Michael L. Dworkin (CA Bar# 64047) MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 SanFrancisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: law@avialex.com Counsel for MARTINAIRE AVIATION, LLC 

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UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
Inthe Matter of;

MARTINAIRE AVIATION, LLC FAA CaseNo. 2011SW700189 DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BYPERSONS 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 LAWJUDGE, 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) andthe Federal Rules ofCivil Procedure, Martinaire (Respondent) moves thatthe Administrative Law Judge (ALJ) preclude any attemptby Complainant to adduce any expert witness testimony and/or opinion testimony.FACTS Complainant issued aNotice ofProposed Civil Penalty (NOPCP) on May 20, 2012. A FinalNOPCP 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 allegedNotice to Pilot In Command (NOPIC) violations Complainant discovered during an inspection ofseveral hundredNOPIC's Respondent provided covering a 90 day period. Respondenttimely Answeredthe Complaint, raising a number ofaffirmative defenses. On March25 and March 27,2013, Respondent noticed the depositions of Complainant's persons most knowledgeable. Inresponse, Complainant filed a Motion for Protective Order, whichthe Administrative Law Judge granted on May I, 2013. Subject to the limitations set forth in said Protective Order, Depositions ofComplainant's most knowledgeable persons, Bryan Buchanan, Manager, Hazardous Materials Section, and Paul Klimas, Hazardous Materials Specialist (and the investigating inspector inthis 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 bestrecollection and knowledge, Complainanthas never sought

1Transcripts ofthose depositions were previously beenfiled 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 ofExhibits.

2 FAA CaseNo. 2011SW700189/FAA DocketNo. 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 ofthis size for allegedNOPIC violations and, in fact, this civil penalty is several times the size ofthe maximum civil penalty that Complainanthas ever sought for

aNOPIC 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. Itintended 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 expertwitnesses (Response to Interrogatory Nos. 2.4 and 2.5); and 3. No documents have beenprepared orreviewed by any expert witnesses (Response to Interrogatory No. 2.5). At no time subsequent to serving these Responses, has Complainant amended them. Also onJune 17, 2013, Complainant filed its Motion for Decision seeking to have all findings ofviolation affirmed and the $206,550.00 penalty assessed. Respondent, in its reply ofJune 26, 2013 objected to Complainant's Motion, citing its affirmative defenses and arguments as to the appropriateness ofthe civil penalty, which Complainant's Motion had not addressed. On July 8, 2013, the Honorable Richard C. Goodwin, the Administrative Law Judge assignedto this case issued an Order granting in part and denying inpart Complainant'sMotion for Decision. Judge Goodwinfound Respondent in violation of 3 FAA Case No. 2011 SW700189/FAA DocketNo. 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 of49 CFR Section 175 but determined thatthe issue ofthe appropriateness ofthe civil penalty is genuinely controverted as Respondent had raised several valid defenses to Complainant's arguments in favor ofits proposed penalty amount. Since the granting ofthe Order, Complainant has not disclosed any additional witnesses and has not designated any experts. Had Complainant done so, Respondent would have takentheir depositions long in advance ofthe hearing. Withthe issuance ofthe Order, the allegations offact and violation in the Complaint are nowuncontroverted and established. As such, there is no need for any testimony ofComplainant's witnesses or any other evidence to prove the facts and violations that have been alleged inthe Complaint. The only issues remaining are the appropriateness ofthe sanction and Respondent's affirmative defenses. As to the issue ofappropriateness ofsanction, Respondent adopts and incorporates as iffully set forth herein its Motion in Limine to Preclude Complainant's Evidence Relating to Computation and/or Reasonableness ofSanction (Motion in Limine No. 1), which has been concurrently submittedherewith. To the extentthat Respondent has beenunable to seek discovery ofComplainant's methodology in computingthe 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 atthis late date. Any such evidence adduced by Complainantwould 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 couldtestifY on direct examination in Complainant's case in chief. Obviously, to the extentthatthey possess any relevant andmaterial informationto rebut Respondent's witnesses testimony and evidence adduced inRespondent's case in chiefconcerning the appropriateness ofthe sanction or Respondent's affirmative defenses, they would certainly be entitledto testifY as rebuttal witnesses. CONCLUSION For the foregoing reasons, Respondent asks that the Administrative Law Judge issue an Order precluding: 1. Testimony ofpersons notpreviously identified by Complainant in prehearing discovery; 2. Messrs. Klimas and Buchanan from testifYing in Complainant's case in chiefwithrespectto 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 chiefwith respectto the appropriateness orreasonableness ofthe sanction; 4. Expert witness testimony; and 5. Opiniontestimony.

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 respectfullyrequests thatthis MotionInLimine not be takenunder submission and that a Court Order granting or denying this Motion be made.



## 'L ./_; Dated this{_f_th day ofMay, 2014 

# // Michael L. Dworkin Attorney for Respondent, MARTINAIRE AVIATION, LLC

6 FAA Case No. 2011SW700189/FAA DocketNo. 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 onthis

## {L/~ay ofMay, 2014, a true and correct copy ofthe foregoing MARTINAIRE AVIATION,LLC'S MOTION INLIMINE TO PRECLUDE TESTIMONYBY PERSONS NOT PREVIOUSLYIDENTIFIED BY COMPLAINANT AND COMPLAINANT'S EXPERTWITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINENO. 2)

was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewJersey 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 WrightBuilding- Suite 2Wl000 {Federal Express} James Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, TX 76137{Federal Express}

CAITLIN M. MILLER

7 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY PERSONS NOT PREVIOUSLY IDENTIFIED BY COMPLAINANTAND COMPLAINANT'S EXPERTWITNESS AND/OR OPINION TESTIMONY (MOTION IN LIMINE NO. 2)