Free Motion in Limine - 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.

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

Defendants Pilatus Business Aircraft, Ltd, Pilatus Flugzeugwerke Aktiengesellschaft and Pilatus Aircraft, Ltd (collectively "Pilatus") hereby move the court for an order excluding evidence and arguments regarding other PC-12 in flight shut down's (IFSD) and the IFSD rate. This motion shall be supported by the attached Memorandum, and documents.

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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CERTIFICATE OF COMPLIANCE Defendants' attorneys advised Plaintiffs' attorneys in accordance with D.C.COLO.LCivR 7.1A and Plaintiffs did not respond. DATED this 5th day of January 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

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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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.

PILATUS DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

I. Introduction On July 8, 2001, while flying a Pilatus PC-12 aircraft from Japan to Russia over the Sea of Okhotsk, Pilot Smith deliberately shut down the airplane's single engine after hearing noises and seeing the internal temperature reach an excessively high level. Before the engine was shut down, it was developing power. While descending, Pilot Smith prematurely aborted a restart attempt. This is a product liability case for which plaintiffs' expert, David Rupert stated that the engine anomalies reported by Mr. Smith were caused by a power turbine (PT) blade failure. Over Pilatus' objection, this court ruled that Rupert's opinion regarding this cause of the engine

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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noises is admissible. The purpose of this motion is to exclude testimony or argument regarding other PC12 in flight shut down's (IFSD) and the IFSD rate. In the pretrial order, citing Pilatus ­ PWC correspondence from 1998 and 2001, plaintiffs added the following claim never previously made in this litigation: "The model PT6A-67B engine installed in this single-engine PC-12 airplane had an established in-flight shut down (IFSD) rate that was extraordinarily high. With regard to the engine's high IFSD rate, the following information was never provided to the pilot of the airplane. If this information had been disclosed, then the pilot would not have flown this particular mission." The 1998 correspondence plaintiffs' cited and apparently intend to use as evidence are: "On September 15, 1998, the airplane manufacturer told the engine manufacturer that they needed to jointly adopt a "Damage Control" plan to avoid the loss of sales caused by the high IFSD rate [Plaintiffs' Exhibit 74, attached hereto as Exhibit A]. The engine manufacturer agreed with this "damage control" proposal on September 22, 1998 [Plaintiffs' Exhibit 76, attached hereto as Exhibit B]; "On September 18, 1998, the airplane manufacturer discussed the high rate of failures of the PT6A-67B engine, and decided that: "For marketing purposes, we should question the pilot, the maintenance and anything which is not engine or airframe related. if engine or installation are in question, the PC-12 is dead!" [Plaintiffs' Exhibit 74, attached hereto as Exhibit C]" "In November, 1998, the airplane manufacturer told the engine manufacturer that it was `very disturbed by the amount of engine problems we are experiencing on the PC-12.'" [Plaintiffs' Exhibit __, attached hereto as Exhibit D]

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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"On December 14, 1998, the airplane manufacturer informed the engine manufacturer about its "gravest concerns regarding reduced quality of Pratt & Whitney Canada products. Your quality index has never been so low as it is today." The airplane manufacturer also reported that the unreliability of the engines was so pervasive that it was threatening :the existence of" the airplane manufacturer as a company, and "current experience ... no longer supports" the claim that the engine is a reliable product." [Plaintiffs' Exhibit __, attached hereto as Exhibit D] The 2001 correspondence plaintiffs' cited and apparently intend to use as evidence are: "On July 27, 2001, the airplane manufacturer again discussed the unreliability of the engine with the engine manufacturer, and stated: `Collectively these issues present a scenario for the PC-12 and single engine reliability which is approaching damaging proportions. The worldwide PC-12 market is aware of all these circumstances and will no longer accept the PC-12 as a reliable and safe aircraft just because it is equipped with a PT6 engine.'" [Plaintiffs' Exhibit 79, attached hereto as Exhibit F] "According to a letter dated August 13, 2001 from the engine manufacturer's own President and Chief Executive Officer, the IFSD rate for all model PT6A engines is only 1 per 250,000 flight hours. According to the airplane manufacturer, the IFSD rate for the model PT6A-67B engine installed in this PC-12 airplane is 21 per 1,000,000 flight hours - an IFSD rate that is more than 5 times higher than the IFSD rate for all similar model PT6A engines." [Plaintiffs' Exhibit 80, attached hereto as Exhibit G] On its face, the 1998 correspondence clearly concerned one incident, the "Kelner Airline accident", not a "high IFSD rate" as plaintiffs allege. See Exhibit A. The Kelner accident was

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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caused by oil starvation in the reduction gear box 1 which plaintiffs' expert Rupert has ruled out as a probable cause. 2 The 2001 correspondence did concern what Pilatus considered to be a high IFSD rate but none of the IFSDs were in any way similar to the subject incident. Plaintiffs' Exhibit 81 [attached hereto as Exhibit H] lists all the IFSDs that make up the "21 per 1,000,000 flight hours" IFSD rate. Exhibit H identifies six IFSDs, S/Ns 139, 164, 179, 222, 356 and 222(again). The total fleet hours at the time of the report is listed as 273,469.7. Accordingly, six IFSDs per 273,469 hours results in a rate of about 21 IFSDs per million hours. In fact, none of the IFSDs that make of this statistic were similar to the subject incident (except the incident itself) as follows: S/N 139 S/N 164 S/N 179 S/N 222 Missing bleed valve seat. Fuel tube between nozzle 1 & 14 clamp missing. In flight oil pressure warning. Chip ­ oil ­ temp ­ 1st stage plan gear bushing (in fact this was a potential IFSD,

not an actual one.) S/N 356 The subject incident. Engine flamed out during taxi to t/o when select ground to flight idle.

S/N 222(again)

Evidence and arguments offered to prove the PC-12 is unreliable and has a high inflight shut down rate, would, if true, and if related to the subject product liability claim have great impact on a jury. But the evidence and arguments offered by plaintiffs must be excluded because

1

"Q. All right. What was the cause of the propeller coming to a sudden stop in the Kelner incident, if it did? A. There was oil starvation to the reduction gear box. As a result, the bushing of the first stage start to overheat and failed as ­ and destructed itself. As a result of that, the reduction gear box decoupled from the power turbines so that power turbines went in overspeed and all the blades were shed and the entire power was lost to the reduction gear box. So the propeller was not driven anymore." Bretscher Vol. 1 pg 258. Exhibit I 2 "Q. Okay. And you've ruled out reduction gear box as an issue in this case, correct? A. I don't feel it's a probable cause." Rupert Vol. 2, pg 172. Exhibit J. MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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they are unrelated to their product liability claim, without probative value and are highly prejudicial. II Arguments

The Proffered Evidence Regarding Ifsds And The IFSD Rate And Reliability Evidence Based On The Ifsds Is Inadmissible Because The Incidents Cited Are Unrelated To The Subject Accident. "In product liability actions, the occurrence of similar accidents or failures involving the same product has great impact on a jury, as it tends to make the existence of the defect more probable than it would be without the evidence. In such actions, courts routinely permit the introduction of substantially similar acts to demonstrate notice, the existence of a defect, or to refute testimony given by defense witnesses. Before introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case." Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir. 1988). Substantial similarity depends upon the underlying theory of the case. "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." Id.. Four Corners Helicopters, Inc et.al. v. Turbomeca, S.A. et. al. 979 F.2d 1434, 1440; 1992 U.S. App. LEXIS 30124; CCH Prod. Liab. Rep. P13, 373. Of the six IFSD incidents that plaintiffs' allege support the IFSD rate and reliability evidence and arguments, one is the subject incident and two others are not IFSDs. One is a potential one IFSD and the other is a flame out while taxiing. The three remaining incidents missing bleed valve seat, fuel tube between nozzle 1 & 14 clamp missing and in flight oil

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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pressure warning - were not even remotely similar to the subject incident. Accordingly, all the evidence of inflight shut downs and the reliability and IFSD evidence derived from these incidents must be excluded. III. Conclusion For the foregoing reasons, this court must exclude evidence and arguments regarding other PC-12 in flight shut down's (IFSD) and the IFSD rate. DATED this 5th day of January 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

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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CERTIFICATE OF SERVICE I hereby certify that on this 5th day of January 2007, I caused the forgoing MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE 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]

MOTION IN LIMINE BY PILATUS DEFENDANTS RE IFSD EVIDENCE

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Exhibit A

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Exhibit A

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Exhibit B

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Exhibit B

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Exhibit C

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CONFIDENTIAL DO NOT COPY Subject to Protective Order USAU v. Pilatus Bus. Acft., USDC Denver, CO Civil Action N0. 01-K-2056 Exhibit D PA002274

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CONFIDENTIAL DO NOT COPY Subject to Protective Order USAU v. Pilatus Bus. Acft., USDC Denver, CO Civil Action N0. 01-K-2056 Exhibit D PA002275

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CONFIDENTIAL DO NOT COPY Subject to Protective Order USAU v. Pilatus Bus. Acft., USDC Denver, CO Civil Action N0. 01-K-2056 Exhibit D PA002276

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Exhibit F

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Exhibit F

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Exhibit G

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Exhibit G

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Exhibit G

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CONFIDENTIAL DO NOT COPY Subject to Protective Order USAU v. Pilatus Bus. Acft., USDC Denver, CO Civil Action N0. 01-K-2056 PA002922

Exhibit H

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Exhibit I

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USAU v. PILATUS

DAVID S. RUPERT

6/23/2005
Page 172

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

don't believe there is any fuel control issue in the Access Air accidents? A. Q. Correct, that's correct. The next entry on your notes under the 67B

column, Exhibit 218 says, "CT blade rub on --" what's the next word? A. Q. Segments. And that's the aircraft with the N number

1611 -- well, maybe if you read it it would be easier because I can't read it. A. ITT." Q. A. How high was the ITT? I don't know. That's all the service It says, "CT blade rub on segments, high

difficulty report stated. Q. The next one says number one bearing. What

does the one after that say? A. gear box." Q. Okay. And you've ruled out reduction gear "Prop sudden stop on shut down. Reduction

box as an issue in this case, correct? A. Q. I don't feel it's a probable cause. The next entry says, "Torque flux Correct?

vibration, first stage sun gear." A. Correct.

PARRISH REPORTING (800) 585-0385
Exhibit J

28086146-115b-4305-92ba-2db694b32fd0