Michael L. Dworkin (CA Bar# 64047) MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 San Francisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: law@avialex.com Counsel for MARTINAIRE AVIATION, LLC 

# RECEIVED JUN 

## 04 2014 HEARING DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of:

MARTINAIREAVIATION, LLC FAA Case No. 2011SW700189 DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINE Judge: The Honorable Richard C. Goodwin

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. GOODWIN, ADMINISTRATIVE LAWJUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: In accordance with 14 C.P.R. Section 13.218 (Rule 13.218) and the Federal Rules ofCivil Procedure, Martinaire Aviation, LLC (Respondent) filed three separate Motions in Limine seeking the preclusion ofevidence relating to Complainant's calculation, determination, deliberation or other reflection ofthe appropriateness or reasonableness of the sanction amount sought inthis action. Complainant responded to the Motions, purporting tojustify the inclusion ofsuch

### prejudicial evidence, 1 

### which necessitates the filing ofthis Rebuttal. 

### BACKGROUND On April 4, 2013, Complainant filed and served its Motion for Protective Order seeking to "prevent discovery into matters involving how the agency arrived at its civil penalty of $206,500.00" 2 

### Complainant argued that such information was protected under the deliberative process privilege. Respondent timely filed a response opposing said Motion. On May 1, 

### 2013, the Administrative Law Judge granted Complainant's Motion for Protective Order. As a result, despite extensive (and expensive) discovery, including the depositions of Complainant's most knowledgeable persons and its two disclosed witnesses, Respondent has been precluded from eliciting testimony or evidence as to how Complainant arrived at a civil penalty which is far in excess ofthe penalties sought in similar cases.3

1 Yeti ByMolly Ltd. 

### v. Deckers Outdoor Corp. 

### (9111 

### Cir. 2001) 259 F3d 1101, 1105-1107 (Trial court did not abuse its discretion in granting a Motion inLimine as a discovery sanctionto exclude experttestimony based on defendant's untimely production ofthe expert's report). See also, Hoffinan v. Construction Protective Services, Inc. 

### (91 h 

### Cir. 2008) 541 F3d 175, 1179-1180 (Trial court did not abuse its discretion by granting defendant's Motionin Limine to preclude admission ofevidence regarding damages. The sanction was proper under FRCP 37(c)(1) for plaintiffs' failure to disclose damages calculations as required by FRCP 26(a)(1)(A)(iii).
2 

### Motion for Protective Order at 1.

3 

### Please see Paragraphs 3-14, inclusive ofRespondent's Request for Judicial Notice (and the attachments thereto identifying NOPIC cases inwhich the penalties were 2 FAA Case No. 2011 SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINENow, with less than three weeks before the hearing in this matter is scheduled to commence, Complainant, in objecting to Respondent's Motions in Limine, seeks to elicit evidence as to how it arrived at its penalty-the very same evidence that Respondent was precluded from obtaining during discovery. OnJuly 8, 2013, the AdministrativeLaw Judge granted Complainant's Motion for decision onthe allegations in the complaint. The only issue thatremains is the appropriateness ofthe $206,550.00 penalty sought in this matter. IfComplainantis permitted to elicit evidence at hearing as to howit arrived at its penalty, Respondent will be unduly and severely prejudiced. RESPONDENT'S RESPONSE TO COMPLAINANT'S RESPONSE TO MOTION IN LIMINE NO. 1 Motion in Limine No. l seeks to preclude the elicitation or admission ofany evidence ofor relating to Complainant's calculation, determination, deliberation or other reflection ofthe appropriateness orreasonableness ofthe sanction amount sought in this action. In essence, it seeks the very same thing that Complainant sought inits Motion for Protective Order! Complainant argues that ifthe Court were to grant Respondent's Motion, it would violate case law and be directly contrary to FAA Order 2150.3B ("Order 2150.3B") which Complainant suggests sets outwhat should be considered when determining the amount ofpenalty. In a complete 180 degree turnabout from its prior stance,

considerably less), filed May 14,2014, which the Administrative LawJudge Granted on May 27, 2014. 3 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINEComplainant argues that the "Court musthear from the [FAA's] witnesses who have investigated Martinaire's conduct in this case."4 In other words, Complainantis now stating that, although it has precluded Respondent from any discovery in to the "deliberative process" inthe determination of sanction, it nowneeds its witnesses and experts to testifY as to its internal discussions regarding appropriateness ofthe sanction (as that is the only issue inthis case). Complainant's argument is both specious and disingenuous. Respondentutilized every available means to obtain information about Complainant's "deliberative process," and has been denied same. Allowing Complainantto provide evidence at hearing to justify a proposed sanction which is far out ofline with established precedent, after refusing Respondent the opportunity to engage inpre-hearing discovery seeking such evidence, is directly contrary to the basic tenets offairness and due process and severely prejudices Respondent. While Complainant cites Order 2150.3B, nowhere inthat Order does it allow Complainantto refuse to respond to discovery requests concerning penalty calculations, expressly instruct its witnesses and experts to refrain from answering questions regarding penalty calculations at deposition, 5 refuse to provide any documentation to support the

4 Response at 3. 5 Deposition ofBrvan Edward Buchanan- Deposition transcripts were previously filed on or aboutJune 26, 2013 as Exhibits to Respondent's Response and Objections to Complainant's Motion for Decision and Transmittal ofExhibits. Mr. Dworkin: Do yourecall what [Mr. Klimas'] recommendation was [regarding sanction]? Mr. Archier: Objection. 4 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAffiE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINEpenalty calculation, and thereafter get a free pass to submit whatever information it wants at hearing, affectively blindsiding Respondent.

Mr. Dworkin: Are you instructing himnotto answer? Mr. Archier: Yes, I am... Mr. Archier: Any further questions along that line, I'm going to object onthe basis ofthe protective order. (DepositionTranscript 9:20-25;10:1-4, 13-15) Mr. Dworkin: As I read the sanction guidance table in Order 2150.3B for HAZMAT cases, ... ifyoutake the $206,550 and divide itby 12, you get something far in excess of what is inthe grid inthe matrix. Is that a true statement? Mr. Buchanan: That is a true statement. Mr. Dworkin: Why did the FAA exceedwhat is contained inthe grid inthe hazardous materials sanction guidelines- (in this case?) Mr. Archier: Objection. That question falls within the deliberative process privilege, which is protected by the protective order. I am instructing the witness notto answer that question. (Deposition Transcript 12:13-25;13:1-2) Deposition ofPaul Daniel Klimas- Transcriptportion attached as Exhibit "B" Mr. Dworkin: What did youput in [redactedportion ofEnforcement Investigation Report]? Mr. Archier: I'm going to objectto that question. This document thatis redacted is redacted by the attorney, me. He does not make the redactions. The material that's redacted here goes directly to the protective order and the material that's underprotection ofthe protective order. Mr. Dworkin: Okay. Are you directing him not to answer? Mr. Archier: I am directing him not to answer that question. Mr. Dworkin: And, likewise, ["EnforcementDecision Tool Worksheet"], are you directing him notto answer? Mr. Archier: Thatis correct. Mr. Dworkin: And likewise, ["Hazardous Material EDP Worksheet"], you're also instructing him notto answer any questions regarding what he had inserted inthatreport? Mr. Archier: Thatis correct. Mr. Dworkin: Andthat goes onfor pages 3, 4, 5, and 6? Mr. Archier: That is correct. (Deposition Transcript 22:5-25; 23:1-5) 5 FAA Case No. 20llSW700189/FAADocket No. FAA-2013-0040 MARTJNATRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS TN LIMINEAtthis point in the proceedings, any attempts by Complainantto submit evidence that the exorbitantpenalty has some basis, would severely prejudice Respondent whom has been denied each and every opportunity to formulate a defense to the sought sanction amount.6 

### RESPONDENT'S RESPONSE TO COMPLAINANT'S RESPONSE TO MOTIONINLIMINENO. 2 Motion in Limine No. 2 seeks to preclude testimonies ofpersons whom have not previously been identifiedby Complainant as its witnesses and any expert or opiniontestimony (inasmuch as Complainant, in its discovery responses, stated that it would only be utilizing two witnesses, Special Agents Paul Klimas and Bryan Buchanan, whom it disclosed as those persons mostknowledgeable). Complainantfurther stated that it wouldnotutilize expertwitnesses or elicitexperttestimony. Messrs. Klimas and Buchananhave testified at deposition that Complainanthas

never sought a civil penalty ofthis size for alleged NOPIC violations and, in fact, this civil penalty is severaltimes the size ofthe maximum civil penalties that Complainant has ever sought for a NOPIC violation against any air carrier, large or small. As clearly set forth in Motion inLimine No. 2, Complainant steadfastly refused to allowits witnesses to testify at deposition as to the Complainant's penalty calculations and refused to otherwise provide informationregarding appropriateness ofsanction. To

6 Under FRCP 37(c)(l), Courts have repeatedly precluded admission ofevidence regarding damages when a party has refused to provide said information during discovery. Hoffman v. Construction Protective Services, Inc. (9th Cir. 2008) 541 F.3d 1175, 1179-1180. 6 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINEnow allow Complainant's witnesses and/or experts to testify at hearing about their penalty calculations, is patently unfair and prejudicial and violates due process. Further, as a means ofextricating itselffrom its prior disclosure that it was not going to call any expertwitnesses, Complainant nowasserts that Messrs. Klimas and Buchanan are being called as lay witnesses, not experts. This is nonsensical. The fact ofthe matter is Messrs. Klimas and Buchanan are FAA Special Agents specifically trained in the HMR's, investigation ofpotential hazardous materials violations, determining penalty amounts and making penalty recommendations. Laypersons are not saddled with such duties. They are experts in every

sense ofthe word. However, Complainant emphatically stated in its prior discovery responses that it did notintend to utilize or call any experts. RESPONDENT'S RESPONSE TO COMPLAINANT'S RESPONSE TO MOTION IN LIMINE NO. 3 Motion in LimineNo. 3 seeks to preclude evidencethatHMR Section 175.33, and specifically the requirement for a NOPIC, has beenpromulgated and exists for the purpose ofproviding assistance to first responders inthe event ofan aircraft mishap. Complainant seeks to provide testimony that NOPIC's are required for otherthan the purpose as specifically enumerated in HMR Section 175.33. Both Inspector Paul Klimas, Complainant's investigating inspector (and designated by Complainant as one ofits two persons most knowledgeable) and Bryan Buchanan, Complainant's Manager, Hazardous Materials for SouthwestRegion (and designated by Complainant as its secondperson most knowledgeable) in their depositions

7 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINEtaken at Arlington, Texas onMay 17, 2013, admittedthatthere are no written FAA opinions, handbooks, orders, advisory circulars or other publicly disseminated orpublicly available information that states thatthe NOPIC, which serves as a notice to the pilot in command, is also to be usedfor emergency response purposes. (Klimas Depo. 9:20-23 and 9:24-10:13;7 Buchanan Depo. 9:11-198). Complainanthas characterized Messrs. Klimas and Buchanan as mere lay witnesses. As itis clearly uncontroverted that there is no FAA written guidance separate from the language inHMR Section 175.33 itself, theirtestimonies concerning the any purpose for which a NOPIC is designed, other than as setforth inHMR Section 175.33, would not only be contrary to their sworn deposition testimonies butwould be mere speculation and conjecture. 9 CONCLUSION Forthe foregoing reasons, Respondent asks thatthe Administrative Law Judge grant each ofthe Motions inLimine.

7 The entire transcript ofMr. Klimas' deposition was previously submitted under cover of Respondent's Transmittal ofExhibits on June 26,2013, as Exhibit F thereto.

8 The entire transcript ofMr. Buchanan's deposition was previously submittedunder cover ofRespondent's Transmittal ofExhibits onJune 26,2013, as Exhibit G thereto. 9 A Motion inLimine canprevent speculation testimony. Bradley v. Brown (71 h Cir. 1994) 42 F3d 434,438. 8 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINEDatedthis 3rd day ofJune, 2014

9 Attorney for Respondent MARTINAIRE AVIATION, LLC

FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINECERTIFICATE OF SERVICE The undersigned hereby certifies that onthis 3rd day ofJune, 2014, a true and correct copy ofthe foregoing MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO MOTIONS IN LIMINE

was served as follows: Federa1 Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 {Original and One Copy viaFederal Express} The Honorable Richard C. Goodwin Office ofHearings, M-20 1200NewJersey Avenue, S.E. East Building Ground Floor, Room E12- 320 Washington, D.C. 20590 (Email:**lSJ~hllJ<:i,Qgggy.ril}@'lcJt,g(Jy; p~)ricja,llJAttl!t:',YS@ggt,gQy)**  {Email andFederalExpress} James Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel, ASW-7 260 1Meacham Boulevard, Suite 6E Fort Worth, TX 76137 (Email: james.archier@faa.gov) {Email andFederalExpress}
10 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATTON, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINE11 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO RESPONDENT'S MOTIONS IN LIMINE