Free Brief in Support of Motion - District Court of Colorado - Colorado

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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' REPLY TO DEFENDANTS' RESPONSE TO MOTION IN LIMINE (Doc. 108) RE EXCLUSION OF INADMISSIBLE EVIDENCE OF ALLEGED VIOLATIONS OF FEDERAL AVIATION REGULATIONS WITHOUT PROOF OF CAUSATION

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USAU v. Pilatus

Plaintiffs' Reply Brief, Motion in Limine re Causation
Access Air 0NR/PO/WO Lg24186/20070207

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PLAINTIFFS' MOTION IN LIMINE SHOULD BE GRANTED. The defendants' response (Doc. 131) fails to establish any legitimate reasons for

denying plaintiffs' motion in limine (Doc. 108).

1.

First, the defendants argue that "if Access Air had not agreed to" fly this trip in

violation of 14 C.F.R. § 119.5(j), then "the aircraft would never have been flown over the Sea of Okhotsk ­ and would never have sunk in the Sea of Okhotsk. (Def. Br., Doc. 131, p. 6.) But the same thing could be said about any number of other

hypothetical events that never happened. For example, the airplane would also not have been flying over the Sea of Okhotsk if: (1) the airplane had never been built (it was), or (2) the Japanese passengers had never contacted Access Air (they did). The defendants' argument ­ based on hypothetical events which did not happen ­ demonstrates only the absence of causation. Everyone agrees that Access Air's Part 135 certificate limited operations to the U.S., Mexico and Canada. But despite those geographic restrictions, it remains a fact that the trip was not canceled, contrary to the defendants' speculative theory of causation. Instead, prior to embarking on the around-the-world trip, Access Air

sought and received what it believed to be permission from the FAA's local representative (Mr. Chet Waite) to fly this trip under Part 91, which contains no similar geographic limitations. (See, Order, Doc. 88, p. 21.) Because it is undisputed that the trip was not canceled, the defendants' alternative scenario involving an event that never happened (a cancellation of the trip) rests on fantasy, not facts. The trip did go forward under Part 91, notwithstanding the

geographic limitations in Access Air's Part 135 certificate. It is folly to argue (as the -2Access Air 0NR/PO/WO Lg24186/20070207

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defendants do) that the existence of those same geographic restrictions would have led to the cancellation of the same trip.

2.

Second, the defendants argue that if this particular leg of the trip had been

conducted over land instead of over water, then "there's every reason to believe that the pilot could have gotten to one of the major airports lying in the central valley of the island." (Def. Br., Doc. 131, p. 5, fn. 4, citing Schiff Depo. 46:10-13.) According to the defendants: "Nobody could categorically say that the aircraft would not have been damaged if it had reached land, but the fact that it was impossible for the aircraft to do so made the ditching and total loss inevitable." (Def. Br., Doc. 131, p. 6.) The defendants' argument proves the plaintiffs' point. If no one can say with any degree of certainty that the airplane would have suffered less damage if it had been flown over land instead of water, then there is no proof of "but for" causation. There are no witnesses identified in the Pretrial Order who can competently testify that the airplane would have reached an airport if it had been flown over land, and there are no witnesses who will testify that the airplane probably would have sustained less damage if it had been flown over land instead of water. For instance, Mr. Schiff, the defendants' expert, did not say the airplane would have landed at an airport. He actually testified that he was unsure if the airplane could have reached an airport on Sakhalin Island: "But if one were able to hobble, let's say, to Sakhalin

Island, then there's every reason to believe that the pilot could have gotten to one of the major airports lying in the central valley of the island." (Schiff Depo., 46:9-13 [emphasis added].)

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Similarly, there are no documents or exhibits listed in the Pretrial Order that can be used to prove it is more likely than not that the airplane would have suffered less damage if it had been flown over land instead of water. Not one single person has ever made this claim during a deposition that will be used at trial. The defendants' experts have never made this claim in a Rule 26 Report or during deposition. The defendants want the jury to simply "assume" that the damage would have been less severe. But such assumptions are not the stuff upon which causation can be

established. "We have heretofore held that where the state of the record is sufficient to establish only a possible connection between an act or condition and a result, it is not sufficient in law to impose liability. We cannot affirm a judgment based upon mere possibilities as the law deals only in probability and reasonably established fact." (Widefield Homes, Inc. v. Griego, 160 Colo. 225, 228 [416 P.2d 365, 367] (Colo. 1966).)

3.

Third, the defendants argue that the engine problems that occurred during the trip (Def. Br.,

"did not break the chain of causation that began with the FAR violations."

Doc. 131, p. 7.) But the simple truth of the matter is that without the intervening engine problems, the alleged violations of the FARs would have resulted in no damage or injury at all. This point is not contested ­ and cannot be contested ­ by the defendants. At most, the alleged violations of the FARs were "merely a condition under which the proximate cause operated," and as a result, there is no causation. (Stout v. Denver Park & Amusement Co., supra, 87 Colo. at pp. 296-297 [roller coaster operator's failure to strap plaintiff into his seat was not a cause of injuries experienced when plaintiff was struck in the head during roller coaster ride].)

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CONCLUSION. Based on the foregoing, the plaintiffs respectfully request an in limine order

barring the defendants and their attorneys from offering any evidence or argument regarding alleged violations of 14 C.F.R. § 119.5(j) and 14 C.F.R. § 135.183(a).

Respectfully Submitted, Dated: February 9 , 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]

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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 February 9, 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]

[

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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]

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