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 SMITH STATE OF MIND TESTIMONY

Defendants Pilatus Business Aircraft, Ltd, Pilatus Flugzeugwerke Aktiengesellschaft and Pilatus Aircraft, Ltd (collectively "Pilatus") hereby move the court for an order excluding Pilot Smith's state of mind testimony testimony or any argument that he shut down the engine and aborted the engine restart because he feared the engine would have become dislodged from the airplane or catch on fire. This motion is made on the grounds that Pilot Smith's state of mind is irrelevant to either their strict product liability case or defendants comparative fault case based on ordinary negligence.

DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN TESTIMONY

Case 1:01-cv-02056-JLK

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CERTIFICATE OF COMPLIANCE Defendants' attorneys have conferred with Plaintiffs' attorneys in accordance with D.C.COLO.LCivR 7.1A and were advised that Plaintiffs will oppose the motion.

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

DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN TESTIMONY

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.

PILATUS DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION IN LIMINE BY PILATUS DEFENDANTS RE SMITH STATE OF MIND TESTIMONY

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. Smith says he shut down the engine and aborted the restart because he feared the engine would become dislodged from the aircraft, causing loss of control, or there could have been an engine fire. But his state of mind intended to provoke the juries emotions is not relevant to either

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plaintiffs' strict product liability case or defendants comparative fault case based on ordinary negligence. Smith Statements In his deposition, when asked why he shut down the engine, Smith said: "I don't want to have two problems. I don't want to have an uncontained explosion of the engine, possible fire trying to keep the aircraft in control during descent." Smith Vol 1, pg 239 Exhibit A. When asked why he aborted the restart Smith said: "In my judgment the -- because the pro- -- the propeller would not turn, I felt the danger of either a catastrophic fire and/or loss of component of the aircraft if I did get it started. There was something jammed in the engine, and I could have possibly lost control of the aircraft." Smith Vol 2 pg 363 Exhibit A In his interview by Scanlan he said: "Smith: I just knew that, that ... all ..., that I had to, to uh do something to keep the aircraft under control. I was concerned that if I didn't, didn't shutdown that I could, I could possibly lose control of the aircraft. And. and my concern was maintaining control of the aircraft. Scanlan: And. can you elaborate on, on maintaining control? Because you had said you were, you, you were ... ah ... worried about maybe an engine explosion or something like that. ...ah.. . Can you explain why or how that would cause you to lose control or, or what your concerns were about losing control. Smith: Well, well if the, if the front of the engine falls off, the CG shift is such a great amount that I, I lose elevator uh control authority and the aircraft can ... all .... I, I, I basically cannot control the ah, the aircraft. At that point I figure I'm going into the water

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one way or the other and I would much rather enter the water in control than out of control, because my chance of survival are greatly enhanced if I am in control of the aircraft. Scanlan: And you're at about 26,000 feet when this all happened. Smith: Yes Scanlan: Okay. So, so you were worried more, more than just about the engine explosion, you were worried that the engine, if it exploded or actually was going to come apart, not just like blow a hole in the side of it, but that the whole thing was going to come off its mounts. Smith: It could. It depending on how violent it gets, it, it, you know, who knows, I, and I, and, and I elected, based on my experience. to go ahead and secure the engine." Smith Interview Transcript Exhibit B. II Arguments Pilot Smith's State Of Mind Is Irrelevant To Either Plaintiffs' Strict Product Liability Case Or Defendants' Comparative Fault Case Based On Ordinary Negligence. It can be stated without authority that Pilot Smith's state of mind when he shut down the engine and aborted the restart is irrelevant to Plaintiffs' strict product liability case. But neither is state of mind relevant to Defendants' comparative fault case based on ordinary negligence. The elements of comparative fault in this case are: "A professional pilot who holds himself out as knowledgeable, skilled and licensed to fly a Pilatus PC-12/45 airplane around the world including extended over water flights is negligent when he does an act that reasonably careful professional pilots possessing such

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knowledge, skill and license would not do, or fails to do an act that reasonably careful professional pilots possessing such knowledge, skill and license would do. To determine whether such a professional pilot's conduct is negligent, you must compare that conduct with what a professional pilot who has that same special knowledge, skill and license, would or would not have done under the same or similar circumstances." Colorado Jury Instruction 15:26 Thus, the test of negligent conduct in an ordinary negligence (as opposed to gross negligence or recklessness) is objective, not subjective. Accordingly, Pilot Smith's state of mind is irrelevant. III Conclusion For the foregoing reasons, this court must exclude Pilot Smith's testimony that he shut down the engine and aborted the restart because he feared the engine would become dislodged from the aircraft causing loss of control or there could have been an engine fire. RESPECTFULLY SUBMITTED 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 SMITH STATE OF MIND TESTIMONY Page 4 of 9 MEMORANDUM IN SUPPORT

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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 SMITH STATE OF MIND 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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DEPOSITION OF MICHAEL STEVEN SMITH TAKEN ON 5-8-02 Page 239

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

A. Q.

I do not. "Hope to hear from you soon." Then you

indicated earlier -- did you hear back from Mr. Yamagata but we don't have that e-mail -A. Q. A. Correct. -- here with us today; correct? Correct. MR. BYRNE: I'm done for a while. I think

Bob has one question or two. MR. SCHULTZ: I've got one question I've been

wanting to ask since the beginning.

FURTHER EXAMINATION BY MR. SCHULTZ: Q. engine. A. I don't want to have two problems. I don't I would like to know why you shut down the

want to have an uncontained explosion of the engine, possible fire trying to keep the aircraft in control during descent. Q. What indications did you have that there might

be an uncontained explosion? A. With the noise and vibration that I had and

the temperature of 1,144 far exceeding the limitations of the power plant, I exercised what I consider good

BURNHAM, HABEL & ASSOCIATES, INC

EXHIBIT A

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DEPOSITION OF MICHAEL STEVEN SMITH (VOLUME II) TAKEN 12-3-02

Page 363

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the start at that point? A. In my opinion or judgment as the pilot in

command I felt that it would have been a danger to continue the start, and for the safety of the passengers I did not continue on with the start, and in my judgment as pilot in command -Q. danger? MR. WILLIAMS: Continuing the restart? Q. A. (BY MR. SCHULTZ) Continuing the restart. How what could be a danger? Could you explain how that could have been a

In my judgment the -- because the pro- -- the

propeller would not turn, I felt the danger of either a catastrophic fire and/or loss of component of the aircraft if I did get it started. There was something jammed in the engine, and I could have possibly lost control of the aircraft. Q. During that relight were you experiencing any

vibration or any other noise you described in the original initiating event? A. Q. No. Was there anything abnormal about that relight

other than the fact that the propeller didn't turn? A. Q. No. Did you have any reason to believe that the Ng

BURNHAM, HABEL & ASSOCIATES, INC

EXHIBIT A

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Yeah. I pulled it back. I don't know if I went over back into the, over the detent and back into the off position, but I definitely pulled it, pulled it back to the stop. So it was not, there was no overriding being done. Right Okay. Okay and, and ...ah ... this is just before you shut it down. So tell me, tell me again, or tell me at this point in time ...ah ... what you were thinicing and what were your feelings.

...ah ...Well, at, at this, at, at this point I. I, I felt that the, that. Would you rep, please repeat that what you just said.
I said.. .ah.. . you're just prior to shutting down the engine.

A~id asked you to tell me what you were thinking about and what you x i cre feeling. I
I was thinlting that.. .ah.. . the aircraft was.. .ah.. .in grave danger of.. .ah.. .possibly.. .ah.. . uncontained.. .ah.. ... .ah.. ... .ah.. . turbine explosion or a, a fire or something, something was coming apart in the engine and.. .ah.. ... .ah.. . that, that we were in, in grave danger.

And ...ah ... emotionally. Did you have an emotional reaction? No, 1, I, I mean I, 1: I've, I've done a lot of simulator, I've, I've done a lot of, you lc~low, I've had actual failures. I wasn't scared, I just knew that, that ...a11..., that I had to, to uh do something to keep the aircraft under control. 1 was concerned that if I didn't, didn't shutdown that 1 could, 1 could possibly lose control of the aircraft. And. and my concern was inaintai~iing control of the aircraft. And. can you elaborate on, on ~naintainiug control? Because you had said you were. you, you werc ...ah ... won-~cdabout mayhe an engine explosion or something l k e that. ... ah.. . Can you explain why or how that would cause you to lose control or, or what your concenis were about losing control. Well: well if the, if the front of the engine falls off, the CG shift is such a great amount that I, I lose elevator uh control authority and the aircraft can ...ah .... I, I, I basically cannot control the ai, the aircraft. At that point I figure I'm going into the water one way or the other and I would much rather enter the water in control than out of control, because my chances of survival are greatly enhanced if I am i n control of the aircraft. And you're at ahout 26,000 feet when thls all happened.

EXHIBIT B

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Yes Okay. So, so you were wonied more, more than just about the cngine explosion, you were woivied that the engine, if it exploded or actually was going to come apart, not just like blow a hole in the side of it, but that the whole thing was going to come off its mounts. It could. It depending on how violent it gets, it, it, you know, who knows, I, and I , and, and 1 elected, based on my experience. to go ahead and sccure the engine. Okay. Okay and we're at the stage where you secure the engine and can you, mhat does that involve?

...ah.. .Basically. ..ah.. .shutting. ..ah.. . down the aircraft. ... ah.. . Moving the fuel control lever to idle cutoff. Uh, checking to see that the.. .ah.. . prop does go into feather ...ah ...and ...ah ...to check and nialte sure that you. that there is no fire ...ah ... that you're not seeing any indications of fire in the aircraft and then ...ah. .....ah.. ., and then ...ah ...it's a point from there to establish ...ah ... to, to ...ah ......all ..., to call, call a niayday, give a, give a, give a situation report and then follow, follow a, a uh check ah list ...ah ...... ... to make sure that, the, the, we're losing cabin pressurization now.. .ah...\~ith engine power to keep pressurization so I am informing the passengers no to get their oxygen masks on and ...ah ..., you know. There's a lot of things going through my mind at that point. ... ah. ..I'm trying to tlii~ik, now in the heck do you land this thing in. How do you put this thing in the water and, and, and, and survive? ... ah. .. The SIMCOM checklist does not have a ditching procedure on it, it's just a little laminated one-sided thing, and originally I did not think that the Pilatus had a ditching procedure. But it, there is one, but it's buried in the flight manual about, you know, it's a big thick manual. I'm not going to spend that time doing that. And quite frankly, if I had followed their checklist, we would have all died if I had used their checklist.
The one that covered ditching? Because they talk about using full flaps on, on ditching and that is a, gonna kill ya. Because what happens, you add the flaps, you got these big split Fowler flaps. T points t the aircraft nose down, it gives it a nose down attitude. When you hit the water, you, the water can grab those, those split flaps, point the nose .further down, and you're gonna cartwheel. You're gonna cartwheel. I.. .ah. .. elected to keep the, the aircraft as, I wanted it hit in and I, I was thinlting, and I said 1 want to enter this water as, as clean as I can so I'm gonna land with the gear and flaps up and, ...ah ... you know, it, it worked out. I L worlced out well. I, I ... ah.. .went peipendicular to the wave line and, ...ah. .... .ah. .. and or, or, yeah, I went, ... ah.. . I went down the line perpendicular to the wind, excuse me, the wind

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EXHIBIT B