Free Brief in Opposition to Motion - District Court of Colorado - Colorado


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Case 1:01-cv-02056-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-cv-2056-JLK

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.

PLAINTIFFS' OPPOSITION TO DEFENDANT PRATT & WHITNEY CANADA'S "MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL" (Doc. 214)

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U.S. Aviation v. Pilatus etc. et al.

Plaintiffs' Opposition to Motion
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TABLE OF CONTENTS

1.0 2.0

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PRATT & WHITNEY'S MOTION FOR JUDGMENT AS A MATTER OF LAW UNDER RULE 50(b) IS WITHOUT MERIT, AND SHOULD BE DENIED . . . . . . . . . . . . . . . . . . 2.1 Pratt & Whitney's Post-Trial Rule 50(b) Motion Should Be Denied, Because It Suffers From A Fatal Procedural Flaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 Pratt & Whitney's Post-Trial Rule 50(b) Motion Is Based On New And Different Grounds That Were Never Raised In Support Of The Pre-Verdict Rule 50(a) Motions . . . . . . . . . . . . . . . . . . . . . . . 2.2 Pratt & Whitney's Post-Trial Rule 50(b) Motion Should Be Denied, Because It Asks The Court To Improperly View The Evidence In A Light Most Favorable To The Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Pratt & Whitney's Rule 50(b) Motion Is Based On False, Misleading, And Incomplete Descriptions Of The Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2.1 The Jury Was Entitled To Find The Products Were Defective And Unreasonably Dangerous Even If The Jury Did Not Also Believe That A PT Blade Fractured . . . . . . . . . . . The Jury Was Not Required To Exonerate Pratt & Whitney Just Because The Engine Was Shut Down During Flight . . . . .

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2.2.2.2

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TABLE OF CONTENTS (continued)

2.2.2.3

The Jury Was Not Required To Believe Pratt & Whitney's Speculative Claim That The Seized Propeller Would Have Begun To Rotate If The Pilot Had Continued The Restart . . . . . . . . . . . . . . . . . .

10

2.2.2.4

Pratt & Whitney Withdrew Its Affirmative Defense Of Product Misuse Because There Was No Evidence To Support That Defense, Not Because Pratt & Whitney Mistakenly Believed It Could Prevent The Jury From Considering Relevant IFSD Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Jury Was Entitled To Find That The Engine And Airplane Were Defective And Unreasonably Dangerous Based On The Inculpatory Admissions Contained In The Pilatus Corporate Documents . . . . . . . . . . . 11

2.2.2.5

3.0

PRATT & WHITNEY'S MOTION FOR NEW TRIAL UNDER RULE 59 IS WITHOUT MERIT, AND SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Pratt & Whitney's Motion For New Trial Is Without Merit, And Should Be Denied, Because Substantial Evidence Supports The Jury's Verdict . . . . . . . . . . . Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . If The Jury Concluded That A PT Blade Fractured, Then There Is Substantial Evidence To Support That Conclusion . . . . . . . . . . . . . . . . . . . . . 3.3.1 A PT Blade Failure Is Not A Necessary Element Of Plaintiffs' Product Liability Claims . . . . . . . . . . 12

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3.2 3.3

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TABLE OF CONTENTS (continued)

3.3.2 The Jury Was Not Required To Believe Pratt & Whitney's Speculative Theories Regarding The PT Blade Failure . . . . . . . . . . . . . . . . . . . . . 3.3.3 The Plaintiffs Were Not Required To Prove That A PT Blade Failure Had Ever Occurred In A PT6A-67B Engine Before This Failure Occurred . . . . . . . . . . . . . . . . . . . . . . . 3.4 If The Jury Concluded That The Propeller Would Not Turn The Restart Because The PT Disk Was Seized, Then There Is Substantial Evidence To Support That Conclusion . . . . . . . . . . If The Jury Concluded That Pratt & Whitney Failed To Provide Adequate Warnings Or Instructions, Then There Is Substantial Evidence To Support That Conclusion . . . . . . . . . . . . . . . . . . . . 3.5.1 Pratt & Whitney Knew That The PT6A-67B Engine Was Defective And Unreasonably Dangerous, But Failed To Warn Or Provide Its Customers With Adequate Operating Instructions . . . . . 4.0 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3.5

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TABLE OF AUTHORITIES Cases Anaeme v. Diagnostek, Inc., 164 F.3d 1275 (10th Cir. (D.N.M.) 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Anderson v. United Telephone Co. of Kansas, 933 F.2d 1500 (10th Cir. (D.Kan.) 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Brown v. McGraw-Edison Co., 736 F.2d 609 (10th Cir. (W.D.Okla.) 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conseco Finance Servicing Corp. v. North American Mortgage Co., 381 F.3d 811 (8th Cir. (E.D.Mo.) 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hughes v. Regents of University of Colorado, 967 F.Supp. 431 (D.Colo. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marshall v. Columbia Lea Regional Hospital, 474 F.3d 733 (10th Cir. (D.N.M.) 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . McCardle v. Haddad, 131 F.3d 43 (2nd Cir. (D.Conn.) 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaut v. Estate of Rogers, 959 F.Supp. 1302 (D.Colo. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Strickland Tower Maintenance, Inc. v. AT&T Communications, Inc., 128 F.3d 1422 (10th Cir. (N.D.Okla.) 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. (S.D.Cal.) 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . York v. American Tel. & Tel. Co., 95 F.3d 948 (10th Cir. (W.D.Okla.) 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - iv -

13

4

8, 19

4

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TABLE OF AUTHORITIES Rules FED.R.CIV.P. 50(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FED.R.CIV.P. 50(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FED.R.CIV.P. 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-7 2-9, 12 3, 12

Other Authorities 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER Federal Practice and Procedure § 2537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1.0

INTRODUCTION. Defendant Pratt & Whitney Canada's motion for judgment as a matter of law

(JMOL) or new trial (Doc. 214) is without merit, and should be denied, for the following reasons:

1. First, the defendant's post-trial Rule 50(b) motion (Doc. 214) is based on new and different grounds that were never raised by Pratt & Whitney Canada (PWC) when PWC made its preverdict motion for judgment as a matter of law under Rule 50(a). (R.T. 426-430.) As a result, PWC's post-trial Rule 50(b) motion (Doc. 214) fails on well-established procedural grounds, and should be summarily denied. (Marshall v. Columbia Lea Regional Hospital, 474 F.3d 733, 738-739 (10th Cir. (D.N.M.) 2007).)

2. Second, PWC's post-trial Rule 50(b) motion (Doc. 214) is also based on wildly inaccurate mischaracterizations of the evidence and the plaintiffs' claims. When that evidence and those claims are viewed (as they must be) in a light most favorable to the plaintiffs, then PWC has clearly failed to meet its burden of demonstrating that "the proof is all one way or so overwhelmingly preponderant in" its favor "as to permit no other rational conclusion." (Strickland Tower Maintenance, Inc. v. AT&T Communications, Inc., 128 F.3d 1422, 1426 (10th Cir. (N.D.Okla.) 1997).)

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3. Third, PWC's motion for new trial (Doc. 214) under Rule 59 is also without merit, because the jury's verdict was not "clearly, decidedly or overwhelmingly against the weight of the evidence." (York v. American Tel. & Tel. Co., 95 F.3d 948, 958 (10th Cir. (W.D.Okla.) 1996).) Among other things, the record shows that there was enough substantial evidence to support a finding that PWC's engine was defective and unreasonably dangerous, regardless of whether the jury also concluded that a PT blade fractured.

Based on the foregoing, plaintiffs respectfully submit that PWC's motion (Doc. 214) should be denied.

2.0

PRATT & WHITNEY'S MOTION FOR JUDGMENT AS A MATTER OF LAW UNDER RULE 50(b) IS WITHOUT MERIT, AND SHOULD BE DENIED. Defendant PWC's post-trial motion for judgment as a matter of law under Rule

50(b) (FED.R.CIV.P. 50(b)) should be denied on the separate procedural and substantive grounds described below.

2.1

Pratt & Whitney's Post-Trial Rule 50(b) Motion Should Be Denied, Because It Suffers From A Fatal Procedural Flaw. As a matter of well-established law, a post-trial motion under Rule 50(b) must be

denied if it is based on grounds that were never raised in support of a preverdict Rule 50(a) motion. (FED.R.CIV.P. 50(b).)

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2.1.1

Legal Standards. "Because the [post-trial] Rule 50(b) motion is only a renewal of the preverdict

motion, it can be granted only on grounds advanced in the preverdict motion." (FED.R.CIV.P. 50, ADVISORY COMM. NOTES, 2006 Amendments); see also, Anderson v. United Telephone Co. of Kansas, 933 F.2d 1500, 1503 (10th Cir. (D.Kan.) 1991); Wallace v. City of San Diego, 479 F.3d 616, 631 (9th Cir. (S.D.Cal.) 2007) ["A renewed motion for judgment as a matter of law must be preceded by a motion made at trial that sets forth the specific grounds raised in the renewed motion."]; 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER Federal Practice and Procedure § 2537 at p. 344-45 ["Since the post-submission motion is nothing more than a renewal of the earlier motion made at the close of the presentation of the evidence, it cannot assert a ground that was not included in the earlier motion."]) The grounds for the renewed motion under Rule 50(b) are limited to those asserted in the earlier Rule 50(a) motion. [Citation omitted.] In other words, the movant cannot use a Rule 50(b) motion 'as a vehicle to introduce a legal theory not distinctly articulated in its close-of-evidence motion for a directed verdict.' [Citation omitted.] Cir. (E.D.Mo.) 2004)) And even when a preverdict motion for JMOL has been made, the movant may not add new grounds after trial. The posttrial motion is limited to those grounds that were 'specifically raised in the prior motion for [JMOL].' [Citations omitted.] In sum, a posttrial motion for JMOL can properly be made only if, and to the extent that, such a motion specifying the same grounds was made prior to the submission of the case to the jury. (McCardle v. Haddad, 131 F.3d 43, 51 (2nd Cir. (D.Conn.) 1997).) -4Access Air 0NR/PO/WO Lg24443/20070801

(Conseco Finance

Servicing Corp. v. North American Mortgage Co., 381 F.3d 811, 821 (8th

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2.1.2

Pratt & Whitney's Post-Trial Rule 50(b) Motion Is Based On New And Different Grounds That Were Never Raised In Support Of The PreVerdict Rule 50(a) Motions. During the trial, at the close of plaintiffs' case-in-chief, PWC and its co-

defendants (Pilatus) separately made oral motions for judgment as a matter of law under Rule 50(a). (FED.R.CIV.P. 50(a).) Pratt & Whitney articulated only two specific grounds for its preverdict Rule 50(a) motion: (1) the pilot's decision to shut down the engine was the sole cause of the loss (R.T. 428:7-10), and (2) plaintiffs' expert witness David Rupert could not identify any specific defect in the power turbine blade (R.T. 429:1-5.) The record confirms that these were the only two specific grounds raised by PWC in support of its preverdict Rule 50(a) motion. (R.T. 428-429.) PWC's post-trial Rule 50(b) motion (Doc. 214) now raises a host of new and different issues that were never raised by PWC in support of its very brief and narrow preverdict Rule 50(a) motion. For example: 1. The defendant's post-trial Rule 50(b) motion argues that the plaintiffs misrepresented the purposes for which certain IFSD evidence would be presented. (Doc. 214, pp. 4-5.) This argument was never made in support of PWC's preverdict Rule 50(a) motion. (R.T. 426-431.)1
1

In a footnote (Doc. 214, p. 4, fn. 1), PWC suggests that the defendants abandoned their

"product misuse" defense to keep certain IFSD evidence from being admitted and shown to the jury. However, the record confirms that: (1) the defendants abandoned their misuse defense after (not before) the IFSD records were already introduced into evidence (R.T. 431:3-6 and 471:1617), and (2) much of the IFSD evidence only became admissible when the lawyer representing PWC's co-defendants (Pilatus) "opened the door" during cross-examination of plaintiffs' expert witness Jeff Edwards. (R.T. 54:10)

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2.

The defendant's post-trial Rule 50(b) motion contends that the plaintiffs' theory of a defective PT blade could not be proved by Pilatus corporate documents that do not reference any similar blade failures. (Doc. 214, p. 5.) This argument was never raised in support of PWC's preverdict Rule 50(a) motion. (R.T. 426-431.)

3.

The defendant's post-trial Rule 50(b) motion argues that the plaintiffs' theory of a defective PT blade could not be proved by the testimony of plaintiffs' expert witness David Rupert, because a defective PT blade would not cause the engine temperature to increase as Mr. Rupert testified. (Doc. 214, p. 6.) Again, this argument was never made in support of PWC's preverdict Rule 50(a) motion. (R.T. 426-431.)

4.

The defendant's post-trial Rule 50(b) motion also argues that there is no evidence to support plaintiffs' claim that the PT blade came in contact with the shroud after the engine shut down. (Doc. 214, pp. 7-8.) Once again, this argument was never made in support of PWC's preverdict Rule 50(a) motion. (R.T. 426-431.)

5.

Lastly, the defendant's post-trial Rule 50(b) motion also argues that there is no evidence to support the failure to warn claims against Pratt &Whitney. (Doc. 214, pp. 8-9.) But plaintiffs' failure to warn claims were never once mentioned by PWC when it made its preverdict Rule 50(a) motion. (R.T. 426-431.)

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Because the defendant's post-trial Rule 50(b) motion (Doc. 214) is based on new and different grounds that were never raised by PWC in support of its preverdict Rule 50(a) motion, the Rule 50(b) motion (Doc. 214) is contrary to law, and should be denied. (See, e.g., Marshall v. Columbia Lea Regional Hospital, supra, 474 F.3d at pp. 738-739 ["The renewed motion under Rule 50(b) cannot assert grounds for relief not asserted in the original motion."])

2.2

Pratt & Whitney's Post-Trial Rule 50(b) Motion Should Be Denied, Because It Asks The Court To Improperly View The Evidence In A Light Most Favorable To The Defendants. The defendants' Rule 50(b) motion (Doc. 214) can only be granted if the Court

applies the wrong legal standard when reviewing the evidence. When all of the evidence (not just the evidence that supports the defendant) is properly and fairly viewed in a light most favorable to the plaintiffs (not in favor of the defendants), then it is clear that there was no factual support for the defendant's preverdict Rule 50(a) motion, and there is still no support for the defendant's post-verdict Rule 50(b) motion.

2.2.1

Legal Standards. The legal standards applicable to the defendants' motion for judgment as a

matter of law under Rule 50 are both familiar and well-established:

A party can obtain judgment as a matter of law in its favor 'only if the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion.' [Citation omitted.] Using this standard, a court will not substitute its conclusions for that of a jury but must enter judgment as a matter of law 'if `there is -7Access Air 0NR/PO/WO Lg24443/20070801

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no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law.' ' F.3d at p. 1426 [emphasis added]) The court may not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury. [Citation omitted.] Rather, it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence. (Brown v. McGrawEdison Co., 736 F.2d 609, 613 (10th Cir. (W.D.Okla.) 1984) [emphasis added]) [Citations omitted.] (Strickland Tower Maintenance v. AT&T Communications, supra, 128

2.2.2

Pratt & Whitney's Rule 50(b) Motion Is Based On False, Misleading, And Incomplete Descriptions Of The Evidence. PWC's Rule 50(b) motion erroneously views the evidence in a light most

favorable to the defendants - not the plaintiffs - and then compounds that error by ignoring the evidence that is favorable to the plaintiffs. For example:

2.2.2.1 The Jury Was Entitled To Find The Products Were Defective And Unreasonably Dangerous Even If The Jury Did Not Also Believe That A PT Blade Fractured. According to PWC, the "only defect in the engine that Plaintiffs attempted to prove at trial was based on an alleged power turbine blade failure." (Doc. 214, p. 2.) This statement is, of course, false. In addition to proving the existence of a defective PT blade, the plaintiffs also offered substantial evidence tending to prove that the engine was defective because it created "a risk of harm to persons or property that -8Access Air 0NR/PO/WO Lg24443/20070801

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would not ordinarily be expected." (Colorado Jury Instructions, 4th - Civil, 14:3.) Among other things, the jury was entitled to find that this nearly brandnew engine (Stip. Fact. No. 16) was defective and unreasonably dangerous even if the jury did not also believe that a PT blade was defective. 2.2.2.2 The Jury Was Not Required To Exonerate Pratt & Whitney Just Because The Engine Was Shut Down During Flight. PWC's Rule 50(b) motion says that the defendants "presented clear evidence showing that the engine shutdown was caused by the negligence of pilot Smith and that the initial event was likely the result of ice ingestion." (Doc. 214, p. 2.) Initially, it must be noted that the jury did attribute

significant fault to Access Air (even though it will never be known if that fault was based on the conduct of Mike Smith), and even now, PWC does not contend that the jury should have assigned more fault to Access Air. Moreover, the jury was entitled to reject the defendants' attacks on the experienced and well-trained pilot based on Exh. 103 ­ a memorandum written by the same investigator (Karl Trautmann) who was in charge of the Pilatus investigation of this particular crash. In that memorandum (Exh. 103), Mr. Trautmann candidly acknowledges that the defendants' "blame the pilot strategy" is really nothing more than a shallow and despicable marketing ploy aimed at protecting sales of PC12 airplanes.

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2.2.2.3 The Jury Was Not Required To Believe Pratt & Whitney's Speculative Claim That The Seized Propeller Would Have Begun To Rotate If The Pilot Had Continued The Restart. PWC says that if pilot Smith "had completed the start sequence ... the engine would have produced sufficient power to overcome the minimal friction and the propeller would have begun to turn." (Doc. 214, p. 3.) This statement is based on absolutely nothing more than rank speculation. No one knows for sure what would have happened if pilot Smith had not aborted the restart. Based on all of the evidence, the jury was entitled to believe that the experienced pilot's split-second decision to abort the restart was proper, and resulted in everyone aboard the airplane narrowly escaping death. Indeed, Pilatus's own engineer, Dietmar Bretscher, told the jury that it normally takes 20-30 seconds for the propeller to stop spinning when a nondefective engine is shut down in flight. 11/26/2002, 272:23].) Mr. Bretscher's testimony is more than enough for the jury to conclude that the engine on this particular airplane was defective because the propeller immediately stopped turning (froze) when the engine was shut down in flight, and remained frozen during the attempted restart. (R.T. 4-9 [Bretscher Depo.,

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2.2.2.4 Pratt & Whitney's Withdrew Its Affirmative Defense Of Product Misuse Because There Was No Evidence To Support That Defense, Not Because Pratt & Whitney Mistakenly Believed It Could Prevent The Jury From Considering Relevant IFSD Evidence. PWC argues that "[i]n reliance upon" plaintiffs' representation that certain IFSD evidence "would only be offered to show that the pilot Mike Smith's decision to shut down the engine was foreseeable," "PWC and the Pilatus defendants withdrew the affirmative defense of product misuse during the trial." (Doc. 214, p. 4.) This claim is absurd. The record shows that the defendants withdrew their misuse defense after the IFSD evidence had already been admitted and shown to the jury. (R.T. 431:3-6 and 471:16-17.) It is ridiculous to suggest (as defendants now do) that they abandoned their misuse defense in hopes of excluding evidence that had already been introduced and shown to the jury by the time the defense was withdrawn. 2.2.2.5 The Jury Was Entitled To Find That The Engine And Airplane Were Defective And Unreasonably Dangerous Based On The Inculpatory Admissions Contained In The Pilatus Corporate Documents. PWC's motion says that the jury was obligated to disregard the Pilatus corporate documents (Exhibits 103, 105, 106, 108, 109, 113 and 145) because those corporate admissions related only to "general reliability concerns that Pilatus may have expressed in the early developmental years of the PC-12 ..." (Doc. 214, p. 5.) Once again, this claim is demonstrably false. Exhibits 103, 105 and 113 were all written in 1998 - just 3 years before this crash occurred; long after Pilatus and PWC began selling the PC12 - 11 Access Air 0NR/PO/WO Lg24443/20070801

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airplane and engine; and long after any "developmental" period had ended.2 And Exhibits 106, 108 , 109 and 145 were all written in 2001 - after this crash occurred ­ and long after any "developmental" phase for these products had logically ended. Clearly, PWC has mischaracterized this evidence to bolster its otherwise meritless motion for JMOL (Doc. 214), and the jury was justly permitted to interpret this evidence as demonstrating that the engine and airplane were both defective and unreasonably dangerous. Based on the foregoing, plaintiffs respectfully submit that the defendants' Rule 50(b) motion for JMOL should be denied.

3.0

PRATT & WHITNEY'S MOTION FOR NEW TRIAL UNDER RULE 59 IS WITHOUT MERIT, AND SHOULD BE DENIED. PWC does not challenge any of the Court's pretrial rulings; PWC does not

contend that any evidence was improperly admitted; nor does PWC suggest that there is no evidence to support the jury's verdict. Instead, PWC seems to agree that while there is some evidence favoring the plaintiffs and the jury's verdict, that evidence is somehow outweighed by other evidence that favors the defendants. In short, PWC is asking this Court to usurp the function of the jury, and substitute its own judgment for that of the jury. For the reasons that follow, plaintiffs respectfully submit that on this basis, PWC's motion for new trial invites error where no error now exists.

2

For sure, anyone who purchased a PC12 airplane in 1998 or earlier would be surprised to

learn that according to PWC (the airplane's engine manufacturer), those PC12 airplanes were only in the "developmental " stages when they were sold.

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3.1

Pratt & Whitney's Motion For New Trial Is Without Merit, And Should Be Denied, Because Substantial Evidence Supports The Jury's Verdict. PWC's motion assumes (incorrectly) that the jury's verdict can only withstand

scrutiny if it is shown that the PT blade failed or that PWC failed to provide adequate warnings or instructions. (Doc. 214, p. 10.) However, the defendants have ignored the fact that in addition to a PT blade failure and a failure to warn defect, the jury might also have properly concluded that the products were defective and unreasonably dangerous because the engine and airplane "created a risk of harm to persons or property that would not ordinarily be expected." (Jury Inst. No. 3.5.) PWC's motion for new trial is baseless, because it fails to consider the possibility that the jury's verdict was based on this alternative theory of liability.

3.2

Legal Standards. "Where a new trial motion asserts that the jury verdict is not supported by the

evidence, 'the verdict must stand unless it is `clearly, decidedly, or overwhelmingly against the weight of the evidence.' ' [Citations omitted.] With respect to ... review of the jury's verdict, we consider the record evidence in the light most favorable to the prevailing party." (Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. (D.N.M.) 1999).) "We will not grant a new trial 'unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done.' [Citation omitted.]" (Plaut v. Estate of Rogers, 959 F.Supp. 1302, 1305 (D.Colo. 1997).) "A new trial is warranted where, having given full respect to the jury's findings and viewing the entire evidence, the trial judge is left with the 'definite and firm - 13 Access Air 0NR/PO/WO Lg24443/20070801

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conviction' that a mistake has been committed." (Hughes v. Regents of University of Colorado, 967 F.Supp. 431, 437 (D.Colo. 1996).)

3.3

If The Jury Concluded That A PT Blade Fractured, Then There Is Substantial Evidence To Support That Conclusion. PWC boasts that it "clearly and convincingly" proved "that a power turbine blade

failure just could not have occurred." (Doc. 214, p. 10.) But this contention has at least three significant flaws:

3.3.1

A PT Blade Failure Is Not A Necessary Element Of Plaintiffs' Product Liability Claims. Even if the jury was required to believe the defendants' theory that a PT blade fracture did not occur, the jury still could have found the products to be defective and unreasonably dangerous because they "created a risk of harm to persons or property that would not ordinarily be expected." (Jury Inst. No. 3.5.) In short, the jury properly could have found the products were defective and unreasonably dangerous with ­ or without ­ a fractured PT blade.

3.3.2

The Jury Was Not Required To Believe Pratt & Whitney's Speculative Theories Regarding The PT Blade Failure. While PWC might have convinced itself that a PT blade failure "just could not have occurred" (Doc. 214, p. 10), the jury was certainly not obligated to reach that same conclusion. In fact, the jury was free to conclude that the opinions offered by PWC witnesses Ortuso and Pelletier were unreliable, because: (1) both of those - 14 Access Air 0NR/PO/WO Lg24443/20070801

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witnesses were merely parroting what their employer (PWC) wanted them to say, and (2) Ortuso admitted that PWC did nothing to investigate the possibility that a PT blade had fractured. (Ortuso Depo. 5/26/2005, 53:21 -

54:5.) Moreover, the jury heard testimony from Pilatus engineer Dietmar Bretscher, who testified that Pilatus could not rule out a PT blade failure as a cause of the engine failure (R.T. 390-393 [Bretscher Depo. 5/20/2005, 36:1521, 43:11-16 and 45:12-18].)3 Finally, the jury was also provided with a copy of the PWC Service Bulletin (Exh. 143), which explained that with regard to the same blade that was used in this PT6A-67B engine (Ortuso Depo. 5/26/2005, 42:3-9), "[t]here have been blade fractures in the field and wear at the shroud contact face." Taken together, this evidence is more than enough to support any conclusion the jury may have reached on the issue of whether a PT blade fractured. ///

3

While PWC now claims that it "clearly and convincingly" proved "that a power turbine

blade failure just could not have occurred" (Doc. 214, p. 10), the truth is that even PWC's codefendant (Pilatus) believed otherwise, since Pilatus (Bretscher) testified that a PT blade failure could not be ruled out (R.T. 390-393 [Bretscher Depo. 5/20/2005, 36:15-21, 43:11-16 and 45:1218].) If PWC's own co-defendant (Pilatus) did not believe PWC's theory, then there is no reason to suggest the jury was required to believe PWC.

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3.3.3

The Plaintiffs Were Not Required To Prove That A PT Blade Failure Had Ever Occurred In A PT6A-67B Engine Before This Failure Occurred. PWC claims that it is entitled to a new trial because "there has never been a reported failure of a power turbine blade in a PT6A-67B engine." (Doc. 214, p. 11.) The simplicity of this argument may be attractive, but the

argument itself proves to be too much. Plaintiffs were not required to prove the existence of any preceding blade failures, and to the extent no other failures have ever occurred (a disputed contention), that fact is immaterial since a product can be defective and unreasonably dangerous even if it has failed only one time. In addition, PWC engineer Jean Pelletier told the jury that there have been "over twenty" failures of the exact same PT blade that is used in the same PT6A-67B engine that was installed in this PC12 airplane (R.T. 332 [Pelletier Depo., 9/15/2005, 40:1623]), and the PWC Service Bulletin (Exh. 143) was issued by PWC because "[t]here have been blade fractures in the field."

3.4

If The Jury Concluded That The Propeller Would Not Turn The Restart Because The PT Disk Was Seized, Then There Is Substantial Evidence To Support That Conclusion. According to PWC: "A verdict based to any degree on the fact that the power

turbine blades were rubbing on the shroud after pilot Smith shut down the engine, and that condition somehow prevented him from being able to restart the engine, is clearly against the weight of the evidence." (Doc. 214, p. 13.) This argument is frivolous.

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In fact, the uncontradicted evidence proved that the propeller would not turn during the restart because the PT disk was seized. There was no contrary evidence showing that the propeller remained frozen during the restart for any reason other than the fact that the PT disk was seized. For example, the jury heard PWC's own employee (Ron Ortuso) testify that the PT disk was seized. (R.T. 2-3 [Ortuso Depo., 10/1/2002, 184:23 - 185:5]; and R.T. 4 [Ortuso Depo. 9/15/2005, 62:8-15 and 70:17-23].) Likewise, Pilatus's own employee (Dietmar Bretscher) also testified that the PT disk was seized. (R.T. 4-9 [Bretscher Depo. 11/26/2002, 124:21 - 125:4]; and R.T. 390-393 [Bretscher Depo. 5/20/2005, 27:12 - 28:1].) And even assuming (for the sake of argument only) that the PT disk seized not because of a defect in a PT blade, but because the pilot shut down the engine from unusually high temperatures (Doc. 214, p. 12), PWC's motion for new trial is still without merit. The uncontraverted testimony proved that the pilot had sole discretion as to when to shut down the engine (R.T. 4-9 [Bretscher Depo. 11/26/2002, 169:5-8]), and PWC testified that "We're not criticizing pilot Smith" on his decision to shut down the engine. (R.T. 2-3 [Ortuso Depo. 10/1/2002, 177:23-25].)

3.5

If The Jury Concluded That Pratt & Whitney Failed To Provide Adequate Warnings Or Instructions, Then There Is Substantial Evidence To Support That Conclusion. Lastly, PWC seeks a new trial because it says that to the extent the jury found that

PWC failed to provide adequate warnings and instructions, there was inadequate evidence to support that conclusion. (Doc. 214, pp. 13-14.) However, like PWC's other arguments, this argument also cannot be squared with the record.

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3.5.1

Pratt & Whitney Knew That The PT6A-67B Engine Was Defective And Unreasonably Dangerous, But Failed To Warn Or Provide Its Customers With Adequate Operating Instructions. PWC says that the "only evidence that Plaintiffs presented to show that the Defendants did not provide adequate warnings and instructions was the opinion testimony of expert William Edwards." (Doc. 214, p. 13.) PWC is wrong. The testimony heard by the jury, and the exhibits shown to the jury, both proved that before this crash occurred, both PWC and Pilatus actually knew that the PT6A-67B engine installed in the subject airplane was dangerous and defective, yet the defendants did nothing to warn pilots about those defects. For instance, Exhibit 105 (written in 1998) explained that Pilatus has "the gravest concerns regarding reduced quality of" the PT6A-67B engine. According to Pilatus engineer Dietmar Bretscher, if Pilatus was building the PC12 airplane today, Pilatus would not select the dangerous and defective PT6A-67B engine for the PC12 airplane. (R.T. 4-9 [Bretscher Depo. 11/26/2002, 240:12-16].) Exhibit 108 explained to the jury that when this particular crash occurred, the IFSD rate for the PT6A-67B engine was more than 7 times higher than it was supposed to be. (R.T. 4-9 [Bretscher Depo. 11/26/2002, 248:616].) And in Exhibit 113 (again written in 1998), Pilatus explained to PWC that "there are too many problems and IFSD on the PC-12. Any problem on the PC-12 has to be taken more seriously."

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Viewed as a whole and in a light most favorable to plaintiffs, this evidence was sufficient to allow the jury to conclude that PWC and Pilatus both failed to provide adequate warnings and instructions about the known unreliability of the PT6A-67B engine.

We are not convinced that the verdict of the jury was clearly, decidedly, or overwhelmingly against the weight of the evidence. [W]e are satisfied that there was sufficient evidence for the jury to find that the [products were defective.] Defendants presented considerable evidence to the contrary and the jury could easily have found against the plaintiff. Nevertheless, we feel that the evidence in defendants' favor was not so strong that it was an abuse of discretion to accept the jury's verdict and to deny a new trial. (Brown v. McGraw-Edison Co., supra, 736 F.2d at p. 617)

4.0

CONCLUSION. Based on the foregoing, plaintiffs respectfully submit that Pratt & Whitney's

motion for JMOL and new trial (Doc. 214) should be denied.

Respectfully Submitted, Dated: August 1 , 2007 s/ Jeffrey J. Williams Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected] - 19 Access Air 0NR/PO/WO Lg24443/20070801

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CERTIFICATE OF SERVICE U.S. Aviation Underwriters et al. v. Pilatus Business Aircraft etc. et al. D.Colorado Case No. 01-K-2056 [XXXXX] I hereby certify that on August 1, 2007 , I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: For Defendant Pratt & Whitney Thomas J. Byrne, Esq. Byrne, Kiely & White 1120 Lincoln Street, Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected] [email protected]

For Pilatus Defendants Robert B. Schultz, Esq. Law Offices of Robert B. Schultz 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303)456-5565 Fax (303)456-5575 Email: [email protected]

[

]

I hereby certify that on , I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/ Jeffrey J. Williams Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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