JOHN ANTOON II, United States District Judge.
On January 4, 2013, a 1957 Beechcraft Bonanza H35 airplane, U.S. registry N375B ("N375B"), crashed while approaching Runway 29 at the Flagler County Airport in northeast Florida for an
Anders is survived by two daughters, and Peoples is survived by two sons. The estates of Anders and Peoples sued the United States ("the Government") under the Federal Tort Claims Act (FTCA),
In 2008, Anders purchased N375B, a single-engine plane with retractable landing gear, for his personal use. (Stipulated Facts
Sanders checked the compression in N375B's engine and confirmed Anders' belief that the engine was running poorly. (Sanders Dep., Doc. 141, at 19).
After that work was completed, Anders asked whether Sanders could perform an annual inspection on N375B. (Sanders Dep. at 35). When Sanders told Anders that he could not do the inspection immediately but could schedule it for a later time, Anders responded that he could not wait and that he would get the inspection done in the Caribbean or somewhere else. (
On December 22, 2012, N375B — with Anders, Peoples, and Shaw onboard — flew from Ft. Pierce, Florida, to St. Croix, U.S. Virgin Islands, refueling in the Grand Turks and Caicos along the way. (Stipulated Facts ¶ 9). On January 3, 2013, after spending the holidays in the Caribbean, the trio began their trip home. (
Chris Sullivan, a line service technician at the St. Lucie County International Airport in Ft. Pierce, greeted Anders when N375B arrived on January 4. As Anders and his passengers entered the U.S. Customs building there, Sullivan noticed that N375B was weathered — with chipped paint on the leading edge of the wing — and that the aircraft was very lopsided, leaning to the left. (Trial Tr. Day 7 (a.m.), Doc. 159, at 82 & 98). Anders requested refueling of the aircraft. (
As Sullivan was preparing to tow N375B for fueling, he noticed oil on the nose strut. (
Sullivan also heard Anders mention something about a fuel pump issue to Shaw. (
At approximately 1:11 p.m. Eastern Standard Time
Just after departing Ft. Pierce, at 1:17 p.m., Anders contacted an air traffic control facility in Miami and requested "flight following" services. (Stipulated Facts ¶ 14; Aircraft Accident Package, Pls.' Ex. 14A, at Bates US000081-82). With this request, Anders was asking that the controllers watch him as he traveled across the southeastern United States, meaning that controllers would provide him with information regarding alerts and traffic advisories. (
About thirty minutes after leaving Ft. Pierce, N375B neared the airspace covered by the terminal radar approach control (TRACON) facility located at the Daytona Beach International Airport (the Daytona airport). The controllers working in the Daytona airport TRACON were responsible for various sectors of airspace. Those directly involved with N375B on January 4, 2013, were Lance Palmer in the "Mateo" position, which covers aircraft flying at an altitude between 4000 and 11,000 feet, (
Palmer was trained as a controller while serving in the United States Air Force. (Trial Tr. Day 2 (a.m.), Doc. 126, at 66). After completion of his training, he spent nine years as an Air Force controller. (
Hill was trained as a controller while serving in the United States Marine Corps; he served four of his eight years in the Marine Corps as a controller. (Trial Tr. Day 2 (p.m.), Doc. 131, at 88). While in the Marine Corps, Hill directed nearly 10,000 surveillance approaches. (
Raulerson became an FAA controller in 1991 and worked at the Daytona airport from 1999 until his retirement in 2014. (Raulerson Dep., Doc. 149, at 23, 26-27).
The roles of Hans and Gambino in dealing with N375B were limited. Hans was a veteran controller but was the Developmental Mateo Arrival Coordinator working under Palmer's supervision when N375B entered Daytona's airspace. He was trained as a controller in 2003 while in the United States Air Force and has worked in that capacity ever since. (
At 1:49:34 p.m. on January 4, Anders made contact with Hans as N375B entered the Daytona TRACON's airspace from the south. (Mateo Tr., Gov't's Ex. 93, at 2; Mateo Radar Replay and Audio ("Mateo Audio"), Gov't's Ex. 76, at 1849:34). About eight minutes later, N375B began to enter a layer of clouds, and Anders asked Hans for clearance to climb to 6500 feet, saying he wanted to "climb out of this. I'm getting in the soup here." (Mateo Tr. at 6; Mateo
The Daytona controllers did not hear from Anders again for over five minutes. But at 2:07:01, Anders announced that he had a vibration in the propeller and needed "some help here." (Mateo Tr. at 10; Mateo Audio at 1907:01). At that time, N375B had just flown to the west of both the Daytona airport and the Ormond Beach Municipal Airport (the Ormond airport) and was nearing the Flagler County Airport
Palmer considered the situation an emergency, immediately terminated Hans's training and responsibility at the Mateo position, and promptly responded by advising Anders that "the closest airport" — referring to the Flagler airport — was almost straight ahead ("twelve to one o'clock") five miles away and asked Anders if he was "IFR capable and equipped." (Mateo Tr. at 10; Mateo Audio at 1907:09; Trial Tr. Day 2 (a.m.), Doc. 126, at 114). At 2:07:19, Anders reported to Palmer, "I'm IFR we're just we're getting a little vibration we've got an oil pressure problem we're going to have to drop quickly here." (Mateo Tr. at 10; Mateo Audio at 1907:19). Without delay, Palmer responded to Anders' request and cleared him to the Flagler airport via radar vectors, telling him to "descend and maintain 2000 on [his] present heading." (Mateo Tr. at 10; Mateo Audio at 1907:23). In doing so, Palmer was
When Anders reported the propeller vibration, Palmer informed Raulerson, the front line manager, that he had an emergency and needed help at his radarscope. (Trial Tr. Day 2 (p.m.), Doc. 131, at 10 (Palmer Test.);
Palmer responded, "Okay the best we can do is an RNAV [approach] at that airport or we can reverse course uh back to Daytona uh is the only precision approach we have in our airspace for the ILS Daytona." (Mateo Tr. at 11; Mateo Audio at 1908:26). RNAV stands for "area navigation," (Manual at 1-2-6), and an RNAV approach is an instrument approach procedure that "relies on aircraft area navigation equipment for navigational guidance," (Manual at Pilot/Controller Glossary PCG R-6). An ILS or "Instrument Landing System" approach is an instrument approach that includes, among other things, a localizer component and a glideslope component; a glideslope "[p]rovides vertical guidance for aircraft during approach and landing." (Manual at Pilot/Controller Glossary PCG I-4;
After receiving the option of turning back to the Daytona airport, and without asking Palmer how far away the Daytona airport was, Anders told Palmer at 2:08:37, "We don't need a precision approach is there anything with a localizer or anything VFR?" (Mateo Tr. at 11; Mateo Audio at 1908:37). Palmer answered, "No all of our airports right now are IFR uh all ceilings are uh hovering right around 900 uh to a thousand feet." (Mateo Tr. at 12; Mateo Audio at 1908:41). Having been advised of these options, Anders told Palmer at 2:08:50, "Take the nearest one and try to break out at a thousand but
Palmer then relayed to Anders, "We can do a surveillance approach and guide you into the airport uh you okay with that?" (Mateo Tr. at 12; Mateo Audio at 1908:54). Anders immediately answered, "Lovely with that." (Mateo Tr. at 12; Mateo Audio at 1908:59). Just short of two minutes had passed from the time Anders reported a propeller vibration until he told Palmer that he was "lovely" with a surveillance approach to the Flagler airport. Palmer then told Anders at 2:09:01 to descend to 2000 feet and to contact Daytona approach — the North Arrival position — and provided the frequency. (Mateo Tr. at 12; Mateo Audio at 1909:01). Anders again thanked Palmer for his help. (Mateo Tr. at 12; Mateo Audio at 1909:06).
Hill, who was manning the North Arrival radarscope, had heard Palmer declare the emergency and knew that he would soon take over responsibility for N375B as it descended. When Palmer handed the flight off to Hill, N375B was approximately 3 miles southwest of the Flagler airport at an altitude of 7000 feet. (Trial Tr. Day 3 (a.m.), Doc. 133, at 3 (Hill Test.)). Due to the high altitude of the plane, Hill planned to guide N375B over or just to the west of the Flagler airport and then turn it toward the east on the north side of the airport before turning it to the south on a five-mile base leg and a four-mile final approach to Runway 29, (Trial Tr. Day 2 (p.m.), Doc. 131, at 104), which runs in roughly a northwesterly direction from the southeast side of the airport.
At 2:09:13, Anders made contact with Hill as instructed by Palmer and let him know that he was on his frequency and that N375B was at 7000 feet and descending to 2000 feet. (North Tr., Gov't's Ex. 94, at 2; North Radar Replay and Audio ("North Audio"), Gov't's Ex. 76, at 1909:13). Hill quickly responded, "Roger, descend and maintain 3000," adjusting the 2000-foot altitude that Palmer had initially assigned because there is an antenna north of the Flagler airport and the minimum vectoring altitude
About forty seconds later, at 2:11:06, Anders reported, "We've got zero oil pressure but we've got cool cylinder head temperature." (North Tr. at 3; North Audio at 1911:06). At the time of this report, N375B was about 2 miles north-northwest of the Flagler airport at an altitude of 5100-5300 feet. (
At 2:12:12, Hill radioed Anders, "Turn right one one zero, descend and maintain and urn maintain 2000, we are gonna keep you in within about five miles from the airport." (North Tr. at 3; North Audio at 1912:12). Anders answered: "Roger that, over to one one zero and we're four point three down to two." (North Tr. at 3; North Audio at 1912:19). Watching the progress of N375B on his radarscope, at 2:13:12 Hill directed Anders to again turn right to heading one five zero. (North Tr. at 4; North Audio at 1913:12). Anders did not immediately respond, so Hill repeated this instruction eight seconds later. (North Tr. at 4; North Audio at 1913:20). Anders then answered, signaling compliance with the right turn instructions and stating that he was at 3400 feet descending to 2000 feet. (North Tr. at 4; North Audio at 1913:24). At 1913:46, Hill told Anders that N375B was "about six miles east north east of the field" and to "turn right one eight zero." (North Tr. at 4; North Audio at 1913:46). Hill also advised Anders at that time that he was "on the base leg for about a four and a half to five mile final" approach. (North Tr. at 4; North Audio at 1913:46). Anders confirmed that he was on a "straight south" heading and that his altitude at that time was 2700 feet; he also reported that he was "starting to see some ground here," indicating a break in the clouds. (North Tr. at 4; North Audio at 1913:55).
At, 2:14:27, Hill instructed Anders to "descend and maintain 1600, fly heading two zero zero." (North Tr. at 4; North
Hill then told Anders that N375B was "right of course and correcting, four and a half miles from runway." (North Tr. at 5; North Audio at 1915:26). Anders calmly confirmed: "Four and a half miles from runway, thank you." (North Tr. at 5; North Audio at 1915:34). Hill again advised Anders to turn right, this time to "two niner zero" and that doing so would put N375B at "four miles straight in." (North Tr. at 5; North Audio at 1915:36). In that transmission, Hill again reminded Anders that the "minimum descent altitude" for the RNAV approach on Runway 29 was 560 feet. (North Tr. at 5; North Audio at 1915:36). Anders responded "roger" and stated that he was at 1200 feet and descending. (North Tr. at 5; North Audio at 1915:50).
Because the plane continued to turn slowly, Hill had Anders make frequent adjustments to keep N375B on course. (Trial Tr. Day 3 (a.m.), Doc. 133, at 8-9). At 2:15:54, Hill again told Anders to turn right three one zero and again informed him he was "four miles straight in." (North Tr. at 6; North Audio at 1915:54). Anders calmly acknowledged, "Three one zero, four miles straight in." (North Tr. at 6; North Audio at 1916:02). About twenty seconds later, Hill repeated the same "three one zero" heading and advised that N375B was three miles from the runway. (North Tr. at 6; North Audio at 1916:23). Five seconds after that, Hill told Anders to advise when he had the airport in the sight, that the control tower at the Flagler airport had cleared him to land on Runway 29, and that he was slightly left of course but correcting. (North Tr. at 6; North Audio at 1916:28). At 2:16:46, Hill told Anders to adjust his course to three two zero, informed him that he was two and a half miles from the runway, and reminded him to advise when he had the airport in sight. (North Tr. at 6; North Audio at 1916:46). And at 2:17:07, Hill repeated the "three two zero" heading and told Anders that he was two miles from the runway. (North Tr. at 6; North Audio at 1917:07).
Hill had lost contact with Anders. The last transmission from Anders had been at 2:16:02, and at 2:17:15 — after several of Hill's transmissions were not acknowledged — Hill asked, "seven five bravo, you still with me?" (North Tr. at 6; North Audio at 1917:15). Hill did not get a response, but he instructed Anders to contact the Flagler tower and that if he did not have the airport in sight to "climb straight ahead to 2000" feet. (North Tr. at 7; North Audio at 1917:25). At 2:17:59, Hill heard Anders ask, in an urgent tone, "seven five bravo three seven five bravo do you read me?" (North Tr. at 7; North Audio at 1917:59). Hill responded, "Loud and clear," and asked at 2:18:01 if Anders had the airport in sight at "twelve o'clock and a mile." (North Tr. at 7; North Audio at 1918:01). Almost simultaneously, at 2:18:02, Dwayne Glass — a controller at the Flagler tower — reported to Raulerson that he had the plane in sight "right on the treeline"
The last communication from Anders came at 2:18:27, when he transmitted, "seven five bravo three seven five bravo, we need help, we're coming in with smoke." (North Tr. at 7; North Audio at 1918:27-1918:31). Hill responded at 2:18:32 that the Flagler tower was waiting for N375B and that the plane was cleared to land. (North Tr. at 7; North Audio at 1918:32). About thirty seconds later, at 2:19:00, the Flagler tower informed Daytona that the plane "did not make it." (North Tr. at 7; North Audio at 1919:00-19:19:04).
Two witnesses — Flagler tower controller Dwayne Glass and Flagler airport director LeRoy Seiger — testified about seeing the plane approaching the Flagler airport. Neither could attest to whether the plane's landing gear was down when they saw it approaching. (
Examination of the wreckage revealed that the connecting rod in the number four cylinder in the engine had separated and
Anders never advised the Daytona controllers that he lost power, that he could not maintain altitude, or that he could not navigate. Nor did Anders report that either he or Shaw suffered from a loss of sense of awareness. Although slow in making turns, throughout his contact with the controllers — up until 2:17:19, when his tone became more urgent — Anders remained calm and responsive to instructions.
At trial, the Plaintiffs called fourteen witnesses, seven of whom offered testimony in support of Plaintiffs' theory of liability. Of the seven liability witnesses, three were expert witnesses offering opinion testimony: Paul Fagras, an air traffic controller; Dr. Lee Branscome, a meteorologist; and Keith Mackey, a pilot and airplane mechanic. The Government called seven witnesses, six of whose testimony related to liability. Of the six liability witnesses, two were experts: William Turner, an air traffic controller, and Dr. L. Ray Hoxit, a meteorologist.
The trial of this case was unusual with regard to the witnesses the parties elected not to call. Originally, Plaintiffs indicated that they would call controllers Palmer and Hill, but at the last minute, Plaintiffs announced that they would not call either of them in their case-in-chief. The Government had also intended to call Palmer and Hill, so the Court took their testimony out of turn during Plaintiffs' case to avoid these witnesses' having to make another trip to Orlando.
Plaintiffs also announced that they intended to call Douglas Herlihy, an accident reconstruction expert. The Government objected on grounds that Herlihy had not been listed as a witness for the Plaintiffs' case-in-chief but only as a rebuttal witness. The Court sustained the objection, creating the unusual circumstance of Plaintiffs not having an accident reconstruction expert to give testimony as to the cause of the accident. Probably because the Plaintiffs did not present opinion testimony as to the cause of the accident, the Government elected not to present the testimony of Dr. Kenneth Orloff, its accident reconstruction expert. Thus, there was no trial testimony from any accident reconstruction expert.
Three motions to strike were made during the trial: a written motion (Doc. 119) by Plaintiffs to strike the deposition transcript of Gary Shimon, and ore tenus motions by the Government to strike the testimony of Plaintiffs' air traffic control expert, Fagras, and their piloting and aircraft mechanic expert, Mackey. Plaintiffs' motion was briefly discussed at trial and deemed moot, (
After Plaintiffs' air traffic control witness, Fagras, testified, the Government moved to strike his testimony on the basis that Fagras copied portions of his expert report and then denied doing so under oath. The Court denied the motion but announced that it would consider Fagras's conduct in weighing his testimony. That ruling is explained here.
Before trial, Plaintiffs identified Fagras as their air traffic control expert. During a pretrial deposition, the Government asked Fagras if he had talked to any of the other experts in the case, and he responded that he had not. (Fagras Dep. Excerpt, Doc. 130-2, at 3). Fagras acknowledged in his deposition that he had read other experts' reports but denied relying on those reports or taking anything from other expert reports and putting it in his own report. (
Because of his training and experience as an air traffic controller, the Court qualified Fagras to give expert opinion testimony at trial under Federal Rule of Evidence 702. During cross-examination, the Government confronted Fagras with portions of his report that were substantially similar to portions of the report of Plaintiffs' piloting expert witness, Mackey; some parts of Fagras's report were, in fact, word-for-word identical to Mackey's report. (
At the end of the first week of trial, with the motion to strike still pending, Plaintiffs again called Fagras to the stand. This time, Fagras admitted that his earlier testimony as to authorship of his expert report was false. He explained that parts of his report were not written by him; he obtained those portions not from Mackey's report but from a summary document prepared and provided to him by Plaintiffs' counsel. Fagras went on to say that his earlier misleading and false claims of authorship were the result of his uncertainty as to whether he should disclose Plaintiffs' counsel as the source of the language he incorporated into his report. (Trial Tr. Day 5 (p.m.), Doc. 150, at 70). In the end, Fagras decided that rather than reveal that information, he would testify falsely. And he did just that.
In Plaintiffs' opposition to the Government's motion to strike Fagras's testimony (Doc. 144), Plaintiffs' counsel defended Fagras's conduct, maintaining that generally it is permissible for counsel to provide factual information to an expert witness for consideration and use by the expert — with no attribution — in forming an opinion. Alternatively, counsel sought to excuse Fagras's conduct and rehabilitate his credibility. These arguments fail.
It is true that Federal Rule of Civil Procedure 26(a)(2)(B) does not prohibit counsel from providing needed assistance to experts in preparing their reports.
In the failed effort to rehabilitate Fagras's credibility, Plaintiffs' counsel offered several arguments. First, counsel suggested that Fagras's mendacity should be excused because of his inexperience testifying as an expert witness. Next, counsel attempted to mitigate Fagras's conduct by explaining that he testified falsely only to avoid disclosing that Plaintiffs' counsel was the author of the copied material. In other words, Fagras believed he had a duty to protect counsel and that that duty trumped his oath to tell the truth. He considered himself to be a member of "Plaintiffs' team" and he wanted to make sure he did nothing to impede the team's success. This proffered explanation of loyalty to Plaintiffs' counsel is not an excuse, but it may explain why some of Fagras's air traffic control opinions are in conflict with a plain reading of the Air Traffic Control Manual (Pls.' Ex. 108A).
Plaintiffs' counsel also contended that Fagras's untruthfulness should be overlooked because of his long service as a federal employee. This argument makes no sense and is an insult to all federal employees; it suggests that they be held to a lower standard and that their oath to tell the truth is somehow less important. If anything, however, the public is entitled to expect that long government service would reinforce a witness's resolve to give truthful testimony.
Finally, Plaintiffs' counsel argued that Fagras's sense of guilt and remorse weighs in favor of his credibility. But Fagras's contrition has little to do with whether he intentionally misled the Court by giving false testimony. And regardless of how sincere Fagras's regret may be, it was slow to develop; it was not until the falsity of his testimony was plainly obvious that he confessed. When first given an opportunity to correct the false statement that he made in his deposition, Fagras dug in, steadfastly denying the plagiarism.
The Court denied the motion to strike but advised counsel that it would take Fagras's false and misleading statements into account in assessing his testimony. Because this is a case brought under the Federal Torts Claim Act, the Court is the finder of fact and it is the Court's responsibility to consider the evidence, including the testimony of witnesses. In weighing the credibility of witnesses, the Court considers the same factors that it instructs juries to consider, including "whether there is evidence that [the] witness testified falsely about an important fact" and, "if a witness misstated something, ... whether [that] was because of an innocent lapse in memory or an intentional deception," Eleventh Circuit Pattern Jury Instruction (Civil) 3.5.1. Fagras did testify falsely about important facts, and his false statements were not because of a mistake or lapse of memory.
For various reasons, Fagras's opinion testimony was unpersuasive. But it was his false and misleading testimony as to the source of his report that gave rise to the Government's motion to strike his testimony. Although the motion was denied, Fagras's untruthfulness further eroded any confidence the Court would have had in his opinions. Thus, the Court finds Fagras's testimony regarding causation, duty of care, and alleged breaches of duty of care unreliable.
Mackey testified as Plaintiffs' piloting and aircraft mechanic expert, and during trial his opinion testimony regarding N375B's engine was drastically different from the opinions contained in his pre-trial expert report. The Government moved to strike Mackey's inconsistent trial opinions. The Court denied that motion during trial and now further explains its ruling.
In his report, Mackey opined: "At [2:07:01] the pilot reported `a vibration in the prop.' ... Unknown to the pilot, the vibration was caused by the failure of the number 4 cylinder connecting rod." (Mackey Report, Gov't's Ex. 188,
As the Government notes, Plaintiffs relied on these opinions at the January 2017
But at trial, Mackey's testimony was very different. He backed off his opinion that the connecting rod punched a hole in the crankcase at or just before 2:07:01, attesting instead that the propeller vibration was due to a "bearing starting to fail." (Trial Tr. Day 4 (p.m.), Doc. 142, at 51). Mackey came up with another explanation for the mechanical problem and loss of oil pressure; his revised opinion was that the distance between the bearing and journal widened, and oil squirted out, causing the oil pressure to drop. (
The changes in Mackey's opinion are troubling. First, when asked, he did not know the prescribed distance between the bearing and the journal. And although at trial he claimed that there was not yet a hole in the crankcase when Anders first experienced the vibration or even when he reported zero oil pressure, Mackey could not say how much oil pressure there was. Mackey even suggested that Anders may have exaggerated when he reported zero oil pressure. In an attempt to explain why Anders would falsely report zero oil pressure to the controllers trying to help him, Mackey mused that perhaps Anders wanted to get the controller to "appreciate the seriousness of his situation, and not alarm his passengers." (Trial Tr. Day 5 (a.m.), Doc. 145, at 9). This is a feeble attempt to make the implausible plausible. Of course the controllers understood the seriousness of the problem; Anders had already told them about the vibration and the drop in oil pressure. And it is unclear how Mackey's report of "zero oil pressure" — rather than merely "low oil pressure" or "falling oil pressure" — would comfort his passengers. At any rate, this is mere speculation on Mackey's part.
Mackey's new opinion is not reliable. The descent, which Mackey now attributes to a flat-pitch propeller creating drag, is just as likely explained by Hill's communication to Anders at 2:15:36 that he could "descend to [the] minimum descent altitude" and the likelihood that Anders followed that instruction as he had followed others. (North Tr. at 5; North Audio at 1915:36). And if N375B had suffered an engine failure while Anders was communicating with Hill, it is a difficult to imagine that Anders would not have told Hill about it. Instead, at 2:16:02, Anders responded to Hill's statement to "slightly turn right three one zero, three one zero four miles straight in," by calmly repeating "three one zero four miles straight in." (North Tr. at 6; North Audio at 1915:54-1916:02). Anders did not mention loss of power, and he remained very calm in his transmissions.
At trial, Mackey, having retreated from his earlier opinion, was unable to state when the engine failed. He also alluded to the possibility that drag caused by the premature lowering of N375B's landing gear led to the sharp descent:
(Trial Tr. Day 4 (p.m.), Doc. 142, at 102). No evidence was presented at trial that Anders lowered the landing gear, but Mackey noted that possibility without explaining how he concluded that landing gear did not create the drag. But in the end, he admitted that he does not know when the engine lost power.
There are two possibilities for Mackey's change in testimony. The first is that, as he said, after an opportunity for further inspection and reflection, he changed his mind. The other, suggested by the Government, is that he realized that his original opinion as to when the engine failed would not withstand scrutiny and changed his views to accommodate Plaintiffs' case. Unfortunately, the second possibility is more feasible. After Plaintiffs filed Mackey's report, the Government's accident reconstruction expert filed his report and testified at a
Regardless of the reason for Mackey's change of mind, Plaintiffs' counsel failed to supplement Mackey's expert report. Mackey's new opinions were formed about a month before trial, and he discussed them with several of Plaintiffs' attorneys. Yet, Plaintiffs' counsel failed to file a supplemental expert report or do anything to put the Government on notice of Mackey's modified opinions. At the conclusion of cross-examination, counsel for the Government, relying on Federal Rule of Civil Procedure 37(c), moved to strike Mackey's trial testimony in its entirety for failure to file a supplementary expert report. The Rule permits courts to impose sanctions for failure to supplement information as required by Rule 26(e)(2).
The Court denied the Government's motion to strike Mackey's trial testimony, but it does, however, take the circumstances surrounding the changes and how they were made into account in assessing his trial testimony.
Under the FTCA, the Government may be held liable for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting with the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Here, the alleged acts or omissions occurred in Florida, and thus Florida substantive law applies.
To establish a negligence claim in a wrongful death case, "a plaintiff must allege and prove (1) the existence of a legal duty owed to the decedent, (2) breach of
Defining the standard of care and what constitutes a breach of duty of controllers assisting a pilot in an emergency is beyond the understanding of the average finder of fact, whether jury or judge. Thus, testimony from an air traffic control expert is ordinarily essential.
To explain the duties of controllers, Fagras relied in part on the procedures and phraseology promulgated by the FAA. These procedures are largely contained in what is referred to as the Air Traffic Control Manual. The FAA periodically reviews the Manual and modifies it as needed. The Manual in effect at the time of the crash at issue was incorporated in JO Order 7110.65U, effective February 9, 2012 (Manual, Pls.' Ex. 108A). At trial, in some instances Fagras did not rely on specific provisions of the Manual but instead purported to rely on his own experience.
Before addressing Fagras's specific claims of breach, it is important to note that apart from his false testimony as to authorship of his expert report, some of his opinions further diminished his credibility. As pointed out by the Government, to advance Plaintiffs' positions Fagras at times "ignored, and even contradicted, explicit provisions in the [Manual] when those provisions did not suit Plaintiffs' case." (Gov't's Mem., Doc. 169, at 5).
Relying on Fagras's testimony, Plaintiffs have taken a shotgun approach in attempting to establish a basis for liability. Fagras testified to manifold instances of the controllers' actions allegedly falling below the standard of care, including his assertion that Flagler was not a suitable airport and should have immediately been ruled out by Palmer. Fagras contends that there were other cascading breaches involving the controllers' attempts to assist Anders in safely landing his malfunctioning aircraft.
But there are several major problems with Fagras's testimony as to breach of duty. For instance, in reaching his conclusions, he discounts the Manual's directive that controllers are to "exercise their best judgment" when confronted with situations not covered by it. (
The first error that Plaintiffs attribute to the controllers is Palmer's granting of Anders' urgent request to descend just after the report of the propeller vibration. (
The Manual directs controllers to take immediate action in assisting pilots in distress. Chapter 10 of the Manual is devoted to emergencies. It acknowledges that "[b]ecause of the infinite variety of possible emergency situations, specific procedures cannot be prescribed." (
The Manual states that a pilot in a "distress" condition should declare an emergency by using the word "Mayday" and preferably repeating it three times, and a pilot in an "urgency" condition should repeat "Pan-Pan" three times.
Although Anders did not issue a "Mayday" or "Pan-Pan" alert or otherwise announce an emergency, it is undisputed that upon hearing the report of a vibration in the propeller at 2:07:01, Palmer and the other Daytona controllers immediately focused on N375B and appropriately treated the situation as an emergency. (
As soon as Anders mentioned the propeller vibration, Palmer relieved Hans, who was receiving on-the-job training from Palmer at the Mateo position, and took over the communications with the emergency aircraft. Within eight seconds after Anders' propeller-vibration report, Palmer responded that the nearest airport was five miles straight ahead and asked if Anders was "IFR capable and equipped." Ten seconds later, Anders reported that he was IFR, that he had an oil pressure problem, and that he was "going to have to drop quickly here." At that point, Palmer knew what Anders wanted — "pilot's desires" under paragraph 10-2-1(a) — and took immediate action to satisfy Anders' request. Within four seconds of the beginning of that transmission, Palmer granted Anders' request to descend, advising that N375B was cleared to the Flagler airport and instructing Anders to descend to 2000 feet. Before taking action, Palmer had the information required by paragraph 10-2-1(a).
Palmer complied with the Manual in immediately granting Anders' request to "drop quickly" and granting him the IFR clearance that he needed to be able to do so. Because N375B left Ft. Pierce as a VFR flight, Anders was required to obtain an "IFR clearance" before he could descend from 7500 feet into the clouds below. Such a clearance requires a "clearance limit" — a point to which the aircraft is cleared — an altitude to maintain, and a heading. (
Palmer appropriately granted Anders' request to descend without delay. The Court rejects Fagras's suggestion that Palmer should have deferred granting Anders' request in order to gather information and suggest preserving altitude. Of course, while that hypothetical extended discussion unfolded, N375B would have continued to travel at 7600 feet of altitude at 163.4 miles per hour (over a quarter mile every six seconds), ultimately requiring more time for N375B to lose altitude regardless of where Anders eventually chose to land. No support was provided for the notion that a controller should question a pilot's desire to descend, and to delay the descent would certainly have usurped Anders' authority as the pilot in command — something that Plaintiffs elsewhere accuse the Daytona controllers of doing. Fagras repeatedly acknowledged that Anders wanted to "be on the ground," "come down," and "get on the ground." (
Plaintiffs next argue that Palmer acted below the standard of care with regard to discussing with Anders where and how N375B would land. Among other things, Plaintiffs assert that the Ormond airport was closer than the Flagler airport; that Palmer should have immediately ruled out the Flagler airport as a potential landing site; that Palmer was required to provide Anders with information about all available airports and Palmer usurped Anders' authority as the pilot in command; that Ormond was a more suitable airport; and that the surveillance approach that Palmer offered and Anders accepted was not "authorized." None of these contentions has merit.
As previously discussed, Palmer appropriately responded to Anders' emergency situation and immediately granted the request to descend. Paragraph 10-2-1 of the Manual instructs that after initiating action in dealing with an emergency, controllers should then "obtain the following items or other pertinent information from the pilot or aircraft operator, as necessary: 1. Aircraft altitude. 2. Fuel remaining in time. 3. Pilot reported weather. 4. Pilot capability for IFR flight. 5. Time and place of last known position. 6. Heading since last known position. 7. Airspeed. 8. Navigation equipment capability. 9. NAVAID signals received. 10. Visible landmarks. 11. Aircraft color. 12. Number of people on board. 13. Point of departure and destination. 14. Emergency equipment on board." (Manual ¶ 10-2-1(b)). And paragraph 10-2-15,
Here, Palmer immediately knew several of these pieces of information from his radarscope, and before granting Anders' request to descend he had asked if Anders had capacity for IFR flight. Just after issuing the IFR clearance, Palmer asked Anders how many people were on board and how much fuel he had. Anders answered that there were three people on board and four hours of fuel, and Palmer then elicited more information about the mechanical problem and told Anders that the controllers were trying to get him close to the Flagler airport. Palmer advised Anders that the Flagler airport had a broken 900-foot ceiling — instrument meteorological conditions — and that therefore an instrument approach would be necessary to land there. In the same breath, Palmer asked Anders what his intentions were. Anders responded by requesting a localizer approach.
Palmer informed Anders that the Flagler airport only had RNAV approaches — approaches requiring GPS equipment — but that N375B could "reverse course back to Daytona" where there was an ILS approach — an approach that, undisputedly, an instrument-rated pilot would understand includes a localizer component; in other words, where an ILS approach is available, a localizer approach is also available. (Trial Tr. Day 1 (p.m.), Doc. 124, at 54 ("A controller would expect that [the pilot] knows there is a localizer available if there's an ILS available, yes.") (Fagras Test.);
Anders did not accept the option of the ILS approach in Daytona but instead again asked if "there was anything with a localizer or anything VFR."
Plaintiffs maintain that the Ormond airport was closer to the Flagler airport and that Palmer misinformed and misled Anders in telling him that the Flagler airport was closer. This accusation is not true in any meaningful way, and the insistence of Plaintiffs' witnesses to the contrary further diminishes their credibility.
While the location of N375B at 2:07:01 was described by the NTSB in a post-crash report as 5.4 nautical miles from the Ormond airport and approximately 6.9 nautical miles from the Flagler airport,
Palmer took these factors into account in advising Anders that the Flagler airport was closer:
(Trial Tr. Day 2 (a.m.), Doc. 126, at 116). Moreover, when communicating with Anders, Palmer was estimating airport distances based on N375B's position on his radarscope. Review of the Mateo radar replay reflects that Palmer's estimation of distance and of which airport was "closest" at 2:07:13 was certainly accurate and reasonable. (
Thus, the testimony of Plaintiffs' experts that Ormond was closer is misleading; factoring in a 1.8-mile standard rate turn, even starting immediately at 2:07:01 — which was not possible because that was the beginning of Anders' transmission to Palmer — Anders would have had to travel 6.9 nautical miles to reach the Flagler airport and 7.2 nautical miles to reach the Ormond airport. And considering the testimony that N375B turned more slowly than a standard rate turn as it was vectored to Runway 29 at the Flagler airport, it is reasonable to assume that the plane would not have turned back to Ormond at the standard rate either, and thus Ormond was actually even more than 7.2 nautical flying miles away at 2:07:01.
Plaintiffs argue that Palmer erred in even considering the Flagler airport as a potential landing site for N375B. They contend that Palmer should have immediately recognized from N375B's "flight progress strip" that the plane did not have the GPS equipment required to make an RNAV landing — the only type of instrument approach available at the Flagler airport. Again, Plaintiffs' argument misses the mark.
When a VFR pilot travels with controller-assisted "flight following," a small piece of paper called a "flight progress strip" containing information about the aircraft is automatically printed out as the aircraft enters into each air traffic control facility's airspace. Data on the strip includes, among other things, the aircraft type, the discrete beacon code, and an "aircraft equipment suffix" that describes the navigational equipment on the aircraft.
Based on information entered into the system when Anders requested flight following from Miami controllers, the Daytona TRACON received a flight progress strip (Pls.' Ex. 14F) for N375B shortly before the plane entered the Daytona TRACON's airspace. The equipment suffix on the strip was "/U," seemingly indicating that N375B had no distance-measuring equipment and only a "transponder with Mode C," which transmits the aircraft's altitude so that it is visible on a controller's radarscope. (
But Fagras did not mention — as explained at trial by both Palmer and the Government's air traffic control expert, William Turner — that unless a pilot requests otherwise, a computer assigns by default the "/U" equipment suffix on flight strips for aircraft flying VFR while receiving flight following assistance. (Trial Tr. Day 2 (a.m.), Doc. 126, at 87 (Palmer Test.); Trial Tr. Day 7 (p.m.), Doc. 164, at 35-37 (Turner Test.)). When a flight is conducted as a VFR flight, the presence of navigational equipment is not a concern, and the "/U" suffix is not significant to controllers. (Trial Tr. Day 2 (a.m.), Doc. 126, at 80 (Palmer Test.); Trial Tr. Day 7 (p.m.), Doc. 164, at 34-35 (Turner Test.)). The Court credits the explanations of Palmer and Turner and concludes that the Daytona controllers were not on notice from the flight progress strip that Anders did not have a GPS and was not RNAV-capable.
Although Palmer could not have assumed that the "/U" suffix meant that N375B only had a transponder, and although he candidly testified that he initially assumed that N375B did have RNAV capability, (Trial Tr. Day 2 (p.m.), Doc.
There is an apparent inconsistency in Plaintiffs' argument about the "/U" suffix. While Plaintiffs assert that the "/U" suffix informed Palmer that N375B was not RNAV-capable, Plaintiffs do not explain why the strip did not on its face also rule out a VOR approach — an approach, as will be discussed later, that was available at Ormond.
In sum, the Court rejects Plaintiffs' flight-progress-strip argument.
Plaintiffs also assert that Palmer was required to list numerous options to Anders for choosing a landing site. Fagras opined that this necessitated Palmer having a detailed and likely protracted discussion with Anders about available airports, weather conditions at each, and approach and runway information. Plaintiffs also maintain that Palmer usurped Anders' authority as the pilot in command in his communications with Anders about what his intentions were for landing N375B. Neither of these arguments has merit.
Fagras insisted that the Manual requires controllers to give pilots multiple options. (
Again, paragraph 10-2-15, titled "Emergency Airport Recommendation," directs controllers to "consider" various factors "when recommending an emergency airport." (Manual ¶ 10-2-15). This provision does not require the controller to discuss each factor with the pilot; it only requires the controller to consider the factors. Palmer testified that he did so and explained his consideration of weather and airport conditions, among other factors. (
The Court rejects Plaintiffs' assertion that Palmer was required to list options to Anders rather than discussing the situation with him as he did. Palmer elicited information from Anders and asked him what his intentions and desires were. When Anders asked for a localizer approach, Palmer offered him the Daytona airport and Anders did not accept that. When Anders then asked for the nearest airport, Palmer offered the surveillance approach and Anders accepted it. Palmer's actions conformed to the duty of care, and he was not required to list more options for Anders.
Plaintiffs also claim that Anders was not aware of his location or options, but the evidence shows otherwise. When Anders reported the propeller vibration at 2:07:01, Anders had just passed the Ormond airport, heading northbound. Because he was flying VFR, Anders was responsible for his own navigation. (Trial Tr. Day 7 (p.m.), Doc. 164, at 35-36 (Turner Test.)). While this alone is sufficient to support the conclusion that Anders knew where he was in relation to Ormond and other airports, there is additional evidence pointing to this finding. Plaintiffs' piloting expert, Mackey, agreed that it is likely that Anders was using his recently purchased sectional chart of the area (Gov't's Ex. 84) and N375B's VOR capability to navigate a northerly course parallel to the Victor 3 Airway.
(Trial Tr. Day 4 (p.m.), Doc. 142, at 84). Anders knew where he was and knew he had options. He was told of the ILS approach to Daytona, which he declined before being offered the surveillance approach to the Flagler airport; the fact that Anders did not ask Palmer how far it was to the Daytona airport when told of the ILS approach further buttresses the conclusion that Anders knew his location and what airports were nearby.
And Plaintiffs further argue that in addressing landing options for N375B, Palmer usurped Anders' authority as the pilot in command. Making this argument requires an imaginative interpretation of portions of the conversation between Anders and Palmer. First, Plaintiffs' experts interpret Anders' request to "take the nearest [airport] and try to break out at a thousand" as meaning he wished to fly to the nearest airport at altitude and then "spiral down" to land. Next, they interpret Palmer's offer of a surveillance approach to the Flagler airport as a rejection of that request. And finally, they interpret Anders' "lovely with that" response as sarcastic resignation to his request allegedly not being granted. These contentions are without merit.
The cross-examination of Mackey unmasked the "spiral down" argument as being one based on unadulterated speculation:
(Trial Tr. Day 4 (p.m.), Doc. 142, at 97-98 (emphasis added)). Nor did Anders mention the "high key" maneuver, a term of art describing a method of circling down over a runway to land — a method that Mackey suggested Anders desired to attempt. (
But there is no evidence that this "high key" spiraling down is designed for IMC conditions or would be reasonably attempted by a civilian pilot through 6000 feet of cloud cover. And there is no legitimate basis to conclude that Anders wished to — or was trying to convey that he wished to — fly in IMC to a point directly over an airport and then spiral down, that any of
In making their usurpation argument, Plaintiffs refer to
What happened in
Rather than usurping Anders' authority as pilot in command, by asking Anders to state his intentions Palmer was trying to find out what Anders wanted to do. The conversation between Palmer and Anders did not include a single demand or rejection of a request made by Anders; it was a cooperative exchange in an effort to find a solution to a serious problem. There is no evidence supporting a conclusion that the Daytona controllers interfered with Anders' authority as pilot in command. On the contrary, it is clear from the exchange between Palmer and Anders that Palmer would have granted any request of a reasonable alternative that Anders might have suggested. And when Anders said "Lovely with that," it was not — as argued by Plaintiffs — an expression of sarcastic resignation to the perception that the controllers would not grant a request, but instead a positive, enthusiastic expression in response to Palmer's question.
In sum, the controllers neither deprived Anders of options nor usurped his authority as pilot in command.
Plaintiffs insist that the Ormond airport was obviously preferable to the Flagler
Fagras opined that the Ormond airport was the best option not just because it was the closest airport — a contention the Court has already rejected — but also because it had a VOR approach. As discussed, the Ormond airport was not the closest airport, but other factors also weighed against its recommendation.
Significantly, the weather did not favor the Ormond airport over the Flagler airport. Airport weather conditions are provided to controllers at least once an hour and are displayed on the Information Display System (IDS) at their radar stations. (
Moreover, the wind was from the north — favoring a landing from the south rather than a southbound approach to Ormond's Runway 17. Also known to the controllers was that the two runways at the Flagler airport, both of which were unobstructed — were approximately 5000 feet long, 1000 feet longer than the two runways at Ormond, one of which was closed and had construction equipment on it. Fagras acknowledged that cloud ceilings, runway lengths, and airport conditions are important considerations in assessing potential landing sites. (Trial Tr. Day 2 (a.m.), Doc. 126, at 27-28).
Based on what was known to the controllers, not only was the Ormond airport itself not a superior option to the Flagler airport, but also a successful approach by Anders to Ormond's Runway 17 was far from a foregone conclusion. And Plaintiffs' experts did not even agree with one another as to how Anders would land at the Ormond airport.
Some of the problems with a VOR approach to Ormond's Runway 17 were revealed
On cross-examination, Fagras also admitted that he did not know how far N375B was from the final VOR 17 approach to Ormond when Anders experienced vibration in the propeller. Because Fagras did not have this information, he could not determine whether Anders could lose enough altitude to make the approach by the time N375B intersected the VOR 17 radial if Palmer had vectored him to it. Fagras "would not have flown him direct" to that radial, (Trial Tr. Day 2 (a.m.), Doc. 126, at 34), but he could not give a good description of how his suggestion would have worked:
(
Mackey, for his part, was clear on the question of altitude, estimating that N375B would have been at 4100 feet when it reached Ormond if it had turned around at the time of the propeller vibration. (Trial Tr. Day 4 (p.m.), Doc. 142, at 30-31). Because of its altitude, N375B would have to descend. This could have been accomplished, said Mackey, by entering a published holding pattern or circling down directly over the VOR in what Mackey acknowledged was called the "cone of confusion." (
This circling approach proposed by Mackey was not the VOR 17 approach, and neither was his "holding pattern" suggestion. As Turner explained, to execute the VOR 17 approach out of the holding pattern,
The suggested circling down over the Ormond airport to land is further complicated by the fact that Anders did not have distance measuring equipment on board. Without a GPS or similar equipment, Anders would have been unable to independently determine how close he was to Ormond unless he was passing over the VOR. He would have been dependent on controllers to call out distances and to instruct him on his turns. And although the controllers' radarscopes indicated extended runway lines that facilitated vectoring for a surveillance approach to Flagler's Runway 29, no evidence was presented that the controllers' radarscopes indicated the fix points for the VOR 17 approach at Ormond.
To the extent that Mackey advocated for the "high key" approach, there is no evidence that Anders had ever executed such a maneuver before. And there is no credible evidence that Anders could have performed the maneuver in the conditions that existed in the area on the day of the crash.
Thus, Plaintiffs' experts were not in agreement as to how the Ormond VOR 17 approach would have been modified to accommodate Anders or as to how Anders would have been able to land at Ormond. Moreover, as the Government points out, none of the Ormond "options" described by Mackey or Fagras is a published approach, and neither "procedure[] remotely resembles the VOR 17 approach that Plaintiffs cite as the decisive factor in selecting Ormond over Flagler." (Gov't's Mem., Doc. 169, at 33).
Additionally, the lack of accuracy of VOR approaches would have weighed against the Ormond VOR 17 approach as an option. A VOR approach is not a precision approach. According to Mackey, it has a permissible regulatory margin of error of plus or minus 6 degrees. (Trial Tr. Day 4 (p.m.), Doc. 142, at 85-86). This contrasts with the "spot on" precision of Hill's placement of N375B in preparation for landing on Runway 29 at the Flagler airport using the surveillance approach. (
Finally, Plaintiffs insisted that a landing at the Ormond airport would have taken less time than the surveillance approach to Runway 29 at the Flagler airport, which — from the time Anders first reported the propeller vibration to the time of the crash — lasted about 11 and half minutes. But Plaintiffs did not establish how long any of their proposals would have taken. They assert that Mackey opined that it would not take "eleven plus minutes," but the testimony they cite for that proposition was vague and pertained to gliding to the
In sum, while Plaintiffs insist that the Ormond airport was a better option because it offered a VOR 17 approach, Plaintiffs' witnesses did not actually advocate for execution of that approach. Without that approach, the Ormond airport had nothing better to offer Anders than the Flagler airport did. And the vague, speculative musings of Plaintiffs' witnesses about the possibilities of landing at the Ormond airport do not establish that the controllers were negligent in their handling of this emergency aircraft.
Fagras also opined that the controllers breached their duty of care by offering Anders an unapproved, "unauthorized" surveillance approach to Flagler's Runway 29. Because the approach provided by the controllers was not published
(Manual ¶ 5-10-1). Although Fagras opined that an "unpublished" surveillance approach could never be used, the plain language of this provision does not prohibit controllers from providing pilots radar-assisted landing in emergency situations.
Fagras failed to cite any authority supporting his opinion that in dealing with Anders' emergency, the Daytona controllers breached their duty of care by offering a surveillance approach and failing to advise Anders that it was unpublished. On direct examination, Fagras acknowledged that he "saw nothing" in the Daytona TRACON powerpoint training material for surveillance approaches (Pls.' Ex. 41B) "that was contrary to the national directive or that wouldn't be reasonable." (Trial Tr. Day 1 (a.m.), Doc. 122, at 94). On cross-examination, counsel for the Government pointed out that the first bullet point of that training material provided: "ASR approaches are conducted to assist pilots in emergency situations, to expedite traffic[.] and on pilot request." (Pls.' Ex. 41B at 4). When confronted with this bullet point, Fagras gave incoherent and inconsistent responses:
(Trial Tr. Day 2 (a.m.), Doc. 126, at 38).
In guiding controllers, the Manual takes into account that controllers have some discretion and must exercise it. The very first paragraph — titled "Purpose of this Order" — makes this clear, providing that controllers must "exercise their best judgment if they encounter situations that are not covered by [the Manual]."
Plaintiffs also fault the controllers for their conduct after Anders accepted the surveillance approach to the Flagler airport. They contend (1) that Hill failed to follow Raulerson's instruction to keep N375B "turned in tight" by allowing Anders to fly an unnecessarily long, circuitous route to Flagler's Runway 29; (2) that they "introduced risk" by taking N375B offshore during the base leg of the approach; and (3) that they misled Anders as to what the routing to the airport was going to be and where the aircraft was during the route. These contentions fail.
According to the NTSB's Air Traffic Control Group Factual Report (Pls.' Ex. 20), when Raulerson was interviewed after the crash he stated that after Anders reported zero oil pressure at 2:11:06, Raulerson told Hill "to turn the airplane in tight." (Pls.' Ex. 20 at Bates US000032). At trial, Hill did not recall Raulerson telling him this. (Trial Tr. Day 3 (a.m.), Doc. 133, at 63, 100). Plaintiffs argue that the statement to turn N375B in "tight" was an order to Hill, which Hill disobeyed. This argument is without merit; Raulerson explained in his deposition that his comment was not an order, and even though Hill does not recall hearing Raulerson make the comment, Hill was already turning the plane in "tight" and continued to do so.
Raulerson explained in his deposition that he was not interfering with Hill's work. Raulerson recalled making the statement "Let's keep him in tight," but Raulerson was merely reinforcing what Hill
(
It was Hill's plan all along to keep N375B close to the airport. And he was successful. The path of N375B was considerably tighter than the published RNAV 29 approach upon which Hill based the surveillance guidance that he provided. That approach calls for aircraft to intercept the final approach course seven to ten miles from the end of the runway. (Trial Tr. Day 3 (a.m.), Doc. 133, at 100). Hill's plan was to have N375B intercept the final approach at four-and-a-half to five miles from the end of runway 29. (
It was the need to lose altitude that made the approach as long as it was. Turner confirmed that the distance flown was necessary to lose altitude and remain above the minimum vectoring altitudes in the vicinity of the airport, avoiding the risk posed by possible obstructions. Turner explained that the only way to have lessened the miles flown would have been for the plane to descend more quickly than it did. (Trial Tr. Day 7 (p.m.), Doc. 164, at 107). Hill "expected a little quicker descent" and faster turns, but he was letting Anders "fly the aircraft the way he felt comfortable flying the aircraft" and Hill adjusted his vectoring after slow turns to try to keep the plane in as close as he could. (Trial Tr. Day 2 (p.m.), Doc. 131, at 106). Turner testified, "And I don't think there's an air traffic controller in the world that's going to tell a pilot with an emergency with an engine problem, `You need to descend faster. I want you to hurry on down.' I mean, a controller is not going to do that." (Trial Tr. Day 7 (p.m.), Doc. 164, at 107).
This was not a situation where the plane descended to a certain altitude and then had to fly for any length of time to arrive at the airport. On the contrary, the plane steadily descended from the inception of the controllers' communication with Anders. Hill initially instructed Anders to descend to 3000 feet at 2:09:17, and when Anders was still at 5000 feet, Hill instructed him at 2:11:25 to descend to 2000 feet. (North Tr. at 2-3; North Audio at 1909:17 & 1911:25-1911:33). Just as Anders was reaching 2000 feet, Hill instructed him to descend further to 1600 feet. (North Tr. at 4-5; North Audio at 1914:27-1914:34). Anders was then cleared to descend to the minimum descent altitude of 560 feet for the final approach. (North Tr. at 5; North Audio at 1915:36).
And when Hill explained to Anders that he was going to keep him within five miles
The Court finds Turner's testimony credible and rejects Plaintiffs' assertion that Hill disobeyed Raulerson or otherwise did not turn the plane in tight or offer "maximum assistance" in his routing of the aircraft.
Plaintiffs also fault Hill for "introducing risk" by vectoring N375B "over the ocean" on the base leg of the approach. This argument is misleading. While N375B did travel slightly offshore, parallel to the coastline, while on the southbound base leg of the approach, Turner explained that the altitude of the plane at that point was such that if the engine failed, it would have been able to get back over land. (Trial Tr. Day 7 (p.m.), Doc. 164, at 111). And the plane would have been even closer to land if Anders had immediately complied with Hill's turning instructions, which at least twice had to be repeated. Moreover, the plane did not crash into the ocean, and thus causation is completely lacking as to this alleged breach of duty.
Next, Plaintiffs assert that the controllers misled Anders with regard to the planned route of the surveillance approach to Flagler's Runway 29 and that Hill did not inform Anders where N375B was relative to the airport while he was making the approach. These contentions are meritless.
Plaintiffs argue that when Palmer offered to "do a surveillance approach and guide [Anders] into the airport," Palmer was suggesting that he was taking Anders directly to the airport for a landing rather than routing him around the airport to Runway 29, Plaintiffs contend that Anders was duped by this and would not have agreed to the surveillance approach if he had known that it was not a "direct" route.
This argument defies common sense. When Palmer offered at 2:08:54 to "guide" Anders into the airport with a surveillance approach, Anders was well aware that he was at an altitude of at least 7000 feet and within five miles of the Flagler airport, traveling at well over 100 miles per hour and approaching from the south. Obviously he would not be able to be guided "directly" to the airport; he would need to lose altitude before he would have any chance of landing. And less than a minute and a half later, Hill informed Anders that the approach would be to Runway 29 at Flagler — a runway that, as all pilots would know, runs at 290 degrees from magnetic north — from southeast of the airport to northwest of the airport. (
And both Hill and Palmer told Anders that they were going to keep him "close to" the airport — language that does not suggest a "direct" approach but instead a route around and near the airport that accommodated the plane's need to lose altitude. (
The Court rejects Plaintiffs' assertion that Anders thought he was being taken "directly" to an airport. Anders understood where he was and how he was being routed. And at no time did he request to go "directly" to the airport or indicate that he had changed his mind about accepting the surveillance approach he was offered.
Plaintiffs also allege several omissions by the controllers during N375B's surveillance approach to Flagler's Runway 29. They assert that Hill did not give Anders (1) complete weather information for Flagler; (2) a PIREP regarding the ceiling at Flagler; (3) a safety alert when a low altitude warning activated; (4) a missed approach procedure; or (5) a lost communications procedure.
Plaintiffs fault Hill for not providing Anders with complete weather information for the Flagler airport before Anders made the approach. They contend that Anders was never given information such as wind direction, wind speed, visibility, and dew point. The Government counters that Hill discharged his weather-reporting obligation by confirming with Anders that he already had the weather information for the Flagler airport. The Court agrees with the Government.
Anders first contacted Hill at 2:09:13, after Palmer handed the plane off to Hill's North position. After giving Anders a few instructions about headings, altitude, and turns, at 2:10:18 Hill asked Anders, "you already got the weather at Flagler is that correct?" (North Tr. at 2; North Audio at 1910:18). Anders responded, "Ya we got about a thousand foot ceilings we'd like to break out." (North Tr. at 2; North Audio at 1910:27). Although Fagras insisted that Hill was required to ascertain what Anders knew about the weather and confirm that the information he had was correct, Turner explained that there was no reason for Hill to spend time talking about the weather with this distressed pilot when Anders told him he already had the weather. (
The Court finds Turner's explanation credible. In this emergency, in which both the pilot and the controller were faced with a stressful situation requiring their full attention, there was no need to spend time on matters that Anders obviously did not seek help on. Hill was entitled to rely on Anders' "ya" response and not belabor weather information. Moreover, even if Hill had breached a duty to give weather information, there is no evidence that any weather condition led to the crash of the airplane. As earlier noted, eyewitnesses saw the plane flying straight toward the airport with wings level just
Relying on Fagras's opinion testimony, Plaintiffs also allege that the Daytona controllers breached a duty to relay to Anders a pilot's weather report (PIREP) of a 600-foot ceiling near the Flagler airport as N375B came in for landing. While it is correct that the controllers did not relay that PIREP to Anders, the PIREP was stale and inconsistent with other, more recent information about the ceiling that was identical to the ceiling report that Anders had already been given.
The Manual indeed requires controllers to timely pass on reports of weather they receive from pilots that are pertinent to flight safety. Paragraph 2-6-3, titled "PIREP Information," provides in part: "Significant PIREP information includes reports of strong frontal activity, squall lines, thunderstorms, light to severe icing, wind shear and turbulence (including clear air turbulence) of moderate or greater intensity, volcanic eruptions and volcanic ash clouds, and other conditions pertinent to flight safety.... d. Handle PIREPs as follows: 1. Relay pertinent PIREP information to concerned aircraft in a timely manner." (Manual ¶ 2-6-3).
Palmer informed Anders at 2:08:04 that the Flagler Airport had a broken 900-foot ceiling. (Mateo Tr. at 11; Mateo Audio at 1908:04). That was the official 1:50 p.m. Flagler airport ceiling provided on Palmer's Information Display System (IDS) above his radarscope, and the 900-foot measurement was made by a laser ceilometer that was part of the Automated Weather Observing System (AWOS) at the Flagler airport. The laser ceilometer measures the distance from the ground to the bottoms of the clouds overhead. Measurements are taken in thirty minute cycles, and it is possible that the ceilings vary during the cycle. The algorithm integrates the last thirty minutes of data, with double weight given to data accumulated in the most recent ten minutes. This information is collected in thirty-second bins and is reviewable at thirty- or sixty-second intervals. Accumulation of data in this way results in more accurate measurement of cloud cover not just immediately over the ceilometer, but also over an area extending three to five miles. (
At 2:14:08, as N375B was descending toward Flagler Runway 29, Raulerson called the Flagler tower for a weather update, specifically asking about the
In arguing that it was negligent for the Daytona controllers not to pass the PIREP on to Anders, Plaintiffs rely heavily on the fact that Glass, who is a certified weather observer, wrote a written statement on January 8 — four days after the crash — stating that he told Raulerson the ceiling was 600 feet when he spoke to him at 2:14:12 — not mentioning that the 600-foot report came from a pilot. (
But the transcript and audio recording of the telephone conversation between Raulerson and Glass establish that Glass did not tell Raulerson that he observed the ceiling to be 600 feet. Instead, he told Raulerson that "the last aircraft [Daytona] sent in" to Flagler airport had reported a 600-foot ceiling but that he was "getting 900 broken listed on [the] AWOS right now," suggesting not that he was observing a 600-foot ceiling but instead that he did not disagree with the 900 feet showing on the AWOS at that moment. Glass testified that he would not have passed on information he believed to be incorrect, (Trial Tr. Day 4 (p.m.), Doc. 142, at 140), and he admitted on cross-examination that the transcript and recording of his conversation with Raulerson was more accurate than his written statement, (
And if Glass had personally observed a significant variance in cloud cover from that registered by the ceilometer, he was required to make a special notation of that change for the benefit of controllers. (
At 2:16:43, as N375B was approaching Flagler's Runway 29 at Flagler, the plane descended to 500 feet and a visual "low altitude" warning — indicated with "LA" — appeared on Hill's radarscope, and an audible warning sounded in the Daytona TRACON; this is known as a minimum safe altitude warning ("MSAW"). (
Paragraph 2-1-6 of the Manual, tilted "Safety Alert," directs controllers to "[i]ssue a safety alert to an aircraft if you are aware the aircraft is in a position/altitude which, in your judgment, places it in unsafe proximity to terrain, obstructions, or other aircraft." (Manual ¶ 2-1-6 (emphasis added)). Specifically with regard to terrain and obstructions, this paragraph instructs controllers to "[i]mmediately issue/initiate an alert to an aircraft if you are aware the aircraft is at an altitude which, in your judgment, places it in unsafe proximity to terrain/obstructions." (
At trial, Fagras emphatically insisted that there was no leeway in the requirement that controllers issue a safety alert when the MSAW sounds:
(Trial Tr. Day 1 (p.m.), Doc. 124, at 129). But earlier in his testimony — when asked, "What is a safety alert?" — Fagras responded, "A safety alert is anytime a controller, in his judgment, he sees a situation where he believes the aircraft might be in harm's way of collision with another aircraft, with an antenna, with terrain, and he's required to issue that safety alert at that time." (Trial Tr. Day 1 (a.m.), Doc. 122, at 21 (emphasis added)).
Although Fagras insisted that when the MSAW goes off an altitude warning to the pilot is required, the plain wording of the Manual contradicts Fagras's later testimony that a safety alert is absolutely required when the MSAW activates. The controller is to alert the pilot when the controller believes — "in [his] judgment" — that the aircraft is in an unsafe situation due to proximity to terrain or obstructions. And a note to paragraph 2-1-6 explains that "[r]ecognition of situations of unsafe proximity may result from [MSAWs], automatic altitude readouts, ... pilot reports," or other indicators. (Manual ¶ 2-1-6 Note 2). The section does not distinguish among the type of indicator, and as to each possible source of information the controller is to use his "judgment" as to whether the aircraft is in unsafe proximity to terrain. The Court rejects Fagras's testimony that a safety alert is required whenever an MSAW goes off. Turner credibly testified to the contrary. (Trial Tr. Day 7 (p.m.), Doc. 164, at 50-52)).
When aircraft are close to the ground for landing — particularly on a "short final" approach — the MSAW alarm routinely sounds and there is no reason to suspect that the pilot and passengers are in danger. (
Plaintiffs also complain that Anders was not given a "missed approach procedure" during the surveillance approach. This is "[t]he procedure to be followed if the approach cannot be continued." (Manual at Pilot/Controller Glossary at PCG M-5).
Hill did not provide Anders with a missed approach procedure until after he lost radio contact with N375B. (
Under the circumstances of this case, as Plaintiff's witnesses acknowledged, there was no possibility of a missed approach procedure being successfully executed. As Mackey attested, the procedure for executing a missed approach or "go around" would have required "full throttle," and going to full throttle in an airplane with zero oil pressure would cause the engine to "probably very quickly come apart." (Trial Tr. Day 4 (p.m.), Doc. 142, at 24-25). And in questioning of Fagras, Plaintiffs' counsel acknowledged that "chances are the pilot was never gonna be able to do a missed approach ... because his engine was bad." (Trial Tr. Day 1 (p.m.), Doc. 124, at 93).
Because executing a missed approach procedure was not possible for this aircraft, and because there is no evidence that not issuing the missed approach procedure in any way contributed to the crash, Plaintiffs' contentions about Hill's failure to give a missed approach procedure are unavailing.
Plaintiffs similarly contend that Hill failed to provide Anders with a lost communications procedure — that is, instructions on what to do if communication with Hill was lost during the approach. (
Here, Hill attempted to tell Anders to contact the Flagler tower and provided the frequency at 2:17:25 — after N375B was set up for "four miles straight in" to Runway 29 and Hill had not heard back from Anders for over a minute. (North Tr. at 6-7; North Audio at 1917:25). Fagras testified that Hill was required to give a lost communications procedure prior to joining the final approach and that it is not reasonable for a controller to issue the procedure after communication has already been lost. (Trial Tr. Day 1 (p.m.), Doc. 124, at 94 & 130-31). At trial, Hill explained:
(Trial Tr. Day 3 (a.m.), Doc. 133, at 25-26).
Although Hill did not provide Anders with a lost communications procedure before communication with Anders was actually lost, Plaintiffs have not established any causal connection between the failure to provide the procedure and the crash. Anders was in or nearing VFR conditions when communication was lost, and again, the plane was on course to land when it crashed within sight of the airport. And as noted by Hill, Anders was not able to execute an instrument approach in any event.
Plaintiffs also attempt to seize upon a statement made by Bruce Blair, the Daytona TRACON's facility manager, as an admission of negligence. Within a few hours of the crash, Blair spoke by telephone to FAA safety officials. During that conversation, Blair made the following statement:
(Telcon Tr., Pls.' Ex. 52B, at 13). Although Plaintiffs' counsel represents that this statement was an "admission" made after Blair conducted a "personal investigation" of the incident, (Pls.' Mem., Doc. 172, at 2), that assertion is not borne out by the record. The statement is a thoughtful contemplation shortly after the incident of what might have gone wrong and what might need to be done in the future, but it does not constitute an admission.
The NTSB did do an investigation, and the FAA Headquarters Executive Summary of that investigation stated:
(FAA Memorandum, Pls.' Ex. 52D). This statement is not an indictment of the Daytona controllers' decisions but rather an endorsement. And later, Blair approved Letters of Commendation to Palmer and Hill for the assistance they gave those aboard N375B. (
In addition to failing to establish that the Daytona controllers breached a duty of care, Plaintiffs also failed to show that any of the myriad alleged acts and omissions of the controllers was a proximate cause of the crash. Plaintiffs' failure to prove proximate causation is summed up by Plaintiffs' expert and advocate, Fagras: "I can't tell you we would have had a better outcome if we had picked a different plan because I don't think anyone can." (Trial Tr. Day 1 (p.m.), Doc. 124, at 143 (Fagras Test.)). In this short, simple sentence, Fagras himself attested that even if the controllers erred in assisting N375B, no one can prove that the mistake was a proximate cause of the crash. On this one point — that no one could tell whether a different plan would have resulted in a different outcome — Fagras is credible. Whether the crash of N375B just short of Runway 29 was because of mechanical failure, pilot error, or some other cause was not established at trial. But what is clear is that the conduct of the controllers was not a contributory cause.
The Plaintiffs' causation problems begin with their failure to present a coherent, reliable theory as to if, when, and why N375B's engine failed and why the plane crashed. Plaintiffs did not call an accident reconstruction expert but instead relied on Mackey. For reasons already stated, the Court finds that the methodology Mackey used in arriving at his amended opinions about N375B's engine is not reliable. His recently formed conclusions are contrary to those disclosed to counsel before trial pursuant to the Federal Rules of Civil Procedure, and Plaintiffs' counsel failed to file an amended expert report as required
At best, Mackey's opinion is based on impermissibly stacked inferences. Mackey is a qualified aircraft mechanic and an extraordinary pilot, but he offered little more than circumstantial evidence in support of his theory of engine failure. His testimony was vague. His explanation as to why the propeller went flat was as tenuous as his testimony about the oil escaping from the hole in the connecting rod. He was short on details. And when he was asked when the engine failed, Mackey said, "I don't know." (Trial Tr. Day 4 (p.m.), Doc. 142, at 34). From his noncommittal responses, the Court cannot determine why N375B crashed.
Moreover, even findings that the controllers usurped Anders' authority by directing him to fly to Flagler's Runway 29 and that N375B sharply descended and crashed because it lost power due to mechanical failure — findings that the Court has not made — would not establish causation. This is because Plaintiffs presented no credible evidence that Anders would have been able to land sooner at any other airport or in any other fashion. As earlier noted, there is no reliable evidence that N375B would have been able to execute any of the landings described by Fagras and Mackey at the Ormond airport or any other airport.
In sum, even if Plaintiffs had established a breach of duty, their claims would fail on the element of causation.
The Government encourages the Court to find that pilot negligence was the proximate cause of the crash because Anders knew or should have known that N375B was not airworthy. The parties agree that the Federal Aviation Regulations (FARs), which are codified in part of Title 14 of the Code of Federal Regulations, "have the `force and effect of law,'" and they are evidence of "what a reasonable pilot would have done under the circumstances."
There is considerable evidence to call Anders' judgment and the airworthiness of N375B into question. It appears that Anders was unaware of the weather along his planned route up the Florida peninsula flying VFR. The National Weather Service had issued an advisory (AIRMET) putting airmen on notice that ceilings were below 1000 feet and visibility was less than three statute miles over much of the Florida peninsula. (
These are concerns, but the Government did not call a piloting expert to render an opinion on the question whether Anders was negligent. Also, the Court cannot conclude from the evidence presented that N375B was not airworthy. And the Court having found that Plaintiffs' negligence claims fail, there is no reason to further address the Government's assertions of pilot negligence.
As set forth above, the Court finds that Plaintiffs did not establish their negligence claims by a preponderance of the evidence. Thus, the Government prevails in this case. The Court's findings under Federal Rule of Civil Procedure 52(a) render moot the Government's ore tenus Rule 52(c) motion for judgment on partial findings. Accordingly, it is
1. The Clerk is directed to enter a judgment providing that Plaintiffs Aubrey Anders, as Administrator of the Estate of Michael R. Anders, and Darrel Joseph, as Administrator of the Estate of Charisse M. Peoples, take nothing on their claims against the United States.
2. The Government's ore tenus Rule 52(c) motion (
3. Plaintiffs' Renewed Motion to Strike the Deposition Transcript of Gary Shimon (Doc. 119) is
4. After entry of judgment as set forth in paragraph 1, the Clerk shall close this case.
(Trial Tr. Day 4 (p.m.), Doc. 142, at 80).
