' U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATIONADMlNISTRATION 

# RECEIVED MAR 052014 

## HEARING DOCKET FEDERAL AVIATION ADMINISTRATION, Complainant, DocketNo. FAA-2012-0477 ' 

### -,, 

## , , '**FAAc'~e**No. 2011GL030o7o LIBERTY FOUNDATION, Respondent. Judge Sullivan

REPLYIN SUPPORT OF MOTION TO EXCLUDE The FAA moved to exclude testimony from Raymond Fowler, Rodney Schneider and/or Cullen Underwood that had not been disclosed during discovery, most notably any expert or opinion testimony. Respondent opposes this motion, asserting that there should be no consequences for its discovery violations. The FAAnowreplies in supportofits Motion. 

### Argument In its opposition, Respondent argues that RaymondFowler shouldbe permittedto testify

as an expert witness because it is not planning to call him as an expert witness in its "direct case," but as a "reactive" witness. 

### See Opposition at 1-2. It is unclear what distinction Respondent seeks to drawhere, as (except for its affirmative defelises).

### Resp~ndent's entire case i • '' ,._ '_--_. .- ': is in some sehse "reactive." The Respondent has kno'iwn for years that there are technical issues in this case are and Respondent identified multiple potential expert witnesses in February 2013. IfRespondent wantedMr. Fowlerto test!f)ra;an expert, itneededto identifyhim at that time as well. Respondent provides no explanation for·how it

# was sufficiently.informed ofthe technical

.**~** -:. . . 

# . ' issues in this case to be abletoidelitifythfeepotential experts on aviation maintenance, but was



### 1unable to identify Mr. Fowler at that time. Respondent asserts that Mr. Fowler's testimony will be needed to rebut the expert affidavits attached to the FAA's Motion for Summary Judgment, but Respondent was aware before the Motion that it would need expert testimony. Even ifthe filing ofthe Motionwas ajustificationfor failing to disclose Mr. Fowler inFebruary 2013, then Mr. Fowler should still have been promptly disclosed as a potential expert witness after Respondent received the Motion and expert affidavits in the summer of 2013. Instead, Respondent failed to disclose Mr. Fowler at all until late January 2014. Indeed, Respondent has to this day still not made an appropriate expert witness disclosure for Mr. Fowler, failing to provide any information on what his opinions might be. Respondent has presented no basis for its failure to disclosure Mr. Fowler as a potential expert witness, and any such testimony should be excluded, along with any other testimony by Mr. Fowler beyondthe disclosed subject matter ofthe conversation withInspectors Miller and Alderman. As to Mr. Underwood and Mr. Schneider, Respondent argues that it did disclose these witnesses, andthatthe FAAhad the opportunity to depose them. 

### See Opposition at 2-4, 5-6. This is accurate, but irrelevant. The FAA requested the exclusion ofany proposed opinion testimony by these individuals, as it was not disclosed during discovery. The FAA had the opportunity to depose these witnesses as fact witnesses, but because they were never presented as opinion witnesses, the FAA had no reason or opportunity to conduct depositions as to their opinions. This is a significant distinction in a case, such as this one, where there is no dispute about the underlying facts and there is a dispute aboutthetechnical andlegal consequences ofthose facts. Respondent also argues that the entirety ofthe declarations of Mr. Schneider and Mr. Underwood are "fact-based." 

### See Opposition at 3-4. "Fact-based" in this context appears to be another way ofsaying "opinions that are based on facts." That opiniontestimony is "fact-based"

2does not mean it is not an opinion, and all ofthe matters cited in the FAA's Motionto Exclude are opinions, mostly opinions as to whether or not a particular regulatory concept applies to the facts known to the witnesses. The disclosed testimony ofMr. Schneider and Mr. Underwood as to theirrole inthe alteration ofthe aircraft and their direct observations ofthatprocess is factual testimony. The conclusions in their declarations, based onthese observations- that the welding

was an "elementary operation" (as that term is used in the definition ofmajor alteration in 14 C.F.R. § l.l),thatthere was not a change in the "basic design" ofthe fuel system (as that term is used in the list ofexamples ofmajor alterations in 14 C.F.R. Part 43 Appendix A(a)), that the alteration was done in a manner "acceptable to the Administrator" (as that phrase is used in 14 C.F.R. §43.13(a)), orthat the log bookentry complied with 13 C.F.R. §43.9- are opinions. Not only are they opinions, but they are opinions on technical or legal questions that are properly the subject ofexpert testimony or attorney argument. Respondent presents no reason why it did not disclose these opinions, or the possibility ofany opinion testimony from these witnesses. Mr. Schneider and Mr. Underwood should notbepermittedto presentopiniontestimony athearing. Respondent asserts in general that the February 2013 deadline somehow does not count because the FAAlater amendedits Complaintto add additional allegations andtheJudge granted

an additional discovery period on the new matters. See Opposition at 4-5. This assertion is without foundation. The fact thatdiscovery was later extended does not serve as an**after-the~fact** excuse for not complying with earlier discovery requirements, such as the expert witness disclosure deadline. Nor does it excuse Respondent from its ongoing discovery obligations. If any ofthe proposed expert or opinion testimony related specifically to the Amendment to the Complaint then this would, ofcourse, be testimony that could not have been disclosed prior to the Amendment. But any such testimony could, and should, have been promptly disclosed after



### 3the Amendment. Respondent, however, did not disclose this proposed testimony at any time during either the original or supr.lemental discovery periods, before or after the Complaint was amended. Respondent asserts thatthe FAA is not prejudiced because Respondent not yet asked any questions ofthese witnesses at hearing. See Opposition at 5-6. This argument is misplaced. The purpose ofapre-hearing motionis to preventthe testimony and prevent any prejudice, and there is no requirementthatthe FAAwait andmake an objection athearing. The Respondent also argues thatthe FAAhas "uncleanhands." See Opposition at 6-7. As

an initial matter, it is worth noting that the doctrine ofunclean hands has no applicability in a discovery dispute. If the Respondent feels that there was something lacking in the FAA's disclosures concerning one of the FAA's expert witnesses, that would be a basis for the Respondent to file its own Motion to Exclude, not a basis for denying the FAA's motion. Further, the FAAhere has no "uncleanhands." Respondent argues that Inspector Dodge's expert opinions were notproperly disclosedbased on a short answer to a short question at a deposition, with no follow-up by opposing counsel. See Opposition at 6. However, Respondent fails to note that the FAA had previously made a written disclosure concerning expert testimony, which indicated thatthe FAA's experts (a group which was later expandedto include Inspector Dodge) would testify about a variety ofsubjects including the airworthiness ofthe fabricated fuel tanks and the June 2011 repair ofthe leaking fuel tank. See, e.g., Attachment A (excerpt from the FAA's September 2012 discovery responses). Respondent inits depositions ofthe FAA's expert witnesses chose not to question those witnesses on the details oftheir opinions. This does not renderthe FAA'shands "unclean."

4Conclusion During a discovery period that spanned almost a year and a half, Respondent failed to disclose any potential expert or opinion testimony from Raymond Fowler, Rodney Schneider, and Cullen Underwood. In its opposition to the FAA's Motion to Exclude any such undisclosed testimony, Respondent gives no reason for these failures, but generally argues that there should be no consequences for its past and ongoing discovery violations, or that ifthere should be any consequence it should be that the FAA should go to the time and expense of conducting a new round of depositions of some of the Respondent's witnesses on their new subjects oftestimony1 The Judge should not excuse Respondent's discovery failures, or punish the FAAfor those failures byrequiring an additionalround ofdepositions. Rather, any testimony by Fowler, Schneider, and Underwood that was not disclosed during discovery, including any expert oropinion testimony, shouldbe excluded.

Attorney Office ofthe Regional Counsel

1Respondent suggests no meaningfulreliefas to Mr. Fowler. Respondentnotes that aperpetuation depositionfor Mr. Fowleris scheduled, butthe opportunity to question Mr. Fowler athis perpetuation deposition is no different than the opportunity to question a witness athearing. 

### 5CERTIFICATE OF SERVICE Ihereby certifythatthe foregoing FAA'sReply in Support ofMotionto Excludewas sent: Original and one copy viacertifiedmail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocket Clerk,AGC-430 WilburWrightBuilcling- Suite 2Wl000 One copyvia certifiedmail andfacsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 7300 NorthKendallDr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685

# \~'11/\'VlD**~mOu1**

# 1 D NNASTA EY Legal Analyst Office ofthe Regional Counsel 

### FEB 2 5 2014 Dated

64. As to each person designated at least in part as an expert witness, provide: (i) a complete statement of all opinions each such witness will express and the complete bases and reasons for such opinions. ANSWER: This question calls for attorney work product and is hence objectionable. The interrogatory is also overly broad. A "complete statement of all opinions" each witness will express at the hearing is impossible to predict at this point since the opinions expressed will depend, at least in part, on the questions asked and the natural flow ofthe witness examination.

However, in general the Administrator's witnesses are expected to provide a description of the fuel tanks in the subject aircraft, the proper method of repair for such tanks, and their beliefs as to the methods actually used in making the fuel tanks in the subject aircraft. They will opine that the tanks in the aircraft identified in the Complaint were not repaired but rather fabricated from the shells based on the welding of patches and drains to the protective fuel tank shells. They will also opine as to the quality ofthe fabricated tank in relation to an actual tank that is suitable for installation in an aircraft. Further, the witnesses will explain what constitutes a major alteration of the fuel system, and how the process of conducting a major alteration should be followed and documented. They will also opine about the airworthiness issues regarding the subject aircraft following the installation of the "fabricated" tanks. The Administrator's witnesses will also provide a description ofthe repair ofthe #1 main fuel tank in the subject aircraft, and the proper method of repair. This is an expected but not an exhaustive list of opinions provided by the Administrator's witnesses. All the opinions expressed will relate to the fuel tanks, and the fuel shells in the subject aircraft, the issue of a major alteration of the fuel system in the aircraft, as well as the airworthiness (or a lack thereof) ofthe subject airplane afterthe "fabricated" fuel tanks had been installed.

[Type text] GOVERNMENT EX{jT