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

Case 1:01-cv-02056-JLK

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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 COMPLIANCE WITH FARS

I.

INTRODUCTION Most government design safety regulations are enforced only after the product is sold to

the public and only after a complaint of non-compliance. But the FAA, which promulgates airplane design regulations, is also charged by law with reviewing all airplane designs and inspecting all airplanes for compliance before they are sold to the public. It is presumed, and lacking evidence to the contrary, this court must accept, that the FAA obeyed the law. Moreover, lacking competent evidence to the contrary, this court must defer to the FAA's interpretation of its own regulations. Therefore it must find as a matter of law that airplane and its POH complied with the applicable regulations.

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Notwithstanding the fact that the Colorado Supreme Court found that another similar statute was "meaningless," (C.R.S. § 13-21-403(3)) the applicable statute, C.R.S. § 13-21403(1)(b) remains the law and must be applied by this court. Moreover, defendants do not contend that a finding that the airplane complied with the applicable regulations is conclusive of non-defectiveness ­ only that there is a statutory presumption of non-defectiveness. II. A. ARGUMENTS Since the Subject Aircraft Was Issued An Airworthiness Certificate, Absent Evidence to

the Contrary, This Court Must Presume That The FAA Made Findings of Fact That it Complied With The Applicable FARs. It is a maxim of jurisprudence and Colorado law of that people are assumed to obey the law. Wilson v. Mosko, 110 Colo. 127, 130 P.2d 927 (1942), Calif. Civ. Code § 3548. The law requires the FAA to make findings of fact after inspection that an aircraft conforms to its Type Certificate before it may issue an Airworthiness Certificate. 49 USC § 44704(d). It is undisputed that the subject aircraft was issued an airworthiness certificate. Therefore, unless proven otherwise, this court must presume that the subject aircraft was inspected by the FAA and found to conform to its Type Certificate. The law requires the FAA to make findings of fact that an aircraft or aircraft engine meets the regulations and minimum standards prescribed under section 49 USC § 44701(a) before it may issue a Type Certificate for that design. 49 USC § 44704(a). The applicable regulations were prescribed under section 49 USC § 44701(a). It is undisputed and a matter of public record that the PC-12 was issued a Type Certificate. Therefore, unless proven otherwise,

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this court must presume that the PC-12 aircraft PT6 aircraft engine met the requirements of the applicable regulations. The law requires that this Court give findings of fact made by Swiss authorities the same validity as findings of fact made by the FAA. Bilateral Airworthiness Agreement Between the United States and Switzerland. Exhibit A. Therefore this court must presume that the Swiss authorities made the findings of fact required by United States law and give them the same validity. Based on the presumption that persons obey the law, and absent evidence to the contrary, this Court must presume that the FAA made findings of fact that the aircraft complied with the applicable regulations. B. Since There Is No Admissible Evidence To The Contrary, This Court Must Defer to the

FAA's Interpretation of its Own Regulations. In a related Daubert motion, Pilatus proved that plaintiffs' expert Edwards is not qualified by experience or knowledge to interpret the applicable FAA design regulations. Since the plaintiffs did not offer any other expert qualified, or allowed, to refute the FAA's finding, the Court must defer to the FAA's interpretation of its own regulations. Udall v. Tallman et al., 85 S. Ct. 792, 380 U.S. 1, 16 (1965). C. Since There Is No Admissible Evidence To The Contrary, This Court Must Find That

The Subject Aircraft Complied With The Applicable Regulations. Plaintiffs offer no evidence that the FAA failed to meet its legal requirements to inspect the subject aircraft and find that it conforms to its type design. They offer no evidence that the FAA failed to make findings of fact that the subject aircraft engine met the applicable

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regulations. Therefore, lacking evidence to the contrary, this court must find that the subject aircraft complied with the applicable regulations. D. Although The Colorado Supreme Court Found That a Similar Statute Was

"Meaningless," (C.R.S. § 13-21-403(3)) The Applicable Statute, C.R.S. § 13-21-403(1)(b) Remains The Law And Must Be Applied By This Court. Plaintiffs cite Mile Hi Concrete v. Matz 842 P.2d 198 (Colo. 1992) arguing that since the Supreme Court found a similar statute "meaningless," it is not bound by C.R.S. § 13-21403(1)(b). But in Uptain v. Huntington Lab Inc., 685 P.2d 218 (1984) a Colorado Court of Appeals held that it was proper to instruct the jury on the specific statute at issue. There being no authority to the contrary, C.R.S. § 13-21-403(1)(b) is the law and must be applied by this court. E. Defendants Do Not Contend That A Finding That The Airplane Complied With The

Applicable Regulations Is Conclusive Of Non-Defectiveness ­ Only That There Is A Statutory Presumption Of Non-Defectiveness. Cases cited by plaintiffs, Bruce, Sunbird Services, Inc, In re Air Crash Disaster at Stapleton, Elsworth and Cleveland are straw men since defendant do not contend that compliance with applicable regulations is conclusive evidence of non-compliance. The issue of compliance with applicable regulations applies only to the statutory presumption raised by both sides.

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III.

CONCLUSION For the foregoing reasons, the court must defer to the finding of the Federal Aviation

Administration and find that the subject airplane and Pilot Operator Handbook (POH) did comply with applicable regulations as a matter of law. 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 COMPLIANCE WITH FARS 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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