' U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMlNISTRA TION 

RECEIVED 

MAR 0 5 2014 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

Docket No. FAA-2012-0477 

' -,, , , ' FAAc'~e No. 2011GL030o7o 

LIBERTY FOUNDATION, 

Respondent. Judge Sullivan 

REPLY IN 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 FAA now replies in support of its Motion. 

Argument 

In its opposition, Respondent argues that Raymond Fowler should be permitted to 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 draw here, 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. 

If Respondent wanted Mr. Fowler to test!f)r a; an expert, it needed to identify him at that time as 

well. Respondent provides no explanation for· how it was sufficiently. informed of the technical . ~ -:. . . . ' 

issues in this case to be able to idelitify thfee potential experts on aviation maintenance, but was 

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unable 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 if the 

filing of the Motion was a justification for failing to disclose Mr. Fowler in February 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 beyond the disclosed subject matter 

of the conversation with Inspectors Miller and Alderman. 

As to Mr. Underwood and Mr. Schneider, Respondent argues that it did disclose these 

witnesses, and that the FAA had the opportunity to depose them. See Opposition at 2-4, 5-6. This 

is accurate, but irrelevant. The FAA requested the exclusion of any 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 about the technical and legal consequences of those facts. 

Respondent also argues that the entirety of the 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 of saying "opinions that are based on facts." That opinion testimony is "fact-based" 

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does not mean it is not an opinion, and all of the matters cited in the FAA's Motion to 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 of Mr. Schneider and Mr. Underwood as 

to their role in the alteration of the aircraft and their direct observations of that process is factual 

testimony. The conclusions in their declarations, based on these observations- that the welding 

was an "elementary operation" (as that term is used in the definition of major alteration in 14 

C.F.R. § l.l), that there was not a change in the "basic design" of the fuel system (as that term is 

used in the list of examples of major 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)), or that the log book entry 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 of expert testimony or attorney argument. Respondent presents no reason why it did not 

disclose these opinions, or the possibility of any opinion testimony from these witnesses. Mr. 

Schneider and Mr. Underwood should not be permitted to present opinion testimony at hearing. 

Respondent asserts in general that the February 2013 deadline somehow does not count 

because the FAA later amended its Complaint to add additional allegations and the Judge granted 

an additional discovery period on the new matters. See Opposition at 4-5. This assertion is 

without foundation. The fact that discovery 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 of the proposed expert or opinion testimony related specifically to the Amendment to the 

Complaint then this would, of course, be testimony that could not have been disclosed prior to 

the Amendment. But any such testimony could, and should, have been promptly disclosed after 

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the 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 that the FAA is not prejudiced because Respondent not yet asked any 

questions of these witnesses at hearing. See Opposition at 5-6. This argument is misplaced. The 

purpose of a pre-hearing motion is to prevent the testimony and prevent any prejudice, and there 

is no requirement that the FAA wait and make an objection at hearing. 

The Respondent also argues that the FAA has "unclean hands." See Opposition at 6-7. As 

an initial matter, it is worth noting that the doctrine of unclean 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 FAA here has no "unclean hands." Respondent argues that Inspector Dodge's expert 

opinions were not properly disclosed based 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 that the FAA's experts (a group which was later expanded to include Inspector Dodge) 

would testify about a variety of subjects including the airworthiness of the fabricated fuel tanks 

and the June 2011 repair of the leaking fuel tank. See, e.g., Attachment A (excerpt from the 

FAA's September 2012 discovery responses). Respondent in its depositions of the FAA's expert 

witnesses chose not to question those witnesses on the details of their opinions. This does not 

render the FAA's hands "unclean." 

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Conclusion 

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 if there 

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 FAA for those failures by requiring an additional round of depositions. Rather, any testimony 

by Fowler, Schneider, and Underwood that was not disclosed during discovery, including any 

expert or opinion testimony, should be excluded. 

Attorney 

Office of the Regional Counsel 

1 Respondent suggests no meaningful relief as to Mr. Fowler. Respondent notes that a perpetuation deposition for 

Mr. Fowler is scheduled, but the opportunity to question Mr. Fowler at his perpetuation deposition is no different 

than the opportunity to question a witness at hearing. 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Reply in Support of Motion to Exclude was sent: 

Original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Builcling- Suite 2Wl 000 

One copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P .A. 

7300 North Kendall Dr., Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

\~'11/\'VlD ~mOu1 1 

D NNASTA EY 

Legal Analyst 

Office of the Regional Counsel 

FEB 2 5 2014 

Dated 

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4. 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 of the 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 of the 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 of the repair of the #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) of the subject airplane after the "fabricated" fuel tanks had been installed. 

[Type text] 

GOVERNMENT 

EX{jT