Cadigan v. Liberty Helicopters, Inc.
Opinion
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.
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.
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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
152286/2018 CADIGAN, JERRY vs. LIBERTY HELICOPTERS, INC. Page 1 of 5 Motion No. 033 056
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NYSCEF DOC. NO. 1778 RECEIVED NYSCEF: 05/31/2024
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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NYSCEF DOC. NO. 1778 RECEIVED NYSCEF: 05/31/2024
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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NYSCEF DOC. NO. 1778 RECEIVED NYSCEF: 05/31/2024
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.
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