Vadala v. Cessna

• Court: Court of Appeals for the First Circuit
• Decided: January 10, 1995
• Docket: 94-1280
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1280

              JUDITH A. VADALA, EXECUTRIX OF THE ESTATE OF P.A. VADALA,
                 a/k/a PATRICK A., and VADALA MANAGEMENT CORPORATION,

                               Plaintiffs, Appellants,

                                          v.

                              TELEDYNE INDUSTRIES, INC.,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Patricia  D. Stewart  with whom  Timothy  J.  Healey and  Healey &
            ____________________             ___________________      ________
        Stewart were on brief for appellants.
        _______
            Peter M. DelVecchio with whom Jerome  M. Leonard and Ropes  & Gray
            ___________________           __________________     _____________
        were on brief for appellee.

                                 ____________________

                                   January 10, 1995
                                 ____________________



BOUDIN,  Circuit Judge.   In  December of  1986, Patrick
                          _____________

            Vadala purchased a used  twin-engine Cessna airplane; at that

            time, both the airplane  and the engines (made by  a division

            of Teledyne Industries) were approximately 20 years old.   On

            July  14,  1988, after  logging fewer  than  50 hours  on the

            airplane, Vadala reported a loss of oil pressure in the right

            engine to air traffic controllers while attempting to land at

            Taunton Airport in Massachusetts.  Several minutes later, the

            plane crashed and burned.  Vadala was killed, and most of the

            wreckage was destroyed in the post-crash ground fire.

                 Vadala's widow Judith  and Vadala Management  Corp., the

            title owner of the plane,  sued Cessna and Teledyne, alleging

            negligence and  breach of  warranty under  Massachusetts law.

            The plaintiffs  settled with Cessna, leaving  Teledyne as the

            sole  defendant.  Nearly three years  after the complaint was

            served, Teledyne  moved for  summary judgment.   The district

            court  granted  Teledyne's  motion  on the  ground  that  the

            plaintiffs  had failed  to adduce  evidence to  support their

            theory of  causation.  To understand  the plaintiffs' theory,

            and  the   district  court's  reasoning,  requires   a  brief

            technical explanation.

                 Each  of  the Teledyne  engines  mounted  on the  Cessna

            contained a  component, known as a  viscous torsional damper.

            The damper attaches to the engine and functions to reduce the

            engine's  twisting (or  "torsional") vibration.   Without the

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damper,  the torsional  vibration of  the engine  might place

            undue strain  on other  engine parts.   Control of  torsional

            vibration  is  required  in  order  to  comply  with  Federal

            Aviation Administration regulations.

                 The  Teledyne damper  is a  small disk  comprised of  an

            inner brass ring that floats in a very thin layer of silicone

            fluid;  the  ring and  fluid are  encased  by an  outer steel

            shell.   The silicone  fluid absorbs the  torsional vibration

            and  dissipates   it  as  heat.     Exposure  to   very  high

            temperatures, however, will cause  the silicone in the damper

            to  solidify,  becoming  first  a  gel  and  then  a  rubbery

            substance.  This process is  known as "polymerization."  When

            polymerization   occurs,   the   damper's  effectiveness   is

            decreased.

                 An  investigation of the plane and the crash site by the

            National  Transportation Safety Board  concluded that at some

            point--either during  the Cessna's final  flight or afterward

            in  the  ground  fire--the  silicone in  the  right  engine's

            viscous torsional  damper had  polymerized.  The  left-engine

            damper  had also  polymerized.   The accident  was apparently

            caused when an engine  part in the right engine,  the starter

            adapter, came loose from the bolts that hold it to the engine

            and  compromised the oil seal,  causing the oil  to drain out

            and  the  engine to  fail.   The  NTSB investigation  did not

            determine what caused the holddown bolts to come loose.

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The  plaintiffs alleged  that  the  right-engine  damper

            polymerization occurred  during  the flight,  which caused  a

            ball  bearing  to fail,  which in  turn  caused the  bolts to

            loosen.   Teledyne contended that the polymerization occurred

            after the crash  in the ground fire,  and that polymerization

            would not in  any event lead  to ball  bearing failure.   The

            district court  looked no further than  the plaintiffs' first

            premise--that  polymerization  occurred  during, rather  than

            after,  the flight--and found it to be unsupported.  That was

            the  basis  for the  grant of  summary  judgment in  favor of

            Teledyne.

                 We review a grant  of summary judgment de novo  and view
                                                        _______

            the  record  in the  light  most favorable  to  the nonmoving

            party.   FDIC v. Bay  Street Development Corp.,  32 F.3d 636,
                     ____    _____________________________

            639  (1st Cir. 1994).  Here, given their theory of causation,

            the plaintiffs bore the burden of  proof to show that it  was

            more likely  than not that  in-flight polymerization occurred

            in  the right engine damper.   E.g., Carey  v. General Motors
                                           ____  _____     ______________

            Corp., 387 N.E.2d  583, 585 (Mass.  1979).  Plaintiffs'  task
            _____

            was  to show  a  genuine factual  dispute  on this  issue  by

            pointing  to  evidence  from  which  a  jury  could  find  in

            plaintiffs' favor.  Anderson v. Liberty Lobby, Inc., 477 U.S.
                                ________    ___________________

            248 (1986).

                 To show  that polymerization occurred  during the flight

            and  not afterward in the  ground fire, the plaintiffs relied

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centrally on affidavits and  depositions of their expert, Roy

            Bourgault.  This circuit has previously held that in order to

            defeat a motion for summary  judgment, an expert opinion must

            "at  least include  the  factual  basis  and the  process  of

            reasoning  which  makes the  conclusion  viable."   Hayes  v.
                                                                _____

            Douglas Dynamics, Inc., 8 F.3d 88, 92  (1993).  We agree with
            ______________________

            the  district court  that the  factual basis  and  process of

            reasoning relied on by the plaintiffs' expert do not make his

            conclusions viable.

                 Bourgault examined the damper  from the right engine and

            concluded that  the polymerization  had  occurred during  the

            flight.    He  based  his opinion  on  his  observation  that

            components  adjacent  to  the  damper in  the  right  engine,

            namely, the rubber  oil seal and O rings, showed  no signs of

            heat damage from the ground fire; he therefore  inferred that

            polymerization  must have occurred  during flight rather than

            in  the  ground fire.   As  the  district court  pointed out,

            however,  Bourgault  admitted  that   he  had  no  idea  what

            temperature would be required to alter  the appearance of the

            O rings and oil seal.

                 Bourgeault's admission is  especially damning because it

            had to  be clear  to  the plaintiffs  that pretty  persuasive

            testimony  from  the  expert  was needed  to  cope  with  the

            inference that the right  engine damper had polymerized after

            the crash.   After all,  there had  been a severe  post crash

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fire; the left engine damper was also found to be polymerized

            to  approximately the same extent as the right; and there was

            no claim that it had been damaged in flight.  The NTSB report

            said that the right engine "suffered fire and impact damages"

            and, in cataloguing damaged parts, said that the right engine

            damper   "had   received   extensive  heating   damage--paint

            blackened and blistered." 

                 Abstractly,  Bourgault's conclusion that  the damper had

            not been damaged by  ground-fire heat depended on the  notion

            that any ground-fire heat sufficient to cause  polymerization

            would also have altered the appearance of the rubber oil seal

            and  O rings.  The  inference is difficult  to sustain unless

            the expert  has some  notion  of how  susceptible the  latter

            parts  were  to  having  their appearance  altered  by  heat.

            Bourgault's testimony leaves the  impression that he had very

            little idea.  Of course, he  may have had an answer--one  can

            imagine  several--but  none  appears  in  his  deposition  or

            affidavits.

                 The only other important  basis for Bourgault's  opinion

            lies  in four documents:   two Teledyne  service bulletins, a

            test report  done for  Teledyne by  another company,  and the

            advertisement  of a competitor.  One of the bulletins and the

            test report can fairly be taken to suggest that in some cases

            engine heat has caused premature reduction or loss of damping

            capability in  some of  Teledyne's dampers.   Teledyne (among

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other rejoinders) asserts that these  materials may establish

            that dampers could  suffer in-flight damage but that  this is

            no  evidence  that  the  right-engine  damper  in  this  case
                                                           ______________

            suffered such damage.

                 This  overstates the  matter.   Certainly the  fact that

            there  is a  pattern of  occurrences, reflecting  an apparent

            cause and effect sequence, can strengthen the likelihood that

            the  present case is  one more in  the pattern.   This is how

            human beings  reason about circumstantial evidence.   But the

            strength of the inference depends very much on further facts,

            for example, the comparative frequency of the pattern and the

            tightness of the match between  the perceived pattern and the

            present accident.

                 In this  case, the  materials do  not indicate  that in-

            flight, heat-caused  damper failure  is a major  problem that

            occurs  often; and  as for  fit, the  materials  may actually

            counter the  plaintiffs' inference by  suggesting that  other

            features--not present  here--tend to increase  the likelihood

            of,  or  occur with,  in-flight  damper failure.    Thus, the

            documents  may be of  slight help to  Bourgault's surmise, or

            may actually hinder it;  but either way, they do  not bolster

            his opinion sufficiently to permit a reasonable factfinder to

            conclude that  this damper more  probably than not  failed in

            flight.

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At oral argument, plaintiffs' counsel suggested that the

            district court decision may  conflict with Daubert v. Merrill
                                                       _______    _______

            Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).  Daubert's
            _________________________

            holding--that a  scientific principle  may  sometimes be  the

            basis  for expert  testimony  even if  it  is not  "generally

            accepted"--has nothing  to do with  this case,  in which  the

            dispute concerns an event rather than a scientific law.  More

            pertinent  is  Daubert's countervailing  precept:    that the
                           _______

            trial  judge is  assigned  "the  task  of  ensuring  that  an

            expert's testimony both rests on a reliable foundation and is

            relevant to the task at hand."  113 S. Ct. at 2799.

                 The  district  judge  properly  relied  on  this  latter

            precept  in  deciding  that  Bourgualt's  testimony  did  not

            constitute admissible expert evidence.   This was not because

            of any flawed scientific principle--heat admittedly can cause

            in-flight   polymerization--but   because   there    was   no

            substantial  basis for concluding  that it had  done so here.

            The same  result would  follow even if  Bourgault's testimony

            were  admitted for what it  is worth; the  evidence not being

            sufficient to  permit  a  reasonable  jury  to  find  in  the

            plaintiffs'  favor,  the court  had  no  alternative but  "to

            direct  a judgment,  . .  .   and likewise  to grant  summary

            judgment . . . ."  Daubert, 113 S. Ct. at 2798.
                               _______

                 After  the  district  court  entered  summary  judgment,

            plaintiffs moved to vacate the judgment under Fed. R. Civ. P.

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60(b), and submitted  several additional  items of  evidence.

            The district court denied  the motion on the ground  that the

            evidence was  not "newly  discovered," as the  rule requires.

            See, e.g.,  Parrilla-Lopez v. United States, 841  F.2d 16, 19
            ___  ____   ______________    _____________

            (1st  Cir. 1988).    The court  also  explained why  the  new

            evidence,   even  if   considered,   would   not  alter   its

            conclusions.  Because the first ground is sufficient, and the

            belated evidence not especially potent, no further discussion

            of the point is necessary.

                 Finally, we have considered other claims offered on both

            sides  but found them  lacking in substance.   In particular,

            the  defense  expert  assuredly did  not  concede plaintiffs'

            theory of causation; nor  is it plausible for the  defense to

            argue that plaintiffs waived their entire claim by failing to

            object  to  a  supposed  uncontested fact  submitted  by  the

            defendant.  Judges, like  everyone else, have their failings;

            but  in devising their  arguments, counsel ought  to give the

            bench some credit for common sense.

                 Affirmed.
                 ________

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