Free Brief in Opposition to 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' OPPOSITION TO "MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE" (Doc. 113)

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TABLE OF CONTENTS

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE AIRPLANE ENGINE HAS A LONG HISTORY OF UNRELIABILITY LEADING TO IN-FLIGHT SHUT DOWNS . . . . . . . . . . . . . . . . . LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE CHALLENGED EVIDENCE IS RELEVANT AND ADMISSIBLE BECAUSE IT TENDS TO DISPROVE THE DEFENDANTS' CLAIM THAT THE PILOT'S DECISION TO SHUT DOWN THE ENGINE WAS TOTALLY UNFORESEEABLE . . . . . . . . THE CHALLENGED EVIDENCE SATISFIES THE "RELAXED" STANDARDS FOR EVIDENCE OF OTHER INCIDENTS . . . . . . . . . . . . . . . . . . . .

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES Cases Bitler v. A.O. Smith Corp., 391 F.3d 1114 (10th Cir. (D.Colo.) 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . Black v. M&W Gear Co., 269 F.3d 1220 (10th Cir. (W.D.Okla.) 2001) . . . . . . . . . . . . . . . . . . . . . . . . Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434 (10th Cir. (D.Colo.) 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. (D.N.M.) 2000) . . . . . . . . . . . . . . . . . . . . . . U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 358 F.Supp.2d 1021 (D.Colo. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., ­­ F.Supp.2d ­­, 2006 WL 2844173 (D.Colo. 2006) . . . . . . . . . . . . . . . . . Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir. (D.Kan.) 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1.0

INTRODUCTION. During the trial, the plaintiffs plan to offer into evidence several documents

authored by the defendants (see Def. Mtn. Exhs. A-H). The plaintiffs also plan to play for the jury the videotaped deposition testimony of the defendants' own investigators and engineers. This 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 forced to shut down the engine during flight (socalled "in flight shut downs" or IFSDs.) All of the other IFSDs described in the disputed evidence involved the same airplane model, the same engine model, and the same failure mode. The disputed evidence is being offered by the plaintiffs for the purpose of proving that the pilot's decision to shut down the engine during flight was foreseeable to the defendants. The issue of foreseeability is relevant to the affirmative defenses of product misuse and intervening cause. "This court has stated that evidence of other accidents in a products liability suit is relevant to show notice, demonstrate the existence of a defect, or to refute the testimony of a defense witness." (Black v. M&W Gear Co., 269 F.3d 1220, 1227 (10th Cir. (W.D.Okla.) 2001).) 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. As such, it doesn't matter if the other IFSDs were attributable to the same blade failure that prompted the shut down of the engine in this case. Based on the foregoing, the plaintiffs respectfully submit that the defendants' motion in limine (Doc. 113) should be denied.

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BACKGROUND. An almost brand-new airplane was ditched in the ocean after the pilot reported

unusual noises and sounds coming from the airplane's only engine. The plaintiffs in this lawsuit seek to recover $3.1 million in stipulated damages for the loss of the airplane, which has never been recovered. (See, Pretrial Order [Doc. 98, ¶ III(A)(2)(b), pp. 5-6].) Additional facts are set forth in the Pretrial Order, and in this Court's previous orders. (U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 358 F.Supp.2d 1021 (D.Colo. 2005), and U.S. Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., ­ ­ F.Supp.2d ­­, 2006 WL 2844173 (D.Colo. 2006).)

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THE

AIRPLANE

ENGINE

HAS

A

LONG

HISTORY

OF

UNRELIABILITY LEADING TO IN-FLIGHT SHUT DOWNS. Because the PC12 is a single engine airplane, all inflight shut downs (known as IFSDs) are a major concern for the airplane manufacturer (Pilatus). (Plntfs.' Exh. "1" [Bretscher Depo. 11/26/02, p. 242, lines 11-16] ["We try to avoid any inflight shutdown. However, we know they will happen from time to time, but we do not set targets. We try to avoid any of them, all of them."]) Because an IFSD in a single-engine airplane like the PC12 can lead to potentially catastrophic consequences (as occurred in this case), Pilatus and Pratt & Whitney closely monitor the IFSD rate for PC12 aircraft:

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Q. By the way, what are the risks of an inflight shutdown on a PC-12 aircraft? A. As I said earlier, when the engine fails, you have a glider. So you either have to do a dead stick landing or a crash landing. And in order to minimize the impact of that, there is 61-knot stall speed or the equivalent safety of a higher stall speed. Q. Why don't you explain for us, please, just what a dead stick landing is. A. Dead stick landing is basically a landing of the aircraft with the engine shut down, the propeller fettered. (Plntfs.' Exh. "1" [Bretscher Depo. 11/26/02, pp. 44-45]) Q. Okay. And what's the purpose of keeping A. Because we care about safety and we don't

track of IFSDs, why does Pilatus do that? want any in-flight shutdowns, and want to make sure that any in-flight shutdown is addressed with corrective actions if required, plus, our authorities request that in-flight shutdown rate to be discussed at the regular meetings. (Plntfs.' Exh. "2" [Bretscher Depo. 5/20/05, pp. 66-67])

Long before the incident that ended with the ditching of this aircraft, Pilatus and Pratt & Whitney both knew that the PT6A-67B engine installed in the PC12 airplane had some very serious reliability and safety problems. For example:

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·

In June, 1998, Pilatus and Pratt & Whitney reported: "The PT6A-67B grinding noise and propeller blockage after shutdown is caused by the abrasive seal at the PT blades." (Plntfs.' Exh. "3" [Bretscher Depo. Exh. 101].) Pilot Smith reported hearing the same kind of "grinding" noises coming from his engine before it was shut down.

·

In December, 1998, Pilatus wrote to Pratt & Whitney's President and CEO complaining about a "dramatic escalation" in problems with the PT6A-67B engine, and objected that the PT6A-67B "quality problems have reached a status where ... they require your personal attention." (Plntfs.' Exh. "4" [Bretscher Depo. Exh. 105].)

Almost immediately after the ditching of the Access Air PC12 in the Sea of Okhotsk, Pilatus again complained to Pratt & Whitney about the number of IFSD's in PT6A-67B engines:

·

On July 27, 2001, Pilatus's President and CEO wrote to Pratt & Whitney's President and CEO, saying: "As you know, the success of the PC-12 program depends very much on a reliable powerplant. I thought we had this with the PT6A-67B engine. However, recent events have caused me to reconsider this. At the present time our records show PC-12 total fleet hours standing at 269,337 hours and we now have registered 6 in flight shutdowns with further incidents which nearly resulted in such." (Plntfs.' Exh. "5" [Bretscher Depo. Exh. 106].) "Collectively these issues present a scenario for the PC-12 and single engine reliability which is -5Access Air 0NR/PO/WO Lg24186/20070123

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approaching damaging proportions. The worldwide PC-12 market is aware of all these circumstances and will no longer accept the PC-12 as reliable and safe aircraft just because it is equipped with a PT6 engine." (Ibid.) With regard to the ditching of Access Air's PC-12, Pilatus wrote: "[T]o the rest of the world this is just another instance of a PC-12 with an engine in flight shutdown [IFSD]." (Ibid.)

·

In October, 2001, Pilatus reported that the IFSD rate for the PC-12 engine was more than seven times higher than expected. (Plntfs.' Exh. "6" [Bretscher Depo. Exh. 108].) Q. All right. Now, can you tell from Exhibit 108 what the actual inflight shutdown rate was for PC-12s? A. It says here, 21 per a million. Q. And that's roughly seven times the required rate, whatever that is? A. Yes. Q. Is that an acceptable rate to Pilatus? A. As I said before, any inflight shutdown is not acceptable. (Plntfs.' Exh. "1" [Bretscher Depo. 11/26/02, p. 248, lines 6-16])

·

In November, 2001, the "Senior Management" of Pilatus and Pratt & Whitney met and discussed the "main issues of concern," which included the "IFSD rates" for the PT6A-67B engine. (Plntfs.' Exh. "7" [Bretscher Depo. Exh. 109].)

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LEGAL STANDARDS. "The substantial similarity rule does not require identical products; nor does it

require us to compare the products in their entireties. The rule requires substantial similarity among the variables relevant to the plaintiff's theory of defect." (Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. (D.N.M.) 2000).)

In situations involving the admissibility of other accidents, relevance is determined by the 'substantial similarity' test. [Citation omitted.] Accidents bearing substantial similarity to the case before the court make the existence of a fact of consequence to the action before the court more or less probable, while dissimilar accidents are less likely to bear on a fact of consequence to the case before the court. The precise degree of similarity required to ensure the relevance of another accident depends on the theory of defect underlying the case. [Citation omitted.] Hence we require a high degree of similarity when plaintiffs offer other accident evidence to prove causation in their case, but accept a lesser degree of similarity when evidence of other accidents is offered to show the defendant had notice of potential defects in its product. [Citations omitted.] We must consider, then, with considerable precision, not only the facts of the other incidents but the theories under which plaintiffs urge their admission. (Smith v. Ingersoll-Rand Co., supra, 214 F.3d at pp. 1246-1247.) Whether accidents are substantially similar depends largely upon the theory of the case: 'Differences in the nature of the defect alleged may affect a determination whether the accidents are substantially similar···· How substantial the similarity must be is in part a function of the proponent's theory of proof.' [Citations omitted.] Evidence proffered to illustrate the existence of a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. The requirement is relaxed, however, when the evidence of -7Access Air 0NR/PO/WO Lg24186/20070123

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other accidents is submitted to prove notice or awareness of the potential defect. [Citation omitted.] Any differences in the accidents not affecting a finding of substantial similarity go to the weight of the evidence. (Wheeler v. John Deere Co., 862 F.2d 1404, 1407-1408 (10th Cir. (D.Kan.) 1988).) 5.0 THE CHALLENGED EVIDENCE IS RELEVANT AND ADMISSIBLE BECAUSE IT TENDS TO DISPROVE THE DEFENDANTS' CLAIM THAT THE PILOT'S DECISION TO SHUT DOWN THE ENGINE WAS TOTALLY UNFORESEEABLE. In support of their affirmative defense of "product misuse," the defendants plan to tell the jury that the pilot's decision to shut down the engine during flight was totally unforeseeable. (Pretrial Order, pp. 15, 17 and 19, item d; Amend. Jury Inst. No. 3.7, Doc. 95, p. 58.) Similarly, the defendants plan to argue that the shut down of the engine was an intervening unforeseeable cause of plaintiffs' damages. (Pretrial Order, p. 19, item e; Amend. Jury Inst. No. 3.17, Doc. 95, p. 86.) The proffered evidence is directly relevant to these defenses which are premised on the issue of whether it was (or was not) foreseeable that the pilot would shut down the engine during flight. The documentary evidence (attached to defendants' motion as Exhibits A-H) proves that Pratt & Whitney and the Pilatus defendants all knew that the model PT6A67B engine which was installed in the model PC-12 airplane was inherently unreliable, and had an unacceptably high rate of in-flight shut downs. The defendants' collective knowledge tends to disprove the defendants' claim that they could not have foreseen the possibility that the pilot would shut down the engine during flight. "In light of the plaintiffs' purposes of showing notice and defect, we do not require a showing of exact similarity ..." (Bitler v. A.O. Smith Corp., 391 F.3d 1114, -8Access Air 0NR/PO/WO Lg24186/20070123

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1126 (10th Cir. (D.Colo.) 2004).) "We have routinely held that federal law permits introduction of substantially similar accidents to show notice, the potential existence of a defect, or to refute defense witness testimony." (Id.)

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THE CHALLENGED EVIDENCE SATISFIES THE "RELAXED" STANDARDS FOR EVIDENCE OF OTHER INCIDENTS. Because the challenged evidence is not being offered to prove that a defect in the

engine was a cause of the ditching, the rules of "substantial similarity" are relaxed.1 (Smith v. Ingersoll-Rand Co., supra, 214 F.3d at pp. 1246-1247 ["Hence we require a high degree of similarity when plaintiffs offer other accident evidence to prove causation in their case, but accept a lesser degree of similarity when evidence of other accidents is offered to show the defendant had notice of potential defects in its product."]) · The evidence relates to the same model airplane (PC-12) that is involved in this case.

1

That is, 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. "Substantial similarity depends upon the underlying theory of the case." (Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1440 (10th Cir. (D.Colo.) 1992).) As a result, the fact that some of the other incidents might have been caused by events unrelated to blade failures is immaterial. (Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. (D.N.M.) 2000) ["The substantial similarity rule does not require identical products; nor does it require us to compare the products in their entireties. The rule requires substantial similarity among the variables relevant to the plaintiff's theory of defect." To the extent the defendants eventually abandon their defenses of misuse and intervening cause, the plaintiffs reserve the right to demonstrate the disputed evidence is also admissible to prove causation and the existence of defects in the products. For now, such proof is not necessary for the reasons discussed in this brief.

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·

The evidence relates to the same model engine (PT6A-67B) that is involved in this case.

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The evidence relates to the same failure mode (in-flight shut down) that is involved in this case.

These similarities are more than enough to satisfy the relaxed standard for admissibility of other accidents.

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CONCLUSION. Based on the foregoing, the plaintiffs respectfully request that the defendants'

motion in limine (Doc. 113) be denied.

Respectfully Submitted, Dated: January 25 , 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 January 25, 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]

[

]

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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