in the text, summarizing a 150-
26
would have be en visible and dete ctable at this time, M cSwa in relied o n the resu lts
of a 1999 study cond ucted by Bell titled “UH-1 Fin S par Crack Propag ation Test
Results.” R.1-38, Tab 129. This test subjected another fin spar to simulated flight
stress in order to study the growth of a crack at virtually the same location as the
one which caused the crash of the accident helicopter.
Finding that the test spar was comparable in all relevant respects to the one
installed on the accident helicopter, the district court held that “Bell’s report on
crack propagation . . . may be used to extrapolate data” regarding the crack that
both pa rties agree caused th e crash u nderlyin g this suit. Hudgens Memorandum
Opinio n at 17; Crawford Memorandum Opinion at 14.15 Accordingly, the district
court de clined to s trike M cSwa in’s opin ion as it rela ted to the c rack’s de ctectability
through non-destructive testing (such as x-rays). It did, however, strike that
portion of his aff idavit op ining tha t the crack was vis ible to the n aked eye . In
Hudgens, the district c ourt stated the follow ing ration ale for this portion of its
hour “phase inspection,” includes notations of dates spanning October and November of 1998.
See R.1-38, Tab 13. Other materials submitted by the plaintiffs show that phase inspections
preceding the crash occurred in June 1997, October 1997, February 1998, and November 1998.
See R.1-38, Tab 32, at exhibits A-D. Given the substantial periods of time separating these
occasions, it is clear that the inspection described variously by Sammons, McSwain, and other
sources as occurring in October or November of 1998 was one and the same.
15
DynCorp argued in the district court that inferences regarding the size of the crack in
the accident helicopter could not be based on Bell’s crack propagation test because the
component tested was not identical to the model on the accident helicopter. DynCorp has not
renewed this argument on appeal.
27
decision: “Because there is no evidence that McSwain has seen a UH-1 aircraft
before, there are no facts by which the court may infer that McSwain is competent
to testify about whether the cracks would have been detectable before the crash by
a visual inspection.” Hudgens Memorandum Opinion at 19. In Crawford, the
district court stated sim ply that it found n o “factual basis” fo r McSw ain’s
conclus ion rega rding th e cracks’ v isibility to the naked e ye. Crawford
Memorandum Opinion at 14.
In reviewing these determinations for abuse of discretion, we are mindful of
the repeated em phasis the Su preme Co urt has placed u pon the district co urt’s
“gatekeeping” role in the determination of whether expert evidence should be
admitted . See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)
(concluding “that the trial judge must have considerable leeway in deciding in a
particular case how to go ab out deter mining wheth er particu lar exper t testimon y is
reliable”); Joiner, 522 U.S. at 146 (recognizing district court’s authority to exclude
“opinion evidence that is connected to existing data only by the ipse dixit of the
expert,” should it conclude that “there is simply too great an analytical gap
between the data and the opinion proffered”). Even when a decision to strike
expert evidence is outcome determinative, as when it supports a grant of summary
judgm ent, the dis trict court’s decision remains subject to deferen tial review . Id. at
28
142-43.
We begin by observing that the district court in Hudgens failed to ar ticulate
a sufficient rationale for its exclusion of McSwain’s opinion regarding the
visibility of the crack in the accident spar. The court’s stated reason for excluding
the testimo ny appe ars to hav e confu sed the tw o comp onents w e have id entified in
our discussion of the question of visibility. The fact that McSwain may never have
seen a U H-1 d oes not d etract from his poten tial capacity, a s a materia ls engine er, to
render an opinion about whether a crack of a particular size in a particular kind of
material co uld be se en by the naked e ye. McS wain’s o pinion n eed not b e read to
concern the range of visual access achieved by mechanics in the course of
inspectin g UH -1 aircraf t. While a ttorneys f or the H udgen s and C rawfo rds sho uld
have had McSwain’s affidavit refer to the visibility of the crack “at the time of the
inspection” conducted 112 hours prior to the crash, rather than simply “at the
inspection,” the context of his affidavit as a whole makes clear that it is the former
opinion he means to assert. In failing to appreciate this distinction, the district
court erred.
The Crawford court’s opinion referred, without further elaboration, to the
absence of a “f actual basis” for M cSwain’s c onclusions r egarding the crack’s
visibility to the naked eye. Hence Crawford does not manifest the error we discern
29
in Hudgens, but nor does it ex plain pre cisely wh y it found McS wain’s o pinion to
lack a factual basis. In both cases, ho wever, the d ecision to strike M cSwain’s
opinion will not require reversal if we determ ine that exclusion was required by a
proper application of the test for scientific opinion evidence.
We thus turn, for the purpose of determining whether McSwain’s opinion
arguably rested on a reliable methodology, to the Bell crack propagation study he
cited as its so le basis. T he Bell stu dy repo rted a con trolled ex perimen t designe d to
reproduce precisely the same spar failure that all parties agree caused the accident
underly ing this su it. See R.1-38, Tab 129, at 9 fig.6 (showing location of fin spar
where crack was propagated over course of experiment). The engineers who
conducted the test applied a stress load that simulated the conditions under which
the spar o perates in flight. Id. at 2. The report described cracks on the test spar as
follow s: “The fin spar flan ge is fabr icated usin g five m etal layers b onded together .
The fatigue cracks at hole number 1 stared in the outer layer and progressed
through all five layers.” Id. These cracks were present even before the
commencement of the controlled experiment, which utilized a spar that was
received from th e Arm y and ha d record ed 10,2 14 fligh t hours p rior to the test. Id.
Only af ter roug hly 215 hours o f addition al simulate d flight h ad the cra cks gro wn to
a point th at caused the fin sp ar to rup ture. Id. Finally, th e study su ggests, alb eit
30
with some ambigu ity, that at least one crack was visible to the naked eye
throug hout the course o f the exp eriment. See id. (reporting that “[e]ddy current
was also used in conjunction with visual means to measure crack lengths on the
outer layers”).
In sum, the report provided a b asis for the opinion that visible cracks could
exist on a fin spar without developing into a complete rupture for almost twice as
long as the 112 hours for which McSwain opined cracks were visible on the
accident helicopter’s fin spar. The study does not, however, discuss the frequency
with which cracks begin on a surface layer of the multi-layer material of which the
relevant portion of the fin spar is fabricated.
DynCorp has submitted materials tending to show that spar cracks often do
not begin on the spar’s surface layer, and that the crack on the accident craft most
likely did n ot. One docum ent, wh ich Dyn Corp d escribes a s a 1997 internal B ell
document and w hich the plaintiffs have not challenged on authen ticity grounds,
states that inspection of the spar is “very difficult” because “visual inspection
cannot find cracks in sub-laminates. . .” R.1-36, Tab J, at BE018871. The
document also notes that the FAA had previously informed Bell “that the
laminated design d id not pe rmit adeq uate insp ection an d was a n inadeq uate
design.” Id. at BE018873. It then recommends creating “a single piece [left-hand]
31
spar cap to replace the existing laminated spar.” Id. at BE018876
We also find it telling that cracks found after the accident on four other craft
within the Fort Rucker fleet were in each instance concealed beneath the surface
layer of compromised spars and thus discovered only via the use of X-rays. R.1-
44, Tab X (affidavit of DynCorp employee who “supervised the x-ray inspections
on all U H-1 air craft at Ft. R ucker”) . None were v isible to the naked eye. Id. This
pattern, in conjun ction w ith the kn own p roblem discusse d in the B ell
memorandum, seems to us to raise a strong inference that the crack on the accident
helicopter was likewise not visible prior to the crash.
In the face of these materials, McSwain’s affidavit offers no explanation of
how he form ed the opinion that the crack on the accident spar d iffered from those
subseq uently dis covered on the re st of the F ort Ruc ker fleet. M cSwa in not on ly
fails to identify the specific facts upon which his opinion w as based, but also
manifests no awareness of the pattern found in the other helicopters. We thus feel
compelled to liken this case to those in which an expert’s failure to explain the
basis for an impo rtant infer ence ma ndates ex clusion o f his or h er opinio n. See
Rider v. Sandoz Pharm. Corp., 295 F.3d 1192, 1202 (11th Cir. 2002) (holding
expert o pinion to fall short o f what “Daubert requires ” when finding of reliability
would require “several scientifically unsupported ‘leaps of faith’”). To find
32
McSwain’s opinion reliable, a district court would have to determine that he had
some unstated basis for believing the spar on the accident helicopter to have
exhibited the same pattern observed on the o ne tested b y Bell. A t the same time, it
would have to credit his unstated (and possibly uninformed) conclusion that the
accident helicopter differed in this respect from the very aircraft which its use over
time most closely resembled: the other helicopters within the same Fort Rucker
fleet. Eva luating th e sound ness of th ese aspec ts of M cSwain’s opin ion clearly
requires weighing probabilities. Yet McSwain has neither explained the likelihood
he assigns to each of the unknowns nor spoken with the sort of “precision and
logic” that would allow us to assess the relationship betw een his experience as a
materials e ngineer and his o pinion in this case. United States v. Frazier,___ F.3d
___ (11th Cir. 2003), 2003 WL 480129 at *5. We therefore hold that his opinion
regarding the visibility of the crack at the time of an inspection conducted 112
hours b efore the accident w as prop erly exclu ded by th e district co urt.
Thus, it only remains for us to review whether the district court was correct
in determining that the parties’ evidentiary submissions did not reveal any genuine
issue of material fact. Our analysis of this matter will take into account the portion
of Sammons’s affidavit wrongfully struck in Crawford.
2. Absence of Genuine Issue of M aterial Fact as to DynCorp’s C onformance
With Inspection Procedu res
33
In determining whether an issue of fact is “genuine” for the purpose of
defeating summ ary judg ment, w e ask w hether th e eviden ce is “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986); Chapman, 229 F.3d at 1023. In making
this determination, we view the evidence in the light most favorable to the
nonm ovant, d rawing all reason able infer ences in th at party’s fa vor. Augusta Iron
and Steel Works v. Employers Ins. of Wausau, 835 F .2d 855 , 856 (1 1th Cir. 1 988).
Here, these standards must be applied to evaluate DynCorp’s contention that no
crack was visible to mechanics maintaining the accident helicopter in conformance
with the Army ’s inspectio n proce dures. W e believe D ynCor p has car ried this
burden.
Although the wrongfully stricken portion of Sammons’s affidavit does tend
to show at least one occasion on wh ich Dyn Corp m echanics should have vis ually
examined the relevant portion of the accident helicopter’s fin spar, DynCorp has
submitted a range of materials suggesting that the crack at this location was never
visible to the naked eye. In addition to the the Bell memorandum and the
description of the post-accident x-rays conducted on the remaining Fort Rucker
fleet, it has submitted an affidavit from the mechanic who conducted the very
inspection discussed in Sammons’s affidavit, which states that no cracks were
34
visible in the fin spar at that time. R.1-44, Tab U, at 1. The Hudgens and
Crawfords, by contrast, have not presented any admissible materials to support
their contention that the crack on the accident helicopter was visible at any point
prior to the crash.
In sum, all the evidentiary materials deserving of consideration suggest that
no crack could be seen by the naked eye as of October 1998, the only occasion as
to whic h there is a ny indica tion that m echanics follow ing Ar my pro cedures should
have loo ked at the relevant p ortion o f the fin sp ar. Since the crack ’s visibility
remains the only d isputed is sue of fa ct pertinen t to Dyn Corp’s confor mance w ith
Army procedures, we conclude that a reasonable jury would have to find a
prepon derance of the ev idence to demon strate that D ynCor p has satis fied this
“performance” prong of the government contractor defense.
In light of our earlier discussion of the other two elements of the government
contractor defense, we hold that DynCorp has demonstrated the absence of any
genuine issue of material fact regarding its entitlement to the defense’s protection
in this case.
CONCLUSION
Having held, first, that the government contractor defense applies to the
Army-DynCorp m aintenance contract and, second, that DynCorp has demonstrated
35
the absence of any genuine issue of material fact as to its satisfaction of the
defense’s three elements, we AFFIRM the summary judgment entered on
DynC orp’s be half in the district cou rt.
AFFIRMED.
36
EDMON DSON, Chief Judge, specially concurring:
I concur in the judgment, and I join in Judge Barkett’s opinion except for
Part IIC.
37
COX, Circuit Judge, specially concurring,
I concur in the judgment, and I join Judge Barkett’s opinion except for Part
IIC.
38
Joe J. Hudgens, Phyllis Hudgens v. Bell Helicopters/Textron, Dyncorp
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2003-04-25
Citations: 328 F.3d 1329
Copy Citations