## Facts

- Thomas Campbell worked for Keystone Aerial Surveys, Inc. beginning in April 1994 as an “air mag operator,” assisting aerial magnetic surveys that required low-altitude flight.
- On May 28, 1994, a Cessna 320E conducting survey work crashed into a canyon wall near Battle Mountain, Nevada, killing pilot Steve Fish and Campbell.
- The Campbells (surviving family and estate) sued Keystone for wrongful death and survival, alleging negligence based on a “controlled flight into terrain” theory (pilot retained control but failed to avoid terrain).
- Keystone denied pilot error and offered alternative causation theories through an expert, Warren Wandell.
- Keystone designated Wandell late, after scheduling and discovery deadlines, and the district court allowed him to testify over objection.
- The jury found no negligence by Fish proximately caused the crash and found Campbell was an independent contractor rather than Keystone’s employee.

## Issues

1. Whether the district court abused its discretion by permitting Keystone’s late-designated expert to testify despite discovery and scheduling violations.
2. Whether the district court erred in excluding evidence relevant to survivors’ mental anguish damages, including evidence concerning the condition of Campbell’s remains.
3. Whether the jury’s finding that Campbell was an independent contractor (not an employee) was supported by the evidence.

## Decision

- The Fifth Circuit vacated the judgment and remanded for a new trial on liability and compensatory damages.
- The court held the district court abused its discretion by allowing Keystone’s late-designated expert to testify without a meaningful, on-the-record evaluation of relevant factors and without adequate steps to reduce prejudice.
- The court directed reconsideration of certain damages-related evidentiary exclusions on remand, including testimony about the condition of Campbell’s remains, under proper evidentiary balancing.
- The court affirmed the jury’s independent-contractor finding and held that issue would not be retried.

## Legal Principles

- A trial court deciding whether to exclude a late-disclosed witness or evidence under scheduling and discovery rules must evaluate: (1) importance of the testimony, (2) prejudice to the opposing party, (3) possibility of curing prejudice (including a continuance), and (4) the proponent’s explanation for noncompliance.
- Allowing a late-designated expert in a technical case can be reversible error when the testimony is central and the opponent lacks adequate time for deposition, rebuttal experts, or trial preparation, and the court fails to mitigate prejudice.
- Evidence concerning the physical condition of a decedent’s remains may be relevant to survivors’ mental anguish damages and should be assessed under Rule 403 balancing rather than excluded categorically.
- Independent-contractor versus employee status is a fact-driven question for the jury and will be upheld on appeal when supported by sufficient evidence, including evidence about the degree of control and contractual indicia.

## Conclusion

The Fifth Circuit ordered a new trial on liability and compensatory damages because the district court improperly permitted a late-designated defense expert without adequately weighing prejudice and available cures, while leaving intact the jury’s determination that Campbell was an independent contractor.


Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996 (5th Cir. 1998)