JOSEPH N. LAPLANTE, District Judge.
In December 2008, a helicopter piloted by the plaintiff, Kurt West, crashed to the ground in Bow, New Hampshire. West survived the crash, but suffered injuries. He then brought this products liability action against the manufacturer of the helicopter, defendant Bell Helicopter Textron, Inc.; the manufacturer of its engine, defendant Rolls Royce Corporation; and the successor-in-interest to the manufacturer of the helicopter's electronic control unit ("ECU"), defendant Goodrich Pump & Engine Control Systems, Inc. This court has subject-matter jurisdiction over this action between West, a Massachusetts citizen, and the defendants, citizens of other states, under 28 U.S.C. § 1332(a)(1) (diversity).
Though many of the underlying facts of this case remain sharply disputed as trial nears, the parties more or less agree to the following. Since obtaining his license in the late 1990s, West has worked as a helicopter pilot. In late December 2008, a few days before Christmas, West took off from an airfield in Connecticut, piloting a Bell 407 helicopter equipped with a Rolls Royce engine, which was in turn equipped with a "Full Authority Digital Engine Control" or "FADEC" system, including an ECU, manufactured by a successor-in-interest to Goodrich. The purpose of West's solo flight was to move the helicopter to a hangar in Pembroke, New Hampshire, owned by West's employer, JBI Helicopters. Before West's flight, the helicopter had been kept outside in wintry conditions at the airfield in Connecticut.
About 45 minutes into the flight, the helicopter's engine lost power, requiring West to attempt to land through a technique known as "autorotation." West succeeded in putting the helicopter down on a residential street, but the force of the landing caused him injuries, including, he claims, a worsening of his pre-existing gastrointestinal syndrome. West also suffers from post-traumatic stress disorder ("PTSD") as a result of the crash, though the parties dispute the severity of that condition.
The parties also dispute what caused the engine in West's helicopter to lose power, or "flame out." West alleges that the flame-out resulted from a defect in the FADEC that caused the closure of a valve supplying fuel to the engine-specifically, that the ECU mistakenly registered an errant electric signal from the circuit board as an "overspeed" event necessitating that the fuel supply be cut. This is known as a "false overspeed solenoid activation, " or "FOSSA, " event. The defendants attack this theory on several grounds. They argue that the engine lost power because it ingested ice or snow left on the helicopter as a result of its improper cleaning by West and a co-worker before West took off from the airfield in Connecticut. The defendants also say that West improperly executed the autorotation procedure, adding to the impact of the landing.
The parties have filed several motions seeking to exclude proffered expert testimony and other evidence from the upcoming jury trial. The court heard oral argument on these motions on the record following the final pre-trial conference in this matter. The court's rulings on those motions follow.
I. Expert challenge motions
West and the defendants challenge much of each other's anticipated expert testimony. "The touchstone for the admission of expert testimony in federal court litigation is Federal Rule of Evidence 702." Crowe v. Marchand , 506 F.3d 13, 17 (1st Cir. 2007). Under that rule,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. As the structure of this rule suggests, before the factfinder in a case can consider expert testimony over the adverse party's objection, the trial judge, serving as "gatekeeper, " must determine whether the testimony satisfies the relevant foundational requirements. See Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 597 (1993).
While the party seeking to introduce the testimony bears the burden of proving its admissibility, id. at 592, the burden is not especially onerous, because "Rule 702 has been interpreted liberally in favor of the admission of expert testimony." Levin v. Dalva Bros., Inc. , 459 F.3d 68, 78 (1st Cir. 2006). Like all evidence, expert testimony is admissible only if it relevant, i.e., if it has any tendency to make a fact of consequence to the action more or less probable than it would be without the testimony, Fed.R.Evid. 401. See, e.g., United States v. Pena , 586 F.3d 105, 110 (1st Cir. 2009). Applying these standards, the court makes the following rulings on the parties' motions challenging each others' experts.
A. Defendants' motions to limit Chen's testimony (doc. nos. 158, 160, 163)
The defendants move to exclude several anticipated opinions from Peter Chen, a mechanical engineer West has retained to testify as to the cause of the accident. The defendants' objections to these opinions go largely to their weight, rather than their admissibility. The one exception is Chen's proffered opinion that the revised version of the FADEC (released at the time of West's accident but not installed in his helicopter) would have prevented the crash. This opinion appears to based on the theory that the revised FADEC would have warned West of the FOSSA event but, even if that is so, there is no reason to believe that the warning would have enabled West to avoid the crash or to lessen its impact. So that opinion is excluded as irrelevant. See Fed.R.Evid. 401, 402. But these motions are otherwise denied insofar as they seek to limit Chen's testimony.
B. Defendants' motions to limit Bloomfield's testimony (doc nos. 158, 159)
The defendants move to exclude several anticipated opinions from John Bloomfield, a systems engineer West has retained to testify as to the cause of the accident. Many of the defendants' objections to Bloomfield's expected testimony depend either on their view of the anticipated trial evidence, which West disputes, or their characterization of Bloomfield's deposition testimony, which the court does not entirely share. The exceptions are Bloomfield's opinions that (1) ice and snow did not cause the crash, since he acknowledged at his deposition that, given his lack of expertise with aircraft engines, he has no opinion on that subject; in any event, this opinion is also cumulative to Chen's, (2) a planned upgrade to the capacitors in the ECU would have prevented the crash, an opinion that West does not defend in his objection to the motion, and (3) the revised FADEC would have prevented the crash, which is inadmissible for the reason set forth at Part I.A, supra. Accordingly, the motions are granted as to those opinions, but otherwise denied.
C. Defendants' motion to limit Dr. Agarwal's testimony (document no. 170)
West has long suffered from gastrointestinal ("GI") problems, including, for at least seven years prior to the crash, intermittent abdominal pain and loose stools, and, for about 19 months or so before the crash, constipation. West reported, in fact, that prior to the accident he was having only one bowel movement each week and that "every once in a while" he would experience constipation, accompanied by nausea and vomiting, that was relieved only by an enema. About six months prior to the accident, West was diagnosed with pelvic floor dysmotility, a progressive weakening of the muscles surrounding the anus that work to expel stool, resulting in chronic constipation.
West has retained Dr. Suresh Agarwal to testify as to whether the helicopter crash caused West's pre-existing GI problems to worsen. Dr. Agarwal, now the chief of trauma, acute care surgery, and burn and surgical care at the University of Wisconsin Hospital, previously held a similar position at Boston University Medical Center, where he practiced for nearly ten years. He has also held academic appointments at both institutions. Dr. Agarwal practices both trauma surgery (treating patients suffering from injuries caused by external forces) and acute care surgery (treating patients suffering from emergent conditions like gall bladder disease, obstructed hernias, and a variety of colonic diseases). While at Boston University, Dr. Agarwal also maintained a "fairly busy elective practice in which [he] took care of basically anything that was in the abdomen."
1. Causation opinion
Based on reviewing West's medical records, and speaking with him for an hour or so by telephone, Dr. Agarwal has formed the opinion that the helicopter crash "caused, or significantly contributed to causing, [an] exacerbation" in West's GI condition so that he "has virtually lost all ability to pass solid waste on his own, " i.e., without assistance from an enema. Dr. Agarwal opines that "[i]t is well-established in [his] own experience and in the medical literature that local impact to the abdomen, as well as the body's systemic response to trauma generally, can worsen functional gastrointestinal disorders" (emphasis added).
West maintains that, in reaching the opinion that the crash contributed to an exacerbation of West's GI condition, Dr. Agarwal simply employed the "standard scientific technique, widely used in medicine, of identifying a medical cause' by narrowing the more likely causes until the most likely culprit is isolated." Baker v. Dalkon Shield Claimants Trust , 156 F.3d 251, 252-53 (1st Cir. 1998). This technique is known as "differential diagnosis, " id., and the defendants do not challenge its validity in general. Nor do they seek to exclude Dr. Agarwal's opinion that trauma to the abdomen is a recognized cause of the worsening of a GI disorder like West's. Instead, the defendants argue that Dr. Agarwal did not reliably rule out another potential cause of the alleged exacerbation in West's GI condition, namely, the natural progression of the disease.
At his deposition, Dr. Agarwal explained that, while pelvic floor dysmotility is indeed "a progressive disease, " it "usually.. takes decades to get to the point where you require colonic decompression with enemas, " as West did after the accident. Dr. Agarwal described that level of the disease, in fact, as "usually something that you see in 80-year-olds, not 40-year-olds." At the time of the crash, West was in only in his early 40s, and had been suffering from chronic constipation for less than two years.
In challenging Dr. Agarwal's resulting opinion that the trauma of the crash, rather than the natural progression of West's disease, is likely responsible for the state of his GI condition at present, the defendants object that Dr. Agarwal's view of the "usual" progression of pelvic floor dysmotility is unsupported by "sufficient facts or data, " as required by Rule 702. Specifically, the defendants argue that Dr. Agarwal based his view solely "on the symptom-progression timeline of nine patients" he has seen "who allegedly had the same GI condition as H West, " but whose "symptoms did not progress as quickly as" his. The defendants maintain that Dr. Agarwal's experience with such a small group of patients cannot serve as a "reliable barometer" for the typical progression of pelvic floor dysmotility-particularly when, as Dr. Agarwal acknowledged, he referred those patients on to subspecialists, and therefore did not personally observe the progress of their condition. (Dr. Agarwal also acknowledged that, in forming his opinion, he did not review those patients' charts, but relied on his "anecdotal memory of what they told [him] about their symptoms and the progression of their symptoms.")
But the universe of evidence that Dr. Agarwal has identified as support for his view of the usual progression of pelvic floor dysmotility syndrome is not so limited. The defendants emphasize Dr. Agarwal's testimony that, during the nine years or so he has practiced, "[a]pproximately one patient per year or so comes to [him] with problems related to pelvic dysmotility" (which works out to around nine patients) and he did "not treat those patients" but usually referred them to the colorectal surgeons in his practice. Yet Dr. Agarwal also testified that, in his experience, he had "seen people over a ten-year period, and  never seen them go from a mild to a severe form" of the condition during that time.
Moreover, Dr. Agarwal also testified that he had relied on medical articles and textbooks, explaining at one point that he had "examined the timeline of disease for most of these patients from the works of other people... and found that this is a slow progressing problem" so that "most patients don't automatically go from mild disease to severe disease." Later in his deposition, in fact, Dr. Agarwal identified two specific articles that "refer to the evolution of the disease process" or to "how people's disease pattern progresses."
This testimony suffices to show, at least at the pre-trial stage, that Dr. Agarwal's opinion ruling out the natural progression of West's pelvic floor dysmotility as the cause of his post-accident symptoms is based on sufficient facts and data-namely, his personal experience in treating patients with that condition on a long-term basis, as well as the articles describing the typical evolution of the disease. While, as just outlined in part, Dr. Agarwal's deposition testimony on that subject is arguably self-contradictory on some points and vague on others, the Court of Appeals has cautioned that "[w]hen the factual underpinning of an expert's opinion is weak, it is a matter affecting the weight and credibility of the testimony, '" not its admissibility. Milward v. Acuity Specialty Prods. Grp., Inc. , 639 F.3d 11, 22 (1st Cir. 2011) (quoting United States v. Vargas , 471 F.3d 255, 264 (1st Cir. 2006) (further quotation marks omitted)).
This court nevertheless recognizes that the defendants' cross-examination of Dr. Agarwal in the trial setting might serve to clarify some of his earlier testimony in a way that undermines his clinical experience and academic research as support for his view of the typical progression of pelvic floor dysmotility. Accordingly, the court will provide the defendants with the opportunity to conduct a voir dire examination of Dr. Agarwal outside the presence of the jury, if they wish, and to renew their motion to exclude Dr. Agarwal's causation opinion at that point. In the meantime, however, the defendants' motion is denied insofar as it seeks to exclude that opinion. The defendants' motion is granted insofar as it seeks to prevent Dr. Agarwal from offering opinions on a number of subjects that, at his deposition, Dr. Agarwal admitted he is not qualified to or does not intend to offer. West has not argued that any such opinions are nevertheless admissible.
2. Supplemental report
At his deposition, Dr. Agarwal testified that West's GI problems did not begin worsening until July or August 2009, some seven months after the crash. While Dr. Agarwal acknowledged that a worsening of GI symptoms would typically occur with "a couple months" of the trauma that produced them, he attributed the delay in the exacerbation of West's symptoms to intestinal surgery he underwent several weeks after the crash, in February 2009 (but which had been scheduled before the crash as an attempt to ameliorate West's then-existing GI problems).
Following Dr. Agarwal's deposition, however-and the disclosure of a report from one of the defendants' medical experts opining that, if the December 2008 crash had in fact caused West's GI problems to get worse, the worsening would likely have presented itself before the February 2009 surgery- Dr. Agarwal issued a supplemental report opining that, in fact, such a worsening had appeared. Specifically, Dr. Agarwal stated that, in contrast to his condition before the crash, West was not "experiencing unassisted bowel movements in that five and half week period" between the crash and the surgery, but that his "bowel movements were accomplished with the use of colonic cleansing irrigations."
The defendants argue that Dr. Agarwal should not be permitted to testify to these "new opinions" at trial because they contradict Dr. Agarwal's testimony at his deposition. Through the supplemental report, however, Dr. Agarwal was not trying to correct his deposition testimony, but his original expert report. And, as West points out, the Federal Rules of Civil Procedure contemplate that a party may supplement a disclosure, including an expert report, "in a timely manner if the party learns that in some material respect the disclosure... is incomplete or incorrect." Fed.R.Civ.P. 26(e) (1)(A) (emphasis added). So the court could prevent Dr. Agarwal from testifying to his changed understanding of West's post-accident GI symptoms only if, first, the report was not supplemented in a timely manner and, second, the delay in supplementation was neither substantially justified or harmless, see Fed. R. Civ. 37(c) (1). The supplementation was in fact timely under the applicable deadline for supplemental expert reports set forth in this court's scheduling order and, in any event, the court can discern no harm to the defendants from learning of Dr. Agarwal's changed understanding of West's post-accident medical condition in the supplemental report instead of in the initial report. Again, Dr. Agarwal's opinions did not change.
So the defendants' request to prevent Dr. Agarwal from testifying as to that changed understanding as a basis for his opinion that the accident caused West's GI condition to worsen is denied. The defendants, of course, are free to cross-examine Dr. Agarwal on his changed understanding.
D. Defendants' motion to limit Ford's testimony (document no. 168)
The parties agree that West suffers from post-traumatic stress disorder ("PTSD") as a result of the crash, though they disagree as to its severity. West has retained Charles Ford, a psychiatrist, to testify as to the severity of West's PTSD. The defendants object to Ford's opinion that, as a result of the PTSD, West faces the risk of a shorter life expectancy. While, in their motion and supporting papers, the defendants challenged this opinion as unreliable under Rule 702, Bell made an additional point at oral argument: that, "[i]n accordance with the holdings in other jurisdictions, New Hampshire does not recognize a right to recovery of compensation, as a separate element of damages, for the shortening of a person's life expectancy as a result of an injury." Richard B. McNamara, Tort & Insurance Practice, in 8 New Hampshire Practice § 11.13, at 11-14 (3d ed. 2003).
As support for this view, Judge McNamara's treatise relies on a New Hampshire case, Ham v. Maine-New Hampshire Interstate Bridge Authority , 92 N.H. 268, 275-76 (1943), which, though decided some 70 years ago, remains good law, so far as this court can tell, cf. Nichols v. Estabrook , 741 F.Supp. 325, 329 (D.N.H. 1989) (quoting Ham for the proposition that New Hampshire does not recognize "hedonic" damages, i.e., damages for the value of life itself). Other authorities agree that "reduction of life expectancy is not itself a compensable element of damages." Restatement (Second) Torts § 924 cmt. e, at 526 (1979); see also, e.g., Downie v. U.S. Lines Co. , 359 F.2d 344, 346-47 (3d Cir. 1966) (applying federal maritime law); Farrington v. Stoddard , 115 F.2d 96, 101 (1st Cir. 1940) (applying Maine law); In re Joint E. & S. Dist. Asbestos Litig. , 726 F.Supp. 426, 430 (E.D.N.Y. 1989) (applying New York law); 22 Am. Jur. 2d Damages § 235, at 221 (2003). While there is authority to the contrary, see, e.g., Otani ex rel. Shigaki v. Broudy , 92 P.3d 192, 200 (Wash. 2004) (Sanders, J., dissenting and collecting cases), this court has no reason to believe that the New Hampshire Supreme Court would adopt that position, in light of its holding to the contrary in Ham.
So West cannot recover for his allegedly shortened life expectancy under New Hampshire law. Nor is West's life expectancy relevant to any other issue in the case: he makes no claim for lost future earnings, and cannot present a claim for future medical expenses in light of his lack of sufficient evidence discounting those expenses to net present value, see infra Part II.C.1. Because Ford's opinion as to West's risk of a shortened life expectancy is irrelevant, see Fed.R.Evid. 401, the defendants' motion to exclude it is granted.
The defendants also challenge Ford's opinion that, if West's GI problems have worsened since the crash, his PTSD contributed to that worsening. But the defendants do not challenge the notion that PTSD can exacerbate a patient's pre-existing GI problems, or Ford's qualifications to give that opinion in light of his extensive experience in treating PTSD. Instead, the defendants argue principally that, because Ford is not a gastroenterologist, he cannot opine that West's GI symptoms in fact worsened after the crash, or that other factors were not responsible for that worsening. Ford can, however, rely on Dr. Agarwal's opinions on those subjects, and "such reliance goes to the weight, not to the admissibility of the expert's opinion." Ferrara & DiMercurio v. St. Paul Mercury Ins. Co. , 240 F.3d 1, 9 (1st Cir. 2001). The defendants' motion is denied insofar as it seeks to prevent Ford from testifying that West's PTSD contributed to a worsening of his GI symptoms.
E. West's motions to limit Albert's and Stimpson's testimony and to exclude evidence of cellphone use (document nos. 203, 243)
1. Cellphone use
Bell intends to offer expert opinion testimony from Vernon Albert, a flight instructor, that West's flight pattern was consistent with the pilot's use of a cellphone, and that, by using his phone during flight, West carelessly distracted himself from piloting. In objecting to these opinions, West argues that "neither Albert nor any other witness should be permitted to testify about [West's] cellphone use at all, " given the lack of evidence that his use of a cellphone during flight contributed to the crash, or caused West's injuries from the crash to be worse than they otherwise would have been. As West points out, while he made or received several calls during the flight, his last call concluded more than 10 minutes before the flameout in his engine occurred. Moreover, the defendants have proffered no evidence that, prior to the flameout, West could have done anything in flight that would have prevented the helicopter from flaming out, from crashing as a result of the flameout, or from causing the injuries he claims to have suffered in the crash.
Instead, the defendants argue that, based on West's use of his phone to make and receive calls earlier in the flight, the jury can draw the inference that West was using his cellphone later in the flight (and thus closer in time to the flameout) for purposes other than making or receiving calls, such as texting or browsing the Internet. In the court's view, that would be impermissible speculation, rather than a permissible inference. And, even assuming that the jury could rationally infer that West was making some use of his phone at the time of the flameout, the defendants have proffered no evidence that, but for that conduct, West could have prevented the helicopter from crashing, or lessened the impact of the crash. So the fact of West's cellphone use-or Albert's opinion that it distracted West from his piloting duties-simply has no relevance to the issues of fault or causation in this case. See Fed.R.Evid. 401. West's motion to exclude Albert's anticipated opinions as to West's cellphone use is granted.
West's cellphone use during flight, however, is relevant to a different issue: his ability to observe the behavior of the helicopter during the portion of the flight preceding the flameout. West himself says that, during that time, he flew "without incident or problem"-a statement on which Chen has expressly relied in opining that the flameout was not caused by an ingestion of snow or ice. So West's account of no "incident or problem" prior to the flameout appears to be relevant to the cause of the crash, a pivotal issue in the case. In deciding whether to credit that account, the jury can consider West's ability to observe any such "incident or problem, " including whether that ability was impaired by his use of his cellphone.
Yet the court acknowledges that the record is not fully developed on this point (it may be, for example, that the "problem" resulting from an ingestion of ice or snow would be so obvious that West would have noticed it regardless of his cellphone use), so the relevance of West's cellphone use may need to be re-evaluated during trial. Based on the present record, though, the court rules that West's cellphone use is admissible for the limited purpose of assessing his ability to observe the behavior of the helicopter up until the ten minutes or so prior to the flameout. If that ruling stands, West may request a limiting instruction to that effect. See Fed.R.Evid. 105. West's motion to exclude evidence that he used his cellphone during the flight is denied.
2. Albert's other opinions
West also challenges two of Albert's other opinions: that West inadequately de-iced the helicopter before taking off, and improperly executed the autorotation procedure in landing. West's objection to the second of these opinions goes to its weight, not its admissibility. As to the first of the opinions, Albert can testify that, in de-icing the helicopter, West used non-standard products, and that a reasonable pilot in West's position should have known that his procedures in preparing the helicopter for flight were insufficient to ensure its safety. But, as Bell acknowledges, Albert cannot testify as to the efficacy of the de-icing products that West actually used, because he is not an expert in such matters, see Fed.R.Evid. 702, nor can Albert testify as to what West actually knew, see, e.g., Philbrick v. eNom, ...