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

Case 1:01-cv-02056-JLK

Document 134

Filed 02/05/2007

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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 SMITH AND SCANLAN TESTIMONY

This motion was for an order excluding Pilot Smith's and Plaintiff Expert Scanlan's testimony or any argument that (a) had Smith not shut down the engine and aborted the engine restart, it would have become dislodged from the airplane or caught on fire and (b) for that reason, Pilot Smith acted properly in shutting down the engine and aborting the restart. 1 In their opposition plaintiffs' concede that none of their witnesses will testify that had Smith not shut down the engine and aborted the engine restart, the engine would have become
1

Pilatus made a separate motion in limine to exclude Smith's testimony on these same matters as irrelevant "state of mind" evidence. While plaintiffs' separately opposed the motion in limine, much of their opposition to this "Daubert" motion addresses admissibility based on relevance. Pilatus will address the relevance issue solely in its reply to its motion in limine.

REPLY RE DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN TESTIMONY Page 1 of 4

Case 1:01-cv-02056-JLK

Document 134

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dislodged from the airplane or caught on fire. (Pntf. Opp. P. 7) Instead, Smith will testify that he shut down the engine to prevent this "potentially catastrophic consequence." In other words, plaintiffs do not intend to offer evidence of this "potentially catastrophic consequence," ­ only Smith's alleged sincere belief. This concession renders Pilatus' "Daubert" motion moot with respect to Pilot Smith, 2 but not with respect to Expert Scanlan. Since there will be no evidence of the alleged "potentially catastrophic consequence" of Smith's failure to shut down the engine, Scanlan's expert opinion that he "demonstrated good decision making and appropriate risk aversion" will be based solely on Smith's sincere belief in the risk of that catastrophe.. Assuming that Smith's sincere belief is admissible, Scanlan's proffered testimony is essentially that Smith demonstrated good decision making and appropriate risk aversion in shutting down the engine when he sincerely believed the alternative was certain death. That opinion requires no scientific, technical, or other specialized knowledge. Since the choice between certain death and a longshot chance at survival is an obvious one, Smith's testimony will not aid the jury or trier of fact in any way on this point. Plaintiffs have not demonstrated that Scanlan is qualified to assess the risk Smith faced or to make a quantitative risk assessment. That is, he will not testify that the chance of surviving a ditching at sea is X percent while the chance of surviving the alleged catastrophic consequences are Y percent, therefore, Smith made the right choice. Lacking the means to make a proper a

risk assessment, Scanlan's opinion that Smith made the right decision is no better than that of the jury.

2

But not its motion in limine as to whether Smith's sincere belief is admissible.

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For the foregoing reasons, this court must exclude Pilot Smith's and Plaintiff Expert Scanlan's testimony or any argument that (a) had Smith not shut down the engine and aborted the engine restart, it would have become dislodged from the airplane or caught on fire and (b) for that reason, Pilot Smith acted properly in shutting down the engine and aborting the restart. More specifically with respect to Scanlan, the court must exclude his testimony that engine movement relative to the airframe as observed by Smith indicated that vibration forces were stressing the engine mountings and that this was of considerable concern to Smith and that a decision to shutdown the engine precluded the possibility of a catastrophic failure and demonstrated good decision making and appropriate risk aversion. 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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Case 1:01-cv-02056-JLK

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Filed 02/05/2007

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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 SMITH AND SCANLAN 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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