Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

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Filed 12/06/2005

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Fact 1. David Rupert is the only witness offered by plaintiffs as a failure analysis expert.

Supporting Evidence Excerpt from plaintiffs FRCP Rule 26(a)(2) report attached as Exhibit A-3.

Plaintiffs' Response Disputed. Plaintiffs' expert witnesses include Dr. Lawrence Scanlon and William J. Edwards. (Plntfs' Ex. 11 and 13)

Reply Plaintiffs dispute this fact but offer no evidence. They cite only the Scanlan and Edwards expert reports which are unsworn statements and therefore inadmissible. Moreover, neither statement expressed any opinion as to what caused the abnormal engine symptoms described by the pilot. This may be a matter of semantics but it is not an issue of fact.

2. Rupert's opinion is that the abnormal engine symptoms described by the pilot were caused by a power turbine blade failure.

Q How would you describe your present area of expertise? A I consider myself to have expertise in the technical aspects of aircraft accident investigation and in the area of failure analysis of aircraft components and systems. Rupert Vol. 1 p. 17 attached as Exhibit A-5 Excerpt from plaintiffs FRCP Rule Undisputed 26(a)(2) report Section 5.3 Opinions and Conclusions para. 4 attached as Exhibit A-3.

Undisputed.

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3. Rupert said his conclusion that a power turbine blade failed is based on "several reported incidents involving power turbine blade failures in PT6A67D engines." 4. The subject engine was a PT6A67B engine which is not the same as the PT6A-67D engines Rupert said he used as his factual basis.

Excerpt from plaintiffs FRCP Rule 26(a)(2) report Section 5.3 Opinions and Conclusions para. 4 attached as Exhibit A-3.

Disputed. Mr. Rupert's report (Plntfs' Ex. 12) speaks for itself.

Plaintiffs dispute this fact but offer no new evidence, arguing only that Rupert's Rule 26 disclosure speaks for itself. But this statement is a direct quote from that same disclosure and is therefore not in dispute.

Excerpt from plaintiffs FRCP Rule 26(a)(2) report Section 5.3 Opinions and Conclusions para. 4 attached as Ex. A-3. Q. On the PT blade failures that you reviewed, clarify these, these were all 67D engines, not 67B, correct? A. 67 series on engines other than the 67B and other PT6 series engines, other than the 67B. Rupert Vol. 2 p.239 attached as Exhibit A-5 Rupert Deposition Exhibits 220 and 221 attached as Exhibit A-4 [On Exhibit 221, only the SDRs marked by the witness with stars are relevant.]

Disputed. The defective PT blades used in the PT6A-67D engine are the same as the defective PT blades used in the PT6A-67B engine. (Plnts' Ex. 10, 17, [Pelletier Depo. Pp.33-34 and 38-40].)

Plaintiffs dispute this fact but argue only that the blades were similar, not the engines. They do not dispute that the engines that form the factual basis for Rupert's opinion were different. Therefore, there is no issue of fact as to whether or not any of the engines that form the factual basis for Rupert's opinion are the same as the subject engine.

5. The "reported incidents" that form the factual basis for Rupert's opinion were reported in the form of service difficulty reports (SDRs).

Undisputed.

Undisputed

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6. None of the SDRs that form the factual basis for Rupert's opinion involve the subject airplane, a Pilatus PC-12, the subject engine, a Pratt & Whitney PT6A-67B or the subject power turbine blade, part number 3044183-01.

Rupert Deposition Exhibits 220 and 221. attached as Exhibit A-4 All of the relevant SDRs that indicate an aircraft make and model are Beech Model 1900s. All of the relevant SDRs that indicate an engine make and model are Pratt & Whitney PT6A-67Ds. Only two of the relevant SDRs specify the power turbine blade part number in both cases, the part number is not the same as that of the subject engine. Those indicated part numbers are 311856301 for a/c registration number N87552 and 312011201 for a/c registration number N16540 on Exhibit 220. The subject part number was 304418301 as stated by Pratt & Whitney witness Jean Pelletier below. Q. And you also mentioned a part number. Do you know the part number off the top of your head? A. On this thing, going throughout service bulletins, it's a 3044183-01. Pelletier p. 35 attached as Exhibit A-6

Disputed. The defective PT blades used in the PT6A-67D engine are the same as the defective PT blades used in the PT6A-67B engine. (Plnts' Ex. 10, 17, [Pelletier Depo. Pp.33-34 and 38-40].)

Plaintiffs disputed this fact but offered no evidence that any of the SDRs that form the factual basis for Rupert's opinion, (Undisputed fact 5) involve the same engine or PT blade as the subject engine or PT blade. Therefore, this fact is undisputed.

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7. Rupert did not state in his Rule 26 report or testify in deposition what caused the power turbine blade failure and could not rule out causes other than a defect.

Excerpt from plaintiffs' FRCP Rule 26(a)(2) report. Attached as Exhibit A-3. A. I believe it's probable there was a defect within the engine. Q. What was the defect? A. In all probability a problem with a second stage turbine, power turbine. Q. What was the problem with the power turbine blade that you described? A. I don't know. Excuse me, I don't know. [Although Mr. Rupert said there was a defect, when asked what the defect was he said it was an unknown second stage power turbine blade problem. But a power turbine problem is not necessarily a defect.] Rupert Vol. 2: p212 attached as Exhibit A-5 Q. BY MR. BYRNE: Would it be fair to state that you are not able to say within a reasonable degree of probability what caused a PT blade failure in the Access Air incident, if in fact such a failure occurred? A. With the information I have right now that is correct.

Disputed. The PT blades failed because of manufacturing defects identified by Pratt & Whitney (Plntfs' Ex 10) and Mr. Rupert has ruled out other potential causes (Rupert Decl.).

Plaintiffs disputed this fact but offered no evidence to create an issue of fact as to what caused the alleged PT blade failure or to rule out causes other than defect. In their response, they allege that the PT Blades failed because of manufacturing defects citing as evidence their Exhibit 10, a Pratt & Whitney Service Bulletin. But that document neither states nor implies a manufacturing defect. In the Summary on the first page it says, "Replace the second stage power turbine blade with a redesigned one which has improved durability." On the fourth page under Compliance it says "This service bulletin is optional and can be done at the discretion of the operator." They also cite as evidence the Rupert Declaration attached to their response. But the declaration says nothing about manufacturing defects either. Rupert, however misstates the above quoted plain language of the service bulletin when he says that it "requires the blades to be replaced." Rupert Decl. para. 19.6. Moreover, he misstates Pelletier's testimony when he says the subject "blades failed during flight on at least 20

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Rupert Vol. 2 p.178 attached as Exhibit A-5 Q. In your analysis of what you believe to be a PT blade failure, did you make an attempt to investigate all the possible causes of a PT blade failure? A. I didn't have any parts to investigate so really I don't understand the question. I have also thought of a couple of other possible causes, foreign object damage, debris gets through the engine far enough to damage a blade, handling damage during assembly, building material damage, such as a bolt or vein failure. Those are a few more possible ones but I'm sure there's more. Rupert Vol. 2 p.237 attached as Exhibit A-5

occasions." Rupert Decl. para. 19.6. Pelletier said that only one of the blade failures involved that same blade as the one on the subject aircraft and it involved a different engine. Q. There has been only one reported failure of the 3044183-01 blade; correct? A. That's correct. Q And that was on the 67D? A. That's correct. Pelletier Depo p. 39 (Plaintiffs Ex 17). Furthermore, there is no evidence that this failure occurred in flight. In fact, in all 20 failures, including the 3044183-01 part, the blades had over 5000 hours of operation any many were diagnosed on the ground during a visual inspection. Pelletier depo p.43. (Plaintiffs Ex 17) Finally, Rupert's declaration neither states the cause of the PT blade failures nor rules out causes other than defect. In para. 20.1 he says: "I have considered data which suggests that the problem(s) which caused the engine to be shut down could have been caused by something other than a PT blade

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failure, such as the ingestion of ice or foreign debris (FOD) during flight. For the reasons set forth in my Rule 26(a)(2) report, I have concluded that the available objective data confirms that the ingestion of ice or FOD is not the most likely cause of the problem(s) that prompted the engine to be shut down. Instead, the most likely cause of those problems is a failure of one or more PT blades." Considering that this declaration was prepared in response to this motion, it is clear that plaintiffs' expert still has no opinion as to what caused the PT blade failure. Accordingly, plaintiffs offered no evidence to create an issue of fact regarding a manufacturing defect and they never alleged design defect. Plaintiffs do not dispute that the SDRs do not specify the causes of the power turbine blade failure. They argue only that the SDRs are not the only bases for Mr. Rupert's opinion. But as proven above, Rupert's declaration cited as evidence of other bases for his conclusions, does not state any

8. The SDRs which form the factual basis for Rupert's opinion do not specify the causes of the power turbine blade failures.

Rupert Deposition Exhibits 220 and 221. Q. ... was a determination made of what caused the blade failure? A. I don't think I have any information on any of these SDR's as to what caused the blade failure. Rupert Vol. 2 p.239 attached as

Disputed. The SDRs are not the only bases for Mr. Rupert's conclusions. (Rupert Decl.)

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Exhibit A-5

opinion as to what caused the PT blade failure, only that the abnormal symptoms reported by the pilot were caused by a PT blade failure. Moreover, his statement that "A failure of the PT blade in the subject engine is consistent with descriptions of PT blade failures that were found in FAA [SDRs] on problems that occurred on engines effected by SB 14369" grossly misstates the facts. Para. 19.6. The SDRs are the data identified above and attached to the Motion as Exhibit A-4 (Fact 5 above). None of the SDRs in Exhibit A-4 state the cause of the PT blade failure. In fact, of the 12 SDRs, only 8 describe PT blade failures and only 4 describe symptoms. Of those 4 that describe symptoms, none involve the same aircraft engine or part number and none of the descriptions are consistent with "a failure of the PT blade in the subject engine." In short, there is no evidence in these SDRs to support an issue of fact as to the cause of the alleged PT blade failure.

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9. Plaintiffs offered no evidence that any power turbine blade on any turbo-prop engine ever failed due to a manufacturing or design defect.

Excerpt from plaintiffs' FRCP Rule 26(a)(2) report. Attached as Exhibit A-3. and Rupert Deposition generally (not attached in entirety.)

Disputed. Plaintiffs have offered evidence of PT blade failures in turbo-prop aircraft casued by manufacturing or design defects. (Rupert Decl. Plnts' Ex. 10)

10. Mr. Rupert admitted in his deposition that he did not know and without physical evidence, could not know what caused the power turbine blade failure.

Disputed. Mr. Rupert made no Q. Do you agree that without such "admission" during his physical evidence we can never testimony. know what the cause of the PT blade failure was, assuming there was PT blade failure? A. That's correct. You might get some ideas from reports that are more detailed than the SDR's that I have, previous investigations of 67D failures might give you an idea of a probable cause. But I think that's the closest you'd ever

Plaintiffs dispute this fact citing again the Rupert Declaration and Exhibit 10. But neither document even mentions manufacturing defect. None of the 8 SDRs that mention PT blade failure identify the cause. And there is no evidence that any of the 20 PT blade failures that led to Exhibit 10 were caused by a defect. Indeed, Exhibit 10 says only that the PT blades were redesigned to improve durability. And Pelletier testified that all of the 20 PT blade failures that led to Exhibit 10 were on "high time" engines, that is, engines with over 5,000 hours of flight time. Pelletier p. 42. (Plntfs Ex 17). Therefore this fact remains undisputed. Plaintiffs disputed this fact, but the supporting evidence is a direct quote. Rupert said that if he had more detailed SDRs, he might have an "idea of the probable cause." But the closest you will ever get is "analyzing other PT blade failures on this series engine." Since there are no more detailed SDRs in evidence and there are no other PT blade failures in this series engine, Rupert, by his own

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11. Plaintiffs offered no evidence of design defect or any witness qualified to testify on this subject.

get is analyzing other PT blade failures on this series engine. Rupert Vol.2 p.238 attached as Exhibit A-5 Q You have never been involved in the design of an aircraft or an aircraft engine, have you? A No, I have not. Q And you have never personally been involved in the manufacturing of an aircraft engine or an aircraft; correct? A No, I have not. Q Have you ever been involved in modifications to an aircraft or an aircraft engine? A No. Q I take it, then, that you do not consider yourself to be an expert in designing a turboprop engine? A No. Q And you do not consider yourself to be an expert in the manufacturing of a turboprop engine? A No. Rupert Vol 1 p. 37 attached as Exhibit A-4

Disputed. The opinions and conclusions of plaintiffs' expert witnesses all tend to prove that the damages were caused by a design defect. (Plntfs' Ex. 11, 12 and 13.)

admission, does not and cannot know what caused the PT blade failure in this case. Therefore, this admission is undisputed. Plaintiffs' response is puzzling since in response to 7 above they said that "the PT blades failed because of manufacturing defects" and they still offer no evidence of design defect. Exhibits 11, 12 and 13, the Scanlan, Rupert and Edwards expert disclosures, respectively are inadmissible unsworn expert reports. Moreover, Scanlan's opinion is that the "pilot properly assessed the emergency situation and correctly decided to shutdown the engine." That is not evidence of a design defect. The Rupert says only the "the most probable location of the failure ... was in the power section ... [and] the most likely failure in the power section ... was a power turbine blade." He said nothing about design defect. Edwards' opinion is merely rebuttal to defendants' position on pilot error. Therefore, plaintiffs failed to create an issue of fact regarding design defect.

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12. Plaintiffs offered no evidence of negligence.

Plaintiffs' FRCP Rule 26(a)(2) report. Attached as Exhibit A-3.

Disputed. The opinions and conclusions of plaintiffs' expert witnesses all tend to prove that the damages were caused by defendants' negligent conduct. (Plntfs' Ex. 11, 12 and 13.)

Plaintiffs dispute this fact but offered no evidence of negligent conduct, citing again only the inadmissible unsworn Scanlan, Rupert and Edwards expert reports (Exhibits 11, 12 and 13). None of those reports express any opinion even remotely supporting any element of their negligence claim. Therefore plaintiffs fail to create an issue of fact regarding negligence.

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