## ...



# u.s. DEPARTMENTOFTRANSPORTATIJiU?(")ElVED 

# AUG 

# 122013 OfficeofHearings Washington, D. C. 

# HEAR1NG DOCKET

TheLibertyFoundation, Inc. FAA DOCKETNO. 2012-0477 (EIR 2011-GL-03-0070)

(Civil PenaltyAction) Hon. J. E. Sullivan,Administrative LawJudge

RESPONDENT'S REPLYTO COMPLAINANT'S RESPONSE IN OPPOSITIONTO MOTIONTOCOMPEL !······

2,:.,••!**~·**..**~.** '"' ....


## Respondent herewith briefly replies to Complainant's Response In Opposition To Respondent's MotionTo Compel. Complainant concedes in its Response that it agreed to the deposition of its expert witness, Timothy Bourgoine, after the discovery deadline in the Court's most
recent scheduling order. When counsel were discussing the out-of-time depositions of
two of Respondent's witnesses as well as of Mr. Bourgoine, neither ever hinted or suggested follow-up discoverywould be opposed. Opposition in these circumstances is "gotcha" practice and should not be permitted especially where, as here, there is no prejudice whatsoever to Complainant. Complainantdoes not even suggest itwould be prejudiced by responding tothefollow-updiscovery. Complainant states in its Response the follow-up discovery is moot because it "did not pertain to the witness who was deposed on June 18, 2013. Instead, they pertain explicitly to the testimony of Don Dodge, who was deposed by Respondent on

STUARTA. GOLDSTEIN, P. A. 9350SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI', Fl 33156 T: (305) 670-1222 F: (305) 670-7065 EMAIL:STUABTGOLDSTEINPA@ATTNET

### 2 

## May 1, 2013." This assertion is false. The fact is Mr. 8ourgoine (deposed on June 18th) disagreed on a significant issue with Complainant's other purported expert, Don Dodge. Hence the follow-up discovery and its relevance. Mr. Dodge testified quite positively there is no type certificate data sheetforthe 8-17 aircraft. At page 22 ofthe transcript of his deposition, Mr. Dodge stated twice the 8-17 does not have a type certificate data sheet (at lines 3-4 and 21). Mr. Dodge was then shown Deposition Exhibit 13 and asked ifthatwasthetype certificate datasheet. His answer: "No. It is a specification." See, Composite Exhibit A (Dodge deposition pages 22-23 Deposition Exhibit 13)attached heretoand made aparthereof. In sharpcontrastto Mr. Dodge'stestimony, Mr. 8ourgoinestated in hisdeposition
at page 55 that he has seen the type certificate data sheetfor the 8-17. He was then shown Deposition Exhibit 13 and agreed it isthetype certificate datasheetforthe 8-17. See, Exhibit 8 (8ourgoine deposition pages 55-57) attached hereto and made apart hereof.Given the spirit of the Court's scheduling order to permit follow-up discovery to expert depositions and the total lack of prejudice, or even suggested prejudice, to Complainant by the granting of Respondent's Motion To Compel, 

## Respondent respectfully requests its MotionTo Compel begranted. Respectfullysubmitted STUARTA. GOLDSTEIN, P.A. 9350 South Dixie Highway, 1Oth Floor Miami, FL 33156 Tel: (305) 670-1222 Fax: (305) 670-7065

# :~1:td'd:et;t:t StuartA. Goldstein

STUARTA. GOLDSTEIN, P. A. 9350SOUTHDIXIE HIGHWAY, 10THFLOOR, MIAMI, FL 33156 T: (305) 670·1222 F: (305) 670·7065 EMAIL:STUARTGOLDSTEINPA@ATTNET

### 3



### CERTIFICATEOFSERVICE


### I HEREBY CERTIFY that the foregoing has been served on this 3rd day of August, 2013, assetforth below: An original and onecopyto: Hearing DocketClerk,AGC-430 FederalAviationAdministration 800 IndependenceAvenue, S. W. WilburWright Building, Suite2W1000 Washington, D. C. 20591 Onecopyto: Christopher R. 

### Stevenson, Esq. Officeofthe Regional Counsel FederalAviationAdministration P. 

## 0. Box20636 Atlanta, GA 30320 By Facsimile (404) 305-5223 and regular U. S. Mail
and one copywas served wasserved uponthe Courtbyserving: HonorableJ. E. Sullivan Officeof Hearings, M-20 U.S. DepartmentofTransportation 1200NewJerseyAvenue, S. E. {E11-310) Washington, D. C. 20590 By Facsimile: (202) 366-7536 and regular U.S. Mail



## By:

# ~a..

# JkMF- tuart A. 

### Goldstein

STUARTA. GOLDSTEIN, P. A 9350SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FL 33156 T: (305) 670-1222 F: (305) 670-7065 EMAIL:STUARTGOLDSTEINPA@ATT.NET

### Don Dodge In Re: LibertyFoundation May I,2013



## 1 

## Q. You are not referring to the type 2 certificate data sheet? 3 A. It doesn't have a type certificate data 4 sheet. 5 

## Q. Are you sure? 6 A. I don't believe so. 7 Q. And you have seen the type design? 8 A. Yes. 9 

## Q. Do you have a copy of it in your file? 10 A. No. We have a copy of the pilot's ground 11 familiarization manual that was provided by the 12 operator. 13 Q. So where did you see the type design? 14 A. I had to do my research on the Internet. 15 

## Q. So you saw it on the Internet. 16 A. Yes. 17 Q. You didn't print a copy of it out? 18 A. No, I did not. 19 Q. 

## Have you seen the type certificate data 20 sheet? 21 A. There is no type certificate data sheet. 22 This is a limited military aircraft. I would be very 23 surprised if there was one. 24 (Exhibit 13 was marked for 25 identification.)

( ·,:!{**,,~ -...;,.)~;)·.**  REGENCY-BRENTANO, INC. 

# A Page22

## • EXHIBIT 

# I 

# J3 WJl**~~/t//3** (KG ROp!LSI Boeinq (Army) B-17P, B-17G (Appro•e4 12/2/Q6) SP!CIPICATIOI RURBIR: L-1-J (Holder of Liaite4 Type certificate: transcontinental an4 leatern Air, Inc., vaabinqton, D.C.) lnqinea Pial !nqine lt..ita

Airapeed Uaita

Raaimu• ••iqht e.G. range DatuM KAC Other operatinq

limitations: Certification baaia Production basis Baport eliqlbility • lriqbt Cyclones 11820·97 100 minimo• octane (CPI) a•iation qrade gasoline**Raa~u..** e1cept tate-off (lo• blo•er plus turbo),

39.5 in. Bq., 2300 rp,. (1000 bp) (sea lnel to 25,000 ft.) Take-off (fi•e minutea), 55 in. Rq., 2500 rpm (1200 bp) 1. Hamilton standard 23150 hub, 6153A-18 bladea

(for interchanqeable blades aee Aircraft Propeller specification lo. 603, lOti 6). and GoYernor Ult, or 2. Hamilton standard 23150 hmb,**6~77A-O** blades

(for lntercbangeable blades aee Aircraft Propeller Specification lo. 603, lOTI 6), and GoYernor**~Ga.** LeYel flight or climb

- 225 mph true Ind. Glide or diYe

- 27a ,.ph true Ind. Raat.u• flap speed:

with power ott

- Ia& mph True Ind. with power on - 106 mph true Ind. 59,000 lbs. (See lOTI 6) 20 percent KAC to 32 percent RAC Leading edqe vinq at root chord (196.16 in. from

nose section) 177.5 in. L.l. HAC (+30.3) Army T.O. Mo. AI01-201P-1 (Rodel B-17P); AI01-201G•1 (Hodel B·11G) (See lOTI 2) Limited Type Certificate lo. 1 (CAB 9 effect!••**11/21/~6)** lone may be produced under this approYal lot eligible for a Certificate of Airworthiness

tor !zport. BQDIPRIIT: 10 equipment other than engines and propellers are specified. RoweYer, the equipment required by CiYil Air Requlations Part q3.30 for IC aircraft for the proper operation of the aircraft must be installed. In addition, the aircraft may incorporate such military equipment (ezcept armament) as was oriqinally incorporated in the type for military or naval serYice. Additional equipment may be installed vhen it is subatantiated that it preaenta no hazard to safety. NOTI 1. Weight and Balance Report includinq list of equipment included in the certificated empty weiqht must be obtained for each aircraft.**~rmy** or laYy weight recorda, vhen aYailable and in reasonably current condition, may be submitted in lieu of an actual veiqht. The equipment list need include no more than the follovinq: (a) Required equipP18nt as defined under "I!QDIP!II!HT" aboYe. (bl Additional items as may be reasonably considered remoYable and aro so located or of such veiqht that their remoY&l or addition could noticeably affect the weiqht and balance of the aircraft. Items built into the aircraft structure need not be listed. The equipment list must be prepared by the applicant for the approYal of the certificatinq C.A.A. representatiYe and in such form that it can be attached to the C.A.A. Operation Limitations. NOT! 2. The following statement must appear on the Operation Limitations: "This airplane must be operated at all times within the limitations set forth in t.o. AN01-BP-1 (for Radel s-17F) or t.o. ANOI-!G-1 (for**~odel** B·17G) eacept in cases of maaimum loadinqs and airspeed limits in vhicb cases the Yaluea giYen in Aircraft Specification No. AL-1 must be obserYed. A copy of the T.O. and the aircrsft specification must be carried in the aircraft durinq flight." In all cases it vill be the responsibility of the applicant to secure a copy of the correct T.O. The c.A.A. does U2! haYe these documents a•ailabla for distribution. MOT! 3. .Ul structural repairs should be made in accordance vith 1\rmy r.o. No. 01•20!-3. If any repairs or modifications (other than those covered in the pertinent**Ar~y** or WaYy repair manuall are made prior to or subsequent to ML certification, it is the responsibility of the ovner to furnish sufficient eiYdence to a CiYil Aeronautics**A~ministration** representati•• to sbov that the modified airplane :naintains the same deqree of airworthiness as the oriqinal. The C.A.A. can qiYe no technical assistance on such matters since complete structural data for ML aircraft are not required by Part 9 and therefore are**~ot** a•ailable in the C.A.A. NOT!**~.** The follovinq placard**shoul~** be**promi~ently** displayed in the

### •

passenger compartment: RThis is a military type aircraft and onder the CiYil Air Regulations shall not be used tor tbe carriage ot passengers or cargo for compensation or hire." NOT! 5. Deleted. NOT! 6. Eligible tor 59,000 poanda vith outer ving tanka filled (Tokyo tanks). lith outer ving tanks empt' mazimam weight limited to 

### sq,ooo poands. lith oater wing tanks partially filled use a straight line Yariation of weight between 54,000 and 59,000 pounds. NOT! 7. For certification for night flying the following mast be accomplished: (a) Replace the wing position lights with certificated units or satisfactorily modify the lights if pertinent. (Type A-9 wing position lights (AI-3033-5 tbrougb -8) mar be satisfactorily modified by painting the inside of the frosted coYer black. Type A-9 (AI-3033-1 throagb -Q) are satisfactory vithoat modification. (b) Replace tbe tail light vitb a certificated anit. (c) If "Brigbt and Dim" conditions are proYided for tbe position lights, either tbe resistors aboald be disconnected from the circuits and a single-pole-single-throw switch shoald be ased to replace the tva single-pole-doable-tbrow switches presently installed for wing-tip and tail lights; or tbe switches sboald be placarded to indicate that only the "bright condition• should be used. In either case the tail light and wing-tip lights should operate on one switch. No original NL airworthiness certificates may be issued after 8/31/48. The list ot mandatory cbanges reqaired prior to original certification may be obtained from CAA Aircraft SerYice, lashington, o.c. Attn: A-298.

# ' I



# I Liberty Foundation, Inc., Bourgoine,Timothyon06/19/2013

•**P~e~** 1 

### MR. STEVmsoN: 

### You already asked him that 2 question, Stuart. 3 MR. OO!.DSTEIN: And 

### I didn't get the answer 4 

### that I th:Jught was responsive. Not that I didn't like, 5 because 

### I know 

### what the answer is. I know

### what the 6 

### regulations say. What I'm askin3 the witness

-- I 7 

### agree, he doesn't have the OOc:ument 

### in front ofhim and 8 

### I can 

### certainlyput it 

### in front of him and I 

### may

## oo 9 

### that. But 

### before I

## oo that, I have a right to ask him 10 

### basedonhis experience as an A&P, because Ms. 

### Wojcik 11 

### believes that**~**A&P 

### is an expert, based

### on his 12 

### experience

-- 13 Q. (By llr. Goldstein) Do you agree, Tim, that 14 Appendix 1 

### to Part43 listsor defines airframe major 15 alteratiODS? 

### 16 A. I c:bn'

### t know. 

### What itdoes is all of the 17 OOc:uments together help ne -- 

### is the 

### guide that I can 18 use 

### to make the 

### decision ifwhat I am

### doing is amajor 19 

### alteration or not. So I can use the 

### definition ofmajor 20 

### alteration 

### in Part 1.1, 

### I can use 

### the guidance 

### in 21 

### AppendixA, 

### which there is atrenm:lous amount 

### of 22 

### guidance 

### inthere. 

### And fran that

-- and 

### if still I'm 23 

### tmSUre, then I can 

### call the FAAarrl 

### talk to 

### my Pages54

..57 of65**P~e56** 1 

### type certificate is owned by 

### adifferent ccnpany. And I 2 

### kept 

### acopyof that with all

### my paperwork. Because when 3 I began**~~~:>rking** 

### on the airplane, I 

### pulled the type 4 

### certificate, I did all the AD 

### searches to clear any ADs 5 

### or make 

### sure we knewwhat ADs 

### we were dealing with. 6 Q. I'mgoing 

### to show

### you 

### adocument that is already 7 marked as an exhibit 

### in this case. 8 ADd thallltyou for sending these 

### to me. 

### 9 MR. STEVENSON: No problem. 10 MR. OOLDSTEIN: I 

## t:hot.J:Iht. Maybe 

### I'm 11 

### mistaken. 12 Q. (By llr. Goldstein) 

### I thiDit it's an exhibit 

### to

-- 13 I'm sorry. It's in Don Dodge's depositicm. 14 Okay. I'mgoing to show

### you adocument, Tim, if 15 I cankeep going. A. 

### Sure. 16 17 Q. 

### llhich isdeposition Exhibit 13, aDd ask

### you if 18 that is the type certificate

### youwere justreferring to 19 

### see. It

### says Transcontinental aDd Western at the top. 20 

### 21 22 A. 

### Right. I'mjust kind of lookin3 itover. Q. SUre. This 

### A. It'sbeen 

### awhile since I looked at this. 23 

### appears to be the 

### same 

### type certificate that I'm familiar with. 24 

### maintenance inspector and

### he can 

### give ne 

### guidance. 24 25 Q. So as I Ullderstandwbatyou're 

### saying is that the 25 Q. The 

### cme youwere justreferring to? Page55 1 detemimltion that the mechanic has to make as to 2 whether or DOt saDething is amajor alterationorDOt is 3 subjective basedupon themechanic's familiaritywith 4 the airplane, with tbe PARs aDd so forth? 

### 5 A. No, it'snot so nUJCh 

### subjective. He 

### has to make 

### 6 the decision

## am I think the FARs 

### kind ofguide itthat 7 

### way. But

... 8 Q. Well, ifit'sDOt subjective, wouldn't 

### you agree 9 thatwbat is stated inthe PARs is the def.l.nition? I 10 mean, it's

-- 11 

### A. I'mnot go:in3 to quibble about what isa 12 definition or what isguidance. I think I'mclearon 13 that I use 

### that OOcument, Appendix

### A, as well as the 

### 14 definition in 1.1 

### as well as talking to the FAA 15 inspector to make 

### that decision. 16 Q. To belp you make adecision as to whether or DOt 17 BaDething is amajor alteraticmorDOt? A. That's correct. Page57 1 A. 

### Yes. 2 Q. If

### you

## maw, is that the same as tbe 

### type 3 certificatedata sheet? 

### 4 A. I believe so. 5 Q. Okay. So it'sreferred to both, as far as 

### you 6 

### !mow, as tbe type certificateaDd the 

### type certificate 7 data sheet? 

### 8 A. Yeah, I believe so. 9 Q. Okay. Do 

### you

## mawwbat a 

### type design is for an 10 aircraft? 

### 11 A. Not familiar with that. 12 Q. Okay. I'mgoing to read to

### you wbat I believe is 13 the definitionof ainorthiness aDd ask

### you if

### you agree 14 or dal't

### agree with it, okay. ADd that is, quote, "It 15 confOIIIIS to its 

### type certificateaDd applicable ADs aDd 16 is inCODditian for safe flight.• 

### 17 A. I think 

### that ispretty close. I nean, if

### you 18 want to look at a real detaileddefinitionof 18 19 Q. Okay. Have 

### you 

### ever seen the 

### type certificateor 

### 19 airworthiness, we can look 

### in the 

### FARs. That covers a 20 the type certificatedata sheet for the r.iberty Belle? 20 

### lotofwhat is irrportant. When

### you look at an airplane 21 22 23 

### A. Yes. 21 

### for airworthiness, you're going to look to see that it Q. Do 

### you 

### recall where 

### you saw it? 

### 22 conforms to the 

### type certificate; that any 

### m.:xiifications A. When 

### I first became involved with the 

### airplane, I 23 to itare appropriately OOcumented; that it conforms to 24 

### pulled the type certificate for B-17. It's un:ler 24 ADs; 

### that any

### mtifications that are done 

### to it, even 25 Transcontinental, I think, it'snot Boeing 

### anymore. The 

### 25 thotgh 

### they're properly OOcumented, that they**~~~:>rk** 

### well



### 1-505-244-3376 New Mexico Depo setadepo@nmdepo.co."l"·••••lllll....,j