In The Matter Of: 

## SERVED: MARCH 30, 2015 U.S.·nEP ARTMENT OFTRANSPORTA

# TIO~.**~S.'{T ~{f:~:n.,Q:-** 

# 1

OFFICE OFHEARINGS · /:7

- ..**~_:** 

### ...:.;_..L,. . . ' \ t-
--**~** t
. 

### WASHINGTON, DC

.. I "'• _.,,·;· ·,_·,

-. I!f'

. "'\

. j

. I •**·~ ·~·**  ,,,-_. :''('

• I "' l, J DocketNo. FAA-2013-0291 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES ) ) ) ) ) ) Respondent CaseNo. 20llS0290032

ORDER DENYING RESPONDENT'S CROSS-MOTION FOR SUMMARYJUDGMENT

On January 30, 2015, the Federal Aviation Administration ("FAA") filed a Motion for SummaryJudgment ("Motion"). That same day, on January 30, 2015, the Respondent, Airborne Maintenance and Engineering Services**("Responde~t")** also filed a Motion for Summary Judgment ("Cross-Motion"). On February 11, 2015, an OrderGranting Respondent's Motion to Exclude, and Granting/Denying Other Reliefwas filed. On February 18,2015,the FAA filed the FAA's Response in Oppositionto Respondent's Motion for Summary Judgment ("FAA Response"). That same day, on February 18,2015,the Respondent filed its Answer in Opposition to Complianant's [sic] Motion for Summary Judgment ("Respondent's Response").
On February 27, 2015, the FAA filed the FAA's Reply in Support ofMotion for SummaryJudgment ("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 presented oral arguments onthe 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 Respondent filed Respondent's Supplemental Submission. I. INTRODUCTION A. Cross-Motions for SummaryJudgment As ou.tlined above, bothparties filed motions for summaryjudgmenton January 30, 2015. Itis well established that "[b]oth parties may seek summaryjudgment in the same action" pursuant to Federal Rule ofCivil Procedure 56(a). Steven Baicker-McKee, eta!., 

### Federal Civil Rules Handbook, 1120 (West Publishing2012). Even when cross-motions are filed,the review under Rule 56remains the same: Each cross-motion must be evaluated on its own merits, with the court viewing all · facts and reasonable inferences in the light most favorable to the nonmoving party. Baicker-McKee, et al., 

### supra, at 1127.
To ensure a clearunderstandingofthe Court's rulings, this Order addresses only the Respondent's Cross-Motion for Summary Judgment. A separate Orderwill issue on the FAA's Motion.
B. Complaint and Proposed Civil Penalty r... OnoraboutJune 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, respectively. The three Boeing B-727 aircraft were owned and operated by anothercompany, Capital Cargo International Airlines ("CCIA"), which was a Part 121 aircraft operator. At the time the maintenance was performed, the Respondent and CCIA were owned by the "sameparent company." (Reply, Exh. 2, 194.) The FAA asserted that the Respondent's improper maintenance on the three Boeing B727s occurred when it removed and replaced the Main Landing Gear ("MLG") on each ofthe Page 2 of21aircraft. The Respondent's MLG maintenance included "reinstalling and rigging the landing gear doors." (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 ofthe FARs: 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. 

### §46301(a)-(d), the FAA proposed a total penalty of$61,875 for all nine (9) alleged violations.


### C. Respondent's Cross-Motion for SummaryJudgment The Respondent's Cross-Motion seeks dismissal ofall nine (9) alleged violations ofthe Federal Aviation Regulations ("FARs"), as well as dismissal ofthe FAA'sproposed total civil penaltyof$61,875 for these violations. (Cross-Motion, I.)



### II. STANDARD OFREVIEW FOR SUMMARYJUDGMENT
Pursuant to 14 C.F.R. 

### § 13.218, a party may file**motio~s,** including a motion for a decision on the merits, in advance ofahearing when a party asserts that there is no genuine issue ofmaterial fact in dispute. Pursuant to 14 C.P.R.§ 13.2l8(f)(5), any motion for a decision on the merits priorto a testimonial hearing is analogous to a motion for summaryjudgment under Rule 56 ofthe Federal Rules ofCivil Procedure. HorizonAirIndustries, Inc., FAA Order No. 96-24, n.3 (Aug. 13, 1996); StebbinsAviation, Inc., OMS No. FAA-2000-7576-16, n.3 (Aug. 30, 2004) (Initial Decision).The purpose ofsummaryjudgment is "to isolate, and then terminate, claims and defenses that are factually.unsupported." Baicker-McKee, etaL, supra, at 1122.
Pursuant to 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 matter oflaw." See,Anderson v. LibertyLobbyInc., 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 granted to a non-movingparty, after all parties have had notice and a reasonable time to respond. A fact is "material" ifit is capableofaffecting 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 of21evidence 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 F.3d 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) rp.ay not rest upon mere denials or allegations in the**pleading~.** Pursuantto Rule 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 show there 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, etal., supra, at 1133-34 (a non-moving party may produce materials, and/or cite to materials produced ornot produced by the movant in resisting the summary judgmentmotion).
Pursuant to Rule 56(c)(l)(A), specific facts alleged by eitherparty may be asserted by submittingorcitingto a**variet~** ofdocuments and declarations. Materials submitted during summaryjudgment proceedings must be capable ofbeing offered at trial in an admissible form. See, Baicker-McKee, et al., supra, at 1135. Once the moving party has established a prima facie case, the burden shifts to the non-moving partyto show, by affidavit orotherwise, that a genuine

. i l dispute ofmaterial fact remains for thefact-finder to resolve. !d. at 1134 On a summaryjudgmentmotion, the court does not rule onthe weight ofthe evidence. See !d. at I 1'25 (The court never weighs the evidence, evaluates credibility or makes findings on disputed facts in summaryjudgmentproceedings). 

### III. EVIDENTIARY RULINGS A. Respondent's Factual Evidence in Support ofCross-Motion In support ofits Cross-Motion, the Respondent submitted sixteen (16) Exhibits, identified
as Exhibits 1through 16. As part ofits Reply, the Respondent also submitted an additional eight (8) Exhibits, which theRespondent proffered as Exhibits 1through 

### 8. At the March 5, 2015 Motion Conference, the Courtheld that the Respondent's Reply Exhibits would be identified as

Page 4 of21Exhibits 1-R through 8-R, to avoid duplication with the Respondent's earlier proffered CrossMotion Exhibits l·through.8.
At the March 5, 2015 Motion Conference, Respondent Exhibits t:-2, 4-16, 1-R, 3-R through 5-R, and 8-R were admitted without objection. However, the FAA objected on various grounds to the admission ofthese five (5) Respondent Exhibits: 3, l-R, 2-R, 6-R, and 7-R. The FAA's objections to Exhibits 6-R and 7-R were sustained, and Exhibits 6-R and 7-R were not admitted orconsidered.
The FAA's objections to Exhibits 3, 1-R, and 2-R were limited in scope, 1 specifically to any experttestimony offered by the declarant, Mr. Jeffrey Becker, regarding aircraft

. maintenance. The FAAargued that Mr. Beckercould not qualify as an expert in aircraft maintenance (FAA Response, 1-2), and, even ifhe 'was found to have expertise, he had not been timely orproperly disclosed as an expert (FAA Response, 2). The Respondent agreed that Mr. Beckerhad not been disclosed as an expert on or before May 1, 2014, but argued that the FAA's objections were without merit.
The FAA's objections to Exhibits 3, 1-R, and 2-R were reserved, and the Respondent was given an opportunity to supplement the record to showthat Mr. Becker had been previously disclosed as a general expert witness (instead ofonly as a reburial expert to the FAA's lateproffered expert, Inspector Christensen) and that the Respondent had asserted this position to the court in an earlier**mo~ion** (in response to the FAA's Motion to Exclude). On March 17, 2015, the Respondent filed Respondent's Supplemental Submission, in which it reasserted that Mr. Becker qualified as an expert. (R's Supp., 2.) The Respondent agreed that it first identified Mr. Becker as anexpert on December 12, 2014, but.argued (amongother things) thatthis late disclosure occurred onlybecause_the FAA had not identified Inspector Lipinski as an expert until December 1, 2014. (R's Supp., 3.)

1 Itis well-established that ifa moving party introduces new evidence in a Reply brief, the non-moving party should be given an opportunity to respond. Baicker-McKee, et al., supra, at 1143. In**t~is** proceeding,**bot~** parties filed new evidence with their Replies. At the March 5, 2015 Motion Conference, the part1es agreed that the 1ssues**~ad** been fully briefed and there was no need to file additional responses to Reply evidence in eitherthe FAA Mot1on orthe Respondent's Cross-Motion. Page 5 of21I. Mr. Becker'sExpert Qualifications Pursuant to Federal Rule ofEvidence 702, a witness may be qualified to serve as an expert ifs/he is shown to have "specialized knowledge" in a subject. Fed. R. Evid. 702. The witness may be qualified by "knowledge, skill,**exp~rience,** training, oreducation."/d. As part of ! ·•
. " its objection, the FAA argued that Mr. Becker was not now, and had never been, a certified Airframe and Powerplant mechanic, had never performed maintenance work on any B-727, and therefore did not have the necessary expertise 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 engineerfor various aircraft. (Exh. 1-R,**~A-C.)** Mr. Beckerhad also worked in flight engineeringand aircraft maintenance management-which included developingaircraft repair instructions and training aircraft inspectors. (Exh. 1-R,**~** D-E.) The FAA's objection to Mr. Beckeras 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 4'precise" qualifications are offered, but rathe{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 offer testimony within the bounds ofhis qualifications); Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975) (witness allowed to testify about machinery design principles, even though he had not previously manufactured ordesigned machines). Based on the evidencepresented, 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, and aircraft inspection training.
2. Requested Exclusion ofMr. Becker as an Expert The FAAobjected to the presentation ofexp.ert testimony by Mr. Beckeron multiple grounds, including: a) Mr. Beckerhad not beentimely identified as an expert; and b) the Page 6 of 21Respondent had failed to meet its reliability burden in Mr. Becker's purported experttestimony.2
At the March 5, 2015 Motion Conference, in response tothe FAA's objections to Mr. Becker's**exp·e~** testimony, the Respondent asserted that Mr. Becker's expertisehad been generally known. In addition, the Respondent had always intended to utilize Mr. Beckerto r . "rebut" the testimony ofall the FAA'sdisclosed expert witnesses.
A review ofthe record shows that the Respondent did assert, in an earlier motion, that Mr. Beckerwas offered "to rebut any expert testimony offered by the FAA's late-disclosed expert witnesses." (115115 Respondent Answerto Complainant's Motion to Compel and Exclude, 7.) However, at the time ofthis assertion, the Respondent had withdrawn its motion to exclude the "late-disclosed" expert testimony ofInspector Lipinski, Inspector Evans, and l Inspector Gasche (12/16114 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 InspectorChristensen in its February II, 2015 Order. 3
The issue oftimely disclosure ofexperts was addressed comprehensively in the February 11,2015 Order, and will notbe 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.**Pr~c.** & Proc. Civ. § 2031.1 (3d ed. (2015). The duty to timely_ disclose a witness as an expert is notexcused 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 simplycalling an expert witness under the guise ofa layperson." 

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

2 Among other things, 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'sexpert testimony was not reliable because portions were based on a speculative "telephone" game of hearsay (FAA Response, 2), implausible suppositions and "short cuts" (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 prior admissions to the FAA (FAA Response, 22).

3 The record in this proceeding shows that on February II, 2015 an Order Granting Respondent's Motion to Exclude and Granting/Denying Other Motions was filed. Among otherthings, this Order excluded Inspector Christedsen as a witness, and deemed the FAA's December 19, 2014 Motion**,~o Exclu~e** **~r.** Beckeras an**~xpert** witness a moot issue, since the Respondent had offered Mr. Becker only as a rebuttal \\ttness to Mr. Chnstensen. (Order, 10,3(a) and 14 (6).} Neither party filed for reconsideration ofthis February 11, 2015 Order. Page 7 of21is merely a "rebuttal"witness.4
In the case herein, the FAA is correct that the Respondent did not timely disclose Mr. Becker as an expert witness. At the same time, the Respondent is correct that the FAA did not
\ timely disclose Inspector Lipinski, InspectorEvans, and Inspector Gasche as expert witnesses. Instead, each party timely disclosed these witnesses asfact witnesses, butfailed to also timely identify them as expertwitnesses.
In short, both parties erred in the timing oftheir expert disclosures. Nevertheless, both parties had accessto these four witnesses early in the proceedings, and both Inspector Lipinski and Mr. Becker were deposed during discovery. The record also demonstrates that the FAA was aware ofMr. Becker's potential expert status, since Mr. Becker's October29, 2014 discovery deposition included FAA inquiry about Mr. Becker's specialized education and work history, as well as inquiry regarding his opinions on the issues ofaircraft maintenance and repair, which is a topic ofexpertise.
The problem, however, is thatthe Respondent produced Mr. Becker for the FAA

. . discovery deposition as a Rule 30(b)(6) company representative, not as an expert witness. It also appears undisputed that Mr. Beckerhas neverprovided an expert report, which was required and due no laterthanDecember 12,2014. (9/30/14 Order.) As ofthe date ofthis Order, it is still unclearthe exact scope ofexperttestimony the Respondent seeks to ultimately offer through Mr. Becker at hearing, orwhat "reliable principles and methods" underRule 702(d) might support

4 In assessing whether a party may use an expert witness, who had not been previously identified as an expert to rebut the opposing party's expert, courts must considerwhether the witness 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; see also, Wong v. Regents ofUniv. 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**~/Puerto** Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182,202-03 (1st Cir. 1996) (exclusion is proper for experts identified late as "rebuttal"). Previously**undisclos~d** "rebuttal" expert testimony is "limited to new unforeseen facts brought out in the other side'scase." lnre Pfesident'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)). Page 8 of21his proffered expert opinions. a) Four Factor Test Federal courts have often applied the following four factor test to "determine whether exclusion ofevidence 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 orother cases in the court; and (4) bad faith orwillfulness in failing to comply with a court order ordiscovery obligation.'" In re AsbestosProducts LiabilityLitigation (NO. IV), No. 09-CV-74351, 2012 WL 661673, at *2 (E.D.Pa. Feb. 8, 2012) (quotingNicholas v. Pa. Sta{e 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 ofthesefour factors is addressed below. b) Test FactorsApplied 

## ill Factor No. I (Surprise orprejudice): Clearly the FAA would not be surprised ifMr. Becker was limited to the testimony he provided in his October 29, 2014 deposition. TheFAA would be surprised and prejudiced, however, ifMr. Becker was allowed to expand onthis testimony, since the FAA has not received
an expert report (identifYing the facts and opinions upon which Mr. Beckerrelies in giving expert evidence), and the FAA has not had a chance to depose Mr. Becker as a proffered expert. [ill FactorNo. 2 (Possible Cure(s): Could the prejudice to the FAA_for late,**disc~osure** be cured? One option is to allow the Respondent to offer Mr. Becker'sdeposition testimony only as lay testimony, since Mr. Becker's deposition was taken as a fact witness. Another optionwould be to direct Mr. Beckerto produce
an expertreport, and allowthe FAA anopportunity tore-depose Mr. Becker as an expert. A third optionwould be to force the FAAto respond to Mr. Becker as an expert, without the benefit of
an expertreport or an expertdeposition. Given the lack oftime before the scheduled Hearing, these options lead into the third test factor.

Page 9 of21(iii) Factor No. 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 set to begin on May 5, 201S, which is approximately one (1) month from the date ofthis Order. Even ifthe Respondentproduced an expert report within two (2) days ofthis Order·, theparties would still need to coordinate theircalendars, hire a court reporter, and potentially travel to a deposition site so that the FAA could take Mr. Becker's deposition as a proffered expert. 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 is extraordinarily disruptive to trial preparation for both sides, and certainly unfair to demand ofany party so close to the hearing date. The otheroption would be to continuethe hearing date into the year 201 6, which does not

- in any way - serve the interests ofthe efficient administration ofthis case. (iv) Factor No. 4 (Bad Faith or Unwillingness): The record demonstrates that both parties in._this case have failed to meet certain courtordered deadlines. There has also been a continuingpractice byboth parties to identify witnesses
as fact witnesses and fail to identifythe same witnesses as experts. There is no evidencethat bad faith was involved in this action. c) Rule 702 Expert Exclusion Granted It shouldbe noted that much ofMr. Becker's proffered deposition testimony (Exhs. 3 and 2-R) was fragmented, difficult to follow, and did not clearly identify orattach the deposition exhibits ordata that Mr. Becker was reviewing. Substantial portions ofExhibit 3 did not offer expert testimony or analysis, but instead offered fact witness testimony, fact opinion, general assumptions or suggestions, and speculation. In addition, although Mr. Beckerdid offer technical opinions about various topics, he did notprovidethem in cqnjunction with a discussion ofgeneral industry standards ormethods, to demonstrate that he had "reliably applied the principles and methods" ofexpert knowledge and analysis to the facts ofthe case. Fed. R. Evid. 702(c) and (d).)

.Itwas undisputed that Mr. Becker was deposed on October29, 2014 as a Rule 30(b)(6) companyrepresentative. The discovery deposition was scheduled as a "fact witness" deposition. Page 10of21During.the deposition, the Respondent's attorney made objections to some FAA inquiry as being outsidethe scope ofa Rule 30(b)(6) deposition. (e.g., Exh. B, 40.) He also objected to the FAA examining Mr. Beckeron some topics ofexpertise, and stated to Mr. Becker: "Idon'tknowthat your understanding ofwhat a mechanic would do is relevant, but ifyou can, answer the question." (Exh. 1, 113.) Mr. Becker did.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 Director ofQuality Assurance and Training, which included his review, analysis: and opinions regarding company investigations and aircraft maintenance records. The selectedportions ofExhibit 3, 1-R, and 2-R do not contain any information about the "reliable principles and methods," Fed. R. Evid. 702(d), Mr. Becker is required to utilize in orderto present reliable expert testimony.5
Based on the totality ofthe record herein, the FAA's objections to allowing Mr. Becker testimony to be admitted as expert testimony in the Respondent's Cross-Motion are sustained. d) Deposition TestimonyAllowedunderLimitedRule 701 Lay Opinion Exception Nevertheless, it is clearthat Mr. Becker, as the Respondent's Rule 30(b)(6) fact representative, provided some deposition 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 inAsplundh Mfg. 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 testimony to common knowledge matters. Testimony "cannot be 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).

sIn addition to expert qualifications, Rule 702 requires that an expert'stes_timony be deemed reliable be:ore it is admitted and considered. The expert'stestimony must be "based on sufficient facts ordata" (Fed. R. Ev1d. 702(b)), be the product of"reliable principles and methods," Fed. R. Evid. 7?,2 (c), and**t~e** expert must show that s/he has "reliably applied the principles and methods to the facts ofthe case.**~ed:** R. Ev1d.**702(~). Pursu~nt_t?**  Rule 702 and 104, the proponent ofthe proffered testimony has the burden ofestabhshmg that**t~e** pertment**~ehabllny** requirements are met, by a preponderance ofthe evidence. Fed. R. Evid. 702, Advisory CommitteeNotes, 2000 Amendments. I McCormick on Evid. § 13 {7th ed. 2015).
Page 11 of 21In the amendment 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 areasoning process typically utilized by that lay witness in his/her daily 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 CommitteeNotes (2000 Proposed Rules) (e.g., a business owner may testify about the projected profits ofhis business).
Based on the record herein,Mr. Becker's deposition testimony may be admitted as lay opinion testimony under the limited exception ofRule 701, which was offered in his capacity as Respondent's DirectorofQuality Assurance and Training.


### B. FAA's Factual Evidence in Opposition to Cross-Motion As part ofits Response, the FAA submitted,six (6) Exhibits, identified as Exhibits JJ through 

### 00. Atthe March 5, 2015 Motion Conference, FAA Exhibits KK through 

### 00were admitted without objection. However, the Respondent objected on various grounds to the admission ofExhibit JJ. The Respondent's factual objections to Exhibit JJ were overruled, and Exhibit JJ was admitted for consideration. After conclusion oftheMarch 5, 2015 Motion Conference, additional extensive review of the FAA's Response showed that the FAA had also incorporated by reference Exhibit HH (Response, 22), which it had previously filed as part ofits February 2, 2015 Motion. It was undisputed that Exhibit HH was admissible, since it was a letter authored on March 21,2011 by Mr. Becker, the Respondent's representative, and sent to the FAA in response to an FAA investigation inquiry. The Respondent had also offered Mr. Becker's March 21, 201 I Letter as Exhibit 8-R in its Reply. Thus, FAA Exhibit HH is also deemed admitted and considered as part oftheFAA'sResponse to the Respondent's Cross-Motion.
:J•• 

### IV. ALLEGED REGULATORY VIOLATIONS As previously noted, the FAA alleged thatthe Respondent's MLG maintenance had included improperly "reinstalling and rigging" the main landing geardoors on three Boeing BPage 12 of21727 aircraft on or about the following dates: August 2009 (N899AA), October 2009 (N898AA), and March 2010 (N287SC). (Complaint.) The FAA alleged that on each occasion ofaircraft maintenance, the Respondent 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). Section 145.205(a) states: (a) A certificated repair station that performs maintenance, preventive maintenance, or alterations for an air carrierorcommercial operatorthat has a continuous airworthiness maintenance program under part 121 orpart 135 must follow the aircarrier'sorcommercial operator's program 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) appeared to be the primary regulatory violation regarding the three (3) alleged improper maintenance incidents in this case, since Section. 145.20S(a) contained both Specific language not included in either Section 43.13(a) or(b), as well as broad language that addressed the safety requirements contained in both Section 43.13(a) or(b).
Forexample, 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"6 who performs maintenance to follow the applicable maintenance manual or manufacturer's instructions: r (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 orInstructions for Continued Airworthiness prepared by its manufacturer

### or... 14 C.F.R. § 43.13(a) (2014) (emphasis added). As noted earlierherein, the parties agreed that CCIA had a CAMP that the Respondent
was required to follow. This CAMPutilized Boeing's B-727 maintenance manuaL Thus, the applicable regulatory language in Section 43.13(a) mir:ored the regulatory requirements of

6 Both Section 43.13(a) and Section 43.I3(b)refer to "aperson" performing maintenance. The.**~ord** "person" is broadly defined by the FARs, and includes a company ora corporation. 14 C.F.R. §I.I (Definitions). Page 13 of 21Section 145.205(a), and the alternative contained in'Section 43.13(a) was not applicable to this proceeding.7
In addition, Section43.13(b) provides: (b) Each person maintaining, or altering, orperforming preventive maintenance, shall do that work in such a manner and use materials ofsuch quality, that the condition ofthe aircraft, airframe, aircraft engine, propeller, or appliance 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 thatthe aircraft's "original"condition is the aircraft's manufactured condition. Assuming subsequent maintenance on the original aircraft was performed pursuant to the manufacturer's maintenance manual, the maintained or repaired 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). This is consistent with the FAA's general position in this proceeding, since is it not seeking a civil penaltyper violation, but rather on a "per aircraft" basis. 8 As aresult, the primary discussion in this Order will focus on the regulatory language contained in Section 145.205(a).



### V. DISCUSSION All evidence and arguments have been considered. Because ofthe volume ofmateri'als submitted, only certain matters will be highlighted and discussed.

7 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, exce.pt as noted in §43.t6:He shall use the tools, equipment, and**te~t'apparatus** necessary to assure**complet1~n** ofthe work in accordance with accepted industry practices. Ifspecial equipment ortest apparatus IS recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator. Section43.13(a) (2015).
s In its own Motion, the FAA explained that "[i]n this case, viewingthe situation on a per-aircraftbasis, there are only three acts ofviolation."). (Motion, 24.) Page 14 of21A. Undisputed Facts Most ofthe facts regarding the Respondent's compliance with Section l45.205(a) were not in dispute. The Respondent admitted that it was a certificated repair station (Answer, I 

## 'II 2). Thethree (3) identified B-727 aircraft had been manufactured by Boeing. On or about the dales alleged, the Respondent performed maintenance on the three (3) identified B-727 aircraft manufactured by Boeing. (Answer, l-2

### 'II 3(a), (b), and (c).) At the time the maintenance was performed, each Boeing B-727 aircrafthad 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 in performing maintenance. (Answer, 3, 

### 'II 5.) CCIA's CAMP required that Boeing's B-727 Aircraft Maintenance Manual ("AMM") be followed in performing maintenance on CCIA's B-727 aircraft. (Cross-Motion, 27; Exhs. 1, 5 and 6.) The maintenance performed on each ofthe three different Boeing B-727 aircraft (identified as N899AA, N898AA, and N287SC) on or aboutAugust 2009, October 2009, and March 2010 had involved replacing the Main Landing Gear C'MLG"). This MLG maintenance included "reinstalling and rigging the landing gear doors." (Answer, 2 

### 'II4(a), (b), and (c); CrossMotion, 11-12.)
B. Disputed Issue

The substantive law (i.e. 14 C.F.R. 

### §§ 145.205(a)) identifies the four material facts that
are critical: 1) whether the Respondent was a certificated repair station; 2) whether the Respondent performed maintenance on.the aircraft; 3)whetherthe maintenance was performed for an aircarrierthat has a CAMP under part 121; and 4) whether the Respondent used and followed Boeing's B-72? Aircraft Maintenance Manual ("AMM") in performing that maintenance. The first three facts are undisputed. Thus, the only issue in dispute is the fourth material fact: whether the 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, October 2009, and March 2010.

Page 15 of21C. ShortReview ofMovant's Burden ofProof The Respondent asserted in its Cross-Motion that the FAA had the burden ofproofto support its accusations with "reliable, probative, and substantial" evidence. (Cross-Motion, 7.) In Response, the FAA argued thatthe Respondent had misunderstood its evidentiary obligations in making the Cross-Motion, and had failed to even meet its initial burden ofproofas the moving party. (Response, 1.)
There is no doubt the Respondent correctly identified the FAA's burden ofprooffor 

### hearing, when the FAA-asthe moving party-presents its evidence first. 14 C.F.R. §§ 13.223 and §13.224(a). But in a

### pre-hearing, summaryjudgment motion, the initial burden ofproofis
on the moving party-in this case, the Respondent. 14 C.F.R. §§ 13.218(f)(5) and 13.224(b).
In essence, it is the movant's initial burden in a summaryjudgmentmotion to present sufficient evidence to showthat "there is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter of**l~w."** G::iv. R 56(a). In the alternative, the movant may show that there is an absence ofevidence to support the nonmoving party's case" when the non-moving party is the plaintiffat trial. 

### Celotex, 477 U.S. at 325.
Ifthe movant (i.e., the Respondentherein) asserts that the opponent (i.e., the FAA who bears the burden attrial) lacks proofto establish an element ofits case, the movant must show the absence offacts. Alternatively (or additionally), the movant may acknowledge the existence offacts and evidence in support ofan element of the non-movaht's case, and then provide evidence to showthat no genuine dispute exists because no reasonable decision_maker, applying the applicable standard ofproof, could find in favor ofthe non-movant at hearing. See BaickerMcKee etal., 

### supra, at 1122. Ifthe movant for summaryjudgment satisfies its initial burden ofproof, then-and only then-doesthe burden shift to the non-moving partyto submit (or point to) sufficient evidence that may defeat the summaryjudgment request. Baicker-McKee, etal., 

### supra, at 1121. 1!1 addition, all the facts deemed material and considered in a summaryjudgment motion must be viewed in a light most favorable to the non-movingparty (i.e., the FAA herein). 

### !d. at 1133-34.
D. Analysis As noted earlierherein, each cross-motion for summaryjudgmentmust be evaluated on Page 16of 21its own merits. Thus, the**eviden~e** presented by both parties in the Respondent's Cross-Motion is limited to the exhibits marked, admitted, and deemed material as part ofthis Cross-Motion. Any testimonial ordocumentary evidence presented by the parties in the FAA's Motion, which was not also submitted (orreferenced) as part ofthe Respondent's Cross-Motion, was not considered. Evidence was deemed material ifit was reliable and addressed the issue in dispute.

1. Short Review ofRespondent's "No [MaterialJ Facts" Evidence The Respondent first asserted that there**wer~** "no set of[material] facts" plead in the FAA's Complaintthat would allow it to prevail on any ofthe alleged regulatory violations. (Cross-Motion, 1.)
In support ofthis theory, the Respondent argued that it had fully complied with Boeing's AMM requirements when it had initiallyperformed the MLG maintenance qn each Boeing B727 aircraft. (!d. at 25-27.) It argued that "without a doubt" the damage observed on the MLG when the FAA inspected each ofthe three (3) Boeing B-727 aircraft in May 2010 had been caused by wear and tear (and/or in one instance, intervening maintenance). (/d. at 2-4, 19.) The Respondent also argued that the passage oftime between when it had performed'the MLG maintenance, and the date the FAA discovered the damage, weighed against any finding of violation, particularly given CCIA's continued use ofeach aircraft during the intervening time period. (Jd. at 8-13.) However, it quickly became apparent in revii:wing the Respondent's proffered evidence thatthere were mahy facts in dispute. Some ofthese proffered facts were material to the disputed issue. Taken in a light most favorable to the non-moving party, these facts proved the FAA's allegations. Thus, the Respondent failed to meet its initial burden ofproofto showthat there
were "no [material) facts" in dispute and thatthe Respondent was entitled to dismissal as a matter oflaw

.

.2. Short Review ofRespondent's Alternate "Insufficient Facts" Evidence The Respondent agreed thatcertain damage had been found on each ofthe three aircraft during the FAA'sMay 2010 inspection but alternatively argued that the circumstantial facts were insufficientto find that any violations had occurred. In support ofthis position, the Respondent proffered a variety ofevidence, including selected portions ofFAA Inspector Lipinski's Page 17 of 21

' lEnforcementInvestigative Report ("EIR"), and selected portions ofMr. Becker's October 29, 2014 deposition testimony. Inspector Lipinski asserted in his EIR that an inspection ofall three aircraft during May 25-28, 2010,**~onducted** by himselfand a CCIA managementteam member, "revealed that all three aircraft had all Flying Doors (Inboard [sic) and outboard) installed incorrectly." (Exh. 1, 1.)
The improper Flying Doors? installations resulted in doors damage, doors attach fittings damage, airframe damage, flap track fairing damage, and door attach fitting covers damage. Associated structures included the inboard fJap track fairings, Flying Doors attach fittings covers, and wheel well fairings

....The MLG Doors were all obviously out ofrig. (Inspector Lipinski, Exh. 1, 1-2.)
Mr. Becker, the Respondent's Director ofQuality Assurance, confirmed that he and the Respondent's Director ofMaintenance ("DOM") (name not provided), met with Inspector Lipinski at the inspection site on May 25, 2010 to discussthe problem. (Exh. I, 2; Exh. 3, 70). InspectorLipinski reported that during this May 25, 2010 meeting, neither Mr. Becker nor the Respondent's DOM could demonstrate a working knowledge aboutthe Boeing B-727 AMM's door rigging procedures. (Exh. I, 2.) [They) could not show

...[me] the correct section ofthe AMM to use for door rigging

...[or] where the references in the MLG replacement instructions require the doors to be rigged and inspected. (Inspector Lipinski, Exh. I, 2.)
In contrast, Mr. Beckertestified that he only "vaguelyremembered" the meeting. (Exh. 3, 70.) He also couldn't recall ifhelooked at more than one ofthe three aircraft. (!d.) After the aircraft inspection and meeting withMr. Becker and the DOM, Inspector Lipinski reviewed the Respondent's MLG work packages regarding the MLG installations of each aircraft. This review showed that the Respondent had failed to use CCIA's approved maintenance manual, which wasthe BoeingAMM. (Exh. 1, 2.) Althoughthe work packages had required Rll inspection sign-offs, the wrong AMM references had been cited, and no AMM door rigging references had been used. According to InspectorLipinski, this indicated either a lack ofinspection or a flawed inspection, which was corroborated by the "ensuing damage from Page 18 of 21improper maintenance actions." (Exh. 1, 3.) Inspector Lipinski emphasized that all ofthe discrepancies found on the aircraft during the May 25, 2010 inspection "were all, without exception, attributable to the original work that
was done" by the Respondent. ((Exh. 2, 204.) InspectorLipinski agreed that the Boeing B-727 AMM was "archaic," had notbeen adequatelyrev_ised, and thus required qualified mechanics to either make assumptions about what was needed, or simply "know" as a "727 individual" what sections to access. (Exh. 2, 31-34.) Nevertheless, an aircraft technician was still required to know the contents ofthe AMM and properly utilize it.
The Respondent raised multiple possibilitiesto suggestthese facts should not bebelieved,
as well as a variety ofalternate explanations for the damage to the aircraft. In addition, the Respondent appeared to argue that this Court should deem all the admitted factual evidence as material, weigh the value ofthe selected proffered evidence against the value ofthe proffered Inspector Lipinski material, assess the 7omparative credibility ofvarious declarants,9 and make various assumptions regarding the evidence. 10
3. The Respondent Failed to Meet its Burden ofProof As noted earlierherein, thepurpose ofsummaryjudgment is "to isolate, and then terminate, claims and defenses that arefactually unsupported." Steven Baicker-McKee, et.al, 

### Federal CivilRules Handbook, 1122 (West Publishing 2012) (Rule 56). The mere existence of disputed facts does not defeat summary judgment. The facts in 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. at 248. In addition, facts presented-butwhich are not supported by the evidence--donot create a genuine issue ofmaterial fact.

9 For example (not inclusive), the Respondent argued that the bulk ofInspector Lipinski's report (Exh. I) was "exaggerated" and "biased" (Cross-Motion, 5), and should be viewed as less credible (or not_credible at all) because the Inspector had demonstrated a "prejudicial attitude" towards the Respondent. (Cross-Motton, 5 and 21; Exhs. 15 and 16).
IO Forexample (not inclusive), the Respondent**_assert~d** that**t~e** "?ap [_in time] between**t~e** orig_inal maintenance**~nd** the FAA's subsequent inspection ofthe three atrcraft mquestton ts far too great
... [for tt to] stmply be assumed that wear and tear had not played a part in the MLG damage. (Cross-Motion, 2-3.)The Respondent_**further_as~erted** that "therecan be no denying thatthe flying doors

...operate in ahostile**envirqnme~t** and are subJe:t to**st~ntticant** wear and tear." (Cross-Motion, 3.) However, the Respondent did not provide any rehable expert testtmony m support ofsuch arguments. ·'!!· Page 19of21In ruling on motions for summaryjudgment federal courts have held that a fact or facts are material ifthey constitute a l'egal defense, or iftheir existence ornonexistence might affectthe result ofthe action, orifthe resolutionofthe issue they raise is so essential that the party against whom it is decided cannotprevail. lOA Charles Alan Wright et al., Federal Practice and Procedure§ 2725 (3d ed. 2014) (footnotes and citations omitted).
The Respondent's arguments ignored its own burden ofproof, and as well as the standard for court reviewon summaryjudgment motions. Facts admitted and deemed material may not be weighed, nor should the court make credibility assessments regarding opinions on material facts proffered bydeclarants whose testimony is deemed reliable. Instead, the focus ofthe court in summaryjudgmentproceedings is whether: 1) the admitted evidence shows that no genuine dispute-as to any material fact exists and supports disposition as a matteroflaw, or 2) whether the admitted material evidence shows that a hearing•is required because there remain genuine issues ofmat.erial fact in dispute. Baicker-McKee, etal., 

### supra, at 1121. 

### See also, 1 OA Fed. Prac. & Proc. Civ. 

### §2725 (3d ed. 2014).
The alternate evidence presented bythe Respondent demonstrated that material facts existed that supported**th~** FAA's case in chief, particularly when viewed in a light most favorable to the FAA, the non-moving party. The Respondent's evidence did not show-as it needed to

- that a reasonable decisionrnaker, applying the applicable standard ofproof, could not find in favor ofthe FAA at hearing. See Baicker-McKee et al., 

### supra, at 1122.
In short, the Respondent's proffered Cross-Motion evidence included material facts that supported the FAA's allegations. As a result, the Respondent failed to meet its initial burden of proofto show that there were "insufficient [material] facts" to support the FAA's allegations at a hearing, and thatthe Respondent was entitled to dismissal as a matter oflaw.


### E. ShortSummary ofFAA's Opposition Position In its Response in Opposition to the Cross-Motion,11 the FAA submitted multiple exhibits-including Mr. Becker's March 21, 2011 Letter to the FAA (Exh. HH), Inspector Lipinski's February 17, 2015 declaration (Exh. JJ), and selected portions ofMr. Jeffrey Becker's

11 In the FAA's February 18, 2015 Response, it presented both aresponsive argument to the Cross-Motion, but also arguments in support ofits own Motion for Summary Judgment (see, e.g., Response, 4.) Only the FAA's responsive arguments to the Cross-Motion have been considered for this ruling. Page 20 of21October29, 2014 discovery Deposition (Exh. KK}---challenging the Respondent's assertion that
no facts, orinsufficient facts, existed to support the FAA'scharged violations. The FAA also asserted thatthe Respondenthad failed to meet its cross-motionburden ofproof. Given the court's finding thatthe Respondent did·not meet its·initial burden ofproof, the FAA's responsive evidence in this Cross-Motion will not be further discussed.

VI.CONCLUSION Pursuantto 14 C.F.R. § 13.218(f)(5) and Civ. R. 56, all oftheparties' admissible Exhibits were considered, as well as the applicable pleadings and documents. After having heard oral argument on the Cross-Motion, and having reviewed all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully advised;

IT IS HEREBY ORDERED:
1. The Respondenthas failed to meet its burden ofproofas the moving party, and it's Cross-Motion for SummaryJudgment and request for dismissal ofthe action is denied. 2. A separate orderwill issue on the FAA'sMotion for Summary Judgment. 3. For clarifications ofthis orderor questions with regard to the procedures to be followed in this case, please contactMr. Cody L. Smith, Attorney-Advisor, at the Office of · Hearings (202-366-6941).

Attachment: Service List

Page 21 of 21SERVICE LIST FDMS No. FAA-2013-0716 (Civil Penalty Action)

ORIGINAL 

### & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing DocketClerk, AGC-430 Wilbur Wright Building-Suite2WI00012

Mr. Christopher R. Stevenson 

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

Office ofthe Regional Counsel, AS0-7 Southern Region P. 0. Box 20636 AtlarJta, 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 301h St., N.W. Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306
JudgeJ.E. Sullivan 

### US. AdministrativeLawJudge Office ofHearings, M:.20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536

12 Service was by U.S. Mail. Forservice in person orby expedited courier, use the following address: Federal Aviation Administration, 600 lndependence Avenue, S.W., Wilbur Wright Building-Suite 2WI000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430.