03/11/2018 IS:28 13128533924 HOFF & HERRAN PAGE 02/10 

John Scott Hoff 

(IL/IA/NE/CAAVI/MI/CD/IVIN/NY) 

Alex Hetian (IL) 

LAW OFHCES 

HOFF & HERRAN 

A Partnenlitp iDChidin); Piofes$tonil Cotpondoiu 

135 South LaSalle Street, Suite 3300 

Chicago, Ulinois 60603-4134 

Tel: 312/346-8111 

Fax; 312/853-3924 

WEB Site; vvww.aviationattomey.com 

JefiSrey F. Clement (IL) 

Timothy J. O'Connell (IL) 

Glenn Collins. Of Counsel (IL) 

March 11,2010 

VIA FACSIMILE AND U.S. MAIL 

Healing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW., Room 924A 

Washington, DC 20591 

Attention: Hearing Docket Clerk 

RE: FAA v. MIDWEST 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 Ruling as to Testimony of Gerry F. Yentrella and Second Motion for 

Continuance of Hearing the two abovc-captioned matters. Kindly file this document 

vwth 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 

a. 

Jeff Clement 

'pyh^^f^-^ 

JFC^as 

cc: Kate Barber, Esq. (one copy via facsimile and U.S. mail) 

The Honorable Richard C. Goodwin (one copy via facsimile and U.S. mail) 
03/11/2010 16:28 13128533924 HOFF & HERRAN PAGE 03/10 

• - -J 

crs 

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. FAA-2009-0973 

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 counsel, 

hereby respectfiilly request that the U.S. Administrative Law Judge enter a pre-Hearing ruling 

that Geny F. VentreUa may offer opinion testimony in favor of Respondent at the Hearings in 

these matters. Further, Respondent respectfully requests that the Court continue the Hearings in 

these matters on the basis that Mr. VentreUa 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 respectfiilly states as follows: 
03/11/2010 16:28 13128533924 HOFF & HERRAN PAGE 04/10 

A. Motion for Ruling as to Testimony of Gerrv 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 91.13(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 for 

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. Gerry F. Ventrella will testify that neither of the subject lifts required a CAP. See 

report. Exhibit A. 

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

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

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

matter arising out of the employee's official duties or the functions of the 

Department, for any party 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 testify as to facts or events that are in no wav related to 

the employee's oJG5cial duties or the fjjpctions of the Department. 

' Former employees are included within the definition of "employee of the Department.'* 49 C.F.R. § 9.3. 
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7. Over the course of Mr. Ventrella's 40 plus year career as a professional helicopter 

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

Inspector for approximately 3 VS years. 

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

ended over 20 years ago. 

9. In the present case, Mr. Ventrella will be offering objective expert testimony 

about heavy lift operations that occurred in 2008,20 years after the cessation of his employment 

with the FAA. Mr. Ventrella's former duties have no fiactual nexus whatsoever with either of 

the two subject heavy lift operations. Clearly, per the intent of the Regulations, Mr. Ventrella's 

testimony has no nexus with and is in "no way related" to his former duties with 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. Ventrella's 

ophiions do not "arise out of his former brief employment with the FAA. His opinions will not 

be based on his 3 Vi year employment with the FAA, but on his 40 plus year career as a 

helicopter/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 

from 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 feet, most persons who offer expert 

testimony within the field of aviation have had some former nexus with the FAA. Simply 

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

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

which a Respondent may choose, and be potentially violative of a Respondent's due process 

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

small, even more so if Respondent is restricted to individuals without any former nexus with the 

FAA. 

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

distinct issue that requires full 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 untested issue. 

13. Accordingly, Respondent seeks a Pre-Hearing Ruling that Mr. Ventrella 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 infonned that Mr, Ventrella 

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

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

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

to testify on April 29 or April 30,2010. 

15. Therefore, Respondent respectfully requests that the Judge continue the scheduled 

Hearings in these matters to a date after July 2010 when Mr. Ventrella can ^pear in person to 

testify. 

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

has conferred with counsel for the FAA regarding the above-referenced continuance. Counsel 
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for the FAA stated that they objected to the continuance, as well as to the use of Mr. Ventrella 

by the Respondent. 

WHEREFORE, Respondent respectfully requests the Administrative Law Judge enter an 

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

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

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

Dated: March 11,2010 

Respectfully submitted, 

HOFF & HERRAN 

Ua^^rn^ ^ 

Jeff Clement 

John S. Hoff 

Jeff Clement 

Hoff&Herran 

135 South LaSalle St., Suite 3300 

Chicago, IL 60603 

(312)346-8111 

(312) 853-3924 (FAX) 
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QEBBY EVENTBELLA 

. • PILOT SgRVlOES 

^ ^ ^ PMDEStSNATSO PILOT eXAMINER 

o 

^^^*^* ' " " ' ' " -•il l I, -^•^^^—-^^—aw ' 

P.O.Box31763 • ChlO«go,lL«0$31-07fl3 - Phom;773.793-7382 • Cellphono:7ra'694«27ge - EmaU;gv«mrcl)a««(j|.oom ' 

20 October 2009 

Ouftdflraphlcs External Lift Operation 

I am d former Pederal Aviation Administration Aviation Safety Inspector (Operations). I was employed at 

DuPaga Fllglit Standards District Offlca from ianuory 1978 thnpugh October 1979 «nd September 1987 

through S6ptemb6r 1989. I was also the office h^Wcoptar fipedallsL l was trftlned hy Theo Moore and 

D«nlel MattisldWls^ In h«IIeopter operations. They were both experienced helicopter pilots that 

performed menv different helicopter operations as well as external flfts, l am also an experienced 

helicopter pilot that has parformed many different helicopter operations as well as extomalllfts. w « 

would evaluate helicopter operator congested area plans for safety concerning the public. 

TIte congested area plan is a requirement In «in area where pedestrians or workers may unknowingly 

place themselves In barms way baceuse of ah external load operation. 

First of all we will exemtne the term congested araa. In the context of a fixed wing aircraft It Is an area 

that 1$ defined on a sectional or class B chart as yeltow. An elrcraft other than a helicopter must 

\s maintain minimum safe aitftude because of It's requirement for a large space to land In an emargency. 

The more maneuverabte helicopter Is exempt The area we are addressing for an external load means 

congested In the context of the public having access where they may be in danger because of the 

external load operation, when I served as an Inspector I monitored many external load operations. 

There wers numerous operations that did not require a congested area plan and did not need 

monitoring because they were not a hazard to the public l have also served as a pilot on external load 

operations. 

Performing this type of operation elong public access streets requires a plan. The plan explains how the 

public will be prevented from walking near the io«d, It also outlines where the load may be dropped in 

an emergency and where the helicopter may land or even crash If disabled. These areas must be 

guarded In case of unforeseen problems. When operating along public streets and sidewalks the erea 

must be blocked fronr) public access, There are also jobs thattaice place on buildings that are occupied. 

A plan Is required to indicate how the building wilt be evacuated and secured until the Job Is complete. 

The external lift operation performed by Midwest Helicopter on 31 Oct 2008 at Quadgraphlcs In 

Menomonee Falls, Wisconsin was at a building that was under construction. The building was not 

operational and it v/as In an erea that Is not readily accessible to the public. The people present were 

there for the Job. The plant operations manager^ ivir< iviark Benson WAS present at the job site- He 

indicated he was at the pick up point during the operation and would be able to intercept a pedestrian 

in the unlikely event that one would happen to pass by. 

Thcr lift work was performed from the South parking lot. The road to the South of the lot was not 

completed and was barricaded. The west side of the buiiding la bordered by a large f ioid arid then a 
03/11/2010 15:28 13128533924 HOFF & HERRAN PAGE 09/10 

\ ^ 

bridge that crosses over e railroad which borders the North side of the building. Nonh of the tracks 

there Is an Industrial area. East of the buiiding Is a large open field with a smell garage, south of the 

road on the Souih side of the foultdlng where the operation took place Is a long pond. South of the pond 

is a thick tree line. There ere houses south of the tree line but people living there would not be able to 

walk through the tree llrw and cross the pond and road to reach the job alte. 

The enclosed photos will Indicate that this area Is not accessible to the public. My opinion of this job 

site Is that a congested area plan would not be necessary because of the location of the building and the 

natural barriers preventing access. 

Please feel free to conl»ct m« if you have any quesQons, 

I win be out of the country until 25 January 201D, i can be reached at gvemrella<g)»f^t.»r..^ 

J U ^ 

Geny i^ Ventrella 

K ^ 
03/11/2010 16:28 13128533924 HOFF & HERRAN PAGE 10/10 

CERTIFICATE OF SERVICE 

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

via facsimile and by depositing said document in an envelope, sealed, first-class 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: Hearing Docket Clerk, AGC-430 

Wilbur 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 

Dcs Plaines, IL 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.E. 

East Building Ground Floor 

RoomE12-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

Jeff" Clement 

m^j^i4^