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Anders v. United States

United States District Court, M.D. Florida, Orlando Division

March 31, 2018

AUBREY ANDERS, as Administrator of the Estate of Michael R. Anders, Plaintiff,
UNITED STATES OF AMERICA, Defendant. DARREL JOSEPH, as Administrator of the Estate of Charisse M. Peoples, Plaintiff,


          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 emergency landing. At the time, N375B was owned and piloted by Michael Anders. Also on board were two passengers-Duane Shaw, who was a commercial pilot, and Charisse M. Peoples. All three died in the crash.

         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), [1] claiming that the negligence of Federal Aviation Administration ("FAA") air traffic controllers was the proximate cause of decedents' deaths. The Court consolidated the lawsuits, [2] which were then tried for seven days before the Court sitting without a jury. After the parties submitted post-trial memoranda, [3] the Court heard closing arguments. (See Mins., Doc. 177). Because the evidence presented at trial failed to establish that controller negligence caused decedents' deaths, Plaintiffs' claims fail. The findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52 are set forth below.

         I. FACTS

         Vacation Plans and Preparations

         In 2008, Anders purchased N375B, a single-engine plane with retractable landing gear, for his personal use. (Stipulated Facts[4] ¶ 1). He held a pilot's license for single-engine land aircraft and an instrument rating. (Id. ¶ 7). At some point in 2012, Anders made plans to fly Peoples and Shaw to the Caribbean for the Christmas and New Year's holidays, (Id. ¶ 8). As the trip approached, Anders could tell that N375B's engine was not running as it should. Concerned, Anders asked Barry Sanders, an FAA-certified airframe and powerplant mechanic in Knoxville, Tennessee, to assess the problem.

         Sanders checked the compression in N375B's engine and confirmed Anders' belief that the engine was running poorly. (Sanders Dep., Doc. 141, at 19).[5] Sanders determined that two of the engine's six cylinders-the number one cylinder and the number four cylinder-were cracked. (Id. at 16, 25). When Sanders relayed this information to Anders, Anders requested that Sanders replace the defective cylinders with "serviceable" cylinders-used cylinders that are less expensive than new cylinders but nevertheless meet FAA standards. (Id. at 20-21). Sanders replaced the cylinders as requested, (Id. at 25). Sanders also installed some gear indicator lights, replaced a pilot side window, and cleared out a plugged vent that was preventing fuel from feeding properly in one of N375B's wingtip fuel tanks.[6] (Id. at 16, 32). In some of this work, Sanders was assisted by Quentin Elkins, also a certified airframe and powerplant mechanic. (Id. at 8 & 25; Elkins Dep., Doc. 154, [7] at 14). Among other things, Elkins corrected under-torqued spark plugs and wires that Anders had installed. (Elkins Dep. at 27).

         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. (Id. at 36). Sanders and Elkins double-checked the repair work they performed on the plane, but neither of them conducted an inspection of N375B or did any flight tests. (Sanders Dep. at 18-19 & 34; Elkins Dep. at 30-31).

         Trip to Caribbean

         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. (Id. ¶ 12). They spent the night in Stella Maris, the Bahamas, and then flew to Ft. Pierce, Florida, on the morning of January 4. (id).

         Ft. Pierce

         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. (Id. at 82). Sullivan was surprised when Anders asked him to fill the main fuel tanks and the left wingtip tank, because filling the left wingtip tank would create an even greater imbalance. (Id. at 83). When Sullivan questioned Anders' instructions, Anders changed his mind and told Sullivan to fill the right tip tank all the way and fill the left tip tank only half way. (Id.). Eventually, Sullivan refueled the aircraft as requested, resulting in a partial correction of the imbalance, (Id. at 98-99 & 107).

         As Sullivan was preparing to tow N375B for fueling, he noticed oil on the nose strut. (Id. at 84). When he removed the strap used for towing, Sullivan saw that "[i]t had a lot [of] oil on it, dark." (Id. at 85). Oil was dripping from a vent on the side of the aircraft, which was not unusual, but Sullivan was concerned about the leak onto the strut and mentioned it to Anders. (Id. at 85, 91). Anders responded that he was aware of it, and he and his pilot-passenger, Shaw, joked that "[i]f there's no oil under them, there's none in them." (Id. at 91-92). Anders did not ask Sullivan to add oil to N375B. (Id. at 92-93).

         Sullivan also heard Anders mention something about a fuel pump issue to Shaw. (Id. at 96). Sullivan interjected to Anders that a mechanic was available at the airport if they wanted the problem checked, (Id. at 96-97). Anders responded that he was "aware of any issues with the aircraft" and that "he'd taken care of it." (Id.).

         The Flight from Ft. Pierce

         At approximately 1:11 p.m. Eastern Standard Time[8] on January 4, N375B took off from Ft. Pierce, flying north toward its intended destination of Knoxville, Tennessee. (Stipulated Facts ¶ 13). Although Anders was an instrument-rated pilot, he did not file an instrument flight plan before departing. Instead of flying under instrument flight rules ("IFR"), which govern flight in instrument meteorological conditions ("IMC"), he decided to fly under visual flight rules ("VFR"). (See Air Traffic Control Manual (Manual), Pl's.' Ex. 108A, at Pilot/Controller Glossary PCG V-3 & PCG I-4).[9] IMC are meteorological conditions in which the visibility is less than three miles and the cloud ceiling is less than 1000 feet. (Trial Tr. Day 1 (a.m.), Doc. 122, at 87, 93-94 (Fagras Test.); see also Manual at Pilot/Controller Glossary PCG l-4 (defining IMC as "[m]eteorogical conditions expressed in terms of visibility, distance from cloud, and ceiling less than the minima specified for visual meteorological conditions [VMC]")). VFR provides a method for pilots to fly in VMC using visible landmarks for navigation, and VFR pilots navigate on their own and can make flight decisions without permission of an air traffic controller. Pilots flying VFR are not permitted to fly in IMC unless they are instrument-rated pilots and first obtain an IFR clearance for that purpose. (See Trial Tr. Day 1 (a.m.), Doc. 122, at 87 (Fagras Test.)).

         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, Pl's.' 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. (See Trial Tr. Day 1 (a.m.), Doc. 122, at 66-67 (Fagras Test.)). It is typical that pilots receiving flight following services will maintain contact with controllers as they travel and will notify the controllers before changing altitude. But VFR pilots remain responsible for their own navigation.

         Daytona TRACON

         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, (see Trial Tr. Day 2 (a.m.), Doc. 126, at 95 (Palmer Test.)); Mark Hill, who was responsible for the North Arrival sector, which covers the northern portion of the Daytona TRACON's airspace at altitudes of 3500 feet and below, (see Trial Tr. Day 2 (p.m.), Doc. 131, at 95 (Hill Test.)); and Mike Raulerson, the front line manager. Also among those on duty in the TRACON that day were controllers Travis Hans and Joseph Gambino. All were veteran controllers.

         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. (Id. at 66-67). Upon leaving the Air Force, he went to work as a controller for the Department of Defense before going to work for the FAA in the same capacity. (Id. at 67). He has worked at the Daytona airport since 2005. (Id.). By the time of trial, Palmer had been a controller for over 28 years and was also an on-the-job-training instructor at the Daytona TRACON. (Id. at 69-70). While in the Air Force, Palmer conducted more than 1000 airport surveillance radar approaches (ASRs or surveillance approaches)-helping pilots land using only ground-based radar to provide course guidance and line the aircraft up with the extended centerline of a runway-and he continued to conduct surveillance approaches during his FAA tenure, (Id. at 68; see also Trial Tr. Day 1 (a.m.), Doc. 122, at 45 (Fagras Test.) (explaining radar approaches)).

         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. (Id. at 89). Upon being honorably discharged from the Marine Corps in 1986, Hill joined the FAA as a controller. (Id. at 89-90). In 1999 he was assigned to the Daytona airport, where he worked until his retirement in June 2016. (Id. at 90-91). Like Palmer, he was an on-the-job-training instructor at the Daytona TRACON. (Id. at 90).

         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).[10] For the last seven years of his career, Raulerson was a front line manager, meaning that he supervised other controllers. (Id. at 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. (See National Transportation Safety Board (NTSB) Air Traffic Control Group Factual Report, Pl's.' Ex. 20, at Bates US000030). Gambino was a controller with more than twenty-two years of experience with the FAA. (Id. at Bates US000034). On the day of the accident, he was the Coordinator Controller. (Id.). In that role, he assisted Raulerson and coordinated with the tower at the Flagler County Airport in assisting N375B. (See Id. at Bates 000034-000035).

         Initial Communications

         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 Audio at 1857:21). Palmer, knowing from earlier pilot reports that 6500 feet was not high enough to get out of the clouds, responded, "The tops are reported at 7000 so climb uh at or above 7000 report and uh maintain VFR." (Mateo Tr. at 6; Mateo Audio at 1857:31). At 1:58:51, Palmer checked in to see if Anders was still able to fly VFR, and Anders answered, "Yeah we're just safe here now, we got sunlight." (Mateo Tr. at 7; Mateo Audio at 1858:51-1859:05). A couple minutes later, at 2:01:30, Hans asked Anders if he was "comfortable climbing to 7500" feet. (Mateo Tr. at 8; Mateo Audio at 1901:30). Anders agreed: "Roger I got to get out of the top of the soup here seventy five is clear looks like about seven two for the bases [sic]."[11] (Mateo Tr. at 8; Mateo Audio at 1901:33). Hans then instructed Anders to "maintain VFR 7500" and to report if he needed further changes. (Mateo Tr. at 8; Mateo Audio at 1901:38). At 2:01:42, Anders thanked the controllers for their help. (Mateo Tr. at 8; Mateo Audio at 1901:42).

         Engine Problem

         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[12] (the Flagler airport) at an altitude of 7600 feet and a groundspeed of 142 knots (163.4 miles per hour), (See NTSB Air Traffic Control Factual Report, Pl's.' Ex. 20, at Bates US000024; STARS File, Pl's.' Ex. 58, at 1).[13]

         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 providing Anders with the "IFR clearance" necessary to allow Anders-to that point conducting the flight as a VFR flight-to descend through the cloud layer. (Trial Tr. Day 2 (a.m.), Doc. 126, at 22-23 (Fagras Test.); id, at 116 (Palmer Test.)). Anders acknowledged Palmer's response and thanked him for his help. (Mateo Tr. at 11; Mateo Audio at 1907:29).

         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, at10(PalmerTest.); Id. at 98 (Hill Test.); Raulerson Dep., Doc. 149, at 81-82). Raulerson then went to the Mateo position, where he listened to the conversation between Palmer and Anders. (Trial Tr. Day 2 (p.m.), Doc. 131, at 11 (Palmer Test.); Raulerson Dep. at 81-82). Palmer then asked Anders how many people were on board, how much fuel he had, and about the engine problem. (Mateo Tr. at 11; Mateo Audio at 1907:31-1907:43). After hearing Anders' answers to these questions, Palmer told Anders to continue his present heading and explained that the controllers were going to try to get N375B "as close as [they could]" to the Flagler airport for Runway 29. (Mateo Tr. at 11; Mateo Audio at 1908:04). Palmer told Anders that an instrument approach would be necessary to land at the Flagler airport because there was a 900-foot broken cloud ceiling there, and he then asked Anders, "What are your intentions?" (Mateo Tr. at 11; Mateo Audio at 1908:04). Anders responded, "Give us the localizer please, " (Mateo Tr. at 11; Mateo Audio at 1908:24), referring to a type of instrument approach that provides course guidance to the runway, (Manual, Pl's.' Ex. 108A, at Pilot/Controller Glossary PCG L-2).

         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 1-4; Id. at PCG G-1; see also Id. at PCG L-2 (defining localizer as "[t]he component of an ILS which provides course guidance to the runway")).

         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[14]1 don't have RNAV capability." (Mateo Tr. at 12; Mateo Audio at 1908:50). Anders thus explained that he would need some way other than an RNAV approach to get to an appropriate place to break out of the clouds to try to land the plane at the nearest airport.

         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).

         Approach to the Flagler Airport

         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.[15] The planned route would thus circle the airport clockwise as N375B lost its 7000 feet of altitude so that it could land.

         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[16] at that point is 2200 feet. (North Tr. at 2; North Audio at 1909:17; (Trial Tr. Day 2 (p.m.), Doc. 131, at 103 (Hill Test.)). Anders did not object to the assigned 3000-foot altitude, and he acknowledged the instruction. (North Tr. at 2; North Audio at 1909:21). At 2:09:51, Hill instructed Anders to "turn right heading zero six zero." (North Tr. at 2; North Audio at 1909:51). Getting no response from Anders, eight seconds later Hill repeated the instruction and Anders then acknowledged it. (North Tr. at 2; North Audio at 1909:51-1910:01). At 2:10:18, Hill advised: "Bonanza three seven five bravo this will be an ASR approach to runway two nine at Flagler two nine at Flagler and 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 ceiling we'd[17] like to break out." (North Tr. at 2; North Audio at 1910:27).

         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. (See Trial Tr. Day 3 (a.m.), Doc. 133, at 6; STARS File, Pl's.' Ex. 58, at 2). Hill acknowledged the loss of oil pressure and continued to vector Anders, telling him to "turn right heading zero niner zero" and to "descend and maintain 2000." (North Tr. at 3; North Audio at 1911:25). Anders repeated, "right to zero nine zero from five down to two." (North Tr. at 3; North Audio at 1911:33). Hill noticed that Anders' turns were slow, so in an effort to keep N375B close to the airport, Hill gave Anders instructions for this and other turns earlier than he ordinarily would have done. (See Trial Tr. Day 3 (a.m.), Doc. 133, at 7). Hill remained in constant contact with Anders and at 2:11:47 told him "this will be guidance along the RNAV two nine approach the uh straight in minimum is 560 feet." (North Tr. at 3; North Audio at 1911:47). By "minimum, " Hill was referring to the minimum descent altitude (MDA) for the RNAV 29 approach. The MDA is defined as "[t]he lowest altitude, expressed in feet above mean sea level, to which descent is authorized on final approach ... in execution of a standard instrument approach procedure where no electronic glideslope is provided." (Manual at Pilot/Controller Glossary PCG M-3).[18] Anders acknowledged this information. (North Tr. at 3; North Audio at 1911:58).

         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 Audio at 1914:27). Seventeen seconds after Anders confirmed that instruction, Hill directed him to "turn further right now to two six zero." (North Tr. at 5; North Audio at 1914:34-1914:51). Anders acknowledged and said that he was "beginning to see the water here, " meaning that he could see the ocean from an altitude of 1800 feet; at that time, the plane was roughly paralleling the coastline-slightly offshore- on its base leg. (North Tr. at 5; North Audio at 1914:57). Again making adjustments, Hill told Anders at 2:15:01 that he was "five miles southeast of the field" and to turn further to the right to "two seven zero." (North Tr. at 5; North Audio at 1915:01). Anders acknowledged and reported his altitude as 1600 feet. (North Tr. at 5; North Audio at 1915:09-1915:12).

         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).

         The Crash

         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" and that he would let Daytona know when it was on the ground. (North Audio at 19:18:03 (background)[19]; CIO Tr., Pl's.' Ex. 14E, at 3; CIO Audio, Pl's.' Ex. 23, at 10:18-10:23[20]). After not getting a response for twelve seconds, at 2:18:13 Hill again instructed Anders to contact the Flagler tower. (North Tr. at 7; North Audio at 1918:13).

         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).[21]N375B had crashed "about three quarters of a mile from the runway, slightly left of its extended centerline." (Stipulated Facts ¶ 21). It "ultimately came to rest in a single-family residence, " and "a post-crash fire ensued." (id. ¶¶ 21-22). All three occupants of the plane perished, (Id. ¶ 23).

         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. (See Trial Tr. Day 4 (p.m.), Doc. 142, at 116 (Glass Test.); Trial Tr. Day 3 (p.m.), Doc. 136, at 77 (Seiger Test.)). Glass testified that he saw the plane about a mile and a half from the airport, "very low, " coming "straight towards the airport." (Trial Tr. Day 4 (p.m.), Doc. 142, at 136-38 (Glass Test.)). Seiger, who observed the plane from one of the airport taxiways, testified that the plane was flying with "wings level" but "seemed to be sinking." (Trial Tr. Day 3 (p.m.), Doc. 136, at 69, 74). As Seiger was about to utter, "He's too low, he's not gonna make it, " Seiger lost sight of the plane. (Id. at 74). In a written statement that Seiger completed for the FAA a few days after the crash, Seiger reported, "I observed N375B on a ZA mile final pitch up slightly and the left wing dipped hard to the left and the aircraft went behind the treeline." (Seiger Statement, Pl's.' Ex. 43).

         Examination of the wreckage revealed that the connecting rod in the number four cylinder in the engine had separated and punched a hole in the engine's crankcase. But the cause of the crash was not established at trial. None of Plaintiffs' witnesses could attest to when the hole in the crankcase occurred or when the engine failed completely, if indeed it failed completely prior to the crash. (See Trial Tr. Day 4 (p.m.), Doc. 142, at 103 ("We don't know [when the hole in the crankcase occurred].") (Mackey Test.)). And Plaintiffs' piloting and airplane mechanic witness, Keith Mackey, acknowledged that chordwise scratching on the propeller blades indicated that the plane had at least some power at the time of the crash. (Trial Tr. Day 4 (a.m.), Doc. 145, at 17).

         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, (see Trial Tr. Day 3 (p.m.), Doc. 136, at 123-127), and it is hereby denied as such. The other two motions were denied during trial, but because the Court, as the factfinder in this FTCA case, is called upon to weigh the credibility of witnesses, the bases for these motions are important and therefore the Government's two motions are discussed in more detail here.

         A. Motion to Strike Fagras's Testimony

         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. (Id.).

         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. (See, e.g., Gov't's Ex. 189 (comparison of the two reports)). Fagras emphatically denied obtaining any content in his report from elsewhere, insisting that "[everything in my report was my work .... It was based on my analysis and done in my hand .... The words in my report are my words." (Trial Tr. Day 2 (a.m.), Doc. 126, at 51-52). But despite Fagras's protestation, it was clear that portions of Fagras's report had been copied from another source. After intense cross-examination, the Government moved to strike Fagras's testimony because it was obviously false as to authorship of the report, (id. at 53). The Court took the motion to strike under advisement, (id.), and the Government later supplemented the motion with a memorandum of law (Doc. 130). Plaintiffs then filed an opposition to the motion. (Doc. 144).

         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. See, e.g., Fed.R.Civ.P. 26(a)(2) advisory committee's note to 1993 amendment (noting that "Rule 26(a)(2)(b) does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed."). And no harm comes from counsel providing technical assistance in the preparation and publication of an expert report. In this case, however, Fagras went well beyond accepting technical or editorial assistance. Indeed, Fagras adopted some of the counsel-provided information as his opinions. And, of course, even if he had been within bounds to adopt information supplied to him by counsel, he was wrong to lie and mislead the Court about the source of that information.

         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 (Pl's.' 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.[22]Although he eventually admitted that he had adopted as his own information provided by Plaintiffs' counsel, that acknowledgment came only after rigorous cross-examination that plainly revealed his testimony to be false.[23]

         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.

         B. Motion to Strike Mackey's Testimony

         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, [24] at 14). Mackey explained in the report that "[t]he engine failed after the #4 connecting rod separated and punched a hole in the crankcase." Id. at 18. And "[w]ith the hole in the crankcase caused by the fracture of the #4 connecting rod, the remaining oil in the engine would be quickly lost overboard." Id. This, in Mackey's initial opinion, resulted in Anders' "zero oil pressure" report at 2:11:06. (Trial Tr. Day 4 (p.m.), Doc. 142, at 50).

         As the Government notes, Plaintiffs relied on these opinions at the January 2017 Daubert hearing challenging the opinions of the Government's accident reconstruction expert. Whether there was oil in the engine was an issue. Plaintiffs' counsel, contending that the failure of the engine was not due to a lack of oil, argued, "the engine problem that caused the pilot to call air traffic control and report vibration was due to the failure of the number 4 bearing rod [sic] and bearing." (Daubert Hr'g Tr., Doc. 77, at 75). Plaintiffs' argument that there was oil in the engine was consistent with Mackey's assertion that at the time of the crash "the propeller did not reveal evidence of rotation." (Mackey Report, Gov't's Ex. 188, at 14). Plaintiffs' counsel never filed a supplemental report indicating that Mackey's opinion as to this sequence of events had changed.

         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. (Id. at 52-53). Under his new theory, some oil pressure remained in the system. Mackey's newly minted opinion-revealed for the first time at trial-was that loss of oil resulted in the propeller going to "flat pitch, " creating a drag and causing a sharp descent at 2:15:47. (Id. at 102).

         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:

Q: When do you believe the engine failed completely?
A: When everyone else thinks the gear went down, that's when the prop went to flat pitch. That's what caused the steep descent.
Q: Because in your deposition, sir, you said, "At what point did the engine fail?" "I believe it failed when that rate of descent picked up quickly. When everyone thinks the gear went down, it didn't. That's when the engine failed." Now you're saying it's the prop?
A: That's when the oil pressure went to zero, and that's what caused the prop to go to flat pitch. If the engine happened to quit at that time, the engine was wind-milling. The prop was probably driving the engine. So at the point when it actually would-could not develop any power, I don't know. Effectively, the engine had failed there.

(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 Daubert hearing debunking Mackey's theory as to when the engine failed. Mackey now agrees with the Government's expert that it would have been impossible for N375B to fly-without power-from where Mackey originally said it lost power to the crash site.

         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 that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages." Jenkins v. W.L Roberts, Inc., 851 So.2d 781, 783 (Fla. 1st DCA 2003). The duty owed by air traffic controllers is "Florida's 'traditional. . . standard of reasonable care, that which a reasonably careful person would use under like circumstances." Daley v. United States, 792 F.2d 1081, 1085 (11th Cir. 1986). "[W]hile 'the standard remains one of reasonable care under the circumstances ... the circumstances in an emergency are different and it is reasonable to pay greater attention to an aircraft known to be in distress.'" Id. (second alteration in original) (emphasis removed) (quoting the district court's decision).


         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. See Reiber v. United States, No. 05-22494-CIV, 2007 WL 7243427, at *1-2 (S.D. Fla. Aug. 13, 2007). In this case, Plaintiffs rely on Fagras's testimony to attempt to establish the applicable standard of care and the alleged breaches of the controllers' duties.

         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, Pl's.' 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).[25] In other instances, Fagras gave a hypertechnical interpretation of a provision in order to advocate for Plaintiffs.

         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. (See Manual ¶ 1-1-1). And Fagras's underlying premise-that when Anders reported the propeller vibration, N375B was closer to the Ormond airport than the Flagler airport-is, at best, misleading. These views inform Fagras's other opinions as to the controllers' alleged breaches of duty, and they do not hold up.

         A. Anders' request to descend and the grant of an IFR clearance

         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. (See Mateo Tr. at 10; Mateo Audio at 1907:19 (Anders telling Palmer, "We're going to have to drop quickly here.")). Plaintiffs contend that Palmer's response was premature. In support of this contention, Fagras testified that before granting Anders' request to "drop quickly, " he would have obtained much more information from Anders. For instance, he would have probed Anders regarding the "status of the engine." (Trial Tr. Day 1 (p.m.), Doc. 124, at 65). He would have asked Anders a series of questions, such as "is [the engine] running?, " "Is it making power?, " and "Can you maintain level flight?" (Id. Fagras also "would have discussed possibly preserving a few thousand feet of altitude and seeing if we could make it to Daytona, " (id.), which was 12.4 nautical miles behind N375B when Anders reported the propeller vibration.[26] After having these discussions, Fagras allegedly would have presented Anders with multiple landing options, including the Ormond and Daytona airports, and information about those airports.

         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." (id. ¶ 10-1-1(d)). But when a controller "believe[s] an emergency exists or is imminent, " he is to "select and pursue a course of action which appears to be most appropriate under the circumstances and which most nearly conforms to the instructions in this [M]anual." (Id.)

         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.[27] Id. ¶ 10-1 -1(b)). Once alerted to an emergency, controllers are required to "[o]btain enough information to handle the emergency intelligently." (Id. ¶ 10-1-2). Controllers' decisions "as to what type of assistance is needed" are to be based "on information and requests received from the pilot because [the pilot] is authorized by 14 CFR Part 91 to determine a course of action." (Id. And at all times, the controllers are required to "[p]rovide maximum assistance to aircraft in distress." (Id. ¶ 10-1-3). Paragraph 10-2-1 (a) is more specific, requiring controllers to "[s]tart assistance as soon as enough information has been obtained upon which to act. Information requirements will vary, depending on the existing situation." (id. ¶ 10-2-1 (a)). But the minimum information required to assist an inflight emergency is "[a]ircraft identification and type, " "[n]ature of the emergency, " and "[p]ilot's desires." (Id.)

         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. (See, e.g., Trial Tr. Day 2 (a.m.), Doc. 126, at 16 (Fagras Test); Trial Tr. Day 7 (p.m.), Doc. 164, at 26 (Turner Test.)). At that point, Palmer knew from his radarscope the plane's position, altitude, and speed, and he also already knew N375B's aircraft identification and type[28] as well as the general nature of the mechanical problem. Things began to happen fast, and nothing other than the loss of valuable time would have been gained by asking Anders for information Palmer already had.

         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. (See Trial Tr. Day 2 (a.m.), Doc. 126, at 12 (Fagras Test.)). Palmer promptly provided all three of these so that Anders could begin his requested descent. (See Mateo Tr. at 10; Mateo Audio at 1907:23 ("November three seven five bravo is cleared to Flagler via radar vectors descend and maintain two thousand on your present heading.")). The Flagler airport was the "clearance limit" for ...

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