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KYLE E. LOMAZOW 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVE., SW 

RE>rro>/, WASHINGTON 9S05 7 

TELEPHONE: 425-227-1847 

FACSIMILE: 425-227-1007 

m\ ^\ ^^ \^> \^ v^\. 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C 

In the Matter of: 

FEDERAL EXPRESS CORPORATION 

In the Matter of: 

EMPIRE AIRLINES, INC. 

FAA Docket No. CPl 0NM0fiIl6 

FAA case No. 2009NM70O556 ' 

DMSNo.FAA-2010-0790 

FAA Docket No. CP10NMq007__ 

F A\ case No. 2OO9NM7OO055^ 

DMSNo. FAA-20IO-079I 

Judge: Richard C. Goodwin 

MOTION IN LIMINE 

AND REQUEST FOR EXPEDITED RULING 

JUDGE G0OD>^TN: 

Complainant, througli her undersigned counsel, hereby moves pursuant to 14 C.F.R. § 13.218, 

for a Motion In Limine concerning Respondent's Noticed Witnesses for the following reasons: 

1. On Axigust 8,2011, Respondent notified Complainant that it had five witnesses that he 

intended to call. From the summary' of tlieir expected testimony, it appears that two of 

these \\1messes are being offered for reasons that are irrelevant and immaterial to these 

proceedings. 

2. Respondent has indicated that Jay Johnston, Regulatory Compliance Manager, will be 

called to testify concerning the rulemaking and discussions surrounding the regulations at 

Issue in this case. He will testify as to the supposed effect on the healthcare industr>* and 

UN3373 shippers if the Federal Aviation Administration's (FAA) interpretation of the 

rule requires carriers to perform an inspection at acceptance of UN3373 shipments. He 

will further testify as to the United Kingdom (UK) recommendations for UN3373 

shipments and how the alleged interpretation will arguably affect international shipments. 

None of this is relevant to the facts at issue in this case. Discussions surrounding the 

deliberative process leading Xo the adoption of the rules at issue here are completely 

irrelevant. Any hazardous material rule entails many discussions leading up to its 

adoption, but none of that is relevant as the final rule is the rule. The rule itself and any 

Agency's Motion in Limine 

DMSNo. FAA-20IO-07pO*FAA-20IO-a79I 

FAA Docket No. CP10NM0006 & CP10NM0007 

FAA Case - 2009NM700056 and 2009NM700065 

Page 1 of 3 

KI-LE E- LOMAZOW, F.^A ATTORNEY 

TEL: A^^.ni. IS47; FAX; •125.227.1007 
08/09/2011 15:19 4252271007 ANM7 PAGE . 03/07 

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published comments from the public would be relevant, but backdoor discussions leading 

up to a finalized rule are not relevant to the facts surrounding this case. Furthermore, the 

UK recommendations for UN3373 shipments is also completely irrelevant. 

Recommendations of any kind are just recommendations. All liiat is relevant here are the 

actual published hazardous materials rules that all carriers and sliippers must adhere to. 

3. Respondent has indicated that Tom Ferguson, Technical Consultant and Instructor, is 

being offered, but does not indicate what he is being offered for as there is no description 

of what he will actually testify to. Instead v^at is being offered is essentially his resume, 

but there is nothing indicating that he has any knowledge of the facts of tliis particular 

case or how his testimony would benefit the court. 

THERBFpRE, tlie Complaint moves that the Administistive Law Judge (ALT): 

a. Preclude the testimony of Jay Jolinston and Tom Ferguson, as their testimony is totally 

irrelevant. 

. b. In the alternative, limit the testimony of Jay Johnston and Tom Ferguson to the facts 

. surrounding this case and prohibit them from testifying about the deliberative process 

behind the hazardous materials rules at issue in this case or any reconunendations to 

changes regarding the regulations. 

c. As the hearing in this matter is set for August 25, 2011, require a Response firom the 

Respondent by August 16, 2011, so the ALf may rule on this matter prior to the hearing. 

DATED this 9"*" day of August 2011. 

Respectfully submitted. 

^'^^ ^ 

Kyle E. Loraazow 

FAA Attorney 

Agency's Morion in Limine 

DMS No. FAA-20](>O790 &. FAA-2010-0791 

FAA Docket No. CP10NM0006 & CPl 0NMO0O7 

FAA Case- 20O9N'M700056 and Z009NM700065 

Page 2 of 3 

fcV-LB E. LOMAZOW, FAA ATTO^tNTV 

TEL: 425.227.1847; FAX: 425.227.1007 
08/09/2011 15:19 •4252271007 ANM7 PAGE 04/07 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Agency's Motion in Limine has been served via facsimile 

and overnight this date, to the following: 

The Honorable Richard C. Goodwin 

Office of bearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm E12-320 

Washington, D.C. 20590 

TEL: 202-366-2139 

FAX: 202-366-7536 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

FAX: 202-493-5142 

Cynthia Chandler-Snell 

Staff Attorney, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B, S"" Floor 

Memphis,TM 38125-S800 

TEL: 901-434-S36I 

¥AX\ 901-434-8283 

Dated this 9th day of August, 2011. 

^^./ < ^- -

^ 

!:1^M£AU ^ 

iana Stephenson 

Office of Regional Counsel (ANM-7) 

Federal Agnation Administration 

160J LindAve. SW 

Renton, WA 98057 

425-227-2164 

Agency's Motion in Limine 

DMS No. F.-VA-ZO 10-0790 & FA.V2010-0791 

FAA Docket No. CP10NM0006 & CF10NM0007 

FAA Case- 2009NM700056 and 2009NM700065 

Page 3 of3 

KYLE E! LOMAZOW. FAA ATTORNEY 

TEI.: 425.227.1S47; FAX; 425.227.1007 
08/09/2011 15:19 4252271007 ANM7 PAGE 05/07 

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KYLE E. LOMAZOW 

FAA OFFICE OF REGIONAL COUMSEL 

1601 LTND AVE., SW 

RENTON, WASHfNGTON 98057 

TELEPHONE: 425/227-1S47 ' 

FACSIMILE: 425/227-1007 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of 

FEDERAL EXPRESS CORPORATION 

In the Matter of: 

CORPORATE AIR 

FAA Docket No. CPlONMOOll 

FAA case No. 2008NM700127 

DMS No. FAA-2010-0977 

FAA Docket No. CPIONMOOIO 

FA.A. case No. 2008NM700126 

DMS No. FAA-2010-0975 

Judge: Richard C, Goodwn 

MOTION IN LIMINE 

AND REQUEST FOR EXPEDITED RULING 

JUDGE GOODWIN: 

Complainant, througli his undersigned counsel, hereby moves pursuant to 14C.F.R. § 13.218, 

for a Motion In Limine concerning Respondent's Noticed Witnesses for tlie following reasons: 

1. On August 8, 2011, Respondent notified Complainant that it had five witnesses that he 

intended to call. From the summary of their expected testimony, it appears that two of 

these witnesses are being offered for reasons that are irrelevant and immaterial to these 

proceedings. 

2. Respondent has indicated that Jay Johnston, Regulatory Compliance Manager, will be 

called to testify concerning the rulemaking and discussions surrounding the regulations at 

issue in this case. He will testify as to the supposed effect on the healthcare industry and 

UN3373 shippers if the Federal Aviation Administration's (FAA) interpretation of the 

rule requires carriers to perform an inspection at acceptance of UN3373 shipments. He 

will furtlier testify as to the United Kingdom (UK) recommendations for UN3373 

shipments and how the alleged interpretation will arguably affect international sliipments. 

None of this is relevant to the facts at issue in this case. Discussions surrounding the 

deliberative process leading to the adoption of the rules at issue here are completely 

irrelevant. Any hazardous material rule entails many discussions leading up to its 

adoption, but none of that is relevant as the final rule is the rule. The rule itself and any 

Agency's Motion in Limine 

DMS No. FAA-20] 0-0977 A FAA.2010^0975 

FAA Docket No. CPION'MOOI I & CPION^-fOOlO 

FAA Case - 200SNM70126 and 2009NN'T70 [27 

Poge I of 3 

KYLE E. LOMAJJOW, FAA ATTORKEY 

TEL; 42?-227-1847; FAX- 425-227-1007 
Q8/0g/201l 15:19 4252271007 ANM7 PAGE 06/07 

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published comments firom the public would be relevant, but backdoor discussions leadmg 

up to a finalized rule are not relevant to tlie facts surrounding this case. Furthermore, the 

UK recommendations for UN3373 shipments is also completely irrelevant. 

Recommendations of any kind are just recommendations. All that is relevant here are the 

actual pubUshed hazardous materials rules tliat all carriers and shippers must adliere to. 

3. Respondent has indicated that Tom Ferguson, Technical Consultant and Instructor, is 

being offered, but does not indicate what he is being oflfered for as there is no description 

of what he will actuaJly testify to. Instead what is being offered is essentially his resimie, 

but there is nothing indicating that he has any knowledge of the facts of this particular 

case or how his testimony would benefit the court. 

THEREFORE, the Complaint moves that the Administrative Law Judge (ALJ): 

a Preclude the testimony of Jay Johnston and Tom Ferguson, as their testimony is totally 

irrele\'ant. 

b. In the alternative, limit the testimony of Jay Johnston and Tom Ferguson to the facts 

surrounding this case and prohibit them fi-om testifying about the deliberative process 

behind the hazardous materials rules at issue in this case or any recommendations to 

changes regarding the regulations. 

c. As the hearing in this matter is set for August 25. 2011, require a Response from the 

Respondent by August 16, 2011, so the ALJ may rule on this matter prior to the hearing. 

DATED this 9^^ day of August 2011. 

Respectfully submitted. 

Kyle E. Lomazow 

FAA Attorney 

Agency's Motion in Limine 

DMS No. FAA-20IO-0977 & F.AA-2a 10-0975 

FAA Docket No. CP ] OKMOO11 & CP1ONMOO10 

FAA Case-2OOSNM70126 and 20.09NM70I27 

Page 2 of 3 

KYLE E. LOMAZOW. FAA ATTORNEY 

TEL: 425-227-IS47;F.'VX: 425-227-1007 
08/09/2011 15:19 ^1252271007 ANM7 PAGE 07/07 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Agency's Motion in Limine has been served via facsimile 

and overnight this date, to the following: 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

Washington, D.C. 20590 

TEL: 202-366-2139 

FAX: 202-366-7536 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC^30 

Wilbur Wri^t Building - Suite 2Wil0OO 

FAX: 202-493-5142 

Cynthia Chandler-Snell 

Staff Attorney, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B, 3''' Floor 

Memphis, TN 38125-8800 

TEL: 901-434-8361 

FAX: 901-434-8283 

Dated this 9th day of August, 2011. 

[2Z^IZ22:^ 

Dana Stephenson 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 LindAve. SW 

Renton, WA 98057 

425-227-2164 

Agency's Motion in Limine 

DMS KD. FA.A-20 10-O977 &. F..\A-2010-0975 

FAA Doclfcl \o . CPI0N\rOOl I A CPION'MOOIO 

FAA Case- 2008NM70126 and 2009NM70127 

Page 3 of 3 

KYLE E. LONV^OW, FA A ATTORNEY 

TEL; 425-227-1847; F.AX; 425-227-1007