Free Reply - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane

Civil Action No. 01-cv-2056-JLK-MJW UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. d/b/a 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.

DEFENDANT PRATT & WHITNEY CANADA'S REPLY TO RESPONSE TO MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL

Defendant Pratt & Whitney Canada Corp. ("PWC"), by its attorneys, respectfully submits its Reply to Plaintiffs' Response to PWC's Motion for Judgment as a Matter of Law or for New Trial (Doc. 235) and states as follows. INTRODUCTION Plaintiffs argue that PWC's Rule 50(b) motion for judgment as a matter of law should be denied because it is based on (1) grounds not asserted during trial in a Rule 50(a) motion, and (2) "false, misleading, and incomplete descriptions of the evidence." Plaintiffs then argue that PWC's alternative Rule 59 motion for a new trial should be denied because there was substantial

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evidence to support the jury's verdict. Plaintiffs' arguments are unpersuasive, however, and provide no basis to deny PWC's motions. As PWC noted in the introduction to its motions, it is not possible to determine the actual basis for the jury's verdict because the jury did not complete special interrogatories. So PWC has thus addressed all the evidence Plaintiffs presented during trial to support any theory of liability, and which they argued to the Court in response to PWC's Rule 50(a) motion at the conclusion of Plaintiffs' case-in-chief. Tr. 429:12-430:24. Until Plaintiffs presented their

rebuttal closing argument, those theories of liability were based on (1) an alleged failure of a power turbine blade, (2) the power turbine blades rubbing on the stationary shroud, and (3) an alleged failure of PWC to provide adequate warnings and instructions. As PWC noted in its motion, however, it is very significant that Plaintiffs limited their case to a single theory of liability in their rebuttal closing argument, to which PWC had no opportunity to respond, when counsel admitted that there was nothing wrong with all PT6A-67B engines ­ just this one. "Sometimes you just get a bad one." Plaintiffs thereby abandoned any claim that the PWC engine was defective and unreasonably dangerous either in its design or the adequacy of its warnings, since those claims necessarily are directed at all PT6A-67B engines. Stated somewhat differently, for purposes of analyzing PWC's motions, Plaintiffs effectively admitted that they did not have legally sufficient evidence to support a jury verdict based on any design defect or the adequacy of PWC's warnings with respect to all PT6A-67B engines. The sufficiency of the evidence with respect to PWC's Rule 50(b) motion, and the relative weight of the evidence with respect to PWC's Rule 59 motion, must therefore be viewed in light of Plaintiffs' rebuttal closing argument. And the only theory of liability Plaintiffs argued

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in closing that was based on any alleged defect in this specific engine was the theory speculated by their expert David Rupert that a power turbine blade failed for some unknown reason causing the problems pilot Smith reported and preventing him from being able to restart the engine. That theory is not supported by legally sufficient evidence or is, at the very least, clearly outweighed by the evidence presented by PWC. MOTION FOR JUDGMENT AS A MATTER OF LAW The Jury's Verdict is Not Supported by Legally Sufficient Evidence PWC's Rule 50(a) motion is properly based on grounds asserted during trial in its Rule 50(a) motion, and is not based on "false, misleading, and incomplete descriptions of the evidence." A. PWC's Rule 50(b) Motion is Based on Grounds Asserted in its Rule 50(a) Motion.

A Rule 50(b) motion must be based on grounds asserted at trial in a Rule 50(a) motion. Satisfying this specificity requirement does not require technical precision, however, and rigid application of this rule is not appropriate. Anderson v. United Telephone Co. of Kansas, 933 F.2d 1500, 1503 (10th Cir. 1991). The requirement should not be construed narrowly but should be construed liberally in light of the purpose of the rule. Id. at 1503-04. The purpose of the rule "is to give the other party an opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998)(quoting Baskin v. Hawley, 807 F.2d 1120, 1134 (2d Cir. 1986)). "If colloquy between counsel and the trial court fleshes out the motion, it may provide the opposing party with the requisite notice." Conseco Finance Servicing Corp. v. North American Mortgage Co., 381 F.3d 811, 821 (8th Cir. 2004)(citing Galdieri-Ambrosini, 136 F.3d at 287). "The

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ultimate question is whether the motion, either of itself or in the context of the ensuing colloquy, was sufficiently specific to alert the opposing party to the supposed deficiencies in her proof." Galdieri-Ambrosini, 136 F.3d at 287. A Rule 50(a) motion on grounds that the evidence was insufficient to support a claim is sufficiently specific for a Rule 50(b) motion on the same grounds ­ that a plaintiff's evidence was legally insufficient to support the verdict. Anderson, 933 F.3d at 1504. PWC argued in its Rule 50(a) motion that the evidence presented by Plaintiffs was not sufficient for the jury to find in their favor. Tr. 427:23-428:3. PWC argued that Plaintiffs had not presented sufficient evidence to show that the PWC engine was defective and unreasonably dangerous, and more specifically that Plaintiffs had not presented sufficient evidence to show that the engine was unreasonably dangerous because of a defect in its design which created a risk of harm to persons or property which would not ordinarily be expected. Tr. 428:4-6,19-22. PWC specifically argued that the testimony of Plaintiffs' expert David Rupert, the only witness Plaintiffs called to establish a defect in the engine, was not sufficient to prove Plaintiffs' theory that the engine was defective because a power turbine blade failed. Tr. 428:23-429:5. In response to PWC's Rule 50(a) motion Plaintiffs argued that the jury could find that the engine was defective based either on Mr. Rupert's testimony that a power turbine blade failed, or the testimony of Defendants' witnesses that the power turbine disk "was frozen" due to differential expansion rates of the engine components - the power turbine blades rubbing on the stationary shroud. Tr. 429:12-24. Plaintiffs argued further that the testimony of their expert William Edwards established that the aircraft (and its engine) were defective and unreasonably dangerous due to the inadequacy of information contained in the Pilot's Operating Handbook ­

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"defective in terms of failure to warn" - and that it was "their [Defendants'] burden to disprove the defect in their case-in-chief." Tr. 429:25-430:6, 430:15-20. Plaintiffs finally argued that the "unreasonably dangerous element of proof is met by the various corporate [Pilatus] documents the jury has read and seen [which included IFSD evidence]." Tr. 430:7-14. The Court denied PWC's Rule 50(a) motion without further discussion or response from PWC. Tr. 431:1-2. It is clear, however, that "colloquy between counsel and the trial court" served the purpose of allowing Plaintiffs to argue the sufficiency of their evidence in every respect that PWC now challenges in its Rule 50(b) motion, thereby satisfying the purpose of the specificity requirement of Rule 50(b). The grounds for PWC's Rule 50(b) motion are that the jury's verdict is not supported by legally sufficient evidence of any defective condition of the engine arising from (1) a power turbine blade failure, whether based on the testimony of Plaintiffs' expert David Rupert or the Pilatus documents and IFSD evidence, (2) power turbine rotating components rubbing on the stationary shroud, or (3) PWC's failure to provide adequate warnings and instructions. All of these arguments were sufficiently articulated in PWC's Rule 50(a) motion and Plaintiffs' arguments in response to satisfy the specificity requirement for PWC's Rule 50(b) motion. PWC is not now challenging the sufficiency of Plaintiffs' evidence in any respect that was not addressed and understood by all parties and the Court in the context of PWC's Rule 50(a) motion at the conclusion of Plaintiffs' case-in-chief. 1 B. PWC's Rule 50(b) Motion is Not Based on "False, Misleading, and Incomplete Descriptions of the Evidence."

Plaintiffs broadly state that PWC's motion is based on "false, misleading, and incomplete

PWC is not arguing that Plaintiffs' misrepresentation of the purpose for which they presented IFSD evidence is grounds for its Rule 50(b) motion. The misrepresentation did prejudice PWC but it is not grounds for this Motion.

1

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descriptions of the evidence" ­ but they never make any specific arguments in that regard or address the arguments PWC set forth in its motion. PWC will nevertheless respond to the arguments Plaintiffs make in their response to PWC's motion as follows: 1. Plaintiffs first argue that "the jury was entitled to find the products were defective

and unreasonably dangerous even if the jury did not also believe that a PT blade fractured." Plaintiffs state that they did prove the existence of a defective PT blade ­ without pointing to any specific evidence that would be legally sufficient to support the jury's verdict on that basis ­ but then argue that the jury did not have to believe that a PT blade was defective because they "offered substantial evidence tending to prove that the engine was defective because it created `a risk of harm to persons or property that would not ordinarily be expected.'" Plaintiffs did not, however, give any indication of what that "substantial evidence" might have been. As PWC noted in its motion, Plaintiffs did not present any evidence of a design defect and abandoned any design defect theory in closing by arguing that "there's nothing wrong with all PT6A-67B engines ­ just this one." But the jury instruction that Plaintiffs now argue could have provided the basis for the jury's verdict, Instruction 3.5, Defective, Unreasonably Dangerous ­ Defined, could only provide the basis for a finding that the engine was unreasonably dangerous because of a design defect in all PT6A-67B engines, not "just this one." The instruction provided in pertinent part that "a product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property that would not ordinarily be expected." (emphasis added). So before the jury could address the question of whether the engine was unreasonably dangerous, which is all that this instruction addresses, they first had to

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find that the engine was defective in design. 2 A product is not defective, as Plaintiffs argue, because it creates a risk of harm to persons or property that would not ordinarily be expected. A product is unreasonably dangerous if it creates a risk of harm to persons or property that would not ordinarily be expected because of a defect in its design - but a plaintiff must first prove a defect. So in this case Plaintiffs had to present legally sufficient evidence of a defect in the engine and they simply failed to do so. They did not present any evidence of design defect and the only evidence they presented to establish a defect in the specific engine at issue was the speculative opinion of David Rupert that some unspecified defect caused a PT blade failure. As PWC has shown in its motion, however, the opinion testimony of Mr. Rupert is not legally sufficient to support a finding that a power turbine blade was defective, and the jury did not have any other basis for finding that the engine was defective if they did not find that a power turbine blade fractured or otherwise failed as a result of some specific defect that was present when PWC manufactured the engine and sold it to Pilatus. 2. Plaintiffs next argue that "the jury was not required to exonerate Pratt & Whitney

just because the engine was shut down during flight." PWC never argued that the jury should "exonerate" PWC because pilot Smith shut down the engine during flight, but that is hardly the point and not relevant to PWC's Rule 50(a) motion. The motion is addressed to the sufficiency of Plaintiffs' evidence ­ not the sufficiency of PWC's evidence of pilot Smith's negligence. Plaintiffs' argument in this regard is irrelevant to PWC's motion and does nothing to show that

2

The jury may actually have been confused by this instruction, to PWC's prejudice, as a result of Plaintiffs abandoning their design defect theory during closing argument after the instruction was read and submitted to the jury.

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Plaintiffs' evidence was legally sufficient to support the jury's verdict in any respect. 3. Plaintiffs next argue that "the jury was not required to believe Pratt & Whitney's

speculative claim that the seized propeller would have begun to rotate if the pilot had continued the restart." But PWC's evidence in this regard was far from being speculative and Plaintiffs' argument again does not address PWC's Rule 50(a) motion ­ which has to do with the sufficiency of Plaintiffs' evidence. The evidence is clearly undisputed that pilot Mike Smith prematurely aborted the attempt to restart this engine, contrary to the procedures set forth in the flight manual, and before the engine completed its otherwise normal restart. There is therefore no evidence that the propeller failed to rotate during a proper restart of the engine, and therefore no evidence that the engine was defective in this regard. Plaintiffs argue that "Mr. Bretscher's testimony is more than enough for the jury to conclude that the engine on this particular airplane was defective because the propeller immediately stopped turning (froze) when the engine was shut down in flight and remained frozen during the attempted restart." Plaintiffs mischaracterize Mr. Bretscher's testimony and do not explain how his testimony could establish an engine defect. Mr. Bretscher did not testify that it normally takes 20 to 30 seconds for the propeller to stop turning "when a non-defective engine is shut down" as Plaintiffs indicate. But even viewed in the light most favorable to Plaintiffs, evidence that the propeller stopped turning sooner when pilot Smith abruptly shut down the engine in flight from an excessively high temperature than it normally would when an engine is shut down from normal operating temperatures using normal procedures on the ground, is by no means legally sufficient to support a finding that this particular engine was defective and unreasonably dangerous because of some unspecified defect.

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4.

Plaintiffs next argue that "Pratt & Whitney withdrew its affirmative defense of

product misuse because there was no evidence to support that defense, not because Pratt & Whitney mistakenly believed it could prevent the jury from considering relevant IFSD evidence." But this argument has absolutely nothing to do with PWC's Rule 50(a) motion. PWC's Rule 50(a) motion is not based on Plaintiffs' misrepresentation as to the limited purpose for which they offered IFSD evidence ­ that they did not offer IFSD evidence to prove a defect in the engine, or that the engine in this case malfunctioned in a manner that was substantially similar to any other engine malfunctions, but only to show that the pilot Mike Smith's decision to shut down the engine was foreseeable. PWC's Rule 50(a) motion is based on the legal insufficiency of Plaintiffs' evidence to support the jury's verdict and whatever reason PWC may have had for withdrawing its affirmative defense of product misuse is not relevant to the sufficiency of Plaintiffs' evidence. 5. Plaintiffs finally argue that "the jury was entitled to find that the engine and

airplane were defective and unreasonably dangerous based on the inculpatory [sic] admissions contained in the Pilatus corporate documents." Plaintiffs focus this part of their argument on the dates of the documents rather than on the substance. PWC would agree that not all of the documents were generated in the early developmental years of the PC-12, but that is hardly the point, and the dates of the documents are not relevant to the legal sufficiency of the content as a basis for the jury's verdict. Plaintiffs do not identify any specific content that they contend would support the verdict, or how it would do so, and merely argue that "the jury was justly permitted to interpret this evidence as demonstrating that the engine and airplane were both defective and unreasonably dangerous." Plaintiffs' argument that the Pilatus documents

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constitute an admission by PWC is simply false; there were no PWC documents in evidence upon which Plaintiffs can rely to show any "admission" by PWC on these issues. Even viewed in the light most favorable to Plaintiffs, however, the documents only reflect general reliability concerns and do not provide a legally sufficient basis for a jury finding that the specific engine at issue ­ "there's nothing wrong with all of these engines" ­ was defective when it was sold and, because of the defect, unreasonably dangerous. None of these documents referenced power turbine blade failures, which was the only theory of defect proffered by Plaintiffs. Any general reliability concerns that Pilatus may have expressed based on unrelated and dissimilar incidents, not relevant to power turbine blade issues, cannot provide a legally sufficient evidentiary basis for a jury finding that a power turbine blade on the subject engine was defective, or that the engine was defective in any other unspecified respect. Plaintiffs did not offer these documents to prove a defect in the engine, or that the engine in this case malfunctioned in a manner that was substantially similar to any other engine malfunctions, and did not make any attempt to show that any of the information contained in these documents was specifically related to any theory of liability in this case. The fact that there may have been problems with other engines, without any other evidence or even argument to show that the engine in this case malfunctioned in a manner that was substantially similar to any other engine malfunctions, or in any way related to Plaintiffs' theories of liability, just does not provide a legally sufficient basis for the jury's verdict. MOTION FOR NEW TRIAL The Jury's Verdict is Against the Weight of the Evidence Plaintiffs argue that PWC's Rule 59 motion for new trial should be denied "because substantial evidence supports the jury's verdict." This argument does not really address the

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purpose of a Rule 59 motion, however, and would be more appropriate in response to a Rule 50(b) motion which challenges the legal sufficiency of a plaintiff's evidence. A Rule 59 motion presupposes that a plaintiff presented sufficient evidence to survive a Rule 50(b) motion, but that the verdict is clearly against the weight of the evidence presented by the defendant. "Unlike a motion for judgment as a matter of law, a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict." United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998). Furthermore, the trial judge need not view the evidence in the light most favorable to the party opposing the motion. Id. at 104; Praxair, Inc. v. ATMI, Inc., 445 F.Supp.2d 460, 465 (D.Del. 2006). The trial judge is free to weigh the evidence himself and has the right, and indeed the duty, to set the verdict aside and order a new trial if he concludes that the verdict is contrary to the clear weight of the evidence. Smith v. Transworld Drilling Company, 773 F.2d 610, 613 (5th Cir. 1985); Buda v. Royal Netherlands SS Co., 280 F.Supp. 180, 181 (S.D.N.Y. 1967). PWC will nevertheless respond to Plaintiffs' arguments as follows: A. The Verdict Could Not be Based on an "Alternative Theory of Liability."

Plaintiffs first argue that the verdict did not have to be based on either of their two theories of liability ­ a power turbine blade failure or failure to provide adequate warnings or instructions ­ but could have been based on an "alternative theory of liability." Plaintiffs again argue, in a slightly different manner, that all they had to do was show that the engine "created a risk of harm to persons or property that would not ordinarily be expected," without first having to identify and prove a specific defect in the engine that created the risk. The definition of unreasonably dangerous can not be construed to create an alternative theory of liability.

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Instruction No. 4.6, Special Verdict ­ Mechanics for Submitting, instructed the jury as follows: 1. Do you find that the defendant, Pratt & Whitney, sold a defective product and that the defect made the product unreasonably dangerous? (See Instruction Nos. 3.2, 3.5-3.7)(emphasis added). The jury was clearly required by this instruction to find that PWC sold a defective product before they considered whether the defect made the product unreasonably dangerous. Instruction No. 3.5 merely defines "unreasonably dangerous" in a design case ­ "a product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons or property that would not ordinarily be expected." (emphasis added). Instruction No. 3.5 cannot possibly be construed to create an "alternative theory of liability" as Plaintiffs argue. The jury had to base its verdict on a finding of specific defect and the only evidence of defect that Plaintiffs presented was addressed to a power turbine blade failure and a failure to provide adequate warnings and instruction. And a jury verdict based on either theory would be against the weight of the evidence as PWC has shown in its Rule 59 Motion for New Trial. B. A Verdict Based on a Finding that a Power Turbine Blade was Defective is Against the Weight of the Evidence.

Plaintiffs next argue that "if the jury concluded that a PT blade fractured, then there is substantial evidence to support that conclusion." For purposes of PWC's Rule 59 motion, however, the issue is not whether Plaintiffs presented substantial evidence to support the conclusion, which they did not, but whether such conclusion would be against the weight of the evidence presented by PWC. PWC has shown in its motion that a jury verdict based on a finding that a power turbine blade failed is against the weight of the evidence and Plaintiffs have not shown otherwise in their response.

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1.

Plaintiffs first argue in this regard ­ again ­ that a PT blade failure because of a

defect is not a necessary element of Plaintiffs' product liability claim. They again argue that they only had to prove that the engine "created a risk of harm to persons or property that would not ordinarily be expected" and that the jury "could have found the products were defective and unreasonably dangerous with ­ or without ­ a fractured PT blade." As PWC has shown, however, this argument simply misstates the Colorado law under which the case was tried and is inconsistent with the jury instructions and the special verdict that the jury completed. Plaintiffs had to prove that a PT blade fractured because of a defect or that the engine was defective in some other specific respect and any proper jury verdict had to be based on such evidence, and the jury's verdict in this case is clearly against the weight of the evidence. 2. Plaintiffs next argue in this regard that "the jury was not required to believe Pratt

& Whitney's speculative theories regarding the PT blade failure." But again, the issue for PWC's Rule 59 motion is not whether the jury was required to believe anything, but whether PWC's evidence on this issue outweighed Plaintiffs' evidence and PWC has shown that it did. PWC witnesses Ronald Ortuso and Jean Pelletier clearly and convincingly refuted the opinion testimony of Plaintiffs' expert David Rupert, based on their many years of hands-on experience and expertise with the PT6A-67B engine. PWC presented undisputed evidence that a power turbine blade failure could not possibly cause increased fuel flow and the ITT indication of 1144º reported by pilot Smith. Tr. 724:3-725:5; 795:21-796:5. There has never been a reported failure of a power turbine blade in a PT6A-67B engine. Tr. 796:18-24. There have only been two failures of the same part number blade, both of which occurred in a different engine (a PT6A-67D engine), in a different aircraft (a Beech 1900), at approximately 6,000 and 7,400

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hours of operation. Tr. 796:25-797:12. The only failures in the current or previous design blades in these different type engines and different type aircraft occurred as a result of high-cycle fatigue after thousands of hours and engine cycles. Tr. 806:8-808:16. The power turbine blades on the PT6A-67B engines installed in PC-12 aircraft have a life limit of 5,000 hours - after that they must be replaced with new ones ­ and there have not been any reported blade failures at less than 5,000 hours. Tr. 648:13-649:10; 808:5-10. The undisputed statistical probability of a blade failing on the subject engine with approximately 400 hours of operation is 1.27 times ten to the minus 8th, which is one failure in one hundred million hours of operation. Tr. 809:4-810:7. In response Plaintiffs merely argue that: In fact, the jury was free to conclude that the opinions offered by PWC witnesses Ortuso and Pelletier were unreliable, because (1) both of those witnesses were merely parroting what their employer (PWC) wanted them to say, and (2) Ortuso admitted that PWC did nothing to investigate the possibility of a PT blade had fractured. . . . Moreover, the jury heard testimony from Pilatus engineer Dietmar Bretscher, who testified that Pilatus could not rule out a PT blade failure as a cause of the engine failure. Plaintiffs again grossly mischaracterize the testimony of witnesses Ortuso, Pelletier and Bretscher, and ignore Mr. Bretscher's trial testimony to the effect that Pilatus did rule out the possibility of a PT blade failure in this case after further investigation. Tr. 649:11-650:6. And the cited testimony of Messrs. Ortuso and Pelletier is from their depositions taken prior to the completion of their investigations, not their trial testimony. But for purposes of responding to PWC's Rule 59 motion it is not enough for Plaintiffs to attack the credibility of PWC's witnesses. Plaintiffs must show that their evidence of a PT blade failure, which was based entirely on the testimony of their expert David Rupert, was not outweighed by PWC's evidence that a power turbine blade did not fail, and they have not done so. None of the evidence

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presented by Plaintiffs supports their contention that a power turbine blade failed during the flight from Japan to Russia. Tr. 796:11-17. As PWC has shown in its motion, perhaps the most significant factor in this analysis is that Mr. Rupert's theory of a power turbine blade failure was based on his clearly erroneous understanding of the operation of the engine and its fuel control system. Tr. 372:3-10; 381:15-18; 382:10-13. The evidence clearly established that, contrary to Mr. Rupert's understanding, there is no physical mechanism by which the power turbine section slowing down (due to a blade failure or any other reason) could cause an increased fuel flow to the engine resulting in the high ITT indication of 1144º that pilot Smith observed. A power turbine blade failure just could not possibly have caused the high ITT indication in the manner in which Mr. Rupert testified that it could. Mr. Rupert's speculative opinions are therefore not sufficiently reliable to provide a legally sufficient evidentiary basis for the jury to find that a power turbine blade was defective or are, at the very least, clearly outweighed by the testimony of PWC witnesses Ronald Ortuso and Jean Pelletier. 3. Plaintiffs finally argue in this regard that "the Plaintiffs were not required to prove

that a PT blade failure had ever occurred in a PT6A-67B engine before this failure occurred." PWC would agree that Plaintiffs did not have to prove that a PT blade in a PT6A-67B engine had occurred before the date of the PC-12 accident in this case, but that is also hardly the point. The point with respect to PWC's Rule 59 motion is that Plaintiffs did have to present evidence of a PT blade failure resulting from a specific defect that outweighed PWC's evidence to the contrary, and they did not.

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Plaintiffs again fail to cite any evidence that they presented to show that a PT blade failed but merely cite testimony of PWC witness Pelletier and a Service Bulletin regarding blade failures in a different engine, installed in a different type aircraft, operated under far more demanding conditions than the PC-12 aircraft in this case had been operated. The testimony of Mr. Pelletier that Plaintiffs cite even involved blades with different part numbers. (Pelletier Depo., 9/15/2005, 40:9-23). Mr. Pelletier made it clear, however, that all of the blades that PWC has known to fail, including those with different part numbers and in different engines, occurred in the range of 5,000 to 18,000 hours of operation. Tr. 808:5-10. Mr. Pelletier's testimony, which also addressed the Service Bulletin, was actually evidence of the extremely high improbability of a blade failure in the subject engine with approximately 400 hours, rather than evidence that could support a jury finding of a defective power turbine blade. So again, for purposes of PWC's Rule 59 motion, Plaintiffs have failed to show how their evidence outweighed PWC's evidence on the issue of a power turbine blade failure. C. A Verdict Based on a Finding that the Power Turbine Rotating Components Rubbing on the Stationary Shroud Prevented the Engine from Starting is Against the Weight of the Evidence.

Plaintiffs argue on this issue that there was undisputed evidence that the propeller would not turn during the restart attempt that pilot Smith prematurely aborted because the PT disk was "seized" and the pilot had sole discretion as to when to shut the engine down whether the disk was "seized" or not. PWC presented clear undisputed evidence showing that the disk was not "seized" and the propeller would have begun to turn if pilot Smith had just completed the restart in accordance with the procedures in the flight manual, which clearly outweighed any evidence Plaintiffs presented to the contrary. And whether or not pilot Smith had "sole discretion" to shut

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down the engine is not relevant to the issue of whether turbine rotating components rubbing on the stationary shroud prevented the engine from starting. The main point with respect to the rotating components rubbing on the stationary shroud is that Plaintiffs did not present any evidence, or even argue, that this condition resulted from a defect in the design of the engine, or a defect in this specific engine, that would have caused the condition. The condition did not exist when PWC manufactured and sold the engine but only after pilot Smith improperly operated the engine and caused an overtemperature far in excess of the operating and design limitations of the engine, and shut the engine down because of this excessively high temperature. The power turbine blade tips would not have come in contact with the shroud while the engine was operating normally regardless of the temperature. Tr. 768:22769:3. Nor would the power turbine blades ever have come in contact with the shroud if the engine had been operated within its operating and design limitations or shut down from power settings and temperatures within those limitations. Tr. 811:4-813:5. The condition can only occur when, as in this case, the engine is improperly operated at a temperature far in excess of its design limitations and then abruptly shut down. Tr. 813:6-814:16. But for purposes of PWC's Rule 59 motion, Plaintiffs did not present any evidence to show that if the only thing that was initially preventing the propeller from turning was the minimal friction caused by the turbine blades rubbing on the stationary shroud, the propeller would not have started turning if pilot Smith had just completed the restart procedures in the Pilot Operating Handbook ("POH"). The Defendants presented undisputed evidence that

showed that if pilot Smith had followed those published procedures the engine would have produced sufficient power in the course of the normal start sequence to overcome this minimal

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friction, the propeller would have started turning, and the restart would have been successful. A verdict based to any degree on the fact that the power turbine blades were rubbing on the shroud after pilot Smith shut down the engine, and that that condition somehow prevented him from being able to restart the engine, is clearly against the weight of the evidence. D. A Verdict Based on a Finding that PWC did not Provide Adequate Warnings and Instructions is Against the Weight of the Evidence.

As PWC notes above, the rebuttal closing argument by Plaintiffs' counsel effectively resulted in their abandonment of any failure to warn theory and admission that there was no sufficient evidence to support any such failure to warn theory, because that theory would necessarily apply to all PT6A-67B engines, not "just this one." Nonetheless, PWC will address Plaintiffs' response arguments on this issue as follows. Plaintiffs argue that there was substantial evidence to support a verdict based on PWC's failure to provide adequate warnings or instructions, but again fail to show how the evidence they presented on this issue outweighed PWC's evidence to the contrary. Plaintiffs actually do not even address this issue but merely argue that the Pilatus documents prove that PWC knew the engine was "dangerous and defective, yet . . . did nothing to warn pilots about those defects," and "failed to provide adequate warnings and instructions about the known unreliability of the PT6A-67B engine." The Pilatus documents simply do not provide a legally sufficient basis for the jury to find that the engine was "dangerous and defective" and Plaintiffs did not present any evidence to show that PWC should somehow have told pilots about these documents or that the engine was "unreliable" ­ which it was not. Plaintiffs' arguments in their response also fail to address the issue of causation on their failure to warn theory and fail to point

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out any evidence whatsoever that any claimed failure to warn proximately caused the loss of this aircraft in this accident. In fact, there is no such evidence in the record in this case. Plaintiffs' argument in response to PWC's Rule 59 motion does not really address or even relate to the actual instruction the jury was given regarding warnings and instructions in this case. Instruction No. 3.6, "Defective" ­ Inadequate Warnings or Instructions, instructed the jury in part that: A product not otherwise defective becomes defective and unreasonably dangerous if adequate warnings or instructions are not provided. To be adequate, the warnings or instructions for use must inform the ordinary user of any specific risk of harm that may be involved in any intended or reasonably expected use, or in any failure properly to follow instructions when using the product for any intended or reasonably expected use. (emphasis added). Contrary to Plaintiffs' argument in response to PWC's Rule 59 motion, they did not present any evidence to show that PWC did not provide adequate warnings and instructions other than the opinion testimony of their expert William Edwards. Mr. Edwards' opinions focused on information he believed should have been in the PC-12 flight manual that were not in the manual. Tr. 138:6-10. Mr. Edwards recognized that the PC-12 flight manual was written by Pilatus rather than PWC. Tr. 140:13-16. Mr. Edwards' opinions with regard to PWC only addressed the engine shutdown procedures and the possibility and consequences of the power turbine rotating components coming in contact with the stationary shroud. He did not testify that PWC should have told pilots that the engine was "unreliable, dangerous and defective." Mr. Edwards only testified, with regard to PWC, that the Pilatus PC-12 flight manual should have (1) contained a requirement to let the engine cool down for two minutes before shutting it down if that was a requirement specified by PWC ­ which it was not, and (2) warned

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that the engine can seize as the result of a normal shutdown preventing a restart ­ which it cannot. PWC has addressed Mr. Edwards' testimony in detail in its Rule 59 motion, and also shown that Plaintiffs did not present any evidence on causation ­ to show that pilot Smith would have done anything differently if any additional instructions or warnings would have been included in the manual - and will not repeat those arguments in this reply. Plaintiffs have not presented any argument in their response that specifically addresses these issues and have not cited any additional evidence they presented that specifically indicated what if anything else PWC should have done to provide adequate instructions and warnings to pilots, and particularly not with respect to the specific engine in this case ­ "there's nothing wrong with all of these engines [that would require additional warnings or instructions] ­ just this one." The jury's verdict, therefore, if based on a failure of PWC to provide adequate warnings and instructions, is clearly against the weight of the evidence. CONCLUSION PWC has shown in its Rule 50 and 59 motions that a verdict based on any of the theories of liability argued by Plaintiffs in closing is not supported by legally sufficient evidence and is, at the very least, clearly against the weight of the evidence. Plaintiffs have not addressed most of PWC's arguments in their response to the Rule 50 and 59 motions, and have not shown legally sufficient evidence to support any of their theories of liability, or how evidence they presented outweighed the Defendants' evidence with respect to any of these theories. PWC's Rule 50(b) motion is procedurally proper and Plaintiffs have not shown why PWC's Rule 50(b) motion or alternative Rule 59 motion should not be granted.

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WHEREFORE, Defendant Pratt & Whitney Canada Corp. respectfully requests that the Court enter judgment in its favor as a matter of law under Rule 50(b) or order a new trial under Rule 59. Dated this 6th day of September 2007.

s/ Thomas J. Byrne Thomas J. Byrne William White BYRNE, KIELY & WHITE, L.L.P. 1120 Lincoln Street, Suite 1300 Denver, Colorado 80203 Telephone: (303) 861-5511 E-mail: [email protected] E-mail: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of September 2007 I caused the foregoing DEFENDANT PRATT & WHITNEY CANADA'S REPLY TO RESPONSE TO MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR NEW TRIAL to be served by electronically filing the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI [email protected] Robert B. Schultz, Esq. LAW OFFICES OF ROBERT B. SCHULTZ [email protected]

s/ Kevin R. Kennedy

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