NICHOLS CONSTRUCTION CORP., Plaintiff-Appellant, y.

CESSNA AIRCRAFT CO., et al., Defendants-Appellees.

No. 83-3187.

United States Court of Appeals, Fifth Circuit.

Nov. 8, 1985.

Rehearing Denied Dec. 24, 1986.

McGlinchey, Stafford, Mintz, Cellini & Lang, Dermot S. McGlinchey, William V. Dalferes, Jr., New Orleans, La., for plaintiff-appellant. Christovich & Kearney, A.R. Christovich, Jr., New Orleans, La., for Cessna Aircraft. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, La., John W. Adler, Franklin A. Nachman, Chicago, III, for Garrett. Charles R. Sonnier, Abbeville, La., for Cruse Aviation.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, and GARW00D and JOLLY, Circuit Judges.

GARW00D, Circuit Judge. Nichols Construction Corporation, plaintiff-appellant in this Louisiana diversity action to recover the value of an allegedly defective airplane, appeals from the district court's grant of judgment notwithstanding the verdict in favor of defendants-appellees Cessna Aircraft Company and Garrett Corporation and of directed verdict in favor of defendant-appellee Cruse Aviation, Inc.

Finding that the evidence is insufficient to support, a verdict, for the plaintiff, we affirm.

Facts and Proceedings Below Appellant Nichols Construction Corporation ("Nichols") sought to recover the value of its Conquest Model 441 aircraft which crashed under mysterious circumstances in the Atlantic Ocean, killing both the pilot and Louisiana State University football coach Robert "Bo" Rein.

Cessna Aircraft Company ("Cessna") manufactured the Conquest 441, a twin-engined, turboprop aircraft which could carry between seven and nine passengers and was certified by the Federal Aviation Administration ("FAA") to fly at heights up to 33,000 feet. The Conquest aircraft eontained outflow and safety valves which were designed to regulate cabin pressure during flight. The aircraft was constructed so that the engines supplied a continuous flow of pressurized air into the cabin and cockpit; the outflow valve, in turn, either opened or closed to release or retain the compressed air as necessary to maintain cabin pressure at a safe level. In the event the outflow valve were to malfunction and remain in a closed position, creating overpressurization, the safety valve would begin to operate as a backup system to release pressure.³ The aircraft did not contain a similar backup mechanism for outflow valves that locked in an open position. Both the outflow and safety valves contained a diaphragm retention ring made of lexan, a material similar to plastic.^{Footnote 2} The valves and the rings were manufactured by Garrett Corporation ("Garrett").

In April 1979, Nichols purchased the new Conquest 441 through an authorized Cessna dealer, Cruse Aviation, Inc. ("Cruse"), for $961,700. Garrett subsequently sent a series of teletype Service Bulletins to Cessna, advising it of a "potential problem" in diaphragm retention rings of the type used in the Conquest 441. The last Service Bulletin, dated December 15, 1979, stated: '"The problem area is centered around the balance diaphragm retention ring cracking and breaking away from the diaphragm assembly. If this occurs, the valve will close and may not perform its normal pressure relief and depressurization functions." (Emphasis added.) Garrett advised Cessna to warn aircraft owners to visually inspect the rings, following a procedure outlined by Garrett in the Service Bulletin. After receiving this notice, Cessna sent out a "Customer Care Owner Advisory" on December 21, 1979, advising owners of Cessna-manufactured aircraft that contained this type of retention ring to contact their Cessna dealers in order to arrange to have the safety and outflow valves inspected. Nichols received a copy of this notice. Nichols thereafter had its pilot, Lewis Benscotter, fly its Conquest 441 to Houston on January 10, 1980, where Cruse conducted an inspection. At the time of inspection, the aircraft had registered be-

tween fifty and sixty-five hours of flight time. It is conceded that the Cruse mechanic, Richard Bockelman, conducted a more thorough inspection of the valves than that outlined in Garrett's Service Bulletin.^{Footnote 3} He then ran pressurization tests, in which the valves functioned properly. After Bockelman completed the inspection of the valves and pressurization tests, Benscotter flew to Shreveport and picked up Rein. They then departed for Baton Rouge. Rather than fly directly from Shreveport to Baton Rouge, Benscotter was advised by air traffic controllers to fly east to Monroe, Louisiana, southeast to Vicksburg, Mississippi, and then south to Baton Rouge, in order to avoid inclement weather. Benscotter acknowledged the controllers' message.

Initially, air traffic controllers were able to communicate with Benscotter as the Conquest 441 headed east from Shreveport toward Monroe. Later in the flight, however, controllers from the Fort Worth Center tried unsuccessfully to get through to him after he exceeded a 25,000-foot altitude clearance level which had been imposed on this flight because of the weather. ^{Footnote 4}

controllers contacted an airborne Pan American airplane which was flying in the vicinity of the Conquest 441, headed for Houston, and asked the pilot to contact the aircraft. The Pan Am pilot, William Kianka, initially tried, without success, to contact Benscotter on the assigned frequency. He subsequently managed to contact the Conquest over the emergency frequency and relayed the message that Benscotter was to contact the Center. Kianka testified that Benscotter had acknowledged his message and could be heard trying to contact air traffic control. Kianka also testified, however, that he could barely hear Benscotter's attempts to contact Fort Worth on the assigned frequency, and Fort Worth was unable to pick up his radio contact at all. When asked whether he "detected] anything unusual about the tone of voice or the quality of voice," Kianka responded, "No, not anything whatsoever different." Kianka explained that Benscotter's "voice wasn't weak," but that his radio transmissions were difficult to hear. Kianka subsequently was asked, "Did you in either of those times, the first transmission or the subsequent transmissions, detect anything unusual about the voice itself," to which he replied, "No, not at all." Benscotter's transmissions to Kianka's jet were the last audible contacts picked up from the Conquest.

At about 1:40 a.m. on January 11, the Conquest 441 plunged into the Atlantic Ocean, some eighty miles off the coast of Portsmith, Virginia, killing both occupants. Shortly before the plane crashed, an Air Force jet, acting at the request of the ground control at Fort Lee, Virginia, and at Washington Center, came within about 500 The feet of the Conquest. At this point, the Conquest was flying at an altitude of approximately 40,000 feet. The pilot of the Air Force jet, Captain Daniel Zoerb, testified that he did not observe any signs of life in the cabin, but added that "it was impossible to see inside the cockpit." He also testified that the windows and doors appeared to be intact and that the cockpit panel lights appeared to be operating. He noted that the cabin section was dark. The Air Force jet followed the aircraft out to sea. Zoerb observed that the Conquest began to lose altitude, made a right-hand turn, and then appeared to quit functioning

altogether, plummeting into the ocean. No wreckage was ever recovered nor were the victims' bodies ever found.

Nichols brought this diversity action against Cessna and Cruse to recover the value of the Conquest. Garrett subsequently was added as a defendant by amended complaint. Nichols argued alternative theories of negligence against all the defendants, ^{Footnote 5} recovery on redhibition against Cessna and Cruse, ^{Footnote 6} and products liability against Cessna and Garrett. ^{Footnote 7}

Nichols theorized that the accident was caused by a broken retention ring or rings which caused the outflow valve, and possibly the safety valve, to jam in an open or closed position. As a consequence, Nichols argued, the aircraft ultimately underpressurized and the occupants succumbed to hypoxia. ^{Footnote 8}

The case was tried to a jury. At the close of all the evidence, all defendants moved for a directed verdict. The district court denied defendants' motions except the motions for a directed verdict on the redhibition claim, as to which it deferred ruling. The court instructed the jurors on the plaintiffs burden under each of its theories of recovery, including the theory of redhibition. The jury returned a verdict

on special interrogatories finding that the aircraft contained a redhibitory defect, that the negligence of Garrett and Cessna (but not Cruse) was a proximate cause of the loss of the aircraft, and that the aircraft and its component parts were defective at the time they were manufactured by Cessna and Garrett, which defects were a proximate cause of the loss. ^{Footnote 9}

The same day the district court entered judgment on the jury verdict, awarding Nichols $964,000, with interest from the date of judgment, against Cessna and Garrett. Although the jury found a redhibitory defect, the court did not render judgment against Cruse, apparently because the court had reserved ruling on the motions for directed verdict on the redhibition claim, as the verdict otherwise exonerated Cruse. ^{Footnote 10}

Cessna and Garrett filed timely motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. The district court subsequently issued a Minute Entry memorandum granting these motions on the ground that there was insufficient evidence to support a verdict for Nichols. The court then entered judgment vacating its prior judgment on the verdict, granting Cessna's and Garrett's motions for judgment notwithstanding the verdict, and granting Cruse's motion for directed verdict, thus rendering judgment in favor of all defendants. In the alternative, the court ordered that if the jury's verdict were reinstated on appeal, the motions of Cessna and Garrett for a new trial were granted.

Discussion

I. Judgment Notwithstanding the Verdict and Directed Verdict Appellant Nichols argues that the district court erred by granting judgment notwithstanding the verdict on Garrett's and Cessna's motions, and a directed verdict on Cruse's motion, since there was substantial evidence in support of the jury verdict.

Substantial Evidence

The standard of review for a motion for judgment notwithstanding the verdict or directed verdict "is firmly established in this Circuit." McCormack v. Noble Drilling Corp.,  608 F.2d 169, 171 (5th Cir.

n 1979).

In determining whether judgment n.o.v. or a. directed verdict should have been granted, ^{Footnote 12} "the Court should consider all the evidence'not just that evidence which supports the non-mover's case'but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Boeing Co. v. Shipman,  411 F.2d 365, 374-75 (5th Cir.1969) (en bane) (emphasis added and footnote omitted). See also Doucet v. Diamond M. Drilling Co.,  683 F.2d 886, 889 n. 2 (5th Cir.1982), cert, denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983). ^{Footnote 13}

Because of the requirement that the verdict be supported by substantial evidence, a verdict may not rest on speculation and conjecture. ^{Footnote 14}

Mack v. Newton,  737 F.2d 1343, 1351 (5th Cir. 1984); see Fenner v. General Motors Corp.,  657 F.2d 647, 651 (5th Cir.1981) (per curiam), cert, denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); Gulf Coast Real Estate Auction Co., Inc. v. Chevron Indus., Inc.,  665 F.2d 574, 577 (5th Cir.1982). Similarly, the jury's free-

dom to draw inferences from the evidence bodies ever found. does not extend so far as to allow a "wholly 'unreasonable inference' or one which amounts to 'mere speculation and conjecture.'" Mack, 737 F.2d at 1351 (quoting Bridges v. Groendyke Transport, Inc.,  553 F.2d 877, 878-79 (5th Cir.1977)).

Considering all the evidence, and viewing it in the light and with all reasonable inferences most favorable to Nichols, we find that there was insufficient evidence supporting appellant's theory of the cause of the accident to present a question for the jury. The only evidentiary support for plaintiff's theory of causation, the testimony of an expert witness, was purely speculative. Therefore, we affirm the district court's granting of judgment notwithstanding the verdict for Cessna and Garrett and directing a verdict for Cruse. As noted, no wreckage was ever recovered from the Conquest after its crash into the Atlantic Ocean, nor were the victims' T he radio contacts picked up from the Conquest, and transcribed in the record, fail to provide any indication of the possible cause of the plane's crash. There was no evidence that any other aircraft employing the same style valve and retention ring used in the Conquest had ever experienced difficulty because of defects in either the ring or valve, nor was there evidence that any cracked or defective ring or valve had ever been discovered in any such aircraft. ^{Footnote 15}

In lieu of presenting direct evidence concerning the cause of the crash, plaintiff-appeliant presented testimony by Thomas Lombardo, an expert witness in the field of aeronautical engineering. Lombardo's testimony provided the sole evidence concerning plaintiffs causation theory. ^{Footnote 16}

Lombardo acknowledged that he did not inspect the wreckage of the aircraft, since there was "none available to inspect." He similarly acknowledged that "there were no

records to investigate." Lombardo stated in overview, "I conducted an analysis of information that was available; you might call that an investigation." ^{Footnote 17} When asked whether he had "formed an opinion as to the cause of the loss of this aircraft," Lombardo responded: "My opinion is that the most reasonable explanation as to what occurred was a failure of the pressurization system in the airplane due to faulty valves which control this pressurization. This led to the lack of oxygen in the cockpit and cabin area, causing the pilot to be incapacitated due to lack of oxygen." (Emphasis added). Lombardo presented two separate scenarios to explain how the pilot might have become incapacitated because of a lack of oxygen, or hypoxia. Lombardo stated that the retention ring in either the outflow or safety valve could have broken and jammed the valve in an open position. As a result, the aircraft would become underpressurized and the pilot would become incapacitated for lack of oxygen. Alternatively, Lombardo testified that the retention rings in both the outflow and safety valves could have broken in a closed position, causing initial overpressurization; at some point the pressure would have exceeded the aircraft's structural capacity, causing ruptures and leaks in the structure and, eventually, underpressurization. ^{Footnote 18}

Lombardo, though, repeatedly refused to indicate which of the two possibilities was more likely, ^{Footnote 19} and stated, " The best I could say is either one of them could happen." (Emphasis added.) He added, "[I]t's highly likely it failed closed; it's highly likely it failed open. I can't tell you one from the other. I wish I could; I can't." In Fenner v. General Motors Corp., supra, this Court, addressing similar facts, affirmed a district court's grant of a judgment notwithstanding the verdict on the ground that there was insufficient evidence

to establish that an existent product defect was the proximate cause of a single-car accident. While the district court had found that the vehicle "was manufactured with an inherent steering defect and that General Motors [the manufacturer] had knowledge of the defect," the court also had found that "the evidence was not sufficient to create a jury question that the defect was the proximate cause of the accident." 657 F.2d at 649 (emphasis added). We affirmed. 657 F.2d at 648. As in the present case, the testimony of witnesses "shed no light on the cause of the accident" and the vehicle itself "was unavailable for later examination." 657 F.2d at 649. We wrote: "Plaintiffs showed at trial that the uncovered steering coupling of their model vehicle could suffer from stone interference if a stone lodged between the steering coupling and the vehicle's frame.

This stone interference could cause the vehicle's steering to lock up. Plaintiffs then attempted to show this is what happened with their automobile. if "The evidence ... to prove causation is simply not present in this case [TJhere was no examination of the [plaintiffs'] automobile and no stone discovered lodged inside the steering coupling. "Plaintiffs are not entitled to a verdict based on speculation and conjecture.

See Smith v. General Motors Corp.,  227 F.2d 210 (5th Cir.1955)." 657 F.2d at 649-51 (emphasis added).

The Ninth Circuit, in British Airways Bd. v. Boeing Co.,  585 F.2d 946 (9th Cir. 1978), cert, denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979), faced a similar claim raised by the owner of a plane against its manufacturer, alleging, inter alia, negligent design and manufacture of the aircraft. The district court granted summary judgment in favor of the manufacturer, and the Ninth Circuit affirmed. The Court wrote: "[The appellant-owner] ... introduced the deposition testimony of a Boeing employee that a crack in the terminal fitting can [emphasis in original] lead to a catastrophic accident. However neither that witness nor any other witness produced by [appellant] has been able to produce specific facts showing, or even creating an inference, that the crack did [emphasis in original] lead to the accident in question.... "... After twelve years of investigation and litigation, all [appellant] has come up with is supposition, speculation, and conclusory argument of counsel.

Because it has presented no evidence 'sufficient ... to require a jury or judge to resolve the parties' differing versions of the truth at trial,' even after all permissible inferences have been drawn in its favor, we hereby affirm the decision of the court below as to this issue." 585 F.2d at 951-54.

As in the Fenner and British Airways cases, Lombardo's testimony was essentially speculative in nature. Lombardo indi____ cated that both the outflow and safety valves "could" have jammed in a closed position or that either the safety or outflow valves "could" have jammed in an open position, thereby causing the accident. However, when he was asked in connection with the closed valve scenario, "Do you have anything to show that it happened in this case," Lombardo responded, "No, sir." (Emphasis added.) In addition, he indicated that the closed and the open valve scenarios were equally likely; in other words, he had no more support for the open valve theory than he had for the closed valve scenario. Lombardo, by process of elimination, picked what he considered the most plausible explanation for the crash and concluded only that it was the best guess as to what caused the accident. His testimony merely speculated as to the cause of the crash. We have frequently held that a verdict resting on speculation cannot be sustained. Mack, 737

F.2d at 1351; Fenner, 657 F.2d at 651; Chevron, 665 F.2d at 577. ^{Footnote 20}

Our conclusion respecting the insufficiency of Lombardo's testimony is also influenced by the fact that, although the district court permitted him to testify as an expert, Lombardo did not purport to rely on his own expertise when offering his opinion on causation. When asked how he had come to the conclusion that the most reasonable explanation for the accident was ring breakage and consequent valve failure, Lombardo did not indicate that he had relied on any expert knowledge, general or otherwise, of his own respecting how such valves work or how a retention ring might crack under the circumstances posed in the instant case. Instead, Lombardo indicated that he saw certain Garrett and Cessna documents, which he was unable to identify or quote from with any meaningful particularity, that stated that the rings were defective and that the assembly fixture was out of tolerance, and that he heard someone at a deposition say "something about" how stronger material should have been used. In response to the question, "Why do you say that the retention rings were defective," Lombardo stated, "Well, sir, in my analysis and in the documents and information that I reviewed, this was stated by engineers of the manufacturer. They are the ones that said it was defective, and I relied on that, and the defect was due to manufacturing techniques or assembly techniques and possibly the selection of materials for the ring." (Emphasis added.) Later in his testimony, Lombardo similarly listed the cause of the alleged ring failure as the "manufacturing process and the failure for inspection to catch such defects after they were manufactured." Still later, the following exchange occurred during Lombardo's cross-examination: "A [Lombardo]: ... I said it was a manufacturing problem with the molding of the rings, the subsequent inspection of the molded components, the assembly of the rings to the valve, and possibly the selection of the materials that were used for making the rings. "Q [Attorney for Cessna]: Now, I guess if we get then to the assembly' "A Assembly. "Q What could be the possible problem there? "A There I'm relying on the documents from Garrett. They refer to an assembly fixture that may have been out of tolerances, which caused failure of these rings.

"MR. ADLER [attorney for Garrett]: I move to strike that there is no reference to an assembly tolerance. I don't know what the witness is talking about. There has been no document exhibited or read from. "THE COURT: I'm not sure I do either, but I don't believe that is any basis upon which to strike testimony. I will have to overrule the objection. "[Q] Could you detail that for us? "A Yes. It was on documents that were between Garrett and Cessna. I saw one of these documents in there that was describing this particular problem." (Emphasis added.) The alleged documents never were identified by date or otherwise. Lombardo's cross-examination continued: "Q Anything other that the molding process, inspection of the molded material, and then the assembly of the unit? "A And I said possibly the selection of the materials. "Q What do you mean by that? "A This is'I attended a deposition in California of AiResearch material people; I believe their name was Fradell (spelled phonetically), and he said something about the material composition and possibly the introduction of Fiberglas or something to make the materials more suitable." (Emphasis added.) Lombardo did not draw his own expert opinion based on an independent analysis of the evidence so much as he relied on his impression or interpretation of the conclusions of others as expressed in unidentified documents and deposition. ^{Footnote 21}

As the district court noted in its Minute Entry, "He did not come to [his] ... conclusion ... through the application of his expertise." (Emphasis added.) Moreover, Lombardo's response to questions concerning his expertise revealed that he had no firsthand knowledge of or expertise concerning the workings of valves and retention rings of this kind. During direct examination, Lombardo indicated that he had investigated approximately 400 airplane accidents since 1974. Lombardo indicated that he had seen the Conquest Model 441 two or three times before he was retained in the instant case, and looked at three such models after being retained.

He added, however, that he had never flown in this type of aircraft before. He also stated that while he knew what an outflow valve "look[ed] like" prior to being retained in the present case, he had never seen a retention ring before and had never seen a plastic valve such as the one used in the Conquest prior to working on the case.

The following exchange occurred at trial: "Q Prior to working on this case, had you ever seen one of these rings before? "A This is the first time I've seen one of these specific rings. Of course, you know, you wouldn't even know it's there just by looking at the valve. I found the ring from drawings and from discussions and from documents. "Q You hadn't seen one of these valves before or worked on one of these valves? "A Not a plastic one. I've seen a metallic valve." (Emphasis added.) Lombardo had no expertise in the manufacture, design, or working of rings or valves of this variety. His testimony, "stripped of its claim of expertise," lacks the quality and weight characteristic of substantial evidence. District of Columbia Redev. Land Agency v. Thirteen Parcels of Land,  534 F.2d 337, 340 (D.C.Cir.1976) (employing language in a different context). In essence, Lombardo, without adequate foundation, was merely "tell[ing] the jury what result to reach." See Matthews v. Ashland Chemical, Inc.,  770 F.2d 1303, 1311 (5th Cir.1984). ^{Footnote 22}

We similarly conclude that there was a lack of substantial evidence to indicate that the aircraft contained a defective ring and valve, let alone one that caused the instant crash. The Cruse mechanic, just before the flight in question, checked the valves and pressure system and found no defect. There is no evidence that the procedures he used would not have disclosed a defect if one had been present. No direct evidence was introduced concerning the condition of the retention rings and valves installed in Nichols' aircraft either at the time of manufacture or afterward. Nichols relied on Lombardo's testimony and on the series of telex communications between Garrett and Cessna to establish that the rings installed in the Conquest were defective. As noted, Lombardo was asked during direct examination, "Why do you say that the retention rings were defective." Lombardo responded that he was relying on certain documents between Cessna and Garrett and on a conversation he heard during a deposition. This is entirely too vague. As noted, Lombardo was not an expert on the manufacture, design, or working of rings or valves of this sort, and the matter referred to was not recognized technical literature or the like. Moreover, it was never shown that Lombardo or his sources had firsthand knowledge concerning the inspection or assembly of the specific rings and valves installed in Nichols' aircraft. Likewise, the telex communications between Garrett and Cessna merely indicated that some aircrafts "may" contain broken diaphragm retention rings. ^{Footnote 23}

The telexes in no way suggested that this problem had been detected in any aircraft, as opposed to being discovered at the valve manufacturing stage, or that such a defect was likely to be present. We do not believe the jury could infer from this evidence that ring breakage did occur in Nichols' plane. "We are not unmindful of the difficulty of proving a manufacturing or design defect under the circumstances of this case." Horton v. W. T. Grant Co.,  537 F.2d 1215, 1218 (4th Cir.1976). As we noted in Mack, however, a jury's freedom to draw reasonable inferences does not extend so far as to allow the jury to draw an inference "which amounts to 'mere speculation and conjecture.'" 737 F.2d at 1351.

In the absence of proof of causation and of the condition of the rings and valves, we cannot sustain a jury's verdict finding negligence and products liability. ^{Footnote 24}

In the absence of any evidence concerning the condition of the rings and valves installed in Nichols' plane, we cannot; sustain a finding of a redhibitory defect. ^{Footnote 25}

Therefore, we affirm the district court's determination that the verdict was not supported by substantial evidence. II. Other Complained of Rulings In the alternative, Nichols argues that if this Court finds that there is an absence of substantial evidence to sustain the jury's verdict, it is entitled to a new trial on the grounds that the district court erred in certain of its evidentiary rulings. Appellant argues that the district court should not have excluded from evidence its exhibit consisting of an outflow valve with a broken diaphragm retention ring. Appellant argues that the court's failure to admit this defective valve deprived the jury of the opportunity to observe how a broken ring would affect the operation of the valve. Nichols also argues that the district court erroneously allowed Jules Viquesney to testify as an expert for defendants on pressurization systems and outflow and safety valves, even though he earlier had denied that he was an expert, in those fields. Nichols argues that it was prejudiced by the district court's decision because it had not been apprised before trial as to Viquesney's opinions nor the factual bases supporting them. As a result, it claims that it was unable to effectively cross-examine Viquesney or counter his opinion testimony. Third, Nichols contends that the district court improperly granted a directed verdict for defendant Cruse after submitting the issues of negligence and redhibition to the jury. It argues that the proper motion would have been one for judgment notwithstanding the verdict, and that Cruse failed to file such a motion. We reject each of these arguments.

Exclusion of Broken Valve

Nichols attempted to introduce into evidence a valve with a broken retention ring so that Lombardo could show the jury how a broken retention ring might cause a valve to jam in either an open or a closed position. It was not shown that the valve or ring were the same kind as those employed in the crashed airplane. Other exemplar rings and valves were in evidence. The court sustained defendants' objection to the admission of this evidence. We affirm the district court's ruling, "Time and again we have stated that the admission of evidence is within the sound discretion of the district court.... Absent proof of abuse an appellate court will not disturb a district court's evidentiary rulings." Jon-T Chemicals. Inc. v. Free-port Chemical Co.,  704 F.2d 1412, 1417 (5th Cir.1983) (per curiara). See also Shipp v. General Motors Corp.,  750 F.2d 418, 427 (5th Cir.1985) ("The admission of ... demonstrative evidence is within the trial court's sound discretion and will not be disturbed on appeal absent 'abuse.'"). Moreover, there will be no reversal on appeal for a district court's exclusion of evidence "unless a substantial right of the party is affected." Ped.R.Evid. 103(a); Johnson v. William C. Ellis & Sons Iron Works, Inc.,  609 F.2d 820, 823 (5th Cir. 1980).

We hold that the court acted within its discretion in excluding the defective valve. Further, the proffered evidence would not have cured the deficiency in proof which we have found, and, since the jury found in favor of Nichols without the evidence, ^{Footnote 26} its exclusion was at ail events harmless.