On May 15, 2018, in an unpublished decision, the Minnesota Court of Appeals affirmed an August 2016 decision from the Ramsey County District Court granting judgment as a matter of law in favor of HKM’s aviation client following a month long trial and subsequent adverse verdict.
The Plaintiff, Mark Kedrowski, was severely injured following a September 2010 airplane crash in Lake Elmo, MN. Mr. Kedrowski was the pilot, and sole passenger, of a small amateur built kit airplane that went down shortly after takeoff. Mr. Kedrowski, through his experts, alleged that the airplane lost power due a defect with his engine’s fuel pump. The defendant engine manufacturer denied that the fuel pump caused the accident and instead asserted that the cause of the accident was pilot error.
The case was tried in January and February, 2016. The Plaintiff’s defect and causation theory was offered through the testimony of his expert, Don Sommer, who claimed that certain tests he performed demonstrated the inability of the fuel pump to provide sufficient fuel to power the engine. HKM disputed every aspect of Mr. Sommer’s causation opinions, and specifically argued that Mr. Sommer had no foundation to support those opinions given his flawed testing methodology, and given other inconsistencies with his testimony. Despite these arguments, the trial court permitted Mr. Sommer’s testimony - at least initially.
The jury subsequently returned a verdict in excess of $27 million. HKM, on behalf of its client, filed post-trial motions seeking judgment as a matter of law or a new trial. HKM argued that the trial court erred in allowing Mr. Sommer’s opinions on causation, and that Plaintiff’s counsel engaged in misconduct during the trial that unfairly prejudiced the jury.
After a thorough review of the record, and the inconsistent testimony of Mr. Sommer, the trial court agreed that it committed error in allowing Mr. Sommer’s speculative opinions, and reversed its previous decision. The trial court concluded that Mr. Sommer’s testimony was baseless and could not support the causation theory, excluded the opinion, and ultimately granted the defendant judgment as a matter of law finding that Plaintiff could not sustain his burden of proof absent Mr. Sommer’s testimony. The trial court also found, in the alternative, that Plaintiff’s counsel had engaged in pervasive misconduct throughout trial that unfairly prejudiced the defendant; thus a new trial would be required on liability even if Mr. Sommer’s opinions were allowed. Mr. Kedrowski appealed.
After nearly a year of written filings and arguments, the Court of Appeals issued a decision agreeing with the trial court’s decision to exclude Mr. Sommer’s causation opinions and to grant judgment as a matter of law in favor of the defendant. The Court of Appeals determined that Mr. Sommer had failed to follow his own guidelines in conducting his tests and rendering his opinions, and that Mr. Sommer’s failures resulted in opinions that were speculative and baseless. The Court of Appeals - applying long standing rules governing the admissibility of expert testimony - therefore concurred with the trial court that Mr. Sommer should not have been allowed to testify regarding the cause of the accident, and that judgment as a matter of law in favor of the defendant was appropriate. Because judgment as a matter of law was affirmed, the Court of Appeals did not need to reach the issue of whether the trial court properly determined a new trial was merited due to attorney misconduct.
Dan Haws focuses his practice on the areas of Aviation Litigation, Product Liability, Commercial Litigation, Financial Services and Business Litigation, Insurance Related Litigation, and Transportation Litigation. He has successfully tried more than 50 jury trials to verdict throughout the Midwest and has handled numerous cases on appeal to the Eighth Circuit Court of Appeals, serving as lead trial counsel on most of the appeals. Dan was elected to the American Board of Trial Advocates (ABOTA. He has an AV® Preeminent™ Peer Review Rating in the distinguished legal directory, Martindale-Hubbell®* and has been selected among America's Top 100 Attorneys®, Lifetime Achievement. He has been selected for inclusion in Minnesota Super Lawyers®, 2003-2017 Editions and was also named a "top personal injury lawyer" in defense by Minnesota Law & Politics. Dan is admitted to practice in all state, federal and appellate courts in Minnesota, Wisconsin and Iowa, and the U.S. District Court – District of North Dakota.
John Paul (J.P.) Gatto has significant trial and appellate experience and focuses his practice on the areas of Aviation Litigation, Product Liability Defense, Commercial Litigation, Construction Litigation, Environmental Litigation, Insurance Related Litigation, and Transportation Litigation. J.P. has tried numerous large loss complex cases to verdict in various state and federal courts. He has represented a wide variety of clients from large corporations, including aviation manufacturers, equipment manufacturers and pharmaceutical manufacturers, to small businesses and individuals. J.P. has handled a wide variety of claims including personal injury, warranty disputes, contract claims, claims for lost profit or business income, claims for violations of trade secrets, issues of insurance coverage, and other general litigation matters up to and through trial and any subsequent appeals. He has been selected for inclusion in Minnesota Rising Stars® since 2014. JP is licensed to practice in the state courts of Minnesota and Wisconsin, as well as Minnesota Federal courts and the Eighth Circuit Court of Appeals.
*AV® is a certification mark of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell® certification procedures, standards and policies.