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-K-2056

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 DAUBERT MOTION BY PILATUS DEFENDANTS RE EDWARDS TESTIMONY

I.

INTRODUCTION This motion is for an order excluding Plaintiff Expert Edwards' testimony or any

argument that the subject airplane or Pilot Operator Handbook (POH) did not comply with certain Federal Aviation Regulations (14 C.F.R.) 1 Pilatus does not dispute that Edwards is qualified to testify about piloting and accident reconstruction. Similarly, his is probably knowledgeable regarding operational and maintenance
1

Mr. Edwards expressed the opinion that the subject airplane, a PC-12 and its Pilot Operating Hand book (POH) failed to comply with FARs: 14 CFR §23.903(e)(3) and §23.1581. In their pre-trial report plaintiffs added that following FARs: 14 CFR § 23.1583(h); § 23.1583(m); § 23.1585(a)(4) and § 23.1585(j). In their opposition, plaintiffs discussed only the FARs originally discussed by Mr. Edwards, apparently abandoning the last four. Therefore, this reply will only deal with the first two.

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regulations. But he is not qualified to testify about design regulations which are inherently different than operational or maintenance regulations. The latter, which regulate conduct, are necessarily narrow and specific. Design regulations do not regulate conduct. They provide guidance to the FAA and aircraft designers and are interpreted on a case by case basis. Accordingly, since Edwards, by his own admission, has no aircraft certification experience and did not review any of the FAA guidance materials or the certification documents, lacks sufficient knowledge, experience or factual basis for expert testimony in this area. Moreover, since there is a dispute over the interpretations of the subject regulations, it is for the court, not the jury to interpret them. II. A. ARGUMENTS FAA Design Regulations Unlike Operational or Maintenance Regulations, Are Non-

Specific and Broad Requiring Certification Experience and the Aid Of Published FAA Guidance Materials For Interpretation. Mr. Edwards had Neither Certification Experience Nor Did He Base His Opinion on FAA Guidance Materials. The FAA promulgates essentially three categories of regulations, design (49 USC § 44701(a)(1)), maintenance (49 USC § 44701(a)(2)) and operational (rules of the road) (49 USC § 44701(a)(5)). The last two categories regulate conduct and are subject to enforcement and penalties for non-compliance. Design regulations do not regulate conduct. Instead, they are applied by the FAA to determine whether or not to approve an aircraft design. There is no dispute that Mr. Edwards is an experienced pilot and accident investigator. As an experienced pilot, he is no doubt knowledgeable regarding the application of operational FARs. And even though he is not a licensed airplane mechanic, as an accident investigator he is

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probably knowledgeable regarding the application of aircraft maintenance FARs. Indeed due process requires that the operational and maintenance FARs which regulated conduct, be capable of specific and narrow interpretation by those who are expected to comply with them. Pilots, operators and mechanics who fail to comply with operational and maintenance FARs may be subject to penalties including fines and loss of license. Design FARs are quite different. They do not regulate conduct. They are minimum standards set by the FAA and applied as a guide during the design approval process. Accordingly, design standards, unlike operational and maintenance standards are non-specific and broad so as to cover every imaginable aircraft design. Even as broadly as those FARs are written, there are aircraft designs for which the FAA finds that its own design standards are inadequate. For example if the FAA finds that its own design regulations are in adequate "because of a novel or unusual design feature", it may prescribe "special conditions" for a particular design 14 CFR §21.16. Not every FAR applies to a subject aircraft, only those which the FAA determines are applicable. 14 CFR §21.17. The FAA can exempt an aircraft design from specific design regulations if it finds that the aircraft design meets an "equivalent level of safety." 14 CFR §21.21. Since design FARs do not regulate conduct, there is no enforcement procedure and thus no body of case law or administrative decisions available to interpret them. Although an experienced aircraft designer may know FAA expectations, the FAA is the final decision maker as to whether or not a proposed design meets its minimum standards. The FAA also publishes guidance materials to assist the designer. Every new FAR is published with a preamble in the

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Federal Register which helps to interpret the FAA's intent. The FAA also publishes Advisory Circulars and its own FAA Orders. B. Mr. Edwards' Opinion That The PC-12 and its POH Do Not Comply With 14 CFR §

23.903.(c)(3) is Inadmissible Because It Lacks Basis in Fact. One of the FARs about which Mr. Edwards expressed an opinion was 14 CFR § 23.903(e)(3) which states, "It must be possible to restart an engine in flight. Any techniques and associated limitations must be established and included in the airplane flight manual or applicable operating placards." He said, in effect, that an aircraft is not in compliance if, for any reason, it is not possible to restart the engine in flight. He does not base this interpretation on aircraft certification experience or on any regulatory guidance from the FAA. In fact when the regulation was published, the Federal Register said, "[T]here are certain hazards associated with the starting or stopping of engines or the control of engine operation, particularly during flight. However, the current rules do not cover these operations. To prevent or minimize risk of either mechanical damage or fire, appropriate techniques and limitations should be observed and set forth in airplane flight manuals or placards." Federal Register: May 5, 1971 (Volume 36, Number 87), Page 8398. The relevant Advisory Circular, AC 23-8B - FLIGHT TEST GUIDE FOR CERTIFICATION OF PART 23 AIRPLANES, says the following about that regulation: "190. SECTION 23.903 ENGINES. c. Restart Envelope.

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(1) Explanation. The applicant should propose a practicable airstart envelope wherein satisfactory inflight engine restarts may be accomplished as required by the code. Airstarts should be accomplished satisfactorily at critical combinations of airspeed and altitude. ... The airstart envelope should be included in the limitations section of the AFM, and the procedures used to restart the engine(s) should be contained in the emergency or abnormal procedures section of the AFM.. ... The tests should include the effect on engine restarting performance of delay periods between engine shutdown and restarting as follows: (iii) Up to two minutes; and (iv) At least until the engine oil temperature is stabilized at its approximate cold soak value." Exhibit H. When asked what documents support his opinion that the aircraft and POH do not comply with 23.903(c)(3) Mr. Edwards identified only the POH and the regulation itself. Edwards p. 11. Exhibit I. When asked for the basis of his opinion he said: "A As it's explained there in that paragraph, the basis is my background as an investigator and the material I reviewed in this case including the regulation as well as Ortuso and Detmer's depositions, and the POH itself. Q You understand that the POH was approved by the FAA and the FAA determined that it does, in fact, comply with 14CFR 23.903, et cetera, correct? A Well, I don't know what representations that Pilatus made to the FAA regarding

conformance with that, so I can't agree with that statement.

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Q

In fact, you have no knowledge of what representations they're required to make

because you've never done a POH certification; is that correct? A I've never done a POH certification, but I do know other material that's been

produced here. These things don't line up, plus you look at the revisions that they made to correct that in 2004 suggests that even they, themselves, found that their POH was inadequate. Q A Q Where does it say that the POH is inadequate? Well, why would they change the POH with the reference to that service letter? You tell me. You said that they changed it because they found it was inadequate. I

want to know what the basis for that is. A Ortuso's and Detmer's depositions, they were critical of Smith for fumbling the POH for using the MOR lever, and the POH does not contain any warning in there that you must have a two-minute cool down or that the PCL must be in a certain position prior to using the MOR lever." Edwards p. 44. Exhibit I In fact, there is no evidence in the record of any change to the restart procedure or airstart envelope in the POH. Mr. Edwards was referring to statements, not criticisms, by Mr. Ortuso and Mr. Dietmer, that the grinding noises and sudden propeller stoppage were caused by the sudden engine shut down. Neither witness stated that Smith should have waited two minutes for a cool down before shutting down the engine. Moreover, there is no FAA requirement in 14 CFR § 23.903(c)(3) or anywhere in the FARs for an air shut down procedure. Having admitted that he did not review any guidance or compliance materials, Mr. Edwards' opinion that the airplane and POH did not comply with 14 CFR § 23.903(c)(3) lacks

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any foundation in knowledge or experience. The FAA wrote and promulgated the regulation, published guidance material as to its application, interpreted the application of the regulation as it applied to the PC-12, approved Pilatus' proposed restart envelope and test flight procedures, reviewed the test flight data to insure compliance, and reviewed and approved the POH restart procedures proposed by Pilatus. Having admitted he never reviewed the FAA guidance material or certification document, Mr. Edwards is not qualified to express an opinion as to whether or not either complied with 14 CFR § 23.903(c)(3). C. Mr. Edwards' Is Not Qualified to Testify That The PC-12 and its POH Do Not Comply

With 14 CFR § 23.1581. Mr. Edwards also said that the PC-12 POH does not comply with 14 CFR § 23.1581 because it does not reference all "information that is necessary for safe operation" of the PC-12 during and after an IFSD [In Flight Shut Down]. When asked what documents support that position he simply referred back to the POH and the regulation. Edwards p. 12, Exhibit I. He did not review the Federal Register, any Advisory Circular or any of the certification documents. Clearly, the phrase "information that is necessary for safe operation" is broad enough to encompass any opinion any expert might make. The words of the regulation are so broad as to be essentially meaningless. Accordingly this regulation must be interpreted by the FAA on a case by case basis. Because Mr. Edwards reviewed none of the certification documents and made no attempt to discover how the FAA interpreted the regulation as it applied to the PC-12, he is not qualified to testify as an expert on that subject.

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D.

Interpretation of 14 CFR § 23.903(e)(3) and § 23.1581 is Solely For the Court. Not only is Mr. Edwards not qualified by experience or knowledge to interpret FAR

design regulations, and not only do his opinions lack any basis in fact, but it is solely the province of the court to make such interpretations. Interpretation of 14 CFR § 23.903(e)(3) and § 23.1581 is for the court. Mr. Edwards says that 14 CFR § 23.903(e)(3) means that an airplane engine should restart in flight no matter what the circumstances. Pilatus and FAA guidance documents, however, say that compliance means FAA approval of the air restart envelope, air restart procedure, air restart testing procedure, air restart flight test documents and POH air restart envelope and procedures. It is for the court to decide which is the proper interpretation of 14 CFR §23.903(e)(3). If the latter, the jury may be so instructed. 2 Similarly, Mr. Edwards contends that 14 CFR §23.1581 should be interpreted so broadly that the lack of any procedure he deems necessary for the safe operation of the airplane renders the POH in non-compliance. This is an impossible test for compliance. Pilatus contends that because this regulation is so broad, it must be interpreted by the FAA on a case by case basis and therefore the FAA is the final arbiter of what procedures are necessary for safe operation and must be in the POH. Accordingly, as a matter of law, 23.1581 cannot be the basis for finding that the POH is not in compliance.

2

Pilatus contends that the PC-12 and its POH did comply with this regulation as a matter of law. See Pilatus Motion in Limine re Compliance with FARs.

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III.

CONCLUSION For the foregoing reasons, plaintiffs' expert Edwards may not testify that the subject

airplane or Pilot Operator Handbook (POH) did not comply with Federal Aviation Regulations (14 C.F.R.) RESPECTFULLY SUBMITTED this 5th 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 5th day of February 2007, I caused the forgoing REPLY RE DAUBERT MOTION BY PILATUS DEFENDANTS RE EDWARDS 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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