Free Reply to Response to Motion - 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 Civil Action No. 01-cv-02056-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.

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE SMITH STATE OF MIND TESTIMONY

I.

INTRODUCTION This motion addresses only Pilot Smith's state of mind testimony as to why he shut down

the engine and prematurely aborted the restart. The pilot's state of mind has never been alleged as a justification for any other manipulation of the controls. This motion is related to Pilatus' Daubert Motion to exclude testimony by Pilot Smith and Expert Scanlan that had Smith not shut down the engine, he and his passengers risked "potential catastrophic consequences" resulting in certain death. (Doc. 119. p. 8) Plaintiffs conceded, however, that "no such testimony will be offered by plaintiffs at trial." (Doc. 119,

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p.7) The admission that they lack evidence of potential catastrophic consequences must be treated as an admission that such consequences could not occur. Despite this admission, plaintiffs insist that Pilot Smith may testify to establish his "beliefs as to what he thought could happen" if he did not shut down the engine and abort the restart. (Doc. 126 p. 2) Plaintiffs claim this "state of mind" testimony, even though unfounded, is admissible to show (1) the pilot was faced with a "sudden emergency" and (2) to provide "factual context" that is necessary for the jury to decide whether the pilot "failed to do something that a reasonably careful person would do." 1 First, the sudden emergency doctrine does not apply to a situation where the actor had time to consider his actions, his judgment was not impaired by the emergency and he acted accordingly. It applies generally to collision cases where instantaneous action is required. To clarify, the only conduct at issue is the pilot's two decisions to shut down the engine and prematurely abort the restart. These two decisions were made, 30 seconds and more than 20 minutes after the pilot reported engine noises, respectively. Potential catastrophic consequences are not alleged by plaintiffs as a reason for any other actions by the pilot. In this case, the pilot took 30 seconds to review his engine instruments and make a considered decision to shut down the engine. 2 He commenced the restart after he had glided most of the way to the water which took almost thirty minutes. If a sudden emergency existed at the time the pilot heard engine noises, it was long over when he shut down the engine ­ and certainly when he prematurely aborted the restart.
In fact Mr. Smith never told government investigators of the alleged potential catastrophic consequences. The first time he mentioned this "belief" was at his deposition in this case - a year after the accident.
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Thirty seconds is the time from the initial sounds reported by the pilot until the engine shut down. Defense experts testified that he had much more time. REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE SMITH STATE OF MIND TESTIMONY Page 2 of 9

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Second, for the "sudden emergency" doctrine to apply, the emergency must be real, not imagined. Again this applies only to the circumstances when the pilot shut down the engine and later when he aborted the restart. While there may have been a real emergency requiring immediate action at the time the pilot heard noises, the emergency at issue, potential catastrophic consequences, was imaginary. Since plaintiffs now admit that this emergency was an unfounded belief, as a matter of law, no sudden emergency existed to justify the engine shut down and aborted restart. Third, plaintiffs simply seek to establish standard of care through the back door by calling it "factual context." But in a case such as this, where standard of care is beyond the common knowledge and experience of ordinary persons, expert testimony is required to prove this element. Lacking such expert testimony, for the simple reason that Pilot Smith's belief is unfounded, they now call it "factual context" arguing that even if untrue, the jury may find that the pilot acted reasonably if he sincerely believed potential catastrophic consequences might occur. Their position is contrary to basic tort law. Over 100 years ago, Justice Holmes eloquently said: "It is quite true that negligence must be determined upon the facts as they appeared at the time, and not by a judgment from actual consequences which then were not to be apprehended by a prudent and competent man. This principle nowhere has been more fully recognized than by this court. But it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man

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concerned. The notion that it 'should be coextensive with the judgment of each individual,' was exploded, if it needed exploding, by Chief Justice Tindal, in Vaughan v. Menlove, 3 Bing. N. C. 468, 475. And since then, at least, there should have been no doubt about the law." Oceanic Steam v. Aitken, 196 U.S. 589, 595, 25 S.Ct. 317, 49 L.Ed. 610 (1905) (Emphasis Added). To this day, there remains no doubt about the law. "[T]he standard of care in negligence cases is external and objective and is measured by an objective test of the care of a reasonable and prudent person under the circumstances. The law does not permit an individual to make the determination of what is, and what is not, due care under the circumstances, according to his or her own judgment." 57A Am. Jur. 2d Negligence § 134 This is especially true in a case such as this where the judgment is known to be unfounded. II. A. ARGUMENTS The Sudden Emergency Doctrine Does Not Apply In This Case Because, By His Own

Admission, The Pilot's Judgment Was Not Impaired, He Had Time To Consider His Course Of Action and He Contends He Acted Properly Accordingly to His Training and Experience . To justify the admission of Pilot Smith's unfounded belief, plaintiffs argue that it is relevant to the "sudden emergency" doctrine they plan to assert at trial. But the sudden emergency doctrine has never been applied to a situation where the actor had time to contemplate his actions and acted accordingly. It applies generally to collision cases where instantaneous or immediate action is required and thus the actor has no time to use proper judgment. "[O]ne suddenly confronted with an emergent situation which is `due to no

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negligence on his part' is not thereafter to be deemed guilty of negligence for a subsequent error of judgment when practically instantaneous action is required." (emphasis added) Daigle v. Prather, 380 P.2d 670, 152 Colo. 115,119 (Colo. 1963). "The sudden emergency doctrine was developed by the courts to recognize that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions." (emphasis added) Young v. Clark. 814 P.2d 364 (1991). The doctrine is generally limited to collision cases. See Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972) (potential automobile collision); Bartlett v. Bryant, 166 Colo. 113, 442 P.2d 425 (1968) (brake failure); Daigle v. Prather, 152 Colo. 115, 380 P.2d 670 (1963) (brake failure); Stewart v. Stout, 143 Colo. 70, 351 P.2d 847 (1960) (icy patch on road); Ridley v. Young, 127 Colo. 46, 253 P.2d 433 (1953) (tire exploded): Carlson v. Ferris 58 P.3d 1055 (2002) (automobile collision); Young v. Clark. 814 P.2d 364 (1991) (automobile collision). By contrast and by his own admission, Pilot Smith went through at least nine considered steps before shutting down the engine and seven considered steps before aborting the restart. 3

At his deposition, in attempt to clarify his many contradictory statements, Smith prepared a hand written statement of his actions. (Deposition Exhibit 47, Plaintiffs' trial exhibit 48, attached hereto as Exhibit C) "(Smith) I have a statement of the sequence of events starting with the initial indication of an engine problem. Q. Okay. This is dated today. Did you prepare this today? A. Yes, yes. ... A. It's just a confirmation of see sequence of events. It was not -- it was for clarification because I made -in my other statements I have made -- have not clarified fully what was going on. ... Q. Is this meant to be the sequence of events from the time something first went wrong until you shut down the engine? A. Yeah. This happened all in 30 seconds." Smith deposition Vol. 1, p. 164-165 Exhibit D. The following were identified by Smith as the nine steps to engine shut down: 1. Engine vibration ­ Noise (surging) 2. Feeling of surging thrust 3. PCL [power control lever] application ­ forward. 4. PCL full forward 5. As MOR [manual override] lever comes out of detent, ITT 1144° [temperature] 6. MOR lever back to detent REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE SMITH STATE OF MIND TESTIMONY Page 5 of 9

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Moreover, Smith testified that he acted properly in accordance with his training and experience 4 and that his judgment was not impaired by the alleged emergency. 5 Accordingly, by the pilot's own admission, the "sudden emergency" doctrine does not apply. C. Where, As Here, The Actor's Belief Was Unfounded As A Matter Of Law, The Sudden

Emergency Doctrine Does Not Apply. Whether or not a sudden emergency existed is a question of fact for the jury. But where, as here, plaintiff admits there is no evidence of a sudden emergency, i.e. potential catastrophic consequences, the court must rule out sudden emergency as a matter of law. Since an unfounded belief is not evidence of a sudden emergency, the doctrine does not apply. D. The Pilot's Belief, No Matter How Sincere, Is Inadmissible To Prove Standard Of Care,

Where, As Here, It Is Beyond The Common Knowledge And Experience Of Ordinary Persons. As quoted by plaintiffs: "Negligence consists of a failure to observe reasonable standards of care which the circumstances of the particular situation require, and the liability for one's conduct must be determined in the light of what was apparent at the time, not what is obvious in

8. Engine vibrations ­ noise (surging) grinding 9. ITT above 800° 10. Condition lever [engine shut down] idle cut off" The following were identified by Smith as the seven steps to abort engine restart: 11. Starter on 12. Ng [compressor RPM] above 30% 13. Condition lever ­ ground idle 14. Ng 40-50%, ITT 600-700 15. Np [propeller RPM] 0% 16. Abort restart ­ idle cutoff. 17. Starter off. Exhibit C
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Q. Do you feel your judgment was impaired because of the emergency that was taking place at that time? A. I reacted as I have been trained through many years of military training and civilian training to react without a lot of thought to a situation like that. Smith deposition Vol. 1, p. 242 Exhibit D. Q. Do you think your judgment was impaired because of the emergency situation? A. No." Smith deposition Vol. 1, p. 242 Exhibit D. REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE SMITH STATE OF MIND TESTIMONY Page 6 of 9

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hindsight." (Mitchell v. Allstate Ins. Co., 36 Colo.App. 71, 75 [534 P.2d 1235, 1237] (Colo.App. 1975).) What is "apparent at the time" means apparent from the "circumstances of the particular situation," not apparent from unfounded beliefs, regardless of how sincerely those beliefs are held. Oceanic Steam, supra. Moreover, in a case such as this where the "standards of care which the circumstances of the particular situation require" are beyond the common knowledge and experience of ordinary persons, expert testimony is needed to prove standard of care and breach of that standard. Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997). By their own admission, plaintiffs lack expert testimony to support the pilot's alleged "potential catastrophic consequences." They offer instead, the pilot's unfounded belief that his "particular situation" or as they call it, "factual context" required shutting down the engine and aborting the restart. But this is neither expert testimony, nor is it "external" or "objective." 57A Am. Jur. 2d Negligence § 134, supra. It is not "an objective test of the care of a reasonable and prudent person under the circumstances." Id. And no matter how sincere, Smith's unfounded belief is inadmissible because "[t]he law does not permit an individual to make the determination of what is, and what is not, due care under the circumstances, according to his or her own judgment." Id.

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III.

CONCLUSION For the foregoing reasons, this court must exclude Pilot Smith's testimony that he shut

down the engine and aborted the restart because he feared the engine would catch fire or become dislodged from the aircraft, causing loss of control. RESPECTFULLY SUBMITTED this 12th day of February 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

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of February 2007, I caused the forgoing REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE SMITH STATE OF MIND TESTIMONY 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__________ Law Offices of Robert B. Schultz [email protected]

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