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Kedrowski v. Lycoming Engines

Supreme Court of Minnesota

September 11, 2019

Mark Kedrowski, Appellant,
v.
Lycoming Engines, a division of AVCO Corporation, Respondent.

          Court of Appeals Office of Appellate Courts

          Eric 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.

          Steven 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, for respondent.

          Michael L. Weiner, Yaeger & Weiner, PLC, Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

         SYLLABUS

         1. 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 error.

         2. The erroneous admission of the unreliable part of the expert's opinion warrants a new trial on liability.

          OPINION

          ANDERSON, JUSTICE.

         This 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 appeal.

         FACTS

         On 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 to crash.

         Kedrowski 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.[1] 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 its answer.

         Kedrowski 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.

         Sommer 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.

         Sommer 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 Kedrowski.

         Two 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."

         Second, 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."

         To 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."

         Sommer 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 problem":

[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.

         That 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 pump."

         Sommer 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.

         Sommer's 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 email.

         In 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."

         Sommer 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."[2]

         Sommer's 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 crash:

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."

         Additionally, 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 ...


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