Free Surreply - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 85

Filed 06/02/2006

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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.

REQUEST FOR AND SUR-SUR-REPLY IN SUPPORT OF SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS On May 16, 2006, this court ordered plaintiffs to file a surresponse on very specific issues as follows: "Specifically, Plaintiff shall file a surresponse directed to the Pilatus Defendants' arguments in Sections E-H of their Reply (Doc. 73) regarding the proper role and application of "consumer expectation" and "risk-benefit" tests to design defect versus manufacturing defect cases as well as to Section I related to Defendants' Daubert challenge to the expert opinions of David Rupert regarding any defect in the design and/or manufacture of the engine/engine turbo blade at issue." (Document 79) Their surresponse, however, addressed new issues not requested by the court, misstated and misrepresented the issue raised by Section E of the Reply and misinterpreted a Federal Aviation
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Regulation (14 CFR § 23.903(e)). The Pilatus defendants respectfully request that the court consider the following brief sur-sur-reply to those issues. Pilatus Did Not Argue That The Consumer Expectations Test Could Not Be Use In A Manufacturing Defect Case. Its Argument Was That The Plaintiff Must Prove Both Defect And Failure to Meet Consumer Expectations. Colorado Jury Instruction 14:1 for product liability states that the jury must find that; "The product was defective and, because of the defect, the product was unreasonably dangerous". Thus defect and unreasonably dangerous are two elements, each of which must be proven on its own merit. One cannot simply be inferred from the other. (See C.J.I. 14:7.) As plaintiffs correctly point out C.J.I. 14:3 defines "unreasonably dangerous" for manufacturing defect as "risk of harm to persons or property that would not ordinarily be expected." And while there is no jury instruction defining manufacturing defect, the Colorado Supreme Court defined it as a failure to conform to the manufacturer's specifications. Camancho v. Honda Motor Co. Ltd. 741 P.2d 1240, 1247 (Colo. 1987). Thus, to prove a manufacturing defect, it is not enough to prove that the subject PT blades did not meet consumer expectations because they failed. They must also prove that the failed PT blades did not conform to the manufacturer's specifications. Federal Aviation Regulation 14 C.F.R. 23.903(e), Cited by Plaintiffs in their Surresponse Is A Government Standard That Defendants Complied With In Order To Receive Certification From the FAA For The PC-12 Aircraft and its Engine. Therefore Under C.R.S. § 13-21-403(1), There Is A Rebuttable Presumption That The PC-12 It Was Not Defective In That Respect. This court can take judicial notice of the fact that the subject aircraft, a Pilatus PC-12 and its engine, the PWC PT-6 were certified as airworthy by the FAA. This required the FAA to find, among other things, that they complied with 14 CFR 23.903(e), i.e. the engine must be
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capable of restart in flight. Accordingly, under C.R.S. § 13-21-403(1)(b), there is a rebuttable presumption that the aircraft and engine were not defective in this respect at the time they were sold. Plaintiffs' argument, in essence, is that any change in the engine after it left the factory, that renders it incapable of being restarted in flight, even running out of fuel, creates a rebuttable presumption that it was defective when it left the factory.1 This argument makes no sense and must be rejected. Moreover, from this argument, plaintiffs bootstrap the argument that the "this presumption eliminates many of the technical and scientific complexities that might otherwise make these claims a poor candidate for the use of the consumer expectations test." Contrary to plaintiffs' assertion restarting a turboprop engine in flight is not like turning a freezer on and off! (Surresponse p. 10.) RESPECTFULLY SUBMITTED this 2nd day of June 2006. By__/s Robert Schultz_______________________ Robert Schultz Schultz and 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

That is not to say that anything prevented the subject engine from being restarted since it is undisputed that the restart was aborted. Indeed, contrary to misstatements in plaintiffs' surresponse "escalating internal engine temperatures" page 5 and "the engine's internal temperatures began to rise very rapidly" page 10, Pilot Smith actually said everything was normal during the relight except that the propeller had not yet begun to turn before he aborted (Plntfs.' Ex "1" Smith Depo p. 363.) REQUEST FOR AND SUR-SUR-REPLY IN SUPPORT OF Page 3 of 4 SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of June 2005, I caused the forgoing REQUEST FOR AND SUR-SUR-REPLY IN SUPPORT OF SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS 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__________ Schultz and Associates [email protected]

REQUEST FOR AND SUR-SUR-REPLY IN SUPPORT OF SUMMARY JUDGMENT MOTION BY PILATUS DEFENDANTS

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