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US DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC ! "I 

IN THE MATTER O F 

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 

COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION FOR RULING 

AS TO TESTIMONY OF GERRY F. VENTRELLA AND SECOND MOTION 

FOR CONTINUAN E 

Complainant, by and through the undersigned counsel, hereby requests that tlie 

U.S. Administrative Law Judge enter a pre-heahng ruling denying the opinion testimony 

of Mr, Gerry F. Ventrella (Mr. Venirella) at the Hearings regarding these matters. 

Further, the Complainant respectfully requests that the Court not continue the Hearings 

scheduled for April 29 and April 30,2010 on the basis that the witness will not be 

available on those dates. In support of the objections, the Complainant states as follows; 
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1. The FAA objects to the use of Mr. Gerry F, Ventrella as an exjjert witness giving 

opinion testimony on the basis of 49 C.F.It § 9.7(b) which states; 

(b) An employee may testify for the United States both as to facts within 

the employee's personal knowledge and as an expert or opinion witness. 

Except as provided in paragraph (c) of this section, an employee may not 

testify as an expert oi 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. An employee who receives a demand to testify 

on behalf of a party other than the United States may testify as to facts 

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

subject to the prior approval of agency counsel and to the Federal Rules of 

Civil Procedure and any applicable claims of privilege. 

2. Mr, Ventrella was employed by the FAA as an Aviation Safety Inspector for 3.5 

years, 20 years ago. The FAA submits that 49 C.F.R. § 9,7(b), applies to hiro and 

bars his testimony because he was former employee. The definition of 

"employee" when in terms of the applicable statute is made clear by 49 C.F.R. § 

9.3, which states: 

Employee of the Departmeait or Employee means any current or former 

officer or employee of the Department; any active duty, retired, or former 

officer or enlisted member of the Coast Guard; or any current or former 

contractor (including any corporation or other entity and any employee or 

subcontractor). 

3. The Respondent argues that is has been 20 years since the cessation of Mr. 

Ventrella's employment with the FAA, The time period that has lapsed since his 

employment with the FAA does not negate or mitigate the fact that he was an 

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

provisions or exceptions in the regulation that allow for the passage of time 

between being employed by the United States and the testimony being a factor in 

the decision of whether or not the statute applies to the particular witness. 
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4. Mr, Ventrella is being offered as an expert witness to testify to whether or not the 

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

The FAA Flight Standards District Offices (FSDO) that have jurisdiction over the 

area in which an operation will be conducted arc the determining officials that 

give approval for the congested area plan. This determination is made by the 

Aviation Safety Inspectors at the FSDO and this determination arises in their 

official duties and the functions of the department. 

5. During the time period Mr. Ventrella was employed by the FAA he was an 

Aviation Safety Inspector. In Respondent's Exhibit A, Mr. Ventrella, states that 

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

Dupage Flight Standards District Office. He goes on to state that he was trained 

by other experienced helicopter pilots in the agency that had performed external 

lifts. He also staled that during this time period as an Aviation Safety Inspector 

one of the functions of his job was to evaluate congested areas plans. He stated, 

"We would evaluate helicopter operator congested area plans for safety 

concerning the public." It was an official duty of his as an Aviation Safety 

Inspector to make the same detenninations that the Respondent is requesting that 

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

duties as an Aviation Safety Inspector with the FAA and not only is it related to 

his former duties, but it actually was a former duty, 

6. Accordingly, the FAA objects to any and all testimony offered by Mr. Ventrella 

on the basis that his testimony is barred by 49 C.F.R. § 9.7(b). 
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Wherefore, the Complainant respectfully requests that Mr. Ventrella be barred from 

offering any opinion or expert testimony in the above two hearings. The Complainant 

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

Ventrella, if he is fact barred from testifying at the hearings. 

Dated this 25th day of March 2010. 

Respcctfiilly Submitted, 

Jeffrey Klang 

Regional Counsel 

ite Barber 

Attorney 

Federal Aviation Administration 

2300 E. Devon 

DesPlaines,IL 60018 

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

ATTORNEY FOR COMPLAINANT 
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CERTIFICATE OF SERVICE 

I hereby certify that I have this date placed a copy of the COMPLAINANT'S 

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

and by Fax addressed to: 

HofifandHerran 

135 S. LaSalle Street Suite 3300 

Chicago, XL 60603 

Fax:312-853-3924 

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

transmission, and placed an original in the United Slates mail, postage prepaid, addressed 

to: 

The Honorable Richard C, Goodwin 

Administrative Law Judge 

Office of Hearings, M-50 

Room 5411 

U.S. Department of Transportation 

400 Seventh Street, SW 

Washington, DC 20590 

FAX: (202) 366-7536 

Hearing Docket 

FAA, AGC-400 

600 Independence Ave., SW 

Room 2014 

Washington, DC 20590 

FAX: (202)493-3020 

TEL: (202) 385-8229 

Dated this 25'" day of March 2010.