1 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES RODGERS; SHERYLL 

RODGERS, individually and as Husband 

and Wife; CHRISTOPHER EVANS; JILL 

EVANS, individually and as Husband and 

Wife, 

 Plaintiffs - Appellants, 

v. 

BEECHCRAFT CORPORATION, f/k/a 

Hawker Beechcraft Corporation, a Kansas 

corporation; HAWKER BEECHCRAFT 

GLOBAL CUSTOMER SUPPORT, LLC, 

f/k/a Hawker Beechcraft Services, Inc., a 

Kansas limited liability company, 

 Defendants - Appellees. 

No. 17-5045 

(D.C. No. 4:15-CV-00129-CVE-PJC) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, McHUGH, and EID, Circuit Judges. 

_________________________________ 

 On March 17, 2013, James Rodgers and Christopher Evans were passengers on a 

Beech Premier 390 jet airplane, flying from Tulsa, Oklahoma to South Bend, Indiana. 

 *

 This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 13, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

During the flight, both engines of the plane were inadvertently shut down. The plane 

crashed on landing, killing the pilot, Wesley Caves, and a third passenger, Steve Davis. 

Mr. Rodgers and Mr. Evans were injured. 

 Mr. Rodgers and Mr. Evans and their spouses sued Beechcraft Corporation, the 

plane’s manufacturer, and Hawker Beechcraft Global Customer Support, LLC, the 

plane’s repair and maintenance provider. Plaintiffs alleged negligence claims against 

Beechcraft and Hawker, and products liability claims against Beechcraft.1

 Their 

complaint alleged that (1) the pilot was unable to restart the engines because the plane’s 

electrical distribution bus system was defective; (2) the plane’s alternate landing gear 

system was defectively designed and failed to deploy; and (3) the aircraft flight manual 

contained faulty instructions for restarting the electrical generator following a dual engine 

shutdown. 

 This appeal challenges two key rulings. First, the district court limited the 

testimony of four of Plaintiffs’ experts and excluded supplementation of their experts’ 

reports. Second, with this evidence excluded, the district court granted Defendants’ 

motion for summary judgment because Plaintiffs had presented insufficient evidence to 

support their claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 1

 In this opinion, we refer to Appellants as “Plaintiffs” in reference to the district 

court proceedings, as “Appellants” in reference to these appellate proceedings, or as “Mr. 

Rodgers and Mr. Evans.” We refer to Appellees as “Defendants” in reference to the 

district court proceedings, “Appellees” in reference to these appellate proceedings, or as 

“Beechcraft and Hawker.” 
3 

I. BACKGROUND 

A. Factual Background2

1. The Parties 

James Rodgers and Christopher Evans were passengers on the plane. They 

survived the crash but suffered injuries. Their spouses, Sheryll Rodgers and Jill Evans, 

sued for loss of consortium. 

Beechcraft, a Kansas corporation with its principal place of business in Kansas, 

manufactures and sells commercial aviation aircraft. [App. 4623.] Hawker, a Kansas 

limited liability company, provides aviation inspection and maintenance service.3

 

2. The Plane 

 Beechcraft designed and, in 2008, manufactured the Beechcraft Premier 1A Model 

390, RB-226 (“RB-226”), a two-engine aircraft.4

 [App. 2786.] The Federal Aviation 

Administration (“FAA”) issued a standard airworthiness certificate for the plane. [Id.] 

The plane had recorded 457.5 hours in total flight time when it crashed. 

 

 2

 In our review of the district court’s summary judgment, we present the facts and 

view the evidence in the light most favorable to the non-moving parties, here the 

Plaintiffs. See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). 

3

 Beechcraft and Hawker were merged into Textron Aviation Inc. effective 

January 1, 2017. Textron Inc. is Textron Aviation Inc.’s parent company. See Aplee Br. 

at i; Aplt. Br. Errata (Nov. 9, 2017). 

4

 We use “Model 390” as shorthand for the Beechcraft Premier 1A Model 390. 

We use “RB-226” to refer to the specific Model 390 aircraft that crashed in this case. 
4 

 a. Electrical System 

 The RB-226 has two engine-driven generators that supply electricity throughout 

the aircraft. The plane is designed to fly with only one engine. An engine may be 

restarted through engine start and ignition switches powered by the pilot’s essential bus, 

which is part of the electrical load distribution system.5

 [App. at 4625-26.] 

 For emergencies, the plane relies on a main battery and a standby battery to 

provide power. When the engines shut down, the generators also turn off, and the power 

 5

 Appellants provided in their Appendix an excerpt from a deposition of 

Beechcraft electrical engineer Rodney Allen Voth, defining the word “bus”: 

Q: Could you describe for the ladies and gentlemen of the jury what 

a ‘bus’ is? 

A: It’s a – a electrical tie point that feeds circuit breakers – it’s – it’s 

a branch – it’s a branch circuit off of the power distribution network 

that’s – the buses are named for the – either their type or operation 

or how they’re fed by the various power sources. They’re 

distributed through the airplane to the various panels that have 

circuit breakers and relays. 

App. at 209. The “essential bus” is one of these “branches.” Id. Appellees defined 

“essential bus” in a motion to limit expert testimony as follows: 

A “bus” is a branch circuit off of the power distribution network, 

which supplies power to designated components of the airplane. 

Using buses, the electrical power load is divided in a balanced

fashion, and backup systems can be powered from a different circuit 

than the main systems, providing redundancy. The pilot’s essential 

bus is one such bus, and it supplies electrical power to a number of 

essential components on the Premier. The co-pilot’s essential bus 

supplies electrical power to other essential components, again 

providing for balanced power supply and effective backup systems. 

App. at 707 (citations omitted). 
5 

supply in the plane switches from the generators to the main battery. [App. at 2295, 

2381, 2424-25.] The plane has a switch that toggles between “On” for the main battery 

and “Standby” for the standby battery. During normal flight operations, the battery 

switch remains in the “On” position. The battery switch must be set to “On” for the 

generators to power the plane. 

When the plane uses battery power, many non-essential components in the plane 

are shut off to conserve energy for landing, including the cockpit voice recorder 

(“CVR”). [App. at 2296, 2439.] Certain features continue to function. For example, a 

pilot can still receive communications from the airport control tower, and the plane’s 

transponder continues to “ping” with its location. [App. at 2435.] 

 b. Alternate landing gear 

 The main landing gear of the plane is designed to operate even when the electrical 

generators are not functioning because the battery provides enough power to lower the 

gear. [App. at 2246-47.] The plane also has an alternate landing gear that can be 

deployed without electrical power. [App. at 2294.] The alternate landing gear is engaged 

by pulling a red, T-shaped handle marked “PULL” that sits under the pilot’s “yoke” or 

control column.6

 App. at 1563. 

 6

 A yoke is a “type of pilot[’]s control column in which the ailerons are controlled 

by rotating a device on top of the column to the left or right.” Yoke, Dictionary of 

Aeronautical English 536 (1999). An “aileron” is a “horizontal control surface hinged to 

the mainplane (wing) which provides movement around the longitudinal axis of the 

aeroplane . . . .” Aileron, id. at 10.
6 

 When Beechcraft inspected the RB-226 before it was sold, the plane’s alternate 

landing gear handle had a maximum pull-force—the force needed to deploy the landing 

gear—of 53.7 pounds. [App. at 2700.] The Maintenance Manual for RB 226 specified a 

procedure for testing the handle and also stated that the maximum pull-force to pass 

inspection was 64 pounds. [App. at 2477.] The alternate landing gear was due for an 

inspection at 600 flight hours, which had not yet been reached when the crash occurred. 

[App. at 4630.] Beechcraft had never previously reported that a pilot was unable to lock 

the landing gear in place using the alternate landing gear on a Model 390. [App. at 

4630.] 

 c. Manuals 

 The RB-226 was equipped with three manuals: an Airplane Flight Manual 

(“AFM”), a Pilot’s Operating Manual (“POM”), and a model-specific Maintenance 

Manual. [App. at 2290, 2339, 2476.] The FAA approved the AFM, which provided 

required information for piloting under federal requirements. [App. at 2339.] See 14 

C.F.R. Part 23. The AFM had a checklist to restart the engine when it shut down 

(“Engine Shutdown or Failure in Flight”) and also had a checklist for what to do when 

both electrical generators failed (“Dual Generator Failure”). [App. at 2343, 2345.] 

 d. Previous servicing 

 In 2009, Beechcraft issued Service Bulletin 24-3868, which required changes to 

the RB-226’s circuit breaker panel to fix the hydraulic shutoff valve. [App. at 2244.] 

Hawker performed this repair on the plane in this case using a kit (Kit No. 390-3622-

0003) assembled by Beechcraft. [Id.] During the repair, Hawker had to remove and 
7 

reattach a service wire from the circuit breaker on the pilot’s essential bus. [App. at 

2428.] The kit required that a screw used to reattach the wire be tightened to six to nine 

pounds of torque. 

 The last scheduled inspection of the plane occurred in 2012. [App. 2787.] 

3. The Flight

a. Generally 

 On March 17, 2013, Pilot Caves was flying the RB-226 from Tulsa, Oklahoma to 

South Bend, Indiana. Mr. Davis sat to his right in the front passenger seat. Mr. Rodgers 

and Mr. Evans were back-seat passengers. Mr. Davis had a pilot’s license but was not 

licensed to fly jets. His last recorded flight had been in 2008. Pilot Caves was licensed 

to fly the plane and had passed federally mandated training for that purpose. [App. at 

3116.] 

b. Mr. Davis pilots 

 On their descent toward the South Bend airport, Mr. Caves allowed Mr. Davis to 

pilot the aircraft by operating the throttles. [App. at 2309-2335.] While Mr. Davis was at 

the helm, the aircraft’s overspeed warning signal sounded twice, alerting the pilot to slow 

down. [App. at 2317, 2327.] As recorded on the CVR, Mr. Caves directed Mr. Davis to 

pull back on the throttle to reduce the aircraft’s speed and commented that Mr. Davis was 

inexperienced flying this type of aircraft. [App. at 2316-35.] Mr. Davis responded that 

he was “uncomfortable” and hesitated about how to pull back the throttle. Id. at 2318. 

 Mr. Davis then pulled back on the throttle, but instead of only slowing the plane, 

he pulled the throttle lever into the “Cutoff” position, inadvertently shutting down both 
8 

engines. Id. at 2334-35; see also id. at 1567, 1644. At this point, numerous systems in 

the plane began to shut down and Mr. Caves said, “Uh-oh. . . . we are dead stick.” Id. at 

2335. 

c. The crash 

 The CVR eventually cut off because the plane was running on battery. Mr. Caves 

restarted one of the engines, but he did not reset the electrical generator associated with 

the engine, so the plane continued to operate on battery power. [Id. at 4626.] The parties 

dispute which of the checklists from the AFM for restarting the engines was the correct 

one to use in this emergency. They also dispute whether or not Mr. Caves followed 

either checklist. Various warning and caution lights flashed at intervals after initially 

blacking out. [App. at 2449-50.] 

 Through communication with air traffic control in South Bend, Mr. Caves was 

able to pilot the plane to the airport. He attempted to land, but air traffic control waved 

him off because his main landing gear had not been extended. Instead, only the “nose” or 

the front landing gear had extended. A plane cannot safely land in this configuration. 

App. at 2215. 

 Mr. Caves pulled the plane up, circled around the airport, and attempted a second 

landing. But again the main landing gear was not extended. [App. at 1567.] It is 

unknown what Mr. Caves did to try to extend the landing gear between the first and 

second landing attempts. On the second landing attempt, the aircraft touched down on 

the runway and began to bounce. Mr. Caves tried to bring the plane back up into the air, 

at which point it entered a “nose low, rolling descent into a nearby residential 
9 

community.” App. at 2215 (National Transportation Safety Board report on the crash). 

Mr. Caves and Mr. Davis died of blunt force injuries in the crash. Mr. Rodgers and Mr. 

Evans sustained injuries. [App. at 2221-22, 2227.] 

d. The aftermath 

 In the accident wreckage, the battery switch was found to be in “Standby” 

position. The parties dispute whether the impact of the crash affected the switch position. 

[App. at 2221.] 

 The handle for the alternate landing gear was found partially pulled out (an inch 

and a half) and bent toward the instrument panel. [App. at 2221.] It is unknown what 

pull-force Mr. Caves used when he pulled out the handle before the accident. 

Chris Evans testified that at one point during the flight, the plane’s display screen 

went black and lights and indicators flashed in the cockpit. [App. at 3319-20.] 

e. Information from a previous flight 

 Two weeks before the crash, Rick Frie was a passenger on the RB-226 with Pilot 

Caves on a flight from Tulsa to Memphis. During a thunderstorm, Mr. Frie said that 

several displays on the plane flickered or blacked out. [App. at 2637-2638.] 

* * * * 

 We will present additional factual background below as it pertains to each issue. 

B. Procedural Background 

Complaint 

 Plaintiffs sued Beechcraft and Hawker in 2015. Their products liability claims for 

manufacturing and design defects against Beechcraft and their negligence claims against 
10 

Beechcraft and Hawker concern: (1) the plane’s electrical system; (2) the alternate 

landing gear; and (3) the Premier 390’s Airplane Flight Manual and certain repair kit 

instructions. 

 We summarize below the Plaintiffs’ claims. 

 a. Electrical system

 i. Manufacturing defect 

 Plaintiffs alleged that a manufacturing defect in the plane and in replacement part 

390-3622-0003 caused electrical failures in the aircraft. They also alleged the first defect 

was present in 2008 upon initial sale of the plane and the second was present upon the 

plane’s leaving Beechcraft’s control (through its agent Hawker) after servicing in 

compliance with Bulletin RSB 24-3868. They asserted the electrical system was 

therefore defective and failed to provide the pilot with reliable control of engine power or 

the plane’s instruments. 

 ii. Design defect 

 Plaintiffs alleged improper design of the plane’s electrical system, making the 

aircraft unsafe and leading to Plaintiffs’ injuries.7

 

 iii. Negligence 

 Plaintiffs alleged that Beechcraft was negligent in its manufacture, inspection, and 

assembly of the plane’s electrical system and in its lack of adequate supervision, training, 

 7

 Appellants also appear to allege a “failure to warn” products liability theory of 

defect in their appellate briefing, but this theory was not in the operative complaint and is 

distinct from their negligence claim based on failure to warn. 
11 

and maintenance instructions for those involved in the repair and service of the electrical 

system. They also alleged Beechcraft was negligent in failing to warn owners, users, and 

servicers of defects. They finally alleged that Beechcraft was negligent through its agent, 

Hawker, for problems caused by the faulty in-warranty installation of the service kit in 

2009. 

 Plaintiffs alleged that Hawker was negligent in creating flaws in the electrical 

system when it serviced the plane in 2009. 

 b. Alternate landing gear 

 i. Manufacturing defect 

 Plaintiffs alleged a manufacturing defect in the alternate landing gear, claiming 

that it did not comply with representations Beechcraft made to the FAA to obtain its 

“type certificate.” Second Am. Compl. at 6.8

 

 ii. Design defect 

 Plaintiffs alleged defective design of the alternate landing gear extension system.9

 

 8

 “A type certification represents the FAA’s finding that, based upon the 

manufacturer’s representations to the FAA, a particular design ‘meets the regulations and 

minimum standards prescribed under’ the [Federal Aviation] Act.” Aplt. App. at 3753 

(citing 49 U.S.C. § 44704(a)(1)). “Type certificates are required for all aircraft designs 

before those designs can be manufactured.” Id. 

9

 As with the electrical system, it appears Plaintiffs in their appellate briefing 

allege a failure-to-warn products liability defect with regard to the alternate landing gear, 

a theory not in the operative complaint, and distinct from a negligence claim based on 

failure to warn. 
12 

 iii. Negligence 

 Plaintiffs alleged Beechcraft was negligent in its manufacture, inspection, and 

assembly of the alternate landing gear. They also appeared to allege that Beechcraft was 

negligent in its lack of adequate supervision, training, and communication of 

maintenance instructions to those involved in service of the alternate landing gear.10 

Plaintiffs further alleged that Beechcraft negligently failed to warn owners, users, or 

servicers of alternate landing gear defects and negligently designed the alternate landing 

gear. Plaintiffs similarly alleged that Hawker was negligent in failing to inspect or assess 

the condition of the alternate landing gear. 

 c. Aircraft flight manual and repair kit instructions

 i. Design defect 

 Plaintiffs alleged “improper design” of the Airplane Flight Manual based on 

insufficient guidance for restarting the electrical generators and for deploying the 

alternate landing gear in emergencies.11 They also alleged that the repair kit instructions 

were defective because they prescribed a faulty method of repair. 

 ii. Negligence 

 Plaintiffs alleged that Beechcraft “negligently designed” the AFM, resulting in 

inadequate instructions to restart the generators and to deploy the alternate landing gear. 

 10 The operative complaint seems to allege that its failure-to-communicate-withservicers claim applies both to the electrical system and the alternate landing gear. 

11 Plaintiffs seem to argue on appeal a failure-to-warn products liability claim 

regarding the flight manual, but this theory was not in the operative complaint. 
13 

Plaintiffs also allege that Beechcraft was negligent in its preparation of repair kit 

instructions. 

* * * * 

 In light of the combination of parties, claims, and subjects of the claims, we 

provide the following chart summarizing the complaint: 

Electrical 

System 

Alternate 

Landing Gear 

Flight Manual 

and Repair Kit CLAIMS 

Manufacturing Defect Beechcraft Beechcraft 

Design Defect Beechcraft Beechcraft Beechcraft

Negligence Beechcraft 

Hawker

Beechcraft 

Hawker

Beechcraft 

Hawker

District Court Rulings on Expert Testimony 

 The Defendants moved to exclude the proposed testimony of the Plaintiffs’ four 

expert witnesses—John Bloomfield, Donald Sommer, Frank Graham, and Michael 

Haider. The motion was based on the expert reports produced in discovery and 

depositions of the experts. In response, the Plaintiffs submitted additional affidavits from 

each of their experts. The Defendants moved to exclude these supplemental affidavits. 

The district court referred the motions to a magistrate judge, who held a hearing and then 

prepared a report and recommendation (“R & R”) for each motion. [App. at 3949-77, 

3991.] Both sides objected in part to the magistrate’s R & R. 
14 

 Ruling on the motions, the district court limited the testimony of three of 

Plaintiffs’ experts because they were not properly qualified or did not have an adequate 

basis for their opinions. It excluded the fourth expert altogether because he did not 

sufficiently prepare his expert report. The court struck the supplemental affidavits as 

either improper or untimely supplementation. Rodgers v. Beechcraft Corp., No. 15-CV0129-CVE-PJC, 2017 WL 465474, at *5 (N.D. Okla. Feb. 3, 2017) (“Rodgers MIL”);12

Rodgers v. Beechcraft Corp., No. 15-CV-0129-CVE-PJC, 2017 WL 979100 at *7 (N.D. 

Okla. Mar. 14, 2017) (“Rodgers Haider”). 

District Court Ruling on Summary Judgment 

 The Defendants also moved for summary judgment. In light of the excluded 

expert evidence, the district court granted the motion, holding there was no genuine issue 

of material fact that would allow a reasonable jury to find in favor of the Plaintiffs on any 

of their theories of products liability or negligence. 

II. DISCUSSION 

 The district court did not abuse its discretion when it limited Plaintiffs’ expert 

evidence and refused to accept their supplemental affidavits. And given the exclusion of 

expert testimony, summary judgment was properly granted to the Defendants. 

 Plaintiffs - Appellants appeal the district court’s orders (1) excluding the 

supplemental expert affidavits; (2) limiting or excluding expert testimony; and (3) 

granting summary judgment to Defendants. 

 12 “MIL” stands for motion in limine. 
15 

A. Limitation of Expert Testimony 

1. Standard of Review 

 We review for abuse of discretion the striking of a supplemental expert report. 

See, e.g., Kemin Foods, L.C. v. Pigmentos Vegetales del Centro S.A. de C.V., 464 F.3d 

1339, 1350 (Fed. Cir. 2006); Henderson v. Nat’l R.R. Passenger Corp., 412 F. App’x 74, 

80 (10th Cir. 2011) (unpublished) (striking of supplemental expert evidence as untimely 

reviewed for abuse of discretion). 

When an appellant challenges a district court’s decision to exclude expert 

testimony, we review de novo whether the court performed its gatekeeping function and 

whether it used the proper legal standard. We review for abuse of discretion whether the 

court applied the standard correctly. Gen. Elec. v. Joiner, 522 U.S. 136, 141-42 (1997) 

(holding abuse of discretion is the standard to review district court rulings excluding 

expert evidence); Norris v. Baxter Healthcare Corp., 397 F.3d 878, 883 (10th Cir. 2005); 

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). The Appellants here do 

not question whether the district court exercised its gatekeeping function or used the 

proper legal standard, so our review is limited to whether the court abused its discretion 

in limiting their experts’ testimony. In that regard, we will find error only if the decision 

was “‘arbitrary, capricious, whimsical or manifestly unreasonable,’ or ‘we are convinced 

that the [tribunal] made a clear error of judgment or exceeded the bounds of permissible 

choice in the circumstances.’” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 

2009) (en banc) (quoting Dodge, 328 F.3d at 1223). 
16 

Legal Background 

 a. Supplementation of expert testimony

 Federal Rule of Civil Procedure 26(a)(2)(B)(i) requires disclosure of an expert’s 

report, which “must contain . . . a complete statement of all opinions the witness will 

express and the basis and reasons for them.” Courts may set a time by which the parties 

must submit their expert reports. Fed. R. Civ. P. 26(a)(2)(D). “Rule 26(a) expert 

reports . . . are intended not only to identify the expert witness, but also ‘to set forth the 

substance of the direct examination’ . . . [and are] necessary to allow the opposing party 

‘a reasonable opportunity to prepare for effective cross examination and perhaps arrange 

for expert testimony from other witnesses.’” Jacobsen v. Deseret Book Co., 287 F.3d 

936, 953 (10th Cir. 2002) (quoting Fed. R. Civ. P. 26(a)(2) advisory committee’s note to 

1993 amendment). 

Parties have a continuing obligation to supplement these reports “in a timely 

manner” if the parties later learn the information initially provided is incomplete or 

incorrect. Fed. R. Civ. P. 26(a)(2)(E) & 26(e). Supplementation must occur “by the time 

the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2).13 

If, however, an expert disclosure is “intended solely to contradict or rebut evidence on the 

same subject matter identified by another party under Rule 26(a)(2)(B) or (C),” that 

 13 Rule 26(a)(3), in turn, specifies that “[u]nless the court orders otherwise, 

[pretrial] disclosures must be made at least 30 days before trial.” Fed. R. Civ. P. 

26(a)(3)(B). 
17 

disclosure is due within 30 days after the other party’s disclosure. Fed. R. Civ. P. 

26(a)(2)(D)(ii). 

 Under Federal Rule of Civil Procedure 37(c), a district court can allow evidence 

violating Rule 26(a), but only “if the violation is justified or harmless.” Jacobsen, 287 

F.3d at 952. “A district court need not make explicit findings concerning the existence of 

a substantial justification or the harmlessness of a failure.” Woodworker’s Supply, Inc. v. 

Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In determining whether 

a Rule 26(a) violation was justified or harmless, courts weigh the following factors: “(1) 

the prejudice or surprise to the party against whom the testimony is offered; (2) the 

ability of the party to cure the prejudice; (3) the extent to which introducing such 

testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness.” 

Id. “‘The determination of whether a Rule 26(a) violation is justified or harmless is 

entrusted to the broad discretion of the district court.’” Id. (quoting Mid–Am. 

Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)). 

 Additionally, evaluation of supplemental expert testimony is subject to the same 

standards as the evaluation of expert testimony, which we describe below. 

b. Expert testimony 

 Federal Rule of Evidence 702 states: 

A witness who is qualified as an expert by knowledge, skill, experience, or 

education may testify in the form of an opinion or otherwise if: 

(a) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 
18 

(c) the testimony is the product of reliable principles and 

methods; and 

(d) the expert has reliably applied the principles and methods

to the facts of the case. 

Fed. R. Evid. 702. Rule 702 imposes a gatekeeping function on district courts to ensure 

expert testimony is admitted only if (1) the expert is qualified and the testimony would be 

helpful to the trier of fact, (2) the testimony is based on sufficient facts or data, (3) it is 

further based on reliable principles and methods, and (4) the expert has reliably applied 

the principles and methods to the facts and data. See Kumho Tire Co., v. Carmichael, 

526 U.S. 137, 141 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 597 

(1993). The district court in this case relied on one or more of these grounds to limit the 

testimony of each of the Appellants’ experts. We briefly review these requirements. 

 Qualified – The first step is to determine whether the expert is qualified to testify. 

Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir. 2005). District courts have 

broad discretion to determine whether a proposed expert may testify. United States v. 

Nichols, 169 F.3d 1255, 1265 (10th Cir. 1999). An expert must possess “such skill, 

experience or knowledge in that particular field as to make it appear that his opinion 

would rest on substantial foundation and would tend to aid the trier of fact in his search 

for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) 

(quoting Graham v. Wyeth Labs., 906 F.2d 1399, 1408 (10th Cir. 1990)). An expert who 

“possesses knowledge as to a general field” but “lacks specific knowledge does not 

necessarily assist the jury.” City of Hobbs v. Hartford Fire Ins. Co., 162 F.3d 576, 587 

(10th Cir. 1998). 
19 

Proposed expert testimony must therefore “fall within the reasonable confines of 

[the witness’s] expertise.” Conroy v. Vilsack, 707 F.3d 1163, 1169 (10th Cir. 2013) 

(quotations omitted). The proponent of expert testimony bears the burden of showing the 

expert is qualified. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 

(10th Cir. 2001) (upholding the district court’s determination that a board-certified 

orthopedic surgeon was not qualified to testify about intramedullary nailing because she 

was not familiar with that surgical technique). 

 For example, in Conroy, the plaintiff alleging sex discrimination failed to show 

that her proposed expert had sufficient expertise in “the particular field of sex 

stereotyping” because she had not researched or published on the topic and because her 

business degree and human resource work did not provide the needed expertise. 707 F.3d 

at 1168-69 (quotations omitted). In Milne v. USA Cycling, Inc., 575 F.3d 1120, 1133-34 

(10th Cir. 2009), we held a proposed expert was not qualified to testify about organizing 

and supervising mountain biker races because his expertise was in paved road races. In 

Kinser v. Gehl Co., we held that plaintiff’s expert, who had a bachelor’s degree in 

mechanical engineering and a doctorate in industrial engineering, was nonetheless not 

qualified to testify about alternate designs for a bay haler, an agricultural device, because 

he had “no practical experience in mechanical design.” 184 F.3d 1259, 1271 (10th Cir. 

1999), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440 (2000). 

 Sufficient facts or data – The Supreme Court’s decision in General Electric v. 

Joiner offers a good illustration of the requirement that expert testimony must be based 

on sufficient facts or data. The Court held that the district court did not abuse its 
20 

discretion in rejecting expert opinions that plaintiff’s exposure to toxins caused his lung 

cancer because the opinions were based on animal studies that could not be extrapolated 

to humans. 522 U.S. at 144-46. Opinion evidence need not be admitted when it “is 

connected to existing data only by the ipse dixit of the expert. A court may conclude that 

there is simply too great an analytical gap between the data and the opinion proffered.” 

Id. at 146. 

Federal Rule 703 complements Rule 702(c). It provides that “facts or data in the 

case that the expert has been aware of or personally observed” may be the basis for the 

expert’s opinion and need not be admissible “[i]f experts in the particular field would 

reasonably rely on those kinds of facts or data in forming an opinion on the subject.” 

Fed. R. Evid. 703. 

 Reliable principles and methods reliably applied – The reliability determination 

calls for a “preliminary assessment of whether the reasoning or methodology underlying 

the testimony is scientifically valid and of whether that reasoning or methodology 

properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93. Although 

many factors may bear on whether expert testimony is based on sound methods and 

principles, the Daubert Court offered five non-exclusive considerations: whether the 

theory or technique has (1) been or can be tested, (2) been peer-reviewed, (3) a known or 

potential error rate, (4) standards controlling the technique’s operation, and (5) been 

generally accepted by the scientific community. See 509 U.S. at 593-94. “[D]istrict 

courts applying Daubert have broad discretion to consider a variety of other factors.” 
21 

Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1205 (10th Cir. 2002). As the Court 

said in Kumho Tire, 

[W]e can neither rule out, nor rule in, for all cases and for all 

time the applicability of the factors mentioned in Daubert, 

nor can we now do so for subsets of cases categorized by 

category of expert or by kind of evidence. Too much depends 

on the particular circumstances of the particular case at issue. 

526 U.S. at 150. 

 “The focus, of course, must be solely on principles and methodology, not on the 

conclusions that they generate.” Daubert, 509 U.S. at 595. “The plaintiff need not prove 

that the expert is undisputably correct . . . . Instead, the plaintiff must show that the 

method employed by the expert in reaching the conclusion is scientifically sound and that 

the opinion is based on facts which sufficiently satisfy Rule 702’s reliability 

requirements.” Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999); see Bitler, 

400 F.3d at 1233. Even if the methodology is sound, reliability must also be assessed by 

the reasonableness of applying it to the facts and by the validity of how conclusions are 

drawn from the data. See Kumho Tire, 526 U.S. at 153-54; Hendrix v. Evenflo Co., 609 

F.3d 1183, 1195 (11th Cir. 2010). 

Review of the District Court’s Rulings on Appellants’ Four Experts 

a. Limitation of Mr. Bloomfield’s testimony

 i. Additional background

 Mr. Bloomfield has a degree in industrial and systems engineering from the 

Georgia Institute of Technology. He describes himself as an expert in “avionics, aircraft 

electrical systems, aircraft electrical distribution, avionics integration,” and “all 
22 

electro/mechanical systems and hydro/mechanical systems and sub-systems.” App. at 

1842. 

 1) Original report and deposition 

 Mr. Bloomfield’s original Rule 26(a) report outlined his proposed testimony on 

defects in the plane’s electrical system and the alternate landing gear. Defendants also 

deposed Mr. Bloomfield about his proposed testimony. [App. at 406-30.] 

 a) Electrical System – loose screw and voltage problems 

 Mr. Bloomfield opined that a loose screw in the pilot’s essential bus caused 

intermittent electrical failure, which in turn damaged the plane’s electrical system from 

voltage spikes or variation. [App. at 227-52, 410, 416, 418, 1851.] He testified in his 

deposition that the screw came loose when Hawker negligently performed service on the 

plane by disconnecting the bus from the wrong end. [App. at 2430.] He further testified 

that Hawker followed the repair kit’s defective instructions that were negligently written 

by Beechcraft. [Id.] 

 Mr. Bloomfield based his opinions partly on his examination of the aircraft 

wreckage and analysis of some of the plane’s electronic components that were removed 

from the plane in the days after the crash. [App. at 1851.] He found a loose screw 

connecting a feed wire to the pilot-side electrical bus. [App. at 1851.] He thought there 

were overall tightness problems with screws connecting wires and bus bars to circuit 

breakers. [App. at 1870.] He said that “because of that poor quality we had one come 

loose that was critical.” App. at 3335; see also App. at 3337. 
23 

 Mr. Bloomfield originally suggested in his report that the loose screw had been 

loose since manufacture and thus constituted a manufacturing defect. [App. at 410, 

1892.] He opined that this manufacturing defect resulted in electrical failures that 

“ultimately caused the crash.” App. at 1844. He later changed his view to opine that 

Hawker negligently loosened the screw during its repair service when it followed the 

faulty service kit (which in turn referenced the aircraft’s Maintenance Manual). [App. at 

410-11, 2429.] He explained that problems with screws connecting wires and bus bars to 

circuit breakers make electric connections unreliable and intermittent. [See, e.g., App. at 

419, 1871.] He said loose electrical connections cause voltage spikes, which in turn 

would damage the plane’s systems. [App. at 414, 1872, 1889.] For example, with an 

electrical failure, indicators showing the pilot when landing gear was down and locked 

would not function, and electrical failure from the pilot side bus could drain the battery 

and indirectly cause the CVR to cut out. [App. at 422-23.] 

 Mr. Bloomfield provided literature on voltage spikes but did not do his own 

testing regarding voltage spikes and variation. [App. at 281-315, 413-14.] He stated in 

his deposition, “I don’t have evidence that there were voltage spikes, but I know a 

hundred percent that there were voltage spikes”; “I know they had to”; “I will guarantee 

you there are . . . .” App. at 414. He did not, in his original report or deposition, offer an 

opinion on the adequacy of the plane’s voltage suppression (“surge protector”) system, 

App. at 414-15, and contended that a surge protector would not provide evidence of a 

voltage spike because it “doesn’t get damaged by the voltage spike.” Id. at 415. 
24 

b) Alternate landing gear – excessive pull-force and 

lack of an indicator 

 Mr. Bloomfield identified two defects in the alternate landing gear: (1) an 

excessive pull-force requirement in the handle, and (2) the lack of indicators showing 

when the alternate landing gear was properly deployed. 

 Mr. Bloomfield opined that the alternate landing gear’s extension system was 

defectively designed because the force needed to pull the handle out manually was 

greater than the design specification. [App. at 1883-84.] He based this testimony on 

testing, described in more detail below, that he and Mr. Sommer conducted on the 

pull-force required to deploy the alternate landing gear in three other Beech “Model 390” 

planes. App. at 1883. Mr. Bloomfield hypothesized that accumulation of debris in the 

wheel well caused the pull-force to become excessive in the alternate landing gear of the 

crashed plane. [App. at 1888.] He did not provide evidence that debris had in fact 

accumulated in the RB-226’s wheel well. 

 Mr. Bloomfield opined that indicators showing when the alternate landing gear is 

locked did not work during electrical failure, so a pilot could not know whether the gear 

was properly down. [App. at 1884.] He also pointed to problems with the pull-handle 

for the alternate landing gear because the handle had no indication on it how far it should 

be pulled out. [App. at 1886.] He proposed an alternate design method for the landing 

gear system to alert the pilot whether the landing gear was down and locked even in the 

case of an electrical failure. [App. at 1887.] Mr. Bloomfield did not state whether his 
25 

alternate design is found elsewhere in the industry and did not opine as to the feasibility 

of such a design on the plane in question. 

c) AFM 

 Mr. Bloomfield additionally contended that the AFM was defective for not 

adequately explaining how to use the pull-handle and deploy the alternate landing gear. 

[App. at 1893.] 

 2) Supplemental affidavit 

 In response to the Defendants’ Daubert motions to exclude his testimony, Mr. 

Bloomfield prepared a supplemental affidavit reiterating some of his previous opinions, 

altering others, and adding new ones. [App. at 2842-2955.] He clarified that he would 

no longer testify that the loose screw he found had been loose at the time of the plane’s 

manufacture. [App. at 2855-2857.] He also opined that the plane’s voltage suppressors 

were not equipped to handle the voltage spikes caused by the intermittent electrical 

distribution problems caused by loose screws. [App. at. 2849.] The supplemental 

affidavit also attempted to rebut various arguments made in Defendants’ Daubert motion. 

Mr. Bloomfield’s affidavit included a 96-page attachment of evidentiary materials. [App. 

at 2860-2955.] 

ii. District court rulings

 1) Supplemental affidavit 

 The district court followed the magistrate judge’s recommendation and excluded 

Mr. Bloomfield’s supplemental affidavit, determining the affidavit was (a) improper 

supplementation and (b) untimely rebuttal. 
26 

a) Improper supplementation 

The court determined that (1) “[t]o the extent that the affidavit simply restates 

Bloomfield’s opinions, the affidavit is essentially irrelevant and the Court will review 

Bloomfield’s expert report and deposition testimony in ruling on defendants’ Daubert

motion”; and (2) “Bloomfield’s affidavit goes beyond simply re-packaging his original 

report[,] and he clearly states a new opinion as to the sufficiency of the aircraft’s voltage 

suppression system. In addition, he expands on his opinion as to the adequacy of the 

instructions for installation of a repair kit.” Rodgers MIL, 2017 WL 465474 at *5. 

 The district court found the supplemental affidavit unacceptable because 

Mr. Bloomfield “makes no attempt in his affidavit to show that he has learned of new 

evidence since the drafting of his original report that would render his original report 

incomplete or inaccurate.” Id. 

b) Untimely rebuttal 

The court additionally said that Mr. Bloomfield “is seeking to rebut arguments 

made in defendants’ Daubert motion, and he does not claim to be correcting any 

inaccuracy or omission in his original report.” Id. This rebuttal effort was out of time 

because, “[u]nder Fed. R. Civ. P. 26(2)(D)(ii), a rebuttal opinion must be provided within 

30 days of the other party’s disclosure.” Id. Mr. Bloomfield’s supplemental affidavit 

attached and responded to a report from Robert Winn, one of the Defendants’ experts. 

[Id.] Because Mr. Winn’s report had been provided to plaintiffs on May 6, 2016, the 

latest a rebuttal to this disclosure could have been filed was June 5, 2016. Mr. 

Bloomfield’s affidavit was not filed until July of 2016. [Id.] 
27 

 2) Limiting testimony – electrical system 

 The magistrate judge recommended that Defendants’ motion to exclude 

Mr. Bloomfield’s testimony should be granted in part and denied in part. The R & R 

recommended that, because he did no testing or calculations, Mr. Bloomfield should be 

prohibited from opining that a loose electrical connection caused voltage spikes and an 

intermittent electrical supply. The district court agreed. Rodgers MIL, 2017 WL 465474 

at *4. It reasoned that Mr. Bloomfield did not follow a reliable methodology as required 

under Rule 702 and Daubert. He did not do his own testing, nor did he describe 

established scientific principles in his original report. 

Plaintiffs argued that there was circumstantial evidence to support Mr. 

Bloomberg’s opinions in that two passengers from different times, Mr. Evans on the 

accident flight and Mr. Frie on an earlier flight, had observed electrical malfunctions in 

the plane’s systems. But the court rejected this argument because Mr. Bloomfield did not 

mention these observations in his report or deposition testimony. 

The district court refused to exclude that Mr. Bloomfield found a loose screw in 

the wreckage, finding an adequate factual basis for this testimony. The court noted, 

however, that the loose screw evidence might have a relevance problem because Mr. 

Bloomfield could not opine that it caused voltage changes or electrical failures on the 

plane. [Id. at *7.] 

 3) Limiting testimony – alternate landing gear 

 The magistrate judge recommended excluding Mr. Bloomfield’s testimony that 

defects in the plane’s alternate landing gear caused the accident because Mr. Bloomfield 
28 

lacked relevant experience in aircraft design and because he offered no evidence there 

was debris in the wheel well. 

 The district court agreed. It explained that Mr. Bloomfield had no relevant 

experience and that he had not tested the alleged improvement he had proposed. As to 

debris in the wheel well increasing the pull-force, the court said Mr. Bloomfield could not 

testify to a hypothetical cause unsupported by evidence. [Id. at *7.] 

 4) Limiting testimony – AFM 

 The magistrate judge recommended excluding Mr. Bloomfield’s testimony 

concerning deficiencies with the AFM’s instructions on how to use the alternate landing 

gear. The R & R cited Mr. Bloomfield’s lack of experience flying jets like the RB-226, 

his admission at his deposition that he was not a “piloting expert”, and his lack of 

experience in drafting instruction manuals. Id. at *7. The district court agreed and 

excluded Mr. Bloomfield’s testimony on the manual’s alleged defects. [App. at 4514.] 

 iii. Analysis 

 1) Supplemental affidavit 

 The district court did not abuse its discretion when it refused to consider Mr. 

Bloomfield’s supplemental affidavit. 

 Appellants argue that the district court abused its discretion when it struck Mr. 

Bloomfield’s supplemental affidavit. They maintain that (1) the affidavit emphasized 

what had already been presented in the previous report; and (2) any further elaboration 

was in rebuttal to the Appellees’ motion to exclude expert evidence. Aplt. Br. at 5 (“The 

affidavits highlighted the relevant opinions that were previously disclosed, and further 
29 

explained the basis for these opinions in response to challenges by Defendants that there 

were gaps in the expert’s chain of reasoning.”). On the rebuttal point, Appellants further 

argue that the district court did not properly interpret Federal Rule of Civil Procedure 

26(a)(2)(D)(ii). They contend that the pretrial disclosure deadline of September 12, 

2016, should be seen as a “court order” that overrode Rule 26’s 30-day rebuttal deadline 

(“Absent a stipulation or court order, the disclosures must be made . . . within 30 days 

after the other party’s disclosures”), and the supplemental affidavits were submitted 

before that date. Id. at 6. We reject both arguments. 

 a) Improper supplementation 

 Highlighting previous testimony is not proper supplementation under Rule 26(e). 

Appellants do not cite legal support to permit this type of supplementation. Rule 26(e) 

states that a party “must supplement or correct its disclosure . . . in a timely manner if the 

party learns that in some material respect the disclosure or response is incomplete or 

incorrect, and if the additional or corrective information has not otherwise been made 

known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 

26(e)(1)(A). Highlighting parts of previously disclosed opinions does not serve any of 

these purposes. See Minebea Co. v. Pabst, 231 F.R.D. 3, 6 (D.D.C. 2005) (“[Rule 26(e)] 

permits supplemental reports only for the narrow purpose of correcting inaccuracies or 

adding information that was not available at the time of the initial report.”) (quotations 

omitted); Richardson v. Korson, 905 F. Supp. 2d 193, 199 (D.D.C. 2012) (“[Rule 26(e)] 

does not grant a license to supplement a previously filed expert report because a party 

wants to.” (quotations omitted)); see also S.E.C. v. Nacchio, No. 05-cv-00480-MSK-
30 

CBS, 2008 WL 4587240, at *3 n.3 (D. Colo. Oct. 15, 2008) (“To construe 

supplementation to apply whenever a party wants to bolster or submit additional expert 

opinions would [wreak] havoc in docket control and amount to unlimited expert opinion 

preparation.”). Previously proposed opinions should stand on their own and do not need 

further emphasis. 

 Furthermore, Mr. Bloomfield’s affidavit did not simply emphasize or highlight 

previous opinions but instead attempted to add new opinions. The affidavit added a 

novel argument about the plane’s voltage suppressors. It also attached 96 pages of 

evidentiary materials. On appeal, Appellants do not adequately explain why Mr. 

Bloomfield could not have made these arguments or included these materials in his 

original report. Their general contention that his theories evolved as he gained access to 

more information is insufficient without pointing to specific information that he did not 

possess when he prepared the initial report. Rather than adding to an “incomplete” 

report, he added a new theory that could have been included earlier. 

 b) Untimely rebuttal 

Appellants’ argument concerning rebuttal lacks merit. They concede that at least 

part of Mr. Bloomfield’s supplemental affidavit was “in response to challenges by 

Defendants.” Aplt. Br. at 5. The affidavit attaches a report from defense expert Mr. 

Winn that was provided to Plaintiffs on May 6, 2016. Appellants do not contest the 

district court’s ruling that the response to Mr. Winn constitutes rebuttal. They filed Mr. 

Bloomfield’s supplemental affidavit in July 2016. 
31 

Under Federal Rule of Civil Procedure 26(a)(2)(D), Plaintiffs had 30 days to 

respond to Mr. Winn’s supplemental report “[a]bsent a stipulation or a court order.” The 

district court’s general pretrial disclosure deadline of September 12, 2016, in its 

Amended Scheduling Order, App. at 1361, did not qualify as a “court order” overriding 

the 30-day window to rebut Defendant’s disclosure. Instead, courts analyze what a 

scheduling (or “case management”) order on disclosures says (or does not say) about 

rebuttal testimony to find a relevant “court order” for Rule 26(a)(2)(D) purposes. If 

nothing in the scheduling or case management order speaks to rebuttal, then 

26(a)(2)(D)’s 30-day rule applies.14 Accordingly, the 30-day rule applied to Mr. 

Bloomfield’s rebuttal in his supplemental affidavit, and it was untimely, coming over 30 

days after May 6, 2016. 

 The district court had the discretion to allow an untimely affidavit if doing so 

would not prejudice or harm the Defendants and if the Plaintiffs were acting in good 

faith. Jacobsen, 287 F.3d at 953. Appellants do not explain why the acceptance of Mr. 

Bloomfield’s supplement would not prejudice or harm the Defendants. The district court 

 14 See, e.g., Teledyne Instruments, Inc. v. Cairns, No. 6:12-CV-854-ORL-28, 2013 

WL 5781274, at *17 (M.D. Fla. Oct. 25, 2013) (“The [Case Management Order’s] failure 

to set a deadline for the disclosure of rebuttal expert witness reports does not mean that 

rebuttal expert witness reports are not permitted. It simply means that rebuttal expert 

witness reports must be submitted within the period set forth in Rule 26(a)(2)(D)(ii). 

This is the prevailing rule in [the Eleventh] [C]ircuit and throughout the country.” 

(citation omitted)) (collecting cases); Lincoln Elec. Co. v. Travelers Cas. & Sur. Co., No. 

1:11CV2253, 2013 WL 12131876, at *1 (N.D. Ohio June 26, 2013) (“It appears that 

courts in [the Sixth] Circuit have uniformly concluded that when, as here, a scheduling 

order does not address rebuttal reports, Rule 26(a)(2)(D)’s 30-day rule applies.”). 
32 

did not abuse its discretion by concluding that the affidavits would be prejudicial to the 

Defendants. 

 2) Limitation of Mr. Bloomfield’s testimony 

 The district court did not abuse its discretion when it limited Mr. Bloomfield’s 

testimony. 

 a) Electrical system 

 First, Appellants argue that Mr. Bloomfield should be allowed to testify about a 

link between the loose screw and the intermittent electricity outages because he addressed 

the underlying scientific principles in his report and deposition. Aplt. Br. 12-13 (citing 

App. 247-50, 281-327). They concede Mr. Bloomfield did not test electrical system 

failures or voltage fluctuations but argue that experts do not need to test to re-prove 

established principles. Id. 

 Second, Appellants argue the district court erred when it ignored Mr. Frie’s and 

Mr. Evans’s observations of flickering panels on the plane. They contend that, contrary 

to the district court’s understanding, Mr. Bloomfield discussed Mr. Evans’s eyewitness 

testimony of lights flickering in his report, and he “reviewed” all NTSB materials, 

including Mr. Evans’s witness statement. And although Mr. Frie was deposed after Mr. 

Bloomfield’s report and deposition, Mr. Bloomfield was “aware of [Mr. Frie’s] 

experience in the aircraft.” Id. at 13. Appellants allege that the district court did not read

Mr. Bloomfield’s “entire deposition.” Id. 

Neither of these arguments shows that the district court abused its discretion. 

 
33 

 b) Sufficient facts and reliable methods 

 Appellants are correct that testing is not always required to establish a factual 

basis for an expert opinion.15 But an expert must still show under Rule 702 that his 

opinion is based on sufficient facts or data and on reliable principles and methods. The 

district court has wide discretion to determine whether these standards have been 

satisfied. Goebel v. Denver & Rio Grande W.R.R. Co., 346 F.3d 987, 990 (10th Cir. 

2003) (“The trial court’s broad discretion applies both in deciding how to assess an 

expert’s reliability, including what procedures to utilize in making that assessment, as 

well as in making the ultimate determination of reliability.”). The court’s analysis here 

was not arbitrary or capricious or manifestly unreasonable. See Nacchio, 555 F.3d at 

1241. It correctly pointed out that Mr. Bloomfield did not use established scientific 

principles to link the electric intermittency and voltage spikes to the facts of this case. 

 15 See, for instance, our discussion of the relative necessity of testing in expert 

testimony in Bitler, 400 F.3d at 1235-36: 

When an expert proposes a theory that modifies otherwise 

well-established knowledge about regularly occurring 

phenomenon, such as the normal ignition temperature of 

wood, we would expect the importance of testing as a factor 

in determining reliability to be at its highest. Here, by 

contrast, plaintiffs’ experts propose a theory about how the 

accident occurred given the known science of copper sulfide 

particulate contamination as a cause of propane gas leaks. 

What distinguishes the present case is that the need for testing 

is not at its highest because the reliability of the science of

copper sulfide contamination is not in dispute, and thus the 

district court did not abuse its discretion in finding that the

presence of a screen did not alter the reliability of the 

fundamental science. 
34 

Having examined Mr. Bloomfield’s report and his deposition, we conclude the district 

court did not abuse its discretion by excluding Mr. Bloomfield’s testimony under Rule 

702. 

 Despite Mr. Bloomfield’s observations of the wire connected to the loose screw16

and other nearby components of the loose connection,17 his thermal study of the type of 

putty found on the head of the screw,18 and his random testing of the torque of other 

screws from the wreckage,19 the district court determined in its gatekeeper role that he 

nonetheless failed to develop sufficient facts or data, or establish that he applied a reliable 

methodology, to support his theory of electric intermittency and voltage surges, and that 

 16 In Mr. Bloomfield’s report, he said that the color of the “feed wire”—which the 

loose screw connected to the essential bus—was “blue/purple,” “the classic sign of 

continuous overheating.” App. at 1851. 

17 Mr. Bloomfield pointed to darkening in a nearby circuit breaker shell enclosure 

as evidence that the loose screw connection was generating heat. [App. at 1856.] He 

additionally reported that his examination of marks on a lock washer from the aircraft 

versus those on an exemplar washer was further evidence of a loose connection. App. at 

1859. Mr. Bloomfield also noted that breakers and buses throughout the aircraft were 

inconsistent in their use of washers or of specific screw and washer types. [App. at 820.] 

18 Mr. Bloomfield observed “charcoalized torque putty” on the head of the 

connector screw, and said it showed heat exposure caused by the loose electrical 

connection. App. at 1855 (quotations omitted). He opined further that the loose screw 

connection generated heat that traveled across a copper bus bar, heating other screw 

heads and changing their putty’s color. [App. at 1856.] In support of his torque putty 

claims, he presented a “thermal study” in which he exposed torque putty to various 

temperatures and durations to show how the putty changed color under such conditions. 

[App. at 1858.] 

19 Mr. Bloomfield randomly tested the torque of 14 screws from the wreckage 

connecting wires and bus bars to circuit breakers and found that half of them were 

tightened to less than “factory specification[]” of 6 to 9 inch pounds. App. at 1870. 
35 

he failed to show how the technical articles he cited applied to the accident in this case. 

We discern no abuse of discretion in the district court’s analysis. 

 Mr. Bloomfield’s theory of electric intermittency was that the loose connection of 

the service/feed wire for the essential bus on the pilot side circuit breaker, combined with 

the intense vibration of the plane, caused “downstream electrical problems” affecting “all 

the systems, devices and apparatuses that depend on electrical power from the 

service/feed.” App. at 1871. The plane’s vibrations and the loose connection caused 

such rapid intermittencies of power (“several hundred times a second”) that voltage 

spikes of 40 to 100 volts could have occurred. App. at 1873. Once the spikes occurred, 

“[t]he entire electrical system of the aircraft and all the electrical systems, devices and 

apparatuses now ‘see’ and experience erratic voltages surge[sic] through the system 

causing functional unreliability.” Id. 

 According to the district court, Mr. Bloomfield was unable to show that his visual 

inspection of discolorations in the feed wire, torque putty, and circuit breaker, and his 

associated tests of temperature and torque putty constituted a reliable methodology under 

Rule 702. Given the “analytical gap” the district court found between Mr. Bloomfield’s 

opinions and a scientifically reliable foundation for them, it did not abuse its discretion in 

excluding the testimony. See Gen. Elec., 522 U.S. at 146 (A court does not abuse its 

discretion when it excludes an expert opinion “connected to existing data only by the ipse 

dixit of the expert. A court may conclude that there is simply too great an analytical gap 

between the data and the opinion proffered.”). 

 
36 

 c) Flickering panel observations 

 Appellants complain that the district court did not consider Mr. Bloomfield’s 

reliance on Mr. Frie’s and Mr. Evans’s observation of flickering panels on the aircraft. 

But the court was correct that Mr. Bloomfield did not cite this information in his report as 

evidence of electrical intermittency. The original report’s brief mention of Mr. Evans’s 

observation about light-flickering concerned whether the battery switch was in the “On” 

as opposed to “Standby” position and was not used to address intermittency. App. at 

255-56. 

 Appellants cite a brief snippet of Mr. Bloomfield’s deposition to argue that he was 

“aware” of Mr. Frie’s observation of panel lights blinking on and off during turbulence 

on an earlier flight, Aplt. Br. at 13, but this excerpt was not part of the district court 

record and, again, was not cited in Mr. Bloomfield’s report. Even if the excerpt from the 

deposition had been before the district court, it would not help the Appellants. Mr. 

Bloomfield said he heard about Mr. Frie’s testimony only second-hand from Plaintiffs’ 

counsel, and he could not name any panel light that reportedly blinked on Mr. Frie’s 

previous flight. App. at 2434. He simply argued that “none of them are supposed to 

blink on and off, none of them. And the fact they did, fits into the fact that this 

connection was loose at that time . . . .” Id. 

 Finally, Appellants fail to show how this information could serve as a reliable 

basis for Mr. Bloomfield’s opinions, an essential prerequisite under Rule 702. 

 
37 

 iv. Alternate landing gear 

 Appellants argue that Mr. Bloomfield should be allowed to testify about a design 

defect in the alternate landing gear because he “is trained and experienced in 

electromechanical systems engineering” and, given the straightforward nature of the 

gear’s manual handle, “there was nothing unique about the Premier [alternate landing 

gear] system to take it outside the realm of Bloomfield’s experience in electromechanical 

systems engineering.” Aplt. Br. at 14-15. Appellants also claim the district court abused 

its discretion when it cited Mr. Bloomfield’s lack of experience in alternate design. His 

“personal knowledge and experience qualify him to render opinions on the [alternate 

landing gear] system” and “[p]laintiffs are not required to prove alternate designs.” Id. at 

15. 

 The district court did not abuse its discretion in excluding Mr. Bloomfield’s 

testimony on a design defect in the alternate landing gear. Even if Mr. Bloomfield “is 

trained and experienced in electromechanical systems engineering,” Aplt. Br. at 14, and 

even if the alternate landing gear is not particularly advanced from an engineering 

standpoint, id., Mr. Bloomfield has never designed landing gear. The district court acted 

within its discretion to find that lack of experience disqualified Mr. Bloomfield as an 

expert on the issue. See, e.g., Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1088 (10th Cir. 

2001) (holding it was not an abuse of discretion for a district court to exclude an expert’s 

testimony evaluating a paver if he had never evaluated a paver prior to the litigation). 

 
38 

 v. AFM 

 As to the district court’s exclusion of Mr. Bloomfield’s testimony on the AFM, the 

Appellants merely note disagreement: “This was error, but the court agreed that Sommer 

can testify to this defect.” Aplt. Br. at 15. Even if Appellants had fully argued the point 

in their briefing, they would fail. For the same reasons described above regarding the 

alternate landing gear, the district court did not abuse its discretion in excluding Mr. 

Bloomfield’s testimony on the alleged defect in the AFM given that he had never drafted 

an aircraft instruction manual. See Alfred, 262 F.3d at 1088. 

 b. Limitation of Mr. Sommer’s testimony20

 i. Additional background

 Donald Sommer graduated from the University of Michigan with a B.S. in 

Engineering. [App. at 826.] He completed graduate work in instrumentation and testing 

systems. [Id.] The FAA has certified him as an airline transport pilot, commercial pilot, 

flight instructor, ground instructor, and mechanic. [Id.] He has logged more than 16,000 

hours of flight time. [App. at 827.] He is currently the president and owner of 

Aeroscope, Inc., which performs accident reconstruction and analysis following plane 

crashes. [App. at 826.] Mr. Sommer is a member of the Aircraft Owners and Pilots 

Association; the International Society of Air Safety Investigators; the Missouri Board for 

Architects, Professional Engineers, Professional Land Surveyors and Landscape 

 20 Plaintiffs used two Mr. Sommers as experts, [App. at 791, 831] but only Donald 

Sommer’s proposed testimony is at issue here. 
39 

Architects; and the National Association of Flight Instructors. [App. at 827.] His resume 

states that he specializes in “aircraft accident reconstruction[,] in-flight and stationary 

instrumentation systems and testing[,] mechanical and hydraulic systems[,] aircraft 

performance[,] aircraft and engine design and operation [,] failure analysis[,] 

interpretation of FAA regulations[,] pilot reactions[,] and pilot training.” App. at 828 

(capitalization altered). 

 1) Original report and deposition 

 Mr. Sommer’s expert report and deposition testimony overlapped with Mr. 

Bloomfield’s. [See, e.g., App. at 819-21 (summarizing Mr. Bloomfield’s findings with 

regard to the electrical system).] Mr. Sommer stated in his report, citing to Mr. 

Bloomfield, that defects in the plane’s electrical distribution system led to overheating 

and interruption of critical aircraft systems. [App. at 823-24, 819-21; see also App. at 

854 (deposition stating he does not disagree with Mr. Bloomfield on anything).] He 

further opined that a design defect in the alternate landing gear prevented it from properly 

deploying during Mr. Caves’s attempted landing. [App. at 823-24.] He contended that 

Beechcraft failed to warn pilots of the significant pull-force required to operate the 

alternate landing gear and that Hawker failed to fix the problem. [App. at 824.] 

 Mr. Sommer also claimed Beechcraft and Hawker were negligent in failing to 

diagnose and repair alleged defects in the plane’s electrical system and alternate landing 

gear, arguing that the defects existed since the time of manufacture and “each time it left 

Beechcraft’s control during warranty work.” App. at 824. He criticized the flight manual 

in his deposition, opining that the AFM should indicate how far to pull the lever to 
40 

deploy the landing gear, or “there should be a marker on the handle that tells you how far 

you have to pull it.” App. at 875. Finally, Mr. Sommer commented on Mr. Caves’s 

licensing and training and opined that he acted as a “prudent and reasonable pilot” under 

the circumstances. App. at 823. 

 Mr. Sommer based his opinions on his examination of the aircraft wreckage [App. 

at 802, 855], previous maintenance history [App. at 816], listening to the CVR [App. at 

861], reviewing witness statements, and testing the alternate landing gear with Mr. 

Bloomfield on other Model 390 planes. [App. at 825.] 

Mr. Sommer’s pull-testing, conducted with Mr. Bloomfield and others, measured 

the force necessary to deploy the alternate landing gear on three exemplar Model 390 

aircraft. [App. at 821.] He reported that substantially more force was required to lock 

each alternate landing gear than the Maintenance Manual described, which is 64 lbs. 

[Id.] In exemplar aircraft one, the measured pull-force to deploy the landing gear was 

120 lbs.; for exemplar two, 100 lbs.; and for exemplar three, 118 lbs. [App. at 821.] He 

said that their testing followed International Civil Aviation Organization guidelines and 

was consistent with the United States Air Force Guide to Mishap Investigation, the 

United States Navy Handbook for Aircraft Accident Investigation, the NTSB Major 

Investigation Manual, the Transport Safety Board of Canada Investigations Manual, and 

the University of Southern California Manual of Aircraft Accident Investigation. App. at 

822-23. 

 
41 

 2) Supplemental affidavit 

 Following the Defendants’ Daubert motion to exclude Mr. Sommer’s report, he 

prepared a supplemental affidavit. It discussed the landing gear issues in considerably 

greater depth than his original report, including the testing described above and further 

testing on an exemplar “T” handle to argue for the accuracy and repeatability of his 

previous pull mechanism findings. App. at 3046. In the new report, Mr. Sommer 

claimed that he is qualified to offer an opinion on alternate product design based on his 

background. He also said he was qualified to opine on the adequacy of the AFM (which 

he had referenced in the original report but had not critiqued). [App. at 3000-3023.] 

 ii. District court rulings

 1) Supplemental affidavit 

 The magistrate judge recommended to the district court that Mr. Sommer’s 

supplemental affidavit be excluded under Federal Rule of Civil Procedure 26. The 

district court agreed, stating there was no viable basis for accepting the report. Rodgers 

MIL, 2017 WL 465474 at *8-*11. If the supplemental affidavit simply restated previous 

information from the original report, it was not needed. If it went into further depth than 

the original report or discussed new testing, the Plaintiffs showed no reason why that 

information could not have been included in the original report. And if it attempted to 

refute Defendants’ Daubert motion, that was not an appropriate reason to supplement 

expert disclosures. Id. at *9. 
42 

 2) Limiting testimony – alternate landing gear21

 The magistrate judge recommended that Mr. Sommer’s testimony on alternate 

landing gear design defects should be excluded, and the district court agreed based on 

lack of qualifications. Rodgers MIL, 2017 WL 465474 at *9. It explained that Mr. 

Sommer has no aircraft design experience and that he works primarily as a consultant 

offering litigation opinions to plaintiffs in plane crash cases. His expert report did not 

explain how he applied his knowledge of engineering principles to the case at hand. The 

district court said, “Sommer simply conducted testing to establish the pull force 

necessary to lock the alternate landing gear in exemplar aircraft, but he did not conduct 

any analysis to identi[f]y a specific design defect in the alternate landing gear . . . .” Id. 

 3) Allowing testimony – flight manual 

 The magistrate judge recommended that Mr. Sommer’s proposed testimony on the 

AFM’s inadequacy regarding the alternate landing gear should be allowed, and the 

district court agreed. It stated that Mr. Sommer disclosed his opinions on the AFM 

during his deposition, and Defendants thus had an opportunity to cross-examine Mr. 

 21 Although Mr. Sommer offered an opinion on the aircraft’s electrical system 

malfunctions in his expert report, he stated in his deposition that any opinion he had on 

the electrical system was based on Mr. Bloomfield’s analysis and conclusions. He 

therefore consistently deferred to Mr. Bloomfield on the topic. See, e.g., App. at 855 

(questions about Hawker servicing and removing the supply wire “not my charge”); App. 

at 862 (“I didn’t do an electrical load analysis. That was [Mr.] Bloomfield’s job.”); App. 

at 864 (relationship between previous servicing on the aircraft and electrical systems 

problems was “a Bloomfield issue”); App. at 868 (questions about arcing and torque 

putty melting are questions for Mr. Bloomfield). The district court did not comment 

upon Mr. Sommer’s electrical opinion in its order, and Appellants do not appeal its 

omission. We therefore need not address it here. 
43 

Sommer on the issue. It limited the scope of Mr. Sommer’s testimony on the AFM to 

what he said in his deposition. [Id. at *10.] 

 4) Allowing testimony – pull-force testing 

 The magistrate judge recommended that Mr. Sommer be allowed to testify about 

his and Mr. Bloomfield’s pull-force testing, and the district court agreed. Even though 

Defendants contended that Mr. Sommer and Mr. Bloomfield did not conduct a proper test 

in accordance with the Maintenance Manual, the court said that point goes to the weight 

rather than the admissibility of the pull-force testing evidence. The court said Mr. 

Sommer established an acceptable factual foundation for the reliability of his 

methodology. [Rodgers MIL, 2017 WL 465474 at *10.] 

 5) Limiting testimony - Mr. Caves’s piloting 

 The magistrate judge recommended excluding Mr. Sommer’s opinion on Mr. 

Caves’s piloting. The district court held that Mr. Sommer could testify about Mr. 

Caves’s licensing and certification qualifications but could not offer any assessment of 

Mr. Caves’s piloting in general or during the flight leading to the accident. According to 

the court, Mr. Sommer ignored significant evidence that conflicted with his opinion—

namely, that “[Mr.] Caves allowed a non-pilot to operate the aircraft and that [Mr.] Caves 

had problems in his training with ‘switchology’ and following checklists”—and did 

minimal investigation into Mr. Caves’s actual training, history, and possible errors. Id. at 

*10. 

 
44 

 iii. Analysis 

1) Supplemental affidavit

 The district court did not abuse its discretion in refusing to accept Mr. Sommer’s 

supplemental affidavit. Mr. Sommer’s affidavit elaborated on landing gear issues from 

his previous report; claimed that he was qualified to offer opinions on the product design 

alternatives and the flight manual based on his training; and described further testing 

done on the T-handle of an exemplar to confirm his previous alternate landing gear 

pull-testing results. 

 The district court did not abuse its discretion when it rejected the supplemental 

affidavit on the bases that Appellants did not explain why any of the information could 

not have been included in Mr. Sommer’s original report; the supplement introduced new 

arguments and material; and the supplemental report’s new arguments did not fill a gap 

or a previously incomplete claim or discussion in the original report. The district court 

still had discretion to allow the supplement, but it did not abuse its discretion by 

excluding it. Appellants do not explain how allowing the supplemental affidavit would 

not have harmed or prejudiced the Defendants. 

 2) Limiting Mr. Sommer’s testimony 

 The district court did not abuse its discretion in limiting the testimony of Mr. 

Sommer. 

 a) Alternate landing gear 

 Appellants argue the district court should have allowed Mr. Sommer to testify 

about a design defect in the plane’s alternate landing gear. Aplt. Br. at 16-17. They 
45 

contend the court “misappli[ed] Oklahoma law, which follows the consumer expectation 

test to determine if products are defective.” Id. at 16. And Mr. Sommer, having flown 

16,000 hours, is the consummate “consumer” of Beechcraft’s plane, and “certainly has 

the experience to offer opinions on this topic.” Id. 

 Appellants also argue that Mr. Sommer’s pull-force testing showed that the 

alternate landing gear was unreasonably dangerous because it showed the Model 390 

alternate landing gear required unexpectedly large pull-force. Because this testing 

pointed to a design flaw, Appellants contend, Mr. Sommer should be allowed to testify as 

to a design defect and need not, contrary to the district court’s ruling, identify a precise 

flaw in the alternate landing gear. Id. at 16-17. 

 Appellants’ argument that Mr. Sommer qualifies as an expert on a design defect in 

the alternate landing gear because he is an experienced “consumer” of the “product” 

misses the mark. The “consumer expectation test” is used to determine dangerousness in 

the products liability context, not to establish an expert’s credentials on a design defect in 

a consumer product. See, e.g., Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 

624 (10th Cir. 1998) (“[o]nly when a defect in the product renders it less safe than 

expected by the ordinary consumer will the manufacturer be held responsible.” (quoting 

Lamke v. Futorian Corp., 709 P.2d 684, 686 (Okla. 1985)) (applying Oklahoma law)). 

 The district court did not abuse its discretion in excluding Mr. Sommer from 

testifying that the pull-force testing supported a design flaw opinion because there was no 

evidence that abnormal pull-force was present in the plane that crashed. Mr. Sommer’s 

pull-force testing itself, which has not been excluded, permits the inference that the 
46 

alternate landing gears on Beechcraft’s Model 390 planes need a pull-force in excess of 

the 64 lbs. specified by the Maintenance Manual. But that evidence does not show a 

specific design flaw. See, e.g., Burton v. R.J. Reynolds Tobacco Co., 181 F. Supp. 2d 

1256, 1261 (D. Kan. 2002) (“[T]here must be a specific claim concerning what aspect of 

the design was defective for a plaintiff to prevail on a strict liability design defect claim.” 

(quotations omitted)) (analyzing Kansas law). 

 As the district court noted, the Plaintiffs relied on the testing of other models to 

infer there was a “flaw” in the aircraft that crashed: “Sommer simply conducted testing 

to establish the pull-force necessary to lock the alternate landing gear in exemplar 

aircraft, but he did not conduct any analysis to identi[f]y a specific design defect in the 

alternate landing gear in the subject aircraft, and there is no analysis in his report that 

would support the existence of a design defect.” Rodgers MIL, 2017 WL 465474, at *9. 

Moreover, in each of Mr. Sommer’s tests, the alternate landing gear deployed [App. at 

821-22.]. The district court acted within its discretion to limit the testimony. 

 b) Mr. Caves’s piloting 

Appellants argue that Mr. Sommer should be allowed to testify as to Mr. Caves’s 

piloting performance. They contend, “[U]nder Oklahoma law, there is a presumption that 

the product user would heed a proper and adequate warning. This principle, in 

conjunction with the known defects in the aircraft (the ALG, AFM, and electrical 

system), lead to the reasonable inference that Caves took the necessary steps as trained, 

but was unable to safely land due to defects in the aircraft.” Aplt. Br. at 17-18 (citation 
47 

omitted). Mr. Sommer should have been able to “reason[] to the best inference” in this 

manner. Id. at 18. 

The district court did not abuse its discretion in excluding Mr. Sommer’s 

testimony on Mr. Caves’s piloting ability. It found that Mr. Sommer ignored significant 

contrary evidence on Mr. Caves’s conduct and abilities, such as his decision to allow Mr. 

Davis to take over the controls and evidence from Mr. Caves’s training that he had 

problems with “switchology” and following checklists. Rodgers MIL, 2017 WL 465474, 

at *10. See, e.g., Norris, 397 F.3d at 884 (district court did not abuse gatekeeping role 

when it found expert “completely ignored or discounted without explanation . . . many 

epidemiological studies” reaching an opposite conclusion from expert’s proffered 

opinion). 

The court also said Mr. Sommer’s evaluation of Mr. Caves was based on 

superficial research. Indeed, in reaching his opinion that Mr. Caves was “trained, 

qualified, experienced and capable of performing the subject mission,” Mr. Sommer did 

not conduct independent research into Mr. Caves’s training or speak with anyone who 

trained him. App. at 858-59. The court did not abuse its discretion by excluding 

testimony on this subject. See, e.g., Alfred, 262 F.3d at 1086 (no abuse of discretion for 

district court to exclude testimony because it was, among other things, “backed by very 

little work.” (quotation omitted)). 

 Appellants’ argument that Mr. Sommer should be allowed to “reason[] to the best 

inference” on Mr. Caves’s piloting performance is not persuasive. The argument is that 

Mr. Sommer could draw a “reasonable inference” that the pilot “took the necessary steps 
48 

as trained, but was unable to safely land due to defects in the aircraft.” Aplt. Br. at 17-18. 

But this approach is not based on “scientific, technical, or otherwise specialized 

knowledge”; would not “help the trier of fact to understand the evidence or to determine 

a fact in issue;” is not “based on “sufficient facts or data”; and is not “the product of 

reliable principle and methods.” Fed. R. Evid. 702. 

c. Limitation of Mr. Graham’s testimony

 Appellants do not make a specific argument against the exclusion of Mr. 

Graham’s supplemental affidavit or against the limitation of Mr. Graham’s testimony. 

They instead refer this court to their “previously submitted briefs,” i.e., those submitted 

to the district court. Aplt. Br. at 18. Their arguments about Mr. Graham are inadequately 

briefed and thus waived. See Tenth Circuit Rule 28.3 (“Incorporating by reference 

portions of [district] court or agency briefs or pleadings is disapproved and does not 

satisfy the requirements of Fed. R. App. P. 28(a) and (b).”); United States v. Patterson, 

713 F.3d 1237, 1250 (10th Cir. 2013). 

d. Limitation of Mr. Haider’s testimony

 i. Additional background

 Mr. Haider earned his B.S. in aerospace engineering from the United States 

Military Academy at West Point and a master’s degree from Webster University. [App. 

at 1085, 4314.] He is a graduate of the U.S. Naval Test Pilot School and has logged 

nearly 7,000 hours of flight time, including experience with the 390 model. Rodgers 

Haider, 2017 WL 979100, at *3. 

 
49 

 1) Original report 

 Mr. Haider proposed in his report and at his deposition to testify generally about 

Mr. Caves’s training and Beechcraft’s failure to warn about defects in the plane. He 

opined that Mr. Caves used an acceptable method of pilot training to get certified on the 

Model 390 and that Mr. Caves would have been trained on how to use the alternate 

landing gear. Mr. Caves would not, however, be expected to know how to restart both 

engines in the air. Mr. Haider stated that Mr. Caves was a “reasonably prudent pilot” and 

that pilot error was not a contributing cause of the crash. He also said that a pilot should 

be able to rely on the functionality of an aircraft as designed; that the engines should have 

restarted unless there was a defect in the electrical system; and that the aircraft 

experienced intermittent electrical failures. Mr. Haider further opined that Beechcraft 

failed to warn pilots of the significant pull-force needed to deploy the alternate landing 

gear; that the landing gear was defectively designed; and that Hawker had occasion to 

correct the defects in the electrical system and landing gear but failed to do so. [Id.] 

 Regarding intermittency problems in the plane’s electrical systems, Mr. Haider 

said “any pilot at any level in this situation would do anything they could to get that 

generator back online because that would have solved a whole basketful of problems that 

he had at that point in time. And obviously, the generator, for some unknown reason to 

me, did not come online.” App. at 1099. Mr. Haider agreed with Plaintiffs’ attorney that 

“[w]hen it comes to specifically describing any electrical problems on the plane,” he was 

“going to defer to Mr. Bloomfield.” App. at 1112; see also id. at 1109 (referring 
50 

questions about which previous part failures in the plane can be explained by 

intermittency problems to Mr. Bloomfield). 

 At his deposition, Mr. Haider acknowledged that he was not the author of his 

report and that Plaintiffs’ attorney, Mr. Stoops, wrote it. App. at 1084. When asked 

about Mr. Caves’s training, Mr. Haider said he did not do any independent research on 

the precise circumstances of Mr. Caves’s flight education and said that he was unaware 

of evidence suggesting Mr. Caves had trouble following checklists. App. at 1090-91. As 

to his basis for stating in his report that Mr. Caves had learned the proper procedures 

required for an emergency situation like the one that occurred, Mr. Haider responded that 

these are matters “any school would cover.” App. at 1092. 

 When asked about alleged defects in the design and servicing of the alternate 

landing gear, Mr. Haider testified that he had not read anything about previous testing 

done on the alternate landing gear and did not know the position of the pull-handle amid 

the wreckage. [App. at 1101-02.] As to his basis for a design or maintenance failure in 

the alternate landing gear, Mr. Haider said, “My basis for that is that the handle was 

pulled, and – I assume the handle was pulled, and the main gear didn’t come down.” 

App. at 1101. He conceded the opinion in his report that Beechcraft failed to warn users 

of excess pull-force needed on the T-handle was based on what an attorney told him 

about Mr. Bloomfield’s and Mr. Sommer’s pull-testing experiment. App. at 1103. 

 2) Supplemental affidavit 

 Mr. Haider also filed a supplemental affidavit in response to Defendants’ Daubert 

motion to exclude his testimony. 
51 

 ii. District court rulings

 Although the magistrate judge recommended limiting Mr. Haider’s testimony only 

in part, the district court decided to exclude his testimony altogether, finding that he did 

not sufficiently “prepare” his own report and thus ran afoul of Federal Rule of Civil 

Procedure 26. Rodgers Haider, 2017 WL 979100, at *7. 

 The district court, employing a “totality of the circumstances” analysis, Rodgers 

Haider at *5, noted that (1) Mr. Haider did not compose even a first draft of the report; 

(2) others indisputably wrote the report; (3) the drafting was done at the last minute, (4) 

the report included opinions outside Mr. Haider’s expertise; (5) Mr. Haider’s billing 

records showed very little time spent reviewing materials before the report was 

submitted; and (6) Mr. Haider admitted he “reviewed” but did not “read” the materials. 

Id. at *7. The court said that even if Mr. Haider could rely heavily on his personal 

experience for his testimony, he still would have needed to analyze the materials to opine 

credibly on subjects like the intermittent electrical failure or the reasonableness of Mr. 

Caves’s actions during the emergency. The court noted, referencing the Advisory 

Committee Notes to Rule 26, that although in some cases attorneys may help experts 

draft a report, Mr. Haider was not a good candidate for such drafting assistance 

considering he is well-educated and could “put together a draft report stating his 

substantive opinions.” Rodgers Haider at *6. 

 The district court also rejected Mr. Haider’s supplemental affidavit because there 

was no allowable testimony to supplement. 
52 

 iii. Analysis 

 The district court did not abuse its discretion in excluding Mr. Haider’s testimony. 

In their briefing on this issue, Appellants rehash many of their previous arguments to the 

district court, which remain unpersuasive. 

 Appellants argue the district court misinterpreted Rule 26(a): “The comment does 

not say that counsel is only permitted to assist those experts who are unable to prepare the 

report themselves. As long as the substance of the report reflects the testimony to be 

given by the expert, it complies with Rule 26.” Aplt. Br. at 19. Appellants insist that the 

opinions in the report were Mr. Haider’s own. 

 As to Mr. Haider’s cursory review of the case materials, Appellants argue that 

“Haider’s opinions predominately required him to draw on his knowledge and experience 

flying the Premier, and how it should respond under specified conditions (e.g., loss of 

generator power, loss of normal landing gear system).” Id. As far as the specifics of this 

case were concerned, “[t]he new material Haider reviewed included the NTSB data (i.e., 

NTSB factual report & witness statements, CVR and ATC transcripts/recordings). He 

reviewed the relevant data, formed his opinions, then communicated them to counsel for 

memorialization. There is no proof that Haider lacked sufficient factual information 

about the crash to form his opinions.” Id. at 21 (citation omitted). Appellants insist that 

the rushed nature of the report’s composition under deadline pressure should not disfavor 

Mr. Haider’s testimony. 

 Notwithstanding these arguments, the district court properly read and applied Rule 

26(a) to require substantial participation from Mr. Haider in drafting his report. The 
53 

court did not rely solely on Plaintiffs’ admission that Mr. Haider did not actually write his 

own report. It considered the totality of the circumstances underlying the preparation of 

the report and reasonably analyzed the facts. Mr. Haider’s proposed testimony must be 

premised on the facts of this case, not just his general knowledge. See Norris, 397 F.3d 

at 884 n.2 (“[E]vidence must have a valid scientific connection to the disputed facts in the 

case.” (citing Daubert, 509 U.S. at 591)). We agree with the district court that Mr.

Haider cannot reliably opine on electric intermittency in this specific plane during the 

emergency or about Mr. Caves’s piloting skill without meaningful analysis of the 

materials pertinent to the case. See, e.g., Alfred, 262 F.3d at 1086 (no abuse of discretion 

for district court to exclude testimony because it was, among other things, “backed by 

very little work.” (quotation omitted)). Appellants’ contention that Mr. Haider “reviewed 

the relevant data” is unavailing because it is clear from Mr. Haider’s billing records and 

his deposition that “reviewed” does not mean “read,” much less analyzed. 

 Nor does Mr. Haider’s deposition testimony suffice to cure these deficiencies. As 

noted above, Mr. Haider deferred on all electricity-related questions to Mr. Bloomfield. 

To that extent, Mr. Haider’s testimony is unnecessary and not the proper basis for an 

additional expert. Nor was his reliance at his deposition on a lawyer’s summary of 

another expert’s pull-testing sufficient for his failure to warn opinion. And his contention 

that the alternate landing gear suffered from a design defect was based solely on his 

assertion that it did not deploy.22 

 22 Even if certain parts of Mr. Haider’s deposition did not have these problems, his 

lack of an expert report (being properly excluded) would be another ground for excluding 
54 

 The district court did not abuse its discretion in excluding Mr. Haider’s testimony. 

We also affirm exclusion of his supplemental affidavit because no allowable testimony 

remained to supplement.23

B. Summary Judgment 

 We affirm the district court’s grant of summary judgment to Beechcraft and 

Hawker because the Plaintiffs lacked adequate expert evidence to support their claims. 

1. Legal Background

a. Summary judgment and standard of review

 “We review a district court’s grant of summary judgment de novo, applying the 

same legal standard as the district court.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 

987, 997 (10th Cir. 2011). “The court shall grant summary judgment if the movant 

 

him as an expert. See Fed. R. Civ. P. 26(a)(2)(B)(“Unless otherwise stipulated or ordered 

by the court, this disclosure must be accompanied by a written report—prepared and 

signed by the witness—if the witness is one retained or specially employed to provide 

expert testimony in the case or one whose duties as the party’s employee regularly 

involve giving expert testimony.”) There are limited exceptions to this rule, such as for 

busy practicing physicians, Watson v. United States, 485 F.3d 1100, 1107 (10th Cir. 

2007), but Mr. Haider would not qualify for this exception. 

23 Appellants also contend that they were not given sufficient chance to explain the 

nuances of their experts’ opinions to the district court because there was no evidentiary 

hearing, no additional evidentiary submissions were allowed, and the magistrate judge 

did not schedule enough time for Daubert oral arguments. Also, they argue the 

magistrate judge required the parties at one point to put their expert arguments in 

summary form. 

 We reject these general arguments. As is apparent from the record, both parties 

received ample time and space to present their arguments regarding experts and both the 

magistrate and district judge considered the entirety of the parties’ submissions, not 

simply the summaries. 
55 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In applying this standard, we view 

the evidence and the reasonable inferences to be drawn from the evidence in the light 

most favorable to the nonmoving party.” Twigg, 659 F.3d at 997. “A fact is material if, 

under the governing law, it could have an effect on the outcome of the lawsuit. A dispute 

over a material fact is genuine if a rational jury could find in favor of the nonmoving 

party on the evidence presented.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 

(10th Cir. 2014) (quotations omitted). 

 The party moving for summary judgment bears the burden to produce evidence in 

support of its claims. Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010). 

If the movant does so, the burden shifts to the party opposing summary judgment to 

demonstrate a genuine issue of material fact. Id. We view evidence in the light most 

favorable to the party opposing summary judgment. McBeth v. Himes, 598 F.3d 708, 715 

(10th Cir. 2010). “On an appeal from summary judgment, we examine the record and all 

reasonable inferences that might be drawn from it in the light most favorable to the 

non-moving party, without making credibility determinations or weighing the evidence.” 

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 953 n.2 (10th Cir. 2012) 

(quotations omitted). 
56 

b. Products liability 

 Under Oklahoma products liability law,24 a plaintiff suing a retailer or supplier 

under a strict liability theory must prove (1) that the product caused plaintiff’s injury; 

(2) that the defect existed in the product at the time of sale or at the time it left the 

retailer’s possession and control; and (3) that the defect made the product unreasonably 

dangerous. See Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974); see 

also Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995) (applying 

Oklahoma law). In Kansas, the standard is very similar. See Jenkins v. Amchem Prods., 

Inc., 886 P.2d 869, 886 (Kan. 1994) (“[T]he plaintiff, to present a prima facie strict 

[products] liability case, must produce proof of three elements: (1) the injury resulted 

from a condition of the product; (2) the condition was an unreasonably dangerous one; 

and (3) the condition existed at the time it left the defendant’s control.” (quotations 

omitted)). 

 “The alleged defect may be the result of a problem in the product’s design or 

manufacture, or it may be the result of inadequate warnings regarding use of the 

product.” Holt v. Deere & Co., 24 F.3d 1289, 1292 (10th Cir. 1994) (applying Oklahoma 

law); see also Mayberry v. Akron Rubber Mach. Corp., 483 F. Supp. 407, 411-12 (N.D. 

 24 The parties initially disputed whether Oklahoma or Kansas law was the relevant 

governing law for Plaintiffs’ claims. [App. at 4634.] The district court deferred a 

decision on the matter, noting that nothing turned on a distinction between the two bodies 

of law. [Id. at 4634-37.] In this appeal, both parties acknowledge that there is no 

relevant substantive difference in the states’ laws for the purpose of their arguments. 
57 

Okla. 1979) (applying Oklahoma law). In other words, a products liability claim can be 

made for a manufacturing defect or a design defect. 

 A product is unreasonably dangerous when it is “dangerous to an extent beyond 

that which would be contemplated by the ordinary consumer who purchases it, with the 

ordinary knowledge common to the community as to its characteristics.” Kirkland, 521 

P.2d at 1362-63 (quoting and adopting standard of proof from Restatement (Second) of 

Torts § 402A cmt. g); see also Jensen, 886 P.2d at 872 (Kansas case using consumer 

expectations test). 

i. Manufacturing defects 

 A product is defective in manufacture if it “deviates in some material way from its 

design or performance standards. The issue is whether the product was rendered unsafe 

by an error in the manufacturing process.” Wheeler v. HO Sports Inc., 232 F.3d 754, 757 

(10th Cir. 2000) (quotations omitted). Errors in the process are often established by 

showing that a product, as produced, did not conform with the manufacturer’s 

specifications. Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) (applying 

Colorado law). 

ii. Design defects 

 A product is defective in design if something about that design “renders it less safe 

than expected by the ordinary consumer.” Lamke v. Futorian Corp., 709 P.2d 684, 686 

(Okla. 1985). “[T]he fact that it is possible to make a product more safe does not render 

its design defective.” Wheeler, 232 F.3d at 758 (quotations omitted). 
58 

c. Negligence 

 Claims for negligent manufacture or design are treated the same as other 

negligence claims in Oklahoma. A negligence claim requires plaintiffs to prove (1) 

defendants owed plaintiffs a duty; (2) there was a breach of that duty; and (3) that the 

breach caused plaintiffs’ injuries. Dirickson v. Mings, 910 P.2d 1015, 1018 (Okla. 1996). 

An entity charged with repairing a vehicle may be sued under a theory of negligent 

repair. See, e.g., Delbrel v. Doenges Bros. Ford, 913 P.2d 1318, 1322 (Okla. 1996) 

(“[O]ne who is paid to repair a car owes a duty of care to both the owner of the car and to 

the general public to assure that the repair is properly performed or the owner is warned 

of its dangerous condition, where the dangerous condition is discoverable in the exercise 

of ordinary care.”). 

2. Additional Background – District Court Proceedings on Summary Judgment 

The district court granted Defendants’ motion for summary judgment. It held that: 

(1) Plaintiffs could not show a genuine issue of material fact

that the plane’s electrical system was defective or that a 

loose screw caused any electrical problems that 

contributed to the accident and thus could not proceed on 

any electrical system products liability or negligence 

claim; 

(2) Plaintiffs could not proceed with their manufacturer’s 

products liability claim against Beechcraft based on a 

defect in the alternate landing gear because undisputed 

evidence established the defect did not exist when the 

plane left control of the manufacturer; nor could 

Plaintiffs show a genuine issue of material fact that the 

plane’s alternate landing gear had a design defect; 

 

(3) Plaintiffs could not proceed with their alternate landing 

gear negligence claims against Beechcraft and Hawker 
59 

because they could not show a defect with the 

manufacture or design of the alternate landing gear or 

that a defect proximately caused the accident; and 

(4) Plaintiffs could not show a genuine issue of material fact

that the flight manual was defective and thus could not 

proceed on any manual-based products liability or 

negligence claim. 

App. at 4637-52. 

a. Electrical system – products liability, negligence 

 The district court found that Plaintiffs’ manufacturer’s products liability claim 

against Beechcraft failed because Mr. Bloomfield acknowledged the loose screw was not 

loose at the time of manufacture but rather after servicing. [App. at 4507.] The Plaintiffs 

therefore could not establish an essential element of manufacturer’s products liability—

that the defect existed when it left the manufacturer. [App. at 4639.] 

As for the negligence claims against Beechcraft and Hawker, the district court said 

the Plaintiffs had not shown a genuine issue of material fact regarding causation, an 

essential element of a negligence claim. [App. at 4641-42.] Mr. Davis’s shutting down 

the engines triggered the loss of power. There was, according to the district court, “no 

evidence of a voltage spike or intermittent power supply before this event.” App. at 

4639. The Plaintiffs’ intermittent power and voltage spike causation theory relied on Mr. 

Bloomfield’s proposed testimony linking the loose screw to the power, but that testimony 

was excluded. Mr. Frie’s and Mr. Evans’s observations about a flickering power display 

were not enough to create a genuine dispute as to causation without any expert testimony. 

[Id. at 4640-42.] 
60 

b. Alternate landing gear – products liability 

 The district court held that the manufacturer products liability claim failed because 

the undisputed evidence showed that Beechcraft tested the plane before it was sold and 

that the measured pull-force of the handle to deploy the alternate landing gear—53.7 

pounds—was within the manufacturer’s specifications. [App. at 4644.] 

 The district court also rejected the design defect products liability claim against 

Beechcraft because Plaintiffs produced no supporting evidence. Mr. Bloomfield’s theory 

about debris in the landing gear causing higher pull-forces was excluded as hypothetical. 

[App. at 4644-45.] Mr. Bloomfield’s and Mr. Sommer’s design defect opinions were 

similarly excluded because neither had experience in aircraft product design. [App. at 

4645.] The court also noted that, even if Mr. Bloomfield’s and Mr. Sommer’s design 

arguments were admitted, Plaintiffs lacked evidence of causation: “Plaintiffs have the 

burden of proof to establish causation, and they must have at least some evidence tending 

to show that there is a dispute as to whether Caves made another attempt to pull out the 

alternate landing gear handle before his second landing attempt. It is just as likely that 

Caves did nothing with the alternate landing gear handle before his second landing 

attempt, and a jury would not be permitted to speculate as to what actions Caves took.” 

App. at 4646. 

c. Alternate landing gear – negligence 

 Plaintiffs alleged that Beechcraft was negligent in manufacturing an aircraft that 

required excessive pull-force to deploy the alternate landing gear. This argument was 

based on the tests of three exemplar aircraft finding the alternate landing gears required 
61 

between 100 and 120 pounds of pull-force instead of the maximum 64 pounds stated in 

the Maintenance Manual. [App. at 4643-44.] 

 The district court stated that “the mere fact that the pull-force in plaintiffs’ 

experts’ test results exceeded 64 pounds does not by itself show that the aircraft was 

defective or that excessive pull-force caused the landing gear not to deploy.” App. at 

4647. It further stated that “Plaintiffs have offered no evidence comparing the maximum 

pull-force stated in the maintenance manual for the Premier 390 to other types of aircraft, 

nor have plaintiffs provided a frame of reference for how difficult it is use the alternate 

landing gear handle if the pull force exceeds 64 pounds.” Id. at 4646-47. 

In contrast, the court said, “It is undisputed that plaintiffs’ experts were able to 

pull out the alternate landing gear handle and lock the landing gear into place on each 

exemplar aircraft and that Beechcraft had received no complaints or reports of problems 

using the alternate landing gear.” Id. at 4647. It also noted there was no evidence that 

“Caves received any training concerning the use of the alternate landing gear.” Id. For 

these reasons, the court held that “plaintiffs’ evidence concerning the pull force needed to 

use the alternate landing gear does not independently give rise to genuine dispute that the 

allegedly excessive pull force caused the accident.” Id. 

d. Flight manual – products liability, negligence 

The district court held there was no evidence creating a genuine issue of material 

fact that a defect in the AFM on how to restart the generators was the proximate cause of 

the accident. 
62 

 Plaintiffs argued that the AFM’s procedure for restarting electrical generators was 

incorrect and would not have worked had Mr. Caves followed it. But the district court 

pointed out this theory was based entirely on the proposed testimony of Mr. Haider, 

which was excluded. [App. at 4648-49.] Apart from Mr. Haider’s testimony, the court 

said some evidence tended to show that the method recommended in the AFM for 

restarting an electrical generator—moving the generator switch from “Reset” to “On”—is 

not always sufficient and that sometimes it is necessary to cycle the switch in a slightly 

different way. [App. at 4649-51.] But, as the court explained, this point, based on one 

instance during a test on an exemplar aircraft by the Defendants [App. at 1436], does not 

mean that all units are defective or support an inference that there was a fleet-wide 

problem with the switch. Without Mr. Haider’s testimony, Plaintiffs did not have expert 

evidence that the AFM contained incorrect instructions for restarting a generator 

following an engine shutdown mid-flight. [Id. at 4650.] And, the district court said, even 

if a defect could be shown, Plaintiffs cannot establish that erroneous instructions in the 

manual were the proximate cause of the accident. [Id. at 4649-51.] 

3. Analysis 

 We affirm the district court’s grant of summary judgment to Beechcraft and 

Hawker. Each claim fails at least on the element of causation. Given the expert 

testimony exclusions affirmed above, Appellants either have no expert to testify to 

causation or no evidence to prove causation. 

 
63 

 a. Electrical system

i. Manufacturing or design defects 

 Appellants have no admissible expert testimony linking the loose screw to electric 

intermittency or voltage issues. They thus cannot show causation for a products liability 

claim based on electrical system defects. Although the district court allowed Mr. 

Bloomfield’s testimony about finding a loose screw, it excluded his testimony connecting 

the loose screw to electric bus problems. [App. at 4639-40.] 

 Appellants contend that Mr. Frie’s and Mr. Evans’s statements about seeing 

flickering display panels create a material dispute as to whether a defective electrical 

system caused the accident. [Aplt. Br. at 25.] But evidence from Mr. Frie and Mr. Evans 

does not adequately establish that intermittency or voltage spikes from a defective 

electric system caused the accident. In the context of a complicated aircraft electrical 

system, Plaintiffs needed expert testimony to prove causation. See James River Ins. Co. 

v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011) (lay witness may not 

“express an opinion as to matters which are beyond the realm of common experience and 

which require the special skill and knowledge of an expert witness.” (quotations 

omitted)). 

ii. Negligence 

 Appellants’ complaint alleged that Appellees breached their duty to exercise 

reasonable care in their assembly and inspection of the aircraft, as evidenced by the 

electrical failures contributing to the crash. Because Appellants, following the exclusion 

of Mr. Bloomfield’s testimony, lack expert evidence to why the plane’s electrical systems 
64 

were deficient, Appellants cannot succeed on a claim for negligence in assembling and 

inspecting that system. Without expert testimony on electrical failure, they cannot prove 

causation on their negligence claim. 

 b. Alternate landing gear

 i. Manufacturing defect 

 Appellants’ manufacturing defect claim regarding the alternate landing gear fails 

because it is undisputed that the RB-226’s gear deployed within an allowable force range 

upon testing after production. The alleged alternate landing gear handle defect thus did 

not exist at the time of sale or at the time it left Beechcraft’s possession and control. 

Accordingly, Appellants cannot satisfy a required element of a manufacturing defect 

claim. See Kirkland, 521 P.2d at 1363.25

 ii. Design defect 

 All of Appellants’ expert testimony on alleged design defects in the alternate 

landing gear was excluded, so there is no basis on which to establish design flaw. Mr. 

Bloomfield’s and Mr. Sommer’s testing on the pull-force required for the alternate 

landing gear in the three other Model 390s remains admissible evidence. But their testing 

 25 Appellants present a new argument on appeal that a manufacturing defect claim 

regarding the alternate landing gear remains possible under a “guaranteed to degrade” 

theory, wherein the product was designed in such a way to become more dangerous with 

use over time. Aplt. Br. at 40. Because this argument was not made before the district 

court, we do not consider it. See Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 

1351 (10th Cir. 2017) (“We will only consider arguments not raised below in the most 

unusual circumstances.” (quotations omitted)). Even if it were considered, Appellants 

present no evidence of degradation in the RB-226’s alternate landing gear on the day of 

the crash. 
65 

did not address the plane that was involved in the crash, and there is no expert evidence 

on what precisely is the defect in the alternate landing gear. The district court properly 

excluded the debris-in-the-wheel-well theory because it was only hypothetical and 

without any evidentiary basis. [App. at 4642.] Moreover, Plaintiffs have no expert 

evidence on how an alleged design flaw caused the accident. 

 iii. Negligence 

 Appellants’ complaint contends that Beechcraft breached its duty to exercise 

reasonable care in the design and assembly of the alternate landing gear. We affirm the 

district court’s grant of summary judgment to the Defendants on the negligence claim 

regarding the alternate landing gear because Appellants have no evidence to satisfy 

causation. 

 Mr. Bloomfield’s and Mr. Sommer’s tests on the handles of other aircrafts 

purportedly showed that the pull-force required to deploy the alternate landing gear on 

the Model 390 was considerably higher than the specified maximum in the Maintenance 

Manual, at least in the three aircraft tested. This testing may support an inference that the 

force required to deploy the alternate landing gear in the plane that crashed also was 

higher than the manual’s limit at the time of the accident, but Appellants have not 

provided evidence of causation. Although the alternate landing gear handle in the plane 

was pulled out only about an inch in the wreckage, the record lacks evidence that the 

alternate landing gear failed to lock due to excessive pull-force. And in all three of the 

experts’ tests, they were able to deploy the landing gear despite the increased pull-force. 
66 

Appellants also argue that Mr. Caves did not have sufficient information from 

either the AFM, the handle itself, or the plane’s controls to know how far to pull the 

handle. [Aplt. Br. at 31-32.] But Mr. Bloomfield’s and Mr. Sommer’s testing did not 

address the information that was available concerning the alternate landing gear. They 

were instead measuring required pull-force. Appellants therefore have no expert 

testimony linking insufficient information about how far to pull the handle with causation 

of the crash.26 Because Appellants failed to marshal evidence on an essential element of 

a negligence claim, summary judgment was appropriately granted to Appellees. 

The negligence claims against Hawker also do not survive summary judgment 

because Appellants have not produced evidence to show that failure to inspect the 

landing gear caused the accident. 

 c. AFM and repair kit instructions

 i. Design 

1) Checklists to restart engines 

 Appellants’ AFM claims based on an inadequate checklist fail because Appellants 

have offered no evidence to prove causation. Although Appellants contend there was 

some evidence that may have suggested that a checklist for restarting an engine did not 

always work [App. at 1436], they decided not to include it in the record on appeal, so we 

 26 Even if we construe Appellants’ argument concerning “guaranteed to degrade” 

landing gear as concerning causation, this argument was not made before the district 

court and we decline to considered it here. See Tele-Communications, Inc. v. Comm’r of 

I.R.S., 104 F.3d 1229, 1232 (10th Cir. 1997) (“Generally, an appellate court will not 

consider an issue raised for the first time on appeal.”). 
67 

do not consider it here. [See Doc. 10536488; Doc. 10537103.] Without this evidence 

and without the opinion of Mr. Haider, Appellants have no basis for their AFM checklist 

argument.27 

2) Alternate landing gear directions in the AFM 

 Appellants also have not shown a genuine factual dispute to save their claim that 

the alternate landing gear directions were defective. Although the manual did not state 

how far to pull the handle or how to know when the alternate gear has been dropped and 

locked, the Appellants have no expert testimony on manual design defects or how the 

manual’s alleged shortcomings caused the accident. 

3) Repair kit instructions 

 Appellants presented no evidence for a defect claim against Beechcraft’s repair kit 

instructions for servicing the aircraft. The instructions provide for the required amount of 

torque in the relevant screws. Because their theory is that a defective repair kit was 

responsible for electrical failure in the plane, all of Appellant’s repair kit products 

liability claims require expert testimony on the electrical system defects (intermittency 

and voltage spikes). They have no expert evidence to support this theory. 

 27 Even if there were a basis to argue the checklist was defective, Appellants 

would still need to show that Mr. Caves tried to follow the checklist and that defects in 

the checklist caused the accident. They have not done so. They instead say that under 

Oklahoma law, a consumer of a product would heed an adequate warning. [Aplt. Br. at 

35.] A checklist is not a warning. It provides instructions to follow in case of 

emergency. Appellants have presented no evidence that Mr. Caves’s attempt to follow 

these instructions caused the accident. 
68 

 ii. Negligence 

 Appellants’ negligence claims based on a defective manual or repair instructions 

fail at summary judgment because they have not provided evidence on causation. We do 

not know which checklist, if any, Mr. Caves relied on. Nor is there evidence that Mr. 

Caves failed to pull out the alternate landing gear handle far enough because the flight 

manual did not provide guidance. Finally, Appellants’ negligence claim based on repair 

kit instructions fails because, without any expert testimony remaining on electrical 

system defects, they do not have evidence to show causation. 

III. CONCLUSION 

We affirm the district court’s judgment, which includes the limitations on expert 

testimony and the grant of summary judgment to Defendants Beechcraft and Hawker. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge