SERVED: March 28,2014 

U.S .. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

) 

) 

) 

) 

) 

LIBERTY 

FOUNDATION, INC. 

Respondent 

Docket No. FAA-2012-0477 

Case No. 2011-GL-03-0070 

ORDER GRANTING RELIEF, BUT DENYING THE FAA'S 

MOTION TO EXCLUDE EXPERT TESTIMONY / 

On August 27, 2013 an Order canceling November 2013 Hearing and Granting/Denying 

Other Relief was filed. 

On February 14, 2014 the FAA filed a Motion to Exclude ("Motion"). 

On February 19,2014 the Respondent filed its Response to FAA's Motion to Exclude 

("Response"). 

On February 25,2014, the FAA filed a Reply in support of Motion to Exclude ("Reply"). 

Order Denying Respondent's Motion for Relief on Reconsideration was filed 

On February 27, 2014 the parties convened for a telephone Motion Conference, to 

present arguments on both the FAA's Motion for Summary Judgment, 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, or Mr. Schneider. 

I. BRIEF FACTUAL BACKGROUND 

On August 22, 2011, ten months prior to filing its June 5, 2012 Complaint herein, the 

FAA filed against Mr. Schneider an Emergency Order of Revocation, 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 of Revocation was based on actions that Mr. 

Schneider took while volunteering with the Respondent herein, and while working on the 
Respondent'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 ). 

On January 31, 2012, the FAA withdrew its August 22, 2011 Emergency Order of 

Revocation against Mr. Schneider, and issued an Order of Suspension. This FAA January 31, 

2012 Order of Suspension was issued as part of an agreement and settlement reached with Mr. 

Schneider on January 30, 2012. As part ofthe FAA's agreement with Mr. Schneider, the FAA's 

January 31, 2012 Order suspended all of Mr. Schneider's FAA airman mechanics certificates, 

including Certificate No. 002649010, with A and P ratings, 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 of the Federal Aviation Regulations ("PARs"). The June 5, 2012 Complaint 

repeated as allegations against the Respondent many of the factual findings that were contained 

in the January 31, 2012 Order of Suspension that the FAA had 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 other things, 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 

other with a list of witnesses and exhibits no later than April 15, 2013. The hearing was set to 

begin on May 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 Chief Pilot for the Liberty Foundation, his familiarity with the operations 

of the B-17, [and] his participation in atelephone conference call(s) with Mr. Alderman 

and Mr. Miller discussing the fuel tank issue." (Motion, Exh. A). 

In the 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," summarized his knowledge about the B-17's equipment, his involvement in 

discussions regarding how to 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). 

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In addition, the Respondent asserted that Mr. Schneider would testify regarding: 

"His involvement in the fuel tank replacement and N390TH. He may describe his actions 

relating to the fuel tank maintenance; his meaning and intention on making the log book entry 

described in the complaint; his aviation experience; his career in aviation; his experience with the 

B-17; and his participation in telephone conference call(s) relating to the fuel tank maintenance." 

(Motion, 2; Exh. A). 

It was undisputed that Mr. Raymond Fowler has served as the Respondent's Executive 

Director and Chief Pilot since approximately December 2004. (Motion for SJ, Exh. R, 6). During 

the pendency of this 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. 

When the FAA conducted a prehearing deposition of Mr. Fowler on April 30, 2013, Mr. 

Fowler testified he had "20 plus years in World War II flying experience." (Resp. to SJ, Exh. B, 

6). He served as a pilot with Delta Airlines and was active with the Air National Guard as an F16 pilot. (!d.). He was the Respondent's Executive Director and "chief pilot," with a "longstanding involvement" with the Boeing B-17. (I d.). Nevertheless, Mr. Fowler testified that he 

was not trained in the aspects of the B-17 maintenance. (Resp. to SJ, Exh. B, 1 0). It was not Mr. 

Fowler's area of expertise, and he relied on others to give him information about it. (Resp. to SJ, 

Exh. B, 10-13). 

When the FAA conducted a prehearing deposition of Mr. Schneider on April 30, 2013, 

Mr. Schneider testified he had worked as an airplane mechanic and maintenance supervisor for 

Delta Airlines for 33 years. (Resp.to SJ, Exh. A, 6 and D, 1). He had worked in Delta Airlines' 

maintenance hangar in Atlanta, Georgia from 1979 until he retired in 2012. (!d.) Since the fall of 

1978, Mr. Schneider had 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 that Mr. Schneider had served as the Respondent's volunteer Director of 

Maintenance. 

During both Mr. Fowler's and Mr. Schneider's April30, 2013 depositions, Mr. 

Underwood's participation as a volunteer with the Respondent was discussed. Mr. Underwood 

was generally identified as a pilot by Mr. Schneider. It was clear in both depositions that Mr. 

Underwood had participated significantly in both the February 24,2011 and June 12-13, 2011 

aircraft maintenance discussions and work. It also appeared likely that any mechanical skill Mr. 

Underwood might possess had been acquired by experience, and not by formal education or 

FAA certification. (Resp. to SJ, Exh. A, 11-52 and Exh. B, 12-17 and 33). 

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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 Canceling November 2013 Hearing and Granting/Denying 

Other Relief ("8/27/13 Order") was filed. Among other things, 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 of its July 31, 2013 Amended 

Complaint. As part of the 8/27/13 Order, the parties were directed to complete discovery on the 

new allegations no later than December 20, 2013. 

It was undisputed that on October 14,2013, when the Respondent submitted responses to 

the FAA's supplemental discovery requests, the Respondent did not identify Mr. Fowler as a lay 

or expert witness on any of the 5 new allegations. (Motion, 2-3). The Respondent did identify 

both Mr. Underwood and Mr. Schneider as witnesses on the subjects raised in the Amended 

Complaint, but did not identify either of them 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 pleading1

that the FAA had 

only a "limited understanding" of Mr. Fowler's "role" in the case and had only a "limited 

understanding" of Mr. Fowler's "knowledge and experience" as the Respondent's Chief Pilot and 

Executive Director. (1/6/14 Reply, 1 ). This assertion was not accompanied or followed by any 

Supplemental Notice of Expert Witness, any statement expanding on Mr. Fowler's known 

credentials, or by any expert report authored by Mr. Fowler. 

On January 31,2014 the Respondent filed its Response in Opposition to the FAA's 

Motion for Summary Judgment ("Response to SJ"). Included in this Response to SJ were the 

April 30, 2013 transcripts from Mr. Fowler's and Mr. Schneider's prehearing depositions. Also 

included were Declarations from both Mr. Underwood and Mr. Schneider, in which they 

identified themselves with certain expertise and skills, and proffered various expert opinions. 

In Mr. Underwood's Declaration, he identified himself as a certified Airline Transport 

Pilot with a rating of Captain 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 of 2011. 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, 

1 Respondent's Reply to FAA's Response in Opposition to Respondent's Motion to Continue Trial ("I /6/ I 4 Reply"). 

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including the usability of the aircraft's fuel tanks, the scale of the welding operation, and whether 

the work performed in February 2011 had impacted the design features of the B-17' s fuel tanks 

(!d.). 

In Mr. Schneider's Declaration, he identified himself as a certified FAA A and P 

mechanic. (Response to SJ, Exh. D). Mr. Schneider discussed his participation in designing and 

installing the fuel tanks on the B-17 in the winter of 2011. He also proffered expert opinion 

testimony regarding maintenance record compliance with the Federal Aviation Regulations, the 

quality of maintenance work performed on the B-17 aircraft during the winter of 2011, the 

usability of the B-17 aircraft's fuel tanks, the scale of the welding operation, whether the work 

performed had impacted the design features ofthe B-17's fuel tanks ofthe aircraft's fuel tanks, 

and what the industry standards were in the aviation community for maintenance. (/d.). 

Approximately four (4) weeks later, in a response pleading2 filed on February 5, 2014, 

the Respondent also asserted that Mr. Fowler was "a recognized 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 opinion testimony offered by Mr. 

Fowler, Mr. Underwood, or Mr. Schneider. 

On February 19,2014 the Respondent filed its Response. In it, the Respondent excused 

its failure to specifically identify Mr. Fowler as an expert witness on B-17s on the grounds that it 

was in a "reactive" position in the litigation. (Response, 2). It had never planned to utilize Mr. 

Fowler in its "direct case." (!d.). But given the "inaccurate testimony" ofthe FAA's "so-called 

experts" contained in the FAA's Motion 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. 

During the February 27, 2014 Motion Conference, the Respondent asserted that it had no 

intention of calling upon Mr. Fowler's B-17 expertise in its responsive case-in chief. Instead, it 

reserved the 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 13 
II. BRIEF REVIEW OF LAY AND EXPERT TESTIMONY 

In the case herein, the Respondent asserts that most of the 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 that these three Respondent witnesses are all offering expert opinion testimony, 

because their opinions are based on technical or skilled experience that is outside the knowledge 

of an untrained lay person. 

There are 2 types of proffered witnesses, untrained lay witnesses and expert witnesses. 

The objective of any witness testimony is to provide the trier of fact with information that is an 

accurate reproduction of an event. Fed. R. Evid. 701, Advisory Committee Notes (1972 Proposed 

Rules). 

Typically, an untrained lay witness testifies to his/her perception of events, 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 of an opinion, so long as that testimony is not based on 

"scientific, technical, or other specialized knowledge within the scope of rule 702." (Fed. R. 

Evid. 701 (c); 3-701 Federal Rules ofEvidence Manual, §701.02 (A lay witness may offer an 

opinion based on personal knowledge, reasonably drawn from his personal perceptions). 

In contrast, an expert witness is an individual who provides fact or opinion testimony that 

is based on specialized "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. 

The fields of knowledge which may be drawn upon need not be limited merely to the "scientific" 

or the "technical," but extend to all "specialized" knowledge. This would include a large group of 

witnesses who possess specialized knowledge or experience, but who are not readily identified as 

"experts" These expert witnesses are sometimes referred to as "skilled" witnesses. Fed. R. Evid. 

702, Advisory Committee Notes (1972 Proposed Rules). 

Courts have long struggled with the distinction between lay and expert testimony. (3-701 

Federal Rules of Evidence Manual, §701.02 (the line between specialized knowledge and 

common knowledge 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 in Asplundh Mfg. 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 testimony to common ~owledge matters. Testimony "cannot be admitted under Rule 

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70 I if it is based on scientific, technical, or other specialized knowledge within the scope of Rule 

702." (3-701 Federal Rules ofEvidence Manual, §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 of his or her daily 

activities, to still provide "lay" opinion testimony about such specialized knowledge, so long as 

such opinion was based on knowledge and a reasoning process typically utilized by that 

untrained lay witness in his/her daily activities. Thus, the "common knowledge" lay witness 

could testify, on a limited basis, to some specialized daily activities that did not rise to the level 

of expert knowledge. Fed. R. Evid. 701. Advisory Committee Notes (2000 Proposed Rules)(e.g., 

a business owner may testify about the projected profits of his 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 of B-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 of specialized "knowledge, skill, experience, training, or education" 

that would qualify them to serve as an expert witness. The question in reviewing each witness is 

not whether he has expertise (they all do), but whether the witness is offering testimony that 

requires the use of his expertise or specialized knowledge base. 

It is undisputed that the Respondent disclosed early in these proceedings that both Mr. 

Underwood and Mr. Schneider would present factual testimony that required expert knowledge. 

This testimony, characterized by both parties as "factual" because it arises from first-hand 

observation and personal knowledge, has been treated by both parties as "lay" testimony. The 

FAA's Motion herein is limited to excluding expert opinion testimony from these two witnesses. 

The FAA seeks to exclude the expert opinion testimony of Mr. Fowler, Mr. Underwood, 

and Mr. Schneider, on the 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). Pursuant to 14 C.F.R. §13.217(f), exclusion oftestimony is only one of 

several sanctions the court may consider in addressing a party's failure to fully comply with 

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discovery. The court may also consider imposing the other sanctions, or provide the remedy of 

· directing the errant party to fully comply with the discovery request. 

It is undisputed that the 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 in the Respondent's aircraft maintenance work. Mr. Schneider is 

a certified aircraft mechanic with an A and P rating, a pilot, and who has built his own airplane. 

In response to the FAA's Motion, the Respondent has emphasized that it plans to 

introduce only "fact based" 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 on three different sources: 1) firsthand factual knowledge or observation, or 2) facts and 

data, or 3) hypotheticals. 

It is clear that some of the testimony offered by the Respondent through its three 

witnesses qualifies as factual testimony, by virtue of the fact that each witness is offering 

testimony based what he 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, or education," and expert 

opinions may follow from such factual data. (Fed. R. Evid. 702 and 703). 

. In essence, the FAA is correct that much of the opinion testimony offered in the 

Respondent's summary judgment response by Mr. Underwood and Mr. Schneider is not "factbased." Instead, it is expert opinion based on specialized knowledge, as well as on facts and data 

outside of personal activity (e.g., industry standards in welding, compliance with F ARs, etc.). 

A. Mr. Fowler's Expert Opinion Testimony on Maintenance- Not Reliable 

The Respondent has asserted that it does not seek to present Mr. Fowler as an expert in 

its prima facie response. In addition, the record demonstrates that most of Mr. Fowler's 

testimony in the Respondent's summary judgment materials is lay factual testimony, offered in 

his capacity as the Respondent's Executive Director overseeing "the operational side" of matters. 

(Resp. to SJ, Exh. B, 17). Indeed, Mr. Fowler specifically disqualified himself from 

maintenance testimony when he testified during deposition that he had "trusted" the work of the 

Page 8 of 13 
maintenance people, because he was "not trained to know the difference one way or the other." 

(Resp. to SJ, Exh. B, 25). 

However, in his January 28, 2014 Declaration, Mr. Fowler did opine that the maintenance 

performed for the Respondent by Mr. Schneider and other volunteer mechanics was "in 

accordance with accepted maintenance practices learned over his and their many years as 

mechanics." (Resp. to SJ, Exhibit V, 2). 

This is expert opinion testimony. It is not based on personal knowledge and requires a 

basis of specialized knowledge applied to certain facts and data. It is 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 of reasoning 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 of aircraft maintenance. He is not 

qualified to offer an expert opinion about whether Mr. Schneider's or others' maintenance work 

and/or practices wer~ within the acceptable boundaries of the aircraft maintenance industry. As 

a result, any proffer by Mr. Fowler of an 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 of reliability. 

B. Mr. Fowler's Expert Testimony in Respondent's Responsive Case- Moot 

As noted earlier herein, during the February 27, 2014 Motion Conference, the 

Respondent asserted that it had no intention of calling upon Mr. Fowler's B-17 expertise in its 

responsive case-in-chief. As a result, this issue is moot. 

C. Mr. Fowler's Expert Testimony as Part of Respondent's Rebuttal- Reserved 

As noted earlier herein, during the February 27, 2014 Motion Conference, the 

Respondent asserted that it reserved the right to 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 rebut the opposing party's expert, courts must consider whether the witness is 

truly a "rebuttal" witness. Rebuttal must be kept in perspective; it is not to be used as a 

continuation of the case-in-chief. Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 

1991) 

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In Morgan v. Commercial Union Assurance Companies, 606 F.2d 554 (5th Cir. 1979), 

the pretrial schedule required disclosure of all witnesses except rebuttal witnesses. At trial the 

defendant attempted to introduce the testimony of an unidentified witness as rebuttal to the 

plaintiffs witness. The court held that "a defense witness whose purpose is to contradict an 

expected and anticipated portion of the plaintiffs case in chief can never be considered a 

'rebuttal witness."' !d. at 556; see also, Wong v. Regents of Univ. of Calif., 410 F .3d 1052, 1060-

61 (9th Cir. 2005) (district court appropriately excluded expert identified late because "the 

necessity of the witness" could have "been reasonably 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) (exclusion is proper for experts identified late as "rebuttal") .. 

Previously undisclosed "rebuttal" expert testimony is "limited to new unforeseen 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)). 

Should the F AAintroduce into its prima facie case, or in any offered rebuttal evidence, 

new and/or unforeseen facts that had not been previously disclosed to, ot reasonably anticipated 

by, the Respondent, then the Respondent may move 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 of expert opinions in the Declarations they submitted in support of the Respondent's 

case. Mr. Schneider's expert opinions focused on B-17 aircraft maintenance, F ARs maintenance 

compliance, mechanical repair (e.g., welding knowledge, quality, etc.), and aircraft maintenance 

industry standards. 3 (Resp. to SJ, Exhibit D). Mr. Underwood's expert opinions focused on B-17 

aircraft maintenance, mechanical repair and industry standards (e.g., welding knowledge, quality, 

etc.), and the B-17 aircraft design. (Resp. to SJ, Exhibit F). 

(' 

\' 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 of Mr. 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 While the FAA may perceive some of Mr. Schneider's declaratory opinions as inconsistent with the factual 

findings in the January 31, 2014 Order of Suspension, such dispute is better addressed by objection or crossexamination. See, e.g., Fed. R. Evid. 613. 

Page 10 of 13 
FAA did not object to the "lay" characterization of their testimony, until the witnesses offered 

expert opinion based on facts and data instead of first-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 comply with discovery duties: '(1) the 

prejudice or surprise of the party against whom the excluded evidence would have been 

admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the 

evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and 

(4) bad faith or willfulness in failing to comply with a court order or discovery obligation."' In re 

Asbestos Products Liability Litigation (NO IV), No. 09-CV-74351, 2012 WL 661673, at *2 

(E.D.Pa. Feb. 8, 2012) (quoting Nicholas v. Pa. State Univ., 227 F.3d 133 (3d. Cir. 2000),· see 

also, La nard Toys, Ltd. v. Novelty, Inc., 3 75 Fed. Appx. 705, 713 (9th Cir. 201 0), citing David v. 

Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). Each ofthese four factors are addressed 

below. 

1. Prejudice or Surprise to the FAA: 

Despite the FAA's knowledge about Mr. Underwood's and Mr. Schneider's expertise 

and testimony, it has been unfairly surprised by the scope of their opinions. 

As noted earlier herein, the FAA has been fully aware of Mr. Schneider's qualifications 

as an expert aircraft mechanic, and his involvement in the February, 2011 and June 2011 

maintenance ofthe Respondent's B-17, given the FAA's August2010 action against Mr. 

Schneider, and subsequent January 31,2011 Order of Suspension. The FAA has also been on 

notice, since receiving the Respondent's interrogatory responses in early 2013, and since taking 

the April 30, 2013 depositions of Mr. Schneider and Mr. Fowler, that Mr. Underwood was a 

rated B-17 pilot with 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 clear that the FAA knew that these two witnesses 

had expertise, that they would be testifying, and that their testimony would involve drawing upon 

their expertise and knowledge in order to describe their personal participation in the February 

and June 2011 events. The FAA also knew and understood that the Respondent intended to 

utilize both witnesses to defend against the regulatory violations. 

The surprise to the FAA is the scope of expert opinion testimony these two witnesses 

have offered in their summary judgment declarations. The Respondent's assertion that the 

FAA's claim of surprise is "specious" is not well-taken. (Response, 2). The Respondent's 

argument that the FAA is at fault for not taking Mr. Underwood's deposition is also without 

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merit. 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 ofthe FAA to Cure: 

The hearing is scheduled to begin on Tuesday, April22, 2014, which is one month from 

the date ofthis Order. Pursuant to 14 C.F.R. §13.217(f), there is still time available for the 

Respondent to perfect its discovery responses and for the FAA to cure the disadvantage of its 

surprise prior to the hearing. 

Although the FAA has already identified and offered multiple expert witnesses who 

might dispute and respond to all of the testimony offered by Mr. Schneider and Mr. Underwood, 

theRespondent should still meet its obligations under discovery. 

The Respondent must immediately provide the FAA with a detailed statement of both 

Mr. ·schneider's and Mr. Underwood's experience or other knowledge, skill, training or 

education, that the Respondent believes would allow each of them to qualify as an expert under 

702 to proffer the expert opinion testimony contained in their summary judgment Declarations. 

In addition, while one month before the hearing is not a leisurely period of litigation time, 

it is sufficient to allow the FAA time to cure its disadvantage of surprise by deposing either Mr. 

Schneider and/or Mr. Underwood, or propounding detailed interrogatories to them, should it so 

choose. 

3. The extent to which allowing the evidence would disrupt the orderly and efficient 

trial of the case: 

Based on the record, it appears tha~ allowing the evidence will provide a full and fair 

airing of the parties' dispute. The disruption of conducting limited additional discovery is 

manageable, and the parties will still be able to conduct the orderly and efficient process of the 

scheduled hearing. 

4. Bad faith or willfulness in failing to comply with a court order or discovery 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 cannot find that the Respondent engaged in bad faith or willfulness in failing to fully 

comply with the court-ordered discovery plan. 

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IV. CONCLUSION 

Based on the foregoing, and pursuant to 14 C.F.R. § 13.217 (f), and after having 

reviewing all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, 

and being 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 summary judgment Declarations. 

2. On or before April4, 2014 the FAA shall notify the Respondent, by both facsimile and 

email, if it wishes to conduct expedited pre-hearing depositions of either Mr. Schneider 

or Mr. Underwood, or if it wishes to propound interrogatories to either witness. 

3. The Respondent shall ensure that both Mr. Schneider and Mr. Underwood are available 

to appear for any pre-hearing depositions or to answer any interrogatory sought by the 

FAA. The parties shall work cooperatively with each other to schedule any depositions 

requested or to serve and respond to any propounded interrogatories. 

4. Any depositions taken, or interrogatories propounded, must be finished on or before April 

15,2014. Any extension ofthis time, beyond April 15,2014, must be approved in 

advance by this court. 

5. A ruling on the expert "rebuttal" opinion testimony that the Respondent may proffer 

through Mr. Fowler is reserved to the Hearing. 

6. The FAA's February 14, 2014 Motiori to Exclude all expert testimony offered by Mr. 

Fowler, Mr. Schneider, or Mr. Underwood is denied. 

7. The Hearing in this case, set for April22, 2014 through April 25, 2014, in Atlanta, 

Georgia, is reconfirmed. 

Attachment: Service List 

Page 13 of 13 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 4 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

Mr. Christopher Stevenson 

Complainant's Counsel 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Stuart A. Goldstein 

Respondent's Counsel 

Stuart A. 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 Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey 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 or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.