Melva Campbell v. Keystone Aerial Surveys, Incorporated
138 F.3d 996 (1998)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A district court abuses its discretion by allowing a late-designated expert witness to testify without applying the established four-factor test, which considers the testimony's importance, prejudice to the opposing party, the possibility of a continuance to cure prejudice, and the reason for the delay.
Facts:
- In April 1994, Thomas Campbell began working for Keystone Aerial Surveys, Inc. ('Keystone') as an 'air mag operator' conducting low-level aerial surveys.
- On May 28, 1994, Campbell was a passenger in a Cessna 320E airplane operated by Keystone pilot Steve Fish.
- While surveying a mountainous area in Nevada described as a 'box canyon', the plane was flying at a low altitude.
- The plane crashed into a wall of the canyon, killing both Campbell and Fish.
- Campbell was decapitated and his body was badly burned in the accident.
- A little more than a year after his father's death, Campbell's son, Thomas Moises Campbell, committed suicide, leaving a note referencing his father's death.
Procedural Posture:
- Melva Campbell and her children filed a wrongful death and survival action against Keystone Aerial Surveys, Inc. in the U.S. District Court for the Southern District of Texas.
- The district court bifurcated the trial into a liability/compensatory damages phase and a punitive damages phase.
- Keystone designated its expert witness, Warren Wandell, approximately eight months after the court-ordered deadline.
- The Campbells filed a motion to strike Wandell's testimony due to the late designation.
- On the first day of trial, the district court denied the Campbells' motion to strike.
- The jury returned a verdict finding that no negligence on the part of Keystone's pilot proximately caused the accident.
- The district court entered a final judgment in favor of Keystone.
- The Campbells, as appellants, appealed the judgment to the U.S. Court of Appeals for the Fifth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a district court abuse its discretion by allowing a defendant to present testimony from an expert witness designated eight months after the court's scheduling deadline and just weeks before trial, without properly considering the four-factor test for prejudice?
Opinions:
Majority - Benavides, Circuit Judge
Yes, the district court abused its discretion by allowing the late-designated expert to testify. The court failed to apply the four-factor test established in 'Bradley v. United States' and instead made an improper 'tit-for-tat' ruling. An application of the 'Bradley' factors reveals the error: (1) the expert's testimony was critically important and 'devastating' to the plaintiffs' case; (2) the prejudice to the Campbells was 'plain and substantial' as they prepared their case assuming no opposing expert and had inadequate time to adapt; (3) the court failed to consider a continuance, the preferred remedy for curing such prejudice; and (4) Keystone offered no viable explanation for its eight-month delay. Therefore, the judgment must be vacated and the case remanded for a new trial. On other matters, the court held that a former NTSB employee not involved in the accident's investigation can offer expert opinion testimony, and that while excluding graphic photos of remains was proper, excluding all testimony about the body's condition (e.g., decapitation) was an abuse of discretion as it is probative of mental anguish.
Analysis:
This decision reinforces the requirement for district courts to adhere to their own scheduling orders and to conduct a formal, on-the-record analysis using established multi-factor tests before deviating from them. It clarifies that a 'tit-for-tat' approach to admitting opposing experts is improper and that a continuance is the strongly preferred remedy for the prejudice caused by a late witness designation. The opinion also provides important guidance on evidentiary rulings in aviation litigation, particularly concerning the permissible scope of testimony from former NTSB investigators and the distinction between unduly prejudicial photographic evidence and probative testimonial evidence regarding a decedent's injuries.
