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 0 4 2014 

HEARING DOCKET 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

MARTINAIRE AVIATION, 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 LAW JUDGE, 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 

of Civil Procedure, Martinaire Aviation, LLC (Respondent) filed three separate Motions 

in Limine seeking the preclusion of evidence relating to Complainant's calculation, 

determination, deliberation or other reflection of the appropriateness or reasonableness of 

the sanction amount sought in this action. 

Complainant responded to the Motions, purporting to justify the inclusion of such 
prejudicial evidence, 1 which necessitates the filing of this 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 of the penalties sought in 

similar cases. 3 

1 Yeti By Molly Ltd. v. Deckers Outdoor Corp. (9111 Cir. 2001) 259 F3d 1101, 1105-1107 

(Trial court did not abuse its discretion in granting a Motion in Limine as a discovery 

sanction to exclude expert testimony based on defendant's untimely production of the 

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 Motion in Limine to preclude admission of evidence 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 of Respondent's Request for Judicial Notice (and 

the attachments thereto identifying NO PIC cases in which 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 LIMINE 
Now, 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. 

On July 8, 2013, the AdministrativeLaw Judge granted Complainant's Motion for 

decision on the allegations in the complaint. The only issue that remains is the 

appropriateness of the $206,550.00 penalty sought in this matter. 

If Complainant is permitted to elicit evidence at hearing as to how it 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 of any 

evidence of or relating to Complainant's calculation, determination, deliberation or other 

reflection of the appropriateness or reasonableness of the sanction amount sought in this 

action. In essence, it seeks the very same thing that Complainant sought in its Motion for 

Protective Order! 

Complainant argues that if the 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 out what should be considered when determining the 

amount of penalty. In a complete 180 degree turnabout from its prior stance, 

considerably less), filed May 14,2014, which the Administrative Law Judge Granted on 

May 27, 2014. 

3 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE 
Complainant argues that the "Court must hear from the [FAA's] witnesses who have 

investigated Martinaire's conduct in this case."4 

In other words, Complainant is now stating that, although it has precluded 

Respondent from any discovery in to the "deliberative process" in the determination of 

sanction, it now needs its witnesses and experts to testifY as to its internal discussions 

regarding appropriateness of the sanction (as that is the only issue in this case). 

Complainant's argument is both specious and disingenuous. Respondent utilized 

every available means to obtain information about Complainant's "deliberative process," 

and has been denied same. Allowing Complainant to provide evidence at hearing to 

justify a proposed sanction which is far out of line with established precedent, after 

refusing Respondent the opportunity to engage in pre-hearing discovery seeking such 

evidence, is directly contrary to the basic tenets of fairness and due process and severely 

prejudices Respondent. 

While Complainant cites Order 2150.3B, nowhere in that Order does it allow 

Complainant to 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 of Brvan Edward Buchanan- Deposition transcripts were previously filed 

on or about June 26, 2013 as Exhibits to Respondent's Response and Objections to 

Complainant's Motion for Decision and Transmittal of Exhibits. 

Mr. Dworkin: Do you recall what [Mr. Klimas'] recommendation was [regarding 

sanction]? 

Mr. Archier: Objection. 

4 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAffiE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE 
penalty calculation, and thereafter get a free pass to submit whatever information it wants 

at hearing, affectively blindsiding Respondent. 

Mr. Dworkin: Are you instructing him not to answer? 

Mr. Archier: Yes, I am ... 

Mr. Archier: Any further questions along that line, I'm going to object on the basis of the 

protective order. 

(Deposition Transcript 9:20-25;10:1-4, 13-15) 

Mr. Dworkin: As I read the sanction guidance table in Order 2150.3B for HAZMAT 

cases, ... if you take the $206,550 and divide it by 12, you get something far in excess of 

what is in the grid in the matrix. Is that a true statement? 

Mr. Buchanan: That is a true statement. 

Mr. Dworkin: Why did the FAA exceed what is contained in the grid in the 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 not to answer that 

question. 

(Deposition Transcript 12:13-25;13:1-2) 

Deposition of Paul Daniel Klimas- Transcript portion attached as Exhibit "B" 

Mr. Dworkin: What did you put in [redacted portion of Enforcement Investigation 

Report]? 

Mr. Archier: I'm going to object to that question. This document that is 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 under protection 

of the 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, ["Enforcement Decision Tool Worksheet"], are you 

directing him not to answer? 

Mr. Archier: That is correct. 

Mr. Dworkin: And likewise, ["Hazardous Material EDP Worksheet"], you're also 

instructing him not to answer any questions regarding what he had inserted in that report? 

Mr. Archier: That is correct. 

Mr. Dworkin: And that goes on for pages 3, 4, 5, and 6? 

Mr. Archier: That is correct. 

(Deposition Transcript 22:5-25; 23:1-5) 

5 

FAA Case No. 20llSW700189/FAA Docket No. FAA-2013-0040 

MARTJNATRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS TN LIMINE 
At this point in the proceedings, any attempts by Complainant to submit evidence 

that the exorbitant penalty 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 MOTION IN LIMINE NO. 2 

Motion in Limine No. 2 seeks to preclude testimonies of persons whom 

have not previously been identified by Complainant as its witnesses and any expert or 

opinion testimony (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 most knowledgeable). Complainant further stated that 

it would not utilize expert witnesses or elicit expert testimony. 

Messrs. Klimas and Buchanan have testified at deposition that Complainant has 

never sought a civil penalty of this size for alleged NO PIC violations and, in fact, this 

civil penalty is several times the size of the maximum civil penalties that Complainant 

has ever sought for a NO PIC violation against any air carrier, large or small. 

As clearly set forth in Motion in Limine No. 2, Complainant steadfastly refused to 

allow its witnesses to testify at deposition as to the Complainant's penalty calculations 

and refused to otherwise provide information regarding appropriateness of sanction. To 

6 Under FRCP 37(c)(l), Courts have repeatedly precluded admission of evidence 

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 Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE 
now 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 of extricating itself from its prior disclosure that it was not 

going to call any expert witnesses, Complainant now asserts that Messrs. Klimas and 

Buchanan are being called as lay witnesses, not experts. 

This is nonsensical. The fact of the matter is Messrs. Klimas and Buchanan are 

FAA Special Agents specifically trained in the HMR' s, investigation of potential 

hazardous materials violations, determining penalty amounts and making penalty 

recommendations. Laypersons are not saddled with such duties. They are experts in every 

sense of the word. However, Complainant emphatically stated in its prior discovery 

responses that it did not intend to utilize or call any experts. 

RESPONDENT'S RESPONSE TO COMPLAINANT'S 

RESPONSE TO MOTION IN LIMINE NO. 3 

Motion in Limine No. 3 seeks to preclude evidence that HMR Section 175.33, and 

specifically the requirement for a NO PIC, has been promulgated and exists for the 

purpose of providing assistance to first responders in the event of an aircraft mishap. 

Complainant seeks to provide testimony that NOPIC's are required for other than 

the purpose as specifically enumerated in HMR Section 175.33. 

Both Inspector Paul Klimas, Complainant's investigating inspector (and 

designated by Complainant as one of its two persons most knowledgeable) and Bryan 

Buchanan, Complainant's Manager, Hazardous Materials for Southwest Region (and 

designated by Complainant as its second person 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 LIMINE 
taken at Arlington, Texas on May 17, 2013, admitted that there are no written FAA 

opinions, handbooks, orders, advisory circulars or other publicly disseminated or publicly 

available information that states that the NO PIC, which serves as a notice to the pilot in 

command, is also to be used for emergency response purposes. (Klimas Depo. 9:20-23 

and 9:24-10:13;7 Buchanan Depo. 9:11-198). 

Complainant has characterized Messrs. Klimas and Buchanan as mere lay 

witnesses. As it is clearly uncontroverted that there is no FAA written guidance separate 

from the language in HMR Section 17 5.3 3 itself, their testimonies concerning the any 

purpose for which a NO PIC is designed, other than as set forth in HMR Section 175.33, 

would not only be contrary to their sworn deposition testimonies but would be mere 

speculation and conjecture. 9 

CONCLUSION 

For the foregoing reasons, Respondent asks that the Administrative Law Judge 

grant each of the Motions in Limine. 

7 The entire transcript of Mr. Klimas' deposition was previously submitted under cover of 

Respondent's Transmittal of Exhibits on June 26,2013, as Exhibit F thereto. 

8 The entire transcript of Mr. Buchanan's deposition was previously submitted under 

cover of Respondent's Transmittal of Exhibits on June 26,2013, as Exhibit G thereto. 

9 A Motion in Limine can prevent speculation testimony. Bradley v. Brown (71

h Cir. 

1994) 42 F3d 434,438. 

8 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE 
Dated this 3rd day of June, 2014 

9 

Attorney for Respondent 

MARTINAIRE AVIATION, LLC 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 3rd day of June, 2014, a true and correct 

copy of the foregoing 

MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S 

RESPONSES TO MOTIONS IN LIMINE 

was served as follows: 

F edera1 Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

{Original and One Copy via Federal 

Express} 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey 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 and Federal Express} 

James Archier, Esq. 

Federal Aviation Administration 

Office ofthe Regional Counsel, ASW-7 

260 1 Meacham Boulevard, Suite 6E 

Fort Worth, TX 76137 

(Email: james.archier@faa.gov) 

{Email and Federal Express} 

10 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE A VIA TTON, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE 
11 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REBUTTAL TO COMPLAINANT'S RESPONSES TO 

RESPONDENT'S MOTIONS IN LIMINE