Opinion
Civ. No. 93-64 (DRD).
November 17, 1998.
Francis G. Fleming, Esq., Robert J. Spragg, Esq. Justin T. Green, Esq., Kreindler Kreindler, New York, New York, Attorneys for Plaintiffs.
Robert D. Billet, Esq., Billet Connor, Turnersville, New Jersey and William V. O'Connor, Esq., Peter T. Kirchen, Esq., Kern Wooley, Los Angeles, California, Attorneys for Defendant McDonnell Douglas Helicopter Co.
Raymond M. Tierney, Jr., Esq., Theodore Stanley Smith, Esq., Shanley Fisher, P.C., Morristown, New Jersey, Attorneys for Defendant General Motors Corp. by and through its Allison Gas Turbine Division.
David N. Zeehandelaar, Esq., Blank, Rome, Comisky McCauley, Cherry Hill, New Jersey, Attorneys for Defendant Robertshaw Controls Co.
Robert J. Brown, Esq., Robert J. Seminara, Esq., Chalos, English Brown, P.A., Clifton, New Jersey, Attorneys for Defendant Astronautics Corporation of America.
OPINION
This is a wrongful death action arising from a helicopter crash which resulted in the death of Chester William Martin, IV. This matter comes before the Court on the motion in limine of plaintiffs, Stanley R. Jones and Charles E. Castle, Jr. ("Plaintiffs"), to exclude defendant General Motors Corporation's ("General Motors" or "GM") animated video exhibits. Oral argument was held on November 9, 1998. For the reasons set forth below, Plaintiffs' motion will be denied.
I. BACKGROUND
On January 15, 1992, Chester William Martin, IV ("Mr. Martin"), was killed when the McDonnell Douglas H369D helicopter that he was piloting crashed in Edison, New Jersey. The helicopter was powered by a model 250-C20B engine manufactured by the Allison Gas Turbine Division of General Motors. Plaintiffs brought this action alleging, inter alia, that the crash was caused by a loss of power due to defects in the helicopter's engine. They have asserted claims predicated on theories of strict products liability, negligence, and breach of warranty against those who manufactured the aircraft and its component parts. Plaintiffs filed a motion, in which defendant Astronautics Corporation of America ("Astronautics") joined, to exclude two computer-animated videotapes offered by General Motors as demonstrative evidence at trial.
For purposes of clarity and brevity, when the term "Plaintiffs" is used in this opinion, it includes the plaintiffs to this action as well as Astronautics.
The computer animation was prepared by Vigani Technical Systems, Inc. ("VTS") of Somerville, New Jersey, using a computer animation software called Lightwave DataLabs. See Vigani Thorpe Cert. ¶ 4. A computer model of the helicopter was used in order to depict the aircraft in the animation sequences. Id. General Motors states that the computer model of the helicopter is an accurate full-scale representation of the real McDonnell Douglas 369 helicopter. Id.
The first videotape is named "Kurt Hobschaidt Observations" and is an animated illustration of the eyewitness observation of Kurt Hobschaidt ("Mr. Hobschaidt"), who saw Mr. Martin's helicopter flying moments before it crashed. Id. ¶ 5. The second videotape is named "Simulated Engine Failure" and is an animated illustration of the opinions regarding the motions of a 369 helicopter in response to an in-flight engine failure of Donald L. Bloom ("Mr. Bloom"), GM's pilot expert. The tape is derived from flight test data recorded by McDonnell Douglas from the flight testing of an actual 369 helicopter.
A. Videotape One
Mr. Hobschaidt was an eyewitness to the flight of Mr. Martin's helicopter moments before it crashed. Id. ¶ 5. Mr. Hobschaidt, who gave a statement to the National Transportation Safety Board ("NTSB") after the accident, is a flight engineer and a commercial airline pilot.See Hobschaidt Cert. ¶ 2; Exhibit A. On the date of the accident, Mr. Hobschaidt was at his home in Edison, New Jersey which was approximately one half mile from the crash sight. In his statement to the NTSB, Mr. Hobschaidt recalled first seeing the aircraft at a one mile distance from him flying level for a period of time. As it made its way closer to where Mr. Hobschaidt lived, he stated that the aircraft started banking from left to right before rolling over nose first as it dropped behind the trees. Id. Exhibit A. General Motors claims that Mr. Hobschaidt's account is important to the case because the helicopter's flight motions provide information as to what may have been happening to the flight controls, systems, or equipment prior to the crash.
To ensure that the jury would have an accurate understanding of the helicopter's motions observed by Mr. Hobschaidt, General Motors retained VTS to work with Mr. Hobschaidt in preparing a computer-animated video illustrating the motions that the aircraft made prior to crashing (the "Hobschaidt Video"). The video contains two separate views of the same flight motions. The second view depicts the same helicopter motions as the first except the camera is positioned closer to the aircraft.
General Motors states that the purpose of this video animation is not to be a reconstruction of the accident but is to be used merely as a demonstrative aid to assist Mr. Hobschaidt at trial in explaining what he saw. Plaintiffs argue that the video is a distortion of Mr. Hobschaidt's view because it is a closer look at the accident sequence than that which Mr. Hobschaidt actually saw. Plaintiffs argue that the videotape provides details that the witness could not have seen from his vantage point. Accordingly, Plaintiffs argue that General Motors cannot lay the foundation for the admission of this tape and that unless Mr. Hobschaidt testifies at trial, the videotape representing what he saw is hearsay and inadmissable.
B. Videotape Two
The second videotape, "Simulated Engine Failure," is intended by GM to be used by Mr. Bloom to help explain his opinions as to the alleged causes of the accident. The animation contains two sequences of the motions of a 369 helicopter in flight. Both sequences are based on Mr. Bloom's interpretation of data generated by McDonnell Douglas's test flights of actual 369 helicopters.
The two animated flight sequences on the videotape are intended to depict the flight characteristics of a 369 helicopter in the event the engine loses power. See Bloom Cert. ¶ 13. The initial sequence shows the motions of the aircraft when the pilot pulls back on the cyclic stick to attempt to keep the helicopter's nose from pitching down. Id. The second animated sequence shows the motions of the aircraft when the cyclic stick is not pulled back. Id.
General Motors states that it does not intend for the "Simulated Engine Failure" videotape to be a reconstruction of the accident sequence. It is, in its opinion, merely a graphic aid which assists Mr. Bloom in presenting his expert opinions to the jury. Plaintiffs contend that the animations are irrelevant and that the videotape is inaccurate in its depiction of both the helicopter and the sequence of events in the course of a power failure.
II. DISCUSSION
Plaintiffs and Astronautics move to exclude both the Hobschaidt Video and the Engine Failure Video because General Motors cannot lay a foundation for the admission of these videos into evidence. Additionally, Plaintiffs argue that the videos do not accurately depict anything relevant to the subject crash. Moreover, Plaintiffs argue that the videos constitute inadmissible hearsay and that they are cumulative of more reliable evidence that will be offered at trial. General Motors opposes Plaintiffs' motion and argues that the videotapes are both relevant to the case and admissible into evidence.
A. Relevance
General Motors seeks to admit the two videotapes into evidence at trial in order demonstrate for the jury its expert witness's testimony and to provide a graphic illustration of an eyewitness's observation. The first hurdle that General Motors must overcome is demonstrating that these videotapes are relevant to the case. Federal Rule of Evidence 401 states that "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. All relevant evidence is generally admissible in court unless a statute or rule proscribes such admission. See Fed.R.Evid. 402. A trial court judge has broad discretion to determine the relevance of proffered evidence. Hamling v. United States, 418 U.S. 87, 124-25 (1974).
Plaintiffs do not contest that Mr. Hobschaidt's testimony is relevant to General Motor's defense in this case. The question then is whether the videotape depiction of what Mr. Hobschaidt saw the day of the crash is relevant evidence. Because the witness's testimony is relevant and admissible, the demonstrative videotape of what the witness saw is also relevant to these proceedings. See Datskow, 826 F. Supp. at 685. The videotape does not claim to be a re-enactment of the crash. General Motors had the tape made in order to aid the witness in describing what he saw. The videotape, therefore, is merely a demonstration of what the witness will testify to and not a suggested re-enactment of the accident.
Likewise, the engine failure videotape is relevant to these proceedings. General Motors intends to call Mr. Bloom so that he may testify to his theory that Mr. Martin's crash was not a result of engine failure. GM's Engine Failure Videotape is an animation of Mr. Bloom's theory and does not purport to be a re-creation of the actual accident. GM contends that the video is only meant to help the trier of fact in this case better understand the expert's opinions. See Datskow v. Teledyne Continental Aircraft Prod., 826 F. Supp. 677, 685 (W.D.N Y 1993). Accordingly, the engine failure videotape is relevant to this action.
B. Admissibility
Although the two videotapes are relevant to this action, they still may be excluded from being introduced as evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 403; Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994); Blancha v. Raymark Indus., 972 F.2d 507 (3d Cir. 1992); Langer v. Monarch Life Ins. Co., 966 F.2d 786 (3d Cir. 1992); Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980). Evidence should be excluded under Rule 403 only sparingly since the evidence excluded is concededly probative. Id. (citing United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990)). The balance under the rule should be struck in favor of admissibility. Id. Rule 403 places in the sound discretion of the trial court the decision to exclude relevant evidence. Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990), cert. denied, 111 S.Ct. 2827 (1991) (citing United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir. 1985), cert. denied, 475 U.S. 1110 (1986)).
1. Hearsay
Plaintiffs first argue that the Hobschaidt Video is inadmissible hearsay and does not fall under any exception to the hearsay rule. Hearsay is an out-of-court statement made by one other than the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Hearsay is generally not admissible at trial. Fed.R.Evid. 802. A statement that is hearsay, however, may still be admitted into evidence at trial if it fits within one of the several exceptions found in Rules 804 and 805.
It is true that the Hobschaidt Video is an animated version of what Mr. Hobschaidt saw the day of the crash and is a portrayal of his proposed testimony. This does not necessarily make the video hearsay. If Mr. Hobschaidt testifies at trial and General Motors has him use the video as an aid in describing what he witnessed that day, the video is not hearsay and is merely a classic demonstrative exhibit. General Motors has stated that Mr. Hobschaidt will testify at trial about the very things depicted in the video. Accordingly, this objection to the Hobschaidt Video will be dismissed as premature. If General Motors attempts to introduce this video at trial without Mr. Hobschaidt's accompanying testimony, Plaintiffs will have the opportunity to renew their objection at that time.
Additionally, any argument that the Engine Failure video is hearsay is unfounded. General Motors states that the video is an illustration of their expert's theories. These theories arguably deal with scientific principles relevant to their defense. The video is not hearsay as it is not a statement offered to prove the truth of the matter asserted; rather it is offered to illustrate the expert witness's theory. See Fed.R.Evid. 801(c); Misener v. General Motors, 165 F.R.D. 105, 106-07 (D.Utah 1996).
2. Foundation
Plaintiffs argue that General Motors cannot lay the necessary foundation for the admission into evidence of both videotapes. I am satisfied from reading the certifications of Mr. Hobschaidt, Mr. Bloom, Mr. Vigani, and Dr. Thorpe, however, that General Motors will be able to lay the requisite foundation for the introduction of this material. If they are unable to do so at trial, Plaintiffs will have an opportunity to object at that time. Moreover, Plaintiffs will have the opportunity to cross-examine these witnesses and attempt to refute the effectiveness of the underlying testimony.
3. Prejudice
Plaintiffs also argue that the admission of these two videos will lead to unfair prejudice, confusion of the issues, and the misleading of the jury. Specifically, Plaintiffs contend that the videotapes are prejudicial because they will likely be looked upon by the jury as re-creations of the accident and that the engine failure videotape is misleading because it fails to account for the lowering of the helicopter's "collective" by the pilot. Defendants disagree and state that because these two videotapes are being introduced as illustrations of the testimony of two witnesses and not re-creations of the actual accident, they are not prejudicial and will not confuse or mislead the jury.
Helicopters have three principal flight controls. The cyclic controls the flight attitude of the aircraft in pitch and roll. The anti-torque or rudder pedals control the flight attitude of the helicopter in yaw. The collective is used by the pilot to increase or decrease the lift produced by the rotor blades in order to climb or descend.
There is a fine line between a re-creation of an accident and an illustration of a witness's testimony. Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir. 1996). The practical distinction "`is the difference between a jury believing that they are seeing a repeat of the actual event and a jury understanding that they are seeing an illustration of someone else's opinion of what happened.'" Id. (quotingDatskow, 826 F. Supp. at 686). If the animation is introduced to help the jury understand the witness's opinion as to what happened and is meant to be a visualization of the testimony rather than a re-creation of the accident, then the videotape should be admitted into evidence. General Motors has indicated that both videotapes will be introduced as an aid to the jury and not as a re-creation of the accident. I am satisfied with GM's statement and conclude that the tapes are being offered as a visual aid to the testimony in this case.
To avoid any likelihood of prejudice and to reduce the possibility that the jury might interpret the videotapes to be re-creations of the accident, I will instruct the jury at the time General Motors seeks to introduce the animations that the videos are not meant to be a re-creation of the accident but simply computer pictures to help them understand the opinions and testimony of Mr. Hobschaidt and Mr. Bloom.See Datskow, 826 F. Supp. at 685. I am confident that with such an instruction, Plaintiffs will not suffer any undue prejudice as a result of the computer animation. See Hinkle, 81 F.3d at 425.
Plaintiffs contend that General Motor's failure to account for the lowering of the aircraft's collective in the engine failure video will mislead the jury because it is the lowering of the collective that makes the nose pitch down on this type of helicopter, not the reduction of engine power. Plaintiffs speculate that GM's video will lead the jury to believe that engine failure is what will cause a pitch down effect when, in reality, the pitch down effect shown in the video is caused by pilot input. Plaintiffs contend that if the jury sees what they characterize as a misleading video, the jury will conclude that the accident in the case at bar was not due to engine failure because the aircraft's nose did not pitch downward.
The engine failure video is an illustration of Mr. Bloom's theory about the cause of this accident. Mr. Bloom's theory contradicts Plaintiffs' contention that only a reduction in the helicopter's collective by the pilot will cause the nose to pitch down. While Mr. Bloom agrees that a reduction in the collective will cause a downward pitch, he also contends that engine failure will cause the same or similar reaction. This is at issue in this case. Plaintiffs argue that engine failure was the cause of the accident while GM argues that something else caused the helicopter to crash. A theory or hypothesis that contradicts one propounded by an opposing party does not become misleading merely because it sets forth a different perspective. Presenting the jury with its expert's theory on the cause of the accident is permissible and the videotape, for the reasons stated above, is nothing more than an illustrative aid. Plaintiffs will have ample opportunity to present their own theories and to cross-examine Mr. Bloom during trial about what they view as the shortcomings of the video animation and his in-court testimony. The video will not be prejudicial and it may well contribute to a full understanding of the positions of all the parties. Accordingly, Plaintiffs' motion to preclude the tapes will be denied.
III. CONCLUSION
For the reasons set forth above, Plaintiffs' renewed motion in limine to exclude the animated videotape exhibits of Defendant General Motors will be denied. An appropriate order will issue.
O R D E R
This matter comes before the Court on the motion in limine of plaintiffs, Stanley R. Jones and Charles E. Castle, Jr. ("Plaintiffs"), to exclude defendant General Motors Corporation's ("General Motors") animated video exhibits. Oral argument was held on November 9, 1998; and consistent with this Court's opinion of even date;
IT IS this 17th day of November, 1998, hereby
ORDERED that Plaintiffs' motion in limine to exclude Defendant General Motor's animated video exhibits be and hereby is DENIED.