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## DEPA~~~~T**~~i~~~~RTATION** .

# RECEIVED FEDERALA VI'ATION ADMJNISTRATlON

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## FEB 2 72014 HEARING DOCKET FEDERAL AVIATION ADMINISTRATION, Complainant, ·

vs. LIBERTY FOUNDATION, Respondent. DocketNo. FAA-2012-0477 FAACase 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. TheFAAhereby 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 expertwitness. Indiscovery, 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 oftestimony for Raymond Fowler (Respondent's Executivei>ii•ectoi'

# anti Chief'Pilot), Rodney Schn.':ider:(Respondent's Director of

1 

# I IMaintenance) and Cullen Underwood (one ofRespondent's pilots). As to Fowler, the "detailed summary" ofhis testimonywas as follows: Mr. Fowler may testify as to his position as Chief Pilot for The Liberty Foundation, his familiarity withthe operations ofthe B-17, [and] his participation in a telephone conference call(s) with Mr. Alderman and Mr. Miller discussing the fuel tankissue. ExhibitA**~**4. The disclosures for Schneider and Underwoodconcernedthe alteration ofthe fuel tanks for N390TH, consisting offactual testimony onhow 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 otherexpert 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 ofService ofExpert Reports (dated and served onthe comtonFebruary 27, 2013). At no timehas Respondentprovided any additional supplementationconcerning expert or laytestimony concerningthe 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 ofwitnesses (including Rodney Schneider and Cullen Underwood), but did

2 

# I II

I I I I I I Inot disclose any opinion or expert testimony, and did not disclose any testimony at all by Ray Fowler. 

### See ExhibitB at 2-3. No further supplementation was made byRespondent 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 ofthese 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 metthe requirements ofFAR43.9." Response Attachment D**~3.** "The welding was a normal, simple, and non-complex, elementary operations." AttachmentD**~** 5. "Therewas no change in the design ofthe fuel system." AttachmentD**~** 7. "The methods, techniques, practices, materials, and tools used inthe fuel tankchange and the repair ofthe 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. InUnderwood's declaration, he offers the following opinions: "The welding was anonnal, simple, andnon-complex elementary operation. This type of welding on the aluminrnn tanks was in accord with paragraph 4-86d ofAC 43.13-lB." AttachmentF**~**4.

1Respondent didattach the expert affidavitofSemih Genculu, butMr. Genculuhasno aviation expertise.

3"thebasic design ofthe fuel tanks wasnot changed at all." AttachmentF '1f5. "the new fixtures and attachments were ofat least equal quality with the replaced parts becausethey werenewer." AttachmentF '1!5. The Respondent also attached a declaration from Raymond Fowler to its summary judgmentResponse. That declaration did not contain any expert or opiniontestimony. However, less than a week later,inRespondent'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 ofFAA's so-called experts onthe critical 'major alteration' and other B-17 technical issues." Respondent's Supplemental Response onMotionto Continue Trial Date at 3. Even after asserting that Fowler will "undoubtedly" be an expert witness, Respondent has still not supplementedits discovery responses concerningthis proposedtestimony. Argument Discovery in this case has been ongoing since October 2012. Expert witness disclosures

were due in February 2013. During the course ofthis process, during which Respondent was under a continuing obligationto supplementits discoveryresponses, Respondent never identified Fowler, Schneider orUnderwood asthe source ofanymarmer ofexpertor opiniontestin1ony. 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 aviationmaintenance, and has submitted declarations for Schneider and Underwood containing opinion testimony. Any such testimony should be excluded as a resultofRespondent's failure to disclose itduring discovery.



### 4IfRespondentwished to attempt to use Fowler, Schneider, or Underwood as 

### an expert or opinionwitness, it was obligedto disclose this bythe Judge's Order no laterthanFebruary 2013. It was also obligedto disclose the subject oftheir 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 supplementits discoveryresponses to disclose these opinions, expert or otherwise. All ofthesewitnesses havebeenknownto, andunder 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 ofthe Respondent only just now becoming aware that experttechnical matters wouldbe required inthis case. Itis unclear why Respondent is now seeking to use Schneider, Fowler, and Underwood

as expert or opinion witnesses, except that it appears that none ofthe 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, concerningtheir 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

CHRISTOPHERR. S EVENSON Attorney Office ofthe Regional Counsel



### 5CERTIFICATE OF SERVICE Ihereby certify thattheforegoing FAA'sMotionto Exclude was sent: Original and one copy viacertifiedmailto: FederalAviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocketClerk, AGC-430 WilburWrightBuilding- Suite 2Wl000 One copyviacertifiedmail and facsimile to: TheHonorableJ.E. Sullivan AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 7300NorthKendall Dr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685

# ~f::xs ProgramAnalyst Office ofthe Regional Counsel 

## EEB 14 2014 Dated



### 63. IdentifY by title, date, author, present custodian, and content, all documents obtained by you or in your possession relating to the assertions inthe Complaint andyourAnswer, including affirmativedefenses. Response: TLF objects to this Interrogatory on the grounds it is overly burdensome, oppressive, and unnecessary in that the FAA already is in possession ofthis 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 Respondentby FAAinthis case andinthe Rodney Schneidercase. 4. IdentifY by name, address and telephonenumber, allpersons whomyouintend to have testifY as a factual witness in your defense atthe hearing inthis matter, and provide adetailed summary ofeachperson'santicipatedtestimony. 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 ofthe 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 developedinthe discovery and investigationprocesses. 

### 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 careerin aviation; his experiencewiththe B-17; andhis participationintelephone conference call(s) relating to the fuel tankmaintenance. 

### 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 conferencecall(s) with

### Mr. Aldermanand

### Mr. Millerdiscussing the fueltankissue. 

### Mr. Wilkins may testifY as to the weldingprocedure used onthe fuel tankand may also identifY the colorphotographsprovidedto theFAAinthe Schneidercase.

GOVERNMENT EXPfTMr. Genculu is expected to testifY 

### that based onthe eight representative sections provided by The Liberty Foundation from its B-17 aircraft, the fuel tank weldjoints examined didnotexhibit any features suggesting the welds didnotperform properly under the described conditions. The visual condition of the weldjoints (i.e., the melted and flowed weld metal) indicate that the weld deposits were affected by the high temperatures reached during the reported event. Inparticular, the visually apparent difference inthe melting behavior ofthe two alloys involved, i.e., the weld filled metal used (4043 Aluminum Alloy) and the fuel tank material (1100 AluminumAlloy), are consistent withtheir chemicalmakeup. That is, the 4043 alloy has a lower designed melting temperature (solidus temperature 1065F and liquidus temperature 1170F) than 1100 alloy (solidus temperature 1190F and liquidus temperature 1215F). This is due to thehigher siliconcontentofthe4043 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 ofthe fuel tanks and will testifY as to how the fuel 

### tanks were repaired, the materials used to repair thefueltanks, and his and others' participation in that maintenance. Mr. Underwoodis expected to testifY thatthe fuel bladders inthe aircraft leaked and could be a hazard and that fuel bladders for the B-17s are no longer available. He will testifY thatthere were conversations with otherB-17 operators thathad aluminum fuel tanks in their aircraft and that the aluminum tanks seemed to be the best solution. Thereafter, conversationsbeganwithTerry Bowdenand Rocky Howard aboutmanufacturing newtanks and the steps necessary to complete same. 

### Mr. Underwood sendBoeing 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 newtanks. However, aftertalking to

### Mr. Howard, he askedwhy we would wantto manufacture newtanks whenwe have aluminumtanks that are already there. Fit, form, and function were already known. Thereafter, conversations werehad with Mr. Alderman and Mr. Miller who concluded thatthis 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 orimperfection inthe tanks themselves. All fittings wereAN ad the adapterplates for theboostpumps, flller necks andfuel level senders were manufactured from 6061-T6. All cover plates were made from 1100 halfhad to match the basematerial ofthetanks. Fillerrod 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 overa weekto verifY any leaks from the attachpoints. 5. IdentifY by name, address and telephone number, all persons whom youintend to have testifY as an expertwitness inyourdefense at the hearing 

### inthis 

### matter, and provide a detailed summary ofeach expert's anticipatedtestimony. Response: 

### See descriptionabove ofexpectedtestimony ofSernih Genculu. TLF reserves the rightto add otherexperts asthe discovery/investigative processes continue and to alter or change the expectedtestimony 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 whichwitness orwitnesses. 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 ofdocuments it may introduce. TLF 

### has not determined which witnesses will sponsor which exhibits, with the exceptionof

### Mr. Genculu's CurriculumVitae. 7. With respect to each expert witness identified inresponse 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. Acopy 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~**IT2 

### 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 may3

· 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 STUARTA. 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**~** StuartA. Goldstein Attorney For Respondent