In the matter of 

RECEIVED 

BEFORE THE DEC 0 3 2014 

u.s. DEPARTMENT OF TRANSPORTATIONHEARING DOCKET 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Docket No. 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 of sanctions in accordance with the authority granted to the Law Judge pursuant to 

section 13.217 (f) of the Rules of Practice due to the late and unexcused filing of Complainant's 

expert disclosure statement served on Respondent by fax on December I, 2014. Exhibit 1. Your 

Honor's September 30, 2014litigation schedule specified that initial expert disclosures were to 

have been exchanged on or before November 19, 2014. Your Honor reaffirmed the applicability 

of the litigation schedule by your recent Order dated November 21,2014. Complainant neither 

sought relief from the litigation schedule Order, nor filed its disclosure statement under a motion 

for leave to 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 and testimony of the potential experts such that Respondent can present 

its rebuttal. Under the circumstances, the Complainant should be precluded from introducing the 

expert testimony of the four individuals named by the FAA in its expert disclosure statement as 
Motion 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) of the Rules of Practice addresses the situation where a party fails to 

comply with a joint procedural or discovery schedule. Where such a failure occurs, the Law 

Judge is specifically authorized to take the following action: 

(1) Strike that portion of a party's pleadings; 

(2) Preclude prehearing or discovery motions by the party; 

(3) Preclude admission of that portion of a party's evidence at the hearing, or 

( 4) Preclude that portion of the testimony of that party's witnesses at the hearing. 

Subsections (3) and ( 4) of section 13 .217(f) are the appropriate sanctions in this context. None 

of the named "experts" should be permitted to introduce any expert testimony on the issue of 

whether the actions of the Respondent in replacing the subject main landing gear assemblies, 

anywhere from two to nine months before the three subject aircraft were inspected by the FAA, 

were responsible for the condition of the B-727 flying doors as characterized by the FAA in its 

complaint? Failure to apply such a sanction would be tantamount to allowing the FAA to ignore 

the deadlines of the Litigation Schedule without penalty. Doing so would deprive Respondent of 

its right to due process. 

1 Respondent is mindful of Judge's standing ruling to confer with opposing counsel prior to the 

filing motions to compel and other discovery motions. 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 Complainant by 13 days and Respondent was not prepared to offer to 

join in a motion file a motion to extend the deadline. 

2 By the date of the May 25, 2010 FAA inspection of the 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 of the landing 

gear involves two movements of the landing gear-- retraction after takeoff and deployment for 

landing. 
Motion for Sanctions 

December 2, 2014 

Page 3 of5 

Respondent accepts the fact that three of the identified expert witnesses (Lipinski, Evans 

and Gasche) are also fact witnesses. The fourth named expert is not a fact witness. While the 

fact witnesses may be called by the FAA or Respondent, or both, to testify about the facts· of . 

which they have personal knowledge, all four individuals must be precluded from providing any 

expert testimony on the subject matter due to the unexplained late submission of the required 

expert disclosures. Apart from the lateness of the submission, the required written expert report 

was not provided to Respondent's counsel. Rule 26(a)(2) of the Federal Rules of Civil 

Procedure require the experts designated by Complainant to provide written reports, sigued by 

the witnesses, that must contain a complete statement of all opinions the witnesses will express 

and the basis and reasons for them; the facts or data considered by the witnesses in forming their 

opinions; any exhibits relied upon by the experts in forming their opinions; and the expert 

qualifications of the witnesses. The submission of such a report is required of not only paid 

outside experts but as well those employee's of a party that regularly give expert testimony on 

behalf of the party. 

Even if any or all of the 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 of the witnesses to testify as an expert and the facts on which the witnesses based 

their expert opinion and a summary of the 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 

not meet these basic standards thereby depriving Respondent of the due process protections 

imbedded in Rule 26. As submitted, Complainant's expert statement makes impossible the 

formulation by Respondent's expert of any substantive rebuttal to Complainant's expert 
Motion for Sanctions 

December 2, 2014 

Page 4 of5 

statement, contrary to the right to do so as set forth in the September 30th litigation schedule 

Order. 

The FAA has admitted that it has no evidence of the condition of the three subject aircraft 

immediately after the Respondent changed the main landing 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 by the Respondent. Given the 

lapse in time, it is the burden of the FAA to prove, on the basis of reliable, probative and 

substantial evidence, that the condition of the aircraft when they were inspected by the FAA in 

May 2010 was the result of Respondent's main landing gear changes months earlier. This would 

require expertise on the impact on the flying doors and related structures ofliterally months of 

line flight operations and none of the identified FAA expert witnesses is indicated as having any 

particular expertise involving operational wear and tear. For this additional reason, the FAA 

should be precluded from introducing any testimony from the four named witnesses or any other 

witness about the condition of the aircraft once the 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 

Complainant has trampled upon the right of the Respondent to be presented with the 

details of the expert testimony that could be put forth by the FAA by its late supplied and 

deficient expert disclosure statement, which makes impossible the formulation by Respondent's 

expert of any substantive rebuttal. Accordingly, the Complainant respectfully requests Your 

Honor sanction the Complainant in accordance with the provisions of section 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.com 
EXHIBIT 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 of the aircraft in question, 

and the condusions drawn from those observations a~ to the condition of the aircraft (as 

it relates to the main landing gear, flying doors, and related and adjacent components). A 

summary of the personal observations, and tbe conclusions drawn, by these inspectors, 

have previ.ously been provided in the form of their 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 of the 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 of the 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 of the 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 of the 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 of December, 2014. 

CHRISTOPHER R. S EVENSON 

Attorney 

Office of th.e Regional Counsel 
12/01/2014 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 via certified mail and facsimile to: 

Robert P. Silve,berg, Esq. 

1101 301hStrect, NW, Suite 120 

Washington, D.C. 20007 

Facsimile: (202) 944-3306 

\Ooruna 2 W !l\Ot! u 

DONNA STAN EY J 

Legal Assistant 

Office of the Regional Counsel 

Dated 

(Mailed by certified mail 12 · 2 -ltf ) 
CERTIFICATE OF SERVICE 

I hereby certify that on this 2nd day of December 2014, I caused the foregoing 

Respondent's Motion for Sanctions to be served upon the 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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

Tel: (202) 366-2132 

Fax: (202) 366-7536 

(one copy by facsimile and First Class Mail) 

Christopher R. Stevenson, Attorney 

Office ofthe Regional Counsel, AS0-7 

Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

Tel: ( 404) 305-5200 

Fax: (404) 305-5223 

(one copy by facsimile and First Class Mail)