Free Brief in Opposition 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-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 SMITH STATE OF MIND TESTIMONY" (Doc. 112)

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TABLE OF CONTENTS

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EVIDENCE OF THE PILOT'S BELIEFS IS RELEVANT AND ADMISSIBLE BECAUSE IT TENDS TO PROVE THAT MIKE SMITH'S CONDUCT WAS OBJECTIVELY REASONABLE UNDER THE "SUDDEN EMERGENCY" DOCTRINE . . . . . EVIDENCE OF THE PILOT'S STATE OF MIND IS RELEVANT AND ADMISSIBLE BECAUSE IT ESTABLISHES THE CIRCUMSTANCES SURROUNDING MIKE SMITH'S ALLEGEDLY NEGLIGENT CONDUCT . . . . . . . . . . . . . . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES Cases

Carlson v. Ferris, 58 P.3d 1055 (Colo.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Colwell v. Mentzer Investments, Inc., 973 P.2d 631 (Colo.App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469] (1993) . . . . . . . . . . . . . Davis v. Cline, 177 Colo. 204 [493 P.2d 362] (Colo. 1972) . . . . . . . . . . . . . . . . . . . . . . . Mitchell v. Allstate Ins. Co., 36 Colo.App. 71 [534 P.2d 1235] (Colo.App. 1975) . . . . . . . . . . . . . . . . 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) . . . . . . . . . . . . . . . . Young v. Clark, 814 P.2d 364 (Colo. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules FED.R.EVID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION. Evidence offered to establish the pilot's beliefs as to what he thought could

happen if the defective engine was not shut down, and what he thought could happen if the restart was not aborted, is relevant and admissible because: (1) it tends to prove that the pilot was faced with a "sudden emergency," which (if believed by the jury) would counter the defendants' claims of pilot error, and (2) the evidence provides the factual context that is necessary for the jury to decide whether the pilot "failed to do something that a reasonably careful person would do, or did something that a reasonably careful person would not do, under the same or similar circumstances." (Doc. 95, Amended Jury Instr. No. 3.20, p. 94.) Based on the foregoing, the plaintiffs respectfully submit that the defendants' motion in limine (Doc. 112) 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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LEGAL STANDARDS. The defendants' motion challenges the disputed evidence on grounds of relevance. Evidence is relevant if it has "any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (FED.R.EVID. 401.) "The Rule's basic standard of relevance thus is a liberal one." (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 [113 S.Ct. 2786, 2794, 125 L.Ed.2d 469] (1993).)

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EVIDENCE OF THE PILOT'S BELIEFS IS RELEVANT AND ADMISSIBLE BECAUSE IT TENDS TO PROVE THAT MIKE SMITH'S CONDUCT WAS OBJECTIVELY REASONABLE UNDER THE "SUDDEN EMERGENCY" DOCTRINE. The defendants contend that Mike Smith acted in a negligent manner when he

shut down the engine and aborted the restart. (Pretrial Order, Doc. 98, p. 18, ¶ 2(a).) The defendants accuse Mr. Smith of failing to exercise "good pilot judgment." (Pretrial Order, Doc. 98, p. 16.) In response to the defendants' claims, the plaintiffs rely on Colorado's "sudden emergency" doctrine:

A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances. (Amend. Jury Instr. No. 3.22, Doc. 95, p. 98)

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"The sudden emergency doctrine was developed by the courts to recognize that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions." (Young v. Clark, 814 P.2d 364, 365 (Colo. 1991).)

'[T]he basis of the special rule is merely that the actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation.' (Young v. Clark, supra, 814 P.2d at p. 365.)

"The sudden emergency instruction is an evidentiary guideline under which the jury applies the prudent person rule in evaluating the evidence of negligence." (Carlson v. Ferris, 58 P.3d 1055, 1059 (Colo.App. 2002).) "[T]he question whether the course of conduct chosen by the party under the circumstances is reasonable and prudent is a question of fact to be determined by the trier of fact, as is the question whether there is an emergency." (Colwell v. Mentzer Investments, Inc., 973 P.2d 631, 639 (Colo.App. 1998) [emphasis added].) The proffered evidence is relevant and admissible because it: (1) establishes the circumstances necessary to support the application of the "sudden emergency" doctrine, and (2) it tends to prove that the pilot was "left no time for adequate thought, or [was] reasonably so disturbed or excited that [he could not] weigh alternative courses of action,

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and [was required to] make a speedy decision, based very largely upon impulse or guess." (Young v. Clark, supra, 814 P.2d at p. 365.)

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EVIDENCE OF THE PILOT'S STATE OF MIND IS RELEVANT AND ADMISSIBLE BECAUSE IT ESTABLISHES THE CIRCUMSTANCES SURROUNDING CONDUCT. MIKE SMITH'S ALLEGEDLY NEGLIGENT

In addition to being relevant to the "sudden emergency" doctrine (discussed above), the same disputed evidence is also directly relevant to the issue of whether Mike Smith's conduct was reasonable. "Negligence consists of a failure to observe reasonable standards of care which the circumstances of the particular situation require, and the liability for one's conduct must be determined in the light of what was apparent at the time, not what is obvious in hindsight." (Mitchell v. Allstate Ins. Co., 36 Colo.App. 71, 75 [534 P.2d 1235, 1237] (Colo.App. 1975).) The disputed evidence is relevant and admissible, because it tends to establish the circumstances that existed when Mike Smith allegedly engaged in negligent conduct. Mr. Smith's decisions to shut down the engine and abort the restart do not have to be correct; they only have to be reasonable. "'His choice 'may be mistaken and yet prudent.' [Citation omitted.]" (Davis v. Cline, 177 Colo. 204, 208 [493 P.2d 362, 364] (Colo. 1972).)

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

motion in limine (Doc. 112) 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]

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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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