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Garland v. Sybaris Clubs International, Inc.

Court of Appeals of Illinois, First District, Third Division

August 28, 2019

JENNIFER E. GARLAND, Independent Administrator of the Estate of Scott A. Garland, Deceased, Plaintiff-Appellant,
v.
SYBARIS CLUBS INTERNATIONAL, INC.; SYBARIS VENTURES ONE, LLC; HK GOLDEN EAGLE, INC.; RANDELL D. REPKE, Independent Executor of the Estate of Kenneth C. Knudson, Deceased; HOWARD D. LEVINSON; and HARK CORPORATION, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County No. 17 L 8307 The Honorable Irwin J. Solganick, Judge Presiding.

          Richard F. Burke Jr., of Clifford Law Offices PC, of Chicago, for appellant.

          John S. Hoff and Jared A. Schneider, of Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, of Chicago, for appellees Sybaris Clubs International, Inc., and Sybaris Ventures One, LLC.

          Joseph A. Bosco and David J. Aron, of LaRose & Bosco, Ltd., of Chicago, for appellee HK Golden Eagle, Inc.

          Alan L. Farkas and Michael S. McGrory, of SmithAmundsen, LLC, of Chicago, for appellee Randell D. Repke.

          William F. DeYoung and Loretto M. Kennedy, of Chuhak & Tecson, P.C., of Chicago, for other appellees.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

          OPINION

          FITZGERALD SMITH PRESIDING JUSTICE

         ¶ 1 This is the fifth time that this case arising from a fatal airplane crash has come before this court. This appeal involves the trial court's granting of summary judgment in favor of the defendants on the claims that the plaintiff asserted against them under a theory of negligent entrustment.[1] It also involves the trial court's striking of certain opinions from the affidavits of two of the plaintiff's controlled expert witnesses, which the plaintiff submitted in opposition to the motions for summary judgment. For the following reasons, we affirm the judgment of the trial court.

         ¶ 2 I. BACKGROUND

         ¶ 3 On January 30, 2006, a Cessna 421B airplane crashed while in the process of landing at Palwaukee Municipal Airport (Palwaukee) in Wheeling, Illinois, killing the four occupants onboard. The pilot-in-command of that airplane for the flight at issue was Mark A. Turek, [2] and the three passengers onboard were Garland, Knudson, and Michael Waugh. Turek and Garland were both employees of Morgan Stanley & Co., Inc. (Morgan Stanley). They were traveling with Waugh, a potential Morgan Stanley client, to Kansas for a business trip. Knudson was one of the owners of the airplane. He was also the owner and founder of the Sybaris defendants. Knudson had a business meeting of his own in Kansas on behalf of Sybaris, and thus he accompanied the other three men on the flight. Another reason that Turek and Knudson were on the subject flight together was that Turek was interested in purchasing a partial share of the ownership of the Cessna 421B airplane at issue. It had been initially purchased by Sybaris in August 2004. In May 2005, its registration was transferred to defendant HK Golden Eagle, a corporation that had been formed by Knudson and defendant Levinson for the purpose of owning the airplane. The shareholders of HK Golden Eagle were Knudson and defendant Hark Corporation, which itself was a corporation created by Levinson and his wife for purpose of owning their shares in the subject airplane. Knudson and Levinson were interested in making Turek a potential partner in the ownership of the airplane, and thus one reason why Turek piloted the Cessna 421B at issue on the trip to and from Kansas that day with Knudson onboard was to allow Knudson to evaluate Turek as a potential partner in the ownership of the airplane.

         ¶ 4 A. Procedural History

         ¶ 5 Many claims arose from this incident, and this case has had an extensive procedural history at the trial and appellate level. The first appeal that this court addressed involving this incident was Waugh v. Morgan Stanley & Co., 2012 IL App (1st) 102653. In that case, this court affirmed the trial court's granting of partial summary judgment in favor of Levinson, Hark Corporation, and other parties not involved in this appeal who had provided flight training to Turek, on the basis that certain allegations against them amounted to claims of educational malpractice, a tort that is not recognized under Illinois law. Id. ¶¶ 42-44. The second appeal addressed by this court was Garland v. Morgan Stanley & Co., 2013 IL App (1st) 112121. There, this court held that the exclusive remedy provision of the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2010)) barred the plaintiff's common-law tort claims against Morgan Stanley and Turek's estate, where Garland's death was accidental and Morgan Stanley and Turek were not acting in the "dual capacity" of providing air transport services unrelated to their status as Garland's employer and coemployee. Garland, 2013 IL App (1st) 112121, ¶¶ 31, 48-50.

         ¶ 6 The third appeal, Garland v. Sybaris Club International, Inc., 2014 IL App (1st) 112615 (Garland I), involved the causes of action pled by the plaintiff in her ninth amended complaint. These causes of action included those at issue in this appeal, which are the plaintiff's allegations that defendants Levinson and Knudson were negligent in entrusting the Cessna 421B airplane to Turek to pilot, when they knew or should have known that Turek was not qualified to fly that particular type of airplane in the conditions present on the night of the incident. Id. ¶¶ 2, 51, 68. The complaint also alleged that Knudson was negligent in failing to supervise Turek during the flight itself. Id. ¶ 72. The plaintiff alleged theories of vicarious liability against Hark Corporation, HK Golden Eagle, and Sybaris. Id. ¶ 2. The trial court dismissed the causes of action in the ninth amended complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). Garland I, 2014 IL App (1st) 112615, ¶ 2. On appeal, this court affirmed in part and reversed in part. Id. ¶ 104. The court affirmed the dismissal of the allegations involving negligent supervision against the Estate of Knudson. Id. ¶ 82. However, this court reversed the circuit court's dismissal of the causes of action alleging negligent entrustment by Levinson, Hark Corporation, and the Estate of Knudson and the causes of action alleging vicarious liability for negligent entrustment against HK Golden Eagle and Sybaris. Id. ¶¶ 61, 70.

         ¶ 7 In the fourth appeal, Garland v. Sybaris Clubs International, Inc., 2017 IL App (1st) 160745-U (Garland II), this court reversed the trial court's granting of summary judgment in favor of Sybaris on the claims alleging vicarious liability for negligent entrustment. The court held that genuine issues of material fact existed about whether Sybaris was liable under principles of respondeat superior for the acts of negligent entrustment by Knudson, which occurred while he was acting within the scope of his employment for Sybaris. Id. ¶¶ 39-42.

         ¶ 8 Following the remand of Garland II, all of the defendants moved for summary judgment in their favor on all claims in the plaintiff's ninth amended complaint alleging negligent entrustment. The defendants' general argument was that no genuine issue of material fact existed about whether Levinson or Knudson had acted negligently in entrusting the subject airplane to Turek for the flight at issue. They further argued that no genuine issue of material fact existed about whether their entrustment was a proximate cause of the crash. After striking certain portions of the affidavits of the plaintiff's controlled expert witnesses, the trial court granted summary judgment in favor of all the defendants.

         ¶ 9 B. Summary Judgment Record

         ¶ 10 According to evidence in the summary judgment record, the crash at issue occurred at 6:29 p.m. on January 30, 2006. The weather conditions at Palwaukee that day involved a mixture of freezing precipitation and snow that started at 6:49 a.m., turning to light snow and mist that continued intermittently through 4:48 p.m. No major accumulation of ice or snow was reported. The National Weather Service provided a "current icing potential" for 6 p.m. depicting "a probability of icing conditions over the Chicago area which ranged from about 10 percent at 3, 000 feet, to about 70 percent at 5, 000 feet." Several pilot reports of icing were recorded in the hours surrounding the accident time. As reported at 5:53 p.m. and 6:36 p.m., visibility was unrestricted at 10 statute miles.

         ¶ 11 Radar data showed the airplane as it approached Palwaukee and entered a left-hand traffic pattern to runway 34. The radar data showed that, as the airplane made a left turn, its calibrated airspeed decreased from 110 knots to 82 knots in the final 30 seconds of data available before the impact occurred. The owner's manual for the Cessna 421B at issue specifies a landing approach speed of 103 knots-indicated airspeed. It also lists stall speeds for the airplane ranging from 94 knots-calibrated airspeed to 83 knots-calibrated airspeed depending on the configuration of the landing gear, flaps, and bank angle. Vortex generators added to the airplane may have had the effect of lowering some of these airspeed numbers. Radar data also showed that, in the final 30 seconds of data, the pressure altitude of the airplane went from 1400 feet to 1200 feet above mean sea level (MSL). As the runway at Palwaukee was 643 feet above ground level (AGL), this would indicate the altitude of the airplane declined from about 757 feet to 557 feet AGL during this time. Video images showing the airplane on approach were captured from a local security camera. Three frames of video capture the airplane in left wing low, near-vertical descent. The record contains no cockpit or air-traffic control recordings of what was said or occurred inside the cockpit of the airplane on the flight at issue.

         ¶ 12 As of the date of the crash, Turek was licensed by the Federal Aviation Administration (FAA) to fly airplanes such as the Cessna 421B at issue, as he had a private pilot certificate with single-engine land, multiengine land, and instrument ratings. Turek was the owner of a Baron B55, in which he had substantial flight experience. As calculated by the National Transportation Safety Board (NTSB), Turek's flight logbooks reflected that he had accumulated a total of 1284.05 hours of total flight experience. This included 161.2 hours in single-engine airplanes, 1052.65 hours in multiengine airplanes, and 70.2 hours in flight-simulator devices. He had logged 32.75 hours in Cessna 421 airplanes, of which 18.2 hours were logged prior to his having received the instruction required to act as pilot-in-command of a pressurized airplane. Also, of the 32.75 hours logged in Cessna 421 airplanes, 27.5 hours were obtained prior to Turek's having received dual instruction in a Cessna 421 airplane, and 5.25 hours of logged dual instruction in Cessna 421 airplanes were recorded.

         ¶ 13 As this court discussed in greater detail in Waugh, 2012 IL App (1st) 102653, ¶¶ 4-11, prior to the crash, Turek had undergone training and instruction on the piloting of a Cessna 421B. This included flight simulator training in 2005 with Arr-ow II, Inc. (Arr-ow), which we summarized in Waugh as follows:

"In 2005, Turek successfully completed 33 hours of recurrent twin-engine instrument proficiency training with Eugene Littlefield, his instructor at Arr-ow. According to Littlefield's deposition testimony, Turek was already a qualified and proficient twin-engine pilot at that time. In Littlefield's opinion, Turek was always in control of the airplane, displayed good techniques, procedures, and cockpit management, and was a very proficient pilot. Littlefield opined that Turek was a fully trained, safe, competent, and qualified multi-engine pilot." Id. ¶ 10.

         However, Littlefield further testified in his deposition that the training that Turek had received at Arr-ow was generic simulation training, not tailored to any particular type of airplane such as a Cessna 421B. The flight simulator on which Turek was trained did not simulate motion, and Turek did not receive any experience pitching up or down, yawing, or dealing with the effects of vortex generators on a multiengine aircraft such as a Cessna 421B. Littlefield testified that Turek did not receive training on flying in icing conditions.

         ¶ 14 Also, earlier in the month of January 2006, Turek had undergone flight instruction at Recurrent Training Center (Recurrent), which we summarized in Waugh as follows:

"From January 6 through January 9, 2006, Turek completed a flight training course with Recurrent to transition from his Baron B55 twin-engine plane to the Cessna 421B. ***
***
*** Recurrent flight instructor Kyle Lyons testified at deposition that Turek, when completing his training coursework at Recurrent, demonstrated through performance and testing that he was fully proficient, competent, and prepared to fly. He also demonstrated that he was aware of the specifics of a Cessna 421B aircraft. Specifically, Turek completed a Cessna 421B workbook which was reviewed by a Recurrent instructor to verify that Turek was familiar with all information specific to the Cessna 421B. Turek was provided with information on Cessna 421B power settings, speeds, and other procedures for operating in the landing phase of flight. Additionally, Turek's one-on-one training included operations and performance training specific to the Cessna 421B. There was no indication during the Recurrent coursework and evaluation that Turek had any difficulties with regard to descending, turning, speed, or otherwise controlling the aircraft in the airport environment. Turek was taught Cessna 421B stall speeds, proper engine operation, and fuel management." Id. ¶¶ 7, 9.

         ¶ 15 We summarized additional deposition testimony by Lyons in Garland I, in the context of addressing the allegations of negligent entrustment at issue in that case:

"Kyle Lyons *** testified at deposition that the training Turek received with him was tailored specifically to a Cessna 421B aircraft. Recurrent provided Turek with a certificate of completion for the flight training. He testified that the pilot students who seek training at Recurrent are experienced pilots. He testified that Turek was an attentive and serious student who showed aptitude and proficiency in the areas covered by the course, including the critical power settings, speed settings and stall speeds for an aircraft in approach and arrival in the landing environment, and instruction regarding the electrical system, power plant, engines, emergency procedures, fuel system and limitations of the Cessna 421B. Reviewing the notes he took during the training, Lyons commented that Turek had needed more full procedure approaches. Lyons testified that Turek demonstrated proficiency in slow flight and stalls. Lyons testified that Turek also received instruction from other instructors at Recurrent, including instruction regarding approaches, and Turek demonstrated diligence, competency, and proficiency in those maneuvers, with nothing to indicate problems with regard to speed or power settings in an airport environment, problems with speeds or power settings with the gear up or down, or in turns with the gear up or down, and nothing to indicate he was unaware of stall speeds or how to properly manage the engine and fuel. In reviewing notes taken by other flight instructors at Recurrent, Lyons acknowledged that another instructor had noted that Turek entered turns too steeply and that he needed more training on full procedure approaches." Garland I, 2014 IL App (1st) 112615, ¶ 28.

         Lyons also testified concerning other notations by instructors at Recurrent. One such notation was that Turek's tracking of his approach was "erratic," and another stated that Turek "needs to work on altitude control," as it appeared that "he was still having a little trouble flying the flight training device." Lyons confirmed that in another note he had written that Turek needed help with the horizontal situation indicator, an instrument he was not previously familiar with. Lyons testified that Turek was not given any instruction at Recurrent related to flying in icing conditions, and there was no indication in Turek's paperwork that he had viewed an elective video concerning icing while at Recurrent.

         ¶ 16 Finally, earlier in the month prior to the crash, Turek had undergone flight instruction and observation with defendant Levinson, who was himself a certified flight instructor. In Waugh, we summarized Levinson's testimony on this topic as follows:

"After completing training at both Arr-ow and Recurrent, Turek flew the subject aircraft for an additional five hours in January 2006 under the observation of Levinson ***. Levinson testified at deposition that the purpose of the observation was for Levinson to observe Turek fly the subject aircraft and to provide the required hours to satisfy his insurance company requirements. At the time of the observation flight, Levinson was a certified flight instructor with an FAA rating as an airline transport pilot. *** Levinson testified at deposition that Turek was a qualified pilot with many hours of flying experience in a Cessna 421B. The accident aircraft crashed at night while in a landing traffic pattern to land at Palwaukee airport. Much of Turek's in-flight training by Levinson in the accident aircraft was flying in the landing traffic pattern in the same location as the crash site." Waugh, 2012 IL App (1st) 102653, ¶ 11.

         Levinson further testified in his deposition that he had not provided any night flight training to Turek. He testified that he knew as of the date of the incident that Turek had recently gone through training out of Recurrent and through simulation training at Arr-ow, and Levinson had spoken with Littlefield about Turek's satisfactory completion of the training at Arr-ow.

         ¶ 17 Levinson testified that on the evening of the incident, before he knew that the crash had occurred, he commented to his wife, "I hope these guys know what they're doing." He explained that he made this comment because it was "kind of a rainy, drizzly night. It wasn't freezing rain at that point, but it could have been at altitude, and I just felt that it was a little bit of a situation that it would take experience to handle." He testified that, about 10 minutes after making this comment, he received a phone call informing him of the plane crash.

         ¶ 18 Raymond Chou, who was also a pilot and a friend of both Turek and Levinson, testified in a deposition that Levinson had said to him that Turek "liked to fly fast," that he "flew kind of like a sports car driver," and that he rode the brakes too much when flying. In the deposition of Turek's wife, Donna Turek, she described her husband as a "risk taker."

         ¶ 19 William McGuinn met with Knudson in Kansas on the day of the incident concerning some real estate there in which Sybaris was interested. McGuinn is also a licensed pilot. We previously summarized McGuinn's deposition testimony concerning his conversations with Knudson that day as follows:

"During that time, Knudson told McGuinn that he brought Turek on the flight so that Knudson could evaluate Turek's flying and make sure he was competent to fly the aircraft. Knudson described to McGuinn a disagreement Turek and Knudson had on takeoff that day, when Knudson thought Turek was piloting the aircraft to climb too steeply after takeoff, that Turek 'rotated and climbed out steeply without accelerating to a speed that would have allowed them to climb out safely.' Additionally, Knudson told McGuinn that, en route from Chicago to Kansas City, they discovered the landing gear had inadvertently been left down. McGuinn testified that Knudson said he thought Turek's flying skills were not up to par." Garland I, 2014 IL App (1st) 112615, ¶ 30.

         McGuinn also testified concerning statements he had made to an investigator, in which he stated that Knudson had said to him "that he would have to keep a real close eye on Mr. Turek" and would "have to watch this guy real close." Asked if he remembered Knudson saying this, McGuinn answered:

"They were my relation of the gist of what Mr. Knudson said. It was the airplane was Mr. Knudson's baby, he had wash [sic] that airplane, maintained it, flew it, he knew every nook and cranny of the airplane, he was very proud of it and he was interested in making sure that someone had the same care for it that he did, and that's why he-why he mentioned that he was going to keep a real close eye on it. He was interested in this guy treating the plane as he did."

         ¶ 20 Wendy Lavezzi, M.D., was an assistant medical examiner with the office of the Cook County Medical Examiner who was involved in the autopsies of the four men killed in the subject airplane crash. Dr. Lavezzi testified in an evidence deposition that, based on seat-belt positioning, Turek was sitting in the left front seat, which would be the pilot's seat of the Cessna 421B. Dr. Lavezzi further testified that, based on her autopsy of Turek, she did not see any natural disease indicating that he had ever had a heart attack.

         ¶ 21 John Brannen, the investigator for the NTSB in its investigation of this crash, testified that in the process of investigating whether any mechanical problems existed with the airplane that may have led to the crash, no evidence was found indicating any problems with the airplane's engines that would have prevented them from running. The engines were applying power to the propellers, and the propellers were rotating at the time of impact. Also, Brannen did not find any evidence of fuel starvation during the wreckage examination. Brannen further testified in his deposition that, in normal flight, one of the responsibilities of the pilot-in-command is to make sure that an airplane does not drop below the manufacturer's recommended stall speeds. He also testified that, while travel patterns and altitudes can vary by airport, in general travel patterns for an airplane approaching and on the downwind leg are usually about 800 to 1000 feet above the elevation of an airport.

         ¶ 22 The summary judgment record includes two affidavits by the plaintiff's controlled expert witnesses, Marc Fruchter and William Lawrence. The opinions set forth in these affidavits of Fruchter and Lawrence were largely the same as those submitted by the plaintiff in response to the motions to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)) that this court addressed in Garland I, 2014 IL App (1st) 112615, ¶¶ 25-27. In the motions to dismiss that were at issue in Garland I, the defendants did not move to strike any portion of the affidavits of Fruchter and Lawrence. However, with respect to the motions for summary judgment at issue in this appeal, the defendants filed motions to strike both affidavits. The trial court conducted a hearing on these motions to strike prior to conducting a hearing on the motion for summary judgment, and it struck portions of the opinions of both Fruchter and Lawrence. Thus, certain portions of the affidavits of these two expert witnesses were not considered by the trial court in ruling on the motions for summary judgment.

         ¶ 23 Fruchter's affidavit states that he is the founder and president of Aviation Consultants, Ltd. He has over 38 years of experience in various aspects of the aviation industry. He has flown in excess of 13, 000 hours, with at least 11, 500 of those as pilot-in-command. He holds multiple FAA licenses, ratings, and certifications for piloting, instructing, testing, and certification. He has experience piloting both the Cessna 421B model of airplane that is at issue in this case, as well as the Baron B55 aircraft that Turek owned and normally flew.

         ¶ 24 Fruchter's affidavit includes 14 paragraphs under the heading of "Opinions," which were the subject of the defendants' motions to strike. These opinions were preceded by his discussion of those facts upon which his opinions were based. Those factual bases that are pertinent to our analysis are set forth in the discussion below. However, we set forth the full text of Fruchter's opinions below, with the text in italic type showing those portions of Fruchter's affidavit that the trial court struck from consideration on summary judgment and which the plaintiff appeals:

"1. The accident took place during the period identified in the [federal aviation regulations (14 C.F.R. § 1.1 et seq. (2006)) (FARs)] as night [citation] and Mr. Turek did not meet the requirement [citation] to serve as [pilot-in-command (PIC)] on the accident flight. Therefore Mr. Turek was negligent in showing himself as PIC on the instrument flight plan for the accident flight.
2. There is no evidence that Mr. Turek had satisfied the requirement [citation] for a biennial flight review and was, therefore, not qualified to serve as PIC on the accident flight. Therefore it was negligent for Mr. Turek to file a flight plan showing himself as PIC for the accident flight or to serve as PIC on that flight.
3.The vast majority of Mr. Turek's multi-engine flight experience was obtained in the B-55 Baron aircraft that he owned. [Citation.] The Baron differs significantly from the Cessna 421B in numerous ways including, but not limited to: pressurization, geared engines, 44% more powerful engines, 49% greater maximum gross takeoff weight, and higher stall speeds for the Cessna. ***
4.Mr. Turek had logged no flight experience in a Cessna 421B that included night and/or icing conditions-both of which were forecast *** on the accident flight. For this reason alone Mr. Turek should have declined to serve as PIC on the accident flight. Failing to insure that a competent and experienced pilot was controlling the aircraft created a very unsafe condition.
5.From the radar data noted above, witness statements, and video of the accident it is apparent that Mr. Turek allowed the airspeed of N920MC [i.e., the FAA registration number of the Cessna 421B at issue] to decrease until the aircraft stalled causing a loss of control and impact with the ground.
6. During his training at Recurrent Training Center (RTC) Mr. Turek exhibited a tendency to enter turns too steeply [citation], which would lead to an increased stall speed for the aircraft. This can cause a dangerous condition-especially if the aircraft is flying below the recommended speed for a segment of flight. This condition existed on the accident flight and most likely was the cause of the accident.
7.Mr. Knudson, as an owner of the aircraft, had a duty to insure that Mr. Turek was qualified, current, and proficient to perform the flight before allowing him to fly N920MC on the accident flight. Since Mr. Knudson was aware, or should have been aware, that the flight would operate during the hours of night he should not have allowed a pilot who had no experience in a Cessna 421B at night and was not night current to fly the accident flight. By allowing this, he was negligent and created a very dangerous condition for the accident flight.
* * *
10. From the above it is evident that neither Mr. Turek nor Mr. Knudson was qualified to act as PIC on the accident flight.
11.Mr. Howard Levinson was aware that Mr. Turek was to pilot N920MC on the accident flight [citation]. As both Mr. Turek's flight instructor and an owner of N920MC, Mr. Levinson had a duty to insure that Mr. Turek was qualified, current, and competent to fly the aircraft on the accident flight. If Mr. Levinson was aware that Mr. Turek was not qualified to serve as PIC on the accident flight he had a duty to insure that Mr. Knudson was qualified to serve as PIC. By failing to do so he failed in his duty to insure a safe flight.
12. Mr. Howard Levinson had serious difficulty during a Cessna 421B training session at RTC in September 2007. [Citation.] His inability to fly a standard approach as part of this training brings into question the value of the five (5) hours he served as Mr. Turek's flight instructor to allow Mr. Turek to qualify under the insurance policy for N920MC.
13. HK Golden Eagle, as the registered owner of N920MC, through its principals Mr. Howard Levinson and Mr. Kenneth Knudson, had a duty to insure that a qualified, current, and competent pilot was flying N920MC on the accident flight. 14. For all of the above reasons, Messrs. Turek, Knudson, and Levinson were negligent by engaging in the above-noted conduct or failing to engage in the above-noted conduct. The negligent acts and omissions by Mark Turek, Kenneth Knudson, and Howard Levinson were all contributing causes to the accident involving N920MC and the death of the four persons onboard, including Scott Garland."

         ¶ 25 Lawrence's affidavit states that he had been a pilot for over 45 years and had accumulated about 4500 hours in over 100 different types, models, and series of helicopters and fixed-wing aircraft. He was a graduate of the United States Naval Test Pilot School and was an engineering and experimental test pilot from 1978 to 1991. He flew for the United States Marine Corps for 26 years, and since his retirement in 1991 he had been flying as part of his second career as an aviation consultant.

         ¶ 26 Lawrence's affidavit includes 13 paragraphs under the heading of "Opinions," which were also the subject of the defendants' motions to strike. As with Fruchter's affidavit, Lawrence's opinions were preceded by his discussion of the facts upon which his opinions were based. Those factual bases that are pertinent to our analysis are set forth in the discussion below. However, we again set forth the full text of Lawrence's opinions, with the text in italic type showing those portions of his affidavit that the trial court struck from consideration on summary judgment:

"1. No material or information has been presented that the material or mechanical condition of N920MC contributed to this crash. The NTSB docket discusses the various mechanical inspections and observations made during the investigation. The findings included ...

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