Free Objections - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 1 of 20

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' OBJECTIONS TO DEFENDANTS' EXHIBITS

/// ///

USAU v. Pilatus

Plaintiffs' Objections to Defendants' Exhibits
Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 2 of 20

Pursuant to Fed.R.Civ.P. 26(a)(3) and this Court's Minute Order (Doc. 168) plaintiffs respectfully submit their objections to defendants' exhibits as follows: Def. Ex. No. A1, A2, A3 and A4 A5 and A6 Plaintiffs object to these exhibits on the following grounds: Relevance. These exhibits are being offered by defendants to prove that the subject airplane was tested at the factory before being sold, and therefore, the defendants' conduct was reasonable. The reasonableness of the defendants' conduct is not an issue in this strict liability case, and these exhibits do nothing to prove or disprove any claim or defense that is at issue in this litigation. FED.R.EVID. 403. These exhibits include references to numerous tests that were allegedly performed on such irrelevant items as the airplane's avionics, instruments, landing gear systems, etc. The probative value of these exhibits is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time. Hearsay. The persons who performed the tests described in these exhibits will not be testifying at trial. To the extent the defendants intend to have another witness (Peter Duncan) testify that the tests described in these exhibits were performed, that testimony would constitute speculation and inadmissible hearsay. -2Access Air 0NR/PO/WO Lg24186/20070601

Plaintiffs' Objections Plaintiffs have no objections to these exhibits.

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 3 of 20

A7, A8 and A9

Plaintiffs object to these exhibits on the following grounds: Relevance. These exhibits are FAA Advisory Circulars. As stated in the "purpose" section of each Advisory Circular, these documents are neither regulatory nor mandatory in nature. All three of these exhibits post-date the day the subject airplane crashed, and these exhibits were not in force at the time of the crash. FED.R.EVID. 403. These exhibits include references to numerous issues which have nothing to do with this litigation The probative value of these exhibits is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

A10

Plaintiffs have no objections to this exhibit.

-3Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 4 of 20

A11, A12 and A13

Plaintiffs object to these exhibits on the following grounds: Relevance. The defendants offer these exhibits to prove that the airplane complied with applicable U.S. Federal Aviation Regulations. However, this Court has already twice rejected the defendants' claims that such evidence proves the airplane was not defective. (See, Doc. 88 at p. 15, and Doc. 158 at pp. 3-4.) Accordingly, these exhibits are irrelevant and inadmissible because they do not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibits. (FED.R.EVID. 401.) Opinion. This exhibit represents the Swiss and U.S. government's generalized opinion that the subject airplane complies with U.S. Federal Aviation Regulations. However, there is no indication of what tests or inspections, if any, were conducted with regard to the particular regulations that are material to this lawsuit. The opinions expressed in these exhibits are therefore unreliable and inadmissible. FED.R.EVID. 403. The jury will likely place undue emphasis on these unreliable opinion, and will be misled into believing that these exhibits prove the airplane did comply with the particular regulations that are involved in this lawsuit. The probative value of these exhibits is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

-4Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 5 of 20

A14

Plaintiffs object to this exhibit on the following grounds:

Relevance. This exhibit is a copy of a letter offering to lease the airplane on July 26, 2000 ­ almost one full year before the subject airplane crashed in the Sea of Okhotsk, and several months before the subject airplane had even been sold. (See, Pretrial Order, Stip. Facts 8 and 9.) This letter is irrelevant because it does not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.) To the extent the defendants wish to have this exhibit introduced into evidence solely for the purpose of providing some belated support for their motions that sought the application of Idaho law, admiralty law and/or the economic loss rule, those motions have already been denied, and it is far too late to try to "seed" the trial record with materials that were never provided to the court when it ruled on those motions.

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

-5Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 6 of 20

A15

Plaintiffs object to this exhibit on the following grounds:

Relevance. This exhibit is a copy of the Aircraft Purchase Agreement. The parties have stipulated that the airplane was sold in the manner described in this exhibit. (See Pretrial Order, Stip. Fact 9.) The precise terms of that sales transaction are not relevant to this litigation, and this exhibit does not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.)

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

-6Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 7 of 20

A16

Plaintiffs object to this exhibit on the following grounds: Relevance. This exhibit contains copies of bylaws and other partnership records of DJS Aviation, LLC, the entity that owned the airplane when it crashed in the Sea of Okhotsk. This exhibit does not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.) To the extent the defendants wish to have this exhibit introduced into evidence during the trial solely for the purpose of providing some belated support for their pretrial motions that sought the application of Idaho law, admiralty law and/or the economic loss rule, those motions have already been denied, and it is far too late to try to "seed" the trial record with materials that were never provided to the court when it ruled on those motions. FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

-7Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 8 of 20

A17

Plaintiffs object to this exhibit on the following grounds:

Relevance. This exhibit is a copy of the Sales Tax Exemption certificate for the sale of the subject airplane. This exhibit does not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.) To the extent the defendants wish to have this exhibit introduced into evidence solely for the purpose of providing some belated support for their motions that sought the application of Idaho law, admiralty law and/or the economic loss rule, those motions have already been denied, and it is far too late to try to "seed" the trial record with materials that were never provided to the court when it ruled on those motions.

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

-8Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 9 of 20

A18, A19, A20, A21 and A22

Plaintiffs object to these exhibits on the following grounds: Relevance. These exhibits prove that the airplane was sold by Western Aircraft to DJS Aviation in December, 2000. However, the parties have already stipulated to this fact. (See Pretrial Order, Stip. Fact 9.) These exhibits do not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibits. (FED.R.EVID. 401.) FED.R.EVID. 403. The probative value of these exhibits is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

A23

Plaintiffs object to this exhibit on the following grounds: Relevance. This exhibit proves that the airplane was leased to Access Air by DJS Aviation in December 2000. However, the parties have already stipulated to this fact. (See Pretrial Order, Stip. Fact 10.) This exhibit does not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.) FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

-9Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 10 of 20

B1 and B2 B3

Plaintiffs have no objections to these exhibits. Plaintiffs object to this exhibit on the following grounds:

Relevance. This exhibit is a lawyer-created excerpt of a portion of a nonbinding advisory opinion purportedly authored by the FAA in 1991. The non-binding advisory opinion excerpted in this exhibit tends to prove nothing more than the FAA's opinion (at that time) regarding the particular facts that existed in the case described in the advisory opinion. This non-binding advisory opinion does not tend to prove that the flight of this airplane (N660NR) was or was not operated under Part 135, nor does this exhibit tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.)

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

Foundation/Authentication: No witness will provide necessary evidentiary foundation for this exhibit. B4 Plaintiffs have no objections to this exhibit.

- 10 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 11 of 20

B5

Plaintiffs object to this exhibit on the following grounds:

Relevance. This exhibit is an excerpt from a 1993 version of an FAA manual that was used to provide discretionary guidance to new FAA inspectors. This non-binding FAA manual does not tend to prove that the flight of this airplane (N660NR) was or was not operated under Part 135, nor does this exhibit tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.)

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

Foundation/Authentication: No witness will provide necessary evidentiary foundation for this exhibit. No witness will testify that this 1993 version of the FAA manual was in effect at any time that is relevant to this litigation. B9 Plaintiffs have no objections to this exhibit.

- 11 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 12 of 20

B10, B11, B12, B13, B14 and B15

Plaintiffs do not anticipate any objections to these exhibits, however, the exhibits are not included in defendants' exhibit books, and the exhibits have never been made available for plaintiffs' review.

B16

Plaintiffs have no objections to this exhibit.

B17

This exhibit duplicates plaintiffs' exhibit 45.

B18

This exhibit duplicates plaintiffs' exhibit 44.

B19

This exhibit duplicates plaintiffs' exhibit 42.

B20

Plaintiffs have no objections to this exhibit.

- 12 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 13 of 20

B21 and B22

Plaintiffs object to these exhibits on the following grounds:

Relevance. These exhibits are the two Part 135 regulations that the defendants claim were violated by Access Air. Plaintiffs contend that the flight was conducted under Part 91 (not Part 135), and therefore, the Part 135 regulations cited by the defendants are irrelevant. This issue (Part 91 vs. Part 135) has already been the subject of several motions and at least two court orders. In September, 2006, this Court denied the defendants' motion for partial summary judgment, and rejected the defendants' request for a ruling that the flight was conducted under Part 135 (not Part 91) as a matter of law. (Doc. 88.) Among other things, this Court held that the jury (not the Court) would have to determine whether this flight was conducted under Part 91 (as plaintiffs contend) or under Part 135 (as defendants contend). At trial, the defendants will naturally bear the burden of proving their claim that the flight was conducted under Part 135; that Part 135 was violated; and that those violations were a cause of plaintiffs' damages. However, the defendants have proposed no jury instructions that would identify the elements of a Part 135 flight. Without such a proposed instruction, the jury will be precluded from deciding the disputed factual issue of whether this flight was conducted under part 135 or Part 91.

- 13 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 14 of 20

B21 and B22 (continued)

If this flight was not conducted under Part 135, then these two exhibits are irrelevant and inadmissible. In other words, the relevance of these two exhibits depends on the jury making an initial finding that this was in fact a Part 135 flight. That determination has not yet been made. Until such time as that determination has been made (and this Court has already ruled that the determination cannot be made a matter of law) these two exhibits are irrelevant and inadmissible. The exhibits do not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.)

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

- 14 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 15 of 20

B23

Plaintiffs object to this exhibit on the following grounds:

Relevance. This exhibit purports to be selected pages form a book used by the FAA to test pilots in August 2006. This exhibit did not exist when this crash occurred, and the pilot in this case (Mike Smith) never took the test described in this August 2006 exhibit. This exhibit does not tend to make the existence of any fact that is of consequence to the determination of this action more probable or less probable than it would be without the exhibit. (FED.R.EVID. 401.)

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

C1

Plaintiffs have no objections to this exhibit.

C2, C3, C4 and C5

Plaintiffs understand that the defendants have withdrawn these proposed exhibits.

C6

Plaintiffs have no objections to this exhibit.

- 15 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 16 of 20

C7

Plaintiffs object to this exhibit on the following grounds:

Foundation. This exhibit purports to be an English-language translation of a Russian-language report on the subject airplane crash. The person who made this translation has not been identified, and will not be testifying at trial. Also, the translator's qualifications are unknown. Likewise, there is no proof that the Russian-English translation reflected in this exhibit is accurate or reliable.

Hearsay. This exhibit reflects the translator's interpretation of Russian reports of what was allegedly told to the Russian investigators by thirdparties. The Russian investigators who allegedly authored this report (in Russian) have no personal knowledge of any facts relevant to this litigation, and they will not be testifying at trial (either in person or by deposition).

Opinions. This exhibit reflects the inadmissible opinions of Russian investigators whose qualifications are unknown, and who have never been identified or disclosed as expert witnesses in this case.

FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time.

- 16 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 17 of 20

C8 C9 and C10

Plaintiffs have no objections to this exhibit. Plaintiffs understand that the defendants have withdrawn these proposed exhibits.

C11

Plaintiffs object to this exhibit on the following grounds: Hearsay. This exhibit is a copy of handwritten notes made by plaintiffs' expert witness (David Rupert) during a telephone interview of the pilot (Mike Smith) in March 2005. As such, this exhibit reflects unsworn outof-court statements allegedly made to Mr. Rupert by Mr. Smith. The defendants plan to offer this exhibit to prove the truth of the matters stated in the exhibit.

C12

Plaintiffs object to this exhibit on the following grounds: Foundation. This exhibit purports to be a transcription of an audiotaperecorded interview of pilot Mike Smith that was conducted by plaintiffs' expert witness, Dr. Lawrence Scanlan. The person who made this translation has not been identified, and will not be testifying at trial. Also, the translator's qualifications are unknown. Likewise, there is no proof that the transcription reflected in this exhibit is accurate or reliable. Hearsay. This exhibit reflects unsworn out-of-court statements allegedly made to Dr. Scanlan by Mr. Smith. The defendants plan to offer this exhibit to prove the truth of the matters stated in the exhibit.

- 17 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 18 of 20

C13

Plaintiffs object to this exhibit on the following grounds: Hearsay. This exhibit purports to be an audiotape recording of an interview of pilot Mike Smith that was conducted by plaintiffs' expert witness, Dr. Lawrence Scanlan. This exhibit reflects unsworn out-ofcourt statements allegedly made to Dr. Scanlan by Mr. Smith. The defendants plan to offer this exhibit to prove the truth of the matters stated in the exhibit.

C14

Plaintiffs understand that the defendants have withdrawn this proposed exhibit.

C15

Plaintiffs object to this exhibit on the following grounds: Relevance. This exhibit is a post-crash email sent by the pilot (Mike Smith) to one of the Japanese passengers (Mr. Yamagata). The first paragraph of this email discusses information requested by Doug Ritter, a "survival expert." The information reflected in the first paragraph of this email is irrelevant to any issue in this litigation. The second paragraph in this email reflects Mr. Smith's recollection of what he was told by plaintiffs' counsel regarding the cause of the crash. Plaintiffs' counsel's theories are not relevant to any issue in this lawsuit. FED.R.EVID. 403. The probative value of this exhibit is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay and waste of time. - 18 Access Air 0NR/PO/WO Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 19 of 20

C16 C17

Plaintiffs have no objections to this exhibit. Plaintiffs have no objections to this exhibit, provided the list of prior deposition and trial testimony on page 4 of the exhibit is redacted by agreement of all parties.

Respectfully Submitted, Dated: June 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 Lg24186/20070601

Case 1:01-cv-02056-JLK

Document 172

Filed 06/01/2007

Page 20 of 20

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 June 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]

- 20 Access Air 0NR/PO/WO Lg24186/20070601