Most experienced lawyers can recount occasions on which courts denied well-founded motions to exclude or limit expert testimony. In Neelu Aviation, LLC v. Boca Aircraft Maintenance, LLC, et al., the Southern District of Florida actually excluded a portion of the expert testimony proffered by the plaintiff. Yet it still serves as a reminder of how limited a role United States' courts play as "gatekeepers" under Daubert and other similar standards.

Neelu Aviation ("Neelu") commenced the underlying action to recover for damage to an Eclipse Jet Aircraft (the "Aircraft") suffered as the result of a tire blow-out. Neelu Aviation apparently had presented the Aircraft to Defendant Boca Aircraft Maintenance ("Boca") for a 300-hour annual inspection and Boca cleared the Aircraft as "flight ready." On its first flight out of Boca Raton, Florida following the inspection, however, the generators failed and an emergency landing in Jacksonville, Florida was necessary. The Aircraft was ferried to Boca for testing and repair, but sustained further damage when the anti-lock brakes failed and a tire popped upon landing.

Upon the conclusion of discovery, multiple parties filed Motions to Exclude or Limit Expert Testimony and Motions in Limine to exclude certain other evidence. Of the various Court rulings, perhaps the most instructive is its holding to exclude certain opinions of Expert Colin Sommer, who has appeared in many high-profile aviation cases and offered opinions on a wide variety of aviation issues. After reciting the standard under Daubert – i.e., that an expert must be qualified to give the opinion and the opinion must be "reliable" – the Court here excluded Sommer's "duty-of-care" opinions, holding as follows:

Suffice it to say, Expert Sommer is a licensed professional mechanical engineer and a licensed pilot who is certified to fly jets. Accordingly, as a licensed engineer, Expert Sommer is likely capable of being qualified to render engineering opinions. As a duly certified pilot, he is also likely capable of being qualified to render pilot and accident reconstruction opinions. In this case, ... Sommer is being proffered to give duty-of-care opinions of an aircraft mechanic and of an aircraft maintenance facility performing aircraft maintenance on a complex jet aircraft. Under these circumstances, the Court would be derelict of its duties in performing the gatekeeping function by admitting Expert Sommer's opinions1.

The Court refused, however, to exclude Sommer's opinion that there was no emergency on the initial flight and that both generators were operational – thus disposing of any need for the ferry flight to Boca Raton that resulted in the tire blow-out – even though his initial report concluded the exact opposite: "[f]ailure of the right generator at altitude created an emergency."

The Court denied Neelu's motion to exclude two defense experts, and denied Boca's motions in limine to exclude evidence at trial as to diminution in value, lost profits, or entitlement to punitive damages even though Neelu provided no such evidence during discovery. With regard to the remaining motions in limine, the Court excluded only the following:

  1. Evidence of punitive damages as it related to a cause of action where punitive
    damages are not permitted;
  2. Evidence of a settlement between Neelu and a former defendant; and
  3. Evidence of claims for medical malpractice against the owner of the Aircraft (which the Court found were completely unrelated to the allegations of comparative negligence by the defendants).

In sum, the Court's rulings on these various evidentiary motions underscore how hesitant courts are to exclude evidence, especially expert evidence, from consideration by a jury. Whether you believe this is a strength or potential area of criticism of our legal system might depend on perspective – this author falls in the latter category – but it is indisputable that this places a great burden on counsel to explain complicated positions in a manner that juries can understand and apply. One further note to take from this case: make sure your experts have basic qualifications for the issues they are evaluating, that you are aware of and address any instances in which a court has previously precluded your expert from giving a similar opinion, and of course that your expert has not given opinions that contradict those they are providing on behalf of your client. Neelu Aviation, LLC v. Boca Aircraft Maintenance, LLC, et al., 2021 U.S. Dist. LEXIS 209841 (S.D. Fla. August 23, 2021).

Footnote

1. Of note, an Alaska federal court excluded Sommer's opinion and related testimony as to duty of care for an installer facility a year prior.

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