Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

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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.

DEFENDANTS' FIRST AMENDMENT TO JURY INSTRUCTIONS (corrected)

Per the March 30, 2007, pre-trial conference, Defendants jointly submit these amendments to the proposed jury instructions. Note. This pleading is corrected to include Defendants' Objection to Plaintiffs' Instruction 3.25. Since Plaintiffs 3.25 was added by

plaintiffs to the proposed joint jury instructions after defendants submitted their counter proposals and objections, defendants did not have an opportunity to object the first time this instruction was submitted. Defendants inadvertently omitted this objection from their First Amendment to Jury Instructions.

Case 1:01-cv-02056-JLK

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DEFENDANT PRATT & WHITNEY OF CANADA'S OBJECTIONS TO PLAINTIFFS' INSTRUCTIONS 3.8, 3.9, and 3.10

Defendant Pratt & Whitney of Canada objects to plaintiffs' proposed instructions 3.8, 3.9, and 3.10 on the grounds that these instructions cite sections of Part 23 of the Federal Aviation Regulations, 14 CFR Part 23, which applies only to aircraft design standards, not engine design standards, and thus do not apply to Pratt & Whitney Canada. The Pratt & Whitney engine in this case is subject to different design standards set forth in Part 33 of the Federal Aviation Regulations, 14 CFR Part 33, and are not subject to the Part 23 standards applicable to aircraft. If the court decides to instruct the jury as plaintiffs request in their proposed instructions 3.8, 3.9, and 3.10, Pratt & Whitney requests that the following sentence be added to limit each of these instructions: "You are instructed that this regulation does not apply to aircraft engines

and thus does not apply to defendant Pratt & Whitney."

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DEFENDANTS' OBJECTION TO PLAINTIFFS' INSTRUCTION 3.9 This instruction is intended to be used with Plaintiffs' Instruction 3.14 Non-compliance with Government Standards. But the "Notes on Use" of Instruction 3.14 as approved by the Colorado Supreme Court state "If the code, standard or regulation is of a general nature that does not deal with the specific nature of the claimed defect, this instruction should not be given." C.J.I. 4th. The regulation cited in Instruction 3.9, 14 C.F.R. 1581(a) comes under the heading "General" and states: "§ 23.1581 General. (a) Furnishing information. An Airplane Flight Manual must be furnished with each airplane, and it must contain the following: (2) Other information that is necessary for safe operation because of design, operating, or handling characteristics." This regulation is, by its own words, of a "general nature" and does not deal with the specific nature of any claimed defect. Nor does it define what "other information" is required. Accordingly, since it cannot be the basis of Instruction 3.14, it should not be read.

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DEFENDANTS' OBJECTION TO PLAINTIFFS' INSTRUCTION 3.10 This instruction is intended to be used with Plaintiffs' Instruction 3.14 Non-compliance with Government Standards. But the "Notes on Use" of Instruction 3.14 as approved by the Colorado Supreme Court state "If the code, standard or regulation is of a general nature that does not deal with the specific nature of the claimed defect, this instruction should not be given." C.J.I. 4th. The regulation cited in Instruction 3.10, 14 C.F.R. § 1583(h) "§ 23.1583 Operating limitations. The Airplane Flight Manual must contain operating limitations determined under this part 23, including the following (h) Kinds of operation. A list of the kinds of operation to which the airplane is limited or from which it is prohibited." This regulation is of a "general nature" and does not deal with the specific nature of any claimed defect. Nor does it define what "kinds of operation." must be addressed in the Airplane Flight Manual. Accordingly, since it cannot be the basis of Instruction 3.14, it should not be read. In addition, prior to the Pre-trial Order and Jury Instructions, plaintiffs never identified this alleged defect. It was not identified in Plaintiffs' Rule 26(a)(2) Disclosures or in their expert depositions. Therefore, this alleged defect, violation of 14 C.F.R. § 1583(h), must be excluded. and states:

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INSTRUCTION NO. 3.14a Presumptions--Noncompliance with Governmental Standards

Plaintiffs

Pratt & Whitney

Pilatus X

Stipulated

PRESUMPTIONS -- COMPLIANCE WITH GOVERNMENTAL STANDARDS "Presumptions" are legal rules based on experience or public policy. They are established in the law to assist the jury in determining the truth. In this case, if you find that at the time Pilatus sold the airplane, the product complied with any applicable regulations of the United States, then the law presumes that the airplane was not defective. You must consider this presumption together with all the other evidence in the case in deciding whether airplane was defective. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:5A, C.R.S.§ 1321-403(1), This instruction must be given if the court determines by a preponderance of the evidence that the evidence has established the necessary facts giving rise to the presumption. § 13-21-403(4), C.R.S.; see Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo.App.), cert. denied (1985). See also Patterson v. Magna Am. Corp., 754 P.2d 1385 (Colo.App. 1988). Evidence of compliance may be given in the form of an opinion of a qualified expert and is sufficient to warrant the giving of this instruction. Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo.App. 1984), aff'd on other grounds, 723 P.2d 1322 (Colo. 1986).

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INSTRUCTION NO. 3.14b Presumptions--Noncompliance with Governmental Standards

Plaintiffs

Pratt & Whitney X

Pilatus

Stipulated

PRESUMPTIONS -- COMPLIANCE WITH GOVERNMENTAL STANDARDS "Presumptions" are legal rules based on experience or public policy. They are established in the law to assist the jury in determining the truth. In this case, if you find that at the time Pratt & Whitney sold the engine, the product complied with any applicable regulations of the United States, then the law presumes that the engine was not defective. You must consider this presumption together with all the other evidence in the case in deciding whether airplane was defective. Source or authority: Colorado Jury Instructions, 4th - Civil, 14:5A, C.R.S.§ 1321-403(1), This instruction must be given if the court determines by a preponderance of the evidence that the evidence has established the necessary facts giving rise to the presumption. § 13-21-403(4), C.R.S.; see Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo.App.), cert. denied (1985). See also Patterson v. Magna Am. Corp., 754 P.2d 1385 (Colo.App. 1988). Evidence of compliance may be given in the form of an opinion of a qualified expert and is sufficient to warrant the giving of this instruction. Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo.App. 1984), aff'd on other grounds, 723 P.2d 1322 (Colo. 1986).

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INSTRUCTION NO. 3.15a NEGLIGENCE PER SE

Plaintiffs

Pratt & Whitney X

Pilatus X

Stipulated

At the time of the occurrence in question in this case, the following Federal Aviation Regulations were in effect: A flight for compensation or hire may not be operated outside the geographical area for which the operator is specifically authorized by the Federal Aviation Administration. When carrying passengers for compensation or hire, the subject airplane may not be operated over water below an altitude that allows it to reach land in the case of an engine failure. A violation of these regulations constitutes negligence. The subject flight was for "compensation or hire", if Access Air was in the business of providing air transportation and received compensation for the flight. If you find that Access Air was in the business of air transportation and received compensation for the flight and if you find such violations, you may only consider them if you also find they were causes of the claimed damages. Source or authority: Colorado Jury Instruction 9:14; 14 CFR § 1.1, 14 CFR § 119.5(j), 14 CFR § 135.183, Colorado Flying Academy, Inc., v. The United States of America, 506 F.Supp. 1221 (1981) "If an aircraft is operated by a company under Part 91, the rules contemplate that the company will be engaged in a business other than transportation by air and that furnishing transportation by that aircraft to other persons will be incidental to the company's business." In the Matter of Folsom's Air Service, Inc., 2006 FAA Lexis 350 (2006) "Only if the air transportation is "merely incidental" to the person's nonair transportation related business, will the carriage fall outside the ambit of Part [135])." Glenn Elbert Sampson, Respondent 2 N.T.S.B. 164 (1973),

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INSTRUCTION NO. 3.15b NEGLIGENCE PER SE

Plaintiffs

Pratt & Whitney X

Pilatus X

Stipulated

At the time of the occurrence in question in this case, the following Federal Aviation Regulation was in effect: No person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane Flight Manual. The operating limitations specified in the approved Airplane Flight Manual for the PC-12 required the use of an anti-icing fuel additive for the subject flight. A violation of this regulation constitutes negligence. You may consider such a violation only if you also find it was a cause of the claimed damages.

Source or authority: Colorado Jury Instruction 9:14; 14 CFR §91.9(a), Colorado Flying Academy, Inc., v. The United States of America, 506 F.Supp. 1221 (1981)

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DEFENDANTS' OBJECTION TO PLAINTIFFS' INSTRUCTION 3.25

This instruction is an incorrect statement of the law of this case. That is, Instruction 3.7 Affirmative Defense - Misuse states that if you find that defendants have proven the elements of misuse, you must find for the defendants. Therefore, even though all of the elements of plaintiffs claim for strict liability have been proven, the jury must not find for the plaintiffs if they find that all the elements of misuse have been proven. It is confusing because it introduces liability as distinguished from fault or negligence. Liability is not defined anywhere in these instructions. Moreover, contrary to this instruction, the jury never asked to assess damages. They are asked to assess fault. This is confusing as well.

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DATED this 3st day of June 2007. SCHULTZ & ASSOCIATES BYRNE, KIELY & WHITE, L.L.P.

s/ Robert Schultz Robert Schultz, #29607 9710 West 82nd Ave. Arvada, Colorado 80005 Tel. (303) 456-5565 [email protected] Attorney for Defendants Pilatus Business Aircraft, Ltd. and Pilatus Flugzeugwerke Aktiengesellschaft/Pilatus Aircraft, Ltd.

s/ Thomas J. Byrne Thomas J. Byrne, #7903 William White, #11973 1120 Lincoln Street, Suite 1300 Denver, Colorado 80203 Tel. (303) 861-5511 [email protected] [email protected] Attorneys for Defendant Pratt & Whitney Canada, Inc.

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of June 2007 I electronically filed the foregoing DEFENDANTS' FIRST AMENDMENT TO JURY INSTRUCTIONS (corrected) with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI [email protected]

s/ Robert Schultz

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