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

Case 1:01-cv-02056-JLK

Document 237

Filed 08/16/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane

Civil Action No. 01-cv-2056-JLK-MJW UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. d/b/a 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.

PILATUS' REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS' JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL Plaintiffs' opposition that Pilatus' pre-verdict Rule 50(a) motion was legally insufficient and that PWC's motion concerned only the jury's verdict against PWC, is disingenuous considering that throughout the trial they sought to hold both defendants equally liable for selling the same allegedly defective engine. Both PWC's and Pilatus' trial and post trail Rule 50 motions were, and are based on the same lack of engine defect evidence. Moreover, at the time of trial, neither the Court nor Plaintiffs professed any lack of understanding of the deficiencies now alleged for the first time by Plaintiffs.

PILATUS REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

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Case 1:01-cv-02056-JLK

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I.

PILATUS' STATEMENT OF FACTS AND LAW WAS LEGALLY SUFFICIENT TO

PRESERVE THEIR POST TRIAL RULE 50 MOTION BECAUSE THE TRIAL COURT WAS AWARE OF PILATUS' POSITION. "Fed. R. Civ. P. 50(a) expressly requires a motion for a directed verdict to `state the specific grounds therefor.' We have stated previously, concerning this rule, that `technical precision is not necessary in stating grounds for the motion so long as the trial court is aware of the movant's position.' United States v. Fenix & Scisson, Inc., 360 F.2d 260, 266 (10th Cir. 1966), cert. denied 386 U.S. 1036, 18 L. Ed. 2d 599, 87 S. Ct. 1474 (1967)." First Security Bank of Beaver v. Taylor, 964 F.2d 1053, (10th Cir. 1992) (emphasis added) Relying as it had throughout the trial on PWC to fill in the specifics, Pilatus said: "Plaintiffs have failed to prove the elements of their claim of strict products liability, which was the only claim in this case, and ... failed to prove that the airplane or engine was defective at the time it was manufactured, constructed, assembled, installed, tested or sold by the defendant, or left the defendants' custody or control, and ... failed to prove that ... a defect was the cause of plaintiffs' damages" (RT 427:3-10). Indeed, recognizing this practice, the Court asked PWC's counsel, "Mr. Byrne, anything more?" (RT 427:11). Among other things, Mr. Byrne added: "There is no evidence that this product was unreasonably dangerous because of a defect in its design which creates a risk of harm to persons or property which would not ordinarily be expected. The only witness they had who may have testified regarding that element of their burden -- that element of their case is Rupert, who testified simply that he thought a power turbine blade may have failed in the second stage of the power
PILATUS REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

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turbine, but he didn't know what that defect was and he had no real idea other than just speculation what the impact of the power turbine blade failure that he feels caused this occurrence would have resulted in." RT 428:23-429:5. Plaintiffs responded to Pilatus' and PWC's motions as one, without distinguishing one defendant from the other and without professing any lack of understanding. (RT 429:12-430:24) The Court denied the "motions" in a sentence - "The Rule 50 motions are denied." (RT 431:2) ­ also, without distinguishing the defendants or seeking clarification. Thus, there can be no doubt that both Plaintiffs and the Court were aware of Pilatus' position. II. PILATUS' JOINDER IS PROPER BECAUSE THE JURY'S VERDICT AGAINST

PILATUS IS BASED ON THEIR FINDING OF DEFECTS IN THE ENGINE FOR WHICH PILATUS IS LIABLE AS THE AIRPLANE MANUFACTURER AND SELLER. Plaintiffs' case was based on a single body of facts and evidence which never, in any way distinguished between PWC as the engine manufacturer and Pilatus as the airplane manufacturer and seller. Plaintiffs never argued that only PWC was liable for defects in the engine. Nor did Plaintiffs ever argue that Pilatus should not be held liable for defects in the engine. 1 Pilatus never disputed that it is liable for defects in the engine, if any. Its defense of plaintiffs' claimed engine defect was and remains identical to that of PWC and based on a single common body of facts and evidence.

1

Indeed, since plaintiffs never provided the jury with any evidence to support the jury's 30%/19% allocation of fault between PWC and Pilatus respectively, this finding was pure speculation and in violation of C.R.S. §13-21-111.5 which states that "no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss." PILATUS REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

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Pilatus and PWC were treated by the Court throughout the trial as one side with a single set of preemptory jury challenges and a single time limit for opening statements and closing arguments. All defense witnesses and exhibits were jointly offered. In a special verdict form the jury was asked: "Do you find defendant, Pratt & Whitney, liable to the plaintiffs on plaintiffs' claim of sale of a defective product?" "Do you find defendant, Pilatus, liable to the plaintiffs on plaintiffs' claim of sale of a defective product?" These questions did not distinguish between the bases for PWC's or Pilatus' fault. They did not say, for example, "defective engine" for PWC or "defective airplane" for Pilatus. Similarly, PWC's motion is directed specifically at plaintiffs' claims regarding alleged power turbine blade defects. At trial, plaintiffs made the same claims against both Pilatus and PWC. For Plaintiffs to now argue that the power turbine blade defect evidence attacked by PWC's motion is very narrowly limited to attacking only evidence against PWC (not Pilatus) is disingenuous. WHEREFORE, Pilatus respectfully requests that the Court grant its Motion for Judgment as a Matter of Law or for New Trial.

PILATUS REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

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DATED this 16th day of August 2007. By__/s Robert Schultz_______________________ Robert Schultz Schultz & Associates 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

PILATUS REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

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CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of August 2007, I caused the forgoing PILATUS' REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS' JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL 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__________ Schultz and Associates [email protected]

PILATUS REPLY TO PLAINTIFFS' OPPOSITION TO PILATUS JOINDER IN DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

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