SUSAN DURKIN LAUGELLE, individually and as personal representative of the Estate of Joseph Laugelle, Jr., deceased, and as Next Friend to Anna Grace Laugelle and Margaret Grace Laugelle, Plaintiffs,
BELL HELICOPTER TEXTRON, INC., et al., Defendants.
Submitted: October 1, 2014
Upon Defendants' Joint Motion in Limine to Exclude or Limit the Expert Opinion Testimony of Donald E. Sommer, DENIED, IN PART; GRANTED, IN PART. 
Upon Defendants' Joint Motion to Exclude Certain Opinions of Plaintiffs' Expert David Young, DENIED.
Upon Defendants' Joint Motion to Exclude Certain Opinions of Plaintiff's Expert Stephen Early GRANTED, IN PART; DENIED, IN PART. 
Upon Defendants' Joint Motion to Exclude Expert Testimony of William Muzzy DENIED.
Upon Defendants' Joint Motion to Exclude Expert Testimony of Eric Van Iderstine DENIED. 
Upon Plaintiffs' Motion in Limine to Preclude Reference to Irrelevant and Prejudicial Matters Concerning Plaintiffs' Expert Donald Sommer GRANTED. 
Upon Defendants' Motion to Preclude Evidence of Other Accidents Without First Showing Substantial Similarity GRANTED. 
Upon Defendants' Motion in Limine Regarding Evidence of Rotor Blade Damage in Other Accidents DENIED. 
Upon Defendants' Motion in Limine to Exclude as Hearsay Third Party Statements Made to Donald Sommer GRANTED. 
Upon Plaintiffs' Omnibus Motion in Limine to Preclude Impact Velocity Opinions Presented by Defense Experts Jean Slane, Robert Winn, Joe Syslo, Doug Stimpson, Vern Albert, David Laananen, Greg Feith, and C. Dennis Moore DENIED . 
Gary W. Aber, Esquire, Law Offices of Gary W. Aber, Wilmington, Delaware; Bradley J. Stoll, Esquire, (pro hac vice), and Cynthia M. Devers, Esquire, (pro hac vice) The Wolk Law Firm, Philadelphia, Pennsylvania, Attorneys for Plaintiffs.
Jeffrey L. Moyer, Esquire, Travis Hunter, Esquire, Richards, Layton & Finger, PA, Wilmington, Delaware, John O'Flanagan, Esquire, (pro hac vice), L. Robert Bourgeois, Esquire, (pro hac vice), and Petra L. Justice, Esquire (pro hac vice), Banker Lopez Gassler, Tampa, Florida., Attorneys for Bell Helicopter Textron Inc. DE Corp., Bell Helicopter Textron Canada Limited, Textron Inc. 
PAUL R. WALLACE, JUDGE
This Court discussed the background of this case extensively in an earlier opinion. In turn, only a brief summary will be provided here. This wrongful death action arises out of a helicopter crash that occurred on December 11, 2008, in the Gulf of Mexico, off the coast of Sabine Pass, Texas. Joseph Laugelle, Jr., the helicopter's pilot ("Pilot"), was transporting four passengers to an oil rig when the helicopter went down about two miles offshore. There were no survivors.
The Pilot's wife, Susan Durkin Laugelle, brought suit against several defendants. She did so individually, as a personal representative of Mr. Laugelle's estate, and as next friend to the Laugelles' two minor daughters (collectively, "Plaintiffs").
This omnibus opinion addresses a number of motions in limine seeking to exclude certain accident reconstruction expert testimony arguing lack of qualification, unreliable methodology, or both. In addition, this opinion resolves certain other motions in limine related to that expert testimony.
II. Daubert Analysis
Delaware Rule of Evidence 702 governs the admission of expert testimony:
[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
D.R.E. 702 is substantially similar to Rule 702 of the Federal Rules of Evidence, which is governed by Daubert v. Merrell Dow Pharmaceaticals, Inc.,  and Kumho Tire Co., Ltd. v. Carmichael. The Delaware Supreme Court has expressly adopted the holdings in Daubert and Kumho.
When its admission is challenged, a trial judge must ensure that expert testimony is both reliable and relevant. Expert testimony is relevant if it assists the fact finder in "understand[ing] the evidence or . . . determin[ing] a fact in issue." Reliable expert testimony is premised on scientific or specialized knowledge, which requires the testimony to be grounded in scientific methods and procedures and "supported by appropriate validation—i.e., 'good grounds, ' based on what is known."
The trial judge functions as a gatekeeper for relevant and reliable scientific testimony by inquiring: (1) whether the theory or technique has or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique has a rate of error and what that rate of error is; and (4) whether the theory or technique has gained a general acceptance within the relevant scientific community. These four factors are not meant to be a "definitive checklist." Instead, a trial judge enjoys broad latitude in determining whether expert testimony is both reliable and relevant. The goal of this inquiry is not "wholesale exclusion" of testimony because it has not been "generally accepted;" rather, "cross examination, presentation of contrary evidence, and careful instruction on the burden of proof" are, more often, the appropriate methods of attacking scientific, technical, or other testimony based on specialized knowledge.
Consistent with Daubert, Delaware requires the trial judge to engage a five-step test to determine the admissibility of expert testimony. The trial judge must determine that:
(1) the witness is qualified as an expert by knowledge, skill experience, training or education;
(2) the evidence is relevant;
(3) the expert's opinion is based upon information reasonably relied upon by experts in the particular field;
(4) the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and
(5) the expert testimony will not create unfair prejudice or confuse or mislead the jury.
It is the burden of the party seeking to introduce the expert testimony to establish its admissibility by a preponderance of the evidence.
At the outset, the Court notes that a rigid application of the Daubert factors simply cannot be engaged to determine testimonial reliability in every field of expertise. For example, many scientific, technical, or specialized fields are not subject to peer review and publication. That is why the test of reliability is "flexible, " and the trial court has "broad latitude when it decides how to determine reliability."
Accident reconstruction is one such example of an area that calls for "technical or other specialized knowledge, " but is ill-suited for a strict observance of the Daubert factors. Still, Daubert's general principles for examining such experts' reliability apply. Here, particularly, the Court must evaluate whether there is "an adequate 'fit' between the [underlying] data and the opinion[s] proffered."Too great of an "analytical gap" between the two, and the Court must conclude that the opinion testimony fails to meet the reliable methodology or principles requirement. But only if the expert opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.
III. Defendants' Motions in Limine to Exclude or Limit Expert Opinions
A. Testimony of Donald E. Sommer
The Plaintiffs offer Donald E. Sommer as an expert in the field of aviation accident reconstruction, mechanical engineering, piloting, and aviation. Mr. Sommer offered numerous opinions relevant to the cause of the accident in this case in a report, a supplemental report, and two sessions of deposition testimony.
Defendant Bell Helicopter Textron, Inc. ("Bell") seeks to exclude or limit three particular aspects of Mr. Sommer's proffered expert testimony: 1) his opinion that the pilot was presented with an engine failure mid-flight and attempted an autorotation—the "operational impact" and autorotation testimony; 2) his opinion on how the power turbine governor ("PTG") in the accident helicopter became contaminated—the source and "accumulation theory;" and 3) his opinion that an alternate PTG design (one including a ...