Aviation Expert’s Testimony on Flight Attendant Conduct Excluded
Posted on May 9, 2025 by Expert Witness Profiler
In this personal injury case, Plaintiff Ana Maria Marcela Tavantzis (“Tavantzis”), individually and on behalf of her husband, Jesus Plascencia (“Plasencia”), alleged Defendant American Airlines, Inc. (“American”) was responsible for a stroke Plasencia suffered just prior to landing on an international flight from Miami to Madrid, Spain.
Plaintiff’s expert Captain Richard J. Levy advanced three opinions related to three critical periods before and during the flight at issue: (1) just before takeoff when the pilot spoke with Plaintiffs; (2) when Plasencia presented stroke symptoms an hour and a half into the flight; and (3) when the pilot landed in Madrid.
American argued that the Court should exclude Levy’s opinions because the opinions (1) are unreliable under the Daubert standard; (2) exceed the scope of his aviation expertise; (3) rely on destroyed data; and (4) supplant the jury’s function by opining on the ultimate facts.
Aviation Expert Witness
Captain Richard J. Levy flew forty-one years at a major international airline, American Airlines, until the mandatory retirement age of 65 in June of 2018.
He has decades of flight experience in both the commercial and military field. Since his retirement, he has been conducting simulator and classroom training as a Flight Crew Training Instructor at another major airline, Southwest Airlines.
Discussion by the Court
Reliability
American disputed the reliability of Levy’s experience as the basis for his opinions.
To support this contention, American advanced three reasons:
- First, American argued that Levy’s testimony is unreliable because it does not explicitly “set forth what Levy was asked to opine on.”
- Second, American argued that Levy’s opinions are unreliable because his opinions did not cite directly to the record or engage in sufficient “analysis.”
- Finally, American contended that Levy’s opinions are irrelevant because they did not have “any tendency to make a fact more or less probable than it would be without the evidence.”
Analysis
American never explains why the imprecision surrounding the scope of Levy’s engagement renders his opinions unreliable. What Levy thought the contours of his assignment were has no bearing on his qualifications or experience; the Court held that he is still a flight training instructor who for 41 years served as a commercial pilot for Defendant American Airlines.
Moreover, the facts of this case are not so complicated that it requires citations to the record to understand the context of Levy’s opinions. His opinions reflect the application of his specialized knowledge and experience to the straightforward facts of this case, which he describes at the outset of his report. Because Plaintiffs submitted Levy as an expert for his experience, Levy need not have conducted any “analysis” in the manner American insisted he must.
Besides, the Court determined that Levy’s opinions make some facts more or less probable, if the American flight in this case had sufficient fuel for the pilot to turn the plane around if Plasencia presented stroke symptoms an hour and a half into the flight (a fact that is disputed by the parties).
Scope
American specifically challenged Levy’s statements regarding the proper conduct of American employees, other than the pilot, who were working on the aircraft during Plaintiffs’ flight. As an expert, Levy is allowed to make certain factual assumptions within his opinions.
However, considering Levy’s experience was as a pilot, not a flight attendant, the Court held that he is not qualified to opine on whether the flight attendants on board contravened policy or acted negligently.
The Court excluded all portions of Levy’s testimony that opine on the behavior, conduct, or propriety of any American employee other than the pilot.
Origin of Flight Track Data
The flight data that Levy used in his report is reliable. American argued otherwise, suggesting that the flight data was suspect because it was obtained from third party FlightRadar24 and is now no longer available on that site.
Plaintiffs responded that the limited data that Levy relied upon—a cropped rendering of the flight path after an hour and a half of flight time—was provided to American. The Court deemed it sufficient under Civil Procedure Rule 26.
Ultimate Issue
In this case, American conflates factual issues and legal issues; experts are only proscribed from opining on the latter when it goes to the ultimate issue in the case.
The Court held that Levy does not opine on any legal issues, so there is no reason to exclude Levy’s proffered testimony on those grounds.
Held
The Court granted in part and denied in part American’s Daubert motion to exclude the opinions of Plaintiffs’ expert, Ret. Captain Richard J. Levy.
Key Takeaway:
Levy goes beyond the scope of his expertise to opine on the proper conduct of American employees, other than the pilot, who were working on the aircraft during Plaintiffs’ flight. After all, Levy’s experience was as a pilot, not a flight attendant.
Case Details:
| Case Caption: | Tavantzis V. American Airlines, Inc. |
| Docket Number: | 5:23cv5607 |
| Court Name: | United States District Court, California Northern |
| Order Date: | 5:23cv5607 |
