January 16, 2002 Eye of Experience #49: Aviation Litigation — The Expert Witness

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by	Howard Fried

About the Author ... Howard Fried started flying with the Army Air Corps in WWII, where he served both as a multi-engine instructor pilot and in combat piloting B-17s. After a stint teaching sociology and on-the-air and management jobs in the radio business after the war, he turned to teaching flying again full-time. Over 40,000 general aviation hours later, he is still instructing and running his own flight school. Along the way he administered over 4,000 flight tests as a Designated Examiner until victimized by rogue FAA officials. He has authored two popular flying books aimed at student pilots and instructors, Flight Test Tips and Tales and Beyond The Checkride, and a series of audio tapes, Checkride Tips from Flying's Eye Of The Examiner.

Simply stated, the function of any expert witness is to educate the trier of fact (judge or jury) so as to lead that individual or group to the same inescapable conclusion that the expert reached. Of course, if, during the discovery process, the expert is successful in educating opposing counsel and leading him or her to the same conclusion as that reached by the expert, the matter may not come before an ultimate trier of fact at all. The parties may reach a settlement, or one might give up entirely.

Based upon his background, experience, and knowledge (his expertise), the expert will examine a fact situation and draw a conclusion — a conclusion that will likely be favorable to the side that called him. If a contrary conclusion is reached by the expert after examining the fact situation, the attorney who called him may either attempt to settle the matter, or just not call the expert to testify. In the latter case the lawyer would probably go looking for a different expert, an individual who, upon examining the same set of facts, can find it within himself to come up with a conclusion favorable to the cause of the attorney who called him. He may even find a so-called expert willing to testify to anything, just so long as it is favorable. (One prominent plaintiff's attorney was heard to say of the expert he had called to testify against the manufacturer in an aircraft accident case, "Oh, I know he's a whore, but he's my whore!")

On the other hand, an honorable expert may reach a conclusion unfavorable to his principle's cause and report that to the attorney who retained him, along with a recommendation to get the best settlement he can. If the lawyer is an honorable individual, he will do just that! Sometimes you just have a loser, in which case you get the best deal you can for your client, or get him out the best way you can. In spite of the low opinion in which the legal profession is held in the collective mind of the public, most lawyers are ethical, honorable people. They are playing a game in which the welfare of their clients is determined by the outcome.

The Aviation Expert

In matters aeronautical, experts may be called to reach conclusions regarding the engineering, design, manufacture, repair, and general airworthiness of equipment, aircraft, and/or components. Others may be called to reach conclusions regarding the actions of pilots and/or mechanics, both with respect to tort (negligence) cases and possible violation matters. The stronger his background, the more knowledgeable he is in his field, the more likely the expert's opinion will be given weight. Also his demeanor on the witness stand goes a long way toward establishing his credibility with the judge or jury, as the case may be. I have seen expert witnesses antagonize a jury by puffing and pontificating. Others have made absolutely outrageous statements in a very sincere manner and convinced juries that they knew what they were talking about. In a dramatic, emotional appeal to a jury, a plaintiff's attorney held up a magneto and declared, "See this carburetor? This carburetor made a widow out of that poor woman (pointing to the deceased's wife sitting there with tears streaming down her face), and orphans out of those poor children (sitting with their mother, with tears also streaming down their faces). That poor woman will go through life without the companionship of her beloved husband and those children without the guidance of their father!" At least in part as a result of this act, the jury returned a verdict in favor of the plaintiff in excess of a million dollars. And this sort of thing is not unusual. In closing argument an attorney can get away with almost anything.

When the expert takes the oath on the witness stand, the attorney who called him will qualify him as an expert and establish his expertise by drawing out his entire background in the field. But when he is sworn in for deposition, the expert will be grilled by the opposing attorney regarding his background and qualifications. He will be asked about his training in the area, his experience, degrees, certificates, and perhaps his membership in professional societies and associations, and any articles or books he may have written. Deposing witnesses is part of a process called "discovery," the purpose of which is to provide each side in the controversy an opportunity to learn as much as they can about the other side's case. No lawyer enjoys being surprised by what someone he has called as a witness says "on the record." Hence the legal axiom, "Never ask a question to which you don't know the answer." I have seen a case utterly destroyed by an attorney asking his own witness the wrong question and being surprised by the answer.

An expert witness enjoys a truly unique position in that his testimony is exempt from the rule that witnesses may not say anything that is not factual (matters based on personal observation and knowledge), and may under no circumstances testify to that which is only a matter of personal opinion. These people are called "percipient witnesses" and their testimony goes to what they perceived (saw, heard, or otherwise know first hand), not what someone else told them, or what they think they know. The expert, on the other hand, is expected to form an opinion and to testify that under a given set of circumstances, in his considered, expert, opinion, thus and such will result. The attorney will frame his query in the form of an elaborate hypothetical and then ask the expert: "In this situation, what, in your expert opinion will be the outcome?" or, "Based on these circumstances, what, in your opinion caused the event?" or, "Given these facts, based on your expertise, have you been able to form an opinion, and, if so, what?"

Depositions And Trial

When a witness is deposed, he is sworn and his testimony is recorded. At time of trial if any statement he makes differs from something he swore to on deposition, his prior testimony would surely be used by the opposing party to discredit everything he has to say. Therefore, it behooves the witness to be very consistent in all the statements he makes — attorneys are very quick to catch any discrepancies. Several years ago I was serving as an expert witness in a case, and I had written an article that was published in a popular aviation magazine describing the accident involved in the case, and its cause. However, between the time I wrote the piece and the time it was published, the magazine's editor had made several changes, including changes in the context, so that the conclusion came out exactly opposite to what I had originally written. Anticipating that this would come out at trial, I was prepared. Sure enough the plaintiff's attorney, on cross-examination, held up the magazine and asked me if I wrote that article. I replied, "Yes and no." Ignoring this answer, he asked me to read the damaging portion. I did so. Then I added, "That's not what I wrote," and I hauled out the original draft of what I had actually written and read it. Had it been necessary for the attorney who called me as his witness to bring this out on redirect examination, it would be called "rehabilitating the witness." But in point of fact, it worked out better coming out as it did.

An expert is sure to be asked under oath just how often he has testified as an expert, and if it is always for the same side (plaintiff or defense). If an expert has testified for both defense and plaintiff in previous lawsuits, he is more likely to be believed than if he has always been called by the same side. He will also be asked by the opposing lawyer if he is being paid for his services, and how much. The answer may tend to influence a jury to believe that the expert's testimony is being bought, and thus may not be very reliable. Of course, an attempt is always made by the attorney who called the expert to bring out the fact that the witness is being paid for his expertise, and that his conclusions were reached as a result of an impartial examination of the facts.

Personal Experiences

I once had the unique experience of testifying for both sides in a single lawsuit! It came about like this: I was first called to defend a pilot in a wrongful death action brought by the family of a deceased passenger. The family was suing the manufacturer of an airplane that had crashed, killing the pilot and his passenger. After the defendant manufacturer's lawyer deposed me, he gave up his claim against the pilot and settled out the suit against the pilot's estate. The party who originally retained me was now out of it. So was his partner, the co-owner of the airplane whose only involvement was based on vicarious ownership liability.

The plaintiff's attorney then asked if I would testify for him against the manufacturer. I reluctantly agreed. I told him that I would testify at trial exactly as I had at the deposition, and that I hoped he would lose. If he were willing to pay my fee, I would tell the jury at time of trial the same thing that I testified to on deposition when I was called to represent the pilot. He agreed, and that's how it worked. I had testified that an aerodynamic stall caused the crash that killed the pilot and passenger, but I had refused to go into the matter of what caused the engine stoppage that resulted in a change in the angle of attack, resulting in the stall. The plaintiff had another expert who testified that the stall was a result of faulty design on the part of the manufacturer (a theory in which I didn't believe).

As it turned out, the jury did not believe the faulty design theory either. They held for the defendant manufacturer, an outcome that pleased me and disappointed the attorney who was paying me. Juries are notoriously very generous with a manufacturer's money in product liability suits, but sometimes a plaintiff will reach way too far out in left field to come up with a theory that places the blame on the manufacturer. (In one case, the plaintiff's expert went so far as to claim that the crash was caused by "carburetor ice" in an airplane that didn't have a carburetor — it was fuel-injected!) After all, the manufacturer is the one with the deep pockets! In law school attorneys are taught to look around, find the guy with money, and file the lawsuit against him. Often, when a pilot, for whatever reason, makes a foolish mistake resulting in damage, a plaintiff's attorney will attempt to find some excuse to sue the manufacturer, because, after all, that's who has the money.

The Emotional Side

It is all too easy for the expert to become emotionally involved in a case he's working on. I remember quite vividly one I had a few years ago where I had spent well over a year studying all kinds of material. I had gone over the pleadings and motions, of course, and literally reams of testimony and transcripts of ATC/pilot communications, the NTSB's preliminary and final reports, as well as a great deal of other material. I also traveled several hundreds of miles to fly and videotape the final portion of the fatal flight, breaking off just prior to the point where the accident airplane had encountered the mountainside. The audio of the pilot-controller conversations was dubbed onto my videotape, and it was shown in court at time of trial.

A total of no fewer than five controllers from three different facilities had been desperately attempting to save a pilot who was in serious trouble. They failed, and an entire family, both parents and four children, died in the crash. I was finally given copies of the tapes containing the pilot/controller communications throughout the entire history of the fatal flight. And when it got to the final minutes of the tape and I heard the actual voices of the pilot and the controller who was trying so hard to be helpful, I almost broke down. Listening to the tapes and knowing what was coming was extremely difficult to say the least. Hearing the terror in the voices of the pilot and his wife, who was doing some of the communicating, has to be an entirely different matter from the dry reading of the transcripts. Transcripts are merely words on paper. The spoken word conveys the emotions of the speaker as well.

I'm currently working on a case in which I was personally acquainted with the deceased pilot. Listening to the tapes of his radio communications gives me an eerie feeling indeed.

It Comes Down To Money

Like most professional aviators, I am deeply disturbed by the damage done to the industry we love by the numerous frivolous lawsuits brought by greedy plaintiffs. On the other hand, if I were to die in an airplane, I would want my wife (who was a practicing attorney herself) to try to get as much as she could from everybody in sight, including, no doubt, the manufacturer. And I'm sure most of us feel the same way.

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