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Voting 2-1, a federal appeals court has refused to revive two wrongful-death suits brought by the families of Boeing employees killed in the July 1992 crash of a then-experimental V-22 Osprey. But a dissenting judge said she would have ordered a new trial because an expert witness for the defense offered opinion testimony that was made on the basis of assumptions that had no factual basis in the record. The ruling in Stecyk v. Bell Helicopter Textron Inc. is a setback for plaintiffs Dorothy Rayburn and Kathleen Mayan — the widows of Boeing employees Robert Rayburn and Gerald Mayan — and their lawyers, Steven R. Punian, Milton G. Sincoff, Andrew J. Maloney III and Jacqueline M. James of New York’s Kreindler & Kreindler. The Osprey, which was jointly developed by Boeing and Bell, is an innovative aircraft with tilting rotors that takes off and lands like a helicopter but flies like a plane. In the July 1992 crash, three Marines and four Boeing workers died after a test flight from Florida to Quantico, Va. The families of the Marines quickly settled their claims out of court. The Boeing workers were prohibited from suing Boeing because workers’ compensation law provides the sole remedy for a worker injured on the job. But families of the four filed lawsuits against Bell Helicopter and two other companies that played a role in the manufacture of the Osprey. On the eve of trial, families of two of the Boeing workers — pilot Patrick J. Sullivan of Aston, Pa., and engineer Anthony Stecyk of Lester, Pa. — settled their claims for undisclosed amounts. But Rayburn and Mayan took their chances with a jury, hoping for awards of about $2.8 million each for each man’s lost wages and millions more for the grief of the widows. It was a gamble that didn’t pay off. In its verdict, the jury cleared all three defendants — Bell Helicopter, General Motors and Macrotech Fluid Sealing Inc. — of any liability in the Osprey crash. The trial had focused almost entirely on a tiny part — the “617 seal” — and whether the crash had been caused by its having been installed backward. Plaintiffs’ attorney Milton Sincoff argued that the seal was flawed since its design allowed it to be installed backward and leak. When the Osprey attempted its landing, he said, its rotors tilted, and transmission oil that had leaked and pooled was pulled down into the engine, starting a chain reaction that plunged the aircraft into the Potomac River. But defense lawyers set out to prove that the backward seal could not have caused the crash since extensive testing showed that such a faulty installation never sprang a leak. Instead, they said, the crash was more likely caused by a leak of hydraulic fluid due to human error in maintenance by a Boeing employee. On appeal, the plaintiffs argued that the defense theory was premised on faulty science, since the key expert witness didn’t have the facts to back up his opinion. “The hydraulic leak opinion testimony was necessarily predicated upon hydraulic fluid entering the engine to cause its failure. But that predicate was unsupported by any evidence,” the plaintiffs wrote in court briefs. Sincoff insisted that his cross-examination of defense expert Thomas Eagar demonstrated that some of the scientific bases for his conclusions were, in fact, “non-existent.” As a result, Sincoff argued, U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania committed reversible error when he allowed Eagar’s testimony. Now a three-judge appellate panel has issued a split decision, with two judges, led by 3rd Circuit Judge Jane R. Roth, voting to uphold the defense verdict and a third saying in dissent that the defense expert should have been barred. In her dissent, 3rd Circuit Judge Dolores K. Sloviter found that the expert’s opinion was lacking factual foundation in three key areas — the presence of hydraulic fluid inside the engine, the timing of the hydraulic fluid leak and the loose nut found on a hydraulic fitting. On the first point, Sloviter found that “the only data in the report that even remotely suggested that hydraulic oil was found inside the engine was at best inconclusive.” And the defense, Sloviter said, “failed to present any evidence corroborating Dr. Eagar’s description of how the Osprey’s systems detected hydraulic leaks.” As a result, Sloviter said, “his claim about the timing of the hydraulic leak and his use of this claim to support his conclusion that the hydraulic leak played a causal role in the crash amount to little more than unsupported assertions.” Eagar himself “failed to suggest that the loose nut was the probable source of the crash,” Sloviter said. And a military court of inquiry report rejected that conclusion, Sloviter noted, by finding instead that the loose hydraulic nut was caused by the impact of the aircraft’s crash. Looking at all the evidence, Sloviter concluded that “the record fails to provide a reasonable factual basis for Dr. Eagar’s opinion that the crash probably resulted from a hydraulic fluid leak.” In most cases, Sloviter said, the lack of factual support for an expert opinion “affects its weight rather than its admissibility.” But in Eager’s case, Sloviter said, the trial judge should have barred his testimony, because “there simply is no factual support for Dr. Eagar’s conclusion that a hydraulic fluid leak caused the crash.” Sloviter criticized her colleagues — Roth and 3rd Circuit Judge Richard L. Nygaard — for committing the same error. “The majority’s analysis of the factual basis for Dr. Eagar’s testimony simply recapitulates the district court’s mistake of accepting Dr. Eagar’s claim that the record supports his view.” Roth answered Sloviter’s criticisms in a footnote. “We appreciate our dissenting colleague’s criticisms of the factual foundation for Dr. Eagar’s testimony. These criticisms, however, raise precisely the type of issues that must be resolved by a fact-finder having the benefit of the adversary process,” Roth wrote. “By raising these concerns, the dissent effectively conducts an independent evaluation of the weight of the evidence — an exercise that we believe exceeds the appropriate boundaries of an abuse of discretion review.” Roth said the Federal Rules of Evidence require courts to “serve as gatekeepers who independently evaluate the admissibility of expert opinion testimony.” But the rules “rely upon the discretion of the trial courts — not the discretion of the courts of appeals,” she said. Since the trial record “contains some factual basis — albeit shaky — for Dr. Eagar’s testimony,” Roth found that Robreno did not abuse his discretion in performing his gatekeeping function. Bell Helicopter was represented in the appeal by attorneys Patrick J. O’Connor, Thomas R. Harrington, John F. Mullen and James E. Robinson of Cozen O’Connor. General Motors was represented by attorneys Ralph G. Wellington, J. Denny Shupe and Michael J. Colleran of Schnader Harrison Segal & Lewis. Macrotech Fluid Sealing was represented by David N. Zeehandelaar and Sheryl L. Axelrod of Blank Rome Comisky & McCauley.

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