Michael L. Dworkin (CA Bar# 64047) 

MICHAEL L. DWORKIN and ASSOCIATES 

465 California Street, Suite 210 

San Francisco, CA 94104 

Telephone: 415-421-2500 

FAX: 415-421-2560 

Email: law@avialex.com 

Counsel for MARTINAIRE AVIATION, LLC 

R 

HEAH!NG 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of; 

MARTINAIRE AVIATION, LLC 

FAA Case No. 2011SW700189 

DMS No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S 

MOTION IN LIMINE TO PRECLUDE 

TESTIMONY BY PERSONS NOT 

PREVIOUSLY IDENTIFIED BY 

COMPLAINANT AND 

COMPLAINANT'S EXPERT WITNESS 

AND/OR OPINION TESTIMONY 

(MOTION IN LIMINE NO. 2) 

Judge: The Honorable Richard C. Goodwin 

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. 

GOODWIN, ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, 

FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: 

In accordance with 14 C.F.R. Section 13.218 (Rule 13.218) and the Federal Rules 

of Civil Procedure, Martinaire (Respondent) moves that the Administrative Law Judge 

(ALJ) preclude any attempt by Complainant to adduce any expert witness testimony 

and/or opinion testimony. 
FACTS 

Complainant issued a Notice of Proposed Civil Penalty (NOPCP) on May 20, 

2012. A Final NOPCP was issued on January 7, 2013 from which Respondent appealed 

and the Final NOPCP was filed as the complaint in DMS No. FAA-2013-0040 on 

January 15, 2013 seeking a civil penalty of $206,550.00 for 12 alleged Notice to Pilot In 

Command (NO PIC) violations Complainant discovered during an inspection of several 

hundred NOPIC's Respondent provided covering a 90 day period. 

Respondent timely Answered the Complaint, raising a number of affirmative 

defenses. 

On March 25 and March 27,2013, Respondent noticed the depositions of 

Complainant's persons most knowledgeable. In response, Complainant filed a Motion 

for Protective Order, which the Administrative Law Judge granted on May I, 2013. 

Subject to the limitations set forth in said Protective Order, Depositions of Complainant's 

most knowledgeable persons, Bryan Buchanan, Manager, Hazardous Materials Section, 

and Paul Klimas, Hazardous Materials Specialist (and the investigating inspector in this 

matter) were taken at Arlington, Texas on May 17, 2013. 1 

This civil penalty is unprecedented. Complainant's witnesses testified at 

deposition that to their best recollection and knowledge, Complainant has never sought 

1 Transcripts of those depositions were previously been filed on or about June 26, 

2013 as Exhibits F and G to Respondent's Response and Objections to Complainant's 

Motion for Decision and Transmittal of Exhibits. 

2 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY 

PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANT AND COMPLAINANT'S 

EXPERT WITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO. 2) 
civil penalties of this size for alleged NO PIC violations and, in fact, this civil penalty is 

several times the size of the maximum civil penalty that Complainant has ever sought for 

a NO PIC violation against any air carrier, large or small. 

Subsequent to those depositions, on June 17,2013 Complainant served its 

Responses to Respondent's First Set oflnterrogatories in which it stated: 

I. It intended to call only two (2) witnesses, Bryan Buchanan, Manager, 

Hazardous Materials Section, and Paul Klimas, Hazardous Materials 

Specialist (Responses to Interrogatory Nos. 2.1 and 2.7); 

2. Complainant did not intend to call any expert witnesses (Response to 

Interrogatory Nos. 2.4 and 2.5); and 

3. No documents have been prepared or reviewed by any expert witnesses 

(Response to Interrogatory No. 2.5). 

At no time subsequent to serving these Responses, has Complainant amended 

them. 

Also on June 17, 2013, Complainant filed its Motion for Decision seeking to have 

all findings of violation affirmed and the $206,550.00 penalty assessed. Respondent, in 

its reply of June 26, 2013 objected to Complainant's Motion, citing its affirmative 

defenses and arguments as to the appropriateness of the civil penalty, which 

Complainant's Motion had not addressed. 

On July 8, 2013, the Honorable Richard C. Goodwin, the Administrative Law 

Judge assigned to this case issued an Order granting in part and denying in part 

Complainant's Motion for Decision. Judge Goodwin found Respondent in violation of 

3 

FAA Case No. 2011 SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY 

PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANT AND COMPLAINANT'S 

EXPERT WITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO.2) 
the cited provisions of 49 CFR Section 175 but determined that the issue of the 

appropriateness of the civil penalty is genuinely controverted as Respondent had raised 

several valid defenses to Complainant's arguments in favor of its proposed penalty 

amount. 

Since the granting of the Order, Complainant has not disclosed any additional 

witnesses and has not designated any experts. Had Complainant done so, Respondent 

would have taken their depositions long in advance of the hearing. 

With the issuance of the Order, the allegations offact and violation in the 

Complaint are now uncontroverted and established. As such, there is no need for any 

testimony of Complainant's witnesses or any other evidence to prove the facts and 

violations that have been alleged in the Complaint. The only issues remaining are the 

appropriateness of the sanction and Respondent's affirmative defenses. 

As to the issue of appropriateness of sanction, Respondent adopts and 

incorporates as if fully set forth herein its Motion in Limine to Preclude Complainant's 

Evidence Relating to Computation and/or Reasonableness of Sanction (Motion in Limine 

No. 1), which has been concurrently submitted herewith. To the extent that Respondent 

has been unable to seek discovery of Complainant's methodology in computing the 

sanction, ostensibly on the grounds that any such inquiry would undermine 

Complainant's deliberative process privilege, evidence relating to how Complainant 

computed the civil penalty should not come in at this late date. Any such evidence 

adduced by Complainant would come as an unfair surprise and would prejudice 

Respondent. 

4 

FAA Case No. 20l!SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY 

PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANT AND COMPLAINANT'S 

EXPERT WITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO. 2) 
In essence, there is nothing to which Complainant's two designated witnesses 

could testifY on direct examination in Complainant's case in chief. Obviously, to the 

extent that they possess any relevant and material information to rebut Respondent's 

witnesses testimony and evidence adduced in Respondent's case in chief concerning the 

appropriateness of the sanction or Respondent's affirmative defenses, they would 

certainly be entitled to testifY as rebuttal witnesses. 

CONCLUSION 

For the foregoing reasons, Respondent asks that the Administrative Law Judge 

issue an Order precluding: 

1. Testimony of persons not previously identified by Complainant in prehearing discovery; 

2. Messrs. Klimas and Buchanan from testifYing in Complainant's case in 

chief with respect to the facts and violations alleged in the Complaint, 

as those facts and violations have been deemed established under the 

Order Granting in Part and Denying in Part Complainant's Motion for 

Decision; 

3. Messrs. Klimas and Buchanan from testifYing in Complainant's case in 

chief with respect to the appropriateness or reasonableness of the 

sanction; 

4. Expert witness testimony; and 

5. Opinion testimony. 

5 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY 

PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANT AND COMPLAINANT'S 

EXPERT WITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO.2) 
Respondent respectfully requests that this Motion In Limine not be taken under 

submission and that a Court Order granting or denying this Motion be made. 

'L ./_; 

Dated this{_f_th day of May, 2014 

// Michael L. Dworkin 

Attorney for Respondent, 

MARTINAIRE AVIATION, LLC 

6 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY 

PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANT AND COMPLAINANT'S 

EXPERT WITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO.2) 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this {L/~ay of May, 2014, a true and correct 

copy of the foregoing 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE 

TESTIMONY BY PERSONS NOT PREVIOUSLY IDENTIFIED BY 

COMPLAINANT AND COMPLAINANT'S EXPERT WITNESS AND/OR 

OPINION TESTIMONY (MOTION IN LIMINE NO. 2) 

was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-

320 

Washington, D.C. 20590 

{Federal Express} 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

{Federal Express} 

James Archier, Esq. 

Federal Aviation Administration 

Office of the Regional Counsel, ASW-7 

2601 Meacham Boulevard, Suite 6E 

Fort Worth, TX 76137 

{Federal Express} 

CAITLIN M. MILLER 

7 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY 

PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANT AND COMPLAINANT'S 

EXPERT WITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO. 2)