Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 147

Filed 02/12/2007

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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 IFSD EVIDENCE

I.

INTRODUCTION Realizing that that their proffered evidence of an allegedly high "in-flight shut down"

(IFSD) rate is inadmissible to prove defect, plaintiffs now argue instead that "the disputed evidence is being offered for the purpose of proving that the pilot's decision to shut down the engine during flight was foreseeable." 1 But to make this leap, they falsely state 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
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In footnote 1 plaintiffs admit, "the evidence is not being offered to prove that other engines suffered the same blade fractures like this engine did, nor is the evidence being offered to prove that a fractured blade caused the engine to malfunction." Of course they are not, because none of the reported IFSDs resulted from a blade fracture. In fact, as has been previously proven in this case, there has never been a blade fracture in this engine in this airplane ­ ever! (Motion for Summary Judgment Doc. 56) Page 1 of 7

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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forced to shut down the engine during flight." In none of the incidents offered as evidence by plaintiffs, did a pilot shut down an engine in flight! Indeed, except for the instant case and testing by Pilatus test pilots, there is no evidence in the record of any pilot of any PC-12 aircraft ever shutting down the engine in flight. The issue of foreseeablity, they say "is relevant to the affirmative defense of product misuse and intervening cause." "The evidence is not being offered to prove that the engine in this case malfunctioned in a manner that was `substantially similar' to the engine malfunction in any other incident." But since none of the proffered evidence relates in any way to a pilot's decision to shut down the engine in flight, it is not probative of that issue or in any way relevant. II. A. ARGUMENTS Evidence Offered by Plaintiffs in Their Reply Does Not Support Their Claims That The

Engine Has A Long History Of Unreliability Leading To In-Flight Shut Downs. While it is not the intention of this motion to argue whether or not the engine has a "long history of unreliability" the evidence offered in plaintiffs' reply does not support that claim. Plaintiffs' Exhibit 3. This exhibit is a June, 1998, report that states: "The PT6A-67B grinding noise and propeller blockage after shutdown is caused by the abrasive seal at the PT blades." Plaintiffs attempt to equate the words "grinding noise and propeller blockage" to Pilot Smith's report "hearing the same kind of `grinding' noises coming from his engine before it was shut down." (Doc. 127 p. 5). This comparison is false because they failed to inform the court that these noises occurred during engine ground testing before any of the aircraft were sold. These were not in-flight shut downs. These were economic problems cause by quality control

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issues diagnosed before the airplanes were sold. They were not safety problems because they never reached the general public. 2 Plaintiffs' Exhibit 4 In their response plaintiffs refer to their Exhibit 4 as a December, 1998, letter from Pilatus to Pratt & Whitney's President and CEO. In fact their Exhibit 4 is a different letter. But the letter they refer to is attached as Exhibit D to this motion. The alleged "dramatic escalation" in problems with the PT6A-67B engine, and the PT6A-67B "quality problems" were not in-flight shut downs or even safety related. They were quality control and therefore economic problems. These problems were caught and fixed before the aircraft reached the general public. 3

A. That is the quality index over the past 12 months. It takes all the delivered engines and snags on these engines of the past months into account. Q. All right. And when you refer to snags, you're talking about the discrepancies that pop up, for example, during the ground run? A. Or during the installation, like missing parts, like bent tubes, things like that. Q. You're not talking about inflight shutdowns? A. No. ... Q. Okay. So if I'm reading this correctly, Pilatus expected a 95 percent quality index? A. Yes. Q. Meaning that 95 percent, I assume, of the engines delivered from Pratt & Whitney would have no snags? A. Yes. ... A. "The PT6A-67B grinding noise and propeller blockage after shutdown is caused by the abrasive seal at the PT blades. The cover is of a floating type." Q. Do you know what that's talking about there? A. I can't remember, to be quite honest. Q. Do you recall any discussion with Pratt & Whitney about a grinding noise and propeller blockage in the 67B engine? A. I can't recall. The only thing I would be able to recall, if it would have been safety related. It was probably something which was discovered during the first engine ground runs. Otherwise, it would not be under the quality heading. Bretscher Vol 1, pg 221 Exhibit I. In the last paragraph of the first page the letter said; "In the second quarter 1995 the quality index was below 60%. In March 1995 M. David gave us a presentation how Pratt & Whitney Canada wants to improve the quality. In November the same year a follow up meeting was held regarding quality. At that time you committed your company breach an index of 95%. Only during this year the quality Index climbed above 80%. However during the last months it dramatically dropped to well below 70%. I attach a further example of a severe quality error, which came to my attention a couple of days ago. I assume that you are also aware of the recent problems that required an inspection of all PT6A-27 engines built within a certain timeframe." REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE Page 3 of 7
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Similarly, plaintiffs remaining exhibits do not support their claim of a "long history of unreliability." B. Even If It Were True, as Plaintiffs Argue, That the Airplane Engine Has a Long History

of Unreliability Leading to In-Flight Shut Downs, This Evidence is Inadmissible Unless the Evidence is Related to Pilot Elected Shut Downs. There is no dispute that all of the in-flight shut downs upon which the proffered evidence is based were "unintended." That is, the engine quit on its own. None of the proffered evidence is of pilot elected shut downs. That is, where the pilot made a decision to shut down the engine. Logically, a history of unintended shut downs does not foretell elected shut downs ­ even where the engine symptoms are identical. Although the outcome is the same - loss of power - a deliberate decision to shut down the engine cannot be equated with an unintended engine failure. In fact, every instance of unintended engine failure suggests just the opposite - that the pilot elected not to shut down the engine despite symptoms of impending engine failure! C. The Challenged Evidence Does Not Tend to Disprove Defendants' Claim that the Pilot's

Decision to Shut Down the Engine Was Unforeseeable. "[F]oreseeability is based on common sense perceptions of the risks created by various conditions and circumstances." Taco Bell Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) Thus under given conditions and circumstances an act is unforeseeable if common sense dictates that it will not occur. Common sense and basic survival instinct dictate that a pilot will not elect to shut down his one and only engine under the conditions and circumstances of flying over the ocean beyond gliding distance of land. Indeed it defies common sense to foretell that a pilot would do this potentially suicidal act deliberately. The proffered evidence does not suggest that a pilot would

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defy common sense and his survival instinct. That is, evidence of unintended engine shut downs, does not foretell that a pilot might elect to shut down his one and only engine under conditions where a safe glide to landing is impossible. Therefore, the challenged evidence does not tend to disprove defendants' claim that the pilot's decision to shut down the engine was unforeseeable. D. Even Under Relaxed Standards, Evidence of Unintended Engine Shut Downs is Not

Similar to a Deliberate Engine Shut Down. Plaintiffs claim that because the evidence of in-flight shut downs is not offered to prove defect, only a "relaxed" standard of similarity must be met. Assuming this is true, the standard plaintiffs propose is: · · · Same model airplane Same model engine Same failure mode.

But the proffered evidence of "similar" incidents fails to meet even this low standard. While the aircraft and engine are the same, none of the incidents were deliberate engine shut downs. That is, an unintended failure is not, by even the most relaxed standard, the same failure mode as a deliberate engine shut down.

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Case 1:01-cv-02056-JLK

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III.

CONCLUSION For the foregoing reasons, this court must exclude evidence and arguments regarding

other PC-12 in flight shut downs (IFSD) and the IFSD rate. DATED 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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Case 1:01-cv-02056-JLK

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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 IFSD EVIDENCE 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]

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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