nuclear_fireball1 bomb explosionUpdate (September 13, 2019): As regular readers know, Minnesota Litigator predicts outcomes of pending court decisions from time to time.

Below, we discuss Kedrowski v. Lycoming, a significant, hard-fought, and close case arising out of a serious physical injury in a plane crash. We predicted a result as the case was considered by the Minnesota Supreme Court but hedged the bet by betting only a nickel.

As far was we are concerned, we won the bet (predicting that the plaintiff would prevail on his appeal to the Minnesota Supreme Court).

On the other hand, it was not a clear win for the plaintiff. The Supreme Court ordered the case back to the district court for another trial (at least as to liability) rather than giving the plaintiff the benefit of his $27 million jury verdict (which the trial court had thrown out, prompting the appeal).

The Minnesota Supreme Court held that:

[T]he district court did not abuse its discretion by finding that [Plaintiff’s expert’s] testing was foundationally unreliable but did abuse its discretion by excluding [Plaintiff’s expert’s] entire causation opinion.

Here at p. 15.

The Supreme Court remanded to the Court of Appeals as to whether the jury verdict as to damages should stand or whether that must be retried, as well.

This was a clear win for the Plaintiff, Mr. Kedrowski, and his lawyers. The trial court and the court of appeals had thrown out his case; how the case will ultimately resolve is still unknown but Mr. Kedrowski’s case lives to fight another day. Congratulations to him and his formidable legal team (Eric J. Magnuson, Kelvin D. Collado, Robins Kaplan LLP; Thomas W. Fuller, Cortney S. LeNeave, Hunegs, LeNeave & Kvas, P.A.; and Stephen P. Watters, Watters Law Office).

Update (March 7, 2019): The Minnesota Supreme Court heard argument in the Kedrowski case, described below. The question: did the trial court err in throwing the case out after a jury verdict, based on the trial judge’s conclusion that the plaintiff’s causation expert’s opinion “lacked foundational reliability.”

Among other things, the Minnesota Supreme Court is hung up on the standard of review. Is it “abuse of discretion,” which would apply to a decision on the admissibility of evidence, a deferential standard of review? Or, since the decision was in the context of a motion for judgment as a matter of law, is the decision subjected to a stricter standard of review?

In one sense, we do not think this is a difficult case.

Trial court judges may not weigh between two competent experts’ analytically sound and methodologically sound opinions.

On the other hand, if the judge finds one side’s opinion is analytically or methodologically unsound, the court should exclude that opinion. As for whether that decision is before or after a jury verdict does not matter. Either way, a litigant cannot prevail based on  analytically or methodologically unsound expert testimony.

That much of the analysis is easy. Or is it?

In this case, the court must grapple with and understand technical expert testimony. This is not a case of “junk science,” which we know has no place in a court of law. The justices (and the trial court judge, and the intermediate court of appeals) are in a far more difficult spot when evaluating technical evidence by a competent expert in a recognized scientific field (as is the case in Kedrowski). (Did Plaintiff’s expert properly perform the “flow bench test” and did he properly analyze the data from it? Assuming his analysis of the flow bench test results was flawed, aside from the flow bench test, did Plaintiff’s expert have other sufficient foundational bases for his opinion?)

As for the timing of the trial court judge’s decision, whether during trial or after a jury verdict, that may be irrelevant. Either way, the questions are (1) what is the appropriate standard of review, and (2) did the trial court judge get it wrong?

But is the timing irrelevant?It was clearly an area of great concern for several justices that a trial court judge could rule, at or before trial, that an expert’s opinion was admissible and reliable and then, after a jury verdict, contradict himself when, at that point, the party has no opportunity to submit further evidence to address the court’s concern.

In Kedrowski, on cross-examination, Plaintiff’s expert apparently admitted that he failed to test a fuel pump to the manufacturer’s specifications; he fell back to the position that the pump did not meet the fuel flow requirements of the engine. The trial judge, post-trial, decided that Plaintiff’s expert did not have any basis for his fall-back opinion. Defense counsel argued that the trial court judge got this right.

So which was it and how will the Minnesota Supreme Court decide?

Time will tell. Minnesota Litigator has never gone as far out on a limb on a prediction as we will in this case. We predict a 4-3 decision in favor of Plaintiff/Appellant Kedrowski ordering a new trial but we wouldn’t wager anything more than a nickel.

Update (August 27, 2018): Plaintiff Mark Kedrowski’s personal injury lawsuit arising out of a terrible small plane accident seemed dead two years ago (see below) but it has been given another chance. The Minnesota Supreme Court granted Plaintiff’s petition for further review earlier this month. (See the petition: here, the response to the petition: here, the partial grant of the petition: here).

To us, the basic issue on appeal is this:

Can a judge, having decided that the plaintiff is entitled to a trial by jury, decide, after the jury’s verdict in the plaintiff’s favor, to strip the plaintiff of the verdict in his favor based on the trial court’s further analysis in response to a post-trial motion?

To frame the issue that way is to predetermine the outcome. Of course judges can do this. They do it all the time. This is effectively the same as winning a jury verdict but having the verdict thrown out on appeal due to reversal of a legal issue, based on trial misconduct, or based on a trial court error.

But the issue in Mr. Kedrowski’s appeal can be articulated in many other ways, of course, making the issues seem far more difficult. Plaintiff’s lawyers articulate one of their issues like this, for example:

When does a trial court cross the line between gatekeeper and fact finder in evaluating foundation for an expert opinion, where the qualifications and methodology of the expert are not challenged, and the objection is to the expert’s choice of one test out of many?

The distinction between “gatekeeper” and “fact finder,” seen from one angle, seems obvious and, from another, ambiguous.

We’ll be very interested in how the Minnesota Supreme Court decides this case (and we’ll hold off on predicting).

Update (August 26, 2016):  Earlier this year, a jury awarded a $27-million-dollar verdict in the case discussed repeatedly in earlier posts, below — a small-plane-crash personal injury case. The Plaintiff’s verdict recently went down in flames and up in smoke on August 16. The trial court judge, Ramsey County District Court Judge John H. Guthmann awarded judgment as a matter of law to the Defendants. “For three separate reasons, the court concludes that it erred when it failed to sustain [the Defendants’] foundation objections to [Plaintiff’s expert’s] causation opinion and failed to grant the directed-verdict motion.” (1) The expert admitted that he had never before evaluated or tested the kind of fuel pump involved in the plane crash. Judge Guthmann concluded that his testimony lacked “foundational reliability;” (2) Plaintiff’s expert offered no scientifically-reliable explanation for how, if the alleged defects existed from the date of manufacture of the pump, the pump had worked as advertised for 312 hours preceding the crash; and (3) Plaintiff’s expert’s own post-accident testing showed that the plane’s engine could produce sufficient power to fly even with the allegedly defective fuel pump.

The judge also discussed the Plaintiff’s lawyers repeated misconduct at trial in direct violation of court orders. See here at pp. 31-38. So, even if Plaintiff were able to get the first issue reversed in its favor by the Court of Appeals, he would still have to overcome this second substantial hurdle.

Trial lawyers might also be interested in Judge Guthmann’s analysis of supposedly improper “Golden Rule” argument (p. 41-43). The judge found that Plaintiff’s counsel came close to the line but did not cross it. I think I would have found it violated.

Update (May 13, 2015): In the case covered below, Plaintiff has steered clear of sanctions but his lawsuit brought in U.S. District Court (D. Minn.) for alleged witness tampering relating to an expert witness in a case pending in Ramsey County has now crashed and burned shortly after take-off.

Update (April 13, 2015): When you move for sanctions in civil litigation, there is a risk of blow-back. That is, you might think that you are calling the court’s attention to unacceptable conduct but the court might conclude that your own conduct, in bringing the motion, was improper, unacceptable, and sanctionable.GlaasairRG

In the case described below, I don’t think the sanctions movant, Lycoming, has very much to worry about. I feel less certain about plaintiff, his allegations of “witness tampering,” Lycoming’s alleged role, and whether the allegations meet the relatively low bar set by Rule 11 of the Federal Rules of Civil Procedure. (Here are Lycoming’s reply brief in support of its motion for sanctions and Plaintiff’s “last word” on the subject.)

Update (February 24, 2015): In the tussle described below, a defensive tactic by Plaintiff to Defendants’ motions to dismiss failed this past week.

Original post (February 6, 2015): The litigation of Kedrowski v. Valters Aviation, Lycoming Engines, et al. involves a plane crash in which Plaintiff Mark Kedrowski suffered severe injuries when his Glasair Super IIS RG mdel aircraft crashed in September, 2010 near Lake Elmo Airport.

Plaintiff brought his lawsuit in Ramsey County District Court and it is before Ramsey County District Court Judge John H. Guthmann. The fight has been intense, it seems, with motions for sanctions, motions to compel, and several allegations of improper conduct in this case and in other cases involving the same defendants elsewhere.

Plaintiff’s view is that there was something defective about a fuel pump that caused his terrible accident. I have not reviewed the case file in detail but I would speculate that the defense is that the plane performed fine and the crash was due to pilot error. This would be a standard small plane crash legal battle. (Normally in these cases, I get the sense that a great deal rides on the findings of the NTSB, which appear to support the defense in this case.)

What makes this one odd is that a third party, a fuel pump component manufacturer, sent a letter to Plaintiff’s liability expert seeming to threaten to sue him for  deficiencies of the Plaintiff’s expert report. Plaintiff, in response, has brought a second lawsuit branching off of the first one claiming witness-tampering in connection with the third-party’s letter. The third party seeks to have the second case before Sr. U.S. District Court Judge David S. Doty (D. Minn.) thrown out for lack of personal jurisdiction, improper venue, and failure to state a claim.

What I find troubling is the third party weighing in to attack the Plaintiff’s expert’s report. If the report is as severely flawed as the third party says it is, who would believe it? Who would care about it? Why go through the expense to threaten the supposed expert with litigation unless he “withdraws” his report? It is not as if the NTSB or any sophisticated players in aviation (like aircraft buyers) would credit shoddy work by a testifying expert for a plaintiff in an air-crash case, right?

I expect that defense counsel (not to speak of the defendants themselves) are driven to distraction because, in their view, plaintiff’s case is entirely fabricated on the shoddy foundation of a terrible expert report. It is the jury verdict they fear, not the opinions of “sophisticated players in aviation.” They are fighting with their every breath to avoid having the case tried before a jury swamped with data and influenced by extraneous detail (like sympathy for an injured man). They’re desperately seeking to avoid a jury decision against them for what in their opinion was plainly an unfortunate accident caused by “pilot’s failure to maintain control of the airplane during takeoff with gusty wind conditions…”

I expect the lawyers for Toyota in the Trice-Adams case might agree. A jury found the car manufacturer “60%” at fault for a terrible accident and awarded $10.9 million in damages this week. Toyota was adamant that the Toyota involved showed no sign of any defect and felt the tragedy was caused by driver error.

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