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.

DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN 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 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 is asked to 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

DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN TESTIMONY

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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. This motion is made on the grounds that neither Pilot Smith nor Expert Scanlan are qualified as experts on such matters by knowledge, skill, experience, training, or education; such testimony is not based upon sufficient facts or data; and/or such testimony is not the product of reliable principles and methods; and/or the witness has not applied reliable principles and methods reliably to the facts of the case. The motion is also made on the grounds that Scanlan's testimony that Smith's decision to shutdown the engine demonstrated good decision making and appropriate risk aversion does not require scientific, technical, or other specialized knowledge to assist the trier of fact to understand the evidence or to determine a fact in issue. This motion shall be supported by the attached Memorandum, and documents. 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 29th day of December 2006. 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 DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN 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. Plaintiffs argue that these acts were proper because had the pilot not shut down the engine and aborted the restart the engine could have become dislodged from the aircraft causing loss of control or there could have been an engine fire. But these two hypothetical worst case

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scenarios that are intended to provoke the juries emotions, are unsupported by any competent admissible evidence. 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 noises is admissible. But although Rupert testified that the engine would probably have quit a short time later, he refused to speculate that a PT blade failure would probably result in engine dislodgement or fire. Only Smith and Scanlan engaged in this speculation. The purpose of this motion is to exclude testimony or argument that (a) had the pilot not shut down the engine, it would have dislodged from the airplane or caught on fire, and (b) that for this reason, the pilot acted properly. For the purpose of this motion, Expert Rupert's testimony that the engine would probably have quit a short time later is not disputed. In other words, if Rupert is believed, the engine shut down may not have made a difference in the outcome. Indeed, if Rupert's testimony is believed in its entirety, nothing the pilot did or didn't do affected the outcome. But Smith and Scanlan are not qualified and cannot testify that failure to shut down the engine would have been worse. On the other hand, if Smith or Scanlan is allowed to testify that the engine would have become dislodged or caught on fire had Smith not shut it down, than Scanlan may not testify that Smith acted properly because analysis of this decision does not require specialized knowledge. Smith, Scanlan and Rupert Opinions Smith expressed his opinion, or judgment as he called it, in his deposition and in a transcribed interview by plaintiffs' expert Scanlan. In his deposition, when asked why he shut

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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 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.

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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. Based on Smith's opinion, Expert Scanlan summed up as follows in his Rule 26 report: "Coincident with his trouble shooting activities related to the engine, the pilot observed that the engine was moving relative to the airframe indicating that the vibration forces were stressing the engine mountings. This was of considerable concern because should the engine dislodge from the airframe the aircraft could not be controlled and a deadly crash would be certain. The lack of control occurs because removing the engine mass moves the center of gravity of the aircraft so far rearward that the elevator cannot keep the nose down. A decision to shutdown the engine precluded the possibility of a catastrophic failure and demonstrated good decision making and appropriate risk aversion." Scanlan Report Exhibit C. By contrast, this is what Plaintiffs' Expert Rupert said about the engine symptoms. "In this case from the description provided by the pilot I would suspect that a portion of a [PT] blade separated. Without doing extensive damage to the rest of the engine, probably

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some, but to the surrounding components that that's where the vibration and abnormal noises developed. The separation of the blade would also cause a massive imbalance of the wheel which would cause rub against the shroud and possibly starting to damage the supporting number three and number four bearing. The PT disc would start to slow down and then the engine would sense this and say -- and instruct the fuel control to introduce more fuel. With continued damage it may continue to demand more and more fuel and you would start to get ITT rising, possibly leading to compressor stalls which would create the bangs and also cause the ITT to raise -- rise and get fluctuating engine parameters, fluctuating ITT and torque. ... If allowed to continue you could end up with a total shut down of the engine by itself." Rupert Vol. 2, pg 176, Exhibit D. But Expert Rupert refused to speculate about engine dislodgment or fire stating that these consequences were possible but not probable.1 Pilatus does not dispute that Michael Smith is an experienced pilot and that Scanlan is a human factors expert within the scope of his training and experience. But neither is qualified to

1

"Q. Well, do you believe it's more likely than not there would have been an in-flight fire had he not shut down the engine? A. More likely than not, I really can't answer that question. It's possible. Q. Do you know of any similar incident that would support your opinion that an in-flight fire is a possible result of the vibration described by Pilot Smith? A. Not that I can recall." Rupert Vol. 2, pg 228, Exhibit D. About dislodgment of the engine, Rupert said: "Q. What do you mean by catastrophic engine failure in paragraph seven? A. A failure in which say a turbine wheel or blades separate and exit the engine, possibly damaging other components in the engine. Q. Given the facts of this case, do you think that catastrophic failure of the power turbine section of the engine could have resulted had he not shut down the airplane engine? A. It's possible, yes. Q. In your opinion is it more likely than not that had Pilot Smith not shut down the engine that catastrophic engine failure would have resulted? A. I believe the engine would have failed completely within a short period of time. ...failed, come to a stop, would not have been able to continue to operate much longer than it did. Whether that would have involved a catastrophic failure such as penetration of the case, I don't know." Rupert Vol. 2, pg 229, Exhibit D.

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testify about the stress on engine mountings caused by vibration; nor is either qualified to testify about the potential for an engine fire. II Arguments 1. Smith and Scanlan are not qualified by knowledge, skill, experience, training, or education to testify as experts on the issue of whether or not the sounds and sights described by Smith could have resulted in dislodgement of the engine or engine fire had Smith not shut down the engine and aborted the restart attempt. Scanlan never investigated any accidents which involving the power section of a PT6 engine, he has no engineering licenses, no aeronautical engineering training, is not a metallurgist and is not an aircraft or turbine engine design expert. In short, he has no knowledge, skill, experience, training, or education to testify about engine dislodgment or fire due to vibration. 2 While Smith is an experienced pilot, there is no evidence in the record to date that he has any

" Q. How many other accidents or incidents have you investigated which involved some issue with the power section of the PT6 engine? A. I believe the answer is none. Q. You keep indicating that you're an engineer? A. Yes. Q. Your engineering degree is as an electrical engineer; is that correct? A. Yes. Q. Do you hold any professional licenses as an engineer? A. No, I don't. Q. You have no training as an aeronautical engineer, do you? A. That's correct, I have no training as an aeronautical engineer. Q. You have no training as a metallurgist, do you? A. Other than the basic courses in properties and materials that I did during my undergraduate work I've had no training beyond that. Q. You don't consider yourself an expert in the area of metallurgy. Do you? A. No." Scanlon Vol. 1 pg 111.Exhibit E " Q. You don't hold yourself out to be an expert in design or manufacturing of aircraft air frames, do you? A. I do not." Scanlon Vol. 1 pg 30.Exhibit E Q. You don't hold yourself out to be an expert in the design of aircraft turbine engines, correct? A. I think you asked that before, and I said I'm not an expert in the design of turbine engines. Scanlan Vol 1 pg. Exhibit E

2

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knowledge, skill, experience, training, or education that would qualify him to testify about engine dislodgment or fire due to vibration. 3 2. Scanlan's testimony that Smith's decision to shutdown the engine demonstrated good decision making and appropriate risk aversion require scientific, technical, or other specialized knowledge to assist the trier of fact to understand the evidence or to determine a fact in issue. "[T]he general rule is ... that expert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge `if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation . . . .'" Salem v United States Lines Co. (1962) 370 US 31, 35; 8 L Ed 2d 313, 82 S Ct 1119, reh den (1962) 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578. Expert's Scanlan's opinion stropped of its fancy words boils down to common sense. Pilot Smith had a choice between certain death ­ the engine dislodging or catching on fire ­ or survival. He properly chose survival. Clearly any untrained layman presented with only these two options for Pilot Smith would come to the same conclusion. No specialized knowledge is required.

3

While plaintiffs' disclosures identified Smith as an expert, he is or was an employee of plaintiff Access Air and not a retained or specially employed expert. Accordingly, no evidence of his qualifications or his proposed expert testimony has been disclosed.

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III Conclusion 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 29nd day of December 2006. 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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DEPOSITION OF MICHAEL STEVEN SMITH TAKEN ON 5-8-02 Page 239

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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

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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

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EXHIBIT C

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USAU v. PILATUS

DAVID S. RUPERT

6/23/2005
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inflicted on the engine.

In this case from the

description provided by the pilot I would suspect that a portion of a blade separated. Without doing extensive

damage to the rest of the engine, probably some, but to the surrounding components that that's where the vibration and abnormal noises developed. The separation of the blade would also cause a massive imbalance of the wheel which would cause rub against the shroud and possibly starting to damage the supporting number three and number four bearing. The PT disc would start to slow down and then the engine would sense this and say -- and instruct the fuel control to introduce more fuel. With continued damage it may continue to demand more and more fuel and you would start to get ITT rising, possibly leading to compressor stalls which would create the bangs and also cause the ITT to raise -- rise and get fluctuating engine parameters, fluctuating ITT and torque. Q. A. Are you finished with your answer? If allowed to continue you could end up

with a total shut down of the engine by itself. Q. Did you see any reports in the stack of

materials in front of you with a PT blade failure in a 67 series engine causing an ITT of a level 44 or higher?

PARRISH REPORTING (800) 585-0385
EXHIBIT D

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USAU v. PILATUS

DAVID S. RUPERT

6/23/2005
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MR. WILLIAMS: THE WITNESS:

Object to the form. If it exactly followed the movement

of the lever it might make a difference in my opinion. Q. BY MR. SCHULTZ: In paragraph seven you

said, "The pilot opted to shut down the engine to prevent an in-flight fire." Do you have an opinion as to whether had the pilot not shut down the engine whether or not there would have been an in-flight fire? A. With the vibrations he describes occurring

it's possible you could sever a fuel line and start an in-flight fire, yes. Q. Excuse me, yes, I have an opinion.

Well, do you believe it's more likely than

not there would have been an in-flight fire had he not shut down the engine? A. that question. Q. A. More likely than not, I really can't answer It's possible. How possible? Depends on the severity of the vibration

and how long it would go on. Q. Do you have any examples of other incidents

involving a PT60 -- PT6-67 series engine where an in-flight fire resulted from vibration? A. Q. I can't specifically remember any, no. Do you know of any similar incident that

PARRISH REPORTING (800) 585-0385
EXHIBIT D

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USAU v. PILATUS

DAVID S. RUPERT

6/23/2005
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would support your opinion that an in-flight fire is a possible result of the vibration described by Pilot Smith? A. Q. Not that I can recall. What do you mean by catastrophic engine

failure in paragraph seven? A. A failure in which say a turbine wheel or

blades separate and exit the engine, possibly damaging other components in the engine. Q. What would happen in your opinion to the

engine, other than the fact that it might cease producing thrust or shut down, if there were a catastrophic engine failure in this engine in this aircraft? A. Once again it's possible that the pieces

exiting the engine could penetrate a few lines or an oil line and start an in-flight fire. Q. Which pieces of the engine are you talking

about that might leave the engine? A. Rotating components, any of the CT

compressor or power turbine rotating components. Q. Given the facts of this case as you

described them, do you believe it's possible that there could be a catastrophic failure of any of the CT components? A. No. However, I'm talking about the pilot

PARRISH REPORTING (800) 585-0385
EXHIBIT D

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USAU v. PILATUS

DAVID S. RUPERT

6/23/2005
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in this case and he didn't know what was going on. Q. Given the facts of this case, do you think

that catastrophic failure of the power turbine section of the engine could have resulted had he not shut down the airplane engine? A. Q. that happened? A. I have been involved in PT6 series engines It's possible, yes. Are you aware of any similar incident where

where blades did separate from the power turbine and penetrate the casing. Q. What happened, was there a catastrophic

engine failure in that case? A. Q. A. Q. A. Q. way? A. Q. No. In your opinion is it more likely than not That was the catastrophic engine failure. What happened to the airplane in that case? The aircraft crashed. Was that a single engine or twin engine? Twin engine. Was that case similar to this case in any

that had Pilot Smith not shut down the engine that catastrophic engine failure would have resulted? A. I believe the engine would have failed

PARRISH REPORTING (800) 585-0385
EXHIBIT D

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

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USAU v. PILATUS

LAWRENCE A. SCANLAN

6/9/2005
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MR. BYRNE: with that. Q. A. Q.

That's fair.

I'll try to comply

Do you recall the question, Dr. Scanlan? No, I don't. How many other accidents or incidents have you

investigated which involved some issue with the power section of the PT6 engine? A. Q. A. Q. I believe the answer is none. You keep indicating that you're an engineer? Yes. Your engineering degree is as an electrical

engineer; is that correct? A. Q. engineer? A. Q. No, I don't. You have no training as an aeronautical Yes. Do you hold any professional licenses as an

engineer, do you? A. That's correct, I have no training as an

aeronautical engineer. Q. you? A. Other than the basic courses in properties and You have no training as a metallurgist, do

materials that I did during my undergraduate work I've had no training beyond that.

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USAU v. PILATUS

LAWRENCE A. SCANLAN

6/9/2005
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Q.

You don't consider yourself an expert in the Do you?

area of metallurgy. A. No. MR. KODANI: question.

Object to the form of the

(An off-the-record discussion was held.) (A recess was held from 2:20 to 2:47.) MR. BYRNE: Q. matter. Let's go back on the record.

I'm not sure where we were, but it doesn't I just want to go through briefly some of the

rest of Exhibit 202 just I have clearly in mind what it is. On page 978 this looks to be your notes of your reviewing one volume of the Smith deposition, correct? A. Q. Correct. Okay. So 12-03-02 is that the date of the

depo or the date of your review? A. That's not the date of my review. That's the

date of the depo. document.

I don't recall the date of this

MR. KODANI: MR. BYRNE: Q. entries.

Did you mean page 3978 or 978? Well, 3978.

Well, we're not going through each of these I just wanted to know, like the very first

PARRISH REPORTING (800) 585-0385
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and we had another company we were working with who actually physically modified the aircraft. So I didn't

do it myself, but I was involved and I was responsible, and it needed to be right and that rested on my shoulders. So to say I had no involvement would be incorrect. To say that I physically did it myself

would also be incorrect. Q. You don't hold yourself out to be an expert in

design or manufacturing of aircraft air frames, do you? A. Q. I do not. You don't hold yourself out to be an expert in

the design or manufacturing of aircraft turbine engines, do you? A. Not in design, but I am an expert in human

factors, and human factors deals with the interaction of man and machine, and to the extent that the machine includes the turbine and its characteristics are important to the understanding and analysis of what the human did. So to say I have no involvement or I have

no expertise I don't think is correct. Q. Let's break it down a little more then. MR. KODANI: back, please. (The record was read as follows: Can I have that last answer read

PARRISH REPORTING (800) 585-0385
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LAWRENCE A. SCANLAN

6/9/2005
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Q

You don't hold yourself out to be

an expert in the design or manufacturing of aircraft turbine engines, do you?) MR. KODANI: BY MR. BYRNE: Q. Let's break the question down a little bit. You don't hold yourself out to be an expert in the design of aircraft turbine engines, correct? A. I think you asked that before, and I said I'm Thank you. Sorry.

not an expert in the design of turbine engines. Q. All right. Let's look at your list of

publications, if we may -A. Q. Okay. -- which starts on page 7. Is this a complete

list of your publications? A. Q. I believe so. Do any of these publications listed in your

resume, pages 7, 8 and 9 of Exhibit 200, include any publications relating to aircraft turbine engines? A. Q. They do not. Do any of these publications relate to the

Pilatus PC-12? A. Q. No, they don't. Would you flip then, please, to page 2 and 3 Right at the very bottom of page 2 you

of your resume.

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of December 2005, I caused the forgoing 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]

DAUBERT MOTION BY PILATUS DEFENDANTS RE SMITH AND SCANLAN TESTIMONY Page 9 of 9 MEMORANDUM IN SUPPORT