In re Crash of Aircraft N93PC on July 7, 2013, at Soldotna, Alaska

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
In re Crash of Aircraft N93PC ) No. 3:15-cv-0112-HRH
) [Consolidated with
on July 7, 2013, at Soldotna, Alaska ) No. 3:15-cv-0113-HRH and
_______________________________________) No. 3:15-cv-0115-HRH]
O R D E R
RAC’s Motion in Limine No. 1
Recon Air Corporation moves to preclude plaintiffs’ expert witnesses from testifying
about airworthiness directives issued by the FAA and Transport Canada and FMS #4, which
is a flight manual supplement issued by Stolairus.1 This motion is joined by Texas Turbine
Conversions, Inc.2 This motion is opposed.3 Recon Air has withdrawn its request for oral
argument,4 and the court deems oral argument unnecessary.
Background
On July 7, 2013, a deHavilland DHC-3 “Otter” airplane operated by Rediske Air, Inc.
and piloted by Walter Rediske crashed shortly after take-off from the Soldotna Airport.
1Docket No. 208.
2Docket No. 210.
3Docket No. 269.
4Docket No. 358.
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Rediske and all of the passengers on board were killed in the crash. Plaintiffs, which are the
estates of the passengers, assert wrongful death, negligence, strict liability and breach of
warranty claims against Recon Air. Recon Air is a Transport Canada certified installation
facility.
The subject aircraft was modified in 2010. The modifications were approved under
Supplemental Type Certificates (STCs) and included a Texas Turbine Engine Conversion
and a Baron Short Takeoff & Landing (STOL) kit. The engine conversion included the
installation of a Honeywell TPE331 turbine engine. Recon Air installed both the engine and
the Baron STOL Kit.
The STC for the Baron STOL kit provided that “[p]rior to incorporating this
modification, the installer shall establish that the interrelationship between this change and
any other modification(s) incorporated will not adversely affect the airworthiness of the
modified product.”5 Recon Air does not dispute that it was “required to determine the
compatibility of the STOL Kit and the Texas Turbine conversion during installation.”6
In GATX/Airlog Co. v. United States, 286 F.3d 1168, 1171 (9th Cir. 2002) (citations
omitted), the Ninth Circuit described and summarized the process by which the FAA
develops STCs and airworthiness directives (ADs):
5Exhibit G at 1, Plaintiffs’ Opposition to Recon Air Corporation’s Motion in Limine
No. 1, Docket No. 269.
6Reply to Plaintiffs’ Opposition to RAC’s Motion in Limine No. 1at 1, Docket No.
290.
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[T]he FAA has prescribed a comprehensive set of rules and
regulations, including a multi-step certification process, for
aircraft design and production. . . . Three aspects of the design
certification process are relevant here: the type certificate,
supplemental type certificate, and airworthiness directive.
The first stage of this process is type certification, in
which airplane manufacturers seek approval of new aircraft
designs. Under federal regulations, aircraft manufacturers must
analyze and test their new aircraft designs. Based on the
resulting engineering and test data, the FAA then determines the
airworthiness of those designs. If the manufacturer demon-
strates that the design complies with federal regulations, the
FAA issues a type certificate. In most instances, the type
certificate covers an aircraft model, rather than an individual
airplane.
Any major change to an FAA-approved design then
requires additional certification in the form of a supplemental
type certificate, also known as an STC. By issuing an STC, the
FAA approves a modification to a previously-certified aircraft
design. STCs are obtained through the same process as type
certificates: the applicant must provide the FAA with sufficient
engineering and test data to demonstrate compliance with
federal regulations.
After issuing a type certificate or STC, the FAA contin-
ues to monitor the safety of the certified aircraft. The FAA may
amend, modify, suspend or revoke a certificate for airworthiness
reasons. Such an order takes the form of an airworthiness
directive and may require the aircraft owner to alter the aircraft
to maintain its certification. After the FAA issues an airworthi-
ness directive, the particular aircraft may only be operated in
compliance with that directive.
More specifically, “[t]he FAA issues an airworthiness directive addressing a product when
[it] find[s] that: (a) An unsafe condition exists in the product; and (b) The condition is likely
to exist or develop in other products of the same type design.” 14. C.F.R. § 39.5. The
process followed by Transport Canada to issue STCs and ADs is presumed to be similar.
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After the accident, in March 2014, the FAA sent two safety recommendations (SRs)
to Transport Canada:
13.239 - The Baron STOL Kit Flight Manual Supplement states
there is no change in weight and balance with regard to the aft
center of gravity.[7] Transport Canada states the center of
gravity as tested was 138.1 - 148, this does not correspond to the
original certificated [C.] G. range with DeHavilland Mod 3/746
installed for a landplane, aft limit 152.2.[8] A determination
should be made as to what the correct aft center of gravity
should be with a Baron STOL kit installed on a landplane, ski
plane and float plane.
13.240 - The flight stall characteristics should be observed with
the Baron STOL kit to see if the kit meets the requirements of
what DeHavilland was trying to prevent with the inboard stall
strips, adverse stall characteristics with an aft center of grav-
ity.[9]
Transport Canada investigated the SRs. During its investigation, it learned that
flight testing was carried out on August 19, 1994 by TCCA
[Transport Canada] test pilot Mr. Leo Galvin in a DHC-3 Otter
on EDO 7170 floats with the Baron STOL kit installed. The
modified aircraft was test flown at a forward take-off CG of
138.2” and an aft take-off CG of 145”. Mr. Galvin recom-
mended approval of the STOL kit upon flight test completion
without further CG restrictions. It is likely that Mr. Galvin had,
with his considerable knowledge and experiencing flying the
7The center of gravity is “[t]he point at which an airplane would be balanced if
suspended.” FAA Weight and Balance Handbook, Exhibit A at 3, Plaintiffs’ Opposition to
Recon Air Corporation’s Motion in Limine No. 1, Docket No. 269. CG limits are “[t]he
extreme CG locations within which an aircraft must be operated at a given weight.” Id.
8The Baron STOL kit was originally certificated in 1994.
9Exhibit F at 1, Plaintiffs’ Opposition to Recon Air Corporation’s Motion in Limine
No. 1, Docket No 269.
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DHC-3 Otter, deemed the floatplane to be the critical configura-
tion relative to the landplane and skiplane, and that further
testing of the latter configurations [was] unnecessary.[10]
But, by February 2015, a Transport Canada representative noted that “[w]e still don’t have
flight test data supporting the published CG limits for the Baseline Aircraft equipped with
the Baron [STOL] Kit” and that “[t]here is still confusion as to which published CG limit is
applicable to the Baseline Aircraft equipped with the Baron [STOL] Kit. . . .”11
In a letter dated September 8, 2016, Transport Canada finally responded to the SRs:
The Baron STOL kit modification on the DHC-3 aircraft is an
approved modification under TCCA STC number SA94-114 and
FAA STC number SA00287NY. Both the TCCA and FAA
STCs were originally issued to AOG Air Support Inc. . . . Each
STC refers to AOG Drawing Number AOG-02-001, New issue,
dated 07/06/04 for installation requirements and require TCCA
approved AOG Flight Manual Supplement No. 4, Revision 1,
dated September 29, 1994 or Revision 2, dated August 18, 2005
(or later TCCA approved revisions) for aircraft operating
limitations.
On May 04, 2007, TCCA STC # SA94-114 was transferred to
the new STC holder, Stolairus Aviation. . . . It is noted however
that the FAA ST SA00287NY is still shown as issued to AOG.
In order to properly respond to [the FAA], TCCA requested
from the current STC holder flight test data to substantiate that
the CG limits were not changed by the embodiment of the Baron
STOL kit STC.
10Transport Canada internal email (dated May 1, 2014), Exhibit 3 at 19, Memorandum
in Support of RAC’s Motion in Limine No. 1, Docket No. 209.
11Exhibit J at 1, Plaintiffs’ Opposition to Recon Air Corporation’s Motion in Limine
No. 1, Docket No. 269.
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The STC holder was not able to provide substantiating data to
support the unchanged aft CG limit, nor did it carry out flight
tests to establish a new aft CG limits. Instead, the STC holder
has decided to restrict the aft CG limit to the most forward
position identified on the aircraft’s TCDS (The limit established
for mod status without inboard stall strips installed). On May
28th 2015, the STC holder issued revision #3 to Stolairus
Aviation Inc. Flight Manual Supplement #4 to revise the aft CG
limits to 148.3 inches, regardless of aircraft confirmation
(wheels, skis and or floats).
On January 21st, 2016, TCCA issued Canadian Airworthiness
Directive CF-2016-05 mandating the use of the revised CG
limits in revision 3 of the Stolairus Flight Manual Supplement.
TCCA considers the corrective action taken to be an adequate
response to the safety issues identified [by the FAA.12]
The background section of AD CF-2016-05 read:
The investigation of a fatal crash of a turbo-propeller powered
DHC-3 aeroplane modified with a Baron STOL kit determined
the probable cause as a rearward shift in the centre of gravity
resulting in a stall during take-off.
This AD is issued to mandate revised centre of gravity limits in
order to assure adequate stall margins in all phases of flight. A
centre of gravity that is too far aft can contribute to a stall during
takeoff and may result in loss of control of the aeroplane in
other phases of flight.[13]
12Exhibit 3 at 1-2, Memorandum in Support of RAC’s Motion in Limine No. 1,
Docket No. 209.
13Exhibit 5 at 1, Memorandum in Support of RAC’s Motion in Limine No. 1, Docket
No. 209.
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The Stolairus Flight Manual Supplement (FMS #4) was revised to show that the aft
CG limit was 148.3 inches.14
On May 27, 2016, the FAA issued AD FAA 2016-10-03.15 AD FAA 2016-10-03
was prompted by mandatory continuing airworthiness (MCAI)
originated by an aviation authority of another country to identify
and correct an unsafe condition on an aviation product. The
MCAI describes the unsafe condition as an accident report that
indicated that the center of gravity was too far aft and contrib-
uted to a stall during takeoff. We are issuing this AD to correct
the center of gravity and prevent such a stall during takeoff and
loss of control during other phases of flight.[16]
After Transport Canada became aware of some comments made about AD FAA 2016-
10-03, it performed a subsequent investigation into its issuance of AD CF-2016-05. In
March 2017, a Transport Canada employee noted:
According to the NTSB final report for the July, 2013 DHC-3
Crash in Soldotna AK that was the impetus for our CF-2016-05
and FAA AD 20[1]6-10-03[,] the accident occurred with the
airplane weight exceeding the maximum gross weight of 8,000
lbs by about 21 lbs and the CG at least 5.5 inches aft of the
152.2-inch limit that was in place at the time. It was also noted
that the takeoff occurred with full flaps, which exacerbated the
situation. A flight test program that expands the CG envelope
from 148.8 aft to 152.2 would therefore not appear to present an
excessive amount of risk. From what I understand everyone
14Exhibit 4 at 2, Memorandum in Support of RAC’s Motion in Limine No. 1, Docket
No. 209.
15Exhibit 6, Memorandum in Support of RAC’s Motion in Limine No. 1, Docket No.
209.
16Id. at 1.
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operated with aft CG limits at max weight at 152.2 for 20 years
with no issues.[17]
In June 2017, Transport Canada issued a revision, AD CF-2016-05R1, which altered
the background section to read:
The investigation of a fatal crash of a turbo-propeller powered
DHC-3 aeroplane modified with a Baron STOL kit determined
the probable cause of the accident as: “operation of the airplane
outside of the weight and center of gravity limits contained in
the airplane flight manual, which resulted in an aerodynamic
stall.”
Revision 1 of this AD is issued to clarify the background
section. The initial version of this AD was issued to mandate
revised center of gravity limits that provide adequate stall
margins in all phases of flight. A center of gravity position
beyond the aft limits may contribute to a stall during takeoff and
may also result in loss of control of the aeroplane in other
phases of flight.[18]
On September 22, 2018, flight testing was conducted on a DHC-3 Otter which had a
Texas Turbine conversion and a Baron STOL kit.19 “Four flights were flown totaling 3.1
hours, at or above a maximum gross weight of 8,000 pounds with the center of gravity
varying progressively aft from approximately 146 inches to the former aft limit of 152.2 aft
17Email from Ross McGowan to Philip Tang and others, Exhibit 8 at 3, Memorandum
in Support of RAC’s Motion in Limine No. 1, Docket No. 209.
18Exhibit 9 at 1, Memorandum in Support of RAC’s Motion in Limine No. 1, Docket
No. 209.
19Exhibit 10, Memorandum in Support of RAC’s Motion in Limine No. 1, Docket No.
209.
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of datum.”20 “The flight test results were unremarkable and demonstrated the aircraft is
easily flown with one hand in the landing configuration at or above maximum gross weight
at a C.G. of 152.2 at any power setting.”21
One of the experts disclosed by plaintiffs is Colin Sommer. His expert report was
disclosed on December 22, 2016. In that report, Sommer opined:
3. Installation of the STOL kit by Recon changed the center
of gravity envelope for the aircraft. The aft of limits
center of gravity during the subject flight was exacer-
bated by the STOL kit installation.[22]
In the discussion section of his report, Sommer explained that “[f]ollowing [the] crash,
Transport Canada issued Airworthiness Directive (AD) CF-2016-05, which revised the
center of gravity limits for DHC-3 aircraft that have the Baron STOL kit installed” and that
“[i]n conjunction with this AD, a new flight manual supplement [FMS #4]was issued by
Stolairus Aviation Inc. and the aft CG limit was changed to 148.3 inches”23 from the previous
152.2 inches.24 Sommer further explained that
[t]he change in center of gravity limits, due to Recon’s installa-
tion of the STOL kit likely exacerbated the aft of limits CG
20Id. at 2.
21Id.
22Report of Findings at 21, Exhibit 3, Memorandum in Support of RAC’s Motion in
Limine No. 4 (Colin Sommer), Docket No. 343.
23Id. at 19.
24Id. at 20.
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configuration during the subject flight; which would have been
unbeknownst to pilot Rediske. Recon failed to investigate and
determine the change in the center of gravity envelope due to the
installation of the STOL kit.[25]
Recon Air now moves to exclude Sommer and any of plaintiffs’ other experts from
testifying about the airworthiness directives (ADs) and FMS #4 on the grounds that these
documents are inadmissible.
Discussion
“Rule 401 defines relevant evidence as ‘evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.’” McCollough v. Johnson,
Rodenburg & Lauinger, LLC, 637 F.3d 939, 953 (9th Cir. 2011) (quoting United States v.
Curtin, 489 F.3d 935, 943 (9th Cir. 2007)). “If evidence is relevant, it is generally admissible
under Federal Rule of Evidence 402.” Id. “However, relevant evidence must be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” Id. “‘Unfair prejudice . . . means an undue tendency
to suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.’” Green v. Baca, 226 F.R.D. 624, 634 (C.D. Cal. 2005) (quoting United States v. Allen,
341 F.3d 870, 886 (9th Cir. 2003)).
25Id.
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First, Recon Air argues that the ADs and FMS #4 are irrelevant because they were
issued after the accident and thus can have no bearing on the duties and obligations imposed
on Recon Air in 2010. Recon Air explains that in order for an aircraft to be legally flown in
the United States it must have a current airworthiness certificate. The accident aircraft was
issued a U.S. Airworthiness Certificate in December 2010 and thus Recon Air argues that the
directives and requirements in place at that time are what is relevant, not those that were put
in place later.
Plaintiffs, however, argue that the ADs and FMS #4 are relevant. Plaintiffs contend
that “[a]lthough in theory it is true an installer cannot adhere to something that doesn’t exist
at the time of installation, this is not the issue.”26 Rather, according to plaintiffs, the issue
here is that an installer must determine the compatibility of its modifications, a requirement
that is plainly set out in the STCs themselves. Plaintiffs contend that the ADs demonstrate
that the STC for the Baron STOL kit was based on incorrect data and that the STC at the time
of installation was defective. Thus, plaintiffs argue that it follows that if Recon Air had
fulfilled its duty to ensure compatibility of the STCs, it would have discovered the defect in
the Baron STOL kit STC. In short, plaintiffs argue that the ADs are relevant to show that
an unsafe condition existed at the time the accident aircraft was modified and that if Recon
26Plaintiffs’ Opposition to Recon Air Corporation’s Motion in Limine No. 1 at 10,
Docket No. 269.
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Air had fulfilled its duties as an installer (by flight testing, for example), it would have
discovered this unsafe condition.
What plaintiffs seem to be arguing here is that there may have been an unsafe
condition on the accident aircraft after the 2010 modifications were completed, an unsafe
condition that Recon Air could have discovered if had done flight testing after the
modifications. The ADs and FMS #4 relate to this issue and thus may be relevant.
But even if the ADs and FMS #4 are relevant, Recon Air argues that they should still
be excluded because they are inadmissible hearsay.
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
FRE 801. Hearsay is not admissible unless an exception applies. FRE 802. Recon Air
argues that there can be no dispute that the ADs are hearsay because plaintiffs are offering
them to prove that the aft center of gravity limit of 152.2 inches was incorrect.
Plaintiffs disagree. Plaintiffs first argue that the ADs are not hearsay, or at least that
the FAA AD is not hearsay, because they are “laws.” FAA ADs “are part of the Code of
Federal Regulations” and “are legally enforceable rules. . . .” 14 C.F.R. §§ 39.3; 39.13.
“Laws are not hearsay, because they are not assertions of anything.” Aubert v. Elijah, Case
No. 1:07–cv–01629-LJO–GSA–PC, 2013 WL 5921859, at *2 (E.D. Cal. Oct. 31, 2013).
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This argument fails. As the court in Aubert explained, “[a] law must be authenticated
before being placed in evidence, because it must be established that it was the law at the
relevant time. There should be no confusion for the jury if the law is properly authenticated
and the only part of the law admitted is the relevant part” Id. at *3. If an AD is considered
“a law”, as plaintiffs argue, there can be no doubt that the ADs in question were not “the law
at the relevant time[,]” id., which is either 2010, the year in which the modifications were
completed on the accident aircraft, or 2013, the year in which the accident occurred.
Plaintiffs next argue that the ADs and FMS #4 are admissible pursuant to Rule 803(8),
Federal Rules of Evidence. Rule 803(8) provides that “[t]he following [is] not excluded” as
hearsay:
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report,
but not including, in a criminal case, a matter observed by
law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness.
“Public records and reports falling under Rule 803(8)[] are presumed trustworthy, placing
‘the burden of establishing untrustworthiness on the opponent of the evidence.’” Montiel v.
City of Los Angeles, 2 F.3d 335, 341 (9th Cir. 1993) (quoting Keith v. Volpe, 858 F.2d 467,
481 (9th Cir.1988)). Plaintiffs contend that Recon Air is arguing that the ADs and FMS #4
are not trustworthy because Transport Canada did not conduct any flight testing. But,
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plaintiffs argue that this argument ignores the investigation that Transport Canada did after
it received the SRs from the FAA, an investigation which involved engineers and aircraft
certification specialists who reviewed and analyzed all the available data.27 Plaintiffs also
argue that it is disingenuous for Recon Air to suggest that Transport Canada should have
done flight testing when Recon Air’s entire ground for its motion for summary judgment is
that it was not required to do flight testing after modifying the accident aircraft.
Some courts have admitted ADs under Rule 803(8). See, e.g., Melville v. Amer.
Home Assur. Co., 584 F.2d 1306, 1316 (3rd Cir. 1978) (ADs admissible because “they
pertain to classes of planes which are similar to the one which crashed in this case”). But
other courts have excluded ADs due to a lack of trustworthiness. See, e.g., In re Air Crash
Near Roselawn, Indiana, Case No. 5 C 4593, MDL 1070, 1997 WL 572896, at *1 (N.D. Ill.
Sept. 10, 1997) (excluding “all post-accident government actions in this case, including the
FAA Airworthiness Directives and Flight Safety Information Bulletins and the NTSB Safety
Recommendations” because these reports “lack trustworthiness because each government
agency involved in the post-accident investigation was subject to different agendas and
fact-finding methodology which could undermine and confuse the jury’s distinct function in
this case”). Here, the evidence shows that Transport Canada issued its AD because Stolairus
would not, or could not, provide any flight testing to substantiate an aft center of gravity limit
27See Exhibit 3, Memorandum in Support of RAC’s Motion in Limine No. 1, Docket
No. 209.
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of 152.2 inches, but that it did so without doing any of its own flight testing. In short,
Transport Canada made the decision to issue an AD restricting the aft CG limit to the most
forward position because it could not get any substantiating data from Stolairus. The FAA
in turn issued its AD based on the Canadian AD. The evidence shows that the ADs and FMS
#4 were not the products of a complete and thorough investigation, which makes their
trustworthiness questionable. Moreover, the ADs and subsequent revision to FMS #4 can
hardly be considered trustworthy in light of the 2018 flight testing that was done, which
showed that an aft center of gravity limit of 152.2 inches was safe. Because they lack
trustworthiness, the ADs and FMS #4 are not admissible under Rule 803(8).
But even if the ADs and FMS #4 were not inadmissable hearsay, which they are, they
would still be subject to exclusion as they are overly prejudicial and would be misleading to
the finder of fact. The probative value of these documents would be outweighed by the
inherent risk that the jury would put undue weight on these documents because they were
issued by government agencies. See, e.g., Martin v. Cavalier Hotel Corp., 48 F.3d 1343,
1357-58 (4th Cir. 1995) (affirming district court’s exclusion of state agency report because
of likelihood jury would place undue weight on it). In addition, these documents could
mislead the finder of fact because while neither agency was tasked with investigating the
accident and neither determined a probable cause of the accident, the ADs imply that the
agencies determined a cause of the accident.
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Conclusion
Recon Air’s motion in limine No.128 is granted. The ADs and FMS #4 are excluded.
Plaintiffs’ experts are precluded from testifying about or relying on these documents.
DATED at Anchorage, Alaska, this 21st day of April, 2020.
/s/ H. Russel Holland
United States District Judge
28Docket No. 208.
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