Supreme Court, Monroe County, March 29, 2022

Kreindler & Kreindler LLP (Daniel O. Rose and Evan Katin-Borland of counsel) for plaintiff.

Nixon Peabody (Joseph J. Ortego, Brian C. Dalrymple and Tracey B. Scarpello of counsel) for SOCATA, S.A.S., and another, defendants.

Brown Gavalas & Fromm LLP (Fred G. Wexler of counsel) for Columbia Aircraft Sales, Inc., defendant.

Law Offices of Paul A. Lange LLC (Paul A. Lange of counsel) for Estate of Laurence Glazer.

This case arises out of the crash of a Daher SOCATA TBM 900 aircraft on September 5, 2014, which claimed the lives of Laurence (also known as Larry) Glazer and his wife, Jane Glazer. Plaintiff Kenneth Glazer, individually and on behalf of the estates of Laurence and Jane Glazer, commenced this action alleging that the aircraft's pressurization system was defective in that it allowed an unsafe cabin depressurization to occur due to the allegedly defective design of the aircraft's pressurization system and certain components thereof, setting forth claims for strict products liability, negligence, and implied warranty against defendants SOCATA (Daher Aerospace SA, sued as and successor-by-merger to SOCATA, S.A.S., and Daher Aircraft, Inc., sued as and formerly known as SOCATA North America, Inc.) and defendant Columbia Aircraft Sales, [*2]Inc.^[FN1]

Before the court are the following motions: (1) defendant SOCATA's notice of motion seeking exclusion of prior incidents dated September 17, 2021;^[FN2] (2) defendant SOCATA's notice of motion to exclude evidence of post-accident remedial measures dated September 17, 2021;^[FN3] (3) plaintiff's notice of motion to exclude defendants' expert Buza dated September 17, 2021;^[FN4] (4) defendant SOCATA's notice of motion to exclude plaintiff's experts Sommer, Bloomfield, Mallak, Carden, and Doss dated{**75 Misc 3d at 609} September 17, 2021;^[FN5] (5) plaintiff's notice of motion to exclude defendants' expert Downey dated September 17, 2021;^[FN6] (6) plaintiff's notice of motion to exclude defendants' expert Fowler dated September 17, 2021;^[FN7] (7) plaintiff's notice [*3]of motion to exclude defendants' expert Wall dated September 17, 2021;^[FN8] (8) defendant SOCATA's notice of motion to exclude plaintiff's experts Moore and Gabinetti dated September 17, 2021;^[FN9] (9) defendant SOCATA's notice of motion for summary judgment dated September 17, 2021;^[FN10] and (10) defendant Columbia Aircraft Sales, Inc.'s notice of cross motion for summary judgment dated September 21, 2021.^[FN11] Each motion shall be addressed seriatim.

Defendant SOCATA's Motion to Exclude Prior Incidents^[FN12]

Plaintiff's theory of the cause of the accident, as it is relevant to the issues herein, is that defendant SOCATA designed{**75 Misc 3d at 610} a cabin pressurization system that relied upon an overheat thermal switch (OTSW) to shut down "bleed air" from the engine when that air became too hot (in order to protect components of the pressurization system). According to plaintiff, due to a faulty design, the OTSW in Mr. Glazer's TBM 900 plane became damaged,^[FN13] rendering a false signal to the computer controller operating the pressurization system resulting in: (1) a warning message informing Mr. Glazer of the fault, and requiring him to engage in corrective action that would be fruitless; and (2) improperly turning off the bleed air that pressurized the cabin while Mr. Glazer was operating the plane at an ambient air pressure of 25,000 feet. This resulted in a depressurization of the cabin air pressure from 10,000 feet to 25,000 feet over a short period of time, leading to Mr. Glazer suffering hypoxia, loss of consciousness, and eventual death.^[FN14]

Defendant SOCATA has moved to preclude the plaintiff from admitting evidence that on eight occasions prior to the subject accident faulty OTSWs in other SOCATA planes caused a "bleed air" warning light, and/or a bleed air shutoff depressurization event. These prior incidents were memorialized in Technical Trouble Reports (TTR)^[FN15] that were provided to the National Transportation Safety Board (NTSB) as part of their investigation. SOCATA argues that these TTRs, and the information contained therein, are inadmissible as they describe events that are not "substantially similar" to the subject accident, citing Hyde v County of Rensselaer (51 NY2d 927 [1980]).^[FN16]{**75 Misc 3d at 611}

[1] Defendant SOCATA argues that for a prior incident to be admissible, it must be "virtually identical in nature to the incident at issue" and occur under the same factual circumstances as the subject incident. SOCATA points to dissimilar facts in each incident outlined in the relevant TTRs (and warranty claim) as compared to the Glazer subject incident, such as the differences in operation of the plane (altitude, engine power settings, weather, etc.), arguing that as these variables do not align with the Glazer accident, the prior incidents are inadmissible. The court disagrees.

" 'Substantial similarity depends upon the underlying theory of the case,' Four Corners Helicopters, Inc. v. Turbomeca S.A., 979 F.2d 1434 (10th Cir.1992), and is defined by the particular defect at issue, Jackson v. Firestone Tire & Rubber, 788 F.2d 1070, 1083 (5th Cir.1986)." (Guild v General Motors Corp., 53 F Supp 2d 363, 367 [WD NY 1999].) The relevant question to be determined is whether the incidents described in the TTRs and warranty claim were "substantially similar" to the plaintiff's theory of causation in the case at bar—that the OTSW in Mr. Glazer's plane provided a false signal to the air system controller resulting in a false warning (bleed temp) and eventual shutdown of the cabin air pressure. Under plaintiff's theory of causation, the variables relied upon by SOCATA to distinguish the prior incidents are immaterial, as the OTSW failures in the prior incidents were not related to how the plane was being operated at the time of the "bleed temp" warning or depressurization event.^[FN17]

{**75 Misc 3d at 612}A review of the TTRs and warranty claim establishes that all involved a "bleed temp" message activation during operation of the planes. Under plaintiff's theory, these activations were also due to defective OTSWs; indeed, several of the TTRs and the warranty claim note that the relevant OTSW was defective (see TTRs 1127, 2196, 2211; warranty claim). Thus, the court finds that they are "substantially similar" and thus admissible.

SOCATA also argues that as the information contained within the TTRs and warranty claim contains hearsay (information about the "temp bleed" warning and depressurization event), they cannot be admitted as business records pursuant to CPLR 4518 (a). The court disagrees.

The TTRs are clearly business records, as they are forms created by SOCATA's employees, or by the employees of entities servicing SOCATA manufactured planes, and the information contained therein is used by SOCATA to "track technical troubles with its aircraft." (NYSCEF Doc No. 396, Bives tr at 112.) A review of the TTRs and the warranty claim (also a business record kept by SOCATA) shows that they do contain information gleaned from the pilot of the plane about the event that had necessitated the creation of the TTR. The court finds that this information is admissible as well.

In Pencom Sys. v Shapiro (237 AD2d 144 [1st Dept 1997]) the First Department considered whether hearsay information contained in business records kept by the plaintiff was admissible. The Court held:

"Plaintiff's recruiters were under a business duty to record contemporaneously statements that were made and events that took place in the course of their contacts with job applicants, and they regularly relied upon such information in matching applicants with possible employers. In addition, the desire of the applicant to secure a better position, the recruiter's reliance on the information provided, and the applicant's awareness of that reliance created an equivalent business duty on the part of the applicant to accurately respond to the recruiter's inquiries regarding his or her reasons for changing jobs, job and salary requirements, and interest in the recruiter's offers of placement. These contemporaneous business duties gave the records in question{**75 Misc 3d at 613} sufficient indicia of reliability to qualify as business records. The lack of personal knowledge on the part of the person entering the information into the database goes to its weight, not admissibility (CPLR 4518 [a])." (Id. at 144 [citations omitted].)

The same factors the Court in Pencom considered in determining that the records were admissible in that case are present here. The desire of the pilots of the planes referenced in the TTRs and warranty claim to have the issue raised by them satisfactorily resolved, SOCATA's reliance on that information to troubleshoot the issue, and the pilots' awareness of that reliance created "an equivalent business duty" on the part of the pilot to accurately convey the information contained in the TTRs and warranty claim. (Id.)

Furthermore, the information that SOCATA argues is hearsay is clearly information that is incorporated into SOCATA's own records and routinely relied upon by SOCATA to [*4]troubleshoot, and remedy, defects. (See e.g. State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [3d Dept 2012] [records admissible "if the recipient can establish personal knowledge of the maker's business practices and procedures, or that the records provided by the maker were incorporated into the recipient's own records or routinely relied upon by the recipient in its business"], lv denied 20 NY3d 858 [2013].)

Additionally, the information has other indicia of reliability. The court takes notice of the fact that the information provided by pilots in the disputed TTRs and warranty claim involves the operation of the air cabin pressurization system of a plane, an inherently dangerous condition. The pilots had every reason to be truthful about the information being imparted to SOCATA and/or its agents.^[FN18] In this sense, the TTRs—being used to diagnose problems with a plane—are akin to medical records which

"are trustworthy as they are 'designed to be "relied upon in affairs of life and death" ' (Williams, 309 NY at 288, quoting 6 Wigmore, Evidence § 1707, at {**75 Misc 3d at 614}36 [3d ed 1940]) and as they reflect the condition of a patient who has the clear motivation to report accurately. Hospital records fall within the business records exception when they 'reflect[ ] acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of . . . [the particular patient's] hospitalization' (Williams, 309 NY at 287 [internal quotation marks and citations omitted])." (People v Ortega, 15 NY3d 610, 617 [2010]; see also Fed Rules Evid rule 803 [4].)

Finally, to the extent the content of the reports is relied upon by plaintiff's experts in explaining their conclusions, they are admissible. "An expert may rely on hearsay in rendering an opinion provided that it is 'of a kind accepted in the profession as reliable in forming a professional opinion' (People v Sugden, 35 NY2d 453, 460 [1974]; see Greene v Xerox Corp., 244 AD2d 877, 877-878 [1997], lv denied 91 NY2d 809 [1998])." (Woodhouse v Bombardier Motor Corp. of Am., 5 AD3d 1029, 1030 [4th Dept 2004].)

Thus, the TTRs and warranty claim are admissible. Defendant SOCATA's motion to exclude the TTRs and warranty claim is denied.

Defendant SOCATA's Motion to Exclude Evidence of Remedial Measures^[FN19]

Defendant SOCATA moves to exclude evidence of post-accident remedial measures made by SOCATA. These measures include: (1) revising the Pilot Operating Handbook (hereinafter POH) to prioritize the use of oxygen masks in certain emergency checklists; (2) modifying the Crew Alerting System to include a message stating "USE OXYGEN MASK" and three aural/voice messages stating "use oxygen mask"; (3) adding "memory items"^[FN20] to the POH; (4) adding a "Quick Reference Handbook" to instruct pilots to don the oxygen mask following a "BLEED OFF" and "CABIN ALTITUDE" message; (5) [*5]incorporating an Emergency Descent Mode; and (6) issuing two{**75 Misc 3d at 615} service bulletins designed to modify the air system controller to reduce possible "BLEED OFF" situations.^[FN21]

SOCATA argues that evidence of the remedial measures, and any facts uncovered during the post-accident investigation conducted by SOCATA which led to the remedial measures, are not admissible.

The plaintiff concedes that subsequent remedial measures are inadmissible to establish culpable conduct, including negligence or defect in a strict products liability case. However, plaintiff argues that evidence of post-accident remedial measures may be admissible when offered for another purpose, such as impeachment or to rebut a claim of contributory negligence.^[FN22] Plaintiff also argues that facts determined during SOCATA's post-accident investigation (and the investigation of the National Transportation Safety Board) are admissible.

The rule against admission of post-accident remedial measures taken by defendants in response to an alleged defect to prove negligence or culpable conduct is one grounded upon public policy and evidentiary grounds. Manufacturers should not be penalized when they improve their products in response to an alleged defect by the introduction of evidence of those improvements to establish negligence in a later suit. Similarly, courts have found that post-accident remedial measures have weak evidentiary value, as the determination of negligence is done on the evidence of what the defendant was aware of at the time of the accident.^[FN23]{**75 Misc 3d at 616}

[2] For these reasons, such evidence is not admissible by plaintiff herein on their case-in-chief. (Haran v Union Carbide Corp., 68 NY2d 710 [1986]; Cover v Cohen, 61 NY2d 261 [1984].)

Similarly, although SOCATA's affirmative defenses and counterclaims raise potential fact issues as to whether Larry Glazer, as pilot, was negligent, and that such negligence was the sole, proximate cause of the subject accident, the court declines to adopt the rule suggested by plaintiff that any allegation of contributory negligence and/or a counterclaim allows the admission of remedial measures.

Courts have differed on whether to allow evidence of post-accident remedial measures to rebut a contributory negligence claim, some have admitted such evidence, others have denied admission. (Compare Pitasi v Stratton Corp., 968 F2d 1558 [2d Cir 1992] [allowing admission]; Fasanaro v Mooney [*6]Aircraft Corp., 687 F Supp 482, 486 [ND Cal 1988] ["Plaintiff's attempt to phrase her argument for introduction of this evidence as a rebuttal of Mooney's contributory negligence defense is purely semantic. She argues that the aircraft engine stalled due to induction icing, and states that '(e)ach of these remedial measures supports plaintiff's theory that induction icing . . . caused the series of failures that sent the Mooney 231 plummeting to the ground.' Plaintiff's Memorandum, at 12. Yet plaintiff alleges that the engine failure was caused by Mooney's negligence. Complaint, Second Cause of Action, ¶ IV. In other words, she argues that the decedent was not contributorily negligent because the defendant was negligent. Under Rule 407 evidence of subsequent remedial measures is not admissable (sic) to show negligence" (emphasis omitted)].)

As the underlying tenets of the rule prohibiting the admission of post-accident remedial measures are based on public policy and a recognition that such evidence is of weak probative value to determine negligence (Caprara v Chrysler Corp.), the court will not allow the admission of post-accident remedial measures undertaken by SOCATA to "rebut" the comparative negligence claims made by SOCATA in defending this action. This court agrees with the decisions of other courts that have held that as evidence of post-accident remedial measures is inadmissible to prove negligence, it is similarly inadmissible to prove non-negligence of the plaintiff (i.e., that the accident did not occur due to any negligence of the plaintiff, but only due to the negligence of the defendant—rebutting comparative {**75 Misc 3d at 617}negligence). (See e.g. Johnson v State, Dept. of Transp., 224 Ariz 554, 233 P3d 1133 [2010]; Hardy v Chemetron Corp., 870 F2d 1007 [5th Cir 1989].) Thus, the plaintiff is precluded from admitting evidence of SOCATA's post-accident remedial measures to rebut claims of comparative negligence.

The rule precluding admission of post-accident remedial measures is not absolute, however. There are exclusions to the general rule, including the use of post-accident remedial measures to impeach a witness. Courts have allowed evidence of post-accident remedial measures to impeach assertions made by defense witnesses in products liability cases. ("The impeachment exception to Rule 407 is necessary to prevent litigants from taking 'unfair advantage' of the Rule by adopting a position at trial that is inconsistent with their previous decision to take remedial measures after the accident. Wood v. Morbark Indus., Inc., 70 F.3d 1201, 1208 [11th Cir.1995] [evidence of subsequent modifications can be introduced to rebut testimony that 'left the jury with the impression that (the defendant) had made no modifications to the (product)']; see also In re Air Crash Disaster, 86 F.3d 498, 531 [6th Cir.1996] [evidence of subsequent design changes to correct deficiencies is admissible to rebut a witness's claim that the product was 'state of the art']; Polythane Sys., Inc. v. Marina Ventures Int'l., Ltd., 993 F.2d 1201, 1210-11 [5th Cir.1993] [evidence of subsequent modifications is admissible to impeach testimony that the product was 'one of the strongest in the world']." [Minter v Prime Equip. Co., 451 F3d 1196, 1212 (10th Cir 2006).])

For example, in Muzyka v Remington Arms Co., Inc. (774 F2d 1309 [5th Cir 1985]) the United States Court of Appeals, Fifth Circuit, held that the trial court erred in not allowing design modification evidence as impeachment in a products liability case involving a rifle that was alleged to have improperly discharged. The court held that the evidence was relevant to impeach the testimony of defense expert witnesses that the product in question (the rifle) was the "ultimate in gun safety." (Id. at 1313; see also Wood v Morbark Indus., Inc., 70 F3d 1201 [11th Cir 1995]; Bolm v Triumph Corp., 71 AD2d 429, 436 [4th Dept 1979].)

Similarly, where defense experts have testified that warnings (in a failure to warn case) were unnecessary as the risks were obvious or apparent, courts have allowed evidence of post-accident [*7]remedial measures for impeachment purposes. (See e.g. Pitasi v Stratton Corp., 968 F2d 1558 [2d Cir 1992];{**75 Misc 3d at 618} Toups v Sears, Roebuck and Co., Inc., 507 So 2d 809 [La 1987]; Bickerstaff v South Cent. Bell Tel. Co., 676 F2d 163 [5th Cir 1982].) Courts must exercise significant caution in determining that evidence of post-accident remedial measures is admissible for impeachment purposes, and only to the extent needed to properly impeach, to avoid unnecessarily violating the tenets of the underlying rule.

It is possible that SOCATA's expert witnesses will, through their testimony, "open the door" to impeachment evidence, but a determination of whether to allow evidence of post-accident remedial measures cannot be determined until those experts testify. Here, not knowing what evidence defendant SOCATA will elicit from their experts, the court cannot rule on the admissibility of post-accident remedial measures undertaken by SOCATA for impeachment purposes.

At the conclusion of each defense expert witness's direct testimony, the court will entertain the plaintiff's motion in limine, if any, to admit evidence of subsequent remedial measures to impeach the witness's testimony.^[FN24]

The parties also dispute whether the post-accident investigations and factual determinations made by SOCATA and the National Transportation Safety Board are admissible. SOCATA argues that the rule prohibiting admission of post-accident remedial measures also prohibits the admission of the factual investigations and conclusions which led to those measures being adopted. The plaintiff disputes this, arguing that such evidence is admissible.

[3] SOCATA argues that the "National Transportation Safety Board Aviation Accident Final Report" published by the NTSB on November 14, 2017, is inadmissible. The court agrees. 49 USC § 1154 (b) states: "[n]o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report." However, as conceded by SOCATA, the factual report is admissible.

"Factual accident report means the report containing {**75 Misc 3d at 619}the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports." (49 CFR 835.2.)

Thus, the NTSB Final Report is inadmissible; the factual report is admissible.

Courts have differed as to whether post-accident investigations and factual conclusions by products liability defendants are admissible.^[FN25] Some courts, applying the underlying public policy principles that support prohibition of post-accident remedial measures, prohibit the introduction of such evidence. (See e.g. Martel v Massachusetts Bay Transp. Auth., 403 Mass 1, 4-5, 525 NE2d 662, 664 [1988] ["(h)owever, we think that good public policy also requires the exclusion of the results of the defendant's investigation into the causes of an accident involving its bus. Although not [*8]itself a 'repair' of a dangerous condition, the investigation is the prerequisite to any remedial safety measure. Without discovering the cause of the accident, the defendant can scarcely hope to prevent its recurrence. The investigation is inextricably bound up with the subsequent remedial measures to which it may lead, and questions of admissibility of evidence as to each should be analyzed in conjunction and answered consistently"].)

However, "most courts have interpreted Fed. R. Evid. 407 and state equivalents as excluding only evidence of the actual implementation of a safety improvement, but not the reports or memoranda that lead up to the improvements." (4 Clifford S. Fishman & Anne Toomey McKenna, Jones on Evidence § 21:13 [7th ed 2022] [and cases cited therein].) New York's rule prohibiting introduction of post-accident remedial measures is not predicated upon Federal Rules of Evidence rule 407; instead, it is based upon the recognition that subsequent remedial measures have low probative value (Caprara v Chrysler Corp., 52 NY2d at 122) and for public policy reasons to encourage post-accident repairs. (See e.g. Bolm v Triumph Corp., 71 AD2d 429, 436 [4th Dept 1979] ["The general rule is that evidence of subsequent repairs or other remedial measures is not admissible as proof of negligence or culpability, because the fact that repairs were subsequently made is irrelevant on the{**75 Misc 3d at 620} issue of defendants' lack of care at the time of the accident. The rule is also supported by policy reasons intended to encourage postaccident repairs"].)

However, excluding post-accident investigative reports, and facts contained therein, prepared by defendants in a products liability case does not advance either of the above tenets. Post-accident investigations (in this case conducted by defendant SOCATA and by the NTSB) are vital to determining the facts of what had occurred and thus are highly probative to claims of products liability.

Nor is public policy advanced by excluding products liability plaintiffs from obtaining and using such reports. Certainly, manufacturers should be encouraged to adopt remedial measures designed to lessen or prevent the occurrence of future accidents, and the rule prohibiting admission of evidence of remedial measures supports that policy determination. However, the overarching public policy should be that litigants who are allegedly injured because of a defective product are entitled to probative evidence to establish their claim, and if successful, receive adequate compensation.

Westmoreland v CBS Inc. (601 F Supp 66 [SD NY 1984]) is instructive. There, the court observed:

"CBS contends that receipt of the Report is barred by Rule 407, Fed.R.Evid. and judge-made doctrine to the effect that subsequent remedial measures may not be received as an admission of prior culpable conduct. The doctrine, however, does not go as far as CBS would push it. The fact that subsequent remedial measures are excluded as admissions of fault does not mean that competent evidence resulting from an internal investigation of a mishap must also be excluded. CBS argues: (1) honest self-examination and self-policing should be encouraged; (2) a rule permitting the discovery and the use in evidence of reports of such self-investigations will discourage potential defendants from doing it; therefore, (3) the rule of law should exclude such evidence. The logic of the argument parallels that which underlies Rule 407. See Advisory Committee Note.

"The fault of the argument is not in its logic but in that it goes too far and fails to credit the social value of making available for trial what is often the best source of information. CBS' argument really{**75 Misc 3d at 621} goes beyond the issue of the admissibility of the investigative [*9]report; its logic addresses as well the admissibility of the facts uncovered by the investigation. If the internal investigator uncovered the 'smoking gun,' it is often a cosmetic matter whether this evidence is received as a part of the investigative report or in some other manner. The question of social policy raised by CBS is whether in order to encourage such investigations, their fruits should be shielded from use by adverse claimants. There is, however, no such doctrine either as to the internal investigative report or as to facts revealed by it. In industrial and railroad accident litigation, for example, it is commonplace that such reports, or at least the facts revealed by them, are used by the injured to establish the liability of the company that conducted the investigation in spite of CBS' arguments. Wright v. Farmers Coop of Arkansas & Oklahoma, 681 F.2d 549 (8th Cir.1982); Collins v. Wayne Corp., 621 F.2d 777 (5th Cir.1980); United States v. Lykes, 432 F.2d 1076 (5th Cir.1970); Southern Ry. Co. v. Lanham, 403 F.2d 119 (5th Cir.1968); Pekelis v. Transcontinental & Western Air, Inc., 187 F.2d 122, 128-129 (2d Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1020, 95 L.Ed. 1374 (1951); see also Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y.1971). To establish a rule forbidding such use would deprive injured claimants of one of the best and most accurate sources of evidence and information." (Id. at 67-68.)

The court agrees. Public policy would be advanced by allowing litigants access to the facts elicited during the investigation and any reports, and allowing those reports to be admitted into evidence to support their claims, subject to appropriate redaction to comply with the rule that post-accident remedial measures are not admissible. (See Rocky Mtn. Helicopters, Inc. v Bell Helicopters Textron, a Div. of Textron, Inc., 805 F2d 907, 918-919 [10th Cir 1986] ["We believe that the policy considerations that underlie Rule 407, such as encouraging remedial measures, are not as vigorously implicated where investigative tests and reports are concerned. To the extent that such policy concerns are implicated, they are outweighed by what the Westmoreland court referred to as the danger of depriving 'injured{**75 Misc 3d at 622}claimants of one of the best and most accurate sources of evidence and information.' 601 F.Supp. at 68"].)^[FN26]

To strike a balance between the competing public policy provisions, the court will allow the facts determined by the SOCATA investigation, but not the conclusions drawn by SOCATA that informed their decisions in implementing the post-accident remedial measures outlined above.

Thus, the facts determined by SOCATA during its post-accident testing, and the reports generated by SOCATA reflecting these facts, are admissible by plaintiff, subject to redaction to exclude evidence of the subsequent remedial measures implemented by SOCATA.

Plaintiff's Motion to Preclude Dr. Paul Buza^[FN27]

Plaintiff has moved to exclude the opinion evidence of Dr. Paul Buza that "[i]n over 20 years of training pilots, we have not seen anyone become impaired under 18,000 feet." (NYSCEF Doc No. 190, Buza Responsive Rep at 1.) SOCATA opposes, arguing the evidence is necessary to rebut the plaintiff's expert, Dr. Craig Mallak.

For the reasons that follow, the court denies plaintiff's motion.

Plaintiff's principal objection to Dr. Buza's testimony is that it is based upon observational studies conducted by him of over 7,000 pilots who participated in training at the Southern AeroMedical Institute. These pilots participated in a training in which they were placed in a hyperbaric chamber where the air pressure was reduced to simulate conditions pilots would face in a depressurization event, while operating a simulated aircraft. Plaintiff argues that as the conditions individual pilots faced varied,^[FN28] and as the conclusions Dr. Buza draws are based upon the pilots' subjective feedback (as opposed to objective{**75 Misc 3d at 623} measurements), his observations do not meet the standards of admissibility under Frye.^[FN29]

SOCATA responds that Dr. Buza's testimony is necessary to rebut the testimony of Dr. Craig Mallak, who will opine that Larry Glazer suffered "almost immediate impairment"^[FN30] and further opine that, due primarily to his age and the rising cabin altitude, "[s]ometime between 33 seconds and 1:56 seconds, Larry Glazer lost executive function/cognition sufficient to handle the emergency he was presented with." (Id. at 11.)^[FN31]

As the Court of Appeals observed in People v Brown,

"In People v Lee (96 NY2d 157, 162 [2001]), we [*11]recently restated the long-standing general rule that 'the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court.' The role of the trial court is to 'determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized{**75 Misc 3d at 624} knowledge of an expert witness' (People v Cronin, 60 NY2d 430, 433 [1983]). In other words, the trial court must decide whether, depending on the facts of each case, the proffered expert testimony would be helpful in aiding a lay jury reach a verdict (see Lee, 96 NY2d at 162; People v Taylor, 75 NY2d 277, 288 [1990]). As part of this process, the purpose for which the expert testimony is being offered must be examined (see Taylor, 75 NY2d at 292)." (People v Brown, 97 NY2d 500, 505 [2002].)

Certainly, the question of the effects of hypoxia on a pilot's ability to safely fly a plane is beyond the ken of the average juror. Expert testimony on this issue is vital to the jurors' understanding of the underlying issue of the impact of the depressurization event on Mr. Glazer, and whether he had sufficient time to employ emergency procedures prior to losing consciousness. Here, Dr. Buza—as does Dr. Mallak—opines about the impact of the depressurization event on Mr. Glazer. This evidence, as is Dr. Mallak's, is vital to assist the jurors in understanding hypoxia and its impact on decision-making, and will inform the jurors understanding of the evidence presented. As there is no dispositive evidence of how long it took to raise cabin air pressure to ambient air pressure as a result of the depressurization event, and the resultant impact on Mr. Glazer, absent this evidence the jury would be left to speculate as laypersons on the underlying issues of the respective negligence (or absence thereof) of each party. (See People v Cronin, 60 NY2d 430, 432-433 [1983] ["For testimony regarding both the ultimate questions and those of lesser significance, admissibility turns on whether, given the nature of the subject, 'the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.' (Van Wycklen v City of Brooklyn, 118 NY 424, 429; Noah v Bowery Sav. Bank, 225 NY 284, 292)"].)

Although Dr. Buza bases a portion of his opinion on his observations of pilots in his chamber who underwent depressurization events under varying conditions, this does not preclude Dr. Buza from rendering his opinions. Although observational studies are insufficient to prove causation (see Heckstall v Pincus, 19 AD3d 203 [1st Dept 2005]), Dr. Buza's testimony is not offered to establish causation but to allow the jury to determine that Mr. Glazer may have been negligent in failing to employ emergency measures, such as donning his{**75 Misc 3d at 625} oxygen mask. Instead, Dr. Buza is relying upon deductive reasoning to opine about the impact of hypoxia based upon observations of pilots undergoing a hypoxic event.

"Generally, deductive reasoning or extrapolation, even in the absence of medical texts or literature that support a plaintiff's theory of causation under identical circumstances, can be admissible if it is based upon more than mere theoretical speculation or scientific hunch (see Zito v Zabarsky, 28 AD3d at 46; see also Black's Law Dictionary 666 [9th ed 2009] [defining 'extrapolation' as '(t)he process of estimating an unknown value or quantity on the basis of the known range of variables' and '(t)he process of speculating about possible results, based on known facts']). Deduction, extrapolation, drawing inferences from existing data, and analysis are not novel methodologies [*12]and are accepted stages of the scientific process." (Ratner v McNeil-PPC, Inc., 91 AD3d 63, 74 [2d Dept 2011].)

Furthermore, it would be incongruous for the court to exclude Dr. Buza's opinion that was based upon observations of pilots undergoing a hypoxic event, while allowing Dr. Mallak to testify as to his opinions that were gleaned from a review of the relevant literature, some of which is based upon observational studies of participants undergoing a hypoxic event. (See e.g. J.P. Phillips et al., Naval Medical Research Unit Dayton, Hypoxia: Exposure Time Until Significant Performance Effects, NAMRU-D Rep No. 16-19 [reviewed and approved Mar. 7, 2016], referenced in Mallak Rep at 13.)

Thus, plaintiff's motion to exclude Dr. Buza's opinion evidence is denied.

Defendant SOCATA's Motion to Exclude or Limit Opinions of Plaintiff's Experts^[FN32]

Plaintiff's Motion to Exclude Defendant's Expert David Downey^[FN33]

Plaintiff's Motion to Limit the Testimony of Defendant's Expert Gary Fowler^[FN34]

{**75 Misc 3d at 626}Plaintiff's Motion to Exclude the Opinion of Defendant's Expert Richard Wall^[FN35]

Defendant SOCATA's Motion to Exclude Plaintiff's Experts Craig L. Moore and Anthony Gabinetti^[FN36]

SOCATA has moved to exclude plaintiff's experts Donald Sommer, John Bloomfield, Dr. Craig Mallak, William Carden,^[FN37] Rodney Doss, Craig L. Moore, and Anthony Gabinetti on the grounds that one or more are not properly qualified as experts, or they were not properly noticed, or that they were not properly characterized as "rebuttal witnesses" and this violates a prior scheduling order.

Similarly, plaintiff has moved to exclude (or limit) the testimony of SOCATA's experts David Downey, Gary Fowler, and Richard Wall, arguing that one or more are: not properly qualified, not properly noticed, improperly characterized as "responsive experts," and/or engaged in unreliable testing (or failed to conduct necessary computations before rendering an opinion) rendering their respective opinion invalid, or lacking in foundation.

It is well established that the decision to admit expert testimony, and the scope of that testimony, is within the discretion of the trial court. In exercising its discretion, the court finds that each of the plaintiff's and SOCATA's expert witnesses possesses

"the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. (McCormick, Evidence [2d ed], § 13; see, generally, § 10; Wigmore, Evidence, vol 2, §§ 555-567; vol 7, §§ 1917-1929; Richardson, Evidence [10th ed—Prince], §§ 366-368.)" (Matott v Ward, 48 NY2d 455, 459 [1979].)

The court declines to exclude a proffered expert due to a violation of a prior scheduling order. Assuming arguendo that a proffered expert was noticed in violation of such order (or was [*13]mischaracterized as a responsive or rebuttal expert), all parties had an opportunity to depose the expert witnesses of the opposing party, and no party has established any prejudice.{**75 Misc 3d at 627}

As to challenges to plaintiff's expert William Carden, the court finds that SOCATA was not prejudiced by the late notice of the physical examination of the subject evidence, and declines to preclude Mr. Carden's report (Carden Rep I) and testimony relevant thereto.

As to SOCATA's challenge to plaintiff's rebuttal expert, Rodney Doss, the court agrees that references to post-accident remedial measures made by SOCATA are not admissible to rebut a claim made by SOCATA expert David Downey that "[t]he TBM aircraft was properly designed, manufactured . . . ." SOCATA is asserting the usual defense in a products liability case predicated upon a design defect and failure to warn grounds: that the plane, at the time it was designed, was safe. This is not an attempt to mislead the jury, and it is not hyperbole such that post-accident remedial measures would be admissible for impeachment purposes. (Wood v Morbark Indus., Inc.; Polythane Sys., Inc. v Marina Ventures Intl., Ltd., 993 F2d 1201 [5th Cir 1993]; Muzyka v Remington Arms Co., Inc.) A contrary holding would allow post-accident remedial measures to be admitted by the plaintiff during rebuttal simply because SOCATA asserted the traditional defense in a products liability case.

Thus, the plaintiff is precluded from referring to post-accident remedial measures undertaken by SOCATA during the testimony of Rodney Doss to rebut SOCATA's claim the plane was properly designed.^[FN38] Mr. Doss may rely upon the facts uncovered by the post-accident investigations conducted by SOCATA, but not any conclusions drawn by SOCATA which led to the implementation of post-accident remedial measures.

In regard to the foundational arguments raised by the plaintiff to exclude Gary Fowler's testimony and Richard Wall's testimony, the court rejects those arguments. Similarly, the court rejects the foundational arguments raised by SOCATA to{**75 Misc 3d at 628} exclude plaintiff's experts Craig L. Moore and Anthony Gabinetti. (Matott v Ward.)

Defendant SOCATA's Motion for Summary Judgment^[FN39]

Defendant Columbia Aircraft Sales, Inc.'s Motion for Summary Judgment^[FN40]

Defendants SOCATA and Columbia Aircraft Sales, Inc., moved collectively for summary judgment seeking dismissal of the manufacturing defect claim; the design defect claim; failure to warn claim; any claim for damages based upon survival claims; the "loss of inheritance claim"; [*14]and the punitive damages claim.^[FN41]

For the reasons set forth below, summary judgment is granted as to the manufacturing defect claim, any claims for survival damages, and any claims for punitive damages. All other demands for summary judgment are denied.

As plaintiff has conceded that he has not particularized a manufacturing defect claim, or supported such claim through expert testimony,^[FN42] or addressed SOCATA's argument in responsive papers, any such claim has been abandoned. (Donna Prince L. v Waters, 48 AD3d 1137 [4th Dept 2008].) Thus, SOCATA's motion for summary judgment is granted on this ground.

As plaintiff has conceded that he has not offered expert testimony on survival damages on the part of either Mr. or Mrs. Glazer,^[FN43] or addressed SOCATA's argument in responsive papers, any such claim has been abandoned. (Donna Prince L. v Waters.) Thus, SOCATA's motion for summary judgment is granted on this ground.

As to the demand for summary judgment on the design defect claim; failure to warn claim; and the "loss of inheritance claim," there are material questions of fact precluding summary judgment.

A party seeking summary judgment pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate{**75 Misc 3d at 629} the absence of any material issue of fact (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420 [1988]). Summary judgment may only be granted when "it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function" (Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]). Only when the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]).

In light of the conflicting expert opinions, there exists a quintessential battle of the experts and such battles are best left for a jury's resolution and not this court on papers. "Where, as here, a nonmovant's expert affidavit 'squarely opposes' the affirmation of the moving parties' expert, the result is 'a classic battle of the experts that is properly left to a jury for resolution' " (Mason v Adhikary, 159 AD3d 1438, 1439 [4th Dept 2018]; Nowelle B. v Hamilton Med., Inc., 177 AD3d 1256, 1258 [4th Dept 2019]). Thus, on this record and assuming arguendo that the defendants have met their prima facie burden establishing entitlement to summary judgment as a matter of law, plaintiff has raised triable issues of fact in response precluding summary judgment on the design defect claim; failure to warn claim; and the "loss of inheritance claim."^[FN44]

However, SOCATA has established it is entitled to summary judgment on the punitive damages claim.

SOCATA argues that the Death on the High Seas Act (DOHSA) (46 USC § 30301 et seq.) precludes the awarding of {**75 Misc 3d at 630}punitive damages, as DOHSA limits damages to pecuniary damages and preempts New York State law allowing punitive damages. The plaintiff argues that DOHSA does not apply, as it should be interpreted to limit its application to cases in which the incident which causes death occurs more than three nautical miles from the shore of the United States—no matter where death occurs. Here, plaintiff argues, the depressurization event occurred within the borders of the United States, thus DOHSA is inapplicable.

SOCATA, in their statement of material facts, alleged that "Mr. and Mrs. Glazer died when their plane crashed into the high seas near the coast of Jamaica, more than three nautical miles from the shore of the United States." (NYSCEF Doc No. 458 ¶ 12.) Plaintiff's counterstatement of material facts states:

"Plaintiff's Counterstatement 12. Deny except Admit that the cited evidence shows that Larry and Jane Glazer were injured over the U.S. and were alive while the aircraft was over 3 nautical miles from the shore of the United States. Denied to the extent that Plaintiff has presented expert opinion of Pathologist and Medical Examiner Craig Mallak, M.D., that Larry and Jane Glazer died from hypoxia, not from the eventual crash of the aircraft. Rose Aff. Ex. 19 (Mallak Rpt.), p. 5. In response, Daher-Socata cites to evidence that does not support their claim. Plaintiff's interrogatory response only concedes that the plane crashed more than 3 nautical miles from the shore of the United States, not that they died in the crash itself. Ortego Aff. Exhibit F (Plaintiff's Answers to Defendants' Interrogatories No. 15). The evidence that there were signs that Larry and Jane Glazer were still breathing observed by military pilots while they were over the high seas, does not establish that they died when the aircraft impacted the water either. Finally, the fact that the autopsy reports conducted only with access to Larry and Jane Glazer's limited remains, and without the benefit of the factual findings of the subsequent NTSB investigation, listed the crash site as the 'place of death' is only reflective of the limited information available to the medical examiner, not a definitive determination that they were alive at the time of the crash."

Plaintiff concedes that the Glazers, although suffering from a hypoxic event occurring over land, died at a point after the{**75 Misc 3d at 631} plane was over the "high seas." As the Fifth Circuit observed in Motts v M/V GREEN WAVE (210 F3d 565 [5th Cir 2000]):

"As subsequent courts have interpreted DOHSA, however, the statute's application is not limited to negligent acts that actually occur on the high seas. The Supreme Court has repeatedly noted that when the death itself occurs on the high seas, DOHSA applies. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) ('Here, admiralty jurisdiction is expressly provided under DOHSA because the accidental deaths occurred beyond a marine league from shore.'); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 271 n. 20, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) ('Of course, under the Death on the High Seas Act, a wrongful-death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court.'); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) (noting that DOHSA creates 'a remedy in admiralty for wrongful deaths more than three miles from shore'). In those cases, unlike in the instant case, the decedent perished at the site of the accident. But, as Offshore Logistics and several Fifth Circuit decisions have made clear, DOHSA also confers jurisdiction if the decedent is on the high seas at the time he suffers his mortal injury. See 477 U.S. at 224, 106 S.Ct. 2485 ('The reach of DOHSA's substantive provisions was explicitly limited to actions arising from accidents on the high seas. . . .'); Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th Cir.1983) (observing that 'DOHSA applies to accidents occurring beyond a marine league from shore'); Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir.1982) ('[T]he simple fact that Kolb's death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA. . . . The place where the negligence or wrongful act occurs is not decisive. The place injury occurs and the function the injured person was performing are more significant.'); In re Dearborn Marine Serv., Inc., 499 F.2d 263, 272 n. 17 (5th Cir.1974) ('DOHSA has been construed to confer admiralty jurisdiction over claims arising out of airplane crashes on the{**75 Misc 3d at 632} high seas though the negligence alleged to have caused the crash occurred on land.')" (Id. at 569-570.)

Similarly, the Eleventh Circuit, in LaCourse v PAE Worldwide Inc. (980 F3d 1350 [11th Cir 2020], cert denied 593 US —, 141 S Ct 2702 [2021]), noted that despite the DOHSA language, Supreme Court precedent has applied DOHSA to deaths that occur on the high seas even where the negligence occurred over land:

"LaCourse is exactly right that, according to its language, DOHSA applies only when the 'death of an individual is caused by wrongful act, neglect, or default occurring on the high seas.' And she is also right that the alleged 'wrongful act, neglect, or default' here occurred not 'on the high seas,' but on terra firma. Unfortunately for LaCourse, though, we are bound by controlling precedent to reject her plain-text argument. In Offshore Logistics, Inc. v. Tallentire, for instance, the Supreme Court observed that 'admiralty jurisdiction is expressly provided under DOHSA [where] the accidental deaths occurred beyond a marine league from shore.' 477 U.S. 207, 218, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (emphasis added). So too, in In re Dearborn Marine Service, Inc., our predecessor court, whose decisions bind us, recognized that 'DOHSA has been construed to confer admiralty jurisdiction over claims arising out of airplane crashes on the high seas though the negligence alleged to have caused the crash occurred on land.' 499 F.2d 263, 272 n. 17 (5th Cir. 1974) (emphasis added); accord, e.g., Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir. 1982) ('[T]he simple fact that [plaintiff's] death occurred as a result of an aircraft crash into the high seas is alone enough to confer jurisdiction under the DOHSA. . . . [A]dmiralty jurisdiction has repeatedly been extended to cases in which death or injury occurred on navigable waters even though the wrongful [*15]act occurred on land. The place where the negligence or wrongful act occurs is not decisive.') (footnote omitted). It's not for the three of us to second-guess the correctness of Offshore Logistics or Dearborn Marine." (Id. at 1355-1356.)

[4] SOCATA has met its burden in establishing that the deaths of the Glazers occurred more than three nautical miles{**75 Misc 3d at 633} from the shore of the United States. The plaintiff has failed to create an issue of material fact as to where death occurred. Thus, as DOHSA applies, summary judgment is warranted.

Assuming, arguendo, that DOHSA does not apply, the court finds that the plaintiff has not met his burden in establishing a material factual dispute concerning SOCATA's conduct underlying the punitive damages claims. Plaintiff alleges the following facts to support the punitive damages claim:

"Socata also knew, but didn't tell Larry Glazer, that at the time of this marketing scheme that they had not yet developed the training course for the TBM 900 with their training partner, SIMCOM, Ex. 14 (Warnk Depo.), p. 28; they had not developed a Quick Reference Handbook yet, Ex. 10 (Jacques Depo., Vol. II), p. 204; they had not included electronic emergency procedures in the subject aircraft, Ex. 17 (Daher Resp. to 1st Interrogatories), pp. 4-5; and they had not even developed an emergency procedures sheet with SIMCOM, Ex. 18 (Jacques Depo. Vol. III), p. 237; Rose Aff. Ex. 10 (Warnk Depo.) p. 48-49, 54-55, 72. All of these materials should have been delivered with the subject aircraft to make it safe, but were not because of the rush to market by Socata. Certainly, a jury could find that Socata had rushed the TBM 900 to market in the interest of pecuniary gain and under New York law a jury could find that the punitive damages standard of a wanton disregard for the safety of others in the name of financial gain is satisfied."^[FN45]

Punitive damages

" 'may only be awarded for exceptional misconduct which transgresses mere negligence, as when the wrongdoer has acted "maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness" or has engaged in "outrageous or oppressive intentional misconduct" or with "reckless or wanton disregard of safety or rights" '. (Sharapata v Town of Islip, 56 NY2d 332, 335.)" (Camillo v Olympia & York Props. Co., 157 AD2d 34, 46 [1st Dept 1990] [citations omitted].)

The court finds that even in the light most favorable to the plaintiff, the facts alleged by plaintiff do not establish the{**75 Misc 3d at 634} requisite wanton and reckless, or malicious conduct necessary to support a punitive damages claim. Absent from the plaintiff's claims outlined above is any scienter on SOCATA's part of knowledge that their plane was defective at the time it was marketed to Mr. Glazer. Assuming, arguendo, that SOCATA was negligent, their actions did not rise to the "high level of 'moral culpability' " necessary to support an award of punitive damages. (M.H. v Bed Bath & Beyond Inc., 156 AD3d 33, 38 [1st Dept 2017].)

Thus, summary judgment is granted to SOCATA, and the claim for punitive damages is dismissed.

Accordingly, based upon the foregoing, it is hereby ordered that defendant SOCATA's notice of motion seeking exclusion of prior incidents dated September 17, 2021,^[FN46] is denied in its entirety; it is further ordered that defendant SOCATA's notice of motion to exclude evidence of post-accident remedial measures dated September 17, 2021,^[FN47] is granted in part and denied in part; and it is further ordered that plaintiff's notice of motion to exclude defendants' expert{**75 Misc 3d at 635} Buza dated September 17, 2021,^[FN48] is denied; and it is further ordered that defendant SOCATA's notice of motion to exclude plaintiff's experts Sommer, Bloomfield, Mallak, Carden, and Doss dated September 17, 2021,^[FN49] is granted precluding Rodney Doss from relying upon post-accident remedial measures as outlined in this decision, and all other requests for relief are denied; and it is further ordered that plaintiff's notice of motion to exclude defendants' expert Downey dated September 17, 2021,^[FN50] is denied; and it is further ordered that plaintiff's notice of motion to exclude defendants' expert Fowler dated September 17, 2021,^[FN51] is denied; and it is further ordered that plaintiff's notice of motion to exclude defendants' expert Wall dated September 17, 2021,^[FN52] is denied; and it is further ordered that defendant SOCATA's notice of motion to exclude plaintiff's experts Moore and Gabinetti dated September 17, 2021,^[FN53] is denied; and it is further ordered that defendant SOCATA's notice of motion for summary judgment dated September 17, 2021,^[FN54] and defendant Columbia Aircraft Sales, Inc.'s notice of cross motion for summary judgment dated September 21, 2021,^[FN55] is granted in part and the plaintiff's claims of manufacturing defect, survival damages, and punitive damages are dismissed, and all other demands for summary judgment are denied; and it is further ordered that all other claims for relief not specifically addressed herein are denied.

"and that factors such as weight and degree of slope affect the level of brake pressure required to keep the vehicle from moving. Plaintiffs did not establish that the weights or slopes involved in the prior accidents or the causes of those accidents were sufficiently similar to the subject accident." (Id. at 969.)

Similarly, in Whiter v State of New York (148 AD2d 825 [3d Dept 1989]) plaintiff, victim of an auto accident, alleged the State was negligent in the design of the road. The Court concluded that the most relevant prior incidents were inadmissible as they had factors relevant to causation in those cases (alcohol use and speed) that were absent from the plaintiff's theory of causation—that the curve where the accident occurred was inherently dangerous to motorists exercising ordinary care. (Id. at 827.) In this case the plaintiff's theory is the OTSWs failed regardless of operating conditions at the time of the failure, thus those variables cited by SOCATA are not relevant to distinguish the prior incidents.

"Since at the heart of such an action is either affirmative conduct in creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert its consequences, proof that goes to hindsight rather than foresight most often is entirely irrelevant and, at best, of low probative value." (Caprara v Chrysler Corp., 52 NY2d 114, 122 [1981].)

"As set out in greater detail below, it is my opinion that Laurence and Jane Glazer died of the pathophysiological results of hypoxia due to a failure of the aircraft pressurization system. When the aircraft decompressed and the cabin altitude ascended to 25,000 feet, Laurence Glazer suffered almost immediate impairment and subsequent failure of his neurologic, cardiovascular, and pulmonary functions. During this critical period of time, the hypoxic environment quickly and progressively rendered him incapable of making the decisions and taking the actions required to survive this emergency depressurization. His age of 68 and the natural progression of aging expedited the onset of impairment, loss of useful consciousness and subsequent death and highlighted the need for clear and timely warnings and procedures to survive the emergency conditions." (NYSCEF Doc No. 199, Mallak Rep at 5.)

"The 'pecuniary injuries' caused by a wage earner's death may be calculated, in part, from factors relevant to the decedent's earning potential, such as present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent's age, character and condition, and the circumstances of the distributees." (Gonzalez v New York City Hous. Auth., 77 NY2d 663, 668 [1991] [citations omitted].)