Dover v. British Airways, PLC (UK)

254 F. Supp. 3d 455, 2017 WL 2480898, 2017 U.S. Dist. LEXIS 86709
District Court, E.D. New York·Decided June 5, 2017·No. 12 CV 5567 (RJD) (CLP)·Published·Cited by 3 cases

Opinion

MEMORANDUM OF DECISION

DEARIE, District Judge

On May 16, 2017, the Court ruled as follows:

The parties in this hotly contested class action have traded motions to exclude the opposing party’s proposed expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Federal Rule of Evidence 702. Al-thokgh the motions identify potentially legitimate areas of cross-examination, all but one, the motion to strike Dr. Andrew Hildreth’s report and to exclude his proposed testimony, are denied. The Court concludes that an evidentiary hearing is warranted to consider more fully the admissibility of Dr. Hildreth’s testimony. A Memorandum of Decision will follow.”

For the purposes of this Memorandum of Decision, the Court assumes familiarity with the facts. See ECF No. 249 (“Class Cert. Order”), at 1-3.

LEGAL STANDARD

Under Federal Rule of Evidence 702, a witness with “scientific, technical, or other specialized knowledge [that] will help the trier of fact” may offer expert testimony so long as that testimony is “based on sufficient facts or data,” and is the product of “reliable principles and methods” “reliably applied ... to the facts of the case.” See Fed. R. Evid. 702(a)-(d). “The proponent of the expert testimony has the burden [of] establishing] these admissibility requirements.... ” In re Pfizer Inc. Secs. Litig., 819 F.3d 642, 658 (2d Cir. 2016).

Under Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court must act as the “gatekeeper” to ensure that “an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167; Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Daubert enumerates a non-exhaustive list of factors the Court considers in discharging that duty: “whether a theory or technique had been and could be tested, whether it had been subjected to peer review, what its error rate was, and whether scientific standards existed to govern the theory or technique’s application or operation.” Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005) (citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). “In undertaking this flexible inquiry, the district court must focus on the principles and methodology employed by the expert, without regard to the conclusions the expert has reached or the district court’s belief as to the correctness of those conclusions.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786).

If an expert opinion is based on “data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 man[459]*459date the exclusion of that unreliable opinion testimony.” Id. (citation omitted). “Courts, though, must not determine the credibility of the expert’s proffered testimony .... ” Reed Constr. Data. Inc. v. McGraw-Hill Cos., Inc., 49 F.Supp.3d 385, 399 (S.D.N.Y. 2014) (emphasis added). Indeed, “the possibility of mistake need only be tolerable, not remote. Within that tolerable range, disputes over competing expert opinions are to be resolved by the trier of fact. Outside it, courts exclude the testimony.” Id.

ANALYSIS

A. Plaintiffs’ Experts

1. Robert Kokonis

During Robert Kokonis’s 25 years in the airline industry, he held management positions with several airlines where he was responsible for, among other things, budgeting and forecasting fuel expenses. Today he is president and managing director of an advisory firm, Air Trav, which advises airlines and other clients on “commercial, financial, frequent flyer, fleet fuel efficiency, fuel procurement..., revenue management, and risk management issues.” ECF No. 186-6 (“Kokonis May Report”), at 3. In his report and testimony, Kokonis opines that British Airways used its fuel surcharges, referred to internally as YQ charges, as a means of maximizing its revenues rather than recovering unanticipated fuel costs. He also asserts that it would have been feasible for British Airways either to operate without using a fuel surcharge, accounting for fluctuations in the fuel markets through fare adjustments alone, or to impose a fuel surcharge calculated automatically and directly related to the cost of fuel.

In moving to exclude these opinions, British Airways first argues that Kokonis is unqualified because he has not previously testified an expert witness, lacks industry-specific certifications and education, and has never worked on an airline’s frequent flyer, fuel surcharge, or revenue management programs. Kokonis’s airline industry experience, however, plainly qualifies him to offer expert opinions in this case. The supposed gaps in Kokonis’s experience noted by British Airway may be addressed on cross-examination but do not render the opinions inadmissible. See In re Zyprexa Prods. Liab. Litig., 489 F.Supp.2d 230, 282 (E.D.N.Y. 2007) (“Assertions that the witness lacks particular educational or other experiential background ‘go to the weight, not the admissibility, of [the] testimony.’ ”) (alteration in original) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)).

British Airways next argues that Kokonis’s testimony is somehow irrelevant and unreliable. The Court disagrees. The central questions in this case are whether British Airways breached the Contract, and if so, whether and to what extent Plaintiffs were damaged. Kokonis’s proffered opinions plainly bear on those questions. See generally Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”). For example, if Kokonis is right and British Airways used its YQ charge to maximize revenues, not to defray unexpected fuel costs, then that is relevant to whether the YQ charge was, in fact, a “supplemental charge that is reasonably related to or based upon the cost or price of fuel.” See ECF No. 52 (“MTD Order”), at 9 (defining “fuel surcharge” for purpose of British Airways’ Rule 12(b)(6) motion). Kokonis’s testimony that it would have been feasible for British Airways to operate without a fuel surcharge at all or to impose a surcharge directly tied to the cost of fuel is similarly relevant.

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Dover v. British Airways, PLC (UK), 254 F. Supp. 3d 455, 2017 WL 2480898, 2017 U.S. Dist. LEXIS 86709 (E.D.N.Y. 2017).

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