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Case 1:01-cv-02056-JLK

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Filed 06/06/2007

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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.

DEFENDANT PILATUS BUSINESS AIRCRAFT, PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, AND PILATUS AIRCRAFT, LTD.'S OBJECTIONS TO DESIGNATION OF BRETSCHER DEPOSITION TESTIMONY AND CROSS DESIGNATIONS I. General Objections to Designation Of Bretscher Deposition Testimony A. IFSD Objection The term IFSD, as used below, refers to evidence of instances and rates of so-called In Flight Shut Downs. These are uncommanded as opposed to deliberate in flight shut downs. This evidence was the subject of a Motion in Limine to exclude this data (Doc 113). In response to that motion, realizing that that their proffered evidence of an allegedly high "in-flight shut down" (IFSD) rate is inadmissible to prove defect, plaintiffs argued instead that "the disputed evidence is being offered for the purpose of proving that the pilot's decision to shut down the engine

Case 1:01-cv-02056-JLK

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during flight was foreseeable." (Doc. 127). But to make this leap, they falsely stated that "the proposed evidence demonstrates that the model PT6A-67B engine installed in the model PC-12 airplane is unreliable, and has a dangerously high rate of occurrences where pilots have been forced to shut down the engine during flight." This statement is untrue since no pilot shut down an engine in flight in any of the incidents offered as evidence by plaintiffs. Moreover, the IFSD occurrences plaintiffs seek to admit are so dissimilar to the subject occurrence that they do not even meet the relaxed plaintiffs' proposed "relaxed" standard of same airplane, engine or circumstanes. In ruling on Pilatus' motion, the Court said, "In this Motion, the Pilatus Defendants seek the exclusion of evidence and arguments regarding an allegedly high "inflight shut down" (IFSD) rate for Pratt & Whitney engines like the one at issue in this case. While the conclusions Plaintiffs draw from the evidence they have in this regard is, as I have previously intimated, somewhat hyperbolic (see Order (Doc. 88) at 3 (noting the failure "rate" at 21 per million)) the weaknesses of Plaintiffs' evidence goes to the weight it should be accorded, and not its admissibility. Accordingly, I DENY Defendants' Motion in Limine, but will entertain whatever appropriate objections are raised during the normal course of trial as to the admissibility of such evidence under the specific circumstances presented." (Doc 158.) Since objections to proposed deposition excerpts cannot be made at trial, this is the appropriate time for such rulings. The complete argument as to why this IFSD evidence is inadmissible is contained in Pilatus' reply re the aforementioned IFSD motion in limine (Doc. 147)

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Case 1:01-cv-02056-JLK

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Plaintiffs seek to admit this evidence to unfairly prejudice, confuse and mislead the jury with self-criticism of the PT-6 engine regarding matters wholly unrelated to the subject accident. It would be a waste of time and require the presentation of cumulative and unrelated evidence. In response, Pilatus would need to present evidence to the jury to prove that each of the in flight shut downs was unrelated to the subject events ­ in effect six or more mini-trials. Accordingly, this evidence must be excluded. F.R.E Rule 403 and 403. Single Engine Risk This proffered testimony concerns the risks of single engine aircraft versus multi-engine aircraft. It is irrelevant because plaintiffs do not allege that a single engine aircraft is defective because it has only one engine. Plaintiffs seek to admit this evidence to unfairly prejudice, confuse and mislead the jury by planting the suggestion that single-engine airplanes are inherently unsafe. It would be a waste of time and require the presentation of cumulative and unrelated evidence. Pilatus' response would require a mini-trial on the accident and injury rates for single engine versus multi engine aircraft. F.R.E. 402, 403. Pilatus Investigation This proffered testimony concerns Pilatus' corporate accident investigation procedure and its investigation of the subject incident. This accident, which occurred in Russian territorial waters, was investigated by the Russian authorities in accordance with the rules of the International Civil Aviation Organization (ICAO) Annex 13 of which all the nations of all parties to this litigation are members (the U.S., Canada and Switzerland). Plaintiffs seek to admit this evidence to unfairly prejudice, confuse and mislead the jury by questioning the thoroughness or predetermination of Pilatus' investigation. But the facts, not of the investigation are on trial.

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Case 1:01-cv-02056-JLK

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Ironically, plaintiffs, their counsel and the passengers' counsel impeded Pilatus investigation by preventing unrestricted interviews of the pilot and passengers. F.R.E. 402, 403. PWC PC-12 Purchase The proffered testimony regards PWC's refusal to buy a PC-12. Plaintiffs seek to admit this evidence to plant in the jury false evidence that PWC does not believe the PC-12 is a safe aircraft. In fact, this witness testified that if PWC bought an airplane from one of its engine customers, it would have to buy airplanes from all of its airplane customers. Moreover, whether or not the PC-12 is a safe or unsafe aircraft generally, is irrelevant to the issues plaintiffs allege. F.R.E. 402. II. Objections and Cross Designations November 26, 2002, Rule 30(b)(6) Deposition

Plaintiffs' designation 34:21-36:1 36:10-37:3 38:8-12 39:12-40:24 42:3-43:13 44:15-45:2 52:4-53:15 56:13-17

Objection

Subject

Cross Designation 36:2-6

Contingent on Ruling? Y

FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403

Single Engine Risk IFSD IFSD IFSD IFSD IFSD IFSD IFSD

43:14-44:5

Y

71:11-72:23 73:6-22 79:17-21 89:25-90:8 93:6-14 93:25-94:12 98:5-5 99:20-102:1 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 Pilatus investigation Pilatus investigation Pilatus investigation Pilatus investigation Pilatus investigation

98:6-7 102:2-5

Y Y

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Plaintiffs' designation 103:24-104:2 104:19-24 105:13-25

Objection FRE 402, 403 FRE 402, 403 FRE 402, 403

Subject Pilatus investigation Pilatus investigation Pilatus investigation

Cross Designation 104:3-8

Contingent on Ruling? Y

111:10-22 112:18-22 113:14-23 125:22-127:2 154:17-155:19 164:1-10 165:8-15 166:17-15 168:1-7 168:12-18 169:9-15 170:4-8 171:20-172:4 181:16-182:13 182:21-183:23 184:13-185:24 211:13-23 213:19-214:25 215:12-216:14 216:17-218:4 219:1-11 224:20-23 225:24-226:11 230:8-18 232:15-233:25 234:12-235:11 236:1-4 236:24-237:11 237:16-237:22 238:6-11 238:17-239:19 240:1-243:1 243:7-244:22 245:10-246:12 247:1-18 248:6-248:16 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 Pilatus investigation Pilatus investigation IFSD IFSD IFSD IFSD IFSD PWC PC12 purchase IFSD IFSD IFSD IFSD IFSD IFSD IFSD IFSD IFSD IFSD IFSD IFSD

219:12-13

Y

232:8-232:14 235:12-15

Y Y

238:12-16

Y

244:23-245:6

Y

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Plaintiffs' designation 249:9-252:2 253:21-254:17 262:8-263:7

Objection FRE 402, 403 FRE 402, 403 FRE 402, 403

Subject IFSD IFSD IFSD

Cross Designation

Contingent on Ruling?

May 20, 2005 Rule 26 Expert Deposition General Objection ­ The witness, who is not a Pilatus officer, director or managing agent, will testify live at trial. Therefore, use of his deposition for other than impeachment is improper. F.R.C.P. Rule 32(a). Plaintiffs' designation Objection Subject Cross Designation 18:6-19:15 20:9-20:24 21:2-14 36:22-23 41:19-42:013 59:6-60:14 Contingent on Ruling?

58:10-59:4 60:15-25 63:5-12 63:18-65:16 65:22-66:11 66:18-67:22 68:9-11 70:12-19

FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403 FRE 402, 403

IFSD IFSD IFSD IFSD IFSD IFSD IFSD IFSD

Y

67:23-68:3

Y

Respectfully submitted this 6th day of June 2007. Schultz & Associates By: /s Robert Schultz Robert B. Schultz 9710 W 82nd Ave Arvada CO 80005 Tel. (303) 456 5565 Fax. (303) 456 5575 Attorney for Defendants PILATUS BUSINESS AIRCRAFT, LTD and PILATUS FLUGZEUGWERKE AG/ PILATUS AIRCRAFT, LTD

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Case 1:01-cv-02056-JLK

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of June 2007, I caused the forgoing DEFENDANT PILATUS BUSINESS AIRCRAFT, PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, AND PILATUS AIRCRAFT, LTD.'S OBJECTIONS TO DESIGNATION OF BRETSCHER DEPOSITION TESTIMONY AND CROSS DESIGNATIONS 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 & Associates [email protected]

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