Mark Kedrowski, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0538

Mark Kedrowski,
Appellant,

vs.

Lycoming Engines, a division of AVCO Corporation,
Respondent.

Filed May 15, 2018
Affirmed
Hooten, Judge
Dissenting, Randall, Judge

Ramsey County District Court
File No. 62-CV-12-9581

Eric J. Magnuson, Robins Kaplan LLP, Minneapolis, Minnesota; and

Thomas W. Fuller, Cortney S. LeNeave, Hunegs, LeNeave & Kvas, P.A., Wayzata,
Minnesota; and

Sharon L. Van Dyck, Fafinski Mark & Johnson, P.A., Eden Prairie, Minnesota; and

Stephen P. Watters, Watters Law Office, Minnetonka, Minnesota (for appellant)

Steven J. Wells, Timothy J. Droske, Andrew B. Brantingham, Dorsey & Whitney L LP,
Minneapolis, Minnesota; and

Daniel A. Haws, John Paul J. Gatto, HKM, P.A., St. Paul, Minnesota (for respondent)

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Randall,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant pilot challenges the dist rict court’s grant of judgment as a matter of la w
(JMOL) in favor of respondent manufacturing company after a jury found that
manufacturing defects in respondent’s fuel pump caused his single-engine airplane to
crash. Appellant argues that the district court abused its discretion when it excluded his
expert’s causation opinion because it lacked foundational reliability. He also argues that
even without his expert’s causation opinion, he presented sufficient evidence for the case
to go to the jury. We affirm.
FACTS
Appellant Mark Kedrowski was the pilot and only occupant of a single-engine
airplane when it crashed into a soybean field near the Lake Elmo Airport on September 3,
2010. Kedrowski took off from the airport, attempted to climb, then made a right -hand
turn and crashed into the field shortly after takeoff. Immediately after the crash, Kedrowski
told emergency responders that he “lost power and was trying to get back to the airport .”
Kedrowski was severely injured and now has no memory of the c rash or the preceding
flight.
In December 2012 , Kedrowski sued respondent Lycoming Engines (Lycoming),
alleging that the airplane’s engine, which was a model originally designed, manufactured,
and sold by Lycoming, lost power and caused the crash . Kedrowski retained Donald
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Sommer, an engineer and undisputed expert in aircraft accident reconstruction, to
investigate the crash. Sommer explained that the airplane , a Glasair RG Super IIS , was
“amateur built, which means it wasn’t built by a big airplane company,” and that the
airplane was certified by the FAA as “special-use experimental.” According to Sommer,
Lycoming originally built the engine in 1973 to be installed in a helicopter, and it was later
modified by another entity to be used in this airplane.
Sommer authored two expert reports and concluded that the airplane’s crash was
caused by design and manufacturing defect s in the engine’s diaphragm-style fuel pump
(the accident fuel pump), a Lycoming LW-15473 that was manufactured in 2008. Despite
acknowledging that he had never before overhauled or tested a diaphragm-style fuel pump,
Sommer opined that the accident fuel pump had design and manufacturing defects that
caused it to leak, decreased the fuel flow to the airplane’s engine, and caused the airplane
to crash.
In a pretrial motion in limine, Lycoming moved to exclude evidence and Sommer’s
testimony regarding causation and his testing of the accident fuel pump for lack of
foundational reliability. The district court denied Lycoming’s request to exclude evidence
of Sommer’s testing “subject to [Lycoming’s] right to interpose foundation and other
appropriate objections at trial.” The district court similarily did not grant the reques t to
exclude Sommer’s testimony but limited its scope and noted that a final ruling on the
admissibility of his testing would be made at trial.
The case proceeded to a nearly month-long jury trial in January 2016. Sommer
testified during the trial that he believe d that design and manufacturing defects in the
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accident fuel pump caused the crash. Specifically, he testified that internal leaks in the
accident fuel pump’s valves resulted in an insufficient fue l flow to the airplane’s engine
and therefore the engine could not produce sufficient power for the airplane to remain in
flight. Sommer described in detail the tests he conducted on various components of the
airplane’s engine. One of the tests he performed was a flow-bench test on the accident fuel
pump. The purpose of the flow -bench test was to measure the accident fuel pump’s fuel -
flow-output capability in order to determine whether it was sufficient to power the
airplane’s engine. Sommer opined that the flow-bench test revealed that the accident fuel
pump was defective and incapable of supplying steady and adequate fuel flow to the
airplane’s engine. At several points during Sommer’s testimony, Lycoming objected to his
causation opinion and the flow -bench testing, claiming a lack of foundation. The district
court overruled these objections.
At the conclusion of Kedrowski’s case-in-chief, Lycoming moved for JMOL . See
Minn. R. Civ. P. 50.01. Lycoming argued that Kedrowski failed to prove causation because
Sommer’s causation opinion and the flow-bench test lacked foundation al reliability. The
district court denied Lycoming’s motion, calling the question o n causation “very close.”
The district court reasoned that whether Sommer properly conducted the flow -bench test
was a question for the jury to decide, not for the court to resolve as a matter of law. As a
result, the trial continued and Lycoming’s experts testified about the tests that they
conducted on the accident fuel pump and their analysis of Sommer’s flow-bench test data,
which they testified showed no evidence of insufficient fuel flow . In response to
Kedrowski’s design-defect claim, Lycoming’s experts also testified that a certain amount
5
of internal leakage was known and accounted for in Lycoming’s specifications and that
there were no design defects. Lycoming also presented evidence, and argued, that the crash
was due to pilot error.
In a special verdict form, the jury found no design defects or pilot error, but found
that the accident fuel pump had unreasonably dangerous manufacturing defects and that
these manufacturing defects caused the crash and thereby Kedrowski’s injuries. The jury
awarded Kedrowski $27.7 million in damages.
After the verdict, Lycoming renewed its arguments that there was in sufficient
foundational evidence for Sommer’s causation opinion and that it was entitled to JMOL.1
See Minn. R. Civ. P. 50.02. The district court granted Lycoming’s post -verdict JMOL
motion, determining that Sommer’s causation opinion and the analysis of the results of the
flow-bench test lacked foundational reliability , and that there was no other evidence
sufficient to support Kedrowski’s argument that the accident fuel pump caused the airplane

1 Lycoming also brought a motion for a new trial on the basis that the jury’s verdict was
improperly influenced by attorney misconduct and repeated violations by Kedrowski’s
attorneys and Sommer of the district court’s order prohibiting evidence of alleged prior
failures of this model of fuel pump. The district court denied Lycoming’s motion for a
new trial on damages, but conditionally granted the motion for a new trial on liability,
concluding that the misconduct and “the cumulative impact of [the se] repeated violations
of pre-trial orders prohibiting evidence and arguments about prior failures . . . were so
prejudicial and inflammatory that Lycoming’s right to a fair trial was substantially
prejudiced.” The dissent is correct that, for the purpos e of defending the district court’s
grant of JMOL, Lycoming is not contesting that the accident fuel pump had manufacturing
defects. But Lycoming is challenging the jury’s finding as being the result of misconduct
by Kedrowski’s attorneys and disallowed references to prior fuel pump failures, and the
district court granted Lycoming a new trial on those grounds.
6
to crash. Because Kedrowski was unable to establish the necessary causation element, the
district court concluded that Lycoming was entitled to JMOL.
Kedrowski appeals.
D E C I S I O N
Kedrowski argues that the district court erred in granting JMOL in favor of
Lycoming and requests that we reverse and remand for reinstatement of the jury verdict
and entry of judgment. Lycoming asks us to affirm the district court or, alternatively in a
conditional cross-appeal, requests a new trial on liability and damages in the event of a
remand.
I.
Minn. R. Civ. P. 50.0 1(a) allows for entry of JMOL after “a party has been fully
heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue.” After a jury returns its verdict, a party may renew its
preverdict motion for JMOL under Minn. R. Civ. P. 50.02. A post-verdict grant of JMOL
is proper when an expert’s causation opinion “should not have been received because [it
was] based on assumptions which were not established by the evidence.” Rochester Wood
Specialties, Inc. v. Rions, 286 Minn. 503, 509, 176 N.W.2d 548, 552 (1970). Under Minn.
R. Evid. 702, “expert testimony is admissible if: (1) the witness is qualified as an expert;
(2) the expert’s opinion has foundational reliability; (3) the expert testi mony is helpful to
the jury; and (4) if the testimony involves a novel scientific theory, it must satisfy the Frye-
Mack standard.” State v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011) (citing Minn. R. Evid.
702).
7
The key issue in this case is whether there was foundational reliability to support
Sommer’s causation opinion that manufacturing defects in the accident fuel pump led to
insufficient fuel flow to the airplane’s engine, causing it to lose power and the airplane to
crash. In considering the foundational reliability of an expert’s testimony, rule 702 requires
district courts to: (1) analyze the testimony i n light of its proposed purpose; (2) take into
account “the underlying reliability, consistency, and acc uracy” of the testimony’s subject
matter; and (3) determine whether the proffered testimony is reliable. Doe v. Archdiocese
of St. Paul , 817 N. W.2d 150, 167 –68 (Minn. 2012). “ The burden of laying the proper
foundation for the admission of the expert test imony is on the party offering the expert,
and admissibility must be shown by a preponderance of the evidence.” Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999); see also In re Source Code Evidentiary
Hearings in Implied Consent Matters, 816 N.W.2d 525, 538–39 (Minn. 2012).
Minnesota appellate courts “review a district court’s evidentiary rulings, including
rulings on foundational reliability, for an abuse of discretion.” Doe, 817 N.W.2d at 164 .
Even if we would have reached a different decision regarding the sufficiency of foundation,
we will not reverse the district court’s decision absent a clear abuse of discretion. Gross v.
Victoria Station Farms, Inc., 578 N.W.2d 757, 761 (Minn. 1998); see also Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 142, 119 S. Ct. 1167, 1171 (1999) (“[T]he law grants a district
court the same broad latitude when it decides how to determine reliability as it enjoys in
respect to its ultimate reliability determination.”).
After the crash, Sommer and his reconstruction team analyzed every part and
component of the engine and , utilizing a differential -diagnosis approach, eventually
8
narrowed their focus to the accident fuel pump. Sommer explained that the accident fuel
pump is operated by a push rod that go es up and down so that when the rod goes down, a
diaphragm forms a cup, and when the lever goes back up, the diaphragm goes flat so that
it changes the volume of the pumping chamber. A cover assembly holds together two
check valves: an inlet check valve a nd an outlet check valve. These valves allow fluid to
flow through them in only one direction. T he fuel is sucked into the inlet check valve ,
pumped through the pumping chamber into the outlet check valve and into a filter, and then
goes through a fuel injector servo. The fuel injector servo measures air flow, fuel pressure,
and controls the flow of fuel into the engine.
The record reflects that the engineering principles pertaining to the operation of a
diaphragm-style fuel pump were uncontroverted. There is an inverse relationship between
outlet pressure and fuel flow. Stated otherwise, when there is less outlet pressure, there is
more fuel flow, and when there is more outlet pressure, there is less fuel flow. Illustrative
of this relationship betwee n fuel flow and outlet pressure are the performance
specifications set forth in Lycoming’s assembly drawings of its diaphragm-style fuel pump,
as well as the assembly drawings for a similar fuel pump made by Aero Accessories (Aero).
According to Lycoming’s specifications, at an outlet pressure of 2 pounds per square inch
(psi) at 600 revolutions per minute (rpm), the fuel pump should produce 240 pounds of fuel
flow per hour, and at an outlet pressure of 2 psi at 1800 rpm, it should produce 270 pounds
of fuel flow per hour. Toward the other extreme, as outlet pressure increases, the fuel flow
should decrease until it hits the shutoff pressure at 25–30 psi, at which point no fuel i s
flowing through the fuel pump.
9
Sommer testified that if a fuel pump meets its design specifications, it is not
defective. But the district court observed, and the record supports, that Sommer did not
test the accident fuel pump to determine whether it met its design specifications .
Specifically, the district court noted that Sommer failed to perform a flow-bench test at an
outlet pressure of 2 psi as set forth in Lycoming’s assembly design. Sommer never denied
that he did not test the fuel pump at this outlet pressure level. Instead, he testified that
testing at 2 psi was not necessary because the engine could not operate at that pressure
level and he was “interested in finding out why this engine didn’t run[,] not what some
blueprint said.”
Sommer testified that an outlet pressure o f 10 psi is required for the f uel injector
servo to operate and allow fuel to flow into the engine. He also testified that at an outlet
pressure of 18 psi the engine would operate at full power. But he never tested the accident
fuel pump at either psi level. In fact, he only tested the fuel flow at outlet pressure levels
of 5–8, 22–25, and 25 psi at fluctuating rpm settings . He testified that he obtained 218
pounds of fuel flow at approximately 700 rpm for outlet pressures of 5–8 psi. But, he did
not testify that the fuel flow s at the outlet pressure levels of 5–8 were insufficient. And,
most importantly, he did not test the accident fuel pump at outlet pressures between 10 and
22 psi, which is the range in which the engine could be operated.
Instead, Sommer testified regarding the results he obtained from the flow-bench test
for fluctuating outlet pressures of 22 –25 psi and at 25 psi. He explained that in the flow-
bench test, he obtained 60 pounds per hour at approximately 600 rpm at an outlet pressure
of 22–25 psi and 48.4 pounds per hour at approximately 1800 rpm at an outlet pressure of
10
25 psi. At an outlet pressure of 22–25 psi, Sommer opined that the fuel flow should have
been 240 pounds per hour rather than 60 pounds per hour. At an outlet pressure of 25 psi,
Sommer opined that the fuel flow should have been 270 pounds per hour rat her than 48.4
pounds per hour. H owever, according to Lycoming’s specifications, which are based on
the inverse relationship between pressure and fuel flow in diaphragm-style fuel pumps, an
outlet pressure of 25 psi —which Sommer admitted is at or near shutoff —should result in
low or no fuel flow. In fact, Sommer’s testimony for what the flow should have been at or
near the fuel pump’s shutoff point are essentially the same as the specifications set forth in
the assembly drawings for 2 psi.
Sommer claimed his analysis of inadequate fuel flow at or near 25 psi was based
upon information he received in an email from an employee at Aero, which purportedly
contained the following specifications for a diaphragm-style fuel pump as follows: “40
[gph] @ 600 cpm = cycle per minute, one cycle from a fuel pump actuating arm up and
down. 45 [gph] @ 1800, 24 -30 psi.” In interpreting the specifications set forth in the
email, Sommer testified that “40 [gph]” or gallons per hour is equivalent to 240 pounds per
hour and “45 [gph]” or gallons per hour is equivalent to 270 pounds per hour. But Sommer,
interpreting the specifications set forth in the email as applying to the outlet pressure levels
at or near shutoff or 25 psi, obviously did not realize that his conversion calculations
rendered an expected fuel flow that was essentially identical to fuel flow levels at 2 psi as
required by the Lycoming and Aero design specification s. Sommer acknowledged that
none of his other tests of the accident fuel pump quantified the fuel flow at the different
pressure levels.
11
At trial and over vigorous foundational reliability objections from Lycoming,
Sommer expressed his opinion that the airplane crashed because of insufficient power to
the engine caused by inadequate fuel flow in the accident fuel pump. He formulated this
opinion on the basis that the crash was caused by the engine’s failure to operate according
to its rated horsepower, leaking in the valves of the accident fuel pump provide d
insufficient fuel to the engine, and this insufficiency was demonstrated by the flow-bench
testing. While the district court overruled these foundation objections at trial and denied
Lycoming’s JMOL motion at the end of Kedrowski’s case -in-chief, the district court
ultimately granted Lycoming’s post -trial JMOL motion after determining tha t Sommer’s
opinion lacked foundational reliability. The district court reasoned that Sommer, who
admitted that a fuel pump that met its own design specifications could not be defective,
never actually tested the accident fuel pump in a manner to see wheth er it performed as
designed. And though the district court did not question the raw numbers of the flow -
bench test, it was critical of the fact that Sommer did not test the accident fuel pump
according to Lycoming’s or Aero’s drawing specifications.
Minnesota caselaw has long established that if an expert’s opinion is based on
assumptions not established by the evidence, th e opinion lacks foundation and is
inadmissible. Huseby v. Carlson, 306 Minn. 559, 560 –61, 238 N.W.2d 589, 590 (1975) ;
see also Whitney v. Buttrick , 376 N.W.2d 274, 277 (Minn. App. 1985) (explaining that
“[e]xpert opinion must be based on readily ascertainable facts” and not mere speculation
or conjecture), review denied (Minn. Jan. 23, 1986). And when expert testimony is based
on a scientific test, “the proponent of a test [must] establish that the test itself is reliable
12
and that its administration in the particular instance conformed to the procedure necessary
to ensure reliability.” Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (emphasis
added) (quotation omitted); see also Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146 , 118 S.
Ct. 512, 519 (1997) (“A court may conclude that there is simply too great an analytical gap
between the data and the [expert] opinion proffered.”).
Kedrowski argues on appeal that the district court improperly weighed the evidence
underlying Sommer’s opinion and thereby invaded the province of the jury in determining
the cause of the airplane crash. But the cases Kedrowski relies on to support his argument
that there was foundational reliability for Sommer’s causation opinion are factually
distinguishable. At least three of his cited cases concluded that expert testimony was not
required to prove causation because the issues were within the jury’s common knowledge.2
Numerous other cases emphasize the deference given to the district court’s evidentiary
rulings and ultimately upheld the district court’s decision that an expert’s opinion was
foundationally reliable after determining the methodology an d testing to be scientifically
valid and supportive of the expert’s opinion. 3 Kedrowski cites a few cases in which an

2 See Osborne v. Twin Town Bowl, Inc. , 749 N.W.2d 367, 380 (Minn. 2008); Schulz v.
Feigal, 273 Minn. 470, 476, 142 N.W.2d 84, 89 (1966) ; see also Sappington v. Skyjack,
Inc., 512 F.3d 440, 446 (8th Cir. 2008).
3 See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017); Sentinel Mgmt.
Co. v. Aetna Cas. & Sur. Co., 615 N.W.2d 819, 824–25 (Minn. 2000); Shymanski v. Nash, 312 Minn. 304, 308, 251 N.W.2d 854, 857 (1977); LeMieux v. Bishop, 296 Minn. 372, 384,
209 N.W.2d 379, 386 (1973); see also In re Zurn Pex Plumbing Prods . Liab. Litig., 644
F.3d 604, 614 (8th Cir. 2011); Shuck v. CNH Am ., LLC, 498 F.3d 868, 874 –75 (8th Cir.
2007); Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd. , 326 F.3d 1333, 1346 (11th Cir.
2003).
13
appellate court reversed a district court’s foundational reliability analysis, but nearly all of
these cases involved appeals from summary judgment or other pretrial stages of litigation.4
What is clear from the case law is that the district court, as a gatekeeper of expert
evidence to be presented to a jury, had to perform a thorough evaluation of Sommer’s
testimony to ensure that the premise for his conclusions was both reliable and consistent
with his testing methods. See Samaan v. St. Joseph Hosp., 670 F.3d 21, 32 (1st Cir. 2012)
(requiring district courts to “ensure that there is an adequate fit between the expert’s
methods and his conclusions”) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
591, 113 S. Ct. 2786, 2795 (1993)); see also United States v. Frazier, 387 F.3d 1244, 1260
(11th Cir. 2004) (explaining that the district court’s gatekeeping function inher ently
requires “an exacting analysis of the foundations of expert opinions to ensure they meet
the standards for admiss ibility” (quotation omitted)); Pugliano v. United States , 315 F.
Supp. 2d 197, 199 (D. Conn. 2004) (“In deciding whether a step in an exp ert’s analysis is
reliable, the court must undertake a rigorous examination of the data on which the expert
relies, the method by which he draws his opinions from such studies and data, and the
application of the data and methods to the case at hand.”).

4 See Pfeiffer v. Allina Health Sys., 851 N.W.2d 626, 638–39 (Minn. App. 2014) (reversing
because district court failed to conduct any rule 702 analysis), review denied (Minn. Oct.
14, 2014); see also Lauzon v. Senco Prod s., Inc., 270 F.3d 681 (8th Cir. 2001) (holding
that district court abused its discretion in granting summary judgment and ruling that
testimony of plaintiff’s expert was inadmissible wit hout conducting a pretrial Daubert
hearing); Bednar v. Bassett Furniture Mfg. Co. , 147 F.3d 737 , 739 –40 (8th Cir. 1998)
(noting that there was scientific support for expert’s opinion in negligence case regarding
formaldehyde exposure even though expert could not test preci se emission rate at time of
exposure).
14
In determining whether there is sufficient foundational reliability for an expert
opinion by a preponderance of the evidence, the district court’s role as the gatekeeper is to
“keep unreliable and irrelevant information from the jury because of its inabili ty to assist
in factual determinations, its potential to create confusion, and its lack of probative value.”
Allison, 184 F.3d at 1311–12. And, in doing so, the court must “ensure tha t the proposed
expert testimony . . . logically advances a material aspect of the proposing party’s case” or
has “a valid scientific connection to the disputed facts in the case.” Id. at 1312 (citing
Daubert, 509 U.S. at 591, 113 S. Ct. at 2796). In rendering his conclusions, the expert
must employ “the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Carmichael, 526 U.S. at 152, 119 S. Ct. at 1176.
After an exhaustiv e review of Sommer’s testimony , we conclude that the district
court did not abuse its discretion in excluding Sommer’s causation opinion for a lack of
foundational reliability. Sommer acknowledged that a fuel pump could not be defective if
it met its design specifications. The design specifications in the assembly drawing for the
accident fuel pump upon its manufacture required testing at 2 psi and at or near the shutoff
point at 25–30 psi. Sommer conceded that he did not test at 2 psi. He also acknowledged
that the inverse relationship of outlet pressure to fuel flow ––a basic engineering principle
for a diaphragm-style fuel pump––would mean that the pounds per hour of fuel flow would
be lower at outlet pressure levels near the shutoff point. But, contrary to his own
acknowledgment of these basic engineering principles , Sommer opined that the fuel flow
should have been 27 0 pounds per hour at or near the shutoff level of 25 psi ––which
coincidentally is the amount of fuel flow expected for an outlet pressure of 2 psi, according
15
to the performance specifications. Sommer’s testimony in this regard contradicts his other
testimony and calls into question his understanding of the fundamental engineering
principles for this type of fuel pump . It is illogical, confusing, and provides no guidance
to a jury in its determination of whether there was insufficient fuel flow from the fuel pump
that caused the airplane to crash.
Moreover, in five days of testimony, Sommer did not present any evidence from the
flow-bench test indicating that there was insufficient fuel flow at any other relevant outlet
pressure level. He testified that an outlet pressure of 10 psi is required for the fuel injector
servo to operate and allow fuel to flow from the fuel pump through the servo and into the
engine, but he did not test the accident fuel pump at 10 psi. Sommer also testified that for
full power he would expect an outlet pressure of 18 psi. But he did not test the accident
fuel pump at that pressure either. Though he did conduct the flow-bench test at a pressure
level of 5–8 psi, the test indicated that there was 218 pounds of fuel flow, which is only
slightly lower th an the expected fuel flow of 240 pounds of fuel per hour for an outlet
pressure of 2 psi at 600 rpm, as set forth in Lycoming’s assembly drawings.
Finally, none of Sommer’s other tests provide sufficient foundation for his opinion
that the accident fuel pump’s leaks led to a deficit in fuel flow to the airplane’s engine. The
Water Brake Dynamometer (dynamometer test) led Sommer to believe that the engine was
not producing sufficient horsepower, which told him that the engine was not running right
and he needed to figure out why . The dynamometer test did not explain why the engine
was not producing sufficient horsepower. Sommer also testified about a sub -performing
spring, but conceded that he was unable to measure the impact that the spring had on the
16
accident fuel pump’s ability to provide sufficient fuel flow. And, in the tests to measure
the leakage in the fuel pump ––the air pressure test and vac uum test ––Sommer did not
quantify any alleged decrease i n fuel flow or determine that any such decrease was
sufficient to cause the airplane to lose power.
Because Sommer’s causation opinion does not survive the intellectually rigorous
application of the basic engineering principles involved in the operation of this style of fuel
pump, and therefore lacks foundational reliability, we conclude that the district court’s
denial of its admission was not an abuse of discretion. As the district court noted, its “ruling
simply held Mr. Sommer to the standard he set for himself.” Based upon this record, we
conclude that this is not a case where the district court inappropriately weighed competing
scientific evidence provided by the parties’ experts. Rather, the district court conclud ed
that Sommer failed to provide reliable scientific evidence regarding causation that could
be weighed.
II.
Kedrowski contends that the district court erred in granting JMOL in favor of
Lycoming based on its post -trial ruling that Sommer’s testimony lacked foundational
reliability and is therefore inadmissible. The district court should grant JMOL
only in those unequivocal cases where (1) in the light of the
evidence as a whole, it would clearly be the duty of the
[district] court to set aside a contrary verdict as being
manifestly against the entire evidence, or where (2) it would be
contrary to the law applicable to the case.
Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd. , 711 N.W.2d 811, 816
(Minn. 2006) (quotation omitted); see also Glorvigen v. Cirrus Design Corp., 796 N.W.2d
17
541, 549 (Minn. App. 2011), aff’d, 816 N.W.2d 572 (Minn. 2012). “Viewing the evidence
in a light most favorable to the nonmoving party, this court makes an independent
determination of whether there is sufficient evidence to present an issue of fact for the
jury.” Jerry’s Enters., Inc., 711 N.W.2d at 816; see also Daly v. McFarland, 812 N.W.2d
113, 119 (Minn. 2012) (“A motion for judgment as a matter of law is reviewed de novo.”).
We will not set aside a jury verdict “if it can be sustained on any reasonable theory of the
evidence.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).
In this case, as we discussed previously, “there is simply too great an analytical gap
between the data ” from the flow -bench test and Sommer’s causation opinion for us to
conclude that his opinion is grounded in valid scientific evidence. See Joiner, 522 U.S. at
146, 118 S. Ct. at 519.
Kedrowski first claims that it is fundamentally unfair to grant a post -verdict JMOL
on this ground because he did not have the opportunity to cure the purported deficiencies
in Sommer’s testimony. He argues that , in relying upon the district court’s prior rulings,
he chose not to lay additional foundation or call additional witnesses, and that such
foundation determinations should be made when the evidence is offered, not “after the
jury’s verdict has been return ed, because the latter approach substantially usurps the role
of the jury.” Reinhardt v. Colton, 337 N.W.2d 88, 92 n.1 (Minn. 1983).
We agree with the district court that Kedrowski’s counsel was well aware of
Lycoming’s objection to the foundation for Sommer’s testimony as early as 2014 as the
issue was raised in Lycoming’s motions in limine before trial and in repeated objections
throughout trial. Kedrowski’s counsel cannot claim to have been surprised or caught off
18
guard by Lycoming’s position, and they were well aware that it would be important to offer
all of the evidence they had which might support the foundational reliability of their
expert’s causation opinions. See Weisgram v. Marley Co. , 528 U.S. 440, 455 –56, 120 S.
Ct. 1011, 1021 (2000) (“It is implausible to suggest . . . that parties will initially present
less than their best expert evidence in the expectation of a second chance should their first
try fail. We therefore find unconvincing [petitioner’s] fears that allowing courts of appeals
to direct the entry of judgment for defendants will punish plaintiffs who could have shored
up their cases by other means had they known their expert testimony would be found
inadmissible.”).
Additionally, after the close of Kedrowski’s case -in-chief, L ycoming moved for
JMOL based in part on the lack of foundational reliability for Sommer’s causation opinion.
If the district court had granted Lycoming JMOL at that time, Kedrowski could not have
reopened the record to attempt to supply additional foundat ion. And, a fter Lycoming
presented its evidence, much of which was Lycoming’s expert witnesses analyzing the
same data from Sommer’s flow-bench test and testifying that the flow-bench tests that were
done showed sufficient fuel flow, Kedrowski ’s counsel had the opportunity to present
rebuttal evidence but did not do so. See Farmers Union Grain Term inal v. Indus. Elec.
Co., 365 N.W.2d 275, 277 (Minn. App. 1985) (defining “rebuttal evidence” as evidence
that “explains, contradicts, or refutes the defendant’ s evidence. Its purpose is to cut down
[the] defendant’ s case and not merely t o confirm that of the plaintiff ”), review denied
(Minn. June 14, 1985). Furthermore, Kedrowski’s ability to cure was limited by the scope
of the expert opinions that he disclose d during discovery. See Minn. R. Civ. P. 26.01(b),
19
26.05, 37.03(a). Kedrowski could not cure, at trial, what Sommer never did. We conclude
that the district court’s grant of Lycoming’s post -trial motion for JMOL did not unfairly
prohibit Kedrowski from providing sufficient evidence to support the foundational basis
for Sommer’s opinions.
Kedrowski next argues that, even without Sommer’s causation opinion based on the
flow-bench test , there was sufficient evidence in the record for the jury to find that
Lycoming manufactured a defective fuel pump that caused the airplane to crash.
Lycoming contends that , due to the technological complexity of th is case,
Kedrowski needed an expert opinion on causation for the jury to determine whether there
was insufficient fuel flow because of defects in the accident fuel pump and whether this
deficit in fuel flow caused a loss of power to the engine. We ag ree. “Expert opinion is
required to prove causation if the issue is outside the realm of common knowledge.” Gross,
578 N.W.2d at 762; Bernloehr v. Cent. Livestock Order Buying Co. , 296 Minn. 222, 225,
208 N.W.2d 753, 75 5 (1973) (noting that expert opinio n is required to prove causation if
the issue is outside of the common knowledge of “the ordinary layman”). There is no doubt
that the functionality of a fuel pump in a single -engine airplane is beyond the scope of
common knowledge or experience. Other than Sommer, none of Kedrowski’s witnesses
presented any evidence that the leaks in the accident fuel pump caused a deficit in fuel flow
to the airplane’s engine that led to the airplane’s loss of power and crash.
Kedrowski argues that, through process of e limination, and by proving that
Lycoming’s manufacturing process produced a leaky fuel pump, it is possible to infer that
the leakage caused a loss of power during the airplane’s ascent. The record reveals that
20
Sommer reviewed photographs from the crash site and the post -crash condition of the
airplane’s propellers, which led him to believe that the airplane had lost power prior to
crashing. There is also evidence that Kedrowski told a first responder at the scene of the
crash that “he lost power” and was trying to return to the airport before the crash.
Kedrowski had also advised Sommer of three instances prior to the crash in which, while
the airplane remained idle on the ground, he use d the airplane’s boost pump to start th e
engine but the engine die d when he turned the boost pump off. But none of this is
competent scientific evidence demonstrating that the accident fuel pump’s leaks caused a
decrease in fuel flow sufficient to cause the engine to lose power and the airplane to crash.
Kedrowski also relies significantly on Sommer’s dynamometer test , which led
Sommer to opine that the engine was not producing sufficient horsepower, and Lycoming’s
testing of the accident fuel pump on a Cessna 177RG test airplane. While Sommer opined
that the dynamometer test showed that the engine was not producing sufficient horsepower,
the dynamometer test could not explain why the engine was not producing sufficient
horsepower. Without such explanation, Kedrowski’s evidence is insufficient to prove that
the accident fuel pump —rather than another component of the engine —was responsible
for a lack of power. As discussed previously, Sommer depended on the flow-bench test to
determine why the engine was producing less horsepower. And, while the record reflects
that the Cessna airplane needed significant cranking after the accident fuel pump was
installed and the parties disputed the reasons for the difficulties in starting the Cessna
airplane, Sommer agreed that “[t]hey were eventually able t o get the system running and
get the pump providing some fuel to the engine.” At most, the Cessna airplane test showed
21
difficulties starting the engine with the accident fuel pump. But neither the dynamometer
test nor the Cessna test demonstrated that leaks in the accident fuel pump caused an
insufficient flow of fuel to the engine while airborne.
After a thorough revie w of the evidence in the record , we conclude that without
Sommer’s causation opinion , there is insufficient evidence of causation . There is no
evidence in the record that validates Kedrowski’s theory that the accident fuel pump’s leaks
were a substantial causal factor in the engine’s loss of power. See Bernloehr, 296 Minn.
at 224, 208 N.W.2d at 754 (“Proof of a causal connection must be something more than
merely consistent with the plaintiff’s theory of the case. If the facts furnish no sufficient
basis for inferring which of several possible causes produced the injury, a defendant who
is responsible for only one of such possible causes cannot be held lia ble.” (citation s
omitted)); Rients v. Int’l Harvester Co., 346 N.W.2d 359, 362 (Minn. App. 1984) (“In any
theory of products liability, the plaintiff must show a causal link between the alleged defect
and the injury.”), review denied (Minn. Oct. 30, 1984).
Finally, Kedrowski argues that the district court should not have granted JMOL
because the district court made an erroneous evidentiary ruling prohibit ing his counsel
from introducing evidence of other incidents in which the same model of fuel pump had
failed. In its pretrial order, the district court excluded evidence of other accidents,
incidents, and complaints regarding the fuel pump on the basis that Kedrowski “failed to
establish that the other incidents were the same or substantially similar to the incident and
alleged product defects at issue in this case .” Therefore, the district court reasoned that
this evidence was not relevant. See Held v. Mitsubishi Aircraft Int’l, Inc. , 672 F. Supp.
22
369, 390 (D. Minn. 1987) (“ In general , where evidence of other accidents involving a
product is concerned, a party seeking to introduce evidence must show that the other
accidents occurred under ‘substantially similar circumstances’ and involved ‘substantially
similar’ components or products. ”). Given our narrow standard of review and the record
in this case, we cannot conclude that the district court abused its discretion in excluding
this evidence. See Lines v. Ryan , 272 N.W. 2d 896, 902 (Minn. 1978) (holding that
evidentiary ruling is within sound discretion of district court and that appellate court will
not reverse except for clear abuse of discretion).
Based upon this record, Kedrowski fail ed to establish the necessar y causal
connection between any internal leaks in the accident fuel pump, any decrease in fuel flow,
the airplane’s loss of power, and its subsequent crash. See Huseby, 306 Minn. at 560–61,
238 N.W.2d at 590. We hold that the district court did not err by concluding that Sommer’s
causation opinion lacked foundational reliability and by granting Lycoming’s post -trial
JMOL motion. Because we affirm JMOL in favor of Lycoming, we need not address
Lycoming’s conditional cross-appeal of the district court’s denial of its motion for a new
trial on the issue of damages or Kedrowski’s challenge to the district court’s grant of a new
trial on the issue of liability.
Affirmed.
D-1
RANDALL, Judge (dissenting)
“A plane fell out of the sky. The fuel pump failed.”
I respectfully dissent.
The district court improperly substituted its own judgment for the judgment of an
expert, should not have interfered with fact questions left to the jury, and should not have
taken away the jury’s consistent verdict.
After the jury reached a plaintiff’s verdict in favor of appellant Mark Kedrowski,
the district court granted respondent Lycoming Engine’s (Lycoming) motion for judgment
as a matter of law (JMOL) on the basis that the causation opinion of Kedrowski’s expert,
Donald Sommer, was improperly admi tted during the trial. The district court determined
that several of Sommer’s opinions relating to the cause of Kedrowski’s airplane crash
lacked “foundational reliability.” In the same order, the district court denied in part
Lycoming’s motion for a new trial on the issue of damages. Kedrowski appeals the
dismissal of his action. Lycoming filed a conditional cross -appeal for a new trial on
damages in the event of a remand.
Minnesota appellate courts “review a district court’s evidentiary rulings, inclu ding
rulings on foundational reliability, for an abuse of discretion.” Doe v. Archdiocese of
St. Paul, 817 N.W.2d 150, 164 (Minn. 2012). Minn. R. Evid. 702, which governs the
admissibility of expert testimony, directs district courts in considering the f oundational
reliability of an expert’s testimony to: (1) analyze the testimony in light of its proposed
purpose, (2) take into account the underlying reliability, consistency, and accuracy of the
D-2
testimony’s subject matter, and (3) determine whether the pr offered testimony is reliable.
Id. at 167-68.
For testimony based on a scientific test to be foundationally reliable, the test itself
must be reliable and its administration must conform to procedures that ensure its
reliability. Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co. , 615 N.W.2d 819, 824 (Minn.
2000). But, an expert’s extrapolations from a test necessarily go to the weight, not the
admissibility, of his testimony . See id. at 824-25 (plaintiff’s expert’s extrapolation from
positive asbestos sampl es goes to the weight of his opinion regarding the likelihood that
individuals may develop a compensable illness in the future); LeMieux v. Bishop , 296
Minn. 372, 381, 209 N.W.2d 379, 385 (1973) (“[A]ny error in calculations or in the
assumption of facts o r data upon which the opinion was based goes to the weight of the
testimony, not to its admissibility .” (emphasis added)); see also In re Zurn Pex Plumbing
Prod. Liab. Litig., 644 F.3d 604, 614 (8th Cir. 2011) (noting that “[a]s a general rule, the
factual basis of an expert opinion goes to the credibility of the testimony, not the
admissibility”) (quotation omitted).
The district court determined that Sommer’s evaluation of the accident fuel pump
was based on “inherently unreliable methodology” because h e chose not to test the pump
according to Lycoming’s “Trial Exhibit 91” specifications and failed to precisely follow
the Aero Accessories (Aero) specifications. The district court criticized Sommer for using
parameters from “an unknown document” and for not verifying the accuracy of the
specifications he used. But when there is a dispute regarding “the specific numbers”
applied in an otherwise reliable scientific test, the alleged flaws constitute attacks on the
D-3
accuracy of the expert’s results, not the reliability of his methods. Zurn, 644 F.3d at 614
(quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir.
2003)). By picking and choosing what performance specifications Sommer should have
used in an otherwise reliable flo w-bench test, the district court “selectively identified
certain evidence in the record” in deciding that Sommer’s testimony lacked foundational
reliability. Pfeiffer v. Allina Health Sys., 851 N.W.2d 626, 638 (Minn. App. 2014), review
denied (Minn. Oct. 14, 2014). It is the province of the jury, not the district court, to decide
whether an expert’s opinion is right or wrong. See Sentinel , 615 N.W.2d at 824 -25
(explaining that purported deficiencies in expert witness’s procedures “went to the weight,
rather than the admissibility of [expert’s] testimony”). The district court’s decision to
evaluate Sommer’s parameters of the flow -bench test “intruded upon a function
customarily reserved for the fact-finder at trial.” See Pfeiffer, 851 N.W.2d at 638-39. The
issue was for cross-examination by Lycoming and then for the jury, not the district court.
The majority concludes that, with or without the flow-bench test, Sommer failed to
provide the causal link between the defects in the accident fuel pump and th e airplane’s
crash. The parties do not dispute on appeal that the accident fuel pump suffered from
manufacturing defects.
Kedrowski needed to prove causation to prevail, and it was up to Sommer, his
causation expert, to establish that his opinions were based on factual foundation, not
speculation or conjecture. See Walton v. Jones , 286 N.W.2d 710, 715 (Minn. 1979)
(“[E]xpert testimony must demonstrate a reasonable probability that defendant’s
negligence was the proximate cause of the injury.” (emphasis omitted)). Again, the
D-4
reliability of an expert’s testimony with respect to causation necessarily goes to the
testimony’s “relative weight” and not its admissibility. See Pfeiffer, 851 N.W.2d at 639
(quotation omitted). The majority makes the same error as the district court. The majority
retries Sommer’s opinions and flyspecks every detail of his opinions and the basis for his
conclusions as to causation. The majority then balances the credibility and weight of
Sommer’s testimony, and finds that it lacked the requisite foundation. That issue, the crux
of this case, is for the jury, not for the district court and not for an appellate court on review.
Beyond the flow -bench test, there was other evidence in the record that tends to
corroborate Sommer’s causation opinions. Sommer testified that the dynamometer testing
revealed that the airplane’s engine was operating at 40% less horsepower. Kedrowski also
informed Sommer that in several instances before the crash, the engine would die if the
boost pump was turned off. And the fire chief who spoke to Kedrowski immediately after
the crash testified that Kedrowski told him that the airplane “lost power” before it crashed.
The district court’s explanation that these factors “could be explained by potential c auses
apart from a defective engine -powered fuel pump” implies the district court improperly
weighed the evidence and suggests that the district court inappropriately placed the burden
on Kedrowski to rule out other possible causes. See Schulz v. Feigal, 273 Minn. 470, 476,
142 N.W.2d 84, 89 (1966); see also Jensen v. Linner, 260 Minn. 22, 33, 108 N.W.2d 705,
712 (1961) (explaining that “if the circumstances supporting a theory of negligence are of
greater weight than the evidence supporting the theory of no negligence, then it becomes a
question of fact for the jury”).
D-5
The jury returned answers to 16 interrogatories in a special -verdict form that was
consistent in all respects. The jury found that the accident fuel pump in the airplane’s
engine was defect ive in its manufacturing but not its design. The jury determined that
Lycoming was negligent in testing and inspecting the accident fuel pump and that this
negligence was a direct cause of Kedrowski’s injuries. The jury answered “Yes” to the
following interrogatories:
3. Was the LW-15473 fuel pump that was installed
on plaintiff’s engine at the time of the September
3, 2010 crash in a defective condition
unreasonably dangerous because of a defect in its
manufacture by Kelly Aerospace Power
Systems, Inc.?

4. If you answered “Yes” to Question 3, answer this
question: Was the defective manufacture a direct
cause of any injuries sustained by Mark
Kedrowski?

5. Answer this question only if you answered “Yes”
to Question number 4: Was Kelly Aerospace
Power Systems, Inc. negligent in its manufacture
of the LW-15473 fuel pump?

6. If you answered “Yes” to Question 5, answer this
question: Was the negligence a direct cause of
any injuries sustained by Mark Kedrowski?

7. Answer this question only if you answered “Yes”
to Question number 4: Was Lycoming Engines
negligent in testing or inspecting the LW -15473
fuel pump?

8. If you answered “Yes” to Question 7, answer this
question: Was the negligence a direct cause of
any injuries sustained by Mark Kedrowski?
The jury answered “Yes”.

D-6
The jury, however, answered “No” to this interrogatory:
11. Was Mark Kedrowski negligent with respect to
his own safety on September 3, 2010?
The jury answered “No.”

The trial took several days over the course of a month. Kedrowsk i’s expert,
Sommer, was on the stand testifying for five days. The trial transcript of Sommer’s
testimony was approximately 600 pages. Lycoming’s attorneys had every opportunity, and
then some, to cross-examine and try to break Sommer’s testimony to the jury. They didn’t.
Kedrowski’s injuries from the crash were massive. He underwent extensive
orthopedic surgeries, such as the amputation of his left leg and the complete reconstruction
of his right ankle. Kedrowski suffered massive facial disfigurement, including having
“essentially every bone in his face” broken due to the trauma. By the time the first
responders arrived to the crash, Kedrowski was crying and screaming in pain. Some of the
first responders started crying when they saw Kedrowski. He h ad to undergo significant
neurosurgical procedures and had to re -learn how to walk and read. The jury calculated
$13 million in damages for past pain, disability, disfigurement, embarrassment, and
emotional distress ($10 million), past medical expenses ($ 2 million), and past loss of
earnings ($1 million). The jury calculated damages of $14.7 million for future pain,
disability, disfigurement, embarrassment, and emotional distress ($6 million), future
medical expenses ($5.4 million), and loss of future earnings ($3.3 million).
In November 2014, Lycoming filed motions in limine to exclude Sommer’s tests
and his testimony. The district court denied these motions. The court concluded it would
reserve ruling on the admissibility of Sommer’s testimony relating to the tests until trial,
D-7
when the evidence, foundation, and objections were provided for on the record. Lycoming
made several foundation objections to Sommer’s testimony during trial. These objections
were overruled by the district court. Importantly, when Sommer testified that the accident
fuel pump “wasn’t coming anywhere near the specifications that we received,” the district
court overruled Lycoming’s objection for lack of foundation. In denying Lycoming’s
motion for JMOL at the end of Kedrowski’s case-in-chief, the district court stated the
following ruling on the record:
A jury can conclude based on the evidence adduced and
there are reasonable inferences supporting the conclusion that
the engine lost power without necessarily turning off, that d ue
to the propeller evidence, the engine was not under power at
the time of impact. A jury could reasonably infer that other
possible causes of engine failure or loss of power due to the
mechanical operation of the engine were ruled out. Based on
the expert testimony of McSwain and Sommer, a jury could
conclude that the fuel pump did not meet specifications
applicable to it.

There's going to be debate, and there is a debate as to
whether Mr. Ehrlich's supplied numbers are accurate, whether
Mr. Sommer misun derstood them, and Mr. Seader, and
whether they misunderstood the use of those numbers, but
those inconsistencies are an issue for the jury to resolve and are
not for me to resolve as a matter of law because they are subject
to debate.

. . . .

The standard is a reasonable probability that the injury
occurred due to the defendant's conduct, and that it was more
likely to have occurred from the defendant's conduct tha[n]
anything else. The caselaw further indicates that causation
issues are generally matters of fact for the jury, and only in the
clearest of cases does the question become one of law, and this
is not so clear a case. In fact, it's a close case.

D-8
With the above ruling by the district court, there is nothing left in this case but to re verse
and reinstate the jury’s verdict!
The district court was correct in its analysis. Only a few things changed after the
district court denied Lycoming’s motion to strike the expert’s opinion. First, the district
court received Lycoming’s presentation of evidence––much of which interpreted the data
and analysis of Kedrowski’s experts. And any discrepancy between the methods used by
these competing experts goes to the weight of their opinions. See Rainforest Cafe, Inc. v.
State of Wis. Inv. Bd. , 677 N .W.2d 443, 451 (Minn. App. 2004) (stating that “[ w]hen
conflicting opinions of expert witnesses have a reasonable basis in fact, the trier of fact
must decide who is right ” (alteration in original) (quotation omitted)). Second, the jury
returned its verdict which, as detailed above, was both consistent and decisive.
The district court granted Lycoming’s JMOL motion under Minn. R. Civ. P.
50.01(a). A JMOL motion should only be granted in “unequivocal cases.” Moore v. Hoff,
821 N.W.2d 591, 595 (Minn. App. 2012) (quotation omitted); see also Longbehn v.
Schoenrock, 727 N.W.2d 153, 159 (Minn. App. 2007) (“The jury’s verdict will not be set
aside if it can be sustained on any reasonable theory of the evidence.” (quotation omitted)).
Somehow, this case went light years from the district court’s ruling that it was a
“close case” to an “unequivocal case!” The district court denied Lycoming’s motions in
limine, repeatedly overruled Lycoming’s foundation objections, and denied Lycoming’s
JMOL motion halfway thro ugh trial. The district court’s change in course to grant
Lycoming’s post-trial JMOL motion is inexplicable.
D-9
In light of the rulings on this record, the granting of the post-trial JMOL motion was
a severe abuse of the district court’s discretion. The M innesota Court of Appeals should
not compound that error.
I would reverse the district court’s decision to grant Lycoming’s post -trial JMOL,
reinstate the jury’s verdict, and direct the district court to enter judgment in favor of
Kedrowski.
I would deny Lycoming’s conditional appeal for a new trial on the issue of damages.
“Kedrowski earned his money.”
I dissent.