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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-K-2056

UNITED STATES AVIATION UNDERWRITERS, INC. a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, Vs.

PILATUS BUSINESS AIRCRAFT, LTD, a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation, PILATUS AIRCRAFT, LTD, A Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

REPLY TO PLAINTIFFS' RESPONSE TO SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

Reply to Plaintiffs' Response to Pilatus' Summary Judgment Motion

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TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................................... iii I. Summary of Reply....................................................................................................................... 1 II. Reply Concerning Undisputed Facts.......................................................................................... 1 V. Arguments.................................................................................................................................. 3 A. Whether or Not the Pilot Properly Exercised His Judgment and Decided to Shut Down the Malfunctioning Engine is Irrelevant to the Issue of Defect Presented by this Summary Judgment Motion. ....................................................................................................................... 3 B. Whether or Not the Engine was Designed to be Shut Down and Restarted During Flight is Irrelevant to the Issues of Defect and Negligence Presented by this Summary Judgment Motion......................................................................................................................................... 4 C. Plaintiffs' Argument that the PC12 Aircraft has a Long History of Unreliability Leading to Inflight Engine Shut Downs is Unsupported by Evidence and, Even if True, is Irrelevant ....... 4 D. There is No Evidence that the Subject Power Turbine Blades Ever Failed During Flight and the Subject Power Turbine Blades were Never Recalled for that Reason or any Reason. ......... 4 E. A Manufacturing Defect May Cannot be Proven Solely by The Consumer Expectation Test ..................................................................................................................................................... 5 F. Even if Plaintiffs Did Allege Design Defect, the Risk-Benefit Test Rather than the Consumer Expectations Test Would be Applicable. .................................................................. 6 G. Plaintiffs Offered no Evidence to Support a Risk-Benefit Analysis...................................... 6 H. Plaintiffs Offer No Circumstantial Evidence from which Defect Can be Inferred Nor Did They Offer Evidence that Tends to Exclude Other Causes ........................................................ 7 I. The Opinions Expressed by Expert Witness David Rupert are Unreliable and Inadmissible. 9 J. Notwithstanding The Absolute Lack Of Any Factual Support For Rupert's Opinion That A PT Blade Failure Caused The Abnormal Sounds Reported By The Pilot, Rupert Did Not Testify that the Alleged PT Blade Failure Was Caused By A Defect. ..................................... 10 K. The Mere Fact of Abnormal Symptoms is Not Evidence of a Defect. ................................ 11 L. Defendants Met Their Burden Of Informing The Court Of An Absence Of Evidence Of Design Defect And Negligence And Are Entitled To Summary Judgment On Those Claims. 11

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TABLE OF AUTHORITIES Cases 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)........................................................................................................................................ 12 Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992) .................................................................. 5 Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, 1110 (D. Colo. 2000)............................ 6 Biosera, Inc. v. Forma Scientific, Inc., 941 P.2d 284, 287 (Colo. Ct. App. 1996) ......................... 5 Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1247 (Colo.1987).................................... 5, 6 Celotex v. Catrett, 477 U.S. 317,325 (106 S.Ct. 2548,2554) (1986)............................................ 11 Hauck v. Michelin N. Am., Inc., 343 F. Supp. 2d 976, 988 (D. Colo. 2004) .................................. 7 Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240-41 (Colo. Ct. App. 1988). ............................ 6 Lovato v. Burlington Northern & Santa Fe Ry., 2002 U.S. Dist. LEXIS 16844, 7-9 (D. Colo. 2002........................................................................................................................................... 10 McKenzie v. Benton, 388 F.3d 1342, 1351-1352 (10th Cir. 2004) ............................................... 10 Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999) ..................................................... 10 Montag v. Honda Motor Co. 75 F.3d 1414,1418 (10th Cir. 1996).................................................. 6 Oja v. Howmedica, Inc., 111 F.3d 782 (10th Cir. 1997) ............................................................ 7, 8 Ortho Pharm'l Corp. v. Heath, 722 P.2d 410, 413 (Colo. 1986).................................................... 5 Potthoff v. Alms, 583 P.2d 309, 311 (Colo. Ct. App. 1978)............................................................ 5 Shultz v. Linden-Alimak, Inc., 734 P.2d 146, 148-49 (Colo. App. 1986) ..................................... 11 Sofford v. Schindler 954 F.Supp. 1459, 1461 (Colo Dist. Ct. 1997) ........................................... 12 Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1215 (10th Cir. 2004) .................................. 7 Union Ins. Co. v. RCA Corp., 724 P.2d 80 (Colo. App. 1986)................................................... 7, 8 Weir v. Federal Ins. Co., 811 F.2d 1387 (10th Cir. 1987).......................................................... 7, 8 White v. Caterpillar, Inc., 867 P.2d 100 (Colo. Ct. App.1993) .................................................. 5, 6 Other Authorities Colorado Jury Instructions, 4th Civil (2004) 14:3 .......................................................................... 5 Rules 14 CFR § 23.903(e)......................................................................................................................... 4 Fed. R. Evid. 702 ....................................................................................................................... 9,10 Treatises Restatement (Second) of Torts § 402A(1) ................................................................................ 5, 11

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I. Summary of Reply It remains undisputed that plaintiffs offer no evidence of design or manufacturing defect or of negligence. Even with a second bite at the apple, their failure analysis expert, Rupert, would not or could not offer an opinion regarding defect or negligence in his declaration submitted in support of plaintiffs' response. Instead plaintiffs argue they do not need such evidence -- that if a jury believes Rupert's opinion that a PT blade failure caused the abnormal symptoms reported by the pilot, the jury may simply infer defect or negligence. But that is not the law. Colorado law requires evidence either that the product did not conform to its design specifications or the design itself was defective and unreasonably dangerous. Since plaintiffs offer no such evidence, this case must be dismissed. II. Reply Concerning Undisputed Facts. As more fully explained Exhibit A-7 "Objections to Evidence" most of plaintiffs' proffered evidence is irrelevant and lacks foundation or is unsworn and thus inadmissible. In particular, Exhibits 5-10 are irrelevant to the issue of defect or negligence raised by this motion and lack foundation. Exhibits 11-13 are inadmissible unsworn expert reports. Exhibits 14-15 are unverified self serving interrogatory responses that lack foundation. And the Rupert Declaration paragraphs 19.1, 19.3, 19.5 19.6 and 19.7 are inadmissible under Fed. R. Evid 702 because they are unreliable opinions that lack sufficient reliable basis. In support of their motion, defendants proved the following material facts are undisputed. For a detailed summary of the evidence see Exhibit A-8 "Undisputed Facts Chart." Therefore, the only issue for the court is whether based on these facts, defendants are entitled to summary judgment. 1. David Rupert is the only witness offered by plaintiffs as a failure analysis expert.

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Plaintiffs offer no admissible evidence, only unsworn expert reports. 2. Rupert's opinion is that the abnormal engine symptoms described by the pilot were

caused by a power turbine blade failure. Undisputed. 3. Rupert said his conclusion that a power turbine blade failed is based on "several reported

incidents involving power turbine blade failures in PT6A-67D engines." The supporting evidence is a direct quote from Rupert and is therefore not in dispute. 4. The subject engine was a PT6A-67B engine which is not the same as the PT6A-67D

engines Rupert said he used as his factual basis. Plaintiffs do not dispute that the engines that form the factual basis for Rupert's opinion were different models than 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 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. Plaintiffs offered no evidence that any of the SDRs that form the factual basis for Rupert's opinion, (Undisputed fact 5) involve the same model engine or PT blade as the subject engine or PT blade. 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. Plaintiffs do not dispute this fact but offer instead a new Rupert declaration. But like his deposition testimony and expert report, Rupert's declaration says nothing about defects. And like his deposition and expert report, Rupert's declaration neither states the cause of the PT blade failures nor rules out causes other than defect.

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8.

The SDRs which form the factual basis for Rupert's opinion do not specify the causes of

the power turbine blade failures. Plaintiffs do not dispute that the SDRs do not specify the causes of the power turbine blade failure. 9. Plaintiffs offered no evidence that any power turbine blade on any turbo-prop engine ever

failed due to a manufacturing or design defect. Plaintiffs cite the Rupert Declaration and Exhibit 10, but neither document either mentions or implies manufacturing or design defect. 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. The supporting evidence is a direct quote. 11. Plaintiffs offered no evidence of design defect or any witness qualified to testify on this

subject. 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 admissible evidence of design defect only unsworn expert reports. 12. Plaintiffs offered no evidence of negligence. Plaintiffs offered no evidence of negligent

conduct, citing again only the inadmissible unsworn expert reports. None of those reports express any opinion even remotely supporting any element of their negligence claim. V. Arguments A. Whether or Not the Pilot Properly Exercised His Judgment and Decided to Shut Down the Malfunctioning Engine is Irrelevant to the Issue of Defect Presented by this Summary Judgment Motion. Without demonstrating its relevance, plaintiffs' response argues that the "pilot properly exercised his judgment and decided to shut down the malfunctioning engine." (Response p. 5).

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But whether or not the pilot's judgment was proper is not relevant to any issue raised by this summary judgment motion. B. Whether or Not the Engine was Designed to be Shut Down and Restarted During Flight is Irrelevant to the Issues of Defect and Negligence Presented by this Summary Judgment Motion. Without demonstrating its relevance, plaintiffs' response points out that the applicable regulations "mandate that airplane engines must be designed so that they can be shut down and then restarted during flight." (14 CFR § 23.903(e)) (Response page 7). Clearly, this engine was shut down during flight and did begin to restart during flight until the pilot aborted the attempt. Therefore, it is uncertain what point plaintiffs are making with this argument. C. Plaintiffs' Argument that the PC12 Aircraft has a Long History of Unreliability Leading to Inflight Engine Shut Downs is Unsupported by Evidence and, Even if True, is Irrelevant Though PC12 reliability and inflight shutdowns unrelated to the of PT blade failure issue are discussed by plaintiffs, neither are relevant to the issues raised by this motion. (Response p. 8). D. There is No Evidence that the Subject Power Turbine Blades Ever Failed During Flight and the Subject Power Turbine Blades were Never Recalled for that Reason or any Reason. Plaintiffs' argument that "the power turbine blades in this engine were recalled by the engine manufacturer because they have a tendency to fail during flight" is a gross misstatement of the plain language of the Service Bulletin (Plntfs Ex 10) upon which the statement is based. (Response page 11). The document says "This service bulletin is optional and can be done at the discretion of the operator."

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E. A Manufacturing Defect May Cannot be Proven Solely by The Consumer Expectation Test Colorado courts have emphasized that a product must be both "unreasonably dangerous" and "defective" for strict liability to be imposed. Potthoff v. Alms, 583 P.2d 309, 311 (Colo. Ct. App. 1978) citing Restatement (Second) of Torts § 402A(1) and cmt. b. In assessing whether a product has a manufacturing defect that makes it unreasonably dangerous, the inquiry is limited to whether the product fails to conform to the manufacturer's specifications. Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1247 (Colo.1987). (stating that resolution of whether a particular product is unreasonably dangerous for purposes of design-defect or failure-to-warn cases is much more difficult than the determination of manufacturing defect cases because the product has been manufactured exactly as intended but is defective for another reason). Plaintiff's argument to the contrary is supported neither by the Colorado Jury Instructions nor the cases cited in their brief, as the alternative tests outlined in those sources are not used to prove the existence of manufacturing defects. Biosera, Inc. v. Forma Scientific, Inc., 941 P.2d 284, 287 (Colo. Ct. App. 1996) ("the freezer was defective because it could be turned off inadvertently"); See Colorado Jury Instructions, 4th Civil (2004) 14:3, Source and Authority ("A product may be defective in design and unreasonably dangerous if it fails to meet the "ordinary consumer expectation" test or the "risk-benefit" test." (emphasis added) citing Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992); Camacho 741 P.2d 1240 (Colo. 1987); Ortho Pharm'l Corp. v. Heath, 722 P.2d 410, 413 (Colo. 1986), emphasis added.) See also White v. Caterpillar, Inc., 867 P.2d 100 (Colo. Ct. App.1993). (holding that Colorado Jury Instructions incorporate both the "consumer expectation" and the "risk/benefit" tests for determining whether the design defect was unreasonably dangerous. (emphasis added)).

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Colorado law recognizes that there is an "important distinction between manufacturing defects on the one hand, and design and failure-to-warn defects on the other." Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1174, fn. 14 (Colo.,1993) (en banc). Under Colorado law, the consumer expectation's test is solely relied on in determining whether a design defect renders a product unreasonably dangerous. Even in design defect cases, "Colorado courts are unwilling to apply [the consumer expectation test] as the sole measure for determining whether a design defect renders a product unreasonably dangerous." Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, 1110 (D. Colo. 2000), citing Biosera, 941 P.2d at 287; White, 867 P.2d at 105; Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240-41 (Colo. Ct. App. 1988). F. Even if Plaintiffs Did Allege Design Defect, the Risk-Benefit Test Rather than the Consumer Expectations Test Would be Applicable. "Complex product liability claims involving primarily technical and scientific information require use of a risk-benefit test rather than a consumer expectations test." Montag v. Honda Motor Co. 75 F.3d 1414,1418 (10th Cir. 1996) citing Camacho 741 P.2d at 1246-48 (Colo.1987). Since the design and workings of a turbo-prop engine involve primarily technical and scientific information. Therefore the consumer expectations test is inapplicable. G. Plaintiffs Offered no Evidence to Support a Risk-Benefit Analysis. In Camacho, the Supreme Court listed some of the factors to be considered in a riskbenefit analysis. These include such things as the likelihood that it will cause injury and the probable seriousness of the injury, the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; and, the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. Camacho, 741 P.2d at 1247. These issues require

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specialized knowledge "beyond the experience and understanding of the average layman" for which expert testimony would ordinarily be required. Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1215 (10th Cir. 2004). But plaintiffs offered no risk-benefit evidence. H. Plaintiffs Offer No Circumstantial Evidence from which Defect Can be Inferred Nor Did They Offer Evidence that Tends to Exclude Other Causes Plaintiffs admit to a lack of direct or physical evidence of product defect but cite Union Ins. Co. v. RCA Corp., 724 P.2d 80 (Colo. App. 1986), Weir v. Federal Ins. Co., 811 F.2d 1387 (10th Cir. 1987), and Oja v. Howmedica, Inc., 111 F.3d 782 (10th Cir. 1997) in support of the contention that proof of product defect can be established through circumstantial evidence alone. However, Colorado courts limited the circumstantial evidence rulings in all three of the above cases to their "particular factual situation[s]" Hauck v. Michelin N. Am., Inc., 343 F. Supp. 2d 976, 988 (D. Colo. 2004) (distinguishing Union and Oja), see also Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d at 1214 (10th Cir. 2004) (distinguishing Union and Weir). The factual circumstances and type of evidentiary proof presented in this case are easily distinguishable from that in Union, Oja and Weir, In Union, the plaintiff's experts inspected the site of the fire and were able to testify that the fire had started at the specific location of the television set in the house, and were also able to identify the specific area in the set itself where ignition had occurred. Union, 724 P.2d at 83. Thus, the crucial circumstantial evidence was based on a physical inspection, and not just interviews with the product operator. Since the plaintiff's experts in Union were able to inspect the location of the accident, they had an opportunity to draw from physical evidence relevant evidentiary inferences as to the existence of a defect and its link in the chain of causation. In the

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case at hand, plaintiff's experts do not have access to a physical accident site from which they could draw any relevant inferences. In both Union and Weir, the court emphasized the fact that the plaintiffs were able to present evidence that "eliminate[s]" or "exclude[s]" other causes of the accident beyond an alleged defect. Union, 724 P.2d at 83; Weir, 811 F.2d at 1392. In this case, plaintiffs have not presented evidence which even tends to eliminate or make improbable all other possible causes for the alleged PT blade failure beyond defect. While their expert, Rupert, did attempt to rule out ice ingestion and foreign debris as causes of the abnormal sounds reported by the pilot, he was very careful not to state or rule out any causes of the PT blade failure. (Rupert Decl. para 20.1) Finally, Oja can be distinguished from the present case in that plaintiffs relied on more than mere circumstantial evidence. In Oja, the plaintiffs also presented evidence of identical items manufactured at approximately the same time that suffered from potential manufacturing defects. Hauck, 343 F. Supp. 2d at 988, citing 111 F.3d at 792-93. In this case, the plaintiffs argue as "circumstantial evidence" only the engine time and the pilot's report of abnormal symptoms. They call the engine "brand new" even though they admit in their complaint that it had almost 400 hours on it. (Complaint § 10.3 para. 2). But they provide no evidence or opinion upon which a jury can infer that an engine is not supposed to experience abnormal symptoms absent a defect. Plaintiffs other "circumstantial evidence" is the pilot report of abnormal symptoms, which, without any reliable quantitative or qualitative means of measurement, plaintiffs' expert attempts to compare with hearsay uncorroborated anecdotal evidence of very different incidents involving different airplanes, different engines and different parts. Therefore, the circumstantial evidence offered by plaintiffs herein is very different from that offered by plaintiffs in Union, Weir and Oja.

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I. The Opinions Expressed by Expert Witness David Rupert are Unreliable and Inadmissible. Although Rupert testified only about an alleged PT blade failure and not what caused that failure, even that testimony is inadmissible. To be admissible, expert opinion testimony must (1) based upon sufficient facts or data, (2) the product of reliable principles and methods, and (3) the reliable application of the principles and methods to the facts of the case. Fed.R.Evid. 702. In response to this motion for summary judgment, plaintiffs list the data which they argue is the basis for expert Rupert's opinion including the pilot's report of "sounds," "vibrations," "surging power" and failure of the propeller to rotate before the restart abort arguing that these symptoms were "consistent" with a PT blade failure. (Response p. 19-20). But Rupert never heard or experienced any of the symptoms described by Pelletier, the PWC witness or by the subject pilot. Nor did he testify that he ever heard or experienced any such symptoms coming from a similar engine or that there is any reliable quantitative or qualitative methodology for comparing such symptoms so as to reach a conclusion as to whether or not they were consistent. Thus has no basis for his statement that these symptoms are "consistent" with a PT blade failure. Plaintiffs also cite an alleged PT blade recall as "data." This "fact" is fabricated and inconsistent with the Service Bulletin (Ex. 10) on which it is allegedly based. The blades were never recalled. On the contrary, the Service Bulleting states "This service bulletin is optional and can be done at the discretion of the operator" and that its purpose is to "Replace the second stage power turbine blade with a redesigned one which has improved durability." Finally plaintiffs cite failure of the propeller to rotate on the restart as "data." But Rupert provides no evidence that a failed or partially fractured PT blade can prevent, or has ever prevented the propeller on this or a similar engine from rotating. He provided no information about the power achieved by the engine before the restart was aborted nor any reliable

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quantitative or qualitative methodology for determining how much power is required to turn the propeller. Therefore his statement that a failed PT blade prevented the propeller from rotating is pure speculation. 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. Accordingly, none of the "data" cited by plaintiffs can form a reliable basis for Rupert's opinion that a PT blade failure caused the abnormal symptoms reported by the pilot. Fed. R. Evid. 702 requires that expert testimony be "based on `actual knowledge and not `subjective belief or unsupported speculation.'" Lovato v. Burlington Northern & Santa Fe Ry., 2002 U.S. Dist. LEXIS 16844, 7-9 (D. Colo. 2002). citing Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999). Because Rupert's opinion is based on pure speculation rather than fact, it is not reliable, will not be "helpful" to the trier of fact, and must be excluded. McKenzie v. Benton, 388 F.3d 1342, 1351-1352 (10th Cir. 2004). J. Notwithstanding The Absolute Lack Of Any Factual Support For Rupert's Opinion That A PT Blade Failure Caused The Abnormal Sounds Reported By The Pilot, Rupert Did Not Testify that the Alleged PT Blade Failure Was Caused By A Defect. In his deposition, Rupert said he did not know and could not know what caused the power turbine blade failure. (Undisputed Fact 7) His declaration, submitted in support of plaintiffs' response to this summary judgment, also failed to state what caused the PT blade failure. Nor did Rupert attempt to rule out other causes as required for plaintiffs to establish defect solely based on circumstantial evidence. (Undisputed Fact 7) While he did attempt to rule out ice ingestion and foreign debris as causes of the abnormal sounds reported by the pilot, he

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was very careful not to state or rule out any causes of the PT blade failure. (Rupert Decl. para 20.1) Therefore Rupert offered no evidence of defect. K. The Mere Fact of Abnormal Symptoms is Not Evidence of a Defect. Plaintiff asks the court to depart from precedent and apply the consumer expectations test to this manufacturing defect case, thereby enabling a jury to find for the plaintiff simply on the basis of the fact that the "engine [allegedly] malfunction[ed] during flight." Response p. 21. However, as Colorado court's have recognized, "the occurrence of an accident in connection with a product does not necessarily make that product defective and unreasonably dangerous" Shultz v. Linden-Alimak, Inc., 734 P.2d 146, 148-49 (Colo. App. 1986). Moreover, "there can be no recovery under the theory of strict liability without proof of a defect attributable to the manufacturer or seller which was the cause of the plaintiff's injuries." Id. citing Restatement (Second) of Torts § 402A. The simple failure of the product is not sufficient evidence from which a jury can reasonably infer defective design or manufacture. Due to the technical nature of the inquiry, the plaintiff must present expert testimony establishing the existence of a defect and its alleged causal role in the accident. L. Defendants Met Their Burden Of Informing The Court Of An Absence Of Evidence Of Design Defect And Negligence And Are Entitled To Summary Judgment On Those Claims. Plaintiffs correctly cited the moving parties burden in a summary judgment motion based on lack of evidence. "[T]he burden on the moving party may be discharged by `showing' ­ that is, pointing out to the district court ­ that there is an absence of evidence to support nonmoving party's case." Celotex v. Catrett, 477 U.S. 317,325 (106 S.Ct. 2548,2554) (1986). The undisputed facts established that none of plaintiffs' experts were qualified to, or did allege design defect or negligence in their deposition testimony or expert reports. In Celotex, the Supreme

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Court ruled there was "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id at 323. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id at 322. As "evidence" to support their claims of design defect and negligence, plaintiffs cite "the Rule 26(a)(2) reports of their expert witnesses, Dr. Lawrence Scanlan, Mr. David Rupert, and Mr. Jeff Edwards. (Plntfs.' Ex. "11" [Scanlan]; Plntfs.' Ex. "12" [Rupert]; Plntfs,' Ex. "13" [Edwards].)" (Response p. 23). But unsworn expert reports are "not competent evidence for ... consideration in ruling on [a] motion for summary judgment." Sofford v. Schindler 954 F.Supp. 1459, 1461 (Colo Dist. Ct. 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). They also submit their own responses to interrogatories Plntfs Ex 14 and 15. (Response p 24). But these unverified and therefore unsworn statements are inadmissible Adickes Id. Moreover, by plaintiffs' own admission, they lack foundation. Indeed, both exhibits state "because some of these responses may have been ascertained by plaintiffs' attorneys and investigators, plaintiffs may not have personal knowledge of the information from which these responses are derived." (Preliminary Statement 0.7). Accordingly, plaintiffs made no showing of any admissible evidence of design defect or negligence.

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RESPECTFULLY SUBMITTED this 6th day of December 2005. By__/s Robert Schultz_______________________ Robert Schultz Law Office of Robert B. Schultz 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 E-mail [email protected] Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of December 2005, I caused the forgoing REPLY TO PLAINITFFS' RESPONSE TO SUMMARY JUDGMENT MOTION BY DEFENDANTS PILATUS BUSINESS AIRCRAFT, LTD, PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT AND PILATUS AIRCRAFT, LTD and OBJECTIONS TO EVIDENCE OFFERED BY PLAINTIFFS IN THEIR RESPONSE TO PILATUS' SUMMARY JUDGMENT MOTION to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

__s/ Robert Schultz__________ Law Offices of Robert B. Schultz [email protected]

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