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A persistent trend in the federal courts has been the subtle, but steady, diminishment of Daubert's requirement that federal court judges act as gatekeepers to prevent jurys from being mesmerized by unreliable "expert" testimony. All too often, speculative evidence by hired guns is allowed to infect the jury's deliberations, resulting in miscarriages of justice. The lead-up to one such a miscarriage is happening right now in Lidle v. Cirrus Design Corp., a personal injury case awaiting trial in the Southern District of New York.
The case concerns the crash of an airplane piloted by Cory Lidle and his flight instructor, Tyler Stanger. The essential facts are as follows: On October 11, 2006, the Cirrus SR20 airplane piloted by Lidle and Stanger was flying at a low altitude along the upper East Side of Manhattan. As the pilots approached controlled airspace that they were not allowed to enter, they initiated a 180-degree turn to the left in order to reverse course. The airplane continued its left turn until it struck the 33rd floor of an apartment building. During this time the pilots did not communicate with air traffic control. Furthermore, since it is a small aircraft, there was no "black box" recorder to provide clues about what occurred inside the cockpit.
The NTSB launched an immediate investigation into the crash and concluded that the pilots misjudged their turning radius and, because of an easterly wind aloft, the airplane effectively drifted into the buildings during the turn. In short, the NTSB concluded that the crash was the result of pilot error.
Disregarding the NTSB, the plaintiffs predictably contend that the aircraft itself is to blame. The plaintiffs' theory is that the controls of the airplane were jammed and that the pilots could not physically control the airplane. The defendant manufacturer of the airplane, Cirrus Design Corp., will present a theory at trial more in line with the conclusions of the NTSB.
To bolster their case that the NTSB is wrong and that the pilots are blameless, the plaintiffs intend to present testimony from Stephen Lind, a lawyer himself and also a pilot, who would offer the "expert" opinion that Lidle and his flight instructor could only have hit the building if they meant to do so or if their were experiencing mechanical problems with the airplane. And since the "expert" assumes that they were not trying to hit the building, he concludes that a mechanical failure must be at fault. Simple as that, right? Not really.
The plaintiffs' "expert" only determined that the airplane was aerodynamically capable of making the turn without hitting the building. The "expert" did not--indeed, could not--reach any conclusion about whether pilots attempted to push the airplane to its limits. Instead, the "expert" simply assumes that the pilots made no error of judgment. After all, according to the expert, "pilots don't fly into buildings," so it could not have been the pilot's fault. One might wonder if would also be willing to opine that pilots never take off with overloaded airplanes, fly into mountains, or any of the other things that pilots do on a fairly regular basis. Cirrus, naturally, asked the court to perform its gatekeeping function under Daubert and exclude Lind from testifying about his speculative--and, dare I say, laughable--theory.
Although Lind's testimony is a textbook example of unreliable testimony, the trial court refused to strike his report. Thus, despite the Lind's testimony in deposition stating, "I have no idea why they didn't avoid the building", the judge is going to allow him to tell a jury why the Stangle and his instructor did not avoid the building. Although the trial court's decision is open to appeal after trial, one thing is certain right now: the lack of a vigorous gatekeeper just increased the settlement value of this case. |
