2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-3-2002

Stecyk v. Bell Helicopter

Precedential or Non-Precedential: Precedential

Docket No. 99-2030

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"Stecyk v. Bell Helicopter" (2002). 2002 Decisions. Paper 371.

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PRECEDENTIAL 

 Filed July 3, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 99-2030/99-2051 

MICHELLE S. STECYK, individually, as Executrix of the 

ESTATE OF ANTHONY J. STECYK, JR., and on behalf of 

ANTHONY L. STECYK, minor 

v. 

BELL HELICOPTER TEXTRON, INC.; DOES, 1 THOUGH 

5, INCLUSIVE; UNITED STATES OF AMERICA 

 (District Court #94-cv-1818) 

DOROTHY L. RAYBURN, individually, as surviving spouse 

of ROBERT K. RAYBURN, deceased, and on behalf of 

ALAN M. RAYBURN and JACQUELINE M. RAYBURN, 

surviving children of ROBERT K. RAYBURN, deceased; 

ROBERT L. ANDERSON, as Executor for the Estate of 

ROBERT K. RAYBURN, deceased; 

v. 

THE UNITED STATES OF AMERICA; BELL HELICOPTERTEXTRON, INC., a foreign corporation; TEXTRON INC., a 

foreign corporation; ALLISON GAS TURBINE DIVISION OF 

GENERAL MOTORS CORPORATION, a foreign corporation; 

MACROTECH FLUID SEALING, INC., C.D.I. DIVISION 

MICRODOT, INC., MICRODOT/CDI MICRODOT, INC., 

MACROTECH/CDI d/b/a MACROTECH, INC.; ALLISON 

ENGINE COMPANY, INC.; 

 (District Court #94-cv-4342) 

 

KATHLEEN K. MAYAN, individually, as surviving spouse 

of GERALD W. MAYAN, DECEASED, and as 

Administratrix of the Estate of GERALD W. MAYAN, 

deceased, and on behalf of JAMES PAUL MAYAN, 

GERALD VINCENT MAYAN II and JAKE DANIEL MAYAN, 

surviving sons of GERALD W. MAYAN, deceased 

v. 

THE UNITED STATES OF AMERICA; BELL HELICOPTERTEXTRON, INC.; TEXTRON, INC.; ALLISON GAS TURBINE 

DIVISION OF GENERAL MOTORS CORPORATION; 

MACROTECH FLUID SEALING, INC. dba MACROTECH, 

INC.; MACROTECH/CDI; MICRODOT INC.; 

MICRODOT/CDI, and/or C.D.I. DIVISION MICRODOT, 

INC.; ALLISON ENGINE COMPANY, INC. 
 (District Court #94-cv-4343) 

 Dorothy Rayburn and Kathleen 

 Mayan, 

 Appellants (No. 99-2030) 

 Bell Helicopter Textron Inc. 

 Appellant (No. 99-2051) 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action Nos. 94-cv-01818/04342/04343) 

District Judge: Honorable Eduardo C. Robreno 

Argued on March 1, 2001 

Before: SLOVITER, NYGAARD and ROTH, Circuit Ju dges 

(Opinion filed July 3, 2002) 

 2 

 

 Steven R. Punian, Esquire (Argued) 

 Milton G. Sincoff, Esquire 

 Andrew J. Maloney, III, Esquire 

 Jacqueline M. James, Esquire 

 Kreindler & Kreindler 

 100 Park Avenue 

 New York, NY 10017 

 Attorneys for Appellants/Cross- 

 Appellees Dorothy L. Rayburn and 

 Kathleen K. Mayan 

 Patrick J. O’Connor, Esquire 

 (Argued) 

 Thomas R. Harrington, Esquire 

 John F. Mullen, Esquire 

 James E. Robinson, Esquire 

 Cozen & O’Connor 

 1900 Market Street - The Atrium 

 Philadelphia, PA 19103 

 Attorneys for Appellee/Cross- 

 Appellants Bell Helicopter Textron 

 Inc. 

 Ralph G. Wellington, Esquire 

 J. Denny Shupe, Esquire 

 Michael J. Colleran, Esquire 

 Schnader, Harrison, Segal & Lewis 

 1600 Market Street, Suite 3600 

 Philadelphia, PA 19103 

 Attorneys for Appellee 

 General Motors Corporation 

 David N. Zeehandelaar, Esquire 

 (Argued) 
 Sheryl L. Axelrod, Esquire 

 Blank, Rome, Cominsky & McCauley 

 One Logan Square 

 Philadelphia, PA 19103 

 Attorneys for Appellee 

 Macrotech Fluid Sealing, Inc. 

 3 

 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

These wrongful death actions arose out of the July 20, 

1992 crash of a V-22 Osprey aircraft near Quantico, 

Virginia. Plaintiffs are representatives of the estates of two 

of the seven members of the crew. Defendants designed, 

manufactured, and tested the Osprey and the components 

at issue in this case. A jury trial resulted in judgment for 

defendants. On appeal, plaintiffs challenge several of the 

District Court’s evidentiary rulings. 

For the reasons stated below, we will affirm the District 

Court’s final judgment. 

I. FACTS 

The twin-engine Osprey combines the vertical takeoff and 

landing capability of a helicopter with the cruising speed 

and flying capabilities of a fixed wing aircraft. Bell 

Helicopter Textron, Inc., along with Boeing Vertol Company, 

designed and developed the Osprey under a contract with 

the federal government. General Motors Corporation 

designed and manufactured the engines under a separate 

contract with the government. Macrotech Fluid Sealing, 

Inc., manufactured the torquemeter shaft seal, known as 

the "617 seal," under a subcontract with the Bell-Boeing 

team. 

On July 20, 1992, the Osprey crashed while in the 

transition stage from airplane to helicopter flight. The 

Osprey was attempting to land at the Quantico military 

field after a two hour and forty-four minute flight from 

Eglin Air Force Base in Florida. The plane’s three U.S. 

Marine pilots, together with four Boeing engineers, were 

killed. 

The accident was investigated by a U.S. Navy Court of 

Inquiry. The Court of Inquiry’s findings were then 

forwarded to a superior Naval authority for review, referred 

to as the First Endorsement. The Endorsement became part 

of the Court of Inquiry Report. 

 4 

 

At trial, the District Court admitted the Report, including 

the Endorsement, into evidence. Both the Court of Inquiry 
and the Endorsement agreed that the crash occurred after 

a flammable fluid was ingested by the aircraft’s right engine 

as the craft was attempting to land. The Court of Inquiry 

stated that the right torquemeter shaft seal (the 617 seal) 

was installed backwards and leaked, providing "the most 

probable primary causal factor for the mishap." However, 

the Endorsement did "not concur" with this conclusion. The 

Endorsement stated that improper installation of the 617 

seal was only one possible source of the leaked flammable 

fluid. 

Plaintiffs’ theory was that the crash was caused by a 

transmission oil leak past a 617 seal that had been 

installed backwards by Boeing mechanics. They contended 

that Bell and Macrotech were negligent in not designing a 

"Murphy-proof " seal which could not be reversed. While 

such a "two-way" seal has been installed in subsequent 

versions of the Osprey, the District Court precluded 

evidence of this post-incident remedial measure. 

For the defense, Bell contended that a 617 seal would not 

leak even if reversed and presented an alternate theory of 

causation that the engine failure was caused by hydraulic 

fluid, not transmission oil. 

Bell presented evidence of three separate tests which 

concluded that a reversed 617 seal did not leak. The first 

test (1992 test) had been performed by Bell employee Ken 

Wilson at the request of the Court of Inquiry. The 1992 

test, which was discussed in both the Court of Inquiry’s 

findings and the Endorsement, concluded that a reversed 

617 seal subjected to the same range of RPMs, torque, 

power, heat, pressure and tilt angles as the 617 seal on the 

Osprey did not leak. Plaintiffs’ experts criticized the 1992 

test in several ways, including challenging the use of "new" 

seals and contending that the test’s one hour and twenty 

minute duration was too short. Plaintiffs did not object to 

the admission into evidence of the 1992 test. 

The two other reversed 617 seal tests, conducted in 1997 

and 1998, were performed at Bell’s request by Wilson, who 

had retired from Bell in 1995. These two tests were 

 5 

 

videotaped, and Bell produced these videotapes to plaintiffs 

five months before trial. 

During the defense case at trial, when Bell attempted to 

elicit testimony from Wilson about the 1997 and 1998 

tests, plaintiffs objected based, inter alia, on "unfair 

surprise." The court excused Wilson and ordered him and 

defense expert Dr. Thomas Eagar to produce supplemental 

reports for plaintiffs by 5 p.m. that day, a Friday. Shortly 

thereafter, the court recessed trial until Tuesday to give 

plaintiffs the opportunity to consult with their own experts 

and depose Wilson and Dr. Eagar, if appropriate. 

When trial resumed on Tuesday morning, plaintiffs 
confirmed that they had received the reports and declined 

to take any additional depositions. They asked the court to 

exclude Wilson’s videotaped tests on the ground that they 

were not substantially similar to the conditions on the 

Osprey. After hearing argument about substantial 

similarity, the court admitted the 1997 and 1998 tests. At 

the close of Wilson’s testimony, plaintiffs moved to strike 

his testimony regarding the 1997 and 1998 tests, again on 

grounds of substantial similarity, and the court denied the 

motion. 

After Wilson testified, Dr. Eagar testified as an expert on 

failure analysis, testing with respect to failure analysis, and 

materials science. He presented an alternate theory of 

causation, opining that the Osprey’s engine failure was 

caused by hydraulic fluid, not transmission oil. 

After a six week trial, the jury returned a verdict for the 

defendants. The District Court denied post verdict motions, 

and plaintiffs timely appealed to this Court. 

II. STANDARD OF REVIEW 

The District Court had jurisdiction under 28 U.S.C. 

S 1332. We have jurisdiction to review the final judgment of 

the District Court pursuant to 28 U.S.C. S 1291. 

We review the District Court’s evidentiary rulings 

principally for abuse of discretion. See General Electric v. 

Joiner, 522 U.S. 136, 146 (1997) (decision to admit or 

exclude expert testimony); Glick v. White Motor Co., 458 

 6 

 

F.2d 1287, 1294-95 (3d Cir. 1972) (admission or exclusion 

of tests); see also Inter Med. Supplies, Ltd. v. EBI Med. Sys. 

Inc., 181 F.3d 446, 464 (3d Cir. 1999) (reviewing district 

court’s admission of evidence for abuse of discretion, but 

exercising plenary review over evidentiary rulings with legal 

component); Complaint of Consolidation Coal Co. , 123 F.3d 

126, 131 (3d Cir. 1997) (same), cert. denied, 523 U.S. 1054 

(1998). To show an abuse of discretion, appellants must 

show the district court’s action was "arbitrary, fanciful or 

clearly unreasonable." Stich v. United States , 730 F.2d 115, 

118 (3d Cir. 1984). We will not disturb a trial court’s 

exercise of discretion unless "no reasonable person would 

adopt the district court’s view." Oddi v. Ford Motor Co., 234 

F.3d 136, 146 (3d Cir. 2000). 

III. DISCUSSION 

Plaintiffs first challenge the District Court’s admission of 

the videotaped 1997 and 1998 tests which concluded that 

a reversed 617 seal does not leak. Next, the plaintiffs argue 

that Dr. Eagar’s testimony regarding a leak of hydraulic 

fluid lacked an adequate factual foundation. Finally, 

plaintiffs contend the District Court erred in precluding 

evidence of Bell’s post-crash two-way seal designs. We 

address each argument in turn. 
A. The Videotaped 1997 and 1998 Tests 

As proponents of the videotaped evidence, Bell had to 

make a foundational showing that the 1997 and 1998 test 

conditions were substantially similar to conditions on the 

Osprey. See Glick, 458 F.2d at 1294; Ramseyer v. Gen. 

Motors Corp., 417 F.2d 859, 864 (8th Cir. 1969). However, 

as the term suggests, substantial similarity does not 

require perfect identity between actual and experimental 

conditions. Experimental evidence may be admitted even if 

conditions do not perfectly correspond to the conditions at 

issue in litigation; dissimilarities may affect the weight of 

the evidence, but not its admissibility. See id. A ruling on 

substantial similarity is committed to the sound discretion 

of the trial judge. Id. 

 7 

 

The record reflects that Bell satisfied this threshold of 

admissibility. Wilson, who conducted the tests, explained 

the protocol for each test in a written report and testified at 

length about the tests. The 1997 test used an actual 617 

seal installed on a replica shaft and torquemeter housing 

machined from blueprints of the Osprey. The test consisted 

of four phases. Each phase ran for eight to ten minutes at 

pressures of up to 500 psi (pounds per square inch), which 

was roughly ten times the normal operating pressure on the 

617 seal on the Osprey. When oil pressure was applied to 

the reversed 617 seal in this duplicate housing, the seal did 

not leak. 

The 1998 test used actual Osprey components including 

a 617 seal, torquemeter shaft and torquemeter housing. 

This configuration ran under pressure for 18 hours at 114 

psi, and the reversed 617 seal did not leak. Wilson testified 

that centrifugal pressure did not affect the result of the 

tests. Any minimal additional pressure that would have 

been generated by centrifugal forces was instead created 

and surpassed by the additional pressure (500 and 114 psi) 

exerted in the tests. Faced with this evidence, it was a 

proper exercise of the District Court’s discretion to admit 

the 1997 and 1998 tests. 

By contrast, plaintiffs did not offer any rebuttal evidence 

that the tests were not substantially similar to conditions 

on the Osprey. Instead, plaintiffs’ counsel argued that the 

1997 and 1998 tests were conducted in a static 

environment, as opposed to a dynamic environment where 

they would be subject to centrifugal forces and vibration. 

However, as plaintiffs’ counsel admitted at oral argument, 

they failed to produce a witness, a report, or any evidence 

to support their argument that the lack of centrifugal forces 

imposed on the seal rendered the conditions meaningfully 

dissimilar. Thus, the only evidence before the District Court 

was defense reports and witness testimony that the tests 

were substantially similar to conditions on the Osprey. In 

light of this evidence, we will not disturb the District 

Court’s exercise of discretion to admit the 1997 and 1998 
tests. Any dissimilarities that plaintiffs identified were 

properly the subject of cross-examination. 

 8 

 

In addition, a review of the record belies plaintiffs’ 

alternate contention that they were unfairly surprised by 

the tests. The record reflects that plaintiffs had the 

videotapes five months prior to trial and that their own 

experts had viewed the videotapes. At trial, when plaintiffs 

objected based on unfair surprise, the court ordered Bell to 

produce supplemental reports from Wilson and Dr. Eagar 

and recessed early on a Friday to give plaintiffs additional 

opportunities to depose the defense witnesses and consult 

with their own experts. When proceedings resumed the 

following Tuesday, plaintiffs had declined to take additional 

depositions. Plaintiffs argued that the tests were not 

substantially similar but, as discussed above, offered no 

evidence to rebut Bell’s evidence and support their 

argument that a lack of centrifugal forces rendered the 

tests inadmissable. Nor did plaintiffs move for a 

continuance in order to get the requisite testimony. 

In view of the record as set out above, we find no abuse 

of discretion in the District Court’s rulings on the 

admissibility of this evidence. 

B. Dr. Eagar’s Testimony 

Defense expert Dr. Thomas Eagar opined that the most 

probable source of flammable fluid which caused the 

Osprey’s engine failure was hydraulic fluid. Plaintiffs 

contend that Dr. Eagar’s testimony regarding a leak of 

hydraulic fluid lacked an adequate factual basis because 

there was insufficient evidence of the presence of hydraulic 

fluid inside the engine. 

Under Rule 703 of the Federal Rules of Evidence, experts 

may rely on facts from firsthand knowledge or observation, 

information learned at the hearing or trial, and facts 

learned out of court. Fed. R. Evid. 703.1 If the facts are of 

_________________________________________________________________ 

1. Rule 703 provides: 

 The facts or data in the particular case upon which an expert bases 

 an opinion or inference may be those perceived by or made known 

 to the expert at or before the hearing. If of a type reasonably relied 

 upon by experts in the particular field in forming opinions or 

 inferences upon the subject, the facts or data need not be 

 admissible in evidence. 

 9 

 

the type "reasonably relied upon" by experts in the 

particular field in forming opinions or inferences upon a 

subject, the facts or data need not be independently 

admissible in evidence. Id. See In Re Paoli R.R. Yard PCB 
Litig., 35 F.3d 717, 747 (3d Cir. 1994). Rule 705 provides 

for the disclosure of facts underlying the expert’s opinion. 

Fed. R. Evid. 705;2 see also Fed.R.Civ.P. 26(a)(2)(B) and 

26(e)(1) (relating to disclosure in advance of trial of the 

basis and reasons for an expert’s opinion). It is an abuse of 

discretion to admit expert testimony which is based on 

assumptions lacking any factual foundation in the record. 

See Elcock v. Kmart Corp., 233 F.3d 734, 756 n.13 (3d Cir. 

2000) (discussing Rules 702, 703, 402 and 403 and stating 

that foundational requirement for admissibility of expert 

testimony is found in the "interstitial gaps" among the 

federal rules). Rule 705, together with Rule 703, places the 

burden of exploring the facts and assumptions underlying 

the testimony of an expert witness on opposing counsel 

during cross-examination. See e.g. Ratliff v. Schiber Truck 

Co., Inc., 150 F.3d 949, 955 (8th Cir. 1998); Toucet v. 

Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir. 1993). 

Here, the record reflects a factual foundation sufficient to 

support Dr. Eagar’s opinion that the most probable source 

of flammable fluid was hydraulic fluid. The record shows 

that, of the possible fluids involved in the accident, only 

hydraulic fluid is red. A red residue was found in the 

torquemeter housing. This red residue was tested for the 

Court of Inquiry and found to be a good match for 

hydraulic fluid. There was some hydraulic oil found in front 

of the engine and it may have gotten into the engine. 

Finally, a red residue containing hydraulic oil was 

discovered on the engine air particle separator, adjacent to 

the engine. Thus, the record reflects sufficient evidence of 

hydraulic fluid solvent in places it should not have been-- 

_________________________________________________________________ 

2. Rule 705 provides: 

 The expert may testify in terms of opinion or inference and give 

 reasons therefor without first testifying to the underlying facts or 

 data, unless the court requires otherwise. The expert may in any 

 event be required to disclose the underlying facts or data on cross 

 examination. 

 10 

 

outside the engine, near the engine, and in the torquemeter 

housing--to form the factual foundation for Dr. Eagar’s 

testimony. It was within the discretion of the District Court 

to admit such testimony. 

Once Bell’s expert met the foundational requirements for 

admissibility, the burden shifted to plaintiffs to explore any 

deficiencies in the expert’s sources. A party confronted with 

an adverse expert witness who has sufficient, though 

perhaps not overwhelming, facts and assumptions as the 

basis for his opinion can highlight those weaknesses 

through effective cross-examination. See Ratliff , 150 F.3d at 

955; Toucet, 991 F.2d at 10; cf. Daubert v. Merrell Dow 

Pharm, Inc., 509 U.S. 579, 596 (1993) ("Vigorous crossexamination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and 
appropriate means of attacking shaky but admissible 

evidence."). The District Court properly exercised its 

discretion in admitting the testimony and permitting 

appropriate cross-examination of Dr. Eagar.3 

_________________________________________________________________ 

3. We appreciate our dissenting colleague’s criticisms of the factual 

foundation for Dr. Eagar’s testimony. These criticisms, however, raise 

precisely the type of issues that must be resolved by a fact-finder having 

the benefit of the adversary process. By raising these concerns, the 

dissent effectively conducts an independent evaluation of the weight of 

the evidence -- an exercise that we believe exceeds the appropriate 

boundaries of an abuse of discretion review. While the Federal Rules of 

Evidence call upon the courts to serve as gatekeepers who independently 

evaluate the admissibility of expert opinion testimony, they rely upon the 

discretion of the trial courts -- not the discretion of the courts of 

appeals. See In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999). Because 

the record contains some factual basis -- albeit shaky -- for Dr. Eagar’s 

testimony, the District Court did not abuse its discretion in performing 

this gatekeeping function. 

Moreover, we disagree with the dissent to the extent it concludes that 

"no reasonable expert could base an opinion" on Dr. Eagar’s factual 

foundation. In re TMI Litig., 193 F.3d at 697. Such a conclusion would 

reject implicitly Dr. Eagar’s qualification to testify as an expert witness 

under Rule 702 -- a determination that the plaintiffs do not challenge 

and that we have no reason to reverse. See Elcock, 233 F.3d at n.13 

(explaining the relationship between the foundation requirements of Rule 

703 and the qualification requirements of Rule 702). 

 11 

 

C. Post-crash Seal Designs 

The Federal Rules of Evidence expressly preclude the 

introduction of evidence of subsequent remedial measures 

to prove a party’s negligence or culpable conduct. Fed. R. 

Evid. 407.4 Rule 407 rests on the strong public policy of 

encouraging manufacturers to "make improvements for 

greater safety." Kelly v. Crown Equipment Co. , 970 F.2d 

1273, 1276 (3d Cir. 1992). A manufacturer will be 

discouraged from making improvements for the greater 

safety of its products if such changes can be introduced as 

evidence that the previous designs were defective. Id. 

Moreover, Rule 407 "operates on the presumption that 

undue prejudice is likely in certain situations . . . ." Id. at 

1277. Thus, courts "routinely exclude evidence of 

[subsequent remedial measures] to encourage people to 

take such measures whether or not they are at fault." 

Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1198 (3d 

Cir. 1987) ("Petree I"). 

Pursuant to Rule 407, the District Court excluded 

evidence that a two-way seal was used on the Osprey 

following the crash. However, because defendants argued 

that a one-way seal design was reasonable and that a twoway seal was more difficult to install and "not suited for the 

military environment," Plaintiffs contend that evidence of 

post incident use of the two-way seal was admissible for 
purposes of impeachment. 

While the text of Rule 407 permits admission of 

subsequent remedial measures for impeachment, we have 

cautioned against permitting the exception to "swallow" the 

rule. See Petree v. Victor Fluid Power, Inc., 887 F.2d 34, 39 

_________________________________________________________________ 

4. Fed.R.Evid. 407 provides: 

 When, after an injury or harm allegedly caused by an event, 

 measures are taken that, if taken previously, would have made the 

 injury or harm less likely to occur, evidence of the subsequent 

 measures is not admissible to prove negligence, culpable conduct, a 

 defect in a product, a defect in a product’s design, or a need for a 

 warning or instruction. This rule does not require the exclusion of 

 evidence of subsequent measures when offered for another purpose, 

 such as proving ownership, control, or feasibility of precautionary 

 measures, if controverted, or impeachment. 

 12 

 

(3d Cir. 1989) ("Petree II") (impeachment exception may not 

be used as "subterfuge" to prove negligence). We have 

recognized that, in light of the strong public policy 

considerations behind the rule and the risk of undue 

prejudice, the trial judge should be afforded a healthy 

deference in preserving both the rule and the exception. Id. 

Under Rule 407, together with the Rule 4035 unfair 

prejudice/probative value weighing, the trial court retains 

broad power to insure that remedial measures evidence is 

not improperly admitted under the guise of the 

impeachment exception. Id. 

In the instant case, the record contains a significant 

amount of pre-incident impeaching testimony regarding 

one-way versus two-way seals. The court admitted 

considerable testimony and graphic documentation of Bell’s 

receipt, review, and rejection of a pre-crash alternative 

design of a two-way seal from a vendor, Longhorn Gasket. 

Plaintiffs cross-examined Bell’s witness on Longhorn’s twoway seal proposal. The jury saw an exhibit which contained 

a diagram of Longhorn’s two-way seal and Bell’s evaluation 

of the proposal. Using evidence of Bell’s rejection of a twoway seal prior to the crash, plaintiffs thus had the 

opportunity to impeach the defense witness’s testimony 

regarding the reasonableness of the 617 seal’s one-way 

design without resort to prejudicial post-incident evidence. 

As we stated earlier, a district court retains considerable 

discretion in determining whether otherwise excludable 

remedial measures evidence should be admitted under the 

impeachment exception. Here, where the evidence of the 

existence of a two-way seal design prior to the accident was 

sufficient for plaintiffs to effectively cross-examine the 

defense witness, it was a proper exercise of the District 

Court’s discretion to exclude highly prejudicial postincident evidence. In light of the availability of this pre- 

_________________________________________________________________ 
5. Fed.R.Evid. 403 provides: 

 Although relevant, evidence may be excluded if its probative value is 

 substantially outweighed by the danger of unfair prejudice, 

 confusion of the issues, or misleading the jury, or by considerations 

 of undue delay, waste of time, or needless presentation of 

 cumulative evidence. 

 13 

 

incident impeaching evidence, it was not error for the 

District Court to exclude the prejudicial post-incident 

remedial measures. 

IV. CONCLUSION 

In light of our disposition of plaintiffs’ claims, Bell’s cross 

appeal is moot. Likewise, we need not address Macrotech’s 

alternative grounds for affirmance. For the foregoing 

reasons, we will affirm the final judgment of the District 

Court. 

 14 

 

SLOVITER, Circuit Judge, dissenting: 

It is an important evidentiary principle, one that the 

majority recognizes, that "[i]t is an abuse of discretion to 

admit expert testimony which is based on assumptions 

lacking any factual foundation in the record." Maj. Op. at 

10. The District Court in this case allowed an expert to give 

testimony that was "wholly lacking foundation in the 

record." Elcock v. Kmart Corp., 233 F.3d 734, 754 (3d Cir. 

2002). In so doing, the District Court abused its discretion. 

Because the majority finds that "[t]he District Court 

properly exercised its discretion in admitting [this] 

testimony," Maj. Op. at 11, I dissent. 

I. 

DR. EAGAR’S TESTIMONY CONCERNING 

CAUSE OF CRASH 

Defendants, the designers, manufacturers and testers of 

the troubled Osprey aircraft, argue that the crash at issue 

in this case was caused when hydraulic fluid entered the 

right engine of the aircraft due to a loose hydraulic fitting. 

In support of this theory, Defendants offered the testimony 

of Dr. Thomas Eagar. App. at 1552-1722. Dr. Eagar 

testified that "the most probable source of fuel[which 

caused the aircraft’s engine to fail] was the hydraulic fluid." 

App. at 1627. Dr. Eagar said that he based that opinion on 

the presence of red residue "all over the torque[ ]meter 

housing," App. at 1627, the gas chromatography detailed in 

the GM/Allison Accident Investigation and Residue 

Chemical Analysis Report (henceforth, GM/Allison Report), 

see App. 2380-90, the amount of fluid in the right nacelle, 
the burn damage in the upper nacelle, and the fact that 

there was a loose nut on the hydraulic fitting. App. at 

1627-28. 

Federal Rule of Evidence 703 states that "[t]he facts or 

data in the particular case upon which an expert bases an 

opinion or inference may be those perceived by or made 

known to the expert at or before the hearing." Fed. R. Evid. 

703. This rule imposes upon a trial judge the obligation to 

determine whether to admit expert testimony: 

 15 

 

 Rule 703 thus focuses on the data underlying the 

 expert’s opinion. . . . "[W]hen a trial judge analyzes 

 whether an expert’s data is of a type reasonably relied 

 on by experts in the field, he or she should assess 

 whether there are good grounds to rely on this data to 

 draw the conclusion reached by the expert." If the data 

 underlying the expert’s opinion are so unreliable that 

 no reasonable expert could base an opinion on them, 

 the opinion resting on that data must be excluded. The 

 key inquiry is reasonable reliance and that inquiry 

 dictates that the "trial judge must conduct an 

 independent evaluation into reasonableness." Rule 

 703’s reliability standard is similar to Rule 702’s 

 reliability requirement, i.e., "there must be good 

 grounds on which to find the data reliable." 

In re TMI Litig., 193 F.3d 613, 697 (3d Cir. 1999) (alteration 

in original) (citations omitted) (quoting In re Paoli R.R. Yard 

PCB Litig., 35 F.3d 717, 748-49 (3d Cir. 1994)). 

Appellants, plaintiffs below, contend that Dr. Eagar’s 

opinion that the crash was caused by a hydraulic fuel leak 

lacked a factual basis and therefore the District Court 

should have excluded it. Specifically, they contest each of 

the three main factual predicates for Dr. Eagar’s opinion: 

(1) the presence of hydraulic fluid inside the engine, (2) the 

timing of the hydraulic fluid leak, and (3) the loose nut 

found on a hydraulic fitting. I discuss each of these in turn. 

A. Hydraulic Fluid in the Engine 

At trial, a defense attorney, in discussing Dr. Eagar’s 

testimony, said that "the critical evidence . . . is that the 

[GM/]Allison [R]eport shows profuse quantities of hydraulic 

oil in the engine, and that’s evidence of the fact that it was 

hydraulic . . . oil that caused the engine to fail." App. at 

1623. Appellants challenge the "critical" factual support for 

Dr. Eagar’s testimony that hydraulic fluid was found inside 

the engine. I agree with Appellants. The record evidence, in 

particular the GM/Allison Report, does not indicate that 

hydraulic oil was found inside the engine. 

The key page of the report contained a number of 

findings. See App. at 2389. It indicated that infra-red scans 

of a red residue, taken from the engine, showed"some 
 16 

 

similarities" to hydraulic fluid, "but no definitive match 

could be made." App. at 2389. Instead, the residue 

contained glycol ether, which Dr. Eagar conceded"is 

indicative of transmission oil." App. at 1922. This is 

consistent with Appellants’ theory that transmission oil, 

rather than hydraulic fluid, was dumped into the engine. 

Further, gas chromatography of a residue taken from the 

torquemeter housing "indicated a reasonable agreement" to 

hydraulic fluid, and "suggest[ed] that[it] was composed of 

engine oil and hydraulic fluid." App. at 2389. However, Dr. 

Eagar admitted at trial that the torquemeter housing was 

outside the engine. See App. at 1924. Additionally, an 

earlier section in the GM/Allison Report summarized the 

findings -- that hydraulic oil could only be identified 

outside the engine: 

 The compressor blade track areas [inside the engine] 

 showed a red trace which was not sufficient to 

 determine its source. The material . . . in the 

 torquemeter [outside the engine] housing, also red in 

 color, is a good match to the hydraulic fluid known to 

 be in use on the aircraft hydraulic system. 

App. at 2385. In fact, the report concluded that the red 

residue found inside the engine "was most probably the 

flame sprayed compressor blade track material" and not 

hydraulic oil. App. at 2388. Therefore, the only data in the 

report that even remotely suggested that hydraulic oil was 

found inside the engine was at best inconclusive. By the 

report’s own terms, "no definitive match could be made." 

App. at 2389. 

Additionally, in one of their briefs, Defendants suggest 

that other analyses revealed hydraulic oil in the Engine Air 

Particle Separator ("EAPS"). Br. of Bell Helicopter at 10. 

However, there are no reports in the record that support 

this assertion. Instead, Bell cites to the GM/Allison Report, 

which merely states that "[t]he only remaining source 

potential is from a non-engine source entrained in the inlet 

airstream," App. at 2385, and Dr. Eagar’s own testimony, 

App. at 1584. In any event, as the EAPS is outside the 

engine, see App. at 1907, this does not support Dr. Eagar’s 

conclusion that there was hydraulic fluid in the engine. 

 17 

 

B. Timing of the Hydraulic Leak 

Appellants also challenge Defendants’ evidence 

concerning the timing of the hydraulic leak that Dr. Eagar 

claimed caused the crash. Dr. Eagar claimed that the 

aircraft "lost over a gallon of [hydraulic] fluid" while in 

flight. App. at 1628. Appellants concede that a leak 

occurred. However, they argue that the hydraulic leak 

resulted from, rather than caused, the engine surges and 

resulting failures. As evidence for this, Appellants rely on 
the time-line from the Court of Inquiry Report, App. at 

2280-372, that is based on data from the plane’s flight data 

recorder. According to the Court of Inquiry Report, the first 

hydraulic system failed "due to a leak" which occurred 

almost twenty-seven seconds after the first engine surge, 

App. at 2316, which had occurred when "a flammable 

substance was consumed by the engine." App. at 2315. In 

addition to data from the Osprey’s flight data recorder, 

other evidence discussed in the Court of Inquiry Report 

suggests that hydraulic leakage occurred after engine 

failure. This evidence contributed to the report’s conclusion 

that oil from the proprotor gearbox got into the aircraft’s 

engine. See, e.g., App. at 2363. 

Dr. Eagar rejected the conclusion of the Court of Inquiry 

Report and its reliance on the flight data recorder. He 

explained that the Osprey’s computer system only detected 

when a system failed; it did not detect when a leak began. 

App. at 1929-30. He testified that a leak could be present 

"for up to 43 seconds before [it] gets big enough for the 

system to detect it." App. at 1930. Defendants, however, 

failed to present any evidence corroborating Dr. Eagar’s 

description of how the Osprey’s systems detected hydraulic 

leaks. Therefore, his claim about the timing of the hydraulic 

leak and his use of this claim to support his conclusion 

that the hydraulic leak played a causal role in the crash 

amount to little more than unsupported assertions. 

C. Loose Nut 

Finally, Appellants challenge Dr. Eagar’s conclusions 

concerning the loose hydraulic nut found after the crash. 

According to Dr. Eagar’s testimony: 

 18 

 

 I knew there was a loose nut . . . they had problems 

 with hydraulics, they had been having leaks in 

 hydraulics for six months ahead of time, and I 

 specifically told the jury that I could not point out the 

 exact location of this leak except I believed it was in 

 the upper nacelle. 

App. at 1817. Dr. Eagar also testified that he had"no direct 

evidence" that the hydraulic nut in question was the source 

of the leak, nor did he have further evidence of any other 

loose nuts. App. at 1628 ("We don’t know that that loose 

nut on the hydraulic fitting was the source of the leak."). 

He merely testified that the loose nut could explain the 

hydraulic leak. App. at 1932-33. Thus, even Dr. Eagar 

failed to suggest that the loose nut was the probable source 

of the crash. Further, the Court of Inquiry Report found the 

loose hydraulic nut was caused by the impact of the 

aircraft’s crash. App. at 2332. A Boeing report agreed, 

finding that "the looseness resulted from a mechanical 

overload at impact." App. at 2393. 

D. Summary 
The established factual basis for Dr. Eagar’s testimony 

can be described as follows: (1) gas chromatography 

indicates that hydraulic fluid was found outside the engine, 

(2) hydraulic fluid is red, and a red residue was found 

inside the engine, and (3) a loose hydraulic fitting was 

found in the aircraft wreckage. The remaining "facts" 

presented by Defendants are either flatly contradicted by 

the record or are merely unsupported assertions by Dr. 

Eagar. The evidence in the record fails to provide a 

reasonable factual basis for Dr. Eagar’s opinion that the 

crash probably resulted from a hydraulic fluid leak. 

II. 

I agree with the majority opinion that our standard of 

review for evidentiary rulings is "principally for abuse of 

discretion." Maj. Op. at 6. Such a review is not, however, an 

"empty exercise." Koon v. United States , 518 U.S. 81, 98 

(1996) (discussing abuse of discretion standard). This 

court’s precedents and those of the Supreme Court as they 

relate to expert testimony require a district court to 

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" ‘examine the expert’s conclusions in order to determine 

whether they could reliably flow from the facts known to 

the expert and the methodology used.’ " Oddi v. Ford Motor 

Co., 234 F.3d 136, 146 (3d Cir. 2001) (quoting Heller v. 

Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999). See 

also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) 

("[N]othing in either Daubert or the Federal Rules of 

Evidence requires a district court to admit opinion evidence 

that is connected to existing data only by the ipse dixit of 

the expert."); Tyger Constr. Co., Inc. v. Pensacola Constr. 

Co., 29 F.3d 137, 142 (4th Cir. 1994) ("An expert’s opinion 

should be excluded when it is based on assumptions which 

are speculative and are not supported by the record.") 

(citing E. Auto Distribs., Inc. v. Peugeot Motors of Am., 795 

F.2d 329, 337 (4th Cir. 1986). Such an examination may 

lead a court to the conclusion that "there is simply too 

great a gap between the data and the opinion offered." Gen. 

Elec., 522 U.S. at 146. There may be a natural tendency of 

judges, when presented with a technical question and a 

reasonable sounding expert witness, to admit the evidence 

and let the jury decide the issue. But we have a 

responsibility that we may not shirk. A district court 

abuses its discretion if it admits expert testimony that lacks 

an adequate factual basis. 

In most cases, the lack of factual support for an expert 

opinion affects its weight rather than its admissibility. 

However, based upon my review of the record, there simply 

is no factual support for Dr. Eagar’s conclusion that a 

hydraulic fluid leak caused the crash. This goes directly to 

the admissibility of Dr. Eagar’s testimony, as Defendants in 

effect admitted when they explicitly conditioned the 

admissibility of Dr. Eagar’s testimony on that fact. App. at 

1623 (describing the existence of "profuse quantities of 

hydraulic oil in the engine" as "critical" evidence on which 
Dr. Eagar’s testimony was based). While the evidence does 

indicate that hydraulic fluid leaked outside the engine and 

that a hydraulic nut was loose after the crash, Appellants 

present ample evidence -- including the Osprey’s flight data 

recorder, the Court of Inquiry Report, and a post-crash 

analysis by Boeing -- that these did not cause the crash, 

but rather resulted from it. In contrast, Defendants present 

no further evidence other than the unsupported assertions 

 20 

 

and theories of Dr. Eagar. Even when viewed in a light most 

favorable to Defendants, the evidence merely suggests the 

remote possibility that a hydraulic fluid leak may have 

caused the Osprey’s crash. Dr. Eagar’s ultimate opinion 

"that the most probable source of [engine failure] was the 

hydraulic fluid," App. at 1627, was merely speculation and 

without factual support. The District Court abused its 

discretion in admitting this part of his testimony. 

The majority’s analysis of the factual basis for Dr. Eagar’s 

testimony simply recapitulates the District Court’s mistake 

of accepting Dr. Eagar’s claim that the record supports his 

view. The majority summarizes what it sees as the record 

support for Dr. Eagar’s opinion on the cause of the crash 

as follows: 

 the record reflects a factual foundation sufficient to 

 support Dr. Eagar’s opinion that the most probable 

 source of flammable fluid was hydraulic fluid. The 

 record shows that, of the possible fluids involved in the 

 accident, only hydraulic fluid is red. A red residue was 

 found in the torquemeter housing. This red residue 

 was tested for the Court of Inquiry and found to be a 

 good match for hydraulic fluid. There was some 

 hydraulic oil found in front of the engine and it may 

 have gotten into the engine. Finally, a red residue 

 containing hydraulic oil was discovered on the engine 

 air particle separator, adjacent to the engine. Thus, the 

 record reflects sufficient evidence of hydraulic fluid 

 solvent in places it should not have been--outside the 

 engine, near the engine, and in the torquemeter 

 housing--to form the factual foundation for Dr. Eagar’s 

 testimony. 

Maj. Op. at 10-11. Because the majority comes to the 

conclusion that the record provides a basis for Dr. Eagar’s 

testimony, it found that the District Court did not abuse its 

discretion in admitting his testimony on this point. In 

contrast, on my examination of the record evidence, Dr. 

Eager’s testimony concerning the likely cause of the crash 

is without basis. For this reason, I respectfully dissent. 

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A True Copy: 

Teste: 
 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 22