Cadigan v Liberty Helicopters, Inc. 2024 NY Slip Op 31871(U) May 31, 2024 Supreme Court, New York County Docket Number: Index No. 152286/2018 Judge: James E. d'Auguste Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152286/2018 NYSCEF DOC. NO. 1778 RECEIVED NYSCEF: 05/31/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. James d'Auguste PART 55 Justice --X INDEX NO. 152286/2018 JERRY CADIGAN, NANCY CATON CADIGAN, 04/26/2024, Plaintiffs, MOTION DATE 05/13/2024
- V - MOTION SEQ. NO. 033 056
LIBERTY HELICOPTERS, INC.,A NEW YORK CORPORATION, NY ON AIR LIMITED LIABILITY COMPANY, A NEW JERSEY LIMITED LIABILITY COMPANY, FL YNYON LLC,A DELAWARE LIMITED LIABILITY COMPANY, MERIDIAN CONSUL TING I CORPORATION, INC.,A DELAWARE CORPORATION, DECISION + ORDER ON RICHARD ZEMKE VANCE, A CONNECTICUT RESIDENT, AIRBUS HELICOPTERS, S.A.S., A FRENCH MOTION CORPORATION, AIRBUS HELICOPTERS, INC.,A DELAWARE CORPORATION, APICAL INDUSTRIES, INC. D/B/A DART AEROSPACE
Defendants. -----------------·------------X
The following e-filed documents, listed by NYSCEF document number (Motion 033) 1227, 1228, 1229, 1230, 1231, 1330, 1331 were read on this motion to/for HEARING
The following e-filed documents, listed by NYSCEF document number (Motion 056) 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1171, 1172, 1286, 1287, 1288, 1289, 1290, 1291, 1292, 1293, 1294, 1635, 1636 were read on this motion to/for PRECLUDE
Motion Sequences 033 and 056 are consolidated for disposition.
In Motion Sequence 033, defendants NYONAIR LLC and FlyNYON LLC (collectively
"NYON") move in limine for an order granting a Frye hearing to evaluate the admissibility of
plaintiffs' experts Kenneth T. Betz, MBA, MA, Kristin Kucsma, M.A, William D. Carden, M.S.,
P.E, Richard McSwain, Ph.D, P.E., Arthur Lee Coffman, Rodney Doss, Bart Feder, Colonel
William S. Lawrence, Robert Pitchford, and Dr. Michael Taber; defendant Liberty Helicopters
Inc's ("Liberty") experts Douglas Stimpson and Michael C. Hurst; and defendant Apical
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Industries, Inc.'s ("DART") expert Matthew Robinson, ATP, CFII. Plaintiffs, Liberty, and
DART oppose the motion. In Motion Sequence 056, DART moves in limine to exclude expert
testimony of plaintiffs' experts Donald E. Sommer, P.E. and Richard Wartman, P.E.; NYON's
experts Chason Coelho, Ph.D., CSP, CFI, C. Dennis Moore, Ph.D., P.E., Gregory A. Feith,
Richard A. Lee, and Scott A. Shappell, Ph.D.; Liberty's experts Douglas E. Stimpson, John E.
Meyer, Ph.D, P.E., Kirk A. Gustafson, Tom Yakubovich, and Erin Egan. In alternative, DART
moves for a Frye hearing. Plaintiffs, NYON, and Liberty oppose the motion. Upon the
foregoing documents and following oral arguments on May 14, 2024 and May 15, 2024, Motion
Sequences 033 and 056 are granted to the limited extent set forth below and otherwise denied.
The Court may order a Frye hearing when a scientific technique or novel application of
science is at issue; a Frye hearing is inappropriate when an adversary only has factual
disagreements with an expert's theory. See Gayle v Port Auth. of New York and New Jersey, 6
AD3d 183, 184 [1st Dept 2004]; see also Johnson v Guthrie Med. Group, P.C., 125 AD3d 1445,
1447 [4th Dept 2015]. A "Frye inquiry is separate and distinct from the admissibility question
applied to all evidence-whether there is a proper foundation-to determine whether the
accepted methods were appropriately employed in a particular case." Parker v Mobil Oil Corp.,
7 NY3d 434,447 [2006] (citing People v Wesley, 83 NY2d 417,429 [1994]). NYON's and
DART's arguments in support of their motions for a Frye hearing do not challenge scientific
techniques or novel applications of science; instead, their arguments preview their cross
examination of these expert witnesses.
NYON challenges the admissibility of plaintiffs' experts Kenneth T. Betz, MBA, MA,
Kristin Kucsma, M.A, William D. Carden, M.S., P.E, Richard McSwain, Ph.D, P.E., Arthur Lee
Coffman, Rodney Doss, Bart Feder, Colonel William S. Lawrence, Robert Pitchford, and Dr.
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Michael Taber. NYON does not challenge Betz's and Kucsma's qualifications as economists.
Instead, NYON challenges their conclusions, failing to meet the threshold to exclude the experts
or order a Frye hearing. Plaintiffs stated during oral arguments that they do not intend to call
Carden or Mcswain. NYON disagrees with Coffman's opinions and believes his testimony will
function as a recitation of undisputed facts. His expert qualifications are not disputed. Plaintiffs
clarify that Coffman is expected to testify regarding his opinions of, inter alia, the adequacy of
Liberty's and NYON's safety procedures and egress training. Therefore, Coffman's testimony
does not warrant exclusion. Rodney Doss is expected to testify regarding matters of aircraft
certification, airworthiness, and regulations, and NYON is seeking to evaluate his methodology
and factual foundation. NYON' s challenge of Doss is not the basis of a Frye hearing or
exclusion, but rather may be addressed through cross-examination at trial. NYON does not
challenge scientific techniques or novel applications of science in Peder's anticipated testimony;
rather, NYON disputes the foundation of Peder's anticipated conclusions. NYON may challenge
Peder's testimony through cross-examination. NYON challenges Colonel William Lawrence
based on NYON's position of contested facts, which does not warrant granting exclusion or
ordering a Frye hearing. See Casalini v Alexander Wolf & Son, 157 AD3d 528, 530 [1st Dept
2018] [showing that issues of material fact cannot be the basis of granting a motion in limine
because motions in limine are not appropriate to receive summary relief]. Robert Pitchford has
substantial experience as an underwater egress instructor, and therefore exclusion or a Frye
hearing is not appropriate. NYON is challenging Michael Taber's opinions as speculative and
lacking foundation, and therefore the basis of cross examination rather than exclusion or a Frye
hearing.
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The branch of the motion is granted as to Liberty's expert Michael C. Hurst to the extent
of requiring Liberty to serve a supplemental CPLR 3101 (d) notice with more specificity as to the
scope of Hurst's anticipated testimony. Stimpson previously filed an affidavit in connection with
the motions for summary judgment in this action; therefore, the other parties have received
reasonable notice of Stimpson's expert testimony. The branch of the motion for a Frye hearing
for Liberty's experts is denied; NYON has not articulated any novel or experimental
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Cadigan v Liberty Helicopters, Inc. 2024 NY Slip Op 31871(U) May 31, 2024 Supreme Court, New York County Docket Number: Index No. 152286/2018 Judge: James E. d'Auguste Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152286/2018 NYSCEF DOC. NO. 1778 RECEIVED NYSCEF: 05/31/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. James d'Auguste PART 55 Justice --X INDEX NO. 152286/2018 JERRY CADIGAN, NANCY CATON CADIGAN, 04/26/2024, Plaintiffs, MOTION DATE 05/13/2024
- V - MOTION SEQ. NO. 033 056
LIBERTY HELICOPTERS, INC.,A NEW YORK CORPORATION, NY ON AIR LIMITED LIABILITY COMPANY, A NEW JERSEY LIMITED LIABILITY COMPANY, FL YNYON LLC,A DELAWARE LIMITED LIABILITY COMPANY, MERIDIAN CONSUL TING I CORPORATION, INC.,A DELAWARE CORPORATION, DECISION + ORDER ON RICHARD ZEMKE VANCE, A CONNECTICUT RESIDENT, AIRBUS HELICOPTERS, S.A.S., A FRENCH MOTION CORPORATION, AIRBUS HELICOPTERS, INC.,A DELAWARE CORPORATION, APICAL INDUSTRIES, INC. D/B/A DART AEROSPACE
Defendants. -----------------·------------X
The following e-filed documents, listed by NYSCEF document number (Motion 033) 1227, 1228, 1229, 1230, 1231, 1330, 1331 were read on this motion to/for HEARING
The following e-filed documents, listed by NYSCEF document number (Motion 056) 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1171, 1172, 1286, 1287, 1288, 1289, 1290, 1291, 1292, 1293, 1294, 1635, 1636 were read on this motion to/for PRECLUDE
Motion Sequences 033 and 056 are consolidated for disposition.
In Motion Sequence 033, defendants NYONAIR LLC and FlyNYON LLC (collectively
"NYON") move in limine for an order granting a Frye hearing to evaluate the admissibility of
plaintiffs' experts Kenneth T. Betz, MBA, MA, Kristin Kucsma, M.A, William D. Carden, M.S.,
P.E, Richard McSwain, Ph.D, P.E., Arthur Lee Coffman, Rodney Doss, Bart Feder, Colonel
William S. Lawrence, Robert Pitchford, and Dr. Michael Taber; defendant Liberty Helicopters
Inc's ("Liberty") experts Douglas Stimpson and Michael C. Hurst; and defendant Apical
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Industries, Inc.'s ("DART") expert Matthew Robinson, ATP, CFII. Plaintiffs, Liberty, and
DART oppose the motion. In Motion Sequence 056, DART moves in limine to exclude expert
testimony of plaintiffs' experts Donald E. Sommer, P.E. and Richard Wartman, P.E.; NYON's
experts Chason Coelho, Ph.D., CSP, CFI, C. Dennis Moore, Ph.D., P.E., Gregory A. Feith,
Richard A. Lee, and Scott A. Shappell, Ph.D.; Liberty's experts Douglas E. Stimpson, John E.
Meyer, Ph.D, P.E., Kirk A. Gustafson, Tom Yakubovich, and Erin Egan. In alternative, DART
moves for a Frye hearing. Plaintiffs, NYON, and Liberty oppose the motion. Upon the
foregoing documents and following oral arguments on May 14, 2024 and May 15, 2024, Motion
Sequences 033 and 056 are granted to the limited extent set forth below and otherwise denied.
The Court may order a Frye hearing when a scientific technique or novel application of
science is at issue; a Frye hearing is inappropriate when an adversary only has factual
disagreements with an expert's theory. See Gayle v Port Auth. of New York and New Jersey, 6
AD3d 183, 184 [1st Dept 2004]; see also Johnson v Guthrie Med. Group, P.C., 125 AD3d 1445,
1447 [4th Dept 2015]. A "Frye inquiry is separate and distinct from the admissibility question
applied to all evidence-whether there is a proper foundation-to determine whether the
accepted methods were appropriately employed in a particular case." Parker v Mobil Oil Corp.,
7 NY3d 434,447 [2006] (citing People v Wesley, 83 NY2d 417,429 [1994]). NYON's and
DART's arguments in support of their motions for a Frye hearing do not challenge scientific
techniques or novel applications of science; instead, their arguments preview their cross
examination of these expert witnesses.
NYON challenges the admissibility of plaintiffs' experts Kenneth T. Betz, MBA, MA,
Kristin Kucsma, M.A, William D. Carden, M.S., P.E, Richard McSwain, Ph.D, P.E., Arthur Lee
Coffman, Rodney Doss, Bart Feder, Colonel William S. Lawrence, Robert Pitchford, and Dr.
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Michael Taber. NYON does not challenge Betz's and Kucsma's qualifications as economists.
Instead, NYON challenges their conclusions, failing to meet the threshold to exclude the experts
or order a Frye hearing. Plaintiffs stated during oral arguments that they do not intend to call
Carden or Mcswain. NYON disagrees with Coffman's opinions and believes his testimony will
function as a recitation of undisputed facts. His expert qualifications are not disputed. Plaintiffs
clarify that Coffman is expected to testify regarding his opinions of, inter alia, the adequacy of
Liberty's and NYON's safety procedures and egress training. Therefore, Coffman's testimony
does not warrant exclusion. Rodney Doss is expected to testify regarding matters of aircraft
certification, airworthiness, and regulations, and NYON is seeking to evaluate his methodology
and factual foundation. NYON' s challenge of Doss is not the basis of a Frye hearing or
exclusion, but rather may be addressed through cross-examination at trial. NYON does not
challenge scientific techniques or novel applications of science in Peder's anticipated testimony;
rather, NYON disputes the foundation of Peder's anticipated conclusions. NYON may challenge
Peder's testimony through cross-examination. NYON challenges Colonel William Lawrence
based on NYON's position of contested facts, which does not warrant granting exclusion or
ordering a Frye hearing. See Casalini v Alexander Wolf & Son, 157 AD3d 528, 530 [1st Dept
2018] [showing that issues of material fact cannot be the basis of granting a motion in limine
because motions in limine are not appropriate to receive summary relief]. Robert Pitchford has
substantial experience as an underwater egress instructor, and therefore exclusion or a Frye
hearing is not appropriate. NYON is challenging Michael Taber's opinions as speculative and
lacking foundation, and therefore the basis of cross examination rather than exclusion or a Frye
hearing.
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The branch of the motion is granted as to Liberty's expert Michael C. Hurst to the extent
of requiring Liberty to serve a supplemental CPLR 3101 (d) notice with more specificity as to the
scope of Hurst's anticipated testimony. Stimpson previously filed an affidavit in connection with
the motions for summary judgment in this action; therefore, the other parties have received
reasonable notice of Stimpson's expert testimony. The branch of the motion for a Frye hearing
for Liberty's experts is denied; NYON has not articulated any novel or experimental
methodology that Robinson is expected to use that would warrant a Frye hearing.
The branch ofNYON's motion seeking to a Frye hearing to evaluate the testimony of
DART's witness Matthew Robinson, ATP, CFII is denied. NYON has not identified any novel
or experimental methodology that Robinson is expected to use that would warrant a Frye
hearing; like their challenge of other experts, NYON's arguments in support of this branch of the
motion are more appropriate as cross-examination. Furthermore, the Court finds that DART's
supplemental CPLR 310l(d) disclosure (NYSCEF Doc. No. 1008) is sufficient.
DART's motion in limine (Motion Sequence 056) to exclude expert testimony of
plaintiffs' experts Donald E. Sommer, P.E. and Richard Wartman, P.E. or require a Frye hearing
is denied. DART does not provide the proper basis for a Frye hearing; like NYON's arguments,
DART' s arguments in support of their motion challenge foundation and weight of the experts'
anticipated testimony. The Court finds that plaintiffs' CPLR 3101 (d) disclosures for Sommer
and Wartman are sufficient.
DART seeks to exclude NYON's experts Chason Coelho, Ph.D., CSP, CFI, C. Dennis
Moore, Ph.D., P.E., Gregory A. Feith, Richard A. Lee, and Scott A. Shappell, Ph.D. or,
alternatively, order a Frye hearine. Reviewing Coehlo's affidavit (NYSCEF Doc. No 1324),
Moore's affidavit (NYSCEF Doc. No. 1327), Feith's affidavit (NYSCEF Doc. No 1325), and
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Shappell's affidavit (NYSCEF Doc. No. 1328), the Court finds the disclosures to be sufficient.
Therefore, the Court is denying the branch of DART's motion seeking to exclude NYON's
experts or order a Frye hearing.
The branch of DART's motion in limine as to Liberty's experts is granted to the extent of
requiring Liberty to supplement the CPLR 3 lOl(d) disclosures for John E. Meyer, Ph.D, P.E.,
Tom Yakubovich, and Erin Egan. Kirk A. Gustafson filed an affidavit in connection with the
motions for summary judgment; as with Douglas Stimpson (addressed as part ofNYON's
motion), the other parties have received reasonable notice of Gustafson's expert testimony.
Any of movants' remaining claims regarding cumulative or duplicative testimony is
denied without prejudice to address such objections during trial.
Accordingly, it is hereby
ORDERED that Liberty shall serve supplemental CPLR 3101 (d) disclosures for Michael
C. Hurst, John E. Meyer, Ph.D, P.E., Tom Yakubovich, and Erin Egan within seven days of this
order, and it is further,
ORDERED that the remaining branches of Motion Sequence 033 and 056 are denied.
This constitutes the decision and order of the Court.
5/31/2024 DATE
~ CHECK ONE: CASE DISPOSED
GRANTED □ DENIED GRANTED IN PART 0 OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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