of Appeals Office of Appellate Courts
J. Magnuson, Kelvin D. Collado, Robins Kaplan LLP,
Minneapolis, Minnesota; Thomas W. Fuller, Cortney S. LeNeave,
Hunegs, LeNeave & Kvas, P.A., Wayzata, Minnesota; and
Stephen P. Watters, Watters Law Office, Minnetonka,
Minnesota, for appellant.
J. Wells, Timothy J. Droske, Andrew B. Brantingham, Dorsey
& Whitney LLP, Minneapolis, Minnesota; and Daniel A.
Haws, John Paul J. Gatto, HKM, P.A., Saint Paul, Minnesota,
Michael L. Weiner, Yaeger & Weiner, PLC, Minneapolis,
Minnesota, for amicus curiae Minnesota Association for
Because the district court abused its discretion by excluding
the entire causation opinion of an expert witness when only
one ground for the expert's causation opinion lacked
foundational reliability, judgment as a matter of law was
erroneous admission of the unreliable part of the
expert's opinion warrants a new trial on liability.
litigation arises from the crash of a single-engine airplane,
which resulted in serious injuries to appellant Mark
Kedrowski, the pilot of the airplane. According to
Kedrowski's expert, a defective fuel pump manufactured by
respondent Lycoming Engines caused the airplane to lose power
and crash. After the jury returned a $27.7 million verdict
for Kedrowski, the district court ruled that the opinion of
Kedrowski's sole expert on causation lacked foundational
reliability under Minn. R. Evid. 702 and that the
expert's opinion should have been excluded in its
entirety. Following the posttrial evidentiary ruling, the
district court granted judgment as a matter of law to
Lycoming, and the court of appeals affirmed. Kedrowski v.
Lycoming Engines, No. A17-0538, 2018 WL 2293332, at *1.
(Minn.App. May 15, 2018). We hold that the district
court's evidentiary exclusion was overbroad and an abuse
of discretion and that a new trial on liability is required.
We therefore reverse the decision of the court of appeals and
remand to that court to decide the remaining issue on this
September 3, 2010, Kedrowski crashed his single-engine
airplane shortly after takeoff from the Lake Elmo Airport,
sustaining serious injuries. Kedrowski told a first responder
that "he lost power and was trying to get back to the
airport" when the crash occurred. Kedrowski now has no
memory of the accident or what happened to cause the airplane
brought an action against both Lycoming and Kelly Aerospace
Power Systems, Inc., which manufactured the fuel pump of the
airplane engine as part of a joint enterprise. As relevant here,
Kedrowski alleged that Lycoming manufactured the engine,
including the fuel delivery system, "in a defective
condition that was unreasonably dangerous to users and
consumers." Kedrowski alleged that, as a result, his
airplane lost power and crashed and that he suffered severe
personal injuries. Lycoming asserted a pilot-error defense in
retained expert Donald Sommer to investigate the crash.
Sommer holds a degree in mechanical engineering and is a
registered professional engineer. He is licensed by the
Federal Aviation Administration as an airline transport and
commercial pilot and has been authorized to instruct student
pilots. He has over 16, 000 hours of flight experience and
specializes in aircraft accident reconstruction.
was of the opinion that the diaphragm-style Lycoming LW-15473
fuel pump in Kedrowski's airplane had manufacturing
defects and that those defects caused Kedrowski's power
loss and crash. Sommer testified at trial that the pump was
"incapable of providing for the needs of the
engine" and that Kedrowski "lost the ability to
continue the engine operation because of a defective fuel
pump [and] that that fuel pump caused the engine to reduce
itself in power . . . ." As Sommer summarized:
[A] fuel pump is the heart of an airplane. It works very much
like a heart. It has valves, and the airplane depends on its
function. When the heart goes into a reduced performance or
when the heart starts leaking or when the heart has weak
muscles, the problem is that the engine loses power. The
airplane loses power. In a single-engine airplane, that means
that the airplane is going to come down to the Earth, and
that's what happened in this case.
reached this opinion after a multifaceted investigation.
Sommer reconstructed Kedrowski's flight path, reviewed
the airplane's maintenance history and operating manuals,
reviewed Lycoming engineering documents, and analyzed the
plane's propeller and engine components. Sommer also
evaluated "human factors" and interviewed
parts of Sommer's investigation corroborated
Kedrowski's statement to the first responder that his
airplane lost power before the crash. First, Sommer inspected
the airplane's propeller, which had not been severely
damaged in the accident sequence. According to Sommer, the
propeller was "virtually pristine." Sommer
testified that "you will never find a blade like this on
an engine that's making power." Sommer testified
that the propeller analysis showed that the engine was
producing "low power at impact."
Sommer testified that "the engine was pretty much in one
piece" and had not "been completely damaged by the
accident sequence," which allowed Sommer and his
investigation team to install the engine on a dynamometer. As
Sommer described, a dynamometer "simulates an
airplane" and "determine[s] how much
horsepower" the engine is able to produce. Sommer
testified that the engine was run on this device "to the
maximum power that we could obtain." The test showed
Sommer that the horsepower output by the engine "was
nowhere near what it was supposed to be." Sommer
testified that the loss of power was
"significant"-"around 40 percent."
Although Sommer "strongly suspect[ed]" that the
plane "would have enough [horsepower] to stay in the
air," the result of the dynamometer test disclosed that
the engine was "not running right."
determine the cause of the power loss, Sommer "analyzed
every part and component on the engine." He tested the
fuel servo, which "operated fine." He also tested
the engine's two ignition systems, which "both
worked, and they both ran the engine."
learned something from his interview with Kedrowski that
"really piqued" his interest in the fuel pump.
Kedrowski told Sommer of occasions where he would engage a
separate boost pump when starting the plane, "which is
normal." But when Kedrowski would turn off the boost
pump, the engine would die. Sommer testified that these
experiences were "significant" because they
"mean[t] that the engine-driven pump has a
[I]f an engine will run only with the boost pump on and stops
running when the boost pump is off and continued to run when
the boost pump was turned back on, that's pretty much . .
. a no brainer to me that the engine-driven pump was not
providing for the needs of the engine.
the engine "quit when the boost pump was removed"
revealed to Sommer that "the fuel pump had a history of
not providing for the needs of the engine." Sommer
testified that Kedrowski's boost-pump experiences showed
that "the engine was not capable of running on that
tested the pump on a flow bench. This testing became the
focus of the parties' arguments on appeal. A flow bench
is a "specialized test fixture" that is used to
measure pump performance. A flow-bench test requires three
parameters: the revolutions per minute (rpm) of the engine
attached to the pump, the pounds per square inch (psi) of
pressure output by the pump, and the pounds per hour (pph) of
fuel flowing through the pump. These three parameters are
interrelated, as Sommer testified:
[I]f you lower the flow coming out of the pump, in other
words, you restrict it, you close down a valve, or in the
case of an engine, the fuel injection system closes down. If
you lower the flow, the pressure will go up. If you lower the
pressure, the flow will go down. So they're interrelated,
and you can control one through the other.
investigation team "obtained some test parameters for
the pump, flows and pressures," and "operated the
pump close to those test parameters in order to determine
whether or not it met the parameters." Sommer obtained
the parameters from Aero Accessories, which Sommer described
as "a shop that's approved to manufacture Lycoming
fuel pumps." Sommer had an employee call an Aero
Accessories employee, who provided specifications in an
part, the Aero Accessories specifications stated that the
pump should produce 271 pph of flow at 1800 rpm and 24 to 30
psi. Sommer's flow-bench test of the accident pump at
those parameters showed that it produced only 48 pph of fuel
flow at 1800 rpm and 25 psi. Sommer's flow-bench testing
showed him that "the fuel pump wasn't coming
anywhere near the specifications we received."
Specifically, the pump "didn't make the outlet
pressure, and it didn't make the flow rate that we were
given by Aero Accessories." Sommer testified that the
flow-bench testing showed that the pump "had a
problem" and "wasn't performing." Sommer
opined that the pump "was not capable of producing
design flow and pressure and that it was substandard."
later disassembled the pump. He testified that he "found
some issues." When testing the pump's valve for air
leaks, Sommer discovered "that we had potentially a very
serious set of leaks in both the inlet and outlet check
valves." Sommer also found that a "valve wasn't
installed square in the hole" and that manufacturing
problems "created a direct leakage path around the check
valve for the inlet check valve."
investigation extended beyond the fuel pump. Sommer and his
team "dis[as]sembled the engine completely, took it
apart pretty much every nut and bolt and looked at all the
stuff that you can look at on an engine." Sommer,
despite having never worked on a diaphragm-style pump before,
had performed "hundreds and hundreds, probably, close to
a thousand" aircraft engine teardowns, and was
"looking for anything that could explain [the] loss in
horsepower." But the pistons, valves, cylinders,
camshaft, crankshaft, connecting rods, and "all the
internal components of the engine" appeared normal.
Sommer testified that, "from the standpoint of the major
mechanical components inside the engine, there was nothing
there that was suspicious." Sommer believed that this
elimination of all other sources of power loss-what Kedrowski
refers to as a "differential analysis"-supported
his conclusion that the Lycoming pump caused Kedrowski's
I went through everything in that engine that could possibly
have made [the engine] lose power. The fuel system, the
magneto system, the spark plugs, the fuel injection servo,
the boost pump-every component that could possibly have
caused this engine to fail was analyzed, and there was only
one that was found with defects, and that's the
engine-driven fuel pump.
"[T]he only conclusion that makes sense, after almost
four years of researching this," Sommer testified,
"is that the fuel pump caused the engine . . . to reduce
itself in power."
Sommer tested the pump on a different airplane. After the
fuel pump was installed, "they couldn't get the
airplane started." Sommer testified that "the only
thing different about this configuration was the accident
fuel pump, and the engine wouldn't start without an
excessive amount of ...