The opinion of the court was delivered by: Pitman, United States Magistrate Judge
Defendants move to strike the supplemental or rebuttal report of plaintiffs' expert, Peter Leffe, and to deny plaintiffs leave to serve the report (Docket Item 49). For the reasons set forth below, defendants' application is granted.
This is a wrongful death action arising out of the deaths of former New York Yankees pitcher Cory Lidle and his flight instructor, Tyler Stanger. On October 11, 2006, a Cirrus aircraft occupied by Lidle and Stanger had flown northbound up the East River in a corridor of uncontrolled airspace. Approximately one mile north of the Queensboro Bridge, the aircraft attempted to execute a 180 degree turn to reverse its course and to avoid the controlled airspace surrounding LaGuardia Airport. The aircraft did not complete the turn successfully and crashed into an apartment building on East 72nd Street on Manhattan's Upper East Side, killing Lidle and Stanger.
The aircraft was not equipped with a flight data recorder or cockpit voice recorder, and there were no radio transmissions from the aircraft immediately prior to the crash that might have shed light on its cause. Thus, there is no direct evidence concerning the cause of the crash. The principal dispute in this litigation is whether the crash was due to a piloting error by either Lidle or Stanger or to a malfunction of the aircraft's control system.
Both sides have retained experts in an attempt to find support for their theories in the wreckage of the aircraft, and these experts have repeatedly examined the wreckage. Plaintiffs' experts claim that certain deformations (bends, gouges, scrapes, etc.) in parts of the control system, in conjunction with other evidence, demonstrate that the controls jammed and caused the aircraft to strike the building. Not surprisingly, defendants' experts disagree with these conclusions, and claim that the damage to the parts was caused by the crash and discloses nothing concerning the cause of the crash.
On December 16, 2008, I entered a Scheduling Order in this matter directing that the parties make their initial expert disclosures on December 24, 2008 and that rebuttal*fn1 expert reports be served on January 21, 2009. Three days later, I held a tape-recorded conference call with counsel, during which plaintiffs' counsel asserted that they were entitled to reply to defendants' rebuttal reports. I rejected plaintiffs' contention that they were entitled to reply to defendants' rebuttal reports as a matter of right, and advised plaintiffs that they could make an application to serve reply reports if defendants' rebuttal reports raised new matters.
Plaintiffs served their expert reports on December 24, 2009. The reports were authored by an accident reconstruction expert, a metallurgist, an aerodynamicist, an expert on piloting aircraft and an engineering expert.*fn2 The defendants' initial disclosures were limited to the subject of pilot error.
The initial disclosures made on behalf of three of plaintiff's experts -- A.D. Llorente (an accident reconstruction expert), Dr. Arun Kumar (a metallurgist) and Peter Leffe (an engineering expert) -- are relevant to the present dispute. Llorente opined that the crash was the result of a progressive failure of the flight control system and based his report on the following physical evidence: (1) scrape marks on the trailing edge of the spar at the trim cartridge/aileron actuator pulley; (2) the deformation in and marks on the roll trim cartridge rod; (3) a bend in the aileron attach bracket; (4) a bend in a pulley bracket; (5) marks in the left and right bearing blocks and (6) torsional bending of the control yokes.
Dr. Kumar also concluded that the flight controls had jammed and cited the following physical evidence in support of his conclusions: (1) a bend in the aileron trim cartridge rod; (2) rotational gouges on a spar, and (3) marks on the left and right bearing blocks.
Finally, Peter Leffe, an engineering expert whose reply report is at issue on this motion, also concluded that the crash was caused by a progressive failure of the control system. The material portion of his report provides, in its entirety:
It is my opinion that the subject accident involving N929CD was caused by the jamming of the rudder/aileron interconnect and the lockup of the aileron trim cartridge.
This is based upon the physical evidence, Service Bulletin SB 2X-27-14, R1, R2, R3, the Airworthiness Directive and the testimony of witnesses.
It is my opinion that the Cirrus SR 20 need not be fully cross controlled to cause a lock up the aileron/rudder control system.
This is based on the testimony of Bridgette Dormire, emails authored by Bruce Borden and photographs taken of the other Cirrus Aircraft evidencing lockup.
It is my opinion that the Cirrus SR 20 rudder/aileron interconnect system was hastily and poorly designed; that inadequate fail safe testing was done.
This is based upon the testimony of Patrick Waddick and documents contained in his deposition; Service Bulletin SB 2X-27-14, R1, R2, R3, the Airworthiness Directive.
It is my opinion that the Cirrus SR 20 rudder/aileron interconnect system was designed as a quick fix of a lateral stability problem with the aircraft and to ...