In the matter of 

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## 18 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICEOFHEARINGS 

## HEARING DOCKFT

WASHINGTON, D.C.

Docket No. FAA-2013-0291 FAA Case No. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative LawJudge J.E. Sullivan

RESPONDENT'S SUPPLEMENTAL SUBMISSION During the March 13,2015 telephonic hearing onthe cross motions for summary judgmentfiled in this matter, Your Honor requested information on when Respondent disclosed Jeffrey Becker as a witness and howhe was so described. This supplemental submission responds to this request. Respondent was also asked to identify the first page ofFAAExhibitM to Complainant's Summary Judgment Motion as having been produced by Respondent, or not. Respondent was also requested to specify ifExhibit 7 to the AMES Answer in Opposition to the Complainant's Summary Judgment Motion was included inAMES' documentproduction. Finally, Respondent was requested to indentify where in the record AMES disavowed any inference that the AMES response to the FAA Letter ofInvestigation to AMES constituted an admission ofthe violations as alleged by the FAA. Having previously identified Mr. Becker as an individual with general knowledge ofthe facts ofthis matter in the Initial Disclosures ofAMES, served on January 14,2014, AMES subsequently identified Mr. Becker onMarch 6, 2014 as having "General Knowledge ofSituation/Present at Toledo Visit" in Respondent's responses to the FAA's first round of discovery requests. As to the latter disclosure, Mr. Becker was listed in a compilation ofnamesthat was described as consisting of"alist ofpersons that have general knowledge ofthe events, provided insight, management direction andhave perspectives in general context onthe series of events in part or whole." Respondent's Responses to FAA's First Discovery Requests, dated March 6, 2014. Subsequently, on the deadline for submission ofrebuttal expert disclosures (December 12, 2014), Mr. Becker was identified as being expected to testifY as an expert witness to rebut any expert or opinion testimony provided by Complainant's witnesses and/or as a fact witness who may also provide opinion testimony as permitted under Federal Rule ofEvidence 701. Consistent with the requirement in 14 C.P.R. §13.220(i) to supplement any prior disclosures and discovery responses, Mr. Becker was again described to Complainant in this fashion on December 23, 2014 inRespondent's supplemental discovery responses. Mr. Becker clearly has the qualifications to testifY as an expert inthis matter (see Reply ofRespondent to FAA's Oppositionto Respondent's Motion for Summary Judgment at 1-4 and the Declaration ofJeffrey Becker attached as Exhibit I thereto), and Respondent timely disclosed to Complainant that Mr. Becker would be used to rebut any expert or opiniontestimony proved by Complainant's witness, including testimony offered by Inspector Lipinski. Since AMES whishes to use Jeffrey Becker as an expert witness only to rebut expert or opiniontestimony offered bythe FAA's witnesses, it is important to consider the manner and timing ofthe FAA's disclosure oflnspectorLipinski as an expert witness. The FAA stated in its March 24,2014 discovery response to AMES that ithad not yet identified which experts it will use, but noted that Inspector Lipinski and certain other FAA inspectors "may"be calledto provide expert testimony. See Second Response to Respondent's First Discovery Requests, dated March 24,2014, included as Exhibit 2 to Respondent's Reply to Complainant's Response to Renewed Motion for Sanctions, dated January 5, 2015. Subsequently, the FAA did not

2identify Inspector Lipinski as an expertby the priorMay 2, 2014 deadline for initial expert disclosures since it did not provide any expert disclosures at that time. The FAA did not definitively identify Inspector Lipinski as an expert witness until December 1, 2014

-- well after the amendedNovember 19,2014 deadline for initial expert disclosures. The testimony ofMr. Beckerto which Complainant's counsel has objected was from the FAA's disposition ofMr. Becker on October 29,2014 during which he testified as both a fact witness and the Rule 30(b)(6) witness for the company. Mr. Becker expressed many views concerning this matterbased on the particularized knowledge the witness has byvirtue ofhis position at AMES (Director ofQuality Assurance) as permittedunder Rule 701 andby virtue of his personal knowledge ofthe facts ofthis matter having beenpresentwith Inspector Lipinski in Toledo on May 25,2010 to listento his findings and tojointly inspect some ofthe subject aircraft. Mr. Becker also has personal knowledge ofthe facts ofthis matterhaving viewedthe aircraft on a dailybasis whenthey were returned to the AMES facility for repairs. See Becker Tr. at 75 included as Exhibit 3 to Respondent's Motionfor Summary Judgment. Subsequently, Mr. Becker executed a Declaration attached as Exhibit 1-R (as renumbered) to Respondent's Reply to the Complainant's Oppositionto Respondent's Motion for Summary Judgmentthat rebuts paragraphs 14, 18, 21, 25, 31, and 40 and other statements offered inthe Lipinski Declaration attached to the FAA's Oppositionto the AMES Sununary Judgment Motion in whichhe purportedly offers expert written testimony inrebuttal to the arguments presentedby AMES in its Summary JudgmentMotion. Mr. Becker was disclosed inthe AMES Expert Rebuttal Disclosure as a possible expert witness to rebut any FAA expert witness, including Mr. Lipinski, who the FAA didnot defmitively disclose as an expert witness until December I, 2014.

3Respondent's counsel has verified that the first page ofExhibitM to the Complainant's Summary Judgment Motion was producedby Respondent inresponse to anFAA document request. Respondent confirms that Exhibit 7 to the AMES Answer in Oppositionto the Complainant's Motion for Summary Judgment, consisting ofa Capital Cargo Aircraft Technical Log Report for aircraft N287SC, was included among the documents produced by AMES during the discovery phase ofthis proceeding and marked as page 111 ofsuch production. Finally, Your Honor sought information where AMES disavowed any inference that the AMES response to the FAA Letter ofInvestigation to AMES constituted an admission ofthe violations as alleged bythe FAA. I direct Your Honor's attentionto pages 24 through 26 ofits Answer in Opposition to Complainant's Motion for Summary Judgment. In turn, Respondent cited to pages 176-180 ofthe depositiontranscript ofthe AMES witness, Mr. Becker, taken by counsel for the Complainant on October 29,2014.

Dated: March 17,2015 Respectfully submitted,

SILVERBERG GOLDMAN, L.L.P. Attorneys for AIRBORNE MAINTENANCE AND

### EN~RING**S~'/V//S** By:

# J;~_;~.l{~b Robert P. Silverberg, Esq. 1101 30th Street, N.W. Suite 300 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

4CERTIFICATE OF SERVICE I hereby certify that onthis 17th day ofMarch 2015, I causedthe foregoing Respondent's Supplemental Submissionto be served upon the following: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2Wl000 Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 267-0377 (original and one copy by FedEx overnight delivery)
The Hon. J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Tel: (202) 366-2132 Fax: (202) 366-7536 (one copy by facsimile and First Class Mail) Christopher 

### R. Stevenson, Attorney Office ofthe Regional Counsel, AS0-7 Southern Region Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 Tel: (404) 305-5200 Fax: (404) 305-5223 Chris.Stevenson@faa.gov (one copyby E-mail and First Class Mail)