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John Scott HofT 

(IL/IA/NE/CA/Wl/MT/CD/MM/NY) 

Alex HcrriuT (IL) 

LAW OFFICES 

HOFP & HERRAN 

A ?!ir[nerihli> Ineluding ProCnMioniil Corporodoiis 

135 South LaSalle Street, Suite 3300 

Chicago, Illinois 60603-4134 

Tel: 312/346-8111 

Fax: 312/853-3924 

WEB Site: wTvw.aviationattorney.com 

Joffrej'F. Clement (IL) 

Timolhy I O'ConneH ((I.) 

Glenr Collins. Of Counsel (IL) 

November 23, 2010 

VIA FACSIMILE AND U.S. MAIL 

HeaiinE Docket 

Federal Aviation Administration 

800 Independence Avenue, SW., Room 924A 

Washington, DC 20591 

Attention: Hearing Docket Clerk 

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59^ 

RE: FAA v. MIPWKST HELICOPTER AIRWAYS, INC. 

Case No.: CP09GL0007 

Case No. 2: CP09GL009 

Our File #: 09919 

Dear Clerk: 

Please find enclosed an original and one (1) copy of the Respondent's Motion 

for RecoDsideration of Order Deferring Rnling on Motion for Ruling as to 

Testimony of Gerry F, Ventrclla the two above-captioned matters. Kindly file this 

document with the Court. 

Thank you very much for your cooperation in this matter. If you have any 

questions or concerns, please feel free to give me a call. 

Very truly yours, 

HOFF & HERRAN 

Jeff Clement 

JFC/mss 

cc; Kaic Barber, Esq, (one copy via facsimile and U.S. mail) 

The Honorable Richard C, Goodwin (one copy via facsimile and U.S. mail) 
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U.S. DEPARTMENT OF TRANSPORl ATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO. CP09GL007 

(Civil Penalty Action) 

DMS No. FAA-2009-0846 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO. CP09GL009 

(Civil Penalty Action) 

DMS No. FAA-2009-0973 

RESPONDENT'S MOTION FOR RECONSIDERATION OF ORDER DEFERRING 

RULING ON MOTION FOR RULING AS TO TESTIMONY OF GERRY F. 

VENTRELLA 

Respondent, MIDWEST HELICOPTER AIRWAYS, INC., by and through counsel, 

hereby respectfiilly request thai the U.S. Administrative Law Judge Reconsider his April 5, 2010 

Order defcning Ruling until the time of the Healing on Respondent's prior filed Motion, which 

sought an Order pcnnitting Gerry F. VentrcUa to offer opinion testimony in favor of Respondent 

at the Hearings in these matters. In support. Respondent respectfully states as follows: 

1. The two above-referenced Civil Penalty matters are set for Hearing before the 

Administrative Law Judge on January 20-21,2011 in Chicago, Illinois. 
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2. On March 11, 2010, Respondent filed a ''Motion for Ruling as to Testimony of 

Gerry F- Vcntrella and Second Motion for Continuance of Hearing,"' §ee Exhibit A. 

3. On March 25,2010, Complainant filed its Response to Respondent's Motion See 

Exhibit B. 

4. On March 26, 2010, Respondent filed its Reply to Complainant's Response to 

Respondent's Motion- See Exhibit C. This put the matter "at issue" for the Judge's Ruling. 

5. On April 3, 2010, the Administrative Law Judge entered his Order on 

Respondent's Motion. See Exhibit D. 

6. The April 5, 2010 Order stated "I will reserve rulmg on the reraainder of 

Respondent's motion because it is premature. The question of whether to qualify Mr. Ventrella 

as an opinion or expert witness for Respondent will be determined after surgument at the 

hearing." 

7. Respondent respectfully requests the Administrative Law Judge to at this time 

Reconsider this portion of his April 5, 2010 Order Respondent believes that there may have 

been a misunderstanding as to the scope of its underlying Motion. Respondent was not seeking 

an Order "qualifying" Mr, Ventrella as an opinion or expcn witness. Rather, Respondent was 

only seeking a Pre-Trial Order that Mr. Ventrella's testimony is not barred by 49 C.F.R. § 

9.7(b)-

8. Complainant has not interposed an objection to Mr, VcntreUa's qualifications to 

render expert opinions. Rather, Complainant apparently maintains that 49 C,F,R. | 9.7(b) 

entirely precludes Mr. Ventrella jExom offering any opinion testimony solely due to his 

employment with the FAA over 20 years ago. 

The poitioQ of die Motioa in which Respondent requested a continuance of tfaa Hearing is not the subject of the 

iastant Motion for ReconsideraiioiL 
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WHEREFORE, Respondent respectfully requests the Administrative I^w Judge to 

reconsider his April 5, 2010 Order, to enter an Order holding that the provisions of 49 C.F.R. § 

9.7(b) do not preclude Gerry Ventrella from offering opinion testimony on beh;Jf of the 

Respondent at the Hearings in these matters, and to enter any further relief as the Judge deems 

just and proper. 

Dated: November^ , 2010 

Respectfully submitted, 

HOFF & HERRAN 

Jeff Clement 

John S. Hoff 

Jeff Clement 

Hoff & Heiran 

135 South LaSalle St., Suite 3300 

Chicago. IL 60603 

(312)346-8111 

(312) 853-3924 (FAX) 
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CERTIFICATE OF SERVICE 

I certify that on Novemberi^. 2010, a copy of the foregoing was served upon the 

following via facsimile and by depositing said document in an envelope, sealed, fust-cla&s 

postage fully prepaid and placed in the U.S. mail located at 135 S. LaSalle St., Chicago, lUtoois 

60603: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W, 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Buildmg-^uite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Kate Barber, Complainant's Counsel 

Great Lakes Region, AGL-7B 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7713 

FAX: 847-294-7498 

Tlic Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

Jeff Clement 
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11/23/2810 15:53 13128533324 HOFF a HERRAN PAGE 07/2B 

U.S. DEPARTMENT OF TRANSPORTAnON 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO. CP09GL007 

(Civil Penalty Action) 

DMS No. FAA-2009-0846 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO. CP09GL009 

(Civil Penalty Action) 

DMS No, FAA-2009-0973 

RESPONDENT'S MOTION FOR RULING AS TO TESTIMONY OF GERRY T. 

VENTRELLA AND SECOND MOTION FOR CONTINUANCE OF HEARING 

Respondent, MIDWEST HELICOPTER AIRWAYS, INC, by and through counsel, 

hereby respectfully request that the U.S. Administrative La.w Judge enter a pre-Hearing ruling 

that Gerry F. Ventrella may offer opinion testimony in favor of Respondent at the Hearings in 

tliese matters. Further, Respondent respectfiilly requests that die Court continue the Hearings in 

these matters on the basis that Mr Ventrella has recently been redeployed for military service 

overseas and will not be available for the April 29-30 Hearings. In support of said Motions, 

Respondent respectfldly states as fbllows: 

Exhibit 

A 
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A> Motion for Raligfi; as to Testimony of Gerry F. Ventrella 

1. The above-referenced Civil Penalty matters were initiated by the FAA as a result 

of two separate Part 133 helicopter "heavy lift" operations that occurred on July 14» 2008 and 

October 31,2008, respectively. 

2. In both Civil Penalty matters, the FAA contends that Respondent violated FAR 

Parts 133.33(d)(1), 133.33(d) and 9L13(e) as a result of Respondent not filing a Congested Area 

Plan (CAP) prior to the subject lifts. Respondent maintains that a CAP was not required fbr 

either lift 

3. The Hearings in both matters are currently set for April 29-30,2010 in Chicago, 

4. Respondent has timely disclosed that it intends to call Gerry F, Ventrella, a 

helicopter and heavy lift expert with over 40 years of experience, as an expert opinion witness in 

both matters. Oerrv P. Ventrella will testify that neither of the subject lifts required ^. CAP, gee 

report. Exhibit A. 

5. FAA cotmsel has indicated that they will object to Mr. Ventrella testifying on the 

basis of 49 CF.R. § 9.7(b), which states: 

a. "an employee may not testify as an expert or opinion witness, with regard to any 

matter arising om of the employee's official duties or the flmctions of the 

Department for any parly other than the United States in any legal proceeding in 

which the United States is a party." (emphasis added)' 

6. However, 49 C.F.R. § 9,2 states, "[t]his part does not apply to any legal 

proceeding in which an employee is to testis as to facts or events that are in no wav related to 

the employee's official dutiee or tihe functions of flie Department. 

* Fonner employees are included within the definition of "miployee of th« Dopartrnent," 49 C,F,R, § 9,3. 
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7. Over the course of Mr. Ventrella's 40 plus year career as a priofeasional helicopter 

pilot, Mr, Ventrella was formerly and briefly employed by the FAA as an Aviation Safety 

Inspector for approximately 3 'A years. 

8. Most importantly, the last date of Mr. Ventrella's employment with tlie FAA 

ended over 20 years aeo. 

9. In flie present case, Mr. Ventrella vdll be offering objective expert testimony 

about heavy lift operations that occurred in 2008,20 Y_ears after the cessation of hia employment 

with the FAA. Mr, Ventrella's former duties have no factual nexos whatsoever with either of 

the two subgect heavy lift operations. Clearly, pet tile hitent of the Regulations, Mr. Ventrella's 

testimony has no nexus with and is in "no way related" to his foimer duties wifli the FAA over 

20 years ago. See 49 C.F.R. § 9.2. 

10. Similarly, 49 C.F.R. § 9.7(b) simply does not apply because Mr. Ventiella"'5 

opinions do not "arise out o f his former brief employment wth the FAA. His opinions will not 

be based on his 3 '/4 year employment with the FAA. but on his 40 plus year career as a 

heUcopter/'heavy lift pilot His mere employment with the FAA (or his gaining experience 

through the FAA) is, and properly should be> insufficient to establish or invoke the application 

of 49 C.F.R. § 9,7(b) to bar his needed testimony. 

11. Moreover, it would be unreasonable, unfair, and prejudicial to bar Respondent 

ftom introducing the testimony of Mr, Ventrella based on the uncertain and inappropriate 

application of 49 C.F.R- § 9.7(b) to this matter. In fact, most persons who offer expert 

testhnony within the field of aviation have bad some former nexus with the FAA.. Simply 

because that individual gained part of their general experience with the FAA should not forever 

bar them from testil^ng as an expert or opinion provider hi aviation safety proceedings. To 
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apply 49 C.F.R § 9.7(b) in an overly strict manner would unfrirly limit the field of experts firom 

which a Respondent may dioose, and be potentially violative of a Respondentia due process 

rights. In the unique field of heavy lift operations, the number of suitable experts is extremely 

small, even more so if Respondent is restricted to mdividuals witiiout any former nexus vdth the 

FAA. 

12. Finally, the application and interpretation of the Part 133 CAP requirements are a 

distinct issue that reqtiires fiill airing before the Judge. In order for the Administrative Law 

Judge to be fully informed, it is essential that Respondent be able to offer suitable opinion 

testimony on this unique and previously imtested issue. 

13. Accordingly, Respondent seeks a Pre-Hearing Ruling that Mr. Ventiella may 

appear and offer opinion rebuttal testimony in favor of Respondent at the Hearings in these 

matters. 

Motion for Continuance 

14. Additionally, counsel for Respondent has just been informed that Mr. Ventrella 

has been redeployed by the United Stales Government for military service in the Middle East 

As a result. Mr, Ventrella will be out of the country firom ^ e end of March until the middle of 

June, after the scheduled April 29-30,2010 Hearings. Thus, Mr. Ventrella will not be available 

to tesdfy on April 29 or April 30,2010. 

15. Therefore, Respondent respectfiilly requests diat the Judge continue the scheduled 

Hearings in dvese matters to a date after July 2010 when Mr. Ventrella can appear in person to 

tesdfy, 

16. Counsel for Respondent has made a good faith effort to resolve this matter, and 

has confetred with counsel for the FAA regarding the above-referenced continuan<2c. Counsel 
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for the FAA stated that they objected to the continuance, as well as vo the use of Mt- Ventrella 

by the Respondent 

WHEREFORE, Respondent respectfully requests the Administrative Law Judge enter an 

Order (1) holding that Geiry Ventrella may proffer opinion testimony on behalf of the 

Respondent at the Hearings in these matters, and (2) continuing the Hearings in flieae matters to 

a date after July. 2010, and for any fiiither relief as the Judge deems just and proper. 

Dated: March 11,2010 

Respectfully submitted, 

HOFF « HERRAN 

OL. ^ 

Jeff Clement 

John S. Hoff 

Jeff Clement 

Hoff&Hciran 

135 South LaSalle St, Suite 3300 

Chicago, IL 60603 

(312)346-8111 

(312) 853-3924 (FAX) 
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GERRY F. VENTRELLA 

^ , PILOT SBHVlOaB 

\y PM DQSiOStATBD PILOT EXAMIt^ER 

K J 

o 

P.O.Bo»ams » QWwBO.H.«W»1'07fl4 • PhWB:77ft»7«>7862 • C«It|*iOJ»: 773.»«7a6 - BofAnt9V«n(rd(a«««I.o<]ni 

20 October 2009 

QUMigmiihkt ExtarntI Lift Operation 

I Mitt a former Federal AVlsiton AdmlnlrtratlOD Aviation 5Bf«y rnip«cwr {OperoVlorw). I waa employed at 

DuP»g« Flight StwdartU DlttrlclOffica from Jsnuar/ W7a through October 1979 «nd Septambaf 1987 

through S6pt«mb6r 1989. I was etaD th4 office hotlcoptw apectnllBL i was tralrwd by Theo Moore and 

Daniel Matu»lftwh j In h*llfloptar oporttloni. They wier* both expertenced helieoptar pilots that 

perternwd raanv Afferent hetleoptar operitlons as wall as cxtamal Hfts, i am also an exparlenced 

halksopier pHot th^ t has parlormed marry different haneoptar oparatloni as wall as extorhal lifts. W4 

would evaluate hellcoptsr operat<or eo»i^ait«d traa plant for aafaty concernlhs the public. 

Tlia ooneested araa plan It a r«enilremem in an area what* pedesblars or workars may unknowli^gly 

place themselves In harms way bewusa of an axtemal load operation. 

FlrstofBll v/e wlUaxamlne the term congested traii. fntha cont*>«of aflxed vtrtng aircraft«Is an area 

that l> <t«flh«d on a sectional or class B chart«fi vettow. An alrefBfieth»r than a balkopter must 

maintain mlnUmim aaf« sitliude boeausa of It's rBqulramaw for a largaspac* to land In on ernvgaticiy. 

The more manauvarebw helicopter is exampt Tha araa wa ara addreBSlng for an aKternal load moarw 

congerted In tha context of the public having accaw \wlwra th«v may be in dar>g«r becausa of «h« 

extomal lood operation. When I s«n«d B» an Inspactor I monitored many axtamal load cpetfatfonsThere war* numereua operatlona that did not require a tongerted area plan and did not noad 

monitoring because they wera not e hamrd to the public, i have also served as a pilot on sKtcroai load 

operailohs. 

Performing this type of operation along publle access streets requires a plen. Th« plan explain* how the 

public win be piworitad f^om wBlWr»g new the Jo U It also outlines Where the load may ba dropped in 

an emergency and where the helicopter may land or even crash If dHahiod. Thase eraaa muat be 

guarded In eaae of unfbrssaen problems. Whan operating along public streata end eldewalkstha area 

muat be blocked from public eceeas, There are eUoJoba that take plaw on buUdlnga ihatero occupied, 

A plan Is required to Indicate how the building will be evacuated and s*cured until the Job It complete. 

The external llfl operation pefformedbyMidweat Helicopter on 81 CKt2008at Quadgrephic* In 

Vtenomonee Falla, Wisconsin wa» at a building that was under conttruction. The huHding was not 

oparatbnal end It w»* In an area that te not readily accessible to thn public. The people present were 

therefbr the |ob. The plant operations manBger, Mr. Mark Benson was presew at the fob «Ue. He 

indicated he waa atthe pWc up polntduring the operation end would be able to intercepts pedartrian 

In the unlikely event that one would happen to pau by. 

The llfl work was performed *on . the South paridnglot. The road to the South of the lot was not 

completed and was barrkadad. Tha vf est aide of the bulWlng is bordered by e lerg. nuid and th«n « 

EXHIBIT 

A 
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'^y bridja that crosses over a rqllroad which borders the North aide of the buitdtng. North of the traciv 

there la en IndustHel araa. E»at of the building le B large open ftafd With a smell geraga. South of the 

roed on the Snuth side of the bufldliig where the aperatton took place Is a long pond. South of the pond 

If a thick tree One. There are housBs south of tfia tree Una but peoph IMng there would not be ebl* to 

walk through tfie trea line end emaa the pond and road to reach the Job slttt. 

Tha enclosed photos will Indicate that thti araa la not acsesslbfato the public, M f opinion of this Job 

site Is that s eongesiBd area plan uvould not be necessary beceusB of the location of the building end the 

natural barriers preventing access. 

Pleeae feel free to contact me tt you heve any questions, 

I wig lift out ef tha BDUntry until 29 January 20i a 1 can be reached et eventnell^^ap|.cftqi 

OaiYy r^ Venttelle 

v ^ 
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CERTIFICATE OF SERVICE 

I certify that on March 11,2010, e copy of the foregoing was served upon the following 

via facsimile and by depositing said document in an envelope, sealed, fitst-clasa postage fully 

prepaid and placed in the U.S. mail located at 135 S. LaSalle St., Chicago, Illinois 60603: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Heating Docket Clerk. AGC-430 

WUbur Wright Building—Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Kate Barber, Complainant's Counsel 

Great Lakes Region, AGL-7B 

Federal Aviation Administration 

2300 East Devon Avenue 

DesPlaines,IL 60018-4696 

TEL: 847-294-7713 

FAX: 847-294-7498 

The Honorable Richard C, Goodv/ixij Adminisorative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

Jeff Clement 

tfc^^W^ 
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u-j/'za/iOlo 14:2< FAX 847 23q 7498 FAA REB C0UH8L AflL? , EjOOZ/OM ^mmd^0 

U.S DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO, CP09GL007 

(Civil Pejjftliy Action) 

DMS No. FAA- 2009-0846 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC, 

FAA DOCKET NO. CP09OL009 

(Civil Penalfy Action) 

DMS No. FAA- 2009-0973 

COMPLAINANT'S RESPONJjy. TO MSSPOfTORNT'g MOTION FOR RULING 

AS TO TESTIMONY OF GERR V F . VENTRELLA AND SECOND MOTION 

FORCONTINUAN E 

Complainant, by and tbrou^ the underaigaed counsel, hereby requests that the 

U.S. Adj&misttatlve Law Judge enter a pte^heazing ruling denying the opinion testimony 

of Mr. Oerry F. Ventrella (Mr. Venttella) at Ae Hearings rcgAx^ng these matters. 

Further, the Complelnam respectf\illy lequests that the Court not continue the Heatings 

sohcduled for Aprtl 29 and AptU 30,2010 on the basis that the ^tness will not be 

available on those dates. In support of the objcotiona, the Compleinant states as follows: 

Exhibit 

B 
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uu/Jioz-zoio T>;-.J4 t-HX B»Y 234 7<lflB FAA REQ C0UN5L AQL7 3|OOS/00B 

1. The FAA objects to the use of Mr. Q«ny F. Veatrella as an eicport witnese giving 

opinion testimony on the basis of 49 C.F.R. § 9J(b) which statee: 

(b) An employe* may testify for the United Ststes both as to fkcta wi^in 

the employee's petsunal knowledge and as an expert or opinioa witness. 

Except as provided hi parsgiaph (o) of this section, an employee xtiay not 

testify as an expert or opinion witness, with regard to any matter arising 

out of ^he employee's official duties or the functions of the Department, 

for any psi ^ oAier flian the United States In any legal proceeding In whid:i 

the United States is a party. An empbyee who receives a demand TO testify 

on behalf of a party odier than the United States may testify as to fiiois 

tavidiin the employee's personal knowledge, provided that the testimony be 

subjea to the prior approval of egeney counsel and to 'die Federal Rules of 

Civil Ptooedure and any applioeble claims of privilege. 

2. Mr. Ventrella was employed by the FAA as an Aviation Ssfbty Bispector £:>r 3.5 

years, 20 years ego. The FAA submits that 49 C.F.R § 9.7(b), (Q^Iies to him and 

bars hia testimony because he was fonner employee. The dcQni'Aon of 

"eti^loyee'* when in terms of Iha applicable atamte ia made olear by 49 C.F.R. § 

9.3, which states: 

Employee of ibe Department or Employee mesne any current or fi>imer 

officer or cmployeo of the D^sitment; any acdve duQr, retired, or fonner 

ofScer or enUsted member of the Coast Ooaidi or any ctxneni or fonner 

contractor ^including any corporadon or other entity and any employee or 

subcontractor). 

3. The Rsapondem argues that is has been 20 yeais since die cesaation of Mr. 

Ventrella's employment ^rifli the FAA, The time period that has lapsed since hla 

employment widi the FAA does not negate or miiigaie the fact thai he was an 

employee of the FAA and is now considered a ^'former employee". There are no 

provisions or exceptions in the regularion ihat allow for the passage of lime 

between being employed by the Unhed States and the testimony being a &otor in 

tlie leeision of'whether or not the statute applies to the particular 'vntness. 
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* °^ ^ §1017/028 

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>J9/i:9/-.£Uiv i4:v n i-AX Q4f <!ya. 7438 FAA REfi CQUNSL AQL7 (3|004/OI)B 

4. Mr. Ventrella is being of&rcd as on ei^ett witness to testify to wheQier of not the 

two areas bv qiiestion were congested areas and in need of a congested area plan. 

The FAA Flight Standards Distriet Offices CFSDO) that have jurisdiction over the 

area in which' an operation will be conducted are iht determining offioieJs that 

give approval for the cotigested orsa plan. This determhiBtion is made by die 

Aviation Safety Inspectors at the FSDO and ttiis detennination arises in thalr 

official duties end the Auctions of tiie department. 

5. During the time period Mr. Ventcelle was employed by the FAA he was on 

Aviation Sa&ty Inspector. In Respondent's Exhibit A, Mr. Ventrella, states that 

during his employment with tiie FAA he was the helicopter specialist at die 

Dupage Flight Standards District OfBce. He goes on to state that be was trained 

by other eicperienced heUcopter pnots in the agency that had perlbnned extsmal 

lifts. He also staled that during this time peiiod ax an Aviation Safety laspeetor 

one of the fiinctione of his job was to evaluate congested areas plans- He stated, 

"We >M>uld eVBluste helicopter operator congested area plans for safety 

concezaittg the piiblic." It was an ofScial duty of his as an Aviation Safety 

Inspector to make the same deteaninaiions that the Respondent U requesting that 

he testify to in these matters. Hla testimony has a direct nexus to his former 

dudea as en Aviation Safety Inspector with the FAA and not only is it related to 

his fbimer duties, but It actually was a fynner duty. 

6. Accordingly, the FAA objects to any and all teatinaony offered by >fr. Venttella 

on the basis that his testimony is baned by 49 C.F.R, § 9.7(b). 
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@005/og8 

Wherefbrc, the Complainant teapectfiilly requests that Mr. Ventrella be barred from 

offering Boy opinioD or expect testimony in the above two hearinge. The Complainant 

also objects to a continuenoe of the two hearings based upon the availability of Mr. 

Ventrella, if he is fiict barred from testifyhlg at die hearings. 

Dated this 2Sdi day of Mawh 2010. 

RespectftJly Submitted, 

Jef&eyKtang 

Regional Counsel 

I Berber 

Attorney 

Federal Aviation Administration 

2300 £. Devon 

DeBPlQiaM.TL600l8 

(847) 294.7862; Fax (847) 294-7862 

ATTORNEY FOR COMPLAINANT 
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CERTinCATE OF SERVICE 

I hereby cotify that I have this dete placed a copy of the COMPLAINANT'S 

RESPONSE TO RESPONDENT'S MOTION in the United States mail* postage prepaid, 

and by Fax addressed to: 

Hoff and Hettan 

135 8. LaSalle Street, Suite 3300 

Chicago, IL 60603 

Fax: 312-B53-3924 

In addition, I hereby certify that 1 have this date provided a copy via facalmlle 

transmiasioB, and placed an original in the United States mail, postage prepaid, addressed 

to: 

The Honoiable Richard C. Goodwin 

Admlaisteatjve Law Judge 

Office of Hearings. M-50 

Room 5411 

U.S. Department of Ttan^portation 

400 Seventh Stfset, SW 

W88hingiDa.DC 20590 

FAX: (202) 366-7536 

Hearing Docket 

FAA. AOC-400 

600 Independence Ave., SW 

Room 2014 

Washington, DC 20590 

FAX; (202)493-5020 

TEL: (202) 385-8229 

Dated ftiis 25* d ^ of March20l0. ^MMkik. 
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FAA * DMS 

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t-AA Ht U UUViHKL AULT 

@l020/028 

PAGE 20/28 

1^001/000 

To: Mr. John Hoff, Esq. 

Company: Hoff & Herraf* 

Phone; 

Fax: (312)-853-3924 

Pfom; Kate Barbar 

Title: Agency Attorney 

Data: Mftrch25,20l0 

PageewTcover: 

Federal Aviation 

Administration 

Offlea of (he ReeionBl Counsel 

Qreet Lakes l^gien 

2300 East Davon 

DeePlslnes,li.800ia 

Telephone, a47-2e4>7M2 

Fax NO. 847-294-8293 

E.mslh l(ata.barb«r@!fBa.gov 

Facsimile 

Attached! COMPLMNAirrS RESPONdE TO RESPONDENT'S MOTION FOR 

RULING AS TO TESTIMONY OF GERRY F. VCNTRELIA AND SECOND MOTION 

FORCONTINUANE 

ate Barber 

^ n US.^nmvmtn«fnmMp9nKiioti 
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* ^^^ 0021/028 

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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET NO. CP09GL007 

(Civil Penalty Action) 

DMS No. FAA-2009-0846 

IN THE MATTER OF 

MIDWEST HELICOPTER AIRWAYS, INC 

FAA DOCKET NO. CP09GL009 

(Civil Penalty Action) 

DMS No. PAA-2009-0973 

RESPONDENT'S REPLY TO COMPLAINANT^S RESPONSE TO RESPONDENT'S 

MOTION FOR RULING AS TO TESTIMONY OF GERRY F. VENTRELLA AND 

SECOND MOTION FOR CONTINUANCE OF HEARING 

Respondent, MIDWEST HELICOPTER AIRWAYS, INC., by and through counscL snd 

as its Reply in Support of its Motion for Ruling as to peimitting the Testimony of expert witness 

Gerry F. Vcntrella and Second Motion for Continuance of Hearing, respectfully states as 

follows: 

1. The FAA'S interpretation of 49 C.F.R. § 9.7(b) does not comport with substantial 

due process nor the legislature's mtent. It will be the task of the Administrative Law Judge to 

determine and interpret the intent of the legislature and Administrative branches in the 

Exhibit 

C 
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enactment and initiation of the subject regulation. Simply because Ac 'witness was a "former" 

FAA employee should not aiitomaiically or pa se disqualify flieir testimony, eapecially without 

a clear sho-wing that the proffered testimony factually "arises out of* the witness's former duties 

with the FAA. In point in fact, even own Reqwndent's counsel, John S. Hoff, Esq. was himself 

a "former employee" of the FAA (Headquarters, Office of the Chief Counsel, 1975.1976). 

2. There is no doubt that 49 CF.R. § 9.7(b) is ambiguous as to what exacdy is meant 

by **eriaing out of the employee'^s ofGcial duties." However, the right of the Respondent to call 

witnesses on its behalf is a 'vital arid very basic due process right. It is the task of the Judiciary 

to construe the regularion in conformify with "substantial due process" and inherent fairness. 

Therefore, any ambiguity must be resolved against barring an important witness ftom testifying 

as a result of a tenuous, rote or hyper-technical application of an ambiguous regulation. The 

regulation should not be used to disqualify just an£ fonner FAA employee from ottering expert 

testimony diat migiht tangentially touch on their prior estperience or inherently deal with 

something, however tenuous, that they may have learned during their tenure as an employee. 

3. In the present matter, Mr. Ventrella's fonner duties with the FAA simply lack any 

specific ^tual nexus to these specific proceedings. While h£ may have been a former 

employee of the DuPage Flight Standards District Office (FDSO) over 20 v^ars ago, the subject 

proceedings involve the propriety of the actions of the h^waukee FSDO, not the DuPage 

FSDO. The Milwaukee FSDO and its inspector, not the DuPage FDSO, made the subject 

Complaint Also, during his brief period of employment with tiie FAA, Mr. Ventrella duties did 

not cover the jurisdiction where either of the two subject heavy lift operations occurred,. 

4. Furthermore, Mr. Ventrella is not being called as a wimess to ophie as to FAA 

policy over 20 yean ago. The policies of the FAA over 20 years ago will not resolve tlie present 
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dispute- In fact, the FAA*s Handbook, 8900.1, Volume 3, Ch. 51, the interpretatioo of which is 

central in this matter, was published in 2007, 18 years after Mr, Ventrella's employment ended 

with the FAA . The FARs are republished anew annually and have evolved over the ensuring 20 

years, as well. Rather, Mr. Ventrella is being called as a result of his years of hands-on 

experience aa a Part 133 "heavy lift pilot,** of wWch there are very few. Even the FAA had to 

resort to the use of John Judge from Seattle, WA, as such an individual could not be found in 

this geographic area, Mr. Ventrella and his combination of military and civilian "heavy lift" 

rotor aircraft experience is unique. 

5. While there may be no express pro'vision in the regulation that allows the 

^'passage of time" to negate or attentiate the application of the regulation, it must certainly be 

implied that the longer a witness has been out of FAA employment, the less likely it is that their 

testimony "arises out of their official duties." In Illinois, even evidence of a felony conviction 

of over ten years is inadmissible because of the remoteness and attenuation. 

6. Finally, it would be inherently unfair at tius stage in the proceedmgs to bar 

Respondent from calling Mr. Vcntrella, especially where the FAA cannot show any prejudice, 

lior have they ofEered any m their ostensible objection. The FAA has known that FLespoudent 

would call Mr. Ventrella as a witness since November 20, 2009 when he was expressly 

disclosed as an expert -witness. However, the FAA has only now, approximately one month 

before the scheduled Hearings, got around to asserting their objections. Due to waiver, the FAA 

has failed to timely assert its objection, making their objection moot. The field of heavy lift 

experts is extremely limited, especially if Respondent is restricted to individuals widiout any 

fonner nexus •with the FAA, Thus, it would bo very difficult and prejudicial for Respondent to 

have to locate a replacement expert within a month of the scheduled Hearings. 
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7. Alternatively, the Respondent does not believe that it was the legislative intent lo 

"forever bar" any and all fonner employees from offering their insight and expertise pgi s§ 

merely because they once were an employee of the FAA - especially where there was no 

personal involvement -with the facts and matter at hand and in issue for the Judge to decide. The 

Judge can capably weigh their credibilify and any bias accordingly. 

WHEREFORE, Respondent respectfully reqtiests the Administrative Law Judge enter an 

Order (1) holding that Geny Ventrella may proffer opinion testimony on behalf of the 

Respondent at the Hearings ix^ these matters, and (2) continuing the Hearings in these natters to 

a date after July, 2010, and for any further relief as the Judge deems just and proper. 

Dated: March 26,2010 

John S, Hoff 

JeffUement 

Hofif&Herran 

135 South LaSalle St., Suite 3300 

Chicago, IL 60603 

(312)346-8111 

(312) 853-3924 (FAX) 

Respectfiilly submitted, 

HOFF & HERRAN 

Jeff Clement 
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CERTiyiCATE OF SERVICE 

I certify tiiat on Mardi 26» 2010, a copy of the foregoing was served i^on the following 

via facsimile and by depositing said document in an envelope, sealed, first-class postage fully 

prepaid and placed hi the U.S. mail located at 135 S. LaSalle St., Chicago, Illinois 60603: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

WasMngton,DC 20591 

Attention: Hearing Docket Clerk, AGC-43 0 

Wilbur Wright Building—Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Kate Barber, Complainant's Counsel 

Great Lakes Region, AGL-7B 

Federal AvtatiOD Administration 

2300 East Devon Avenue 

DesPlalnes,lL 60018-4696 

TEL: 847-294-7713 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S£. 

East Building Ground Floor 

RoomE12-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

JettClement 

UlLrry^r ^ 
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LlH*lOSTE12-l28 

FAA ^ QMS 

HOFF 8. HERRAN 

Ol.Gg:Sgp.ni. 04-05-3Q1 D 

1026/02 8 

PAGE 25/28 

SERVED APRIL 5,'2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HBARTNGS 

WASHINGTON, DC 

' INTHEMATTEROF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAADOCKElNo. CPODGLOOp? 

(Civil Penalty Action) 

DMS No. FAA-2009-0846 

•INTHEMATTEROF 

MIDWEST HELICOPTER AIRWAYS, INC. 

FAA DOCKET No, CP09GL0009 . 

(Qvil Penalty Action) 

DMS No. FAA-2009-0973 

ORDER ON RESPONDENT'S MOTIONS 

Respondent Midwest HeUcopter Ahways, Inc. (hereinafter "Respondcnti") has 

filed motions in these aiatten requesting 1) a ruling diat Mr. Getty F, Ventrella be 

pamitted to offer opiolon or expert testimony, and 2) that the matters be conlinuedto a 

date after July 31,2010 becauce Mr. Ventrella has military obfigations conflicting with 

the cisient hearing schedule. These matters are scheduled to be heard bcginmng April 

29.2010. 
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z/3 

Complaioaai Federal Aviation Administivdon (hereinaAer "Complainant") 

objects to the requests. 

For good cause shown, that portion of Respondent's motion seeking a 

continuance is hereby GRANTED, The proceedings •will be rescheduled to a date alter 

July 31,2OI0, by subsequent order. 

I will reserve ruling on the temainder ofReapondent'a motion because it is 

premature: Hie quesdon of whedier to qiisUfy Mr. Venlrella as an opinion or expert 

•witness for Respondent will be detennised after argument at the bearing. 

SO ORDERED. 

joodwin 

U.S. Administrative Law Judge 

Attachment - Service List 
^ °"^ gl028/028 

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2023687536 Line 10ST612-12B 0?:00;2e p.nt, 04-05-2010 3/3 

FAA Docket Nos. CPO9GLO007 

& CP09GL0009 

(Ci-vil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Adtruaistiation 

SOO independence Avenue, S.W. 

Washington, DC 20S91 

Atteaition; Hearing Docket.Cleik,AGC:-^30 . 

Wilbur Wright BuUditig—Suite 2W1000' 

ONE COPY 

John S. Hoff, Bespondeni 's Counsel 

Law Offices of Hoff & Henan 

135 LaSalle Street, Suite 3300 

Chicago, IL 60603-4134 

TEL: 312-346-8111 

FAX:. 312-853-3924 

. Kate Barber, Coinptatnant *s Counsel 

Great takos RegLon, AGL-7B 

Federal Aviation Administration 

2300 East Devon AvenueDe5 Pleines, IL 6001S-4696 

TEL: 847-294-7713 

FAX: 847-294-7498 

The Honotable Richard C QoodwiiXtAdininistt'/aive Law Judge 

Office of Hearings. M-20 

1200 New Jeney Avenue, S.E. 

£ast Building Oround Floor 

RoomE12-320 

Washingbn, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

^ 202-366-5121 Legal Aasistant 

FAX: 202-366-7536 

' Sctvke ivu by U.S. MaU. For service in ponoa or by expedited courier, use th« following address: Fodcnl 

AvlBtkm Admuu^tretkn, COO liuJependenCA Awbue. 8,w., Wilbur Wright Building—$ultt> 2W10Q0, 'WoahliuttDD, 

DC 20S?l; AtWilloBMIearing DOBR« a«rt, AOC-430.