Inthe matter of 

# RECEIVED

BEFORE THE 

## DEC 03 2014 

## u.s. DEPARTMENT OF TRANSPORTATIONHEARING 

## DOCKET OFFICE OF HEARINGS

WASHINGTON, D.C.
DocketNo. FAA-2013-0291 FAA Case No. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative Law Judge J.E. Sullivan
RESPONDENT'S MOTION FOR SANCTIONS Respondent, Airborne Maintenance and Engineering Services, hereby moves for the imposition ofsanctions in accordance with the authority granted to the Law Judge pursuantto section 13.217(f) ofthe Rules ofPractice due to the late and unexcused filing ofComplainant's expert disclosure statement served on Respondentbyfax on December I, 2014. Exhibit 1. Your Honor's September 30, 2014litigation schedule specified that initial expert disclosures were to havebeen exchanged on orbeforeNovember 19, 2014. Your Honorreaffirmed the applicability ofthe litigation schedule by yourrecent Order dated November 21,2014. Complainant neither soughtrelieffrom the litigation schedule Order, nor filed its disclosure statement under a motion for leaveto file a late,filed document when serving the expert disclosure on counsel for the Respondent. Nor did the Complainant's expert disclosure statement set forth in sufficient detail the content, conclusions andtestimony ofthe potential experts such thatRespondent canpresent its rebuttal. Underthe circumstances, the Complainant shouldbe precluded from introducing the expert testimony ofthe four individuals namedby the FAA inits expert disclosure statement asMotion for Sanctions**Decemb~:r** 2,2014 Page 2 of5

.potential expert witnesses

-- Frank Lipinski, Bobby Evans, Jack Gasche, and Michael Christensen. 1 Section 13.217(f) ofthe Rules ofPractice addresses the situation where a partyfails to comply with ajointprocedural or discovery schedule. Where such a failure occurs, the Law Judge is specifically authorized to take the following action: (1) Strike thatportion ofa party's pleadings; (2) Precludeprehearing or discovery motions bytheparty; (3) Preclude admission ofthatportion ofa party's evidence at the hearing, or ( 4) Precludethat portion ofthe testimony ofthat party's witnesses at the hearing. Subsections (3) and ( 4) ofsection 13 .217(f) are the appropriate sanctions in this context. None ofthe named "experts" should be permittedto introduce any expert testimony on the issue of whether the actions ofthe Respondent inreplacing the subject main landing gear assemblies, anywhere from two to nine months before the three subject aircraft were inspectedbythe FAA,
were responsible for the condition ofthe B-727 flying doors as characterized bythe FAA in its complaint? Failureto apply such a sanction wouldbetantamount to allowing the FAA to ignore the deadlines ofthe Litigation Schedule without penalty. Doing so would deprive Respondent of its right to due process.

1 Respondent is mindful ofJudge's standingruling to confer with opposing counsel prior to the filing motions to compel and other discoverymotions. Paragraph G, Order dated September 30, 2014. However, in this situation, there was nothing to confer about since the expert disclosure deadline was missed by Complainantby 13 days and Respondent was not prepared to offerto joinin a motion file a motion to extend the deadline. 2 Bythe date ofthe May 25, 2010 FAA inspection ofthe three subject B-727 aircraft, the operator had flown one aircraft since the main landing gear change for nine months thereby cycling the landing gear 784 times; flown another aircraft for seven months after the landing gear change thereby cycling the landing gear 628 times; and flown the third aircraft for two months after the gear change thereby cycling the landing gear 172 times. Each cycling ofthe landing gear involves two movements ofthe landing gear-- retraction after takeoffand deployment for landing.Motion for Sanctions December 2, 2014 Page 3 of5 Respondent accepts the fact that three ofthe identified expert witnesses (Lipinski, Evans and Gasche) are also fact witnesses. The fourth named expert is not a fact witness. While the fact witnesses maybe called bythe FAA or Respondent, orboth, to testify about the facts· of
. which they have personal knowledge, all four individuals mustbeprecluded from providing any experttestimony on the subject matter due to the unexplained late submission ofthe required expert disclosures. Apart from the lateness ofthe submission, the required written expert report
was notprovided to Respondent's counsel. Rule 26(a)(2) ofthe Federal Rules ofCivil Procedure require the experts designated by Complainant to provide written reports, siguedby the witnesses, that must contain a complete statement ofall opinions the witnesses will express and the basis and reasons for them; the facts or data considered bythe witnesses in forming their opinions; any exhibits relied upon bythe experts in forming their opinions; and the expert qualifications ofthe witnesses. The submission ofsuch a report is required ofnot only paid outside experts but as well those employee's ofa party thatregularly give expert testimony on behalfofthe party. Even ifany or all ofthe four named expert witnesses are not subject to the requirement of Rule 26(a)(2)(A) and (B), the expert disclosure must still include a statement establishing the qualifications ofthe witnesses to testify as an expert and the facts on which the witnesses based their expert opinion and a summary ofthe facts and opinions to which the witnesses are expected to testify. Rule 26(a)(2)(C). The Complainant's short expert disclosure statement clearly does notmeet these basic standards thereby depriving Respondent ofthe due process protections imbedded in Rule 26. As submitted, Complainant's expert statement makes impossible the formulation byRespondent's expert ofany substantive rebuttal to Complainant's expertMotion for Sanctions December 2, 2014 Page 4 of5 statement, contraryto the right to do so as set forth in the September 30th litigation schedule Order. The FAAhas admitted that it has no evidence ofthe condition ofthe three subject aircraft immediately after the Respondent changed the mainlanding gear on the three subject aircraft in late 2009 and early 2010. 3 Without contradiction, the FAA inspector did not come upon the aircraft until months after the main landing gears were replaced bythe Respondent. Given the lapse in time, it is theburden ofthe FAAto prove, on the basis ofreliable, probative and substantial evidence, that the condition ofthe aircraft when they were inspectedbythe FAA in May 2010 was the result ofRespondent's main landing gear changes months earlier. This would require expertise on the impact on the flying doors and related structures ofliterallymonths of line flight operations and none ofthe identified FAA expert witnesses is indicated as having any particular expertise involving operational wear and tear. For this additional reason, the FAA shouldbeprecluded from introducing any testimony from the four named witnesses or any other witness about the conditionofthe aircraft oncethe Respondent completed the main landing gear changes.

3 Complainant's First Response to Respondent's Second Discovery Requests, dated September 29, 2014.Motion for Sanctions December 2, 2014 Page 5 of5 Complainanthas trampled upon the right ofthe Respondent to bepresented with the details ofthe expert testimonythat could beput forth bythe FAAbyits late supplied and deficient expert disclosure statement, which makes impossible the formulation by Respondent's expert ofany substantive rebuttal. Accordingly, the Complainant respectfully requests Your Honor sanction the Complainant in accordance with the provisions ofsection 13.217(f).

Dated: December 2, 2014 Respectfully submitted, SILVERBERG, GOLDMAN & BIKOFF, L.L.P. Attorneys for AIRBORNE MAINTENANCE AND

# ::G1::G~ Robert P. Silverberg, Esq. 1101 301h Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.comEXHIBIT 1**i~/01/2014** 15:38 4043055223**F~A** REGIONAL COUNSEL



### U.S. 

### PEPARTMENT OF**TRAi~SPORTATlON** 

### OFFICE OF HEARlNGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. AIRBORNE 

### MAINTENANCE AND ENGINEERING SERVICES, Respondent. Docket No. 

### PAA-2013-0291 FAA Case No. ZOllSO:Z90032
Judge Sullivan



### ADDITIONAL EXPERT DISCLOSURES**P~GE** 02/04

In addition to the expert testimony previously disclosed by the FAA during general discovery, the 

### FAA hereby identifies the following expert disclosures pursuant to FRCP 26(a)(2)(C): 1) Inspectors Previously Identified (fran.k Lipinski, Bobby Evans, Jack Gascbe): Each of these inspectors may testify as to their personal obse.rvations ofthe aircraft 

### in question, and the condusions drawn from those observations**a~** to the condition ofthe aircraft (as it relates to the main landing gear, flying doors, and related and adjacent components). A summary ofthe personal observations, and tbe conclusions drawn, by these inspectors, have previ.ously been provided in the form oftheir statements and letters. Consistent with those statements, Inspector Evans may testify with respect to the vibration incident, including the absence of the bushing and the cause of that absence. Inspector Gasche may, as summarized in his statement, testify as to the nature ofthe damage he personally observed on the aircraft, and that, in his opinion, this damage was caused by improper rigging of the 

### 'flying doors. Inspector Lipinski may, as summarized in his statement, testify as to the nature ofthe damage he personally observed on the aircraft, the damage documented by CCIA and Respondent, and that, in his opinion, this damage was caused by improper rigging ofthe flying doors (that is, that the flying doors were not rigged in accordance with Boeing and CCIA**maintenat~ce** requiremen.ts), which was perfonued 

### by Respondent, and that the missing bushing was caused by Respondent's improper installation ofthe flying doors. 2) Michael Christensen: Specialist Christenson may be called as at1 expert witness concerning the cause of the darru!ge (and missing bushing) observed by the fAA Inspectors, CCIA personnel, and Respondent's personneL Specialist Christensen may testify that these problems were caused by improper riggi.ngoftllef!yi!lgdoorsLtll<ttj.:;,
__ .... ------------·!2/01/2014 15:38 4043055223 FAA REGIONAL COUNSEL PAGE 03/04

that the flying doors were not rigged in accordance with CCIA and Boeing maintenance requirements) by Respondent at the time the flying doors were installed. 

### As a regional specialist, Specialist Christensen serves as an authoritative technical specialist with regards to maintenance and avionics to other Aviation Safety lnspectors, fi.eld office personnel, .FAA management, other governmental/private entities, and the general public, conducting evaluation and investigation activities, both internal and external, to ensure that av.iation organizations, operators, and air carriers meet Federal Aviation Regulations, applicable laws and Flight Standards program objectives. Prior to servh1g as a regional specialist, Specialist Christensen served in the FAA as a principal inspector at the international field office. Prior to working at the FAA, Specialist Christensen served as a lead technician (A&P Mechanic and Avionics) at Delta Airlines, where he was authorized to inspect

### RII items. 

### At Delta, Specialist Christensen was trained to, and did, perform maintenance on MD-88/90, B727, B737-200f300/800/BBJ, B757, B767- 200/300/400ER, and LlOll aircraft, including MLG mainten.auce on B727 aircraft.

### _~t-- 

## ·s_l_day ofDecember, 2014.

CHRISTOPHER 

### R. S EVENSON Attorney Officeof

### th.e Regional Counsel12/01/2014 15:38 4043055223 FAA REGIONAL COUNSEL PAGE 04/04

CERTIFICATE OF SERVICE I hereby· certify that the foregoing FAA's First Response to Respondent's Second Discove,y Requests W<t$ sent:
one copy viacertified mail and facsimile to: Robert P. Silve,berg, Esq. 1101 301hStrect, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306 

# \Ooruna2

# W !l\Ot!

# u DONNA STAN EY 

### J Legal Assistant Office 

### ofthe Regional Counsel

Dated (Mailed by certified mail 

## 12·2-ltf )CERTIFICATE OF SERVICE I hereby certify that onthis 2nd day ofDecember 2014, I causedthe foregoing Respondent's Motion for Sanctions to be served uponthe following: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W1000 Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 385-8227 (original and one copy by FedEx overnight delivery) The Hon. J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Tel: (202) 366-2132 Fax: (202) 366-7536 (one copyby facsimile and First Class Mail) Christopher R. Stevenson, Attorney Office ofthe Regional Counsel, AS0-7 SouthernRegion Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 Tel: ( 404) 305-5200 Fax: (404) 305-5223 (one copyby facsimile and First Class Mail)