Free Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-cv-2056-JLK

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.

PRETRIAL ORDER

I. DATE OF CONFERENCE

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The Pretrial Conference was held on November 16, 2006.

II. JURISDICTION As to the claims asserted by plaintiffs United States Aviation Underwriters, Inc. and Jeflyn Aviation, Inc. d/b/a Access Air, plaintiffs contend that subject matter jurisdiction is based on diversity of citizenship (28 U.S.C. § 1332(a).) On these claims, the amount in controversy exceeds $75,000.00. The defendants allege that the Court must exercise admiralty jurisdiction as to these claims. (28 U.S.C. § 1333.) The plaintiffs deny that the Court's exercise of admiralty jurisdiction is appropriate in this case. As to the claims asserted by plaintiff Paul Leadabrand (where the amount in controversy does not exceed $75,000.00), subject matter jurisdiction is based on supplemental jurisdiction (28 U.S.C. § 1367(a).) The defendants contend that the court has admiralty jurisdiction over this case pursuant to 28 U.S.C. § 1333 and that admiralty law applies to all the claims of the plaintiffs in this case.

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III. CLAIMS AND DEFENSES

A. 1.

Plaintiffs'statement: General Background: This is a product liability case. On July 8, 2001, a nearly new single-engine airplane with less than 400 hours of

use was flying off the eastern coast of Russia when the pilot felt strange vibrations and heard unusual "grinding" and "popping" sounds coming from the airplane's only engine. The pilot also noticed that the engine's internal temperature was rapidly increasing to the point where it could cause a life-threatening fire or uncontained failure of the engine. Relying on his skill and judgment as a professional pilot with tens of thousands of hours of experience, the pilot decided that immediate action was necessary to prevent the engine from destroying itself, which could lead to a catastrophic loss of control and an ensuing loss of life and property. The pilot shut down the engine in accordance with the airplane manufacturer's published procedures, and the pilot noticed that the propeller came to a "sudden and grinding" halt. As the airplane descended toward the ocean as a powerless glider, the pilot attempted to restart the engine in accordance with the airplane manufacturer's published procedures. During the attempted restart, the pilot saw that the engine's internal temperatures were again rapidly increasing, however, the propeller was frozen in
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place and would not rotate. When he realized that the engine would not restart (i.e., the propeller would not rotate), the pilot aborted the attempted restart to avoid a fire or uncontained failure, and prepared to ditch the powerless airplane in the ocean. Unfortunately for the pilot, this particular model airplane was not made to land in the water, and the airplane manufacturer failed to publish a procedure for ditching the airplane in the water. Without any guidance from the airplane manufacturer, and with precious little time to spare as the powerless airplane broke through the clouds as it was hurtling toward the ocean, the quick-thinking pilot again relied on his professional experience and judgment to improvise and execute a picture-perfect landing on the back side of a large wave. After the airplane came to rest in the water, the pilot and his three passengers quickly exited the airplane, and jumped into a floating life raft. As the life raft drifted away from the airplane, the pilot and his passengers noticed the airplane was taking on water and beginning to sink. After fifteen hours or so in the life raft, the pilot and his passengers were eventually rescued by a passing freighter, and safely transported by helicopter to the Russian mainland. Although no one was seriously injured during the ditching (thanks mostly to the heroic actions of the professional pilot), the airplane was never seen again, and it presumably sank to the bottom of the ocean. 2. a. Parties: Plaintiffs: There are three plaintiffs in this lawsuit.

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i.

Plaintiff Jeflyn Aviation, Inc. d/b/a Access Air ("Access Air") is the company that leased and operated the airplane.

ii.

Access Air presented a claim to its insurance company for the loss of the airplane, and that claim was paid by the second plaintiff, United States Aviation Underwriters, Inc. ("USAU.")

iii.

The third plaintiff is Paul Leadabrand, a former owner and employee of Access Air.

b.

Relief Sought by Plaintiffs:

i.

USAU and Access Air jointly seek to recover damages for the fair market value of the airplane when the loss occurred. The parties have stipulated that this fair market value was $3.1 million.

ii.

USAU and Access Air also seek to recover prejudgment interest at the rate of 8% per annum compounded annually from the date of the ditching (July 8, 2001). (C.R.S. § 5-12-102(2); Federal Inc. Co. v. Ferrellgas, Inc., 961 P.2d 511 (Colo.App. 1997); Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo.App. 1998); Loughridge v. Chiles Power Supply Co., Inc., 431 F.3d 1268 (10th Cir. (D. Colo.) 2005).) This prejudgment interest has already exceeded $1.5 million.

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iii.

Plaintiff Paul Leadabrand seeks to recover damages for his own personal property that was on the airplane when it sank (valued at $601.14), and the $2,422.21 Mr. Leadabrand paid for the pilot's airplane ticket to return to the U.S. from Russia.

c.

Defendants: The three plaintiffs (USAU, Access Air, and Mr. Leadabrand) have sued three

defendants.

i.

The first defendant is Pratt & Whitney Canada, Inc. ("Pratt & Whitney"), a Canadian company that designed, manufactured, and sold the airplane's model PT6A-67B engine.

ii.

The second defendant is Pilatus Aircraft Ltd. ("Pilatus Switzerland"), a Swiss company that purchased and installed the Pratt & Whitney PT6A67B engine in the model PC-12 airplane when the airplane was manufactured.

iii.

The third defendant is Pilatus Business Aircraft, Ltd. ("Pilatus Colorado"), a Colorado company (and wholly-owned subsidiary of Pilatus Switzerland) that purchased the imported PC-12 airplane from its parent company (Pilatus Switzerland), and then sold the same airplane in the U.S.
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3.

Plaintiffs' Claims: The plaintiffs' complaint alleges alternative claims for strict product liability and

negligence. The plaintiffs are abandoning their negligence claims, and they will proceed to trial only on the claim of strict product liability. A preponderance of the evidence will prove that defendants are liable because the PT6A-67B engine and the PC-12 airplane were both defective and unreasonably dangerous, and caused the loss of the airplane. Specifically:

a.

Manufacturers: All three defendants are "manufacturers" as defined in the

Colorado Product Liability Act. (C.R.S. § 13-21-401(1).) Defendant Pratt & Whitney manufactured the engine. Defendant Pilatus Switzerland assembled and sold the airplane and engine. Defendant Pilatus Colorado sold the airplane and engine, and is deemed to be a "manufacturer" because it is "is owned in whole or significant part by the manufacturer," Pilatus Switzerland. (C.R.S. § 13-21-401(1).)

b.

Defects - Pilot's Expectations: The airplane and engine both created a risk of harm

to persons or property that would not ordinarily be expected by a pilot. (Colorado Jury Instructions, 4th - Civil, 14:3.) Specifically, a pilot would not ordinarily expect that:

i.

The nearly new single-engine airplane with less than 400 hours of use,

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equipped with an equally new engine, would suddenly and without warning exhibit in-flight symptoms of a potentially catastrophic internal failure (unusual vibrations, "popping" and "grinding" sounds," drastically escalating internal temperatures, and a frozen propeller);

ii.

It would be impossible to restart the engine after it was properly shut down in flight in accordance with the airplane manufacturer's published procedures;

iii.

One or more of the engine's power turbine blades would fail during flight;

iv.

The mere ingestion of ice or other debris would cause the engine to exhibit symptoms of a catastrophic internal engine failure;

v.

The manipulation of the MOR and/or PCL levers in accordance with factory-approved training and published operating instructions would exacerbate, or cause the engine to exhibit, symptoms that mimicked the symptoms a pilot would observe in the event of a catastrophic failure of an internal engine component; and

vi.

The airplane and engine manufacturers secretly harbored the knowledge

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that this single-engine airplane (advertised as the "Rolex" of airplanes) was so shoddy in design and construction that it was unsafe to fly over the water.

c.

Defects - Failure to Warn: The defendants failed to provide adequate warnings

and instructions for the use of their respective products. (Colorado Jury Instructions, 4th - Civil, 14:4.) Specifically, the defendants failed to warn or instruct the pilot that:

i. The model PT6A-67B engine installed in this single-engine PC-12 airplane had an established in-flight shut down (IFSD) rate that was extraordinarily high. With regard to the engine's high IFSD rate, the following information was never provided to the pilot of the airplane. If this information had been disclosed, then the pilot would not have flown this particular mission:

·

According to a letter dated August 13, 2001 from the engine manufacturer's own President and Chief Executive Officer, the IFSD rate for all model PT6A engines is only 1 per 250,000 flight hours. According to the airplane manufacturer, the IFSD rate for the model PT6A-67B engine installed in this PC-12 airplane is 21 per 1,000,000 flight hours - an IFSD rate that is more than 5 times higher than the IFSD rate for all similar model PT6A engines.
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·

On September 15, 1998, the airplane manufacturer told the engine manufacturer that they needed to jointly adopt a "Damage Control" plan to avoid the loss of sales caused by the high IFSD rate. The engine manufacturer agreed with this "damage control" proposal on September 22, 1998;

·

On September 18, 1998, the airplane manufacturer discussed the high rate of failures of the PT6A-67B engine, and decided that: "For marketing purposes, we should question the pilot, the maintenance and anything which is not engine or airframe related. if engine or installation are in question, the PC-12 is dead!" The engine

·

In November, 1998, the airplane manufacturer told the engine manufacturer that it was "very disturbed by the amount of engine problems we are experiencing on the PC-12." On December 14, 1998, the airplane manufacturer informed the engine manufacturer about its "gravest concerns regarding reduced quality of Pratt & Whitney Canada products. Your quality index has never been so low as it is today." The airplane manufacturer also reported that the unreliability of the engines was so
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pervasive that it was threatening :the existence of" the airplane manufacturer as a company, and "current experience ... no longer supports" the claim that the engine is a reliable product. · On July 27, 2001, the airplane manufacturer again discussed the unreliability of the engine with the engine manufacturer, and stated: "Collectively these issues present a scenario for the PC-12 and single engine reliability which is approaching damaging proportions. The worldwide PC-12 market is aware of all these circumstances and will no longer accept the PC-12 as a reliable and safe aircraft just because it is equipped with a PT6 engine."

ii. The airplane's flight manual did not disclose the following facts and information. If this information had been disclosed, then the pilot would not have taken certain actions, or would have taken other actions, so as to avoid the ditching of the airplane:

·

According to the defendants, the engine should not be shut down when the pilot senses unusually strong vibrations, hears "popping" and "grinding" noises, and sees the engine's internal temperatures spike dramatically.

·

According to the defendants, the pilot should not manipulate the MOR or PCL levers in these circumstances;

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·

According to the defendants, the pilot must wait for several minutes after shutting down the engine before attempting a restart;

·

According to the defendants, the pilot should continue to attempt to restart the engine even when the engine's internal temperatures are increasing while the propeller is not rotating;

·

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
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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 ... ");

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
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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 praised as a hero by the passengers and the U.S. government, did nothing unreasonable to cause the loss of the airplane. "A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances." (Colorado Jury Instructions, 4th - Civil, 9:11.)

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B.

Defendants' Statement:

1. General Background. Pilatus and Pratt & Whitney deny all the plaintiffs'allegations that the aircraft or engine were defective or unreasonably dangerous. Both defendants contend that this incident and the loss of this aircraft were solely caused by the negligent operation of the aircraft by Access Air and its employee pilot, Mike Smith. Access Air negligently operated the aircraft by its failure to comply with the Federal Aviation Regulations governing this flight. Specifically, Access Air intentionally operated the aircraft outside its allowable area of operations and operated the aircraft over the ocean beyond the capacity of the aircraft to glide to a safe landing in the event of an engine failure, in violation of applicable Federal Aviation Regulations. The defendants further contend that Access Air and its employee pilot, Mike Smith, were negligent in failing to properly diagnose an otherwise manageable engine condition, and then taking actions whichnegligently causeding an engine

overtemperature and compressor stalls in the engine, and then negligently, unnecessarily and unforeseeably shutting down the engine unnecessarily while the aircraft was over the ocean and negligently failing to complete the engine restart procedure. The defendants contend that the incident was solely caused by the negligence of Access Air and its employee pilot, Mike Smith, and by their unforeseeable misuse of the aircraft and engine.

Access Air is an Air Carrier certified by the FAA which held itself out on the Internet
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and other places as willing and able to carry passengers and cargo for hire. In January 2001, Arinori Yamagata contacted Access Air through its web site to request a quote for a round the world charter flight specifically requesting a PC-12 aircraft. After negotiations the parties entered into a contract for the charter flight. At all times, Mr. Yamagata expected and believed he was chartering Access Air as an Air Carrier. There was no discussion of the fact that this flight was outside the geographic area in which Access Air was authorized to conduct operations. At no time was there any discussion of this flight being anything other than a charter flight. At no time was there any discussion of the fact that it was illegal for Access Air to operate this around the world charter flight. The FAA sets higher standards for commercial operators such as Access Air to protect the safety of the public. One such standard is a restriction from operations in any

geographic area for which the FAA has not found that the operator to be competent through experience, knowledge and equipment. Access Air' willful and intentional violation of s these safety regulations was a direct cause of the loss of the airplane. At the time of the incident, the airplane was flying at 27,000 feet over the Sea of Okhotsk on a leg from Hokadate Japan to Magadan Russia. Using good pilot judgment, it would have been prudent to plan the route over or near land to the extent possible. Had the pilot planned the route of flight a few degrees to the east, at the time of the incident, he would have been over or near at least three airports to which he could have glided to a safe landing without damage to the airplane. This poor airmanship and planning was a cause of the loss of the airplane.
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According to his statement, the Pilot Smith' first indication of a problem was engine s vibration and a whining noise just in front of the fire wall, and within a few seconds the engine began to surge. A passenger seated in the co-pilot position, Yamagata, who was also a licensed pilot, described the vibrations as mild. This was not an emergency requiring immediate action. A prudent pilot would analyze all the engine instruments to diagnose the problem. But instead of analyzing the engine instruments, Pilot Smith immediately began manipulating controls. He first advanced the Power Control Lever (PCL) but claims he felt no change in the engine noise. He then advanced the Manual Over Ride (MOR) lever, which bypasses the PCL' function allowing the pilot to manually control the amount of s fuel fed to the engine. Pilot Smith was taught and should have known as a reasonably prudent pilot that monitoring engine temperature is critical when using the MOR to avoid causing an engine overtemp. In fact, the Pilot Smith did not monitor the engine temperature while moving the MOR. This negligence caused the engine to reach an excessively high temperature. But a high engine temperature for a brief time would not necessarily damage the engine. In fact, Smith retarded the MOR allowing the temperature to decrease to near normal When the engine temperature peaked the engine made popping noises which indicated compressor stalls induced by Mr. Smith' negligent operation of the Power s Control Lever and Manual Override lever. The pilot then unexpectedly and unforeseeably shut down the engine. Mr. Smith claimed that the propeller came to a sudden grinding stop when he shut down the engine. This would reasonable be expected when a very hot engine is shut down suddenly. This entire sequence of events lasted less than 30 seconds.
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Pilot Smith claims he tried to restart the engine but admits that he prematurely aborted the restart procedure. He said tThere was nothing abnormal about the restart except that the propeller did not start to rotate. Had he completed the restart procedure, the engine probably would have started and the accident would not have occurred. Neither the momentary engine overtemperature nor the compressor stalls nor the sudden engine shut down should have caused sufficient damage to prevent the restart. It is important to note that before it was shut down the engine was producing power. The engine never failed. It was shut down by the pilot. Indeed the engine actually restarted but was shut down a second time before the propeller had an opportunity to rotate. Basic airmanship and good piloting practices, as well as common sense and selfpreservation, dictate that a reasonably prudent and competent pilot should not shut down the engine in flight on a single engine airplane unless absolutely necessary, especially over the ocean. This simple truth need not be written in a book or taught. The PC-12 airplane flight manual lists only two instances where it is proper to shut down the engine. These are excessive propeller vibration or fire. Neither of these occurred.

2. Defenses.

a. Defendants contend that the negligence of Access Air and its employee, pilot Smith, caused the accident, and that their negligence comparatively bars or reduces plaintiffs' damages.
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b.

At the time the subject aircraft and engine were sold, they conformed to the

state of the art and are presumed not defective. C.R.S. §13-21-403(b).

c.

At the time the subject aircraft and engine were sold, they complied with all

applicable government regulations and standards and are presumed not defective. C.R.S. §13-21-403(b).

d.

The subject aircraft was used and or misused in an unforeseeable manner after

it left the defendant' control. s

e.

The accident and/or damages alleged, if any, were proximately caused by

unforeseeable intervening and superceding causes for which the defendants are not liable.

f.

The plaintiffs are barred from recovery for the loss of the aircraft by the

economic loss rule either under Admiralty law, Idaho law or Colorado law.

g.

Plaintiff Leadabrand is not the proper or real party in interest and has no

compensable damages, because he has been fully compensated for all his damages by USAU and Access Air.

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h.

Plaintiff Access Air is not a proper party and is not the real party in interest to

pursue plaintiffs'claim for the loss of the aircraft because it did not own the aircraft and because the full amount of the fair market value of the aircraft has been paid by plaintiff USAU, who is fully subrogated to any rights of recovery for the loss of the aircraft.

i.

Plaintiff Leadabrand' damages, is any, must be reduced in their entirety by s

collateral source payments he has received from USAU and Access Air.

IV. STIPULATIONS

1.

The airplane was a model PC-12/45, serial number 356, registration number N660NR.

2.

The airplane was designed by Pilatus Switzerland which manufactured it in Switzerland in 2000.

3.

The airplane was manufactured with a single model PT6A-67B engine, serial number PCE-PR0217.

4.

The engine was designed and manufactured by Pratt & Whitney which sold the engine to Pilatus Switzerland.

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5.

Pilatus Switzerland installed the engine in the airplane.

6.

Pilatus Switzerland sold the airplane to Pilatus Colorado in 2000.

7.

Pilatus Colorado is a wholly-owned subsidiary of Pilatus Switzerland.

8.

Pilatus Colorado sold the airplane to Western Aircraft in December 2000. Western Aircraft, a company located in Boise, Idaho, is not a party to this lawsuit.

9.

Western Aircraft sold the airplane to DJS Aviation, LLC in December 2000. DJS Aviation, a company located in Boise, Idaho, is not a party to this lawsuit.

10.

DJS Aviation leased the airplane to Access Air, a company located in Boise, Idaho, in December, 2000.

11.

The incident occurred on July 8, 2001.

12.

At the time of the incident, the aircraft was owned by DJS Aviation, LLC.

13.

At the time of the incident, the aircraft was insured under a policy of insurance

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issued by plaintiff United States Aviation Underwriters, Inc., which provided coverage for any damage to or the loss of the aircraft.

14.

At the time of the incident, the airplane was flown by pilot Mike Smith, an employee of Access Air acting in the course and scope of his employment. Mr. Smith is not a party to this lawsuit.

15.

At the time of the incident, there were three passengers on board, Mr. Katsuyoshi Ida, Mr. Ari Yamagata and Ms. Haruko Kikukawa. These three passengers, who all reside in Japan, are not parties to this lawsuit.

16.

At the time of the incident, the airplane had less than 400 hours of total flight time.

17.

At the time of the incident, the reasonable fair market value of the airplane was $3.1 million ($3,100,000.00.)

18.

After the incident, plaintiff United States Aviation Underwriters, Inc. paid Access Air and DJS Aviation the full agreed amount for the loss of the aircraft. DJS Aviation received the full amount of this payment as the owner of the aircraft.

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19.

The airplane was never recovered.

20.

Pratt & Whitney is engaged in the business of designing, manufacturing, assembling, testing, and selling airplane engines.

21.

Pilatus Switzerland is engaged in the business of designing, manufacturing, assembling, testing, and selling airplanes.

22.

Pilatus Colorado is engaged in the business of selling airplanes manufactured by Pilatus Switzerland.

23.

The airplane and engine were expected to reach plaintiffs without substantial change in the condition in which they were designed, manufactured, assembled, tested, and sold.

24.

The airplane and engine did reach plaintiffs without substantial change in the condition in which they were designed, manufactured, assembled, tested, and sold.

25.

Plaintiffs are persons reasonably expected to use or be affected by the airplane and engine.

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26.

The Federal Aviation Administration, usually called the FAA, issues regulations called Federal Aviation Regulations or FARs that prescribe safety standards that all manufacturers, pilots and operators are required by law to comply with.

27.

Certain FARs are applicable to the design, manufacture and testing of aircraft such as the PC-12/45 and its engine.

28.

Before an aircraft such as the PC-12/45 may be sold in the U.S., the aircraft and engine manufacturers must be issued Type Certificates and the specific aircraft must be issued an Airworthiness Certificate.

29.

An aircraft or engine manufacturer is entitled to a Type Certificate if the FAA finds upon examination of the aircraft or engine design that the design complies with all applicable FARs and that no feature or characteristic makes the aircraft or engine unsafe.

30.

An aircraft may be issued an Airworthiness Certificate if the FAA finds that the aircraft conforms to its approved design including the engine' approved design s and is in condition for safe operation.

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31.

Pilatus Switzerland is the holder of a Type Certificate for the PC-12/45 issued by the FAA.

32.

Pratt and Whitney is the holder of a Type Certificate for the PT6A-67B engine issued by the FAA.

33.

Just prior to reaching the plaintiffs, the subject PC-12/45 including its engine was issued an Airworthiness Certificate.

V PENDING MOTIONS

None presently, although defendants will file a motion regarding the Court's exercise of admiralty jurisdiction and the application of admiralty law. ///

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VI. WITNESSES

A.

Plaintiffs:

1. Witnesses who will be present at trial:

1.

Mike Smith (percipient and expert witness) Boise, Idaho Pilot of N660NR (accident aircraft) W. Jeffrey Edwards (expert witness) Chesterfield, Missouri Accident investigation Paul Leadabrand (employee expert witness) Boise, Idaho Plaintiff; former owner/employee of Access Air David S. Rupert (expert witness) Canada Mechanical engineer / aircraft engines Lawrence A. (Larry) Scanlan, Ph.D. (expert witness) Manhattan Beach, California Human factors

2.

3.

4.

5.

2. Witnesses who may be present at trial if the need arises: 1. Dietmar Bretscher (by deposition)
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Switzerland Pilatus Switzerland 30(b)(6) designee 2. James Hutchens (expert witness) Boise, Idaho Owner of plaintiff Access Air Katsuyoshi Ida (by deposition) Japan Passenger on accident aircraft Haruko Kikukawa (by deposition) Japan Passenger on accident aircraft Ron Ortuso (by deposition) Canada Pratt & Whitney 30(b)(6) designee Jean Pelletier (by deposition) Canada Pratt & Whitney 30(b)(6) designee John Stowe Los Angeles, California Authentication/foundation for applicable regulations Chet Waite (by deposition) Boise, Idaho FAA witness Arinori Yamagata (by deposition) Japan Passenger on accident aircraft

3.

4.

5.

6.

7.

8.

9.

B.

Defendants:

1. Witnesses who will be present at trial:
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1.

Dietmar Bretscher Switzerland Peter Duncan Broomfield, CO Ron Ortuso Canada Barry Schiff Los Angeles, CA Greg Feith Denver, CO

2.

3.

4.

5.

2. Witnesses who may be present at trial if the need arises:

1.

Kevin Hooker Broomfield, Colorado Pilatus Business Aircraft Perry Schulz Broomfield, Colorado Pilatus Business Aircraft Jeffrey Elliott Broomfield, Colorado Pilatus Business Aircraft Martha Geisshuesler Broomfield, Colorado
29

2.

3.

4.

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Pilatus Business Aircraft 5. Chet Waite (by deposition) Boise, Idaho FAA witness Don Simplot (by deposition) Boise, Idaho (owner/lessor of accident airplane) Al Hoyt (by deposition) Boise, Idaho (intermediate buyer/seller of accident aircraft/maintenance) Brian C. Rehberg (by deposition) Boise, Idaho (intermediate buyer/seller of accident aircraft/maintenance) Arinori Yamagata (by deposition) Japan (passenger on accident aircraft) Katsuyoshi Ida (by deposition) Japan (passenger on accident aircraft)

6.

7.

8.

9.

10.

11.

Haruko Kikukawa (by deposition) Japan (passenger on accident aircraft) James Hutchens (by deposition) Boise, Idaho (owner of plaintiff Access Air) Paul Leadabrand (by deposition)
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12.

13.

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Boise, Idaho (plaintiff; owner/employee of Access Air) 14. Mike Smith (by deposition) Boise, Idaho Pilot of N660NR (accident aircraft) Jean Pelletier Canada Ken Steiner or Kelly McLendon Denver, Colorado Plaintiff USAU company representative

15.

16.

VII. EXHIBITS

A.

Plaintiffs' Exhibits:

1. 2. 2. 4. 5. 6. 7. 8.

PC-12 diagram (front right ¾ view) PC-12 "Features" diagram PC-12 physical dimensions diagram PC-12 cockpit photo Area map Area map Area map, route of flight PC-12 Cockpit Photo (Duncan Exh. 271)

9. 10. 11.

PC-12 Annunciator Panel Lights Chart (Smith Exh. 42) PC-12 EIS Caution and Warning Chart (Duncan Exh. 273) Pilatus POH Sec. 3 (Duncan Exh. 274)
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12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

Pilatus POH Sec. 7 (ACS000000401-410) PC-12 Short Checklist (Smith Exh. 41) PC-12 Emergency Procedures (Smith Exh. 44) PC-12 Normal Procedures (Smith Exh. 43) PC-12 Reference Manual, Chap. 2, Powerplant (ACS000000421-487) PC-12 Reference Manual, Chap. 10, Ice Protection (ACS000000490-509) PT6A-67B cross-section (ACS000000308) PT6A-67B cross-section (Bretscher Exh. 144) PT6A-67B cross-section (Ortuso Exh. 81) PT6A-67B cross-section (Ortuso Exh. 88) PT6A Pilot Familiarization Manual (Edwards Exh. 239) Memorandum of Understanding, 2/23/01 (Leadabrand Exh. 7) Around the World Schedule #7, 5/17/01 (ACS000000975-976) Email, Smith to Access Air, 6/14/01 (ACS000000999-1001) Email, Smith to Access Air, 6/14/01 (ACS000001002-1003) Pilatus memorandum, 6/18/01 (PA002758) Email, Smith to Access Air, 6/19/01 (ACS000001004-1011) Email, Smith to Access Air, 6/25/01 (ACS000001014-1022) Email, Smith to Access Air, 6/25/01 (ACS000001023-1026) Email, Smith to Access Air, 6/26/01 (ACS000001027-1033) Email, Smith to Access Air, 7/3/01 (ACS000001034-1035) Access Air Crew Itinerary, 7/8/01 (Leadabrand Exh. 5) Trip itinerary (ACS000000310)

35.

Distress Message (ACS000221)

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36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

Correspondence, Pilatus to Smith, 7/13/01 (Bretscher Exh. 97) Memorandum, Pilatus, 8/30/01 (ACS000001128-1129) Correspondence, Pilatus to Kodani, 9/12/01 (Bretscher Exh. 100) Memorandum, Pilatus, 6/26/01 (ACS000001149) Email, Yamagata to Smith, 3/9/02 (ACS000072) Email, Yamagata to Smith, 4/16/02 (ACS000001166) Citation for Valor (Smith Exh. 52) Liferaft/Aircraft configuration diagrams (ACS000076) Photo, Boise (ACS000121-125) Photo, Airport (ACS000116) Photo, "Welcome Home" (ACS000110) Statement (Smith Exh. 48) Chronology (Smith Exh. 47) Status PC-12 N660NR Ditching (PA002782) Answers from Mike Smith (E-mail) (Leadabrand Exh. 10) Area maps (ACS000000374-376) Pilatus Accident Report Form (PA002124) Email, Trautmann to McCreary, 7/11/01 (PA002800) Email, Jackson to McCreary, 7/12/01 (Bretscher Exh. 96) Email, Jackson to Wright, 7/12/01 (PWC00040-43) Email, McCreary to Kofman, 7/18/01 (Ortuso Exh. 84) Pilatus Memorandum, 8/30/01 (PA002203-2204) Pilatus Memorandum, 9/26/01 (Hoyt Exh. 38) Pilatus Memorandum, 4/24/02 (PA002701) Pilatus Memorandum, 5/17/02 (PA002209-2210)

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61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85.

FAR 135 Check Ride Form (Smith Exh. 53) SIMCOM Pilot Proficiency Certificate (ACS000000314) Invoice, Pilatus/PILBAL (Hooker Exh. 67) Purchase Agreement, PILBAL/Western (Hooker Exh. 69) Purchase Agreement, Western/Simplot (Simplot Exh. 144) Lease Agreement, Simplot/Access Air (Hutchens Exh. 16; Simplot Exh. 146) Bills of Sale (Simplot Exh. 150) Aircraft Delivery and Acceptance Receipt (Simplot Exh. 148) Aircraft LogBook (Hoyt Exh. 24) Aircraft Inspection Status (Hoyt Exh. 35; Leadabrand Exh. 12) Oil sample reports (PWC00385-390) Coordination Memorandum, 6/16/98 (Bretscher Exh. 101) Coordination Memorandum, 6/16/98 (Bretscher Exh. 113) Pilatus Memorandum, 9/15/98 (Bretscher Exh. 102) Email, Masefield to Trautmann, 9/18/98 (Bretscher Exh. 103) PWC Memorandum, 9/22/98 (Bretscher Exh. 104) Pilatus Memorandum, 9/14/98 (Bretscher Exh. 105) Coordination Memorandum, 3/29/01 (PA003287-3288) Correspondence, Pilatus to PWC, 7/27/01 (Bretscher Exh. 106) Correspondence, PWC to Pilatus, 8/13/01 (Bretscher Exh. 107) Senior Mngmnt. Meeting Chart, 10/1/01 (Bretscher Exh. 108) Coordination Memorandum, 12/13/01 (Bretscher Exh. 109) PWC "The Powerplant of Choice" (PA002263-2264) PT6A-67B IFSD table (PA002502-05, PWC00459-62) PT6A-67B BUR table (Ortuso Exh. 86)

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86.

Senior Mngmnt. Meeting table (PA003076)

87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

PT6A-67B Issues, 12/18/98 (PA002266-2271) PT6A-67B Issues, 1/25/99 (PA002594-99) PT6A-67B Issues, 5/12/99 (PA002584-90) PT6A-67B Issues, 6/28/99 (PA002571-77) PT6A-67B Issues, 7/20/99 (PA002561-69) PT6A-67B Issues, 9/29/99 (PA002551-59) Engine Chargeable Removals (PA002542-49) PT6A-67B IFSD table (PWC00429-430) PT6A-67B IFSD table (PWC01564-1566) PT6A-67B Basic and Unplanned table (Ortuso Exh. 87) Aircraft Technical Logs, Power Section (ACS000000900-904) Aircraft Technical Logs, Gas Generator (ACS000000905-911) PWC SB No. 14369 (Bretscher Exh. 143; Ortuso Exh. 176)

100. PWC SB No. 14259R1 (ACS000004089-4099) 101. Resume, Ken Dufour 102. Valuation Report, Ken Dufour 103. Paul Leadabrand Summary of Damages (F.R.E. 1006) (Leadabrand Exh. 1) 104. Deposition Notice, Pilatus 30-b-6 (Bretscher Exh. 89) 105. Deposition Notice, Pilatus 30-b-6 (Bretscher Exh. 142) 106. Deposition Notice, PWC 30-b-6 (Ortuso Exh. 175) 107. Deposition Notice, PWC 30-b-6 (Ortuso Exh. 80) 108. Resume, Jeff Edwards 109. Chart, Summary of Assignments and Opinions (Edwards Exh. 241)

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110. Resume, David Rupert (Rupert Exh. 212) 111. Summary (F.R.E. 1006), Blade Failure SDRs (Rupert Exhs. 220 and 221) 112. Resume, Lawrence Scanlan (Scanlan Exh. 200)

113. 14 C.F.R. § 23.903(e)(3) 114. 14 C.F.R. § 23.1581(a) 115. 14 C.F.R. § 23.1583(h) 116. 14 C.F.R. § 23.1583(m) 117. 14 C.F.R. § 23.1585(a)(4) 118. 14 C.F.R. § 23.1585(j) 119. ICAO Annex 6, Part 1, Chapter 5.1.2 120. Disk model (3-D) 121. Interrogatories to PWC, Set One 122. PWC Responses to Interrogatories, Set One 123 . Interrogatories to Pilatus Switzerland, Set One 124. Pilatus Switzerland Responses to Interrogatories, Set One 125. Interrogatories to Pilatus Colorado, Set One 126. Pilatus Colorado Responses to Interrogatories, Set One 127. Interrogatories to PWC, Set Two 128. PWC Responses to Interrogatories, Set Two 129. Interrogatories to Pilatus Switzerland, Set Two 130. Pilatus Switzerland Responses to Interrogatories, Set Two 131. Interrogatories to Pilatus Colorado, Set Two 132. Pilatus Colorado Responses to Interrogatories, Set Two

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B.

Defendants' Exhibits:

A. B. C.

Email Hutchens to Yamagata 1/17/02 Charter Quote 1/17/01 Email Leadabrand to Yamgata 1/19/01

D. E. F. G. H. I. J K. L. M. N. O. P. Q. R. S. T. U. V.

Email Leadabrand to Yamagata 1/26/01 Email Yamagata to Leadabrand 1/29/01 Email Leadabrand to Yamagata 2/2/01 Email Leadabrand to Yamagata 2/13/01 Email Leadabrand to Yamagata 3/7/01 Email Yamagata to Leadabrand 3/7/01 Email Yamagata to Leadabrand 3/12/01 Email Leadabrand to Yamagata 3/14/01 Plaintiffs'Responses to Pilatus Interrogatories Set One Plaintiffs'Responses to Pilatus Interrogatories Set Two Plaintiffs'Responses to Pratt & Whitney Interrogatories Set One Warranty Activation Transfer by DJS Aviation Pilatus PC-12 New Aircraft Limited Warranty Skyplan Flight Plan and Weather Smith NASA Report Email Smith to Ritter to Smith 3/7/02 Access Air Operations Manual 14 CFR § 119.5(j) 14 CFR § 135.183

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W. X. Y.

14 CFR § 119.5(a) 14 CFR § 119.7 Pilot Information Manual Smith Exhibit 124.

A1. 14 CFR § 119.23(b) A2. DOD Flight Information Publication Enroute Eastern Europe and Asia 17 Mar 2005 A3. NOAA GNC-5 Chart Dated 25 June 1987. A4. DMAAC ONC E-10 Edition 5.

A5. DMAAC ONC F-10, Edition 10 A6. PC-12 Cockpit mock up. A7. PC-12 certification documents. A8. GPS database information for the accident area. A9. FAA Type Certificate Number E26NE. A10. Cutaway Model of a PT6A-67 Engine. A11. Exemplar PT6A-67B Power Turbine Wheel. A12. Exemplar PT6A-67B Power Turbine Blade. A13. Answers of Pilot Smith to NTSB Questions (Deposition Exhibit 10). A14. 7-9-01 Yahoo/Reuters Internet article (Deposition Exhibit 122). A15. 7-9-01 NYT/AP Internet article re rescue (Deposition Exhibit 123). A16. 7/26/00 letter, A. Hoyt to D. Simplot (Deposition Exhibit 143). A17. Pilatus PC-12/45 purchase agreement (Deposition Exhibit 144). A18. Lease agreement re Pilatus PC-12 (Deposition Exhibit 146). A19. Sales tax exemption for Pilatus PC-12 (Deposition Exhibit 147). A20. 12/21/00 aircraft delivery/acceptance receipt (Deposition Exhibit 148). A21. FAA registration for Pilatus PC-12 (Deposition Exhibit 149).

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A22. 12/21/00 bill of sale for Pilatus PC-12 (Deposition Exhibit 150). A23. Warranty for Pilatus PC-12 (Deposition Exhibit 151). A24. IAC Air Crash Investigation Commission Final Report on Results of Non-Fatal Air Accident (1-13) (Deposition Exhibit 208). A25. Copy of Translated Russian Report (Deposition Exhibit 227A) A26 Hoyt Exhibit 22 Delivery Pack

B1 B2.

PC-12/45 Type Certificate Scanlon interview of Smith audio tape and transcript.

B3. Applicable Part 61 Federal Aviation Regulations. (Specific regulations will be identified shortly and designated as subparts.)B4. Applicable Part 91 Federal Aviation Regulations (Specific regulations will be identified shortly and designated as subparts.) B5. Applicable Part 119 Federal Aviation Regulations (Specific regulations will be identified shortly and designated as subparts.)B6. Applicable Part 135 Federal Aviation Regulations (Specific regulations will be identified shortly and designated as subparts.)B7. Applicable Part 23 Federal Aviation Regulations (Specific regulations will be identified shortly and designated as subparts.)B8. Applicable Part 33 Federal Aviation Regulations (Specific regulations will be identified shortly and designated as subparts.)B9. 8110.4B Type CertificationB10. FAA Order

AC 23-8B - FLIGHT TEST GUIDE FOR

CERTIFICATION OF PART 23 AIRPLANESB11. AC 23-16 - POWERPLANT GUIDE FOR CERTIFICATION OF PART 23 AIRPLANESB12. [Federal Register: May 5, 1971 (Volume 36, Number 87)] [Page 8398]B13. FAA Order 8130.2E - AIRWORTHINESS CERTIFICATION OF AIRCRAFT AND RELATED PRODUCTS Copies of listed exhibits must be provided to opposing counsel no later than five (5) days before the Final Trial Preparation Conference. The objections

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contemplated by Fed.R.Civ.P. 26(a)(3) shall be filed with the clerk and served (by hand delivery or facsimile) no later than eleven (11) days after the exhibits are provided.

VIII. DISCOVERY Discovery has been completed.

IX. SPECIAL ISSUES a. By Plaintiffs: Plaintiffs anticipate filing the following pretrial motions:

1. References to alleged violations of Federal Aviation Regulations by pilot or Access Air are irrelevant and inadmissible in the absence of proof of causation.

2. References to alleged violations of Federal Aviation Regulations are irrelevant and inadmissible in the absence of proof that defendants are within the class of persons the regulations were intended to protect.

b.

Defendants: 1. Admiralty and General Maritime Law apply to all claims in this case.

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2.

Idaho law applies to the scope of the contractual duties between the aircraft

owner and the defendants and to their comparative responsibilities in this case.

3.

Speculation that a catastrophic engine failure or fire would have occurred had

the pilot not shut down the engine is inadmissible. Catastrophic engine failure is intended by plaintiffs to mean more than just a power loss. It has been described as a" coming apart"of the engine such that it changes the airplane' weight and balance s making it unflyable. Engine fire is intended by plaintiffs to mean a fire that is external to the engine such that it could spread to the rest of the airplane.

4.

Plaintiffs made no allegations of fault regarding Pilatus Colorado. Therefore,

since its fault, if any is derivative and secondary to that of Pilatus Switzerland, it should not be listed as a separate party on the jury verdict form.

5.

Evidence of the inflight shut down rate for the PC-12 or PT6 engine or

unreliability are inadmissible because such evidence is irrelevant and unrelated to manner in which the airplane and engine are alleged to be defective.

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6.

Evidence of awards or hero treatment of Pilot Smith are inadmissible because

they are irrelevant and hearsay.

7.

Defendants will file a Daubert motion challenging the testimony of plaintiffs'

expert Scanlan, if he is tendered as an expert witness at trial.

X. EFFECT OF PRETRIAL ORDER Hereafter, this Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings are deemed merged herein. This Pretrial Order supersedes the Scheduling and Discovery Order. In the event of ambiguity in any provision of this Pretrial Order, reference may be made to the record of the Pretrial Conference to the extent reported by stenographic notes and to the pleadings.

XI. TRIAL AND ESTIMATED TRIAL TIME/ TRIAL PREPARATION CONFERENCE

a.

Trial is to a jury in Denver. The estimated trial time is 7-10 court days.

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b.

Trial Date: June 11, 2007 through June 22, 2007.

c.

Final Trial Preparation Conference Date: May 30, 2007 at 10:00 a.m..

At the Final Trial Preparation Conference, counsel are directed to comply with the Instructions Concerning Preparation for Final Trial Preparation Conference. DATED this 22nd day of November, 2006.

BY THE COURT: s/John L. Kane JOHN L. KANE, Senior Judge United States District Court

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FINAL PRETRIAL ORDER APPROVED:

Dated: November

13 , 2006

s/ Jeffrey J. Williams

Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc., Paul Leadabrand, and Jeflyn Aviation, Inc. dba Access Air 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel. (310) 453-6762 Fax (310) 829-3340 Email: [email protected]

Dated: November

13 , 2006

s/ Thomas J. Byrne, Esq.

Thomas J. Byrne, Esq. BYRNE, KIELY & WHITE, LLP Attorneys for Defendant Pratt & Whitney Canada, Inc. 1120 Lincoln Street Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected]

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Dated: November

13 , 2006

s/ Robert B. Schultz, Esq.

Robert B. Schultz, Esq. LAW OFFICES OF ROBERT B. SCHULTZ Attorneys for Defendants Pilatus Business Aircraft, Ltd. and Pilatus Aircraft, Ltd. 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303) 456-5565 Fax (303) 456-5575 Email: [email protected]

45