## SERVED: April 1, 2015

In TheMatter Of: AIRBOR!\JE M,;\INTENANCE AND ENGINEERING SERVICES Respondent ) ) ) ) ) ) DocketNo. FAA-2013-0291

CaseNo. 2011S0290032

ORDER GRANTING IN PARTAND DENYING IN PART

THE FAA'S MOTION FOR SUMMARYJUDGMENT

On January 30,2015,the Federal Aviation Administration ("FAA") filed a Motion for SummaryJudgment ("Motion"). Thatsame day, on January 30, 2015, the Respondent, Airborne Maintenance and Engineering Services ("Respondent") also filed a Motion for Summary Judgment ("Cross-Motion").
On February 11,2015, an Order GrantingRespondent's Motionto Exclude, and Granting/Denying Other Reliefwas filed.
On February 18,2015,the FAA filed the FAA's Response in Opposition to Respondent's Motion for Summary Judgment ("FAA Response"). That same day, on February 18, 2015, the Respondent filed its Answer in Oppositionto Complianant's [sic] Motionfor Summary Judgment ("Respondent's Response").
On February 27, 2015, the FAA filed the FAA's Reply in SuppC?rt ofMotion for Summary Judgment ("FAA Reply"). That same day, on February 27, 2015, the Respondent filed the Reply ofRespondent to FAA's Opposition to Respondent's Motion for Summary Judgment ("Respondent's Reply"). On March 5, 2015, the parties convened by telephone for a Summary Judgment Motion Conference, and presentedoral arguments on the FAA'sMotion and the Respondent's CrossMotion.On March 16, 2015 the FAA filed a Supplemental Submission on Motion for Summary Judgment. The next day, on March 17, 2015, the Re;pondent filed Respondent's Supplemental Submission. 

### I. INTRODUCTION A. Cross-Motions for SummaryJudgment As outlined above, bothparties filed motionsfor summaryjudgment on January 30, 2015. It is well established that "[b]oth parties may seek summaryjudgment in the same action" pursuant to Civ. R. 56(a). Steven Baicker-McKee, et al., 

### Federal Civil Rules Handbook, 1120 (West Publishing 2012). Even when cross-motions are filed, the review under Civ. R. 56 remains the same. Each cross-motion must be evaluated on its own merits, with the court viewing all facts · and reasonable inferences in the light mostfavorable to the nonmoving party. Baicker-McKee, et al., 

### supra, at 1127.

.. To ensure a clearunderstanding ofthe court's rulings, this Order addresses only the FAA's Motion for SummaryJudgment. A separate Order has already been filed addressing the Respondent's Cross-Motfon. Because certain objections were the same in both motions, the parties will see some duplication in this Order in rulings and explanations.
B. Complaint and Proposed Civil Penalty On orabout June 22,2013, the Regional Counsel for the FAA's Southern Region filed a Complaint with the U.S. Department ofTransportation's Office ofHearings. The FAA's Complaint alleged thatthe Respondent, a certificated aircraft repair station, performed improper maintenance on three different Boeing B-727 aircraft (identified as N899AA, N898AA, and N287SC) on orabout August 2009, October 2009, and March 2010. The three Boeing B-727 aircraft were O\vned and operated by another company, Capital Cargo International Airlines ("CCIA"), which was a Part 121 aircraft operator. The FAA asserted that the Respondent'.s improper maintenance onthe three Boeing B727s occurred when it worked onthe Main Landing Gear ("MLG") oneach ofthe aircraft. The Respondent's MLG maintenance included "reinstalling and rigging the landing gear doors."
Page 2 of31(Complaint, 2**~** 4.) The FAA alleged that maintenance on the MLG had been improper, and that each time the Respondent had performed maintenance on the B-727 aircraft, it had violated three oftheFARs: 14 C.F.R. 

### § 145.205(a); 14 C.F.R. 

### §43.13(a); and 14 C.F.R. 

### §43.13(b). This resulted in a total ofnine (9) alleged violations (i.e., 3 violations x 3 aircraft= 9 violations). Pursuant to 49 U.S.C. §4630l(a)-(d), the FAAproposed a total penalty of$61,875 for all nine (9) alleged violations.
C. FAA's Motion for Summary Judgment The FAA's Motion seeks complete dispositive reliefonthe merits ofthe nine (9) alleged violations ofthe Federal Aviation Regulations ("FAR"), as well as the FAA's proposed total civil penalty of$61,875. In the alternative, the FAA seeks partial dispositive relief"asthe evidence warrants." (Motion, 24.)

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Pursuant to 14 C.F.R. § 13.218, a party may file motions, including a motion for a decision onthe merits, in advance ofa hearing when a party asserts that there is no genuine issue ofmaterial fact in dispute. Pursuant to 14 C.F.R. § l3.218(f)(5), any motion for a decision on the merits prior to a testimonial hearing is analogous to a motion for summaryjudgment under Rule 56 ofthe Federal Rules ofCivil Procedure. HorizonAirIndustries, Inc., FAA OrderNo. 96-24, n.3 (Aug. 13, 1996); StebbinsAviation, Inc., OMSNo. FAA-2000-7576-16, n.3 (Aug. 30, 2004) (Initial Decision). Thepurpose ofsummaryjudgmentis "toisolate, and then terminate, claims and defenses that are factually unsupported." Steven Baicker-McKee, et al., supra, at 1122.
Pursuantto Rule 56(a), a summaryjudgmentmotion may be granted if"the movant showsthat there is no genuine dispute as to any material fact and the movant is entitled to judgmentas a matteroflaw." See,Anderson v. Liberty LobbyInc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In addition, pursuant to Rule 56(f), summaryjudgmentmay also be grantedto a non-movingparty, after all parties have had notice and a reasonable time to respond.
A fact is "material" ifit is capable ofaffecting the substantial outcome ofthe litigation. Holcomb, 433 F.3d at 895; LibertyLobby, Inc., 477 U.S. at 248. A dispute is "genuine" ifthe
Page 3 of 31evidence is such that a reasonable trier offact could return a verdict for the non-moving party. 

### See, Scott v. Harris, 5550 US 372, 380 (2007); 

### LibertyLobbyInc., 477 US at 248, 

### Holcomb, 433 FJd at 895.
On a motion for summaryjudgment, all evidence and inferences are to be viewed in the light most favorable to the non-moving party. However, a non-moving party 

### (e.g., the FAA herein answering the Respondent's Cross-Motion) may not rest upon mere denials orallegations in the pleadings. Pursuant to Civ. R. 56(c), (d), and (e), a non-moving party who wishes to proceed to trial must respond to the motion for summaryjudgment, and set forth specific facts sufficient to showthere is a genuine issue for trial. 

### Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 

### See also, Citizens State Bankof BigLake v. Transamerica Ins. Co., 815 F.Supp. 309 (D. Minn. 1993); Baicker-McKee, et al., 

### supra, at 1133-34 (a non-moving party may produce materials, and/orcite to materials produced or not produced by the movant in resisting the summaryjudgmentmotion).
Pursuant to Rule 56 (c)(l)(A), specific facts alleged by eitherparty may be asserted by submitting orciting to a variety ofdocuments and declarations. Materials submitted during summaryjudgmentproceedings must be capable ofbeing offered at trial in an admissible form. 

### See, Baicker-McKee, et al., 

### supra, at 1135. Once the movingparty has established a primafacie case, the burden shifts to the non-moving party to show, by affidavit or otherwise, that a genuine

. dispute ofmaterial fact remains for the fact-finder to resolve. /d. at 1134 On a summaryjudgment motion, the court does not rule on the weight ofthe evidence. 

### See Id. at 1125 (The court never weighsthe evidence, evaluates credibility or makes findings on disputed facts in summaryjudgmentproceedings).
III. EVIDENTIARY RULINGS A. FAA's Factual Evidence in Support ofMotion In support ofits Motion, the FAA submitted thirty-five (35) Exhibits, identified as FAA Exhibits.A through II. As part ofits Reply, the FAA;.also submitted three (3) Exhibits, identified l

. ..· as FAA Exhibits PP through QQ. Additionally in its Reply, the FAA incorporated by reference ExhibitsJJ and KK, which it had previously filed as part ofits February 18, 201.5 Response to

Page 4 of 31the Respondent's Cross-motion. 1
Atthe March 5, 2015 Motion Conference, FAAExhibits B through D, F-G, 1-J, L, N-Y, X-AA, CC-11, and PP-QQ were admitted without objection. However, the Respondent objected
on various grounds to the admission ofthese eight (8) FAA Exhibits: A, E, H, K, M, W, BB, and 

### JJ. The parties agreed to incorporate by reference the arguments they had made regarding Exhibit JJ earlier during the Motion Conference (i.e., when they had addressed the same exhibit in the Respondent's Cross-Motia.n). The Respondent's objection to Exhibit A was sustained and it was not admitted orconsidered. The Respondent's objeCtions to Exhibits E, H, K, W, BB, and JJ
were overruled, and those exhibitswere admitted and considered over objection. The Respondent's objection to Exhibit M was overruled in part, and pages 57, 58, and 59 ofthe Exhibit M were admitted overobjection. The Respondent's objection to the first page ofExhibit M was reserved, and the FAA was given an opportunity to supplement the record to show whether this first page could be deemed admissible overobjection.
On March 16, 2015, the FAA filed a Supplemental Submission on Motion for Summary Judgment, in which it provided additional evidenceto show that the first page ofExhibit M had been produced by the Respondent in response to an FAA discovery request. The Respondent's objection to the admission ofthefirst page ofExhibit M is overruled. Exhibit M is admitted in its entiretyfor consideration 

### B. Respondent's Factual Evidence in Opposition to Cross-Motion As partofits Response, the Re$pondent su\;>.mitted eight (8) Exhibits, identified as Exhibits 1through 8. At the March 5, 2015 Motion Conference, Respondent Exhibits 2-6 and 8
were admitted without objection. However, the FAA objected on various grounds to the admission ofRespondent's Exhibits 1and 7. Exhibit I was a compilation ofexcerpts from Mr. Becker's October 29, 2014 Discovery Deposition. These excerpts were primarilyduplicates ofthe deposition excerpts submitted by the

1 Itis well-established that ifa moving party introduces new evidence in a Reply brief, the non-moving party should be given**~n** opportunity to respond. Baicker-McKee, et.al., supra, at 1143. In this proceeding, both parties filed new evidence with their Replies. Atthe March 5, 2015 Motion Conference, the parties agreed that the issues had been fully briefed, and there was no need to file additional responses to Reply evidence in either the FAA Motion orthe Respondent's Cross-Motion Page 5 of 31Respondent in its Cross-Motion Exhibit 3, with some exceptions.1The parties agreed to incorporate by reference the arguments they had made about Mr. Becker's discovery deposition ,J testimony earlier during the same Motion Conference (i.e., when they had addressed the Respondent's Cross-Motion Exhibit 3.) The FAA's objections to Exhibits I and 7 were reserved, and the Respondent was given an opportunity to supplement the record to showthose two Exhibits could be deemed admissible over objection.
Exhibit 7Admissibility: On March 17, 2015, the Respondent filed Respondent's Supplemental Submission, in which it agreed that Exhibit 7 had been produced by the Respondent in response to an FAA discovery request. (R's Supp. 4.) The FAA's objection to the admission ofthe first page ofExhibit 7 is overruled. Exhibit 7 is admitted in its entirety for consideration.

Exhibit 1Admissibility: On March 17, 2015, the Respondent also reasserted in its Supplemental Submission that

### Mr. Beckerqualified as an expert. (R's Supp. 2.) The Respondent agreed that it first identified Mr. Becker as an experton December 12, 2014, but argued (among otherthings) that this late disclosure occurred only because the FAA had not identified Inspector Lipinski as an expert until December 1, 2014. (R's Supp. 3.) The Respondent also incorporated by reference Respondent's previously filed Cross-Motion Reply Exhibit 1-R, which was a February 26, 2015 Declaration by Mr. Becker.3To the extent that the Respondent referenced Exhibit I**~R** to demonstrate Mr. Becker'squalifications as an expert, it is accepted and considered. Exhibit 1-R is not accepted, however, as additional testimonial evidence on the merits in opposition to the FAA'sMotion, because supplemental submissions were authorized only to addressthe reserved admissibility objectionsto the proffered evidence.
1. Mr. Becker'sExpert Qualifications Pursuant.to Rule**702~** a witness may be qualified to serve as an expert ifs/he is shown to

2 Forexample (not inclusive), Respondent's Response Exhibit I to the FAA's Motion contains deposition pages 48- 49 and page 52, while Respondent's Cross-Mo,ion Exhi.bit 3 dpes not. Respondent's Response Exhibit I does not contain pages 56-58 or 63-67 or70, although these pages are contained in the Respondent's Cross-Motion Exhibit 3, etc.
3 The Respondent's March I7, 20I5 Supplemental Submission asserted thatExhibit 1-R was attached, but did not actually provide any attached exhibit (R's Supp. 2). Nevertheless, Exhibit I-R had been filed on February 27, 2015 and was available for court review. Page 6 of 31

. Ihave "specialized knowledge" in a subject. Fed. R. Evid. 702. The witness may be qualified by "knowledge, skill, experience, training, oreducation."

### /d. As part ofits objection, the FAA argued that Mr. Beckerwas not now, and had neverbeen, a certified Airframe and Powerplant mechanic, had neverperformed maintenance work on any B-727, and therefore did not have the necessaryexpertise to testify about aircraft maintenance orrepair issues.
In response, the Respondent pointed out (among other things) that Mr. Becker held an Aeronautical Engineering degree and had substantial work experience as a Design and Flight ;· . -.r:- : engineerfor various aircraft (Exh. R-1,**~A-C).** Mr. Becker also worked in flight engineering and aircraft maintenance management-which included developing aircraft repair instructions and training aircraft inspectors. (Exh. R-1,**~D-E.)** The FAA's objection to Mr. Becker as an expert on the basis ofqualification is overruled. There is no regulation in the FARs that requires an expert witness to hold an Airframe and Powerplantcertification in orderto testify about aircraft maintenance and repair issues. The question ofexpert qualification in a subject is not based on who is best qualified to testify or what "precise" qualifications are offered, but rather whether a witness is competentto offer specialized knowledge in a certain subject. I McCormick On Evid. § 13 (7th ed. 2015); AmericanAuto. Ins. Co: v. Omega Flex, Inc., No. 4:11CV00305 AFG, 2014 WL 859760 (E.D. Mo., March 5, 2014) (expert permitted to offertestimony within the bounds ofhis qualifications); Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975) (witness allowed to testify about machinery design principle§, even though he had not previously manufactured ordesigned machines).
Based on the evidence presented, Mr. Beckerhas demonstrated by education and work experience that he is qualified to serve as an expert witness in the fields ofaircraft engineering and design, as well as in the subjects ofinstructions for airplane maintenance and repair, oversight ofFAA-compliant aircraft maintenance programs, and aircraft inspection training.
2. Requested Exclusion ofMr. Becker as an Expert The FAA objected to the presentation ofexpert testimony by Mr. Becker in Exhibit 1on multiple grounds, including: a) Mr. Beckerhad not been timely identified as an expert; and b) any expert testimony by Mr. Beckerhad been proffered for the limited purpose ofrebutting
Page 7 of 31Inspector Christensen'stestimony-who would not be testifying. The FAA also asserted the · Respondent had failed to meet its reliability burden,:in Mr. Becker'spurported expert testimony.4
At the March 5, 2015 Motion Conference, in response to the FAA's objections to Mr.

· Becker's expert testimony, the Respondent asserted that Mr. Becker's expertise had been

generallyknown. In addition, the Respondent had always intended to utilize Mr. Beckerto "rebut" the testimony ofall the FAA's disclosed expert witnesses.
A review ofthe record shows that the Respondent did assert, in an earlier motion, that Mr. Beckerwasoffered "to rebut any expert testimony offered by the FAA's late-disclosed expert witnesses." (1/5115 Respondent Answer to Complainant's Motion to Compel and Exclude, 7.) However, at the time ofthis assertion, the Respondenthad withdrawn its motion to exclude the expert testimony ofInspector Lipinski, Inspector Evans, and Inspector Gasche (12/16/14 Respondent's Rule 37 Declaration and Renewal ofMotion for Sanctions, 2 fn. 2). Thus, the Court addressed only the testimonial consequences ofcalling Mr. Becker as a "rebuttal" witness to FAA Inspector Christensen in··its February 11, 2015 Order. 5
The issue oftimely disclosure ofexperts was addressed comprehensively in the February 11, 2015 Order, and will not be fully repeated here. In essence, timely expert witness disclosures increase the quality oftrials by allowing attorneys to better analyze their case, and to prepare for cross-examination. 8A Fed. Prac. & Proc. Civ. § 2031.1 (3d ed. 2015). The duty to timely disclose a witness as anexpert isnotexcused when a witness who will testify as a fact witness 

### andas an expert witness is disclosed only as a fact witness. 

### !d. A party may not evade expert witness disclosure "by simply calling an expert witness under the guise ofa layperson."

### /d. Nor may a party avoid timely expert disclosure by asserting that a witness in the party's case-in-chief

4 Among otherthings, the FAA adopted by reference the arguments it previously had made about Mr. Becker's testimony in its February 18, 2015 Cross-Motion Response. (Reply, 4.) For example the FAA argued that Mr. Becker's expert testimony was not reliable because portions were based on a speculative "telephone" game of hearsay (FAA Response, 2), implausible suppositions and "shortcuts" (FAA Response, 6), problematic, unverifiable maintenance record entries (FAA Response, 8), and by ignoring facts and data in the record (FAA Response, 9-12). The FAA also asserted that Mr. Becker's testimony was,unreliable because it was inconsistent with his own deposed testimonial statements (FAA Response, 15) and his prioradmissions to the FAA (FAA Response, 22).

sThe record in this proceeding shows that on February II, 2015 an OrderGranting Respondent's Motion to Exclude, and Granting/Denying Other Motions was filed. Among otherthings, this Orderexcluded Inspector Christensen as a witness, and deemed the FAA's December 19,2014 Motion to Exclude Mr. Becker as an expert witness a moot issue, since the Respondent had offered Mr. Becker only as a "rebuttal" witness to Mr. Christensen. (Order, 10**~** 3(a) and 14 (6).) Neither party filed for reconsideration ofthis February II, 20I 5 Order. Page 8 of 31is merely a "rebuttal" witness.6· In the caseherein, the FAA is correct that the Respondent did not timely disclose Mr. Becker as an expert witness. At the same time, the Respondent is correctthat the FAA did not timely disclose Inspector Lipinski, InspectorEvans, and Inspector Gasche as expert witnesses. Instead, each party timely disclosed these witnesses asfact witnesses, but failed to also timely identify them as 

### expertwitnesses.
In short, both parties erred in the timing oftheir expert disclosures. Nevertheless, both parties had access to these four witnesses early in the proceedings, and both InspectorLipinski and Mr. Beckerwere deposed during discovery. The record also demonstrates that the FAA was
aware ofMr. Becker's potential expert status, since Mr. Becker's October 29, 2014 discovery deposition included FAA inquiry about Mr. Becker's specialized education and work history, as well as inquiry regarding his opinionson the issues ofaircraft maintenance and repair, which is a topic ofexpertise. The problem, however, is that the Respondent produced Mr. Becker for the FAA discovery deposition as a Rule 30(b)(6) company representative, not as an expert witness. 7 It also appears undisputed that Mr. Beckerhas never produced an expert report, which was required and due no later than December 12, 2014. (9/30/14 Order.) As ofthe date ofthis Order, it is still

6 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**~hether**the !Vit;;e.ss is truly a "rebuttal" witness. Rebuttal must be 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). In Morgan v. Commercial UnionAssurance Companies, 606 F.2d 554 (5th Cir. 1979), the pretrial schedule required disclosure ofall witnesses except rebuttal witnesses. At trial the defendant attempted to introduce the testimony ofan unidentified witness as "rebuttal"to the plaintiffs witness. The court held that "adefense witness whose purpose is to contradict an expected and anticipated portion ofthe plaintiffs case in chiefcan never be considered a 'rebuttal witness."'/d. at 556; seealso, Wong v. Regents of Univ. of Calif, 410 F.3d 1052, I060-61 (9th Cir. 2005) (district court appropriately excluded expert identified late because "the necessity ofthe witness" could have "been reasonably anticipated at the time the lists were exchanged"); Coastal Fuels of Puerto Rico, Inc. v. Caribbean Perro/eum Corp., 79 F.3d 182,202-03 (lst Cir. 1996) (exclusion is proper for experts identified late as "rebuttal"). Previously undisclosed "rebuttal" expert testimony is "limited to new unforeseen facts brought otit in the other side'scase." In re Presideni'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)).

7 During the deposition,-the Respondent's attorney made objections to some**inq~i~** as being outside the**scop~** of Rule 30(b)(6) deposition. (e.g., Exh. B, 40.) He also objected to the FAA exammmgMr. Beckeron sometop1cs of expertise, and stated to Mr. Becker: "I don'tknow that your understanding ofwhat a mechanic would do is relevant, but ifyou can, answer the question." (Exh. I, 113.) Page 9 of 31 :-unclearthe exact scope ofexpert testimony the Respondent seeks to ultimately offerthrough Mr. Becker, and what "reliable principles and methods';.;under Fed. R. Evid. 702(d) might supporthis expert opinions. a) Four Factor Test Federal courts have often applieda four factor test to "determine whether exclusion of evidence is the appropriate sanction for failures to comply with discovery duties: '(I) 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 othercases in the court; and (4) bad faith orwillfulness in failing to comply with a courtorder ordiscovery obligation.'" In re AsbestosProducts LiabilityLitigation (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, Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx.·705, 713 (9th Cir. 2010) (citing Davidv. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). Each ofthese four factors are addressed below. b) Test FactorsApplied 

### ill FactorNo. I (Surprise or prejudice): Clearly the FAA would not be surprised.ifMr. Becker was limited to the testimony he provided in his October29, 2014 deposition. The FAA would be surprised and prejudiced, however, ifMr. Becker was allowed to expand on this testimony, since the FAA has not received
an expertreport (identifying the facts and opinions upon which Mr. Beckerrelies in giving expert evidence), nor has the FAA had a chanceto depose Mr. Becker as a proffered expert. ill} FactorNo. 2 (Possible Cure(s)): Could the prejudice to the FAAforlate disclosure be cured? One option is to allow the Respondent to offerMr. Becker'sdeposition testimony only as lay testimony, since Mr. Becker's deposition wastaken as a fact witness. Another option would be to direct Mr. Becker toyroduce
an expert report, and allow the FAA an:opportunity.tore-depose Mr. Becker as an expert. A third option would be to force the FAA to respond to Mr. Becker as an expert, without the benefit of
an expert report or

### ari. expert deposition. Given the lack oftime before the scheduled Hearing, these options lead into the third test factor.

Page 10of31(iii) FactorNo. 3 (Disruption to the trial proceedings): Would curing the prejudice to the FAA disrupt the orderly and efficient trial ofthis case? The hearing is currently setto begin on May 5, 2015, which is approximately one (I)month from the date ofthis Order. In certain cases, one month might be sufficient time to allow another deposition to be taken. But in this case, that is unlikely. The parties have demonstrated that they have difficulty in scheduling and taking depositions in this proceeding. Even ifthe Respondent produced an expertreport within two (2) days·ofthis Order, the parties would still need to coordinate theircalendars, hire a courtreporter, and potentially travel to an out-of-state deposition site so that the FAA could take Mr. Becker'sdeposition testimony. Once the deposition was taken, the FAA would need to reassess its trial material, and make a . determination about what, ifany, additional expert testimony or documentation would be needed for its own case-in-chiefor rebuttal. Even ifit·is assumed all this could be done within three weeks ofthe hearing date, it would be disruptive to trial preparation for both sides, and certainly unfair to demand ofboth parties so close to the hearing date. The other option would be to continue the hearing date into the year 2016, which does not-in any way-servethe interests of the efficient administration ofthis case. (iv) FactorNo. 4 (Bad Faith orUnwillingness): The record demonstrates that both parties in this case have failed to meet certain courtordered deadlines. There has also been**~ conti~uing,practice**  by both parties to identify witnesses
as fact witnesses and fail to identify the samewitnesses as experts. There is no evidence that bad faith was involved in this action. 

### c) Rule 702 Expert Exclusion Granted Itshould be noted that much ofMr. Becker'sproffered deposition testimony (Exh. I) was fragmented, difficult to follow, and did not clearly identify orattach the deposition exhibits or data that Mr. Becker was reviewing. Substantial portions ofExhibit 1did not offer expert testimony oranalysis, but instead offered fact witness testimony, fact opinion, general assumptions or suggestions, and speculation. In addition, although Mr. Becker did offertechnical opinions about varioustopics, he did not provide them inconjunction with a discussion of general industry standards ormethods, to demonstrate that he had "reliably applied the principles

Page 11of 31

• ! •and methods" ofexpert knowledge and·analysis to the facts ofthe case. Fed. R. Evid. 702(c) and (d).)
It was undisputed that Mr. Becker was deposed on October 29, 2014, as a Rule 30(b)(6) company representative. The discovery deposition was scheduled as a "fact witness" deposition. During the deposition, the Respondent's attorney made objectionsto some FAA inquiry as being outside the scope ofa Rule 30(b)(6) deposition. 

### (see, e.g., Exh. B, 40.) He also objected to the FAA examiningMr. Becker on some topics ofexpertise, and stated to Mr. Becker: "I don'tknow that your understanding ofwhat a mechanic would do is relevant, but ifyou can, answer the question." (Exh. 1, 113.) Mr. Beckerdid answer one question utilizing his "engineering background" (Exh. 1, 87), but a majority ofhis responses appeared based on his work duties as the Respondent's DirectorofQuality Assurance and Training, which included his review, analysis, and opinionsregarding company investigations and aircraft maintenance records. The selected portions ofExhibit 1do not contain any int:ormation about the "reliable principles and

•;_ ;·· methods," Fed. R. Evid. 702(d), that Mr. Becker is required to utilize in order to present reliable expert testimony.8
Based on the totality ofthe record herein, the FAA'sobjections to allowing Mr. Becker's testimony to be admitted ?S expert testimony in the Respondent's Response are sustained. 

### d) Deposition TestimonyAllowedunderLimitedRule 701 Lay Opinion Exception Nevertheless, it is clear that Mr. Becker, as the Respondent's Rule 30(b)(6) fact representative, provided somedeposition testimony that involved technical expertise, and the FAA has had an opportunity to consider and respond to that testimony.
In the year 2000, in response to a split in court rulings, as well as the discussion and decision in

### AsplundhMfg. Div. v. Benton Harbor Engineering, 57 F.3d 1190 (3rd Cir. 1995), the Advisory Committee for the Federal Rules ofEvidence amended Rule 701 to limit lay opinion

8 1n addition to expert qualifications, Rule 702 requiresthat**a~·expert's** testimony bedeemed reliable before it is admined and considered. The expert's testimony must be "based on sufficient facts or data," Fed. R. Evid. 702(b, be the product of"reliable principles and methods," Fed. R. Evid. 702 (c), and the expert must show that s/he has "reliably applied the principles and methodsto the facts ofthe case." Fed. R. Evid. 702(d). Pursuant to Rule 702 and 104, the proponent ofthe proffered testimony has the burden ofestablishing that the pertinent reliability requirements are met, by a preponderance ofthe evidence. Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments. I McCormick on Evid. § 13 (7th ed. 20IS).
Page 12 of31testimony to commonknowledge matters. Testimony "cannotbe admitted under Rule 701 ifit is based on scientific, technical, orother specialized knowledge within the scope ofRule 702." (3- 701 Federal Rules ofEvidenceManual,§ 701.02).
In the amenqment notes, however, the Advisory Committee left open a limited exception, that allowed a lay witness with some specialized knowledge, by virtue ofhis 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 Jay witness in his/herdaily activities. Thus, the "common knowledge" lay witness could testify, on a limited basis, to some specialized daily activities that did notrise to the level ofexpert knowledge. Fed. R. Evid. 701. Advisory Committee Notes (2000 Proposed Rules) (e.g., a business ownermay testify about the projected profits ofhis business).
Based on the record herein, Mr. Becker's deposition testimony maybe admitted as specialized Jay opinion testimony underthe limited exception ofRule 701, which was offered in his capacity as Respondent's DirectorofQuality Assurance and Training.**IV~** ALLEGED REGULATORYVIOLATIONS
As previously noted,the FAA alleged that the Respondent's MLGmaintenance had included improperly "reinstalling and rigging'Uhe main landing gear doors on three Boeing B727 aircraft on or aboutthe following dates: August 2009 (AircraftN899AA), October2009 (Aircraft N898AA), and March 2010 (Aircraft N287SC). (Complaint.) The FAA alleged that on each occasion ofaircraft maintenance, the Respondent had violated three ofthe FARs: 14 C.F.R. § 145.205(a); 14 C.F.R. §43.13(a); and 14 C.F.R. §43.13(b).
Section 145.205(a) states: (a) A certificatedrepair stationthat performs maintenance, preventive maintenance, oralterations.for an air carrierorcommercial operatorthat has a continuous airworthiness maintenance program under part 121 orpart 135 must follow the air carrier'sorcommercial operator'sprogram and applicable sections ofits maintenance manual. 14 C.F.R. § 145.205(a) (2014). Duringthe March 19,2015 Motion Conference, this Court noted that Section 145.205(a) Page 13of 31appeared to be the primary regulatory violation regarding the three (3) alleged improper maintenance incidents in this case, since Section**~45.205(a)** contained both specific languagenot included in either Section43. 13(a}or (b), as well as broad language that addressed the safety requirements contained in both Section 43.13(a) or (b).
For example, the maintenance manual requirement contained in Section 145.205(a) requires a repair station to "followthe air carrier's

... applicable sections ofits maintenance manual." The first part ofSection 43.13(a) also requires "each person"9 who perfonns maintenance to follow the applicable maintenance manual ormanufacturer's instructions: (a) Each person performing maintenance, alteration, orpreventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer

### or... ,, 14 C.F.R. §43.13(a) (2014) (emphasis added). As noted earlier herein, the parties agreed that CCIA had a CAMP that the Respondent
was required to follow. This CAMP utilized Boeing's B-727 maintenance manual. Thus, the applicable regulatory language in Section 43.13(a).mirrored the regulatory requirements of Section 145.205(a). The alternative contained in Section 43.13(a) was not applicable to this proceeding. 10
In addition, Section 43.13(b) provides: (b) Each person maintaining, or altering, orperforming preventive maintenance, shall do that work in such a manner and use materials ofsuchquality, that the

9 Both Section 43.13(a) and Section 43.13(b) refer to "aperson" performing maintenance. The word "person" is broadlydefined bythe FARs, and includes a companyora corporation. 14 C.F.R. §1.1 (Definitions).

10 The alternative language in Section 43.13(a) addressed incidents where no maintenance manual or instructions are available. This alternate language states that a person may also perform maintenance as follows: (a)

... or [by using] other methods, techniques, and practices acceptable to the Administrator, except as noted in §43.16. He shall use the tools, equipment, and test apparatus necessary to assure completion ofthe work in accordance with accepted industry practices.**lfspe~ial** equipment ortest apparatus is recommended by the manufacturer involved, he.must use that equtpment or apparatus or its equivalent acceptable to the Administrator. Section 43.13(a) (2015).

Page 14of31condition ofthe aircraft, airframe, aircraft engine, propeller, orappliance worked on will be at least equal to its original orproperly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and otherqualities affecting airworthiness. 14 C.F.R. §43.13(b) (2014).
Neitherparty addressed the language ofthis regulation. In the absence ofdiscussion, it is reasonable to assume that the aircraft's "original"condition is the aircraft's manufactured \ condition. Assuming subsequent maintenance on the original aircraft was performed pursuant to the manufacturer'srecommendations, the maintained orrepaired aircraft would then remain airworthy and functional in a "properly altered".condition. Thus, the requirements ofSection 43.13(b) also appear to be included within the scope ofSection 145.205(a). As a result, the primary discussion in this Orderwill focus on the regulatory language contained in Section 145.205(a).

V. DISCUSSION I All evidence and arguments have been considered. Because ofthe volume ofmaterials submitted, only certain matters will be highlighted and discussed.'
A. Undisputed Facts

Most ofthe facts regarding the Respondent'scompliance with Section 145.205(a) were not in dispute. The Respondent admitted that i.t was a certificated repair station (Answer 1,**~** 2). Thethree (3) identified B-727 aircraft had been manufactured by Boeing. On or about.the dates alleged, the Respondent performed maintenance on the three (3) identified B-727**ai~craft** manufactured by Boeing. (Answer 1-2**~** 3(a), (b), and (c).) At the time the maintenance was performed, each Boeing B-727 aircraft had been owned and operated by a Part 121 aircraft operator, Capital Cargo International Airlines ("CCIA"). (!d.)
CCIA had a Continuous Airworthiness Maintenance Program ("CAMP") which the Respondent was supposed to utilize and follow. (Answer J,**~** 5.) CCIA's CAMP required that Boeing'sB-727 Aircraft Maintenance Manual ("AMM") be followed in performing maintenance
on CCIA's B-727 aircraft. The maintenance performed on each ofthe three different Boeing B727 aircraft (identified as N899AA,N898AA, and N287SC) on orabout August 2009, October Page 15 of 312009, and March 2010 had involved replacing the Main Landing Gear ("MLG"). This MLG maintenance included "reinstalling and rigging the landing geardoors." (Answer, 2**~** 4(a), (b), and (c).)


### B. Disputed Issue The substantive law (i.e. 14 C.F.R. 

### §§ 145.205(a)) identifies the four material facts that
are critical: I)whetherthe Respondent was a certificated repair station; 2) whether the Respondent performed maintenance on·the aircraft; 3) whetherthe maintenance was performed for an air carrier that has a CAMP underpart 121; and 4) whetherthe Respondent used and followed Boeing'sB-727 Aircraft Maintenance Manual ("AMM") in performingthat maintenance. The first three facts are undisputed. Thus, the only issue in dispute is the fourth material fact: whetherthe Respondent had complied with CCIA's "program and applicable sections ofits maintenance manual," (14 C.F.R. 

### § 145.205(a)), when it had reinstalled and rigged the MLG doors on each Boeing B-727 aircraft in August 2009, October2009, and March 2010.
C. Analysis As noted e.arlier herein, each cross-motionfor summaryjudgmentmust be evaluated on its ownmerits. Thus, the evidence presented by both parties in the FAA'sMotion is limited to the exhibits marked, admitted, and deemed material as part ofthis Motion. Any testimonial or documentary evidence presented by the parties in the Respondent's Cross-Motion, which was not also submitted (orreferenced) as part ofthe FAA's Motion, was not considered. Evidence
was deemed material ifit was reliable and addressed the issue in dispute.
I. Short Review ofF AA's Proffered Evidence Because ofthe volume ofmaterials presented, only highlights ofcertain material evidence will be discussed. In its Motion, the FAA asserted that no genuine issue ofmaterial fact existed, and that it was entitled tojudgmentas a matteroflaw. (Motion, 1.)
The FAA submitted multiple pieces ofmaterial evidence, including FAA Inspector Lipinski's February 17, 2015 Declaration (Exh. JJ), Inspector Lipinski's December 12, 20l0

. . Memorandum (Exh. 1), FAA Inspector Gasche's September28, 20I0 Memorandum (Exh. J), CCIA's October25, 2010 Investigation Report (Exh. H), the Respondent's March 21, 2011 Page 16of31Investigation Report (Exh. HH), as well as selected portions ofMr. Jeffrey Becker's October-29, 20I 4 discovery Deposition (Exh. KK). As part ofhis testimonial evidence, Inspector Lipinski stated the following: My personal observations ofthe aircraft in May 20I0 included direct observation ofimproperly placed shimming washers and damageto the flying doors, flap track fairings, and othercomponents that was [sic] caused by improper rigging. The Capital and AMES maintenance records, plus my conversations with Capital and AMES managers, and written statements to me from Capital and AMES, all confirmed that the landing gear and flying doors had not been properly installed. (Exh. JJ, 3**~** 10.) InspectorLipinski opined that the damage discovered during and afterthe May 201 0 FAA inspection demonstrated thatthe Respondent had not fully complied with Boeing'sAMM when ithad initially performed the MLG maintenance on each Boeing B-727 aircraft. (Exh. JJ, 4**~** 15.) Even if AMM 32-12-111401 or anotherAMM section had not been specifically referenced in the AMM section on regarding the MLG ofan aircraft, a mechanicworking on a B-727 was still expectedto kflow other sections'ofthe AMM, as well as when and howto apply other AMM sectionsduring a maintenance operation. (Exh. KK, 3-4**~** 12**and~** I3)

.. InspectorLipinski acknowledged that eachaircraft had been used after the Respondent had performed the MLG maintenance. Nevertheless, Inspector Lipinski testified that the damage and problems to the MLG on each aircraft were not "wear and tear" related. (Exh. JJ, 4**~** 14; 5**~** 24; 7**~** 30; 8**~** 42.) He opined that it was highly unlikely that intervening maintenance had caused the damage (Exh. JJ, 7-8**~** 36-38).
In addition to Inspector Lipinski'stestimonial statements, the FAA offered FAA Inspector Gashe's September28, 2010 Memorandum, in which he reported that he had met Inspector Lipinski at the Toledo, Ohio airfield on May 26, 2010, and performed a "walk around" inspection ofall three Boeing B-727 aircraft with him. (Exh. J, 1.) Inspector Gashe was "qualified on the B-727" and had "12,000 flight hours ofexperience in the B-727 aircraft." (Id.) He testified that each aircraft inspection revealed damage to the "right main geardoor." (!d.).

• ·J [O]n aircraft number N898AA we found thaithe right main gear door was out

### of Page 17of31alignment, and showed rubbing at the hinge. We found the same problem on aircraft N899AA, and the left gearpiano hinge pin was coming out. In both cases the geardoor was damaged and binding on the flap track fairing cover. Laterthat day we found the same geardoorproblem on aircraft numberN287SC. Also on aircraft N287SC the anti-skid conduitwas tied to the front ofthe main landing gear not tied to the side ofthe main landing·gear. (Inspector Gashe, Exh. J, 1.)
On June 10, 2010, approximatelythree weeks after the FAA's May 2010 inspection, the Respondent implemented a revised training program on B-727 MLG Door installation.11 The introductory slide in this program did not specifically acknowledge fault by the Respondent, but it did assert that there were suspectedproblems:
An AMES, Inc. customerhas recently**experienc~d** several instances ofloose, missing and worn hardware found in the B-727 Main Landing GearWing Doors in aircraft which had undergone heavy maintenance

...It is suspected that the doors may have been improperly rigged by Maintenance Technicians during a heavy check and signed offby Inspection. Thistraining module 

### will highlight the proper maintenanceprocedures for the removal and installation ofthe B-727 Right or Left MLG Wing Door. Exh. QQ, I. The FAA also proffered CCIA's October 25, 2010 Investigation Report (Exh. H). This
was authored by Mr. Benjamin Buck, CCIA's ChiefInspector, approximately four (4) months after the Respondent'sJune I0, 20I0 training program was implemented. Mr. Buck reported that the results ofan internal company investigation, conducted at the Respondent's facility afterthe May 20l0 FAA inspection, demonstrated that the Respondent had "misrigged"the MLG doors
on the all three aircraft. (Exh. H, 1-2). Duringthe inspectionon all 3 aircraft atAMES' ILN facility, all had common issues: improperrigging ofthe flying doors (left hand and right hand), loose/missing hingepins, improper stackingtofthe hinge washers and missing safeties (cotterpins). These items in turn caused numerous gouges. Aircraft N287SC was found tohave the right hand MLG conduitpinchednearthe trunion due to improperrouting. A-checks had beencomplied with at stations and the damage had gone un-noticed by personnel. These stations included personnel from CCIA and AMES.

11 The Respondent did not object to the admission ofExhibit 00. It should be noted, however, that this type of information appears to fall within the scope ofRule 407, which prohibits its use as proofofculpable conduct. Exhibit 00has been therefore been considered as proofthat the Respondent and Mr. Becker were aware in June 2010 that there were allegationsthatthe Respondent had performed both maintenance misrigging and improper inspection sign off. Page 18of 31(Exh. H, 2.) CCIA's internal investigation, which had occurred at the Respondent's facility and involved Respondent personnel, further found that the Respondent's improperrigging ofthe MLG doors had occurred because the Respondent had failed to follow the "supplied and approved" Boeing B-727 AMM when it had installed the MLG on each aircraft. (Exh. H, 2).
The aircraft flying doors were improperly installed and rigged and not in compliance with the authorized Operations Specifications D-72 paragraph issued for approval ofthe CCIA CAMP and AMM. AMES did not follow the supplied and approved 727 AMM procedures. AMES has respondedto this finding with a modified training program. (Exh. H, 2.) Approximately five (5) months later, onMarch 21, 2Ul 1, the Respondent sent a Letterto Inspector Lipinski regardingthe allegedly improper B-727MLG installations. (Exh. HH, 1 ). This letter was authored by Mr. Jeffrey Becker, the Respondent's Director ofQuality Assurance and Training. In it, Mr. Becker stated that afterthe FAA's May 2010 inspection, the Respondent had "initiated a very detailed investigation toreview all aspects ofthe issue." (Jd.)

. .:t The details ofthe investigation and results have been sentto you by CCIA in a letterdated October 25,2010 in response to your letter dated October4, 2010

...We worked very closely with (CCIA)

...to put a corrective action plan togetherthat would prevent the reoccurrence for both our operations. (Exh. HH, 1.)
Inthis March 21,2011 Letter, Mr. Becker also adopted by reference CCIA's Corrective Action Reports ("CARs") Nos. QAACVG004 (i.e., Exh. P, re: BoeingN899AA), QAACVG005 (i.e., Exh. V, re: BoeingN898AA) and QAACVG006 (i.e., Exh. EE, re: BoeingN287SC). These CARs reported that following the May 2010 FAA inspection CCIA mechanics conducted further evaluation and had found that the MLG had not been properly installed. ForN899AA, the "hinge assembly" onthe MLG doorshad not been properly installed in compliance with Boeing's Standard Process (BAC 5018, pg. 34). (Exh. P, 1-2). Forboth N898AA andN287SC, the right hand MLG doors hadbeen improperly_rigged (Exh. P, l; Exh. EE, 1.) causing "playand

·damage" to the doorfairings. (Id.)
Page 19 of31As part ofCCIA's CARs, the Respondent was given an opportunity to provide responses. On July 2, 2010 Mr. Becker signed CARQAACVG005 regarding N898AA, in which he asserted (among other things) thatthe Respondent had developed and incorporated the contents ofthe B-727 MLG Wing DoorTraining Module into its program, with the goal ofincreasing "awareness for 727 door rigging." (Exh. V, 2.) That sameday, on July 2, 2010, Mr. Becker signed CAR QAACVG004 regarding N899AA, in which he agreed that the technician and inspector had been "unawarethat Boeinghad a Standard Process (BAC 518, pg. 34)" for ensuring MLG door hinge pins were secured. (Exh. P.) Mr. Becker re-asserted that the Respondent's newly developed B-727 MLG Wing DoorTraining Module would address the problem so that there would be no further incidents. (Exh. P, 1-2.)
In its Motion, the FAA acknowledged that the Respondent had alleged that intervening maintenance on a tire, performed by someone else, had caused the MLG improper rigging on BoeingN287SC. (Exh. B, 42.) TheFAA submitted a June 8, 20I0 Letterthat CCIA had sent to FAA Inspector Evans, reporting on its investigation ofthis specific allegation. (Exh. BB.) This letter, signed again by CClA'sChieflnspector, Mr. Buck, stated that CCIA had examined all the aircraft records for BoeingN287SC, and found (amongother things) that no intervening maintenance on the BoeingN287SC right hand MLG, after the Respondent's MLG installation, could have accounted for the missing tubularbearing where the wing door actuation rod attached. (/d.)
In addition to this evidence, the FAA also offered portions ofMr. Becker's October 29, 2014 deposition testimony, in which Mr. Beckertestified that he had not spoken to any ofthe Respondent's aircraft technicians orinspectors about the Respondent's MLG installations onthe three B-727 aircraft since the Respondent had performed its initial investigation

..(Exh. B, 41.) When he had spoken to them, early in the investigation, the technicians and inspectors had no personal recollection ofthe doorrigging and inspection work they had performed. (Exh. KK, 40.) All they could do is look at the maintenance records they had created and signed. (Id., 41.) Mr. Becker testified that he did not recall the specific results ofthe Respondent's own internal investigation after the FAA'sMay 2010 inspection. (Exh. KK, 41 (lines 19-25)). He agreed that priorto his employment with the Respondent, he had had no prior experience working with Boeing B-727 aircraft. (Exh. B, 9.) He also agreed that his company had never worked on any Page 20of 31CCIA B-727 aircraft priorto its first MLG installation on CCIA's BoeingN899AA in August 2009. (Exh. B, I0.) However, Mr. Beckerthen generally speculated that the aircraft MLG damage found by

.. the FAA in May 2010 could have been.the result ofwear or tear (and/or in the instance of Boeing N287SC, intervening tire change maintenance). (Exh. KK, 47 (lines 6-10), 100 (lines 17- 18 and 22-24), 124 (lines 3-8)). Mr. Beckeralso opined that much ofthe discovered MLG damage on each aircraft had been "minor," and therefore it had not impacted any ofthe three (3) aircraft's airworthiness. (Exh. KK, 102 (lines 17-18 and 20-21). Mr. Becker also emphasized that there had been a passage oftime between when the MLG maintenance on each aircraft had had been performed, and the May 2010 date when the FAA had discovered the MLG damage (Exh. KK 101 (lines 22-23), 115 (lines 20-21), 116 (lines 9-10)).

2. The FAA Met Its Initial Burden ofProof As noted earlierherein, thepurpose ofsummaryjudgment is "to isolate, and then terminate, claims and defensesthat are factually unsupported." Baicker-McKee, et al., at 1122. The mere existence ofdisputed facts does not defeat summaryjudgment The facts in the dispute must be material, i.e., capable ofaffecting the substantial outcome ofthe litigation. Holcomb, supra, 433 F.3d at 895; See LibertyLobby, Inc., 477 U.S. at248. In addition, facts presentedbut which are not supported by theevidence--donot create a genuine issue ofmaterial fact.
In ruling on motions for summaryjudgment federal courts have held that a fact or facts are material ifthey constitute a legal defense, or iftheir existence or nonexistence might affect the result ofthe action, orifthe resolution ofthe issue they raise is so essential that the·party against whom it is decided cannot prevaiL 10A Charles Alan Wrightet al., Federal Practice and Procedure§ 2725 (3d ed. 2014) (footnotes and citations omitted). In its Motion the FAA presented evidence to establishthe material facts-1) the damage**d~scovered** on each aircraft duringtheMay 2010 inspection; 2) expertopinion that this damage
was caused by improper instaBation and rigging ofthe flying doors; 2) the post-inspection corrective maintenance records which showed thatthe damage was the result ofimproper installation and rigging ofthe flying doors; 3) the Respondent admissions that it had performed improper maintenance not in accordance with the AMM, and 4) that the Respondent failed to Page 21 of31follow CCIA'sprogram and applicable sections oftheAMM in performing the MLG maintenance on N898A, N899A, andN287SC., supported by the evidence, which demonstrated that there was no genuine issue ofmaterial dispute for trial. Even when viewed in a light most favorable to the non-moving party (i.e, the Respondent herein), these material facts demonstrated there was no genuine issue ofdispute for trial. Thus, the FAA met its initial burden ofproof

.

.3. Short Review ofRespondent's Opposition Evidence Once the moving party has met its initial burden ofproof, the burden shifts to the nonmoving party to show, by affidavit or otherwise, that a genuine dispute ofmateria] fact remains for the fact-finder to resolve. See, Baicker-McKee, et al., supra, at 1121. As noted earlier, a nonmoving party who wishes to proceedto trial must set forth specific facts sufficient to show there is a genuine material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Like the FAA, the Respondent also offered multiple pieces ofevidence, including additional portions ofMr. Jeffrey Becker's October29,2014 discovery Deposition (Exh. 1), and
an April30, 2014 Expert Report ofMr. Daniel J. Hancher (Exh. 2). Through this evidence the Respondent attempted to showthat a genuine dispute existed as to the material facts established by the FAA's Motion; specifically, that l)normal wear and tear, not improper installation and rigging ofthe flying doors, was the cause ofthe discrepancies discovered during the May 20I0 inspection; and 2) an intervening tire changeonN257SC, not improper maintenance, was the
cause ofthe missing tubular bearing. Because ofthe volume ofmaterial, only highlights of certain Respondent evidence are discussed herein.
As noted earlier, Mr. Beckerexplained, in his October 29,2014 deposition testimony, that the Respondent's aircraft technicians and inspectors who had performed the MLG installations had been interviewed during the Respondent's [20l0] investigation. Unfortunately,
none ofthem had any independent memory ofwhat MLG installation work they had performed
onthe aircraft. Thus, all they could do was identify the maintenance records that they had created detailing the work. (Exh. l,42.) at the Respondent asserted that these records should be taken at face value, since they indicated that the installation had been done in accordance with AMM section 32-11-00. (Exhs. G, R, and X.) Mr. Becker agreed that both he and Mr. Dan Boggs, the Respondent's Director of Page 22 of 31Maintenance ("DOM"),**~ad** met with Inspector Lipinski on May 25, 2010 at the Toledo airfield to inspect the three BoeingB-727 aircraft. (Exh. I, 49.) He testified that he did not have any personal recollection ofwhat, ifany, "nicksorflaws" had been found oneach aircraft. (Exh. 

### 1, 76.) Nevertheless, Mr. Becker testified that he didn't know "howanybody" could look at an aircraft door and "say, hey, it's**m~srigged."** (Exh. I, 71.) Mr. Becker also opined that an individual could not diagnose a misrigged dooruntil after he swungthe door. (/d.) It was unclear from this testimony whether Mr. Beckerwas describing his own limitations, orattempting to discount Inspector Lipinski's statements (Exhs. I and JJ), orInspector Gasche's expert B-727 credentials and statement (Exh. J), orMr. Buck's reports (Exhs. Hand BB), orMr. Becker's own investigation reports and assertions. (Exhs. HH, 0, P, U, and V.)
Mr. Beckertestified that the intervening tire change maintenance on N287SC was for a number 4 outboard tire. (Exh. I,45.) 

### Itwas the Respondent's "belief" that the missing tubular bearing on the BoeingN287SC had "fallen out" during that tire change. (ld. at 47).
Mr. Beckerreviewed CCIA'sJune 

### 8, 20

### I0 Letterto FAA Inspector Evans, in which Mr. Buck stated that no·intervening maintenance could account for the missing tubular bearing. (Exh. BB.) Mr. Beckerdiscounted this Letter, because it had been sent to the FAA prior to the Respondent "completing our investigation." (Exh. I,48-49.) He complained that Mr. Buck had failed to incorporate "the benefit"·ofthe Respondent's investigation results into his Letter. (Exh. I, 49.) This was odd testimony, since accordingto Mr. Becker'sown March 21,2011 Letter to the FAA, the Respondent's investigation had been conducted in conjunction with CCIA, and had concluded by October 20 10. Accordingto reports submitted to the FAAby both Mr. Buck and Mr. Becker, the results ofthejoint investigation hadbeen that the Respondent's improper maintenance had caused misrigging on all three aircraft's MLG doors. (Exhs. HandHH.)
It is noteworthy that Mr. Beckerdid not explain in his deposition testimony what, ifany, additional independent investigation the**Responden~** had performed beyond the investigation conductedjointly with CCIA, or whattheresults ofthat investigation might have been. He did not specify what investigation "benefits" Mr. Buck should have considered and mentioned in either his June 8, 20I0 Letter orsubsequentcommunications with the FAA.
Page 23 of31Mr. Becker also generally accused Mr. Buck offailing to do "athorough investigation," but he did not specify what (ifanything) he believed Mr. Buck had failed to be thorough about. In short, Mr. Beckeralleged that there was "apossibility" that an intervening maintenance event could have been responsible for the missing hardware on BoeingN287SC. (Exh. I, 124.) He "assume[d]" that there would have been immediate problems ifthe Respondent had failed to include the tubularbushing in the door installation. 

### (!d. at 126.) As a result, he found 

### it "hard to believe" that the Respondenthad "leftout that tubular bearing." (/d.)
Mr. Beckeralso testified, based on his personal review ofthe maintenance·records, that each ofthe three aircraft only had insignificant "wear and tear, blend and treat" items that needed repair. (/d.) However, when asked to specifically look at maintenance repair records during his deposition, Mr. Beckerwas often unable tojustify his opinion. Forexample (not inclusive), in reviewing records for the BoeingN287SC, Mr. Becker testified that he had "no comment about what they mean by [hinge pins] improperly installed" or whether the Respondent "had done that." (Exh. 

### I, I01.) Instead, Mr. Beckerre-emphasized that the aircraft had been "in operation for two months after it left ourfacility." (Jd.) When asked ifa damaged left-hand inboard flap**fair~ng** on the wing door would need to be repaired in accordance with Boeing's AMM, Mr. Beckerreplied: "Yeah. I mean, no. I'mthinking. I don't- yeah. No, I don't know." (Exh. 1, 102.) Perhaps most problematic was Mr. Becker'stestimony (and**t~e** Respondent's argument) that "we've never stated oragreed that the doors were misrigged to begin with." (Exh: 1, 86; Response, 22.) First, this was inconsist,ent with theRespondent's June 10, 20I0 revised training program, in which it specifically acknowledged that misrigging was "suspected." It was directly contradictory to Mr. Becker's March 21, 2011 Letter, written as the Respondent's authorized agent, in which Mr. Becker had expressly adopted CCIA's October 25, 2010 Investigation Report (Exh. H), which had found that the Respondent had misrigged the MLG on each ofthe three Boeing B-727 aircraftbecause the Respondent had failed to follow Boeing's AMM. (Exh. HH.) 

### A. PartyAgent'sStatementAga.instInterest Substantive Evidence: It is well established that a statement (i.e., oral, written, ornon-verbal conduct) ofa party opponent may be offered against that party in a civil action. (Rule 80I (d)(2); Restatement Page 24 of 31(Second) ofAgency 

### §286 (1958)}. [A]n "admission,"which the Federal Rules now terms "an opposing party's statement," are the words or acts ofa party ora party's representative that are offered as evidence by the opposing party. They may be express admissions, which are statements ofthe opposingparty or an agent whose words may fairly be used against the party, or admissions by conduct. 2 McCormick On Evidence 

### §254 (7th ed).
Such admission evidence is considered to have "special reliability" and therefore may be received into evidence as an exception to the hearsay rule. 12 In addition, whenFl part.y opponent admits some "damaging" fact, then such statement may be used to prove the truth offacts asserted, "irrespective"ofthe party'sorparty agent's "motive in making them." 2 McCormick On Evidence 

### §259 (7th ed).

!d. They will only be offered against the principal when they admit some fact damaging to the principal, and this kind ofstatement by an agent is likely to be trustworthy. Nospecial dangerofsurprise, confusion, orprejudice from the use of the evidence is apparent.

Such opposing party statements are deemed to have "special evidentiary value" and are admissible as "substantive" evidence, "becausethat party is discredited, like a witness impeached by contradictory statements, by the party's own statements inconsistent with his or her present claim." 29A Am.Jur. 2d

### Evidence, §773. A party's assertionthat his statement had not been "underoath"does not defeat the admissibility orprobative value ofthe admission.
A party can hardly object thathe had no opportunity to cross-examine himselforthat he is unworthy ofcredence save when speaking under sanction ofan oath. 2 McCormick On Evidence 

### §254 (7th ed).

12 It should be noted that 14 C.F.R. §13.222(c) specifically allows for the introduction ofhearsay evidence at the hearing in these proceedings, but the court must then "weigh" hearsay evidence in considering the evidence as a whole. In summaryjudgment proceedings, the court may not "weigh" any material facts.**Thu~,** hearsay**ca~not ~e**  admitted and then "weighed" in a summaryjudgmentproceeding. Given the absence ofa practice rule on thts potnt, usingthe Federal Rules asguidance is helpful. Page 25 of31Itwas undisputed thatMr. Beckerwas the Respondent's authorized representative13 when he wrote the March 21, 2011 Letterto the FAA about the MLG rigging. (Exh. HH.) In this March 21, 2011 Letter, Mr: Beckerasserted thatthe Respondent had "initiated a very detailed investigation to review all aspects ofthe issue" ofthe MLG rigging. (!d. at 1.) The Respondent's investigation results had been shared with CCIA "to share the lessons learned to further help preventa reoccurrence not only for us but for CCIA also." (ld.)
In Mr. Becker's March 21,2011 Letter, he did not report what the Respondent's investigation results were, orassert that they differed from CCIA'sresults. Instead, Mr. Becker expressly adopted the statements and findings that Mr. Buck had provided in his October 25, 2010 Letter, and in CCIA's CARs. (!d.) As noted earlierherein, Mr. Buck's October 25,2010 Letter specifically reported that investigation results had found that Respondent had misrigged the MLG on each ofthe three aircraft because ofthe Respondent's failure to properly follow the BoeingAMM (Exh. HH at 1; Exhs. 0 and U.) Duringhis October 29, 2014 deposition, Mr. Beckeragreed that he had authored and sent the March 21, 2011 Letterto Inspector Lipinski in response to an FAA investigation inquiry about the MLG**inspecti~:ms.** However, despite the express statements in his March 21, 2011 Letter, he testified on October29, 2014 that he "didn'tbelieve" that the [201 0] investigation results were "accurate." He did not, however, detail what specific results were inaccurate, or how he had learned ofsuch inaccuracies, or when (ifat all) the Respondent had communicated this information about the inaccuracies to eitherCCIA orthe FAA. Instead, Mr. Becker explainedthat he had referenced CCIA's investigation results in his March 21, 2011 Letter simply to let Inspector Lipinski know that 'he wasn't going to see anything new'' or different in the Respondent's corrective actions. (Exh. 1, 177.) Itis noteworthy that the Respondent did not provide any other testimony orevidence about the March 21, 2011 Letteror its contents. Thus, there is no proofin the evidentiary record to showhow (if atall) Mr. Beckeror any otherRespondent representative had limited, corrected, ordisavowed the assertions in the March 21, 2011 Letter.

13 Forexample, Mr. Becker not only communicated to the FAA on behalfofthe Respondent in the year 20II, but he also served as the Respondent's Rule 30(b)(6) company representative when he was deposed on October 29, 2014. (R's Supp., 3.)The Respondent never asserted that Mr. Becker's statements in his March 21, 20II were outside of his capacity as the Respondent's agent. Page 26 of 31A party-opponent's declaration is admissible·for any inference which the trial court can reasonably drawfrom the statementregarding any issues involved in the case. 29A Am. Jur. 2d 

### Evidence,§ 773 Based on the evidentiary record, the assertions made by Mr. Beckerduring his October 29, 2014 deposition testimony, which are inconsistent with the assertions he made in his March 21, 2011 Letter to the FAA, are not supported by the evidence and are insufficientto showthere is a genuine material issue for trial.


### B. Mr. DanielJ 

### Hancher Evidence- 

### Nol Reliable In addition to Mr. Becker's testimony, the Respondent offered the April 30, 2014 Expert Report ofMr. Daniel J. Hancher (Exh. 2). The Respondent ·gave Mr. Hatchertwo sets ofthe Respondent's maintenance records, and "the FAA-compiled Statementofthe Case in this matter" to review. Since the Expert Report was auth.ored almost one (1) year ago, Mr. Hatcher



# . . did not specifically identify the reviewed maintenance records by admitted Motion Exhibit number, nor did he identify what documents were in the "FAA-compiled Statementofthe Case," he reviewed. This made it difficult to be certain as to what FAA records he actually did review. Mr. Hancher did note, however, that the only maintenance records he saw were those created by the Respondent. (Exh. 2, 1.) Thus, based on Mr. Hancher's statements, he did not see (among other admitted evidence) the Respondent's June 10,2010revised B-727 MLG Door Installation Training Program, FAA Inspector Gasche's September 28,2010Memorandum (Exh. J), CCIA's October 25, 2010 Investigation Report (Exh. H), CCIA'sCorrective Action Reports ("CARs) (Exhs. P, V, and EE), FAA Inspector Lipinski'sDecember 12,2010Memorandum (Exh. I), FAA InspectorLipinski's February 17, 2015 Declaration (Exh. JJ), Respondent's March 21, 2011 Investigation Report (Exh. HH), orMr. Jeffrey Becker's October29, 2014 discovery Deposition (Exh. KK). While it is certainly up to an individual party to decide what to give an expert to review, the facts ordata reviewed by the expert must be sufficient to render his testimony reliable. Fed. R. Evid. 702(b). The term "data" is "intendedto encompass" the expert reviewing and discussing "thereliable opinions ofotherexperts:" Fed. R. Evid. 702, Advisory CommitteeNotes, 2000 Page 27 of31Amendments.
Given the admitted evidence in this case, it is understandable why the Respondent only gave Mr. Hancher limited information to review. But by the same brush, the Respondent's choice not to provide Mr. Hancher with CCIA'sreports and records, orthe Respondent's full set ofwritten records, orthe statementsand declarations oflnspectorLipinski, Inspector Gashe, Mr. Buck, and/orMr. Becker, renders Mr. Hancher'sproffered expert opinion testimony too limited in nature, and therefore**unreli~ble** and inadmissible: See/d. ("an analysis ofthe sufficiency of the expert's basis cannot be divorced from the ultimate reliability ofthe expert's opinion").
4. Respondent Opposition Evidence- No Bona Fide Dispute Summaryjudgment should be denied when there is a bona fide dispute ofmaterial facts. lOA Charles Alan Wrightet al., Federal Practice and Procedure§ 2725 (3d ed. 2014) (citing to AssociatedPress v. UnitedStates, 326 U.S. 1, 4 (1945). Summaryjudgment should not be granted

...unless the facts entitling the movant to summaryjudgment are admitted or are clearly established. IOA Charles Alan Wright et al., Federal Practice and Procedure §2725 (3d ed. 2014) (citing Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (applying "clear showing" standard). However, a genuine dispute is not created by a mere 'scintilla' offavorable evidence, orevidence that is only 'colorable' orinsufficiently probative." Baicker-McKee, et al., at 1122 (citingAnderson v. LibertyLobby, Inc., 477 U.S. 242,247-52 (1986).
In the case herein, large portions ofthe Respondent's opposition evidence regarding the alleged violations of 14 C.F.R. § 145.205(a)) were based on Mr. Becker's lackofmemory (e.g.,
we don'tremember the results ofour own investigation), intentional ignorance (e.g., we haven't talked to the mechanics about the repairs since our initial investigation), hopeful assumption (e.g., it is a possibility that it wasn't us), downplaying evidence (e.g., the damage wasjust minor nicks and scratches), lack ofknowledge (e.g., Idon'tknow), speculation (e.g., it must be wear and tearbecause ofthepassage oftime), general accusations ofblame (e.g., Mr. Buck didn't investigate enough and.also treated us unfairly), and unsupported opinion (e.g., because this is what we believe). This evidence was not reliable, and did notcreate a genuine dispute as to any ofthe material facts established by the FAA's Motion.

Page 28 of 31In addition, as noted above, portions ofMr. Becker's testimony was discredited by his
own prior statementsto the FAA, codified in his March 21, 2011 Letter. Onbehalfofthe Respondent, Mr. Beckerexpressly admitted in this Letter that the Respondent was at fault for the MLG improperrigging, because the Respondent'stechnicians and inspector had not followed CCIA's supplied and approved Boeing 727 AMM procedures.
In short, even when viewing the admitted evidenceon the alleged violations of 14 C.F.R. 

### § 145.205(a) in a light most favorable to the non-moving party (i.e., the Respondent) there are no genuine issue(s) ofmaterial fact. A hearing is not required on the nine (9) violations alleged. Therefore, the FAA has proven that it should be granted summary disposition on the nine (9) violations as a matter oflaw. 

### See Baicker-McKee, et al., 

### supra, at 1121; 

### See also, lOA Fed. Prac. & Proc. Civ. 

### §2725. 5. Short Review ofProposed Civil Penalty In its Motion, the FAA asserted that itsought to impose "baseline, mid-range penalties." (Motion, 23.)
Itwas undisputed thatthe applicable penalty range under FAA Order 2150.3B (Exh. Il) 14
was moderate to maximum. The moderate range was $8,750 to $16,249.00. The maximum range was $16,250 to $25,000. (Motion, 23 and Exh. II, B-5.) The FAA asserted that it was viewing the penalty assessmenton a "peraircraftbasis." (Motion, 24.) The FAA then argued that sincethe MLG involved two doors peraircraft, the improper installation ofone ofthe two MLG doors should be deemed an aggravating factor. (!d.) The FAA did not specific whether the "aggravation was the right or left door, orwhetherthe installation of
one door, or both doors, was necessary in orderto complete the MLG rigging. However, ifthe aggravation argument was accepted by the court, then the Maximum range and a proposed fine of$20,625 per aircraft could be utilized, for atotal proposedpenalty of$64,875 (!d.) The FAA's argument about aggravation was not persuasive. It is noteworthy that the FAA'sComplaint had not pled any aggravating factors, and had not distinguished between the two doors on each aircraft. In addition, the FAA did not provide any caselaw to support utilizing

14 It should be noted thatthe FAA Motion identifies FAA Order 2150.38 as Exhibit "C38." This appears to be a clerical error, since FAA Order2150.38 was marked and filed as Exhibit 11. Page 29 of 31the violation itselfas an "aggravating" factor to further punish the Respondent by maximizing the penalty against it. Thus, the FAA has failed to meet its initial burden ofproofthatit was entitled to summaryjudgment as a matter oflaw on the proposed civil penalty.
Vl. CONCLUSION Pursuant to 14 C.F.R. § l3.218(f)(5) and Civ.**~·56,** all ofthe parties' admissible Exhibits were considered, as well as the applicable pleadings and documents. After having heard oral argument on the Motion, and having reviewed all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully advised;

IT IS HEREBY ORDERED:
l. The FAA'sMotion for SummaryJudgment is granted in part. There is no genuine dispute
as to any material facts regarding the nine (9) total alleged violations of 14 C.F.R. 

### § 145.205(a); 14 C.F.R. § 43.13(a); and 14 C.F.R. 

### §43.13(b), and the FAAisentitled to judgment as a matteroflaw.
2. The materialfacts prove thatthe Respondent, Airborne Maintenance and Engineering Services, performed maintenance on each ofthe three different Boeing B-727 aircraft (identified as N899AA, N898AA, and N287SC) on·or about August 2009, October 2009, and March 20I0, that involved reinstalling and rigging the Main Landing Gear ("MLG") doors ofeach aircraft. The Respondent did not follow CCIA's supplied and approved Boeing 727 AMM procedureswhen it installed and rigged the MLG. As a result, the Respondent's reinstallation and rigging ofthe MLG on each ofthe three aircraft was improper. 3. The FAA'sMotion for SummaryJudgment is denied in part. There are genuine issues of material fact in dispute regarding the FAA'sproposed civil penalty assessment of $64,875, and the FAA is not entitled tojudgmentas a matter oflaw on the proposed penalty. Page 30 of 314. The Hearing scheduled for May 5, 2015-May 9, 2014, in Orlando, Florida is reconfirmed, for the purpose ofaddressing the parties' dispute on the issue ofthe proposed civil penalty.
5. The parties will be informally contacted by the Office ofHearings regarding the location ofthe Hearing, the time needed, and whetherthe venue still needs to be in Orlando, Florida.
6. For clarifications ofthis orderor questions with regard to the procedures to be followed in this case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of Hearings (202-366-6941.

Attachment: Service List Judg 

### U.S.

Page 31 of31SERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2WI000 15

Mr. ChristopherR. Stevenson 

### Complainant's Counsel Federal Aviation Administration ONE COPY

Office oftheRegional Counsel, AS0-7 Southern Region P. 0. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg 

### Respondent's Counsel Silverberg, Goldman & Bikoff, LLP Georgetown Place, Suite 120 1101 30th St.,N.W. Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306
Judge J.E. Sullivan 

### US. AdministrativeLawJudge

. Office ofHearings, M-20

U.S. DepartmentofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0716 (Civil Penalty Action)

15 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-Suite 2WIOOO, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430.