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

Case 1:01-cv-02056-JLK

Document 73-2

Filed 12/06/2005

Page 1 of 5

EXHIBIT A-7 OBJECTIONS TO EVIDENCE Defendants object as follows to evidence offered by plaintiffs in their response to Pilatus summary judgment motion. Evidence Pilot Smith's testimony re reasons for shutting down engine and aborting restart. Response p. 5-7 Bretscher Testimony re inflight shut downs (IFSD), Response p. 8-9; Ex 5. Coordination Memo, Response p. 9. Objection Irrelevant. The reason why Smith shut down the engine and aborted the restart are irrelevant to this motion and do not support plaintiffs' claim that the engine was defective. Irrelevant and lacks foundation. The term "in-flight shut down" or "IFSD" refers to a case where the engine quits. It has no relevance or probative value in this case where the engine did not quit. Irrelevant and lacks foundation. Plaintiffs offer as evidence one sentence in this document "The PT6A-67B grinding noise and propeller blockage after shutdown is caused by the abrasive seal at the PT blades." They argue the relevance is that pilot Smith heard the "same kind of `grinding noises' coming from his engine before it was shut down." Since no one heard both grinding noises and there is no reliable quantitative or qualitative methodology to compare the two, there is no basis for saying that they were the "same kind" of grinding noises. Secondly, this grinding noise is from an entirely different and known cause, an "abrasive seal," not a PT blade failure. Moreover, with respect to this sentence, Bretscher explained in his deposition that "[i]t was probably something which was discovered during the first engine ground runs. Otherwise, it would not be under the quality heading." Vol 1 p. 223. So even the circumstances were far different ­ quality control first engine ground runs, not inflight after hundreds of hours of service. Irrelevant and lacks foundation. Plaintiffs offer this letter as evidence of "serious reliability and safety problems" with the PT6A-67B engine. But there is nothing in this letter about PT blade reliability or safety problems. And other than the two incidents mentioned, the Royal Canadian Mounted Police incident and the Kelner incident, neither of which involve PT blades, there is no explanation of what the writer means by "engine problems" and "quality problems." Nor, other than the two aforementioned incidents, is there any basis for plaintiffs' argument that the engine and quality problems discussed are safety related. They are more likely warranty issues.

Ex 6. December 1968 letter. Response p. 9.

EXHIBIT A-7 Objections To Evidence

Page 1 of 5

Case 1:01-cv-02056-JLK

Document 73-2

Filed 12/06/2005

Page 2 of 5

Ex 7. July 2001 letter, Response p. 7.

Ex 8. Pilatus Meeting slide and Bretscher testimony. Response p. 10

Irrelevant and lacks foundation. Plaintiffs provide no argument for admissibility of this letter. However, on its face it says nothing about PT blade failures. Plaintiffs quote the letter where it points out that with "269,337 [PC12] hours we now have registered 6 in flight shutdowns." This fact is not probative on the issue of whether on this occasion this aircraft suffered a PT blade failure as alleged. Indeed, although the letter's author is clearly unhappy with that IFSD rate, there is no evidence as to whether it is high, low or average. Plaintiffs also quote the letter regarding the Access Air ditching that is the subject of this lawsuit. Bearing in mind that the letter was written weeks after the incident, the author writes and plaintiffs quote, "[T]o the rest of the world this is just another instance of a PC-12 with an engine in flight shutdown [IFSD]." That, of course is the same misconception that plaintiffs would have this court and the jury believe. But it is not true. This was a deliberate engine shutdown. Irrelevant and lacks foundation. Plaintiffs offer this exhibit solely to show that the "IFSD rate for the PC-12 engine was more than seven times higher than expected." As previously stated, the IFSD rate is not in any way related to or probative regarding this incident wherein a PT blade failure is alleged because, this was a deliberate engine shutdown not an IFSD and because none of the listed potential or actual IFSDs were caused by PT blade failures. That is, each listed event identifies the problem and none are related to the PT blades. A bullet point says "Required rate better than 3 x 10-6 " but when asked what that meant, Bretscher testified, "I don't know. I don't believe I actually wrote this presentation." Bretscher dep p. 246.

EXHIBIT A-7 Objections To Evidence

Page 2 of 5

Case 1:01-cv-02056-JLK

Document 73-2

Filed 12/06/2005

Page 3 of 5

Ex. 9. Senior Management Meeting Minutes Response p. 11. Ex 10. PWC SB No. 14369, Response p. 11 and Response to Undisputed Facts 4, 6, 7 and 9.

Ex. 11 Scanlon Expert Disclosure. Response p. 23.

Ex. 12. Rupert Expert Disclosure. Response p. 23.

Ex. 13. Edwards Expert Disclosure. Response p. 23.

Irrelevant and lacks foundation. As with Ex. 7 and 8, Exhibit 9 is offered to show concern regarding IFSD rates. But those rates are neither relevant nor probative regarding the issue of whether or not a PT blade failure occurred in the instant case. Irrelevant and lacks foundation. The issue is PT blade failure caused by a manufacturing or design defect. Although Exhibit 10, as quoted by plaintiffs, states, "There have been blade fractures in the field" it does not say which blades failed or that any of the subject PT blades ever failed. When Jean Pelletier, a PWC turbine engineer was asked about this document, he said 1) there was only one failure of the subject PT blade and @) the failure occurred on a different model airplane which had logged over 5,000 hours of operation and 3) there is no evidence that the PT blade failed in flight. Moreover, the document says nothing about manufacturing or design defects as a cause. It says that the PT blade was redesigned to improve durability. So a blade that has been shown to last a minimum of 5,000 hours was improved to last longer ­ hardly evidence of a design defect. Finally, plaintiffs' statement that this document "required the replacement of all second stage power turbine blades in PT6A-67B engines grossly misstates its plain language. The document says "This service bulletin is optional and can be done at the discretion of the operator." An optional service bulletin to extend the life of a part that already lasts 5,000 hours is not evidence of a defect and should be excluded. Unsworn statement. Expert reports are "unsworn and therefore not competent evidence for ... consideration in ruling on the motion for summary judgment." Sofford v. Schindler Elevator 954 F.Supp. 1459,1462 (Colo. 1997); citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 1608 n. 17, 26 L.Ed.2d 142 (1970) Unsworn statement. Expert reports are "unsworn and therefore not competent evidence for ... consideration in ruling on the motion for summary judgment." Sofford v. Schindler Elevator 954 F.Supp. 1459,1462 (Colo. 1997); citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 1608 n. 17, 26 L.Ed.2d 142 (1970) Unsworn statement. Expert reports are "unsworn and therefore not competent evidence for ... consideration in ruling on the motion for summary judgment." Sofford v. Schindler Elevator 954 F.Supp. 1459,1462 (Colo. 1997); citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 1608 n. 17, 26 L.Ed.2d 142 (1970)

EXHIBIT A-7 Objections To Evidence

Page 3 of 5

Case 1:01-cv-02056-JLK

Document 73-2

Filed 12/06/2005

Page 4 of 5

Ex. 14. Plaintiffs' Responses to Interrogatories.

Ex. 15. Plaintiffs' Responses to Interrogatories.

Rupert Declaration para. 19.1

Rupert Declaration para. 19.3

Unsworn and lacks foundation. Plaintiffs' unverified written responses to discovery are inadmissible to support their own claims. Moreover, these are merely plaintiffs' contentions, which by their own admission were written by their attorneys. See Preliminary Statement 0.7. Unsworn and lacks foundation. Plaintiffs' unverified written responses to discovery are inadmissible to support their own claims. Moreover, these are merely plaintiffs' contentions, which by their own admission were written by their attorneys. See Preliminary Statement 0.7. Unreliable and lacks foundation. Rupert did not hear either the "rubbing sounds" described by Pelletier or the "whining" and "grinding" noises described by the subject pilot. Nor did he testify that he ever heard any such noises coming from a similar engine or that there is any reliable quantitative or qualitative methodology for comparing such noises. Moreover, on their face, these two phrases describe completely different symptoms. Thus has no basis for his statement that these symptoms are "consistent" with one another. Unreliable and lacks foundation. Rupert did not hear or feel either the "vibrations" described by Pelletier or the "vibrations" described by the subject pilot. Nor did he testify that he ever heard or felt any such vibrations coming from a similar engine or that there is any reliable quantitative or qualitative methodology for comparing such vibrations. Thus has no basis for his statement that these symptoms are "consistent" with one another.

EXHIBIT A-7 Objections To Evidence

Page 4 of 5

Case 1:01-cv-02056-JLK

Document 73-2

Filed 12/06/2005

Page 5 of 5

Rupert Declaration para. 19.5

Rupert Declaration para. 19.6

Rupert Declaration para. 19.7

Unreliable and lacks foundation. Rupert offered no reliable quantitative or qualitative methodology for comparing Pelletier's "loss of power" symptom to the pilot's "surging thrust" symptom. Moreover, on their face, these two phrases describe completely different symptoms. Thus he has no basis for his statement that these symptoms are "consistent" with one another. Unreliable and lacks foundation. Rupert`s opinion that "failure of the PT blade in the subject engine is consistent with the descriptions of PT blade failures that were found in FAA Service Difficulty Reports on problems that occurred on the engines effected(sic) by SB14369" lacks foundation. The SDRs he identified in his deposition as the basis for this opinion are attached to the motion Exhibit A-4. Of the 12 SDRs, none of them involved the same engine or PT blade and only 8 were PT blade failures. Of the 8 PT blade failures only 4 mention symptoms. Three of the four mention only a loud bang or thump rather than any of the symptoms described by the pilot in this case. The fourth describes a whining noise and vibration in the prop lever but not in the engine as described by the pilot in this case. Accordingly there is no basis for Rupert's opinion that the PT blade failures found in the SDRs are consistent with the scenario described by the pilot. Unreliable and lacks foundation. Rupert's opinion that "contact between adjacent engine parts and one or more failed (or partially fractured) PT blades is also consistent with the pilot's report that the propeller did not rotate during the attempted restart" is pure speculation lacking any foundation in fact. He provides no evidence that a failed or partially fractured PT blade ever prevented the propeller on this or a similar engine from rotating on restart or whether it is even possible taking into account the amount of torque applied to the turbine by the engine's thrust. Rupert provides no information about the torque level reached by the engine before the abort. Rupert cites no evidence that the engine was not operating normally on the restart nor does he opine that the propeller would not have rotated had the pilot not aborted the restart.

EXHIBIT A-7 Objections To Evidence

Page 5 of 5