u.s. DEPA~~~~T ~~i~~~~RTATION . RECEIV

FEDERAL A VI'ATION ADMJNISTRATlON 

'[' (: L <'' 

FEB 2 7 2014 

HEARING DOC

FEDERAL AVIATION ADMINISTRATION, 

Complainant, · 

vs. 

LIBERTY FOUNDATION, 

Respondent. 

Docket No. F AA-2012-0477 

FAA Case No. 2011GL030070 

Judge Sullivan 

MOTION TO EXCLUDE 

The Respondent in this matter has, through motions, indicated an intent to call witnesses 

to testify at hearing concerning topics (including opinions) that were never disclosed in 

discovery and/ or to testify as experts despite never having been identified as expert witnesses. 

The FAA hereby moves to exclude any such testimony. 

Facts 

After several extensions and a request for a continuance, the discovery deadlines on the 

original Complaint in this case were presented in a January 22, 2013 Order. Those deadlines 

included a February28, 2013 deadline to complete discovery responses, including disclosure of 

expert witness. 

In discovery, the FAA authored Interrogatories asking for information on both lay and 

expert witnesses. In its original discovery response concerning lay witnesses (which have never 

been supplemented), Respondent identified possible subjects of testimony for Raymond Fowler 

(Respondent's Executivei>ii•ectoi' anti Chief'Pilot), Rodney Schn.':ider:(Respondent's Director of 

1 
Maintenance) and Cullen Underwood (one of Respondent's pilots). As to Fowler, the "detailed 

summary" of his testimony was as follows: 

Mr. Fowler may testify as to his position as Chief Pilot for The Liberty 

Foundation, his familiarity with the operations of the B-17, [and] his participation 

in a telephone conference call(s) with Mr. Alderman and Mr. Miller discussing 

the fuel tank issue. 

Exhibit A ~ 4. The disclosures for Schneider and Underwood concerned the alteration of the fuel 

tanks for N390TH, consisting of factual testimony on how the work was performed. Exhibit A 

~ 4. 

In that discovery request, the FAA also specifically sought information on potential 

expert witnesses. The only expert disclosed by Respondent was Semih Genculu. Exhibit A~ 5. 

No other expert witnesses were identified. See id. 

On February 27, 2013, Respondent supplemented its responses concernmg expert 

testimony, identifying three potential aviation expert witnesses (William Duncan, Francis 

DeJoseph, and Gary Norville). See Respondent's Notice of Service of Expert Reports (dated and 

served on the comt on February 27, 2013). 

At no time has Respondent provided any additional supplementation concerning expert or 

lay testimony concerning the original Complaint. 

Subsequently, the FAA amended the Complaint to included additional issues, and on 

August 27, 2013, the Judge ordered a supplemental discovery period on the Amended 

Complaint. 

On October 14, 2013, Respondent submitted responses to the FAA's supplemental 

discovery requests, which included an additional request (Interrogatory #11) to identify 

witnesses on the subjects raised in tl!e Amended Complaint. In that response, Respondent 

identified a variety of witnesses (including Rodney Schneider and Cullen Underwood), but did 

2 
not disclose any opinion or expert testimony, and did not disclose any testimony at all by Ray 

Fowler. See Exhibit B at 2-3. 

No further supplementation was made by Respondent during discovery concerning these 

witnesses. 

On January 29, 2014, Respondent submitted its Response in opposition to the FAA's 

Motion for Summary Judgment. Respondent attached no aviation expert affidavits or 

declarations. 1 However, Respondent did attach declarations from Rodney Schneider and Cullen 

Underwood. See Srnnmary Judgment Response Attachments D, F. In each of these declarations, 

the declarant provides a variety of opinions on aviation maintenance. For example, in 

Schneider's declaration he offers the following opinions: 

"This log book entry fully met the requirements of FAR 43.9." Response Attachment D 

~3. 

"The welding was a normal, simple, and non-complex, elementary operations." 

Attachment D ~ 5. 

"There was no change in the design of the fuel system." Attachment D ~ 7. 

"The methods, techniques, practices, materials, and tools used in the fuel tank change and 

the repair of the leak were standard in the industry" and "were, t.l:lerefore, the methods, 

techniques, practices, materials, and tools acceptable to the Administrator." Attachment 

D ~ 10. 

In Underwood's declaration, he offers the following opinions: 

"The welding was a nonnal, simple, and non-complex elementary operation. This type of 

welding on the aluminrnn tanks was in accord with paragraph 4-86d of AC 43.13-lB." 

Attachment F ~ 4. 

1 Respondent did attach the expert affidavit of Semih Genculu, but Mr. Genculu has no aviation expertise. 

3 
"the basic design of the fuel tanks was not changed at all." Attachment F '1f5. 

"the new fixtures and attachments were of at least equal quality with the replaced parts 

because they were newer." Attachment F '1!5. 

The Respondent also attached a declaration from Raymond Fowler to its summary 

judgment Response. That declaration did not contain any expert or opinion testimony. However, 

less than a week later,in Respondent's supplemental response concerning its motion to continue 

the hearing in this matter, Respondent asserted that "Fowler is a recognized expert on B-17 

aircraft, and Liberty's aircraft in particular, and will undoubtedly be called upon to rebut the 

testimony ofF AA's so-called experts on the critical 'major alteration' and other B-17 technical 

issues." Respondent's Supplemental Response on Motion to Continue Trial Date at 3. Even after 

asserting that Fowler will "undoubtedly" be an expert witness, Respondent has still not 

supplemented its discovery responses concerning this proposed testimony. 

Argument 

Discovery in this case has been ongoing since October 2012. Expert witness disclosures 

were due in February 2013. During the course of this process, during which Respondent was 

under a continuing obligation to supplement its discovery responses, Respondent never identified 

Fowler, Schneider or Underwood as the source of any marmer of expert or opinion testin1ony. 

Now, in January and February of 2014, although Respondent has still not made any 

discovery supplementation, Respondent has indicated that all three will be proffering expert or 

opinion testimony. Respondent has now represented that Fowler will "undoubtedly" be called 

upon as an expert witness in aviation maintenance, and has submitted declarations for Schneider 

and Underwood containing opinion testimony. Any such testimony should be excluded as a 

result of Respondent's failure to disclose it during discovery. 

4 
If Respondent wished to attempt to use Fowler, Schneider, or Underwood as an expert or 

opinion witness, it was obliged to disclose this by the Judge's Order no later than February 2013. 

It was also obliged to disclose the subject of their testimony- including any opinions- in 2012 

when its original discovery responses were due. If, for whatever reason, Respondent later 

realized that it wanted to use these witnesses as expert or opinion witnesses, it was a.lso obliged 

to supplement its discovery responses to disclose these opinions, expert or otherwise. 

All of these witnesses have been known to, and under the direction of, Respondent during 

this entire litigation - there is no question here of late discovery of the lmowledge of these 

individuals. There is also no question of the Respondent only just now becoming aware that 

expert technical matters would be required in this case. 

It is unclear why Respondent is now seeking to use Schneider, Fowler, and Underwood 

as expert or opinion witnesses, except that it appears that none of the Respondent's previouslyidentified expert witnesses were willing or able to deliver an opinion consistent with 

Respondent's arguments in this litigation. Further, by failing to disclose any expert or opinion 

testimony by Fowler, Underwood, or Schneider, Respondent has denied the FAA any ability to 

depose these individuals, or otherwise conduct discovery, concerning their opinions. 

Accordingly, the FAA moves to exclude any testimony by Fowler, Schneider, and 

Underwood that was not disclosed during discovery, including exclusion of any expert or 

CHRISTOPHER R. S EVENSON 

Attorney 

Office of the Regional Counsel 

5 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's 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 Building- 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 

~f::xs Program Analyst 

Office of the Regional Counsel 

EEB 14 2014 

Dated 

6 
3. IdentifY by title, date, author, present custodian, and content, all documents 

obtained by you or in your possession relating to the assertions in the Complaint 

and your Answer, including affirmative defenses. 

Response: TLF objects to this Interrogatory on the grounds it is overly burdensome, 

oppressive, and unnecessary in that the FAA already is in possession of this information as a 

result of the Rodney Schneider case. Without waiving this objection, in addition to the 

documents attached hereto, Respondent is in possession of the documents provided to 

Respondent by FAA in this case and in the Rodney Schneider case. 

4. IdentifY by name, address and telephone number, all persons whom you intend to 

have testifY as a factual witness in your defense at the hearing in this matter, and 

provide a detailed summary of each person's anticipated testimony. 

Response: TLF has not made a final determination which witnesses it will call at trial. At 

this time, TLF anticipates it may call some or all of the following persons as witnesses in its 

direct case: Rodney Schneider, Ray Fowler, David Wilkins, Semih Genculu, and Cullen 

Underwood. TLF reserves the right to add to or subtract from this list as information is 

developed in the discovery and investigation processes. 

Mr. Schneider may testifY as to his involvement in the fuel tank replacement in 

N390TH. He may describe his actions relating to the fuel tank maintenance; his meaning and 

intention when making the logbook entry described in the Complaint; his aviation experience; 

his career in aviation; his experience with the B-17; and his participation in telephone conference 

call(s) relating to the fuel tank maintenance. 

Mr. Fowler may testifY as to his position as Chief Pilot for The Liberty 

Foundation, his familiarity with the operations of the B-17, his participation in a telephone 

conference call(s) with Mr. Alderman and Mr. Miller discussing the fuel tank issue. 

Mr. Wilkins may testifY as to the welding procedure used on the fuel tank and may 

also identifY the color photographs provided to the FAA in the Schneider case. 

GOVERNMENT 

EXPfT 
Mr. Genculu is expected to testifY that based on the eight representative sections 

provided by The Liberty Foundation from its B-17 aircraft, the fuel tank weld joints examined 

did not exhibit any features suggesting the welds did not perform properly under the described 

conditions. The visual condition of the weld joints (i.e., the melted and flowed weld metal) 

indicate that the weld deposits were affected by the high temperatures reached during the 

reported event. In particular, the visually apparent difference in the melting behavior of the two 

alloys involved, i.e., the weld filled metal used ( 4043 Aluminum Alloy) and the fuel tank 

material (11 00 Aluminum Alloy), are consistent with their chemical makeup. That is, the 4043 

alloy has a lower designed melting temperature (solidus temperature 1 065F and liquidus 

temperature 1170F) than 1100 alloy (solidus temperature 1190F and liquidus temperature 

1215F). This is due to the higher silicon content of the 4043 aluminum alloy. 

Mr. Underwood may testifY as to the fuel tank installation process, including 

conversations he had with an FAA Designated Airworthiness Representative and with FAA 

Inspectors David Miller and David Alderman to the effect than a form 337 was not required. 

Mr. Underwood participated in the repair of the fuel tanks and will testifY as to how the fuel 

tanks were repaired, the materials used to repair the fuel tanks, and his and others' participation 

in that maintenance. Mr. Underwood is expected to testifY that the fuel bladders in the aircraft 

leaked and could be a hazard and that fuel bladders for the B-17s are no longer available. He 

will testifY that there were conversations with other B-17 operators that had aluminum fuel tanks 

in their aircraft and that the aluminum tanks seemed to be the best solution. Thereafter, 

conversations began with Terry Bowden and Rocky Howard about manufacturing new tanks and 

the steps necessary to complete same. Mr. Underwood send Boeing prints to Mr. Bowden and 

Mr. Howard for them to review. Mr. Bowden and Mr. Howard are DERs. A local fabrication 

company volunteered its time to manufacture new tanks. However, after talking to Mr. Howard, 

he asked why we would want to manufacture new tanks when we have aluminum tanks that are 

already there. Fit, form, and function were already known. Thereafter, conversations were had 

with Mr. Alderman and Mr. Miller who concluded that this was not a major alteration and that 
'= "'"'-'-"' vv ... u 

the aluminum tanks could be used. Thereafter, a decision was made to weld close the openings 

in the aluminum tanks and provide exact placement for all sumps, vents, filler necks, boost 

pumps and fuel level senders. The tanks were abrasive blasted to make sure there was no 

corrosion or imperfection in the tanks themselves. All fittings were AN ad the adapter plates for 

the boost pumps, flller necks and fuel level senders were manufactured from 6061-T6. All cover 

plates were made from 1100 half had to match the base material of the tanks. Filler rod used was 

4043 for all TIG welding. The welds were visually inspected, the tanks were chromated 

externally for corrosion protection and installed in the aircraft. The tanks were filled with 

AVGAS for over a week to verifY any leaks from the attach points. 

5. IdentifY by name, address and telephone number, all persons whom you intend to 

have testifY as an expert witness in your defense at the hearing in this matter, and 

provide a detailed summary of each expert's anticipated testimony. 

Response: See description above of expected testimony of Sernih Genculu. TLF reserves the 

right to add other experts as the discovery/investigative processes continue and to alter or change 

the expected testimony of Mr. Genculu. 

6. IdentifY by title, date, author, present custodian, and content, which documents 

you anticipate offering into evidence at the hearing in this matter, and through 

which witness or witnesses. 

Response: TLF has not determined which documents it will introduce at trial. However, 

please see TLF's response to FAA's Request For Production for a listing of documents it may 

introduce. TLF has not determined which witnesses will sponsor which exhibits, with the 

exception of Mr. Genculu's Curriculum Vitae. 

7. With respect to each expert witness identified in response to Interrogatory No. 5 

above, specifY their area of expertise, if any, and provide a synopsis of their 

credentials, background, training and experience. 
U.S. DEPARTMENT OF TRANSPORTATION 

Office of Hearings 

Washington, D. C. 

The Liberty Foundation, Inc. 

FAA DOCKET NO. 2012-0477 

(EIR 2011-GL-03-0070) 

(Civil Penalty Action) 

Hon. J. E. Sullivan, Administrative Law Judge 

RESPONDENT'S ANSWERS TO COMPLAINANT'S 

LIMITED INTERROGATORIES 

1. The aircraft was safe for flight and airworthy because the work performed, 

as described in the deposition of Mr. Schneider, was done in a manner which would 

have been acceptable to the Administrator as described in Mr. Schneider's deposition of 

his conversations with FAA Inspectors David Miller and David Alderman. In addition, the 

return to service was prepared by competent, professional maintenance providers who 

provided an appropriate return to service. 

2. A maintenance entry was made in the aircraft's discrepancy log book 

which was kept in the aircraft and which was destroyed in the fire. This log entry 

conformed to the requirements of 14 CFR 43.9. A copy of the discrepancy log form has 

been provided to Claimant with Respondent's response to Complainant's Limited 

Request For Production. 

3. Complainant bears the burden of proof as to what methods, techniques, 

and/or practices were or would have been acceptable to the Administrator. The 

Administrator has not provided such proof in this case. In addition, Respondent had a 

right to rely on the maintenance competence of its maintenance providers, including Mr. 

Schneider, who provided Respondent an appropriate return to service. 

4. Complainant bears the burden of proof as to the manner in which the work 

was done and/or in what manner the materials used were not of such a quality that the 

aircraft was not restored to its original or properly altered condition. The Administrator 

has not provided such proof in this case. In addition, Respondent had a right to rely on 

the maintenance competence of its maintenance providers, including Mr. Schneider, 

who provided Respondent an appropriate return to service. 

GOVERNMENT 

EX~ IT 
2 

5. Mr. Schneider's case was settled with counsel of the Great Lakes Region. 

It was a settlement of a disputed claim. Mr. Schneider never admitted any violations 

and none were found in any adjudicatory proceeding. 

6. Mr. Schneider had no legal authority provided by Respondent other than 

to maintain the Foundation's aircraft in the manner he determined was appropriate 

under his personal A & P certificate. He was never an officer or director of The Liberty 

Foundation. At all times material, Mr. Schneider was a full time employee of Delta 

Airlines. In addition, Respondent was not required to have a Director of Maintenance. 

7. Respondent objects to this Interrogatory on the bases that it is vague and 

incomprehensible. Messers. Soerens and Duellman testified by deposition in the 

Schneider case; Messers. Dodge and Bourgoine testified by deposition in this 

proceeding and all such testimony is a matter of record, already in the possession of 

Complainant. Respondent has not yet determined which parts, if any, it will use of those 

depositions in its defense. The depositions of Messers. Dodge and Bourgoine were 

taken before the Amendment to the Complaint. If Respondent already knew what facts 

these four witnesses were in possession of related to the amendments, additional 

discovery would not be necessary. 

8. Respondent objects to this Interrogatory on the grounds it is confusing in 

that the depositions described were taken prior to the amendments to the complaint. 

9. All of Mr. Genculu's report and opinions remain valid for the work 

performed and the propriety of the materials used. 

10. There is no Interrogatory 10. 

11. Respondent objects to this Interrogatory as invasive of the work product 

privilege and premature. Respondent has not made a determination, other than as 

previously described, as to which witnesses it will call and their expected testimony. 

Without waiving such objections, and without limiting their testimony in any way by the 

following descriptions, Respondent states it will likely call Rodney Schneider as a 

witness to testify as to the log entry he made in the aircraft discrepancy log book as well 

as the work he performed and all of the matters discussed in his deposition; 

Respondent may call the pilots who flew the aircraft on June 11, 2011 (John Hess and 

Bud Sittig), to testify as to their review of the discrepancy log book prior to the flight in 

June 11, 2011; Respondent may call Cullen Underwood to describe the process of 

replacing the tanks and the work performed/materials utilized in the process as well as 

his observations of the work performed on the #1 tank in June, 2011; Respondent may 

call representative(s) of Cobb Industrial to testify as to the work they performed on the 

aluminum tanks; Respondent may call FAA Inspectors David Alderman and David Miller 

as to their communications with Mr. Schneider and other persons of The Liberty 

Foundation and their observations of the operation of the Liberty Belle; Respondent 

may call Chuck Giese to testify as to his observations of the work performed on the 

aircraft in June, 2011 and his observations of the #1 tank after the fire; Respondent may 
3 

· call John Hess to testify as to his observations of the #1 tank after the fire; Respondent 

may call Scott Maher to testify as to his observations of the #1 tank after the fire. 

12. Respondent is required to only admit or deny each Request For 

Admissions. 

13. The persons assisting in the preparation of these responses are: 

*Ray Fowler: as to all Interrogatories, Requests For Admissions, and 

Requests for Production. 

*Rodney Schneider: as to the log entry made in the discrepancy log. 

*John Hess: as to the log entry made in the discrepancy log and his 

potential testimony as described above. 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that the foregoing has been served on this 14th day of 

October, 2013, as set forth below: 

Christopher R. Stevenson, Esq. 

Office of the Regional Counsel 

Federal Aviation Administration 

P. 0. Box 20636 

Atlanta, GA 30320 

By Facsimile (404) 305-5223 

and regular U. S. Mail 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Tel: (305) 670-1222 

Fax: (305) 400-0685 

Email: stuartgoldsteinpa@att.net 

By: .JxxQtf 

Attorney 

Stuart A. 

For 

Goldstein 

~ 

Respondent