[00:00:05] Speaker 00: Good morning. [00:00:06] Speaker 00: May it please the court. [00:00:07] Speaker 05: Sorry, let me just stop for a second, because I think each side gets 15 minutes. [00:00:10] Speaker 05: Oh, sorry, you just get 10 of them, though. [00:00:11] Speaker 05: Sorry, go ahead. [00:00:14] Speaker 00: May it please the court. [00:00:15] Speaker 00: Tom Ciracusa and Amy Lum, privileged to be before you on behalf of Myrna and Thomas McAuliffe, the plaintiffs in this matter. [00:00:22] Speaker 00: We would request five minutes for rebuttal, please. [00:00:25] Speaker 05: And are you dividing time? [00:00:27] Speaker 05: Sorry, I didn't realize there was the division of time here. [00:00:29] Speaker 05: Can you just explain how you're dividing the 10 and the 5? [00:00:31] Speaker 00: 10 for opening and 5 for rebuttal. [00:00:35] Speaker 02: Okay. [00:00:36] Speaker 02: We don't usually do it that way, but... Okay, I see what you're saying. [00:00:40] Speaker 02: A different attorney is going to handle the rebuttal? [00:00:42] Speaker 00: Yes. [00:00:43] Speaker 02: Okay. [00:00:44] Speaker 02: Thank you for explaining. [00:00:45] Speaker 00: Thank you. [00:00:49] Speaker 00: A condition known as mass bumping caused a main rotor blade on defendant's helicopter to slice through the windscreen. [00:00:59] Speaker 00: The in-flight breakup caused the helicopter to nosedive to the ground, killing Ryan McAuliffe and two others. [00:01:06] Speaker 02: I'm going to interrupt just because your time is limited and we do understand the basic facts in the case. [00:01:11] Speaker 02: I had some questions about exactly what your contending was defective and was the cause of the accident. [00:01:20] Speaker 02: So at times you say that it is the main rotor system's design and that the parts that were replaced, if I understand correctly, are the main motor hub and blades, not the entire [00:01:35] Speaker 02: main rotor system. [00:01:37] Speaker 02: Am I correct so far? [00:01:39] Speaker 00: Pretty correct. [00:01:46] Speaker 02: Is it your contention that the main rotor hub and blades [00:01:51] Speaker 02: were defectively designed or are they just part of a system overall that was defectively designed? [00:01:59] Speaker 02: I guess I'm trying to figure out exactly what the defect is and what the causal link is to the accident. [00:02:07] Speaker 00: Yes. [00:02:08] Speaker 00: We presented evidence via expert report and affidavit that the main rotor hub was defective as well as the main rotor blade. [00:02:16] Speaker 00: The defect in the main rotor hub was identified as a coning hinge which allowed excessive teetering of the blade. [00:02:24] Speaker 02: The defect in- The hinge is not one of the things that was replaced. [00:02:28] Speaker 00: It was. [00:02:28] Speaker 00: The hinge is a part of the main rotor hub that was replaced within a few months of the occurrence. [00:02:35] Speaker 00: Our experts also implicated the main rotor blades, specifically the mass of the blades, which contributed to the low inertia condition, which caused the mass bumping and the crash in this case. [00:02:50] Speaker 02: Can you tell me specifically the ER sites for those? [00:02:55] Speaker 02: At least the expert report that I read focused on a system and then had a conclusory statement about the main mortar hub and blades also being dangerous, but without much explanation. [00:03:09] Speaker 00: I could refer to the summer affidavit, paragraph 12, the hunt affidavit, paragraph seven, and the summer report, paragraph five. [00:03:17] Speaker 02: Do you have ER sites? [00:03:19] Speaker 00: I apologize, Your Honor, I don't have those ER sites. [00:03:22] Speaker 05: Can you tell me whether what you just said are the defects, whether those were already defects in the original helicopter before the replacement happened? [00:03:34] Speaker 00: We do not allege that those designs were new. [00:03:37] Speaker 00: they were replaced parts. [00:03:40] Speaker 00: And we have specific defects in those replaced components which distinguishes this case. [00:03:45] Speaker 00: Number one, which brings this case fully within the plain language of the Garrow-Rowling provision exception to a, and secondly, distinguishes any case cited by the defendants because there is no, they cite cases that allege just the opposite of what we're alleging. [00:04:02] Speaker 00: So there's two, [00:04:03] Speaker 00: There's two means of attack here. [00:04:06] Speaker 00: The defendants allege that we are unable to prove a defect because we're alleging a whole system defect. [00:04:14] Speaker 00: They even go so far as to say, we're alleging that the entire aircraft is defective. [00:04:19] Speaker 00: Not true. [00:04:20] Speaker 00: They specifically say in their brief, we don't allege any specific defects of the main rotor hub or blade. [00:04:25] Speaker 00: Again, not true. [00:04:26] Speaker 00: We've alleged a defect in the main rotor hub specific to the coning hinges, and we [00:04:32] Speaker 00: through our experts, reference the main rotor blade mass, as I mentioned before, in terms of the specific problems which lead to mast bumping. [00:04:43] Speaker 00: So this case is different from the case that defendant relies on, like Hinkle, for example, where the plaintiffs there allege that the use of a defective fuel pump [00:04:57] Speaker 00: made the company that remanufactured the engine liable, but they didn't have specific evidence that the fuel pump was defective. [00:05:06] Speaker 00: Our case is different. [00:05:07] Speaker 05: So your case, though, depends on a statutory interpretation that there doesn't need to have been a change [00:05:17] Speaker 05: in the replacement part that was the cause of the crash. [00:05:21] Speaker 05: You want us to just say, even if the replacement part was exactly the same, the fact that it was replaced is enough to restart the statute of limitations. [00:05:30] Speaker 05: And I read the statute kind of as being ambiguous between those two. [00:05:34] Speaker 05: So it seems like you do require us to think that what the statute means is just a replacement is enough. [00:05:41] Speaker 05: It doesn't matter if it's different. [00:05:42] Speaker 00: I think the plain language of the statute is if you replace a component that causes the crash, that restarts the time. [00:05:50] Speaker 00: I think the interpretations that were done in this case were completely unnecessary and inappropriate. [00:05:56] Speaker 00: There was no reason to go beyond the plain language of the statute. [00:05:59] Speaker 00: We have components which we have evidence were defective and unreasonably dangerous that caused the crash. [00:06:05] Speaker 00: That's the statute. [00:06:06] Speaker 04: Is there any distinction between component and part? [00:06:10] Speaker 00: No, part is used in the statute, component is used, sub-assembly, all those terms are used as part of the statute. [00:06:19] Speaker 00: The second reason where the, we believe the district court erred was. [00:06:26] Speaker 05: Sorry, I'm looking, I'd like to just go back to Judge Sung's first question about what the evidence is. [00:06:32] Speaker 05: So I think I found Hunt paragraph seven. [00:06:35] Speaker 05: It says the R44 rotor hub includes coning hinges that allow each blade to flap independently. [00:06:41] Speaker 05: Excessive flapping can then allow a blade or blades to diverge from its normal plane of rotation, which then leads to the mass bumping and an in-flight breakup. [00:06:50] Speaker 05: That's ER164. [00:06:53] Speaker 05: That's pretty conclusory. [00:06:54] Speaker 05: I mean, do you think that that is enough to survive summary judgment, just that one paragraph, basically? [00:07:01] Speaker 00: Well, that one paragraph is a summary of his opinions. [00:07:04] Speaker 00: He wrote a very lengthy report which explained the reasons for the excessive teetering and the way that the main rotor hub and blades interact to cause the mass-pumping condition. [00:07:17] Speaker 00: There's a long history of mass bumping on the defendant's helicopters, both the R-22 and R-44, and it's a well-known phenomenon. [00:07:25] Speaker 00: And Mr. Hunt explains that extensively in his report. [00:07:29] Speaker 00: What I referred you to was his main opinion in his affidavit in opposition to summary judgment. [00:07:41] Speaker 00: line that was really not a line that was proffered by the defendants, but the district court found that there needed to be [00:07:52] Speaker 00: a substantive change in the components in order for Guerra to apply. [00:07:57] Speaker 00: And I want to say quickly, that derived from Caldwell. [00:08:02] Speaker 00: And Caldwell, as the court knows, was a case involving manuals. [00:08:06] Speaker 00: And where Caldwell came up with the substantive change was, they found that the manual is part of the aircraft, but [00:08:14] Speaker 00: In order to change the manual, you have to do something, and they use this specific example of you can't just change the typeface and have that be considered a change that allows the rolling. [00:08:26] Speaker 00: We've read Caldwell. [00:08:27] Speaker 05: So I think the question, though, is why isn't it? [00:08:31] Speaker 05: That is what Caldwell was. [00:08:32] Speaker 05: It was about a manual. [00:08:33] Speaker 05: But given that the changed part needs to have been the cause of the crash, why isn't it reasonable to read the structure of this statute as meaning that there needs to have been some change that caused the crash rather than just the part was the same and it caused the crash? [00:08:52] Speaker 00: Because if you assume that the reason for the rolling position, provision, excuse me, is to protect the public, it wouldn't make sense to encourage manufacturers to keep replacing defective products. [00:09:06] Speaker 00: So, in order to... Did you say that again? [00:09:08] Speaker 00: What? [00:09:09] Speaker 00: If you can simply interpret the statute, and again, we don't believe that it should be interpreted that way, but if you would simply interpret the statute to say that the new component has to be somehow altered in design, that would allow manufacturers to just keep [00:09:27] Speaker 02: If I understand correctly, you're saying if the manufacturer had a defective design but got lucky and it didn't manifest into an accident in 18 years, then they could keep using this defective design and just keep generating parts that are defective and using them. [00:09:46] Speaker 02: because it so happened that the defect didn't manifest in the first 18 years. [00:09:51] Speaker 00: Which would not make sense in relationship to having this rolling provision, which is presumably to protect the public. [00:09:59] Speaker 04: So you would not want to... The rolling provision, in a way, basically negates the 18 years to a degree. [00:10:06] Speaker 04: I mean, you have this 18-year period, but if you replace a part [00:10:17] Speaker 04: and leaving aside the substantial issue. [00:10:19] Speaker 04: But if you replace a part, in effect, on the rolling statute, you get another grace period for filing your case. [00:10:31] Speaker 00: That is correct, and that's the plain language. [00:10:33] Speaker 04: And so what's the difference? [00:10:37] Speaker 04: Why do you need the 18-year statute to begin with if any time you get a new part, even if it's the same, [00:10:46] Speaker 04: you get another extension of the 18-year period. [00:10:51] Speaker 04: It doesn't really turn the statute of limitations into being a nougatory thing, and you've got a forever statute. [00:11:00] Speaker 00: Cases have explained that by saying that the reason for the 18-year limitation is because when these planes are in service for so long, they go through different people. [00:11:11] Speaker 00: Different people are doing modifications. [00:11:13] Speaker 00: There are different owners. [00:11:15] Speaker 00: And it's hard to keep track. [00:11:17] Speaker 00: This is not that situation. [00:11:18] Speaker 00: Robinson did the replacement of the components within months of this occurrence. [00:11:23] Speaker 05: But you're asking us to interpret the statute for all purposes. [00:11:26] Speaker 05: So I'm having trouble understanding your answer to Judge McKeown about what the statute means and how it makes sense under your reading. [00:11:34] Speaker 00: I think the meaning of the statute is clear. [00:11:36] Speaker 00: If there is a component that's replaced that restarts the statute of repose. [00:11:42] Speaker 02: Does it restart the clock for the entire plane or helicopter or just that part of it? [00:11:47] Speaker 00: for the parts that are deemed defective and cause the occurrence. [00:11:50] Speaker 02: My understanding of the statute in reading the legislative history is that the purpose of this was to protect essentially the plane and helicopter manufacturers as a whole because the frame, much of the plane lasts longer than 18 years and they wanted to encourage plane manufacturers. [00:12:12] Speaker 02: If one part gets replaced, that doesn't restart [00:12:16] Speaker 02: 18 years for the entire plane. [00:12:21] Speaker 02: It only restarts the 18 years for the part that got replaced, but you have to show a causal connection between the replaced part and the accident. [00:12:31] Speaker 02: Is that also your understanding? [00:12:33] Speaker 02: Yes. [00:12:34] Speaker 02: Okay, so then you do have to prove, though, that the replaced parts [00:12:39] Speaker 02: had either a design defect or a manufacturing defect that is causally linked to the accident. [00:12:47] Speaker 00: Yes. [00:12:47] Speaker 02: You can't just say because the part was replaced, a non-replaced part [00:12:53] Speaker 02: or the system as a whole caused the accident? [00:12:56] Speaker 00: That's correct, Your Honor, and that's really what the cases at Defendant's Reliance say, that you can't simply say that if you replace one part, that means that other parts which were not causative are allowed. [00:13:09] Speaker 00: But that's not what we're doing. [00:13:11] Speaker 04: I do have some... I think I read it up to a point exactly where you do, but then we have the causation, the proximate cause of the accident. [00:13:20] Speaker 04: And just to be clear, you're relying on [00:13:23] Speaker 04: paragraphs 12 and 7 as encapsulating what you believe is sufficient [00:13:29] Speaker 04: allegations of cause, right? [00:13:31] Speaker 00: Yes, the coning hinges and the mass of the blades creating this low inertia condition which leads to mass bumping and is very frequent with the defendant's aircraft. [00:13:42] Speaker 02: And when you say, I just want to make sure, mass of the blades, is that the information, is it you're talking about the weight or are you talking about the mass, M-A-S-T? [00:13:52] Speaker 00: I'm sorry, the mass, the weight, M-A-S-T. [00:13:55] Speaker 05: You're cutting into your colleagues' time. [00:13:57] Speaker 05: So I think if you want to save time for rebuttal, you should probably stop and let's hear from the other side. [00:14:00] Speaker 00: Yes, we will. [00:14:01] Speaker 00: We'll submit our knowing misrepresentation, conceal arguments, and the failure to allow the amended complaint on the briefs. [00:14:08] Speaker 00: Thank you. [00:14:09] Speaker 05: Thank you. [00:14:21] Speaker 01: Good morning, Your Honors. [00:14:23] Speaker 01: May it please the court, Tim Getz on behalf of Robinson Helicopter Company. [00:14:30] Speaker 01: I'm going to try to cut to the chase in a sense with respect to some of the questions the court was asking and go straight to the rule of rolling or replacement part repose. [00:14:43] Speaker 01: The McAliffs contend that the replacement of the main rotor hub and the main rotor blades in 2019 started a new 18-year repose period. [00:14:59] Speaker 01: A new rolling repose period under Section 2A2 starts only as to the new parts replaced and only if a [00:15:13] Speaker 01: I'm going to refer to it as GARA, the General Aviation Revitalization Act, which, again, I'll be referring to as GARA, which was signed by President Bill Clinton on August 17, 1994, more than 31 years ago. [00:15:33] Speaker 01: So that rolling repose period starts only as the new parts replace and only if a GERA plaintiff can show causation. [00:15:45] Speaker 01: Causation is critical. [00:15:47] Speaker 04: Okay, so let's just start with the first part. [00:15:51] Speaker 04: The basically rotor hub and blades are either parts or components, correct? [00:16:03] Speaker 01: The rotor hub and blades are parts and components of the main rotor system. [00:16:09] Speaker 01: The main rotor system consists of other parts as well. [00:16:12] Speaker 04: I understand, but if they're claiming that those two parts caused the accident, they fall within the first part of sub two, correct? [00:16:30] Speaker 04: component system sub-assembly or other part. [00:16:33] Speaker 04: Do you dispute that? [00:16:34] Speaker 01: Well, the McAliff's experts did not allege that the replacement parts failed or malfunctioned in any way. [00:16:44] Speaker 04: That's not my question. [00:16:45] Speaker 04: That's a causation question. [00:16:48] Speaker 01: Right. [00:16:50] Speaker 04: There's really kind of two parts to the sub-part B. You've got to have a new component system sub-assembly or part, and then [00:16:59] Speaker 04: that particular sub-assembly system part or component needs to have caused the accident. [00:17:07] Speaker 04: And so, you're not disputing that they've alleged the first part of the statute that there's some part for sub-assembly, right? [00:17:15] Speaker 04: They've identified that. [00:17:17] Speaker 01: Well, what we would allege is that the design did not change. [00:17:22] Speaker 01: So they really didn't change the design when they changed those particular component parts. [00:17:30] Speaker 01: The design dates back to the original manufacturer. [00:17:35] Speaker 04: And so how does that matter under the statute? [00:17:38] Speaker 01: Well, the replacement of parts does not restart the clock. [00:17:45] Speaker 01: as to the larger system in which the new replacement parts are installed. [00:17:50] Speaker 01: And again, we're talking about a design here, and a design that dates back to the original manufacturer in 2000. [00:18:00] Speaker 01: You know what? [00:18:02] Speaker 04: You've lost me. [00:18:04] Speaker 01: I'm sorry. [00:18:05] Speaker 04: And the reason, and it just seemed to me that the case ultimately boils down to causation, but you're trying to make some distinction [00:18:15] Speaker 04: It seems to me with respect to whether there's a part or system or component at issue. [00:18:23] Speaker 01: The distinction I'm trying to make, and I'm sorry if I'm not answering your question, but the distinction I'm trying to make is we're talking about a design defect theory in this case. [00:18:36] Speaker 01: We're not talking about a failure or malfunction of the particular components that were replaced. [00:18:43] Speaker 01: For a new rolling repose period to commence under Section 282, [00:18:52] Speaker 01: the Michaelis were required to show, I think I'm getting to it, the new replacement parts cause the accident. [00:19:02] Speaker 05: So I think you're using the fact that there needs to be a cause to sort of imply into the first phrase some extra concept. [00:19:11] Speaker 05: And maybe you're arguing that that is what the statute means. [00:19:14] Speaker 05: I might actually agree with you, but I think you have to acknowledge that that's what you're doing in response to Judge McCune, because she's reading the words. [00:19:20] Speaker 05: new system, there was a new system, a sub-assemblier part, and here there were new parts. [00:19:26] Speaker 05: They put new blades. [00:19:28] Speaker 05: So you're saying, I want to read into that phrase, the new blade has to be different. [00:19:33] Speaker 05: And that's the answer, I think. [00:19:34] Speaker 05: And you have to defend that. [00:19:35] Speaker 01: Yes, yes. [00:19:36] Speaker 01: Yes, exactly. [00:19:37] Speaker 01: We're saying the new blade has to be different. [00:19:39] Speaker 05: And so now explain why. [00:19:40] Speaker 05: From the original design? [00:19:41] Speaker 05: From the original [00:19:42] Speaker 01: From the original design, because the original design, these blades had the same design as the original blades. [00:19:48] Speaker 04: Where does it say that they need to be different? [00:19:51] Speaker 01: That's basically what the cases say with respect to the design defect. [00:19:57] Speaker 01: And again. [00:19:58] Speaker 05: Sorry, sorry. [00:19:59] Speaker 05: So we have a case about a manual, but we might think that that manual case is really not telling us things beyond a manual. [00:20:06] Speaker 05: So tell us from scratch. [00:20:08] Speaker 05: Don't use the case about manuals. [00:20:09] Speaker 05: Tell us from scratch why you think this statute requires you to read in this word that you are answering to Judge McKeown. [00:20:16] Speaker 01: Well, I think the statute would be, Gara would be almost meaningless if [00:20:21] Speaker 01: if you could use it to show a design defect doesn't date back to the original manufacturer. [00:20:30] Speaker 01: I mean, the statute was designed to protect aviation manufacturers [00:20:37] Speaker 01: from products that have been in the stream of commerce, been in the field for 18 years or more. [00:20:44] Speaker 01: In this case, it's a design defect. [00:20:46] Speaker 01: I think that's the distinguishing factor. [00:20:48] Speaker 05: It happens that here the replacement part was actually happens to have been made by the original manufacturer. [00:20:53] Speaker 05: But that wouldn't always be true. [00:20:56] Speaker 05: So let's imagine that the replacement part here [00:20:59] Speaker 05: was made by someone else and it was still exactly the same as the old one but it was made by someone else so your client was the original manufacturer say but not the replacement manufacturer or vice versa could be different people why should the statute not restart [00:21:14] Speaker 05: against a different manufacturer? [00:21:17] Speaker 01: Well, I would allege that if it's a different manufacturer that potentially it would be somewhat of a different design. [00:21:25] Speaker 05: Well, let's assume that the replacement part manufacturer does the exact same design. [00:21:32] Speaker 01: But again, I'm going back to the main rotor system has a lot of different parts in it. [00:21:37] Speaker 01: It has pitch links, swash plates, et cetera. [00:21:40] Speaker 04: They've said two things. [00:21:44] Speaker 04: that this accident was caused by the main rotor hub and blade. [00:21:51] Speaker 04: They don't talk about the main rotor system, they talk about those two parts. [00:22:00] Speaker 04: Why isn't that covered by the statute, but you still need causation? [00:22:05] Speaker 01: Again, those two parts are part of a bigger system. [00:22:09] Speaker 01: Those two parts, replacing those alone would not result in the phenomenon of mass pumping that they're talking about. [00:22:17] Speaker 04: You see, that's why I'm having trouble, because you might be right. [00:22:22] Speaker 04: If you replace these two parts, that is not, or they have not alleged enough to show that [00:22:30] Speaker 04: those two parts cause the accident? [00:22:32] Speaker 01: Correct. [00:22:33] Speaker 01: Correct. [00:22:33] Speaker 01: Because it's part of a larger system. [00:22:36] Speaker 01: And what they're really alleging is that the defect in design is part of the entire system. [00:22:43] Speaker 01: It's not just as to the blades. [00:22:46] Speaker 02: On the facts, I have a question about that. [00:22:47] Speaker 02: Sure. [00:22:48] Speaker 02: Because I could understand in some cases, a system design defect could not be attributed to a design defect or would not essentially [00:23:00] Speaker 02: run through all the way down to each component part. [00:23:03] Speaker 02: But what I think, if I understand plaintiff's causation argument correctly, and this is a matter of what's in the record, but I think what they would be saying is that because from what I read, they're saying the whole main rotor system was designed essentially to be prioritized [00:23:24] Speaker 02: lightweight over sturdiness and I'm using my very lay understanding of this but then that those choices affected the design of the blades as well as the hinges and that those essentially those design decisions affected each of the sub parts of the system and so that you could say the experts could say that the blades themselves and the main rotor [00:23:53] Speaker 02: which were replaced in this case, are in effect also infected by this design defect. [00:24:02] Speaker 02: And that caused, has approximate cause link to the accident. [00:24:09] Speaker 02: Now, there's a question of whether all of that is substantially in the record and whether there's enough to get past summary judgment. [00:24:19] Speaker 02: But if I understand correctly, that is what they're contending. [00:24:24] Speaker 02: Is that fair? [00:24:25] Speaker 01: I think that's fair, if I'm understanding your honor correctly. [00:24:28] Speaker 01: The McAleef's experts take issue with the alleged low inertia main rotor system, which I think is what your honor was referring to, which they say makes the helicopter more susceptible to controllability issues. [00:24:46] Speaker 01: The McAleef's contend that the alleged design defect always existed. [00:24:53] Speaker 02: and that the accident would have happened even if... But it is a threshold legal question, right, of whether... Correct. [00:25:05] Speaker 02: Let's say there is, just assume for the moment, that there is enough evidence in the record about a design defect specific to the parts that were replaced and enough to create a genuine dispute about whether the parts [00:25:20] Speaker 02: the design of the parts that were replaced caused the accident, your legal response is because that's always been the design that doesn't qualify right under this statute. [00:25:33] Speaker 02: And what I would like to know is what doing a statutory textual analysis [00:25:40] Speaker 02: in the way that the Supreme Court has told us to, starting with the text and then using all the tools of statutory interpretation available to us, how do we get from the text here to that the design has to have changed for this replacement part to not restart the, for the replacement part to restart the clock? [00:26:03] Speaker 02: And I'll just cut to the chase. [00:26:05] Speaker 02: I don't, the text itself, I think, doesn't get you all the way there. [00:26:10] Speaker 02: To me, it's [00:26:11] Speaker 02: ambiguous. [00:26:12] Speaker 02: And then I look to the legislative history. [00:26:17] Speaker 02: And there's actually quite a fair amount of discussion about this exact issue. [00:26:22] Speaker 02: And I'll just give you one example, where it says I have Phil Boyer, the president of the aircraft owners and pilots Association testifying that the bill will ensure that customers will have a redress for defective components [00:26:37] Speaker 02: by providing that and at this time the bill said 15-year clock begins to run anew on each individual part whenever it is replaced or installed. [00:26:48] Speaker 02: So the airframe manufacturer of an older aircraft would be protected. [00:26:53] Speaker 02: by the statute of repose, and so would the manufacture of those very few parts or components which happen to last 15 years or longer. [00:27:02] Speaker 02: But our members will continue to have a remedy in cases where a more recently installed part proves defective. [00:27:09] Speaker 01: And again, we would argue that, you know, if you're going all the way back, and in this case, the McKails contend the alleged design defect always existed, and the accident would have happened even if those replacement parts weren't replaced. [00:27:25] Speaker 05: We agree. [00:27:26] Speaker 01: So in that sense, it would render the statute basically meaningless if there was not somehow something wrong with those replacement parts that wasn't wrong at the time of the original manufacturers. [00:27:41] Speaker 01: The Michaelis experts' opinions are that the helicopter was defective in design, which defeats causation. [00:27:49] Speaker 01: as to the replacement parts, because if they're defective in design, again, that defeats causation, and it goes back to the original manufacture. [00:27:59] Speaker 05: No, no, no. [00:28:00] Speaker 05: If the blade had a defect from the way it was designed, then the blade could still be the cause [00:28:09] Speaker 05: of the accident. [00:28:10] Speaker 05: But you are saying there's an additional requirement that that design defect needs to be new. [00:28:16] Speaker 05: So what in the statute or the legislative history or the structure, what leads you to tell us that the problem that causes the crash has to be new? [00:28:25] Speaker 01: Well, again, we feel it's absolutely critical that the McAliff's experts have not alleged that the hub or blades themselves failed or malfunctioned. [00:28:39] Speaker 05: That's a different, okay, you might be saying they don't actually have evidence that there was a design defect in the blade. [00:28:49] Speaker 05: because you don't think their expert said enough. [00:28:51] Speaker 05: That's a different argument, though, than the statute tells us there needs to be something new about the design. [00:28:56] Speaker 01: Well, and again, replacing the hub and the blades is not the entire system, and they're talking about the entire system. [00:29:05] Speaker 05: Okay, so this is saying that the experts have not testified about the right thing. [00:29:09] Speaker 05: The experts haven't said the blade had a design defect. [00:29:13] Speaker 01: Correct. [00:29:14] Speaker 01: You haven't said the blade had a design defect. [00:29:16] Speaker 01: Exactly. [00:29:16] Speaker 01: That's exactly right. [00:29:17] Speaker 01: Or the hub. [00:29:18] Speaker 05: That's like a question of the facts, not a question of how the statute needs to be interpreted. [00:29:21] Speaker 05: So we could talk about that. [00:29:22] Speaker 05: I mean, they pointed to paragraphs 7, 11. [00:29:24] Speaker 05: I mean, now you're saying those paragraphs just aren't enough. [00:29:28] Speaker 05: Even assuming that original design defect would be adequate under the statute, their experts haven't said that there's an original design defect in the blade. [00:29:39] Speaker 05: Is that what you're saying? [00:29:41] Speaker 01: There's no change in the blade and it's insufficient. [00:29:46] Speaker 01: And it is insufficient. [00:29:47] Speaker 05: So that's what we're... But when you say there isn't a change, you're saying the statute requires there to be a change. [00:29:52] Speaker 05: And that's back to the statutory interpretation. [00:29:54] Speaker 05: Where do you get the odd idea? [00:29:56] Speaker 01: Well, the McAliff's experts' evidence is insufficient to restart the repose period under Section 2A2 of GARA, because the design dates back to the original manufacturer, and the McAliff's experts are alleging a design defect, and again, design dating back to the original manufacturer in 2000, so the re-rolling or replacement part report simply doesn't apply. [00:30:22] Speaker 04: We just kind of bring it into the real world. [00:30:25] Speaker 04: There's design defects and then there's also could be a manufacturing defect in the replacement part. [00:30:32] Speaker 01: Correct. [00:30:33] Speaker 04: So I want you to distinguish between those because to have a replacement part, wouldn't that be required to be approved by the FAA? [00:30:40] Speaker 01: Yes, absolutely. [00:30:41] Speaker 04: And so it's either going to come from the OEM, from the original manufacturer, or it's going to come from a secondary [00:30:48] Speaker 04: heart supplier, right? [00:30:51] Speaker 04: Both of those need to be certified by the FAA. [00:30:54] Speaker 01: Absolutely, that all needs to be certified by the FAA. [00:30:57] Speaker 01: And again, the entire design of the helicopter, everything you do with the helicopter, if there wasn't a change in design, if there was a way to change it to make it better or whatever, it's a principle of... If you'll let us understand your argument, I think we might make a little more progress. [00:31:17] Speaker 04: And that is, you're saying if the claim is that the design was defective, sort of ab initio at the beginning, then [00:31:35] Speaker 04: That has an 18-year statute, and you can't just get a new part with the same design to extend the statute. [00:31:42] Speaker 04: Is that your position? [00:31:43] Speaker 01: That is our position, Your Honor, exactly. [00:31:45] Speaker 04: And so instead, if I had the same part with the design, but my claim was now either the secondary parts manufacturer or the original equipment manufacturer, [00:32:04] Speaker 04: didn't manufacture it correctly, then I could recover under Part 2, right? [00:32:10] Speaker 01: Yes. [00:32:11] Speaker 04: And what other situations, in your view, would permit someone to recover under Part 2, leaving aside causation? [00:32:21] Speaker 01: What you're bringing up an interesting one, because we would allege that, you know, this would only apply to the OEM, the original equipment manufacturer. [00:32:31] Speaker 01: You were talking about potentially a second manufacturer coming in, getting something certified. [00:32:36] Speaker 01: I mean, there are such subtle differences in certification and everything. [00:32:40] Speaker 01: They would have to get, they can do it under what's called the PMA, Parts Manufacturing Authority, and if they go through all of that and get that certified by the FAA, [00:32:50] Speaker 01: I would not necessarily support that because I would argue that it has the potential for a change in design, that it's not gonna be identical. [00:33:00] Speaker 01: But in this case, we are talking about the original equipment manufacturer, and I think that is a distinction that needs to be made. [00:33:10] Speaker 05: I think you're over your time, so let's hear from the other side's rebuttal, please. [00:33:14] Speaker 01: If I may just finish, Your Honor, Robinson just respectfully requests that the Court affirm the grant of Gara summary judgment as to the KALF's stale claims against Robinson. [00:33:29] Speaker 01: Sorry, we understand the argument. [00:33:30] Speaker 01: And I thank you, Your Honors, for your indulgence. [00:33:34] Speaker 01: And certainly, if there are any other questions, I would love to be able to answer them. [00:33:38] Speaker 01: Thank you so much. [00:33:40] Speaker 05: Let's put the five minutes on the clock for the other side, please. [00:33:46] Speaker 03: Good morning, Your Honors. [00:33:47] Speaker 03: May it please the court, Amy Lum, on behalf of plaintiffs of Helen. [00:33:53] Speaker 03: I just wanted to touch on a couple of things I think it seems that you guys have a good handle I think on what the main issues are I'm trying to focus in on what the answer is to that. [00:34:01] Speaker 03: I'm a little confused honestly after hearing Mr. Getz because on one hand their briefing advocates for a position that's different from what the district court decided which was a substantive alteration or change in the design or the part. [00:34:14] Speaker 03: and we're here to know exactly so it's not you know instead he was saying oh because we only replaced part of the main rotor system it does not apply to the whole helicopter it doesn't apply to the whole system but what they're advocating for basically is an unwarranted expansion of gara in saying that there needs to be a change because there is no precedent other than called well which we [00:34:37] Speaker 03: is distinguishable because it dealt with the flight manual, which was a really different thing than a part, a tangible physical part that's replaced. [00:34:44] Speaker 03: But your honors have recognized this, that this is sort of requiring an expansion of the statutory language to find some kind of defect as a necessary prerequisite to actually availing ourselves of the rolling. [00:34:54] Speaker 04: So if you don't do that, is there any statute limitations? [00:34:59] Speaker 04: Because if you have 18 years, OK, we're done with 18 years. [00:35:03] Speaker 04: But now, any time [00:35:08] Speaker 04: that the aircraft gets a new part or system, a replacement in effect. [00:35:16] Speaker 04: The statute runs again even if it relates to the original design defect. [00:35:21] Speaker 04: Is that your position? [00:35:23] Speaker 03: I think there's an important point to be made with respect to that. [00:35:26] Speaker 03: The 18 years is very protective, just because of aging and what might happen in that time, so that there's a cutoff for manufacturers. [00:35:34] Speaker 03: But the important part, and as you can kind of see in the case law that's been cited to [00:35:38] Speaker 03: it rarely happens it actually the rolling provision isn't invoked often because one part is replaced but it's not necessarily the causative factor of the accident or it's a part of a bigger system and maybe there's a different manufacturer or something that so it's not freely given i wouldn't say it's it's a [00:35:54] Speaker 03: And by allowing a situation like ours, which is so directly on point for what the ruling provision is supposed to protect, which is we have something we've alleged is defective, main rotor system, a key component of that is the main rotor hub and the blades. [00:36:11] Speaker 03: I do have a few citations. [00:36:12] Speaker 04: So I don't think you've answered my question. [00:36:15] Speaker 04: There's really, as long as it comes from the original equipment manufacturer, and it just replaces a part that is arguably defective, [00:36:24] Speaker 04: there is no statute of limitations, right? [00:36:28] Speaker 03: It would restart. [00:36:29] Speaker 03: I mean, it would restart, but it keeps, yes, at 18. [00:36:32] Speaker 04: You could roll into infinity. [00:36:34] Speaker 03: You could. [00:36:34] Speaker 03: But I do think that it was designed that way. [00:36:37] Speaker 03: I think Congress was intentional in doing it to have this sort of safeguard in the event that we have a situation like this where the Robinson serialized part was replaced. [00:36:45] Speaker 02: um within you know just under five months of the accident and so it is it's a new part it's not like an 18 year old part which the statute was designed to protect but given that it's sorry you want to go ahead sure i was going to say so you you have both a legal challenge and a factual challenge right so on the law you have to prove to us that or reason that the statute soon [00:37:07] Speaker 02: Caldwell shouldn't be extended past the unusual facts of a manual. [00:37:13] Speaker 02: And essentially that the unpublished decision of Lahey was wrongly extending Caldwell. [00:37:18] Speaker 02: So that's your legal challenge. [00:37:21] Speaker 02: And I think your main argument is plain text of the statute just doesn't support extension here and that this is actually what Congress intended. [00:37:31] Speaker 02: And then on the facts though, let's assume for the moment we agree with you on the law. [00:37:40] Speaker 02: You agree you have to prove that the replaced part, or parts in this case too, one or both, is the cause of the accident. [00:37:52] Speaker 02: Specifically. [00:37:54] Speaker 02: Would you agree that, so now if I understand correctly, there's [00:38:02] Speaker 02: I am honestly somewhat confused in reading your briefs on the causation issue because at times I see you arguing that it was a design defect in the main rotor system of which the replaced parts are components that caused the accident. [00:38:27] Speaker 02: And at times I hear you arguing it was in fact the replaced parts [00:38:32] Speaker 02: that caused the accident. [00:38:34] Speaker 02: And I hear defendants saying if it's A, a design flaw in the system, they still lose even if they're right on the law because the replaced parts in and of themselves did not cause the accident. [00:38:50] Speaker 02: There was no design defect or manufacturing defect in essentially the hub or the blades. [00:38:59] Speaker 02: Do you have evidence [00:39:01] Speaker 02: in the summary judgment record sufficient to withstand summary judgment, to get you to trial about the design defect specific to the hub or the blades? [00:39:16] Speaker 03: We do, Your Honors. [00:39:17] Speaker 03: So I do have some record sites for you that I hope are helpful. [00:39:22] Speaker 03: ER 117 is Donald Sommer's report. [00:39:30] Speaker 03: and let's see I'm sorry I think actually that might be the portion of his declaration that was written and then I would look for it because I read some conclusory statements what I'm looking for is beyond the bare assertion I have that as well okay so the report itself the underlying reasoning is starts at er 125 and finishes on 133 [00:39:53] Speaker 03: We would like to point out some of the diagrams within that section we think will be helpful, particularly on 128, 129, and 130, in which you will see how key the hub and blades are to the system. [00:40:09] Speaker 03: They are the main pieces of the system. [00:40:10] Speaker 03: I think the illustrations might help because it's a technical thing to explain two words. [00:40:17] Speaker 03: And then the additional records that were helpful for Mr. Hunt's affidavit, I think you found that already on, one of you found that already on 164, but the report itself, summary of his opinion is 183, and then the underlying rationale and support can be found on 191 to 202. [00:40:36] Speaker 02: Okay, thank you. [00:40:40] Speaker 02: I have one other question of, [00:40:44] Speaker 02: So there's the legal question. [00:40:49] Speaker 02: If we were to agree with you on the law, then arguably the district court's evaluation of the causation evidence was not correct. [00:41:03] Speaker 02: We have the option to either review the record ourselves or remand for reconsideration of the evidence on the factual issues. [00:41:11] Speaker 02: Do you think one or the other would make sense? [00:41:14] Speaker 03: I think what's challenging, and I'd have to think about that for a second, is a lot of the arguments that Mr. Getz has brought up today are factual issues that really wouldn't be susceptible to a granting of summary judgment in the way it happened. [00:41:26] Speaker 03: And so it's turned, I think, there is a legal part of it, which it seems like everyone's semi in agreement on, except perhaps Robinson, because they want to inject the additional requirement of the design defect. [00:41:36] Speaker 03: But now there are additional factual disputes that perhaps didn't exist, because they didn't raise a lot of these factual issues. [00:41:44] Speaker 03: below it was it was a well you're barred it's you know you didn't replace proper things 18 years and because ultimately the district court [00:41:54] Speaker 04: looked at the record and said not enough is alleged, right? [00:41:58] Speaker 03: She said not enough is alleged because there was no substantive alteration, which of course we disagree with, and so she looked at the record through that lens, and so it's really a threshold issue that completely changes how you might view the facts. [00:42:12] Speaker 04: Okay, thank you. [00:42:13] Speaker 05: Thank you. [00:42:15] Speaker 05: Thank you both sides. [00:42:16] Speaker 05: This case is submitted, and we are adjourned for the day. [00:42:19] Speaker 01: Thank you, Your Honors.