### SERVED: March 28,2014 U.S

..DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: ) ) ) ) ) ) LIBERTY FOUNDATION, INC. Respondent DocketNo. FAA-2012-0477

Case No. 2011-GL-03-0070

ORDERGRANTING RELIEF, BUT DENYING THE FAA'S MOTIONTO EXCLUDE EXPERT TESTIMONY / OnAugust 27, 2013 an Order canceling November 2013 Hearing and Granting/Denying OtherReliefwas filed. On February 14, 2014 the FAA filed a Motionto Exclude ("Motion"). On February 19,2014the Respondent filed its Response to FAA's Motion to Exclude ("Response"). OnFebruary 25,2014,the FAA filed a Reply in support ofMotion to Exclude ("Reply"). Order Denying Respondent's Motion for Reliefon Reconsideration was filed On February 27, 2014 the parties convened for atelephone Motion Conference, to present arguments onboth the FAA'sMotion for SummaryJudgment, and the FAA's Motion to Exclude. This Order addresses only the FAA's Motion to Exclude, in which the FAA requests an order excluding any expert opinion testimony offered by tl)e Respondent through Mr. Fowler, Mr. Underwood, orMr. Schneider. I. BRIEFFACTUAL BACKGROUND OnAugust 22, 2011, ten months priorto filing its June 5, 2012 Complaintherein, the FAA filed against Mr. Schneider an Emergency Order ofRevocation, in which the FAA revoked Mr. Schneider's FAA airman and mechanics Certificate No. 002649010, with Airframe and Powerplant ("A and P") ratings. This Order ofRevocation was based on actions that Mr. Schneidertook while volunteering with the Respondentherein, and while working ontheRespondent's B-17 aircraft in February and June 2011. The Respondent, Liberty Foundation, Inc., was not a named party in this action. (Motion for SJ, Exh. W, 1 ). OnJanuary 31, 2012, the FAA withdrew its August 22, 2011 Emergency Order of Revocation againstMr. Schneider, and issued an Order ofSuspension. This FAA January 31, 2012 Order ofSuspension was issued as part ofan agreement and settlementreached with Mr. Schneider onJanuary 30, 2012. As part ofthe FAA's agreement with Mr. Schneider, the FAA's January 31, 2012 Order suspended all ofMr. Schneider's FAA airman mechanics certificates, including Certificate No. 002649010, with A and Pratings, from August 22, 2011 until May 17, 2012 (midnight). (Motion for SJ, Exh. W, 6). On June 5, 2012, the FAA filed its Complaint herein, charging the Respondent with multiple violations ofthe Federal Aviation Regulations ("PARs"). The June 5, 2012 Complaint repeated as allegations againstthe Respondent many ofthe factual findings that were contained inthe January 31, 2012 Order ofSuspension that the FAAhad issued against Mr. Schneider. On June 26, 2012 the Respondent filed its Hearing Request. On September 24, 2012 an Order Setting Litigation Dates and Procedures was filed. Among otherthings, this Order directed the parties to complete general discovery by December 14, 2012 and supplemental discovery by January 31, 2013. The parties were also directed to each otherwith a list ofwitnesses and exhibits no laterthan April 15, 2013. The hearing was set to begin onMay 14, 2013. These dates were later extended. During early discovery exchange (date unspecified), the Respondent identified Mr. Fowler, Mr. Underwood, and Mr. Schneider as "factual" witnesses in response to the FAA's Interrogatory No. 4. (Motion, 2; Exh. A). The Respondent asserted that Mr. Fowler would testify regarding: "his position as ChiefPilot for the Liberty Foundation, his familiarity with the operations ofthe B-17, [and] his participation in atelephone conference call(s) with Mr. Alderman and Mr. Miller discussing the fuel tank issue." (Motion, Exh. A). Inthe same Interrogatory Responses, the Respondent discussed Mr. Underwood's testimony in a full-page response. The Respondent generally identified Mr. Underwood as a "B17 operator," summarizedhis knowledge about the B-17's equipment, his involvement in discussions regarding howto address the B-17 fuel tank problem, the design and installation of the fuel tanks for the B-17 aircraft, and his participation in the February 24,2011 bladder fuel tank removal. (Motion, 2; Exh. A).

Page 2 of 13In addition, the Respondent asserted that Mr. Schneiderwould testify regarding: "His involvementinthe fuel tankreplacement andN390TH. He may describe his actions relatingto the fuel tank maintenance; his meaning and intention onmaking the log bookentry described inthe complaint; his aviation experience; his career in aviation; his experience withthe B-17; andhis participation in telephone conference call(s) relating to the fuel tank maintenance." (Motion, 2; Exh. A). Itwas undisputed that Mr. Raymond Fowler has served as the Respondent's Executive Director and ChiefPilot since approximately December 2004. (Motion for SJ, Exh. R, 6). During the pendency ofthis current litigation, Mr. Fowler has also been actively involved as the Respondent's lay representative, assisting Respondent's counsel with pre-hearing discovery requests and responses. Whenthe FAA conducted aprehearing deposition ofMr. Fowler on April 30, 2013, Mr. Fowlertestified he had "20 plus years in World WarII flying experience." (Resp. to SJ, Exh. B, 6). He served as apilotwith DeltaAirlines and was active with the Air National Guard as an F16 pilot. (!d.). He was the Respondent's Executive Director and "chiefpilot," with a "longstanding involvement" withthe Boeing B-17. (I d.). Nevertheless, Mr. Fowlertestified that he was nottrained inthe aspects ofthe B-17 maintenance. (Resp. to SJ, Exh. B, 1 0). Itwas not Mr. Fowler's area ofexpertise, and he relied on others to givehim information about it. (Resp. to SJ, Exh. B, 10-13). When the FAA conducted a prehearing deposition ofMr. Schneider on April 30, 2013, Mr. Schneidertestified he had worked as an airplane mechanic and maintenance supervisorfor Delta Airlines for 33 years. (Resp.to SJ, Exh. A, 6 and D, 1). He had worked in DeltaAirlines' maintenance hangar in Atlanta, Georgia from 1979 until he retired in 2012. (!d.) Since the fall of 1978, Mr. Schneiderhad held a mechanics A and Prating. (Resp. to SJ, Exh. A, 6). He also had a private pilot certificate, and had built his own airplane. (Resp. to SJ, Exh. A, 6 and 24). It was undisputed thatMr. Schneiderhad served as the Respondent's volunteer Director of Maintenance. DuringbothMr. Fowler's and Mr. Schneider's April30, 2013 depositions, Mr. Underwood'sparticipation as a volunteer with the Respondent was discussed. Mr. Underwood was generally identified as apilotby Mr. Schneider. It was clear in both depositions that Mr. Underwood hadparticipated significantly in boththe February 24,2011 and June 12-13, 2011 aircraft maintenance discussions and work. Italso appeared likely that any mechanical skill Mr. Underwood mightpossesshadbeen acquiredby experience, and notby formal education or FAAcertification. (Resp. to SJ, Exh. A, 11-52 and Exh. B, 12-17 and 33). Page 3 of 13

### • I

The FAA did not depose Mr. Underwood during the original discovery period. On August 15,2013 the FAA filed its Motion for Summary Judgment ("Motion for SJ"). On August 27, 2013 an Order CancelingNovember 2013 Hearing and Granting/Denying Other Relief("8/27/13 Order") was filed. Among otherthings, this Order granted the Respondent's motion to continue the case, as well as to engage in limited discovery on any issues arising from the 5 new allegations the FAA had filed as part ofits July 31, 2013 Amended Complaint. Aspart ofthe 8/27/13 Order, the parties were directed to complete discovery onthe new allegations no laterthan December 20, 2013. Itwas undisputedthat on October 14,2013,whenthe Respondent submitted responses to the FAA's supplemental discoveryrequests, the Respondent did not identify Mr. Fowler as a lay orexpertwitness on any ofthe 5 new allegations. (Motion, 2-3). The Respondent did identify both Mr. Underwood and Mr. Schneider as witnesses onthe subjects raised in the Amended Complaint, but did not identify eitherofthem as expert witnesses. The FAA did not re-depose Mr. Fowler, or Mr. Schneider, or seek to depose Mr. Underwood, during the supplemental discovery period. On January 6, 2014, the Respondent indicated in a Reply pleading 1thatthe FAA had only a "limitedunderstanding" ofMr. Fowler's "role" in the case and had only a "limited understanding" ofMr. Fowler's "knowledge and experience" as the Respondent's ChiefPilot and Executive Director. (1/6/14 Reply, 1 ). This assertion was not accompanied or followed by any SupplementalNotice ofExpert Witness, any statementexpanding on Mr. Fowler's known credentials, orby any expert report authored by Mr. Fowler. OnJanuary 31,2014the Respondent filed its Response in Opposition to the FAA's Motionfor Summary Judgment ("Response to SJ"). Included inthis Response to SJ were the April 30, 2013 transcripts from Mr. Fowler's and Mr. Schneider'sprehearing depositions. Also included were Declarations from both Mr. Underwood and Mr. Schneider, inwhich they identified themselves withcertain expertise and skills, and proffered various expert opinions. In Mr. Underwood'sDeclaration, he identifiedhimselfas a certified Airline Transport Pilot with a rating ofCaptain on the B-17. (Response to SJ, Exh. F). Mr. Underwood discussed his participation in designing and installing the fuel tanks on the B-17 in the winter of2011. He did not discuss his participation in the June 2011 welding repair. He did not assert he had any mechanic certifications. Nevertheless, he proffered expert opinion testimony on multiple topics,

1Respondent's Reply to FAA's Response in Opposition to Respondent's Motion to Continue Trial ("I/6/I4 Reply"). Page 4 of 13including the usability ofthe aircraft's fuel tanks, the scale ofthe welding operation, and whether the work performed in February 2011 had impacted the design features ofthe B-17's fuel tanks (!d.). In Mr. Schneider's Declaration, he identified himselfas a certified FAA A and P mechanic. (Response to SJ, Exh. D). Mr. Schneider discussed his participationin designing and installingthe fuel tanks on the B-17 in the winter of2011. He also proffered expert opinion testimony regarding maintenance record compliance with the Federal Aviation Regulations, the quality ofmaintenance work performed onthe B-17 aircraft during the winter of2011, the usability ofthe B-17 aircraft's fuel tanks, the scale ofthe welding operation, whetherthe work performed had impacted the design features ofthe B-17's fuel tanks ofthe aircraft's fuel tanks, and whatthe industry standards were in the aviation community for maintenance. (/d.). Approximately four (4) weeks later, in aresponse pleading2 filed on February 5, 2014, the Respondent also asserted thatMr. Fowlerwas "arecognized expert on B-17 aircraft and Liberty's aircraft in particular, and will undoubtedly be called upon to rebut the testimony of FAA's so-called experts on the critical "major alteration" and other B-17 technical issues." (2/5/14 Response). Nine (9) days later, on February 14, 2014, the FAA filed its Motion to Exclude ("2/14/14 Motion"), which requested an order excluding any expert opiniontestimony offeredby Mr. Fowler, Mr. Underwood, orMr. Schneider. On February 19,2014the Respondent filed its Response. In it, the Respondent excused its failure to specifically identify Mr. Fowler as an expert witness on B-17s onthe grounds that it was in a "reactive" position in the litigation. (Response, 2). Ithad never plannedto utilize Mr. Fowler in its "directcase." (!d.). But given the "inaccurate testimony" ofthe FAA's "so-called experts" contained in the FAA'sMotion for SJ, the Respondent determined it might need Mr. Fowler on B-17 "technical issues." (Response, 2). The Respondent also explained why it had not identified either Mr. Schneider or Mr. Underwood as experts. Duringthe February 27, 2014 Motion Conference, the Respondent asserted that it had no intention ofcallingupon Mr. Fowler's B-17 expertise in its responsive case-in chief. Instead, it reservedthe right to call upon Mr. Fowler as an expert "rebuttal" witness.

2 Respondent's Response to the Court's Order Reserving Ruling on Respondent's Motion to Continue Trial Date, Etc. [sic] ("2/5/14 Response"). Page 5 of 13II. BRIEF REVIEW OF LAY AND EXPERT TESTIMONY Inthe case herein, the Respondent asserts that most ofthe testimony it seeks to offer from Mr. Fowler, Mr. Underwood, and Mr. Schneider is factual (i.e., based on firsthand observation and knowledge), and therefore it is "lay" testimony, with "lay" opinions drawn from such facts. As a result, the Respondent did not need to identify these three witnesses as experts. In contrast, the FAA asserts thatthese three Respondent witnesses are all offering expert opinion testimony, because their opinions are based on technical or skilled experience that is outside the knowledge ofan untrained lay person. There are 2 types ofproffered witnesses, untrained lay witnesses and expert witnesses. The objective ofany witness testimony is to provide the trier offact with information that is an accurate reproduction ofan event. Fed. R. Evid. 701, Advisory CommitteeNotes (1972 Proposed Rules).Typically, an untrained lay witness testifies to his/herperception ofevents, based on firsthand knowledge or observation. 

### (!d.) In essence, an untrained lay witness provides testimony about "common knowledge" matters, which are personally experienced and then filtered through that untrained lay witness's individual perceptions. The untrained lay witness may also provide testimony in the form ofan opinion, so long as that testimony is not based on "scientific, technical, or other specialized knowledge within the scope ofrule 702." (Fed. R. Evid. 701 (c); 3-701 Federal Rules ofEvidence Manual, §701.02 (A lay witness may offer an opinionbased onpersonal knowledge, reasonably drawn from his personal perceptions). In contrast, an expertwitness is an individual who provides fact or opiniontestimony that is based on specialized "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. The fields ofknowledge which may be drawn upon need not be limited merely to the "scientific" orthe "technical," but extendto all "specialized" knowledge. This would include a large group of witnesses who possess specializedknowledge or experience, butwho are not readily identified as "experts" These expert witnesses are sometimes referred to as "skilled" witnesses. Fed. R. Evid. 702, Advisory CommitteeNotes (1972 Proposed Rules). Courts have long struggled with the distinctionbetween lay and experttestimony. (3-701 Federal Rules ofEvidence Manual, §701.02 (the line between specialized knowledge and commonknowledge is not always easy to draw). In the year 2000, in response to a split in court rulings, as well as the discussion and decision inAsplundhMfg. Div. v. Benton Harbor Engineering, 57 F.3d 1190 (3rd Circ. 1995), the Advisory Committee for the Federal Rules ofEvidence amended Fed. Rule 701 to limit lay opinion testimonyto common**~owledge** matters. Testimony "cannotbe admitted under Rule Page 6 of 1370I ifit is based on scientific, technical, or otherspecialized knowledge within the scope ofRule 702." (3-701 Federal Rules ofEvidenceManual, §701.02). In the amendment notes, the Advisory Committee left open a limited exception, that allowed an untrained lay witness with some specialized knowledge, by virtue ofhis or her daily activities, to still provide "lay" opiniontestimony about such specializedknowledge, so long as such opinion wasbased on knowledge and areasoning process typically utilized by that untrained lay witness inhis/her daily activities. Thus, the "common knowledge" lay witness couldtestify, on a limited basis, to some specialized daily activities that did not rise to the level ofexpert knowledge. Fed. R. Evid. 701. Advisory Committee Notes (2000 Proposed Rules)(e.g., a 

### business ownermay testify about the projectedprofits ofhis business). 

### III. DISCUSSION AND ANALYSIS In the case herein, the primary issues in dispute encompass the design specifications and manufacturer directions regarding a rare World War II B-17 bomber aircraft, the mechanical changes that were made to this aircraft's fuel tank system February 2011, additional mechanical repairs made in June 2011, an understanding ofB-17 aircraft design, the ability to read and understand aircraft manuals, specifications, and certificates, and whether or not the Respondent's decisions and actions complied with complex FAA Advisory Circulars and the Federal Aviation Regulations. In essence, every witness identified for the hearing, by both the FAA and the Respondent, has some type ofspecialized "knowledge, skill, experience, training, or education" that would qualifythemto serve as an expert witness. The question in reviewing each witness is notwhetherhe has expertise (they all do), butwhetherthe witness is offering testimony that requires the use ofhis expertise or specialized knowledge base. Itis undisputedthat the Respondent disclosed early in these proceedings that both Mr. Underwood and Mr. Schneiderwould present factual testimony thatrequired expert knowledge. This testimony, characterized by bothparties as "factual" because it arises from first-hand observation andpersonal knowledge, has beentreated by both parties as "lay"testimony. The FAA'sMotionherein is limited to excluding expert opinion testimony from these two witnesses. The FAA seeks to excludethe expert opinion testimony ofMr. Fowler, Mr. Underwood, and Mr. Schneider, onthe grounds that the Respondent failed to timely identify them as expert witnesses. Exclusion is a sanction authorized under 14 C.F.R. §13.217(f), and is equivalent to the sanction authorized under Fed. R. Civ. Proc. 37, which was designed to punish those who unjustifiably refuse to comply with court ordered discovery, or who fail to permit discovery. 151 A.L.R. Fed.561 (2013). Pursuantto 14 C.F.R. §13.217(f), exclusion oftestimonyis only one of several sanctions the court may consider in addressing a party's failure to fully comply with Page 7 of 13discovery. The courtmay also consider imposingthe other sanctions, or provide the remedy of

· directing the errant party to fully comply with the discovery request. Itis undisputed thatthe FAA has known that all three Respondent witnesses would testify, and that all three possessed expert credentials and skills. For example (not exclusive), both Mr. Fowler and Mr. Underwood are certified pilots, with B-17 ratings. Mr. Underwood has sufficient mechanical and aircraft experience to read and understand B-17 blueprints, create airplane fittings, and participate inthe Respondent's aircraft maintenance work. Mr. Schneider is a certified aircraft mechanic with an A and P rating, apilot, and who has builthis own airplane. In response to the FAA'sMotion, the Respondent has emphasized that it plans to introduce only "factbased" opinions from Mr. Fowler, Mr. Underwood, and Mr. Schneider- i.e., opinions based on their firsthand knowledge or observation. (Response, 3-4). This does not resolve the dispute, however, since it is well-established that expert opinion testimony may be based onthree different sources: 1) firsthand factual knowledge or observation, or 2) facts and data, or 3) hypotheticals. Itis clearthat some ofthe testimony offered by the Respondentthrough its three witnesses qualifies as factual testimony, by virtue ofthe fact that each witness is offering testimony based whathe personally saw, observed, and did during the period in controversy herein. But such factual testimony does not automatically mean that it is un-trained, common knowledge fact testimony, nor does it mean that any opinions arising from such personal factual knowledge equate to "lay" opinions. On the contrary, factual testimony may be offered by persons with specialized "knowledge, skill, experience, training, oreducation," and expert opinions may follow from such factual data. (Fed. R. Evid. 702 and 703).

. In essence, the FAA is correctthat much ofthe opiniontestimony offered in the Respondent's summaryjudgmentresponse by Mr. Underwood and Mr. Schneider is not "factbased." Instead, it is expertopinionbased on specializedknowledge, as well as on facts and data outside ofpersonal activity (e.g., industry standards in welding, compliance with FARs, etc.). 

### A. Mr. Fowler's Expert Opinion Testimony on Maintenance- Not Reliable The Respondenthas asserted that it does not seekto present Mr. Fowler as an expert in its primafacie response. In addition, the record demonstrates that most ofMr. Fowler's testimony in the Respondent's summaryjudgmentmaterials is lay factual testimony, offered in his capacity as the Respondent's Executive Director overseeing "the operational side" ofmatters. (Resp. to SJ, Exh. B, 17). Indeed, Mr. Fowler specifically disqualified himselffrom maintenance testimony when he testified during deposition that he had "trusted" the work ofthe

Page 8 of 13maintenance people, because he was "nottrained to know the difference one way orthe other." (Resp. to SJ, Exh. B, 25). However, inhis January 28, 2014 Declaration, Mr. Fowler did opine thatthe maintenance performed for the Respondent by Mr. Schneider and othervolunteer mechanics was "in accordance with accepted maintenance practices learned overhis and their many years as mechanics." (Resp. to SJ, ExhibitV, 2). This is expert opiniontestimony. Itis not based on personal knowledge and requires a basis ofspecialized knowledge applied to certain facts and data. Itis a fundamental concept of expert opinion testimony that a witness be qualified in the special knowledge area, and then must offer an opinion utilizing principles and methods ofreasoning commonly utilized by others in his/her specialized field. (Fed. R. Evid. 702, Advisory Committee Notes (2000 Proposed Rules)). Mr. Fowler does not possess expertise in the area ofaircraft maintenance. He is not qualifiedto offer an expert opinion about whetherMr. Schneider's orothers' maintenance work and/orpractices**wer~** withinthe acceptable boundaries ofthe aircraft maintenance industry. As a result, any profferby Mr. Fowler ofan expert opinion regarding Mr. Schneider's and the other mechanics' experiences and practices should not be admitted or considered because it fails the basic test ofreliability. B. Mr. Fowler's ExpertTestimony in Respondent's Responsive Case- Moot As noted earlierherein, during the February 27, 2014 Motion Conference, the Respondent asserted that it had no intention ofcalling upon Mr. Fowler's B-17 expertise in its responsive case-in-chief. As aresult, this issue is moot. C. Mr. Fowler's ExpertTestimony as PartofRespondent's Rebuttal- Reserved As noted earlier herein, during the February 27, 2014 Motion Conference, the Respondent assertedthat it reserved the rightto call upon Mr. Fowler as an expert "rebuttal" witness. In assessing whether a party may use an expert witness, not previously identified as an expert witness, to rebutthe opposing party's expert, courts must consider whetherthe witness is truly a "rebuttal"witness. Rebuttal mustbe kept in perspective; it is not to be used as a continuation ofthe case-in-chief. Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991)

Page 9 of 13In Morgan v. Commercial Union Assurance Companies, 606 F.2d 554 (5th Cir. 1979), the pretrial schedulerequired disclosure ofall witnesses except rebuttal witnesses. At trial the defendant attemptedto introducethe testimony ofan unidentified witness as rebuttal to the plaintiffswitness. The court held that "adefense witness whose purpose is to contradict an expected and anticipated portion ofthe plaintiffs case in chiefcan neverbe considered a 'rebuttal witness."' !d. at 556; see also, Wong v. Regents ofUniv. of Calif., 410 F.3d 1052, 1060- 61 (9th Cir. 2005) (district court appropriately excluded expert identified late because "the necessity ofthe witness" could have "beenreasonably anticipated at the time the lists were exchanged"); Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 202-03 (1st Cir. 1996) (exclusionis proper for experts identified late as "rebuttal")

.. Previously undisclosed "rebuttal" expert testimony is "limitedto newunforeseen facts brought out in the other side's case." In re President's Casinos, Inc., No. 02-53005-659, 2007 WL 7232932, at *2 (Bankr. E.D.Mo. May 16, 2007) (quoting Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991)). Shouldthe FAAintroduce into its prima facie case, or in any offered rebuttal evidence, new and/or unforeseen facts that had not been previously disclosed to, otreasonably anticipated by, the Respondent, then the Respondent maymove to use Mr. Fowler or another as an expert "rebuttal" witness. Any ruling on such future motion is reserved. D. Mr Schneider's and Mr. Underwood's Expert Opinion TestimonyThe Respondent Must Perfect Discovery As the FAA noted in its Motion, both Mr. Schneider and Mr. Underwood offered a variety ofexpert opinions in the Declarations they submitted in support ofthe Respondent's case. Mr. Schneider's expert opinions focused on B-17 aircraft maintenance, FARs maintenance compliance, mechanical repair (e.g., weldingknowledge, quality, etc.), and aircraft maintenance industry standards. 3 (Resp. to SJ, Exhibit D). Mr. Underwood's expert opinions focused on B-17 aircraftmaintenance, mechanical repair andindustry standards (e.g., welding knowledge, quality, etc.), andthe B-17 aircraft design. (Resp. to SJ, ExhibitF). (' \' Based on the Respondent's early interr,ogatory responses, the record shows that the Respondent always intended Mr. Underwood to express opinions. The record also shows that both parties mis-characterized most ofMr. Schneider's and Mr. Underwood's testimony as "lay,"because the parties were focused on these witnesses' first-hand knowledge and participation in events. Thus, the Respondent did not identify these witnesses as experts, and the

3 Whilethe FAA may perceive some ofMr. Schneider's declaratory opinions as inconsistent with the factual findings in the January 31, 2014 Order ofSuspension, such dispute is better addressed by objection orcrossexamination. See, e.g., Fed. R. Evid. 613. Page 10 of 13FAAdid not objectto the "lay" characterization oftheirtestimony, until the witnesses offered expert opinionbased on facts and data instead offirst-hand observation and participation. Federal courts have often applied a four factor test to "determine whether exclusion of evidence is the appropriate sanction for failures to complywith discovery duties: '(1) the prejudice or surprise ofthe party against whom the excluded evidence would have been admitted; (2) the ability ofthe party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial ofthe case or other cases in the court; and (4) bad faith orwillfulness infailing to comply with a court order ordiscovery obligation."' In re AsbestosProducts LiabilityLitigation (NO IV), No. 09-CV-74351, 2012 WL 661673, at *2 (E.D.Pa. Feb. 8, 2012) (quotingNicholas v. Pa. State Univ., 227 F.3d 133 (3d. Cir. 2000),· see also, Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir. 2010), citingDavidv. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). Each ofthesefour factors are addressed below. 1. Prejudice or Surprise to the FAA: Despite the FAA'sknowledge about Mr. Underwood's and Mr. Schneider's expertise and testimony, it has been unfairly surprised by the scope oftheir opinions. As noted earlierherein, the FAA has been fully aware ofMr. Schneider's qualifications as an expert aircraft mechanic, and his involvement in the February, 2011 and June 2011 maintenance oftheRespondent's B-17, giventhe FAA's August2010 action against Mr. Schneider, and subsequent January 31,2011 Order ofSuspension. The FAAhas also been on notice, since receiving the Respondent's interrogatory responses in early 2013, and since taking the April 30, 2013 depositions ofMr. Schneider and Mr. Fowler, that Mr. Underwood was a rated B-17 pilotwith B-17 knowledge and mechanical experience, who had substantial expert involvement in both the February 2011 and June 2011 aircraft maintenance. While the FAA is correct in asserting that the Respondent failed to identify either Mr. Schneider or Mr. Underwood as experts, it is clearthatthe FAAknew thatthese two witnesses had expertise, that they wouldbe testifying, and thattheir testimony would involve drawing upon their expertise and knowledge in order to describe theirpersonal participation in the February and June 2011 events. The FAA also knew and understood thatthe Respondent intended to utilize both witnessesto defend against the regulatory violations. The surprise to the FAA is the scope ofexpert opinion testimony these two witnesses have offered in their summaryjudgmentdeclarations. The Respondent's assertion thatthe FAA's claim ofsurprise is "specious"is not well-taken. (Response, 2). The Respondent's argumentthatthe FAA is at fault for not taking Mr. Underwood's deposition is also without Page 11 of 13merit. Had the Respondent properly identified Mr. Underwood as a "skilled" expert, the FAA would likely have included him in the FAA's deposition schedule. 2. Ability oftheFAA to Cure: The hearing is scheduledto begin onTuesday, April22, 2014, which is one month from the date ofthis Order. Pursuantto 14 C.F.R. §13.217(f), there is still time available for the Respondentto perfect its discovery responses and for the FAA to cure the disadvantage ofits surprise prior to the hearing. Although the FAAhas already identified and offered multiple expert witnesses who might dispute and respondto all ofthe testimony offered by Mr. Schneider and Mr. Underwood, theRespondent should still meet its obligations under discovery. The Respondentmust immediately provide the FAA with a detailed statement ofboth Mr. ·schneider's and Mr. Underwood's experience or other knowledge, skill, training or education, that the Respondent believes would allow each ofthem to qualify as an expert under 702 to proffer the expert opinion testimony contained in their summaryjudgmentDeclarations. In addition, while one month before the hearing is not a leisurely period oflitigation time, it is sufficient to allowthe FAA time to cure its disadvantage ofsurprise by deposing either Mr. Schneider and/or Mr. Underwood, orpropounding detailed interrogatories to them, should it so choose.3. The extentto which allowing the evidence would disruptthe orderly and efficient trial ofthe case: Based onthe record, it appears**tha~** allowing the evidence will provide a full and fair airing oftheparties' dispute. The disruption ofconducting limited additional discovery is manageable, and the parties will still be able to conduct the orderly and efficientprocess ofthe scheduled hearing. 4. Bad faith or willfulness in failing to comply with a court order ordiscovery obligation Based on the record, it appears that both parties misunderstood, to varying degrees, the scope of"lay"versus "expert" factual and opinion testimony. Given those misunderstandings, this court cannotfind that the Respondent engaged in bad faith or willfulness in failing to fully comply with the court-ordered discovery plan.

Page 12 of 13

### IV. CONCLUSION Based onthe foregoing, andpursuantto 14 C.F.R. § 13.217 (f), and afterhaving reviewing all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, andbeing fully advised;

IT IS HEREBY ORDERED: 1. The Respondent shall immediately, and no later than April2, 2014 (5:00pm), provide to the FAA a written, detailed summary ofboth Mr. Schneider's and Mr. Underwood's specialized experience, knowledge, skill, training or education that supports the expert opinions that they have proffered in their summaryjudgmentDeclarations. 2. Onorbefore April4, 2014 the FAA shall notify the Respondent, byboth facsimile and email, ifit wishes to conductexpeditedpre-hearing depositions ofeither Mr. Schneider or Mr. Underwood, or ifit wishes topropoundinterrogatories to eitherwitness. 3. The Respondent shall ensurethatboth Mr. Schneider and Mr. Underwood are available to appear for any pre-hearing depositions orto answer any interrogatory soughtby the FAA. Theparties shall work cooperatively with each otherto schedule any depositions requested orto serve and respond to any propounded interrogatories. 4. Any depositions taken, or interrogatories propounded, must be finished on orbefore April 15,2014. Any extension ofthistime, beyond April 15,2014,mustbe approved in advance bythis court. 5. A ruling on the expert "rebuttal" opinion testimony thatthe Respondent may proffer through Mr. Fowleris reserved to the Hearing. 6. TheFAA'sFebruary 14, 2014 Motiori to Exclude all experttestimony offered by Mr. Fowler, Mr. Schneider, or Mr. Underwood is denied. 7. The Hearing inthis case, set for April22, 2014 through April 25, 2014, inAtlanta, Georgia, is reconfirmed.

Attachment: Service List

Page 13 of 13SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration4 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing DocketClerk, AGC-430 Wilbur Wright Building-Suite2W1000

Mr. Christopher Stevenson 

### Complainant's Counsel Office ofthe Regional Counsel P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. StuartA. Goldstein 

### Respondent's Counsel StuartA. Goldstein, P.A. 7300 North Kendall Drive, Suite 380 Miami, FL 33156 TEL: 305-670-1222 FAX: 305-400-0685 Judge J.E. Sullivan 

### U S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536 ONE COPY FDMS No. FAA-2012-0477 (Civil Penalty Action)

4 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.