Free Motion in Limine - District Court of Colorado - Colorado


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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 EDWARDS TESTIMONY

Defendants Pilatus Business Aircraft, Ltd, Pilatus Flugzeugwerke Aktiengesellschaft and Pilatus Aircraft, Ltd (collectively "Pilatus") hereby move the court for an order excluding Plaintiff Expert Edwards' testimony or any argument that the subject airplane or Pilot Operator Handbook (POH) did not comply with Federal Aviation Regulations (14 C.F.R.) This motion is made on the grounds that Expert Edwards is not qualified to testify 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

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of the case. The motion is also made on the grounds that Edwards' testimony invades the province of the court and jury and 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 EDWARDS TESTIMONY

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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 EDWARDS 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

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loss of control or there could have been an engine fire. 1 Plaintiffs argue in the alternative that even if these acts were not proper or done improperly, the pilot was not adequately warned or instructed by defendants on the proper action or procedure. Moreover, they argue that neither the warnings and instructions provided nor the subject airplane complied with certain Federal Aviation Regulations Plaintiffs' expert, David Rupert stated that the engine anomalies reported by Mr. Smith were caused by a power turbine (PT) blade failure and that the engine would have quit a short time later regardless of the pilot's actions. Over Pilatus' objection, this court ruled that Rupert's opinion regarding this cause of the engine noises is admissible. For the purpose of this motion, Expert Rupert's testimony that the engine would probably have quit a short time later is not disputed. 2 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. For the purpose of this motion, Pilatus does not dispute Edwards' qualification to testify regarding causation. But he is not qualified to testify about compliance with Federal Aviation Administration (FAA) design standards or design approval procedures. Nor is such expert testimony admissible since it invades the province of the court to instruct the jury on the law and the province of the jury to make findings of fact.

See accompanying motion to exclude Smith and Scanlan testimony on this subject. "BY MR. SCHULTZ: Do you have any way of determining how long [the engine] could have continued to operate, producing thrust under those conditions? A. I can't quantify it, but looking at the fluctuations and power, torque, temperature and the vibrations that were going on as described by Mr. Smith, it seems unlikely it would have produced power for much longer." Rupert Vol. 2, pg 263 Exhibit A
2

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FAR Compliance Issue The parties raised the issue under Colorado law as to whether or not the subject aircraft and engine "complied with, at the time of sale by the manufacturer, any applicable code, standard, or regulation adopted or promulgated by the United States or by this state, or by any agency of the United States or of this state." CRS § 13-21-403(1)(b). Pilatus contends that at the time of sale, as a matter of law, the PC-12 complied with all applicable Federal Aviation Regulations (14 CFR). Plaintiffs contend that it did not comply with certain FARs and designated expert Jeffrey Edwards to support their position Edwards Proposed Testimony In his Rule 26(a)(2) report Edwards said: "1. The PC12 POH [Pilot Operating Handbook] does not comply with 14 CFR §23.903(e)(3) because it does not reference all "techniques and associated limitations" that must be followed so that the engine can be restarted after an inflight shutdown.." 2. The PC-12 POH does not comply with 14 CFR 23.1581 because it does not reference all "information that is necessary for safe operation" of the PC-12 during and after an IFSD [In Flight Shut Down]." Exhibit C. In their Pre Trial Report, plaintiffs added: "The engine did not comply with 14 C.F.R. § 23.903(e)(3) (`It must be possible to restart an engine in flight') "The airplane did not comply with 14 C.F.R. § 23.1583(h) (`The Airplane Flight Manual must contain ... A list of the kinds of operation to which the airplane is limited or from which it is prohibited');

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"The airplane did not comply with 14 C.F.R. § 23.1583(m) (`The Airplane Flight Manual must contain ... Any limitations on the use of airplane systems and equipment') "The airplane failed to comply with 14 C.F.R. § 23.1585(a)(4) [`For all airplanes, information concerning ... emergency procedures and other pertinent information necessary for safe operation and the achievement of the scheduled performance must be furnished, including-- ... Procedures for restarting any turbine engine in flight']; and "The airplane and engine both failed to comply with 14 C.F.R. § 23.1585(j) (`Procedures for the safe operation of the airplane's systems and equipment, both in normal use and in the event of malfunction, must be furnished')." Exhibit D FAA Design Standards and Design Approval The Federal Aviation Administration (FAA) prescribes standards for the design, manufacture and testing for all aircraft and aircraft engines sold in the United States. It also prescribes procedures for determining whether a particular aircraft or aircraft engine meets the prescribed standards. 49 USC § 40104 et. seq. Federal Aviation Regulations (14 CFR, "FARs") are promulgated by the Federal Aviation Administration (FAA) under authority granted by the Federal Aviation Act (49 USC § 40104 et. seq.) The FAA is required to promote safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design, material, construction, quality of work, and performance of aircraft and aircraft engines. 49 USC § 44701 The FAA will issue a Type Certificate for an aircraft or aircraft engine only when the it finds that the aircraft or aircraft engine is properly designed, performs properly, and meets the regulations and minimum standards prescribed under section 49 USC § 44701(a). 49 USC §

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44704(a). The minimum design and test standards for small aircraft such as the PC-12 are contained in 14 C.F.R. 23. Through Bilateral Airworthiness Agreements (BAAs) the FAA may issue Type Certificates under 14 CFR § 21.29 and Airworthiness Certificates under 14 CFR 21.183(c) for aircraft designed and manufactured in a foreign country. A BAA between the United States and Switzerland was entered into on October 13, 1961. (Exhibit E) It states in Article 2: "The same validity shall be conferred by the competent authorities of the United States [the FAA] on certificates of airworthiness for export issued by the competent authorities of Switzerland [FOCA] for aircraft subsequently to be registered in the United States as if they had been issued under the regulations in force on the subject in the United States, provided, that such aircraft have been constructed in Switzerland and the competent authority of Switzerland has certified that the type design of the aircraft complies with the airworthiness requirements of Switzerland together with any special conditions prescribed in accordance with Article 6, and has certified that the particular aircraft conform to such type design." The Swiss equivalent of the FAA is called the Federal Office for Civil Aviation (FOCA) which, by law (quoted above), is delegated by the FAA to perform the examination, testing, and inspection required by 49 USC § 44702 for issuance of a Type Certificate. By this procedure, the FAA approved the design of the PC-12 and issued a Type Certificate. (Exhibit F) Included in the approved design for any aircraft is an Airplane Flight Manual (AFM) often referred to as a Pilot Operating Handbook (POH). 14 CFR § 1581 et. seq. Certain FARs generally prescribe the AFM's content. The specific wording of the content must be approved by

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the FAA as part of the Type Certification process. On behalf of the FAA, the FOCA approved the wording of the PC-12's AFM. (Exhibit G). II. Arguments An Expert May Not Express an Opinion on a Question of Law Nor Testify as to What the Applicable Law Is Nor How the Law is Applied. In Specht v. Jensen, the Tenth Circuit expressed its concerns about allowing expert testimony regarding questions of law. 853 F.3d 805. The major concern is that the expert witness may confuse the jury or supplant the judge as the interpreter of law within the courtroom. "A witness cannot be allowed to give an opinion on a question of law...There being [by basic assumption] only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge...To allow anyone other than the judge to state the law would violate the basic concept. Id. at 807. Quoting Stoebuck, Opinions on Ultimate Facts: Status Trends, and a Note of Caution, 41 Den.L.Cet.J. 226, 237 (1964). This is embodied in what the court considers a key element of witness testimony: "[A]n expert's testimony is proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function. However, when the purpose of testimony is to direct the jury's understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed. In no instance can a witness be permitted to define the law of the case." Specht, at 809-10. (Italics added). The concern is that the witness will invade the province of the jury, by telling them how to rule, or to invade the province of the judge, by confusing the jury as to the proper interpretation of the law to be used.

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In F.A.A. v. Landy testimony by an FAA District Office Supervisor interpreting FARs was properly excluded. 705 F.2d 624 (1983). In that case the court wrote: "[Q]uestions soliciting the former FAA employee's understanding of the meaning and applicability of Part 91 and Part 121 FARs would invade the province of the court to determine the applicable law and to instruct the jury as to that law..." Id. at 631. Again from the Second Circuit, Marx & Co., inc v. Diner's Club, Inc., 550 F.2d 505 (1977). [Securities Expert Friedman] gave his opinion as to the legal standards which he believed to be derived from the contract and which should have governed Diners' conduct....This testimony did not concern practices in the securities business, on which Friedman was qualified as an expert, but were rather legal opinions as to the meaning of the contract terms at issue. It was testimony concerning matters outside his area of expertise...Moreover, it would not have been possible to render this testimony admissible by qualifying Friedman as an "expert in contract law." It is not for witnesses to instruct the jury as to applicable principles of law, but for the judge." Id. at 509-10. witnesses are not allowed to tell the jury what the relevant law is, or how to apply it to the issue. Expert Edwards Is Not Qualified By Knowledge, Skill, Experience, Training, Or Education To Testify On Airplane Design Certification Standards. Expert Edwards is not certified by the FAA to perform aircraft maintenance or inspection. 3 He was never involved with aircraft design and does not holding himself out to

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" Q I didn't see anywhere on here that you had any sort of FAA maintenance certification; is that correct? A That's correct. Q Or FAA inspection certification either? A Correct." Edwards pg 40. Exhibit B Page 7 of 9

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be an aircraft design or certification expert. 4 His area of expertise is accident investigation and causation. 5 Accordingly, while Edwards may testify that the accident was caused in part by inadequate warnings, he is not qualified to testify that the aircraft failed to comply with Federal Aviation Regulations. III. Conclusion For the foregoing reasons, plaintiffs' expert Edwards may not testify that the subject airplane or Pilot Operator Handbook (POH) did not comply with Federal Aviation Regulations (14 C.F.R.) RESPECTFULLY SUBMITTED 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

"Q And none of your time, though, at McDonnell Douglas involved designing aircraft; is that correct? A No. It involved fixing broken ones. Q. And you weren't involved in certification of aircraft at McDonnell Douglas? A No. I wouldn't say I was. Q So you're not holding yourself out to be an aircraft design expert, are you? A No. Q And you're not holding yourself out to be an aircraft certification expert, are you? A No". Edwards pg 43. 5 "Q What is your area of expertise that you've been asked to testify on in connection to this case? A Causation. Q Anything else? A Investigation, using my experience and knowledge and training as an accident investigator to take a look at the material we have in front of us to arrive at a conclusion." Edwards pg 44. DAUBERT MOTION BY PILATUS DEFENDANTS RE EDWARDS TESTIMONY MEMORANDUM IN SUPPORT Page 8 of 9

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USAU v. PILATUS

DAVID S. RUPERT

6/23/2005
Page 263

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

Q.

Is it possible that if he had not shut down

the engine but reduced power on the engine that it would have continued to operate and provide thrust for some period of time? MR. WILLIAMS: THE WITNESS: Q. Object to the form. That's possible. Do you have any way of

BY MR. SCHULTZ:

determining how long you could have continued to operate, producing thrust under those conditions? A. I can't quantify it, but looking at the

fluctuations and power, torque, temperature and the vibrations that were going on as described by Mr. Smith, it seems unlikely it would have produced power for much longer. Q. And also had he not shut down the engine,

you said it was possible, but not likely that the engine would separate from the airframe? A. I don't know if I said that exactly. It's

possible it could have separated from the airframe. Q. A. A very small possibility? I don't know the likelihood. Mr. Smith

described the engine dancing around in relation to the cowls and moving significantly in relation to the cowls which he stated was not normal for this installation. Such movement would put stresses on the engine mounts,

PARRISH REPORTING (800) 585-0385
EXHIBIT A

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

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W. JEFFREY EDWARDS - AUGUST 31, 2005
Page 39
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Q A Q A Q A Q A

Where are you reading from? It's on page three. Under what heading? Aviation Education. All right. Which one? Aviation Quality It's in the middle. Anything else? Navy Corrosion Control Course for I I guess

Assurance Administration Course.

aircraft, McDonnell Douglas/Air France course. took a number of McDonnell Douglas courses. those were just aircraft generic. Q A Were any of these courses about I don't recall. turboprop engines?

The jet engine mishap

course covered jet engines, which turboprops, I believe, were included in that group. Q your Lanyard? A Q A Q Right. That's not an FAA certification, other That's correct. I didn't see anywhere on here that you And in this paragraph above that, it Is that on says "certified FAA aircraft repairman."

than for just that one particular aircraft, right?

AVERY WOODS REPORTING SERVICE, INC. 303-825-6119
EXHIBIT B

134fbd80-25cc-11da-b2a4-0001293c0348

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W. JEFFREY EDWARDS - AUGUST 31, 2005
Page 40
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had any sort of FAA maintenance certification; is that correct? A Q A Q pilot time. A Q multi-engine? A Yeah. I don't pay that much attention A lot of to it anymore, but I'd be loathed to guess. That's correct. Or FAA inspection certification either? Correct. So going back to your 4,000 hours of Could you give me a break down of what I don't know if I can. Can you break it down by single- and

aircraft that includes?

veneers time, a fair amount of Lancers, Cessnas, Pipers, Beech, Beech Press, experimental odds and ends out there. Q A Q A Q That's all single engine piston? A lot of it is, yes. So have you ever had any experience I worked with McDonnell Douglas. Can

with aircraft design? you be more specific? Why don't we just start by having you just briefly narrate the history of your employment at McDonnell Douglas.

AVERY WOODS REPORTING SERVICE, INC. 303-825-6119
EXHIBIT B

134fbd80-25cc-11da-b2a4-0001293c0348

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EXHIBIT C

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·

According to the defendants, this single-engine airplane is unsafe to fly over the water; and

·

According to the defendants, the otherwise harmless ingestion of ice or debris will cause symptoms that mimic the symptoms a pilot would expect to observe during a catastrophic failure of the engine's internal component parts.

d.

Defects - Presumptions: The engine and the airplane are presumed to be

defective, because those products did not comply with at least seven different applicable U.S. regulations, and that lack of compliance was a cause of the loss of the airplane. (C.R.S. 13-21-403(2); Colorado Jury Instructions, 4th - Civil, 14:5.) Specifically:

i.

The engine did not comply with 14 C.F.R. § 23.903(e)(3) ("It must be possible to restart an engine in flight");

ii.

The airplane did not comply with 14 C.F.R. § 23.903(e)(3) ("Any techniques and associated limitations [for an engine restart] must be established and included in the Airplane Flight Manual ...");

iii.

The airplane did not comply with 14 C.F.R. § 23.1581(a) ("An Airplane Flight Manual ... must contain ... Other information that is necessary for safe operation because of design, operating, or handling characteristics ...");

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EXHIBIT D

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iv.

The airplane did not comply with 14 C.F.R. § 23.1583(h) ("The Airplane Flight Manual must contain ... A list of the kinds of operation to which the airplane is limited or from which it is prohibited");

v.

The airplane did not comply with 14 C.F.R. § 23.1583(m) ("The Airplane Flight Manual must contain ... Any limitations on the use of airplane systems and equipment");

vi.

The airplane failed to comply with 14 C.F.R. § 23.1585(a)(4) ["For all airplanes, information concerning ... emergency procedures and other pertinent information necessary for safe operation and the achievement of the scheduled performance must be furnished, including-- ... Procedures for restarting any turbine engine in flight"]; and

vii.

The airplane and engine both failed to comply with 14 C.F.R. § 23.1585(j) ("Procedures for the safe operation of the airplane's systems and equipment, both in normal use and in the event of malfunction, must be furnished").

e.

No Comparative Fault: The pilot was not negligent (C.R.S. § 13-21-406.) The

experienced pilot properly relied on his professional background and experience during the engine shut down, the attempted restart, and the successful water ditching. Without the reasonable actions of the pilot, it is likely that the ditching would have resulted in the tragic loss of life in addition to the loss of the airplane. The pilot, who was rightfully

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EXHIBIT D

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SWITZERLAND
The American Ambassador to the President of the Swiss Confederation, Chief of the Federal Political Department
THE FOREIGN SERVICE OF THE UNITED STATES OF AMERICA,

BERN, October 13, 1961. EXCELLENCY: I have the honour to refer to your note dated Friday, October 13, 1961 reading as follows: "I have the honour to refer to the discussions which have recently taken place between representatives of the Government of Switzerland and the Government of the United States of America, reaching an understanding concerning the reciprocal acceptance of certificates of airworthiness for imported aircraft. The agreement as made reads as follows: Article 1 a. The present agreement applies to civil aircraft constructed in the United States, its territories and possessions and exported to Switzerland; and to civil aircraft constructed in Switzerland and exported to the United States, its territories and possessions. b. As used herein, the term aircraft shall include civil aircraft of all categories including those used for public transport and those used for private purposes; aircraft engines and propellers; and spare parts for aircraft, aircraft engines and propellers which have been exported in accordance with this agreement. Article 2 The same validity shall be conferred by the competent authorities of the United States on certificates of airworthiness for export issued by the competent authorities of Switzerland for aircraft subsequently to be registered in the United States as if they had been issued under the regulations in force on the subject in the United States, provided, that such aircraft have been constructed in Switzerland and the competent authority of Switzerland has certified that the type design of the aircraft complies with the airworthiness requirements of Switzerland together with any special conditions prescribed in accordance with Article 6, and has certified that the particular aircraft conform to such type design.

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EXHIBIT E

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The same validity shall be conferred by the competent authorities of Switzerland on certificates of airworthiness for export issued by the competent authorities of the United States for aircraft subsequently to be registered in Switzerland as if they had been issued under the regulations in force on the subject in Switzerland, provided, that such aircraft have been constructed in the United States, its territories or possessions and the competent authority of the United States has certified that the type design of the aircraft complies with the airworthiness requirements of the United States together with any special conditions prescribed in accordance with Article 6, and have certified that the particular aircraft conform to such type design. Article 4 a. The competent authorities of the United States shall arrange for the effective communication to the competent authorities of Switzerland of particulars of compulsory modifications prescribed in the United States, for the purpose of enabling authorities of Switzerland to require these modifications to be made to aircraft of the types affected, whose certificates have been validated by them. b. In the case of aircraft for which the United States has issued certificates of airworthiness for export, subsequently validated by Switzerland, the competent authorities of the United States shall, when requested, afford the competent authorities of Switzerland assistance in determining that major design changes or major repairs made to such aircraft comply with the applicable airworthiness requirements of the United States. Article 5 a. The competent authorities of Switzerland shall arrange for the effective communication to the competent authorities of the United States of particulars of compulsory modifications prescribed in Switzerland for the purpose of enabling the authorities of the United States to require these modifications to be made to aircraft of the types affected, whose certificates have been validated by them. b. In the case of aircraft for which Switzerland has issued certificates of airworthiness, subsequently validated by the United States, the competent authorities of Switzerland shall, when requested, afford the competent authorities of the United States assistance in determining that major design changes or major repairs made to such aircraft comply with the applicable airworthiness requirements of Switzerland. Article 6 a. The competent authorities of each country shall have the right to make the validation of certificates of airworthiness for export dependent upon the fulfillment of any special conditions which are for the time being required by them for the issuance of certificates of airworthiness in their own country. Information with regard to these special conditions in respect to either country will from time to time be communicated to the competent authorities of the other country.

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b. The competent authorities of each country shall keep the competent authorities of the other country fully and currently informed of all regulations in force in regard to the airworthiness of civil aircraft and any changes therein that may from time to time be effected. Article 7 The question of procedure to be followed in the application of the provisions of the present agreement shall be the subject of direct correspondence, whenever necessary, between the competent authorities of the United States and Switzerland. Article 8 The present agreement shall be subject to termination by either Government upon six months notice given in writing to the other Government. Article 9 The present agreement is in the German and English languages, and the texts of both languages are equally authentic. Upon the receipt of a note from Your Excellency indicating that the foregoing provisions are acceptable to the Government of the United States of America, the Government of Switzerland will consider that this note and Your reply thereto constitute an agreement between our two Governments on this subject, which shall enter into force provisionally on the date of Your reply note and shall enter into force definitively on the date of the notification from the Government of Switzerland to the Government of the United States of America that the agreement has been ratified by the Swiss Government. Accept, Excellency, the renewed assurances of my highest consideration. I have the honour to convey the agreement of the Government of the United States of America to the foregoing and I confirm that your note of Friday, October 13, 1961 and my reply given herewith constitute an agreement between our two Governments on this subject. Accept, Mr. President, the renewed assurances of my highest consideration. ROBERT M. MCKINNEY His Excellency Mr. FRIEDRICH T. WAHLEN, President of the Swiss Confederation, Chief of the Federal Political Department, Bern.

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EXHIBIT E

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DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION A78EU Revision 14 PILATUS PC-12 PILATUS PC-12/45 PILATUS PC-12/47 April 13, 2006 TYPE CERTIFICATE DATA SHEET No. A78EU This data sheet, which is a part of Type Certificate No. A78EU, prescribes conditions and limitations under which the product for which the Type Certificate was issued meets the airworthiness requirements of the Federal Aviation Regulations. Type Certificate Holder. PILATUS AIRCRAFT LTD. CH-6370 STANS SWITZERLAND

I.

Pilatus PC-12, Normal Category, approved July 15, 1994. Pratt & Whitney PT6A-67B JET A, JET A-1, JET B, JP 4 and other fuels according to PRATT & WHITNEY Service Bulletin SB 14004.

Engine. Fuel.

Engine Limits. Maximum Observed Inter Turbine Temp. ºC 800 760 1000 870

Shaft Power shp Take-off Max. climb/Max. cruise Starting (5 seconds) Transient (20 seconds) 1200 1000 -----

Torque PSI 44.34 36.95 --61.00

N1 Gas Generator Speed % 104 104 --104

Prop Shaft Speed RPM 1700 1700 --1870

Note: 100% Gas Generator Speed = 37,468 RPM Propeller and Propeller Limits. Hartzell HC-E4A-3D hub with Hartzell E10477K aluminum blades; four blade constant speed type. Spinner: Hartzell D5500-1 (Aluminum) Diameter: 104 in (2.642 m) to 105 m (2.667 m) cropping of blade tips not permitted. Pitch settings (measured at 42 in. station) Fine pitch 19.0º Min. pitch in flight 6.0º Max. reverse pitch -17.5º Feathered 79.6º Stabilized ground operation is prohibited between 350 and 950 RPM.

Page No. Rev. No.

1 14

2 4

3 11

4 11

5 13

6 11

7 14

EXHIBIT F

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Airspeed Limits (EAS).

Max. operating speed Max. operating Mach No. Max. diving speed

VMO 240 kts MMO 0.48 VD 280 kts MD 0.60 VA 170 kts

Max. maneuvering design speed

Max. maneuvering operating speed VO 154 kts at 4100 kg (9039 lbs) VO 136 kts at 3200 kg (7060 lbs) VO 123 kts at 2600 kg (5730 lbs) Center of Gravity Limits. At 4100 kg (9039 lbs) 27% MAC to 44% MAC Forward cg limit varies linearly between: (landing gear extended) 4100 kg (9039 lbs) 27% MAC 3700 kg (8157 lbs) 17.8% MAC 2700 kg (5952 lbs) and less 13% MAC Rear cg limit varies linearly between: (landing gear retracted) 4100 kg (9039 lbs) 44% MAC 3600 kg (7937 lbs) 46% MAC 3000 kg (6614 lbs) 46% MAC 2550 kg (5622 lbs) and less 20% MAC Datum. Leveling Means. 3000 mm (118 in.) forward of firewall (frame no. 10). Cabin Seat Rails (see Section 8 of the Airplane Maintenance Manual). Ramp weight 4120 kg (9083 lbs) Take-off weight 4100 kg (9039 lbs) Landing weight 4100 kg (9039 lbs) Max. zero fuel weight 3700 kg (8159 lbs) One pilot. 9 PAX and 2 pilot seats (for seat locations see Airplane Flight Manual, Section 6, W & B). 180 kg (400 lbs) (baggage compartment at rear of cabin).

Maximum Weight.

Minimum Crew. Number of Seats.

Maximum Baggage.

Maximum Loading. (Combi version) 1000 kg/m2 (205 lb/ft2) on seat rails 600 kg/m2 (125 lb/ft2) on cabin floor (for loading limitations/instructions see Section 6 of the Airplane Flight Manual).$ Fuel Capacity (Specific gravity 0.806 kg/ltr) Total Usable Arm 1540 ltr (1241 kg) 1516 ltr (1222 kg) 5.91 m (233 in) aft of datum (406 US gal) (400 US gal) 1522 ltr (1226 kg) (see Note 1) (402 US gal) Oil Capacity. Total 13,6 ltr (3.6 US gal) Arm 2.41 m (95 in) aft of datum

EXHIBIT F

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Control Surfaces

Wing flap 15º + 0º /-1.5° Take-off (left/right asymmetry 1°) Ailerons 30º +/- 1º Up Elevator 28º +/- 1º Up Stabilizer (trim) 2.5º + 0.7º /- 0.2ºup (with respect to stabilizer leading edge) Rudder 35º +/- 1º right (from centerline and measured horizontally) Rudder tab 7.5º + 1º /- 1.5º right (trim) Aileron tab 16.5º + /-1º up (trim)

39.5º +/- 0.5º Landing 10º +/- 1º down 15º +/- 1º down 7.5º + 0.7º / - 0.2º down 25º +/- 1º left 13º + 1º/- 1.5º left 16.5º +/- 1º down

Stick Pusher System.

Stick shaker/stick pusher system, signaled by AOA vanes on left and right wing leading edges. SN 101 and up (See Note 5 and Note 10). a. To be considered eligible for operation in the United States, each aircraft manufactured under this type certificate must be accompanied by a certificate of airworthiness for export or certifying statement endorsed by the exporting foreign civil airworthiness authority which states (in the English language): "This aircraft conforms to its U.S. type design (Type Certificate Number A78EU) and is in a condition for safe operation". b. An airplane maintenance manual in compliance with FAR 23.1529 must be furnished before delivery of the first airplane or issuance of standard certificate of airworthiness whichever occurs later.

Serial Numbers Eligible. Import Requirements- All Models.

Certification Basis.

1) 14 CFR Sections 21.29, 21.183(c) and 14 CFR 23, Normal Category, effective February 4, 1991, including Amendments 23-1 through 23-42 and Section 23.1305c)3) of Amendment 23-43 and Section 23.1507 of Amendment 23-45 and Section 23.1311 of Amendment 23-49 and 2) 14 CFR Section 36, effective November 18, 1969, including Amendments 36-1 through amendment in effect at the time of U.S. Type Certification, and 3) 14 CFR Section 34, effective September 10, 1990, and 4) Equivalent Level of Safety, a) ACE-94-8 of June 21, 1994, Spin demonstration, FAR 23.221 a)2) b) Cabin pressure indicator, FAR 23.841b) 6). See NOTE 8. 5) Section 611(b) of the FAA Act of 1958 6) Certification Maintenance Requirement (CMR), manual pitch trim system annunciation 7) Special Conditions: High Energy Radiated Electromagnetic Fields, (HERF), Number 23-ACE-46, effective date May 29, 1990 8) Approved for Flight Into Known Icing. See NOTE 4. The basic required equipment as prescribed in the applicable airworthiness regulations (see Certification Basis) must be installed in the airplane for certification. In addition the following is required: Airplane Flight Manual (including Equipment list and applicable supplements) -S/N 101-400: (except S/N 321) Report No. 01973-001

Equipment

-S/N 321 and 401 and subsequent Report No. 02211

EXHIBIT F

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Service Information.

"Service Bulletins, Airplane Flight Manuals incl. Supplements and any other service information, which contain a statement that the document is Swiss Federal Office of Civil Aviation (FOCA) approved, are accepted by the FAA and are considered FAA approved. These approvals pertain to the type design only." Available Documents for the PILATUS PC-12 are: Airplane Flight Manual For S/N 101 ­ 400 except 321: Doc. No. 01973-001 Revision 2, dated February 14, 1995 or later FOCA approved revisions. For S/N 321 and 401 and subsequent: Doc No. 02211 (PC-12 data is contained in AFMS No. 25; Doc. No. 02211/9-25) Aircraft Maintenance Manual (Chapter 4 FOCA approved) Structural Repair Manual Illustrated Parts Catalogue Doc. No. 02049.

Doc. No. 02050. Doc. No. 02051.

II. Pilatus PC-12/45 (Normal Category), approved July 31, 1996. The data given above is valid except where mentioned below: Airspeed Limits (EAS): VD 290 kts MD 0.62 (S/N 101 ­ 683) MD 0.58 (S/N 684 onwards) Max. maneuvering operating speed VO 161 kts at 4500 kg) Stall speed (at TOW) Flaps up 93 kts (CAS) (engine running flight idle) Flaps down 65 kts (CAS) At 4500 kg 30% MAC to 43% MAC Forward cg limit varies linearly between: (landing gear extended) 4500 kg (9921 lbs) 30% MAC 3700 kg (8157 lbs) 18% MAC 2600 kg (5732 lbs) and less 13% MAC Rear cg limit varies linearly between: (landing gear retracted) 4500 kg (9921 lbs) 43% MAC 3600 kg (7937 lbs) 46% MAC 3000 kg (6614 lbs) 46% MAC 2600 kg (5732 lbs) and less 20% MAC Maximum Weights. Ramp weight Take-off weight Landing weight Max. zero fuel weight Wing flaps 4520 kg (9965 lbs) 4500 kg (9921 lbs) 4500 kg (9921 lbs) 4100 kg (9039 lbs) Max. diving speed

Center of Gravity Limits.

Control Surfaces.

15° +0°/-1.5° Normal Take-off 30° +0°/-1.5° Short Take-off 39.5° +/-0.5° Landing (left/right asymmetry 1°)

S/N 684 Onwards: Ailerons 26.5º +/- 0.5º Up Aileron tab 13.9º + /-1.0º up (trim function only ­ left hand tab) Aileron tab 15.5º + /-1.0º up (balance function only ­ both tabs) Control Surfaces (Cont.)

13º +/- 0.5º down 14.5º +/- 1.0º down 15.8º +/- 1.0º down

Aileron tab 29.3º + /-1.0º up 28.4º +/- 1.0º down (combined trim and balance function ­ left hand tab) When the ailerons are in the neutral position, both tabs are deflected 5º+/- 0.5º up.

EXHIBIT F

Case 1:01-cv-02056-JLK
A78EU

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Certification Basis

1) 14 CFR Sections 21.29, 21.183(c) and 14 CFR 23, Normal Category, effective February 4, 1991, including Amendments 23-1 through 23-42 and Section 23.1305c)3) of Amendment 23-43 and Section 23.49c) and 23.562d) of Amendment 23-44 Section 23.479b) & c) and Section 23.1507 of Amendment 23-45 and Section 23.1311 of Amendment 23-49 2) 14 CFR Section 36, effective November 18, 1969, including Amendments 36-1 through amendment in effect at the time of U.S. Type Certification, and 3) 14 CFR Section 34, effective September 10, 1990, and 4) Equivalent level of Safety, a) ACE-94-8 of June 21, 1994, Spin demonstration, FAR 23.221 a)2) b) Cabin pressure indicator, FAR 23.841b) 6). See NOTE 8. 5) Section 611(b) of the FAA Act of 1958 6) Certification Maintenance Requirement (CMR), manual pitch trim system annunciation 7) Special Conditions: High Energy Radiated Electromagnetic Fields, (HERF), Number 23-ACE-46, effective date May 29, 1990 8) Approved for Flight Into Known Icing. See NOTE 4. Available Documents for the PILATUS PC-12/45 are: For S/N 101 ­ 400, except 321: Airplane Flight Manual Supplement No. 8 (Doc. No. 01973-001 / 9-08) Initial issue, or later FOCA approved revisions. For S/N 321 and S/N 401and subsequent: Airplane Flight Manual Report No. 02211 Initial issue or later FOCA approved revisions.

Service Information.

III. Pilatus PC-12/47 (Normal Category), approved December 23, 2005. The data given for model PC-12 is valid except where mentioned below: Airspeed Limits (EAS): VD 290 kts MD 0.58 Max. maneuvering operating speed VO Stall speed (at TOW) Flaps up (engine running flight idle) Flaps down At 4740 kg 30% MAC to 42.2% MAC Forward cg limit varies linearly between: (landing gear extended) 4740 kg (10450 lbs) 30% MAC 4500 kg (9921 lbs) 30% MAC 3700 kg (8157 lbs) 18% MAC 2600 kg (5732 lbs) and less 13% MAC Rear cg limit varies linearly between: (landing gear retracted) 4740 kg (10450 lbs) 42.2% MAC 4500 kg (9921 lbs) 43% MAC 3600 kg (7937 lbs) 46% MAC 3000 kg (6614 lbs) 46% MAC 2600 kg (5732 lbs) and less 20% MAC Maximum Weights. Ramp weight Take-off weight Landing weight Max. zero fuel weight Wing flaps 4760 kg (10495 lbs) 4740 kg (10450 lbs) 4500 kg (9921 lbs) 4100 kg (9039 lbs) Max. diving speed

163 kts at 4740 kg (10450 lbs) 95 kts (CAS) 67 kts (CAS)

Center of Gravity Limits.

Control Surfaces.

15° +0°/-1.5° Normal Take-off 30° +0°/-1.5° Short Take-off 39.5° +/-0.5° Landing (left/right asymmetry 1°) Ailerons 26.5º +/- 0.5º Up 13º +/- 0.5º down Aileron tab 13.9º + /-1.0º up 14.5º +/- 1.0º down (trim function only ­ left hand tab) Aileron tab 15.5º + /-1.0º up 15.8º +/- 1.0º down (balance function only ­ both tabs) Aileron tab 29.3º + /-1.0º up 28.4º +/- 1.0º down (combined trim and balance function ­ left hand tab) When the ailerons are in the neutral position, both tabs are deflected 5º+/- 0.5º up.

EXHIBIT F

Case 1:01-cv-02056-JLK
A78EU

Document 103
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Certification Basis

1) 14 CFR Sections 21.29, 21.183(c) and 14 CFR 23, Normal Category, effective February 4, 1991, including Amendments 23-1 through 23-42 and Section 23.1305c)3) of Amendment 23-43 and Section 23.49c) and 23.562d) of Amendment 23-44 Section 23.479b) & c) and Section 23.1507 of Amendment 23-45 and Section 23.1311 of Amendment 23-49 2) 14 CFR Section 36, effective November 18, 1969, including Amendments 36-1 through amendment 36-27, effective September 6, 2005, 3) 14 CFR Section 34, effective September 10, 1990, including amendments 34-1 as amended through Amendment 34-3 effective February 3, 1999; 4) Equivalent level of Safety findings per provision of 14 CFR 21.21(b)(1): a) ACE-94-8 of June 21, 1994, Spin demonstration, FAR 23.221 a)2) as extended by FAA memorandum dated November 29, 2005. b) ACE-05-18 of November 29, 2005, Cabin pressure indicator, FAR 23.841b) 6) 5) Special Conditions: High Energy Radiated Electromagnetic Fields, (HERF), Number 23-ACE-46, effective date May 29, 1990 6) Approved for Flight Into Known Icing . See NOTE 4. 7) Section 611(b) of the FAA Act of 1958 8) Certification Maintenance Requirement (CMR), manual pitch trim system annunciation Date of Application for U.S. Amended Type Certificate for PC-12/47 model December 1, 2004.

Service Information.

Available Documents for the PILATUS PC-12/47 are: Airplane Flight Manual Report No. 02211, Initial issue or later FOCA approved revisions. (specific PC-12/47 data is contained in AFM Supplement No. 33) Aircraft Maintenance Manual Doc. No. 02049 Revision 17, dated 31 Jan 2006 or higher. (until Revision 17 is issued the information is contained in AMM Temporary Revisions No 04-14, dated December 1, 2005, No 27-31, dated December 16, 2005 and No 57-07, dated December 16, 2005.) (Chapter 4 FAA and FOCA approved)

NOTES NOTE 1. Current weight and balance data together with a list of equipment included in the certificated empty weight, and loading instructions, when necessary, must be provided for each airplane at the time of original certification. The certificated empty weight and corresponding center of gravity locations must include the following: a) unusable fuel of 19.6 kg (43.2 lbs) at 5.73 m (225.6 in) on S/N 101 up to and including S/N 140. unusable fuel of 14.9 kg (32.9 lbs) at 5.73 m (225.6 in) from S/N 141 on onwards. b) engine oil of 9.2 kg (20.3 lbs) at 2.41 m (95.27 in.) NOTE 2. Airplane operation must be in accordance with the FOCA-approved Airplane Flight Manual listed above. All placards listed in Section 2 of the AFM must be displayed in the appropriate location. Airworthiness Limitations are contained in the FOCA approved Chapter 4 of the PC-12, PC-12/45 & PC-12/47 Aircraft Maintenance Manual. These Limitations may not be changed without FOCA and FAA approval. The models PC-12 and PC-12/45 up to S/N 683 may be operated in know icing conditions when equipped in accordance with Pilatus Modification PIL 12/00/001, Rev. 1, or later FOCA approved revision. The models PC-12/45 and PC-12/47 from S/N 684 onwards are approved for operation in known icing conditions. The basic version PC-12 (S/N 101 - 683) may be converted to a version PC-12/45 by executing PILATUS Service Bulletin No. 04-001. Only interior configurations described in the official Pilatus AFM/POH are approved for installation in the PC-12, PC-12/45 and PC-12/47 aircraft. These configurations have been shown to meet the dynamic and HIC test requirements of FAR 23.562. Any alterations to these approved interior layouts must be shown to meet FAR 23.562.

NOTE 3.

NOTE 4.

NOTE 5.

NOTE 6.

EXHIBIT F

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NOTE 7.

All PC-12 models are eligible for import (with FOCA export certificate of airworthiness) into the USA in the no cabin interior configuration option installation per Pilatus Document 500.20.12.399 for ferry flight delivery to the USA. After delivery in this configuration, the airplane is eligible for standard airworthiness certificate in the no cabin interior configuration per Pilatus Document 500.20.12.399, but carriage of passengers (other than those essential to the mission) in this configuration is prohibited. While the airplane is in this configuration it is subject to limitations and inspections defined in the Airworthiness Limitations Sections. The passenger prohibition can be removed after installation of a Pilatus factory interior is installed per Pilatus Document No. 02252 or other FAA approved interior is installed. An ELOS memorandum was inadvertently missed on the original PC-12 model and PC-12/45 model, but was evaluated during the validation of the PC-12/47. See FAA memorandum dated December 9, 2005 for details.

NOTE 8.

NOTE 9.

The PC-12/45 model incorporated an aerodynamic improvement modification (AIM) type design change that was approved at the same time the PC-12/47 model was approved. This modification is for production aircraft only and includes: modified wingtips, modified dorsal and ventral fins and modified ailerons (reduction of roll control forces). Starting with Manufacture Serial Number (MSN) 684 can be either a PC-12/45 with the AIM type design change or a PC-12/47 model.

NOTE 10.

...END...

EXHIBIT F

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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 EDWARDS 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 EDWARDS TESTIMONY MEMORANDUM IN SUPPORT

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