Antitrust attorneys
District Judge Miranda M. Du in Nevada recently heard arguments on a motion to exclude the testimony of Defendant’s airline industry expert witness.

The plaintiffs were nine passengers (“the Nine”) who traveled on a flight from Vancouver to Las Vegas in 2003.  The Nine alleged that the flight captain and two flight attendants accused them of criminal interference with an air crew.  The flight was diverted to Reno, and the Nine were removed from the plane.

Nine filed their original complaint back in 2004; the Second Amended Complaint alleged violation of the Warsaw Convention and eight claims of defamation. The airline planned on calling an airline industry expert about the reasonableness of the flight’s reactions to the Nine’s conduct in light of the applicable industry standards and regulations.  The Nine argued that the expert witness was not qualified to testify about the airline industry standards applicable to the conduct of captains and crews on commercial international passenger flights, or airline’s employees’ compliance with those standards.  In addition, the Nine claimed that the expert was not qualified to provide expert testimony in the case because he had not worked as a commercial airline pilot on international flights, and because he had never served as a regular crew member on a commercial passenger airline. The expert witness was FAA-rated to pilot corporate jets only.

The court did not agree with the Nine’s reasoning and said that ER was indeed qualified to testify as an expert in this case.  Judge Du pointed out that the expert was an aircraft pilot and flight instructor who was an FBI agent for 23 years.  Much of his FBI career involved aircraft and airport security issues.  He was trained by the FBI and five major airlines in a program known as “Operation Switch,” which focused on crimes aboard aircraft. He also investigated a number of aircraft incidents involving allegations of passenger misconduct and provided testimony as an expert in those cases.  The judge held that in light of the expert witness’ specialized knowledge of aircraft regulations and industry standards, as well as his extensive history investigating airplane disturbance cases, his testimony would help a jury to better understand the evidence that was presented.  His expertise reviewing airplane and aircraft disturbances demonstrated that he had specific knowledge about aircraft safety, and possessed “more than knowledge as to a general field.”  As a result, Judge Du held that airline expert witness’ background and experience satisfied the threshold qualification requirements of Rule 702(a).  The Nine’s arguments regarding the strength of the defense expert witness credentials relate to his credibility, which could be attacked on cross-examination.

As a result, Judge Du held that the expert was qualified to testify, and that his testimony was sufficiently reliable for the purposes of Fed.R.Evid. 702.  The judge did, however, note that there were portions of his testimony that were inadmissible for other reasons.  Here are the areas that were admissible and inadmissible:

Expert Testimony on Industry Standards

The defendant’s expert was allowed to testify about his knowledge and understanding of airline industry standards.  Informing the jury about industry standards was relevant, the court said, because that evidence could negate actual malice.  In other words, if the airline successfully raised a qualified privilege defense to the defamation causes of action, the Nine would have to prove that airline acted with actual malice in defaming them to prevail.  Industry standards evidence was relevant to negate that charge because it provided the airline with evidence that its employees were merely declaring their understanding of industry standards when they made the allegedly defamatory statements about the Nine’s on-board behavior, rather than making statements they knew to be false.  Informing the jury about industry standards also was relevant to the airline demonstrating that its employees did not act with willful misconduct.  Should the jury determine that the airline did not engage in willful misconduct, the Warsaw Convention’s damages cap would apply.

Expert Testimony on Industry Regulations

In this area, Judge Du quoted a previous Nevada decision that held that “[a] trial court properly excludes testimony which instructs the jury on legal issues or effectively attempts to instruct the jury how to decide.” (Shops at Grand Canyon 14, LLC v. Rack Room Shoes, Inc. (D.Nev. 2010)).  This type of testimony that tells the jury what results to reach is not helpful to the trier of fact to make it admissible under Rule 702, and  “invades the province of the trial judge.” (citing Nationwide Transport Finance v. Cass Information Systems, Inc., (Ninth Circuit (Nev.) 2008)).

An expert is not permitted to give an opinion as to his or her legal conclusion.  However, the judge said that courts have recognized that there may be, in some “rare, highly complex and technical matters” where a trial judge would allow some testimony of this type.  Although the defendant argued that the court should exercise its discretion and admit the expert’s testimony about the airline industry regulations, Judge Du believed the regulations cited by the airline expert witness in his report to be relatively simple.  He was to testify about relatively straightforward regulations, with which most airline passengers are familiar from their own experience with air travel or from the news media.  Even those potential jurors not familiar with airline regulations, Judge Du said, would be able to easily grasp simple concepts such as “the pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.”

The judge wrote that to the extent the regulations cited by the expert witness help clarify what the flight attendants and captain believed their duties were when encountering a disturbance in the air, the flight attendants and the captain would be superior witnesses to provide testimony regarding their understanding of their duties.  However, these witnesses—as well as the defendant’s expert—were not permitted to testify as to legal conclusions based on the cited regulations.

Expert Testimony on Matters of Law

The defendant’s expert witness was prohibited from testifying about matters of law, and was precluded from testifying about federal airline regulations and their applicability to the case.  He was also precluded from testifying about legal conclusions based on these regulations.  To that end, the airline industry expert could not testify on his Analysis and Conclusions that drew impermissible legal conclusions.  He was also not allowed to testify regarding any analysis or conclusions based on the FBI’s investigation of the flight occurring after October 2003 in accordance with the Court’s previous Order.

Based on the court’s reasoning for the admission of the expert as an airline industry expert and the content of his testimony, the Nine’s motion for excluding testimony of defendant’s expert was granted in part and denied in part.

2013 WL 431827 (D.Nev. Feb. 1, 2013.)

By: Kurt Mattson, J.D.,  LLM