United States District Court, M.D. Florida, Orlando Division
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,
UNITED STATES OF AMERICA, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
ANTOON II, United States District Judge
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.
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),  claiming that the negligence of Federal
Aviation Administration ("FAA") air traffic
controllers was the proximate cause of decedents' deaths.
The Court consolidated the lawsuits,  which were then tried for
seven days before the Court sitting without a jury. After the
parties submitted post-trial memoranda,  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.
Plans and Preparations
2008, Anders purchased N375B, a single-engine plane with
retractable landing gear, for his personal use. (Stipulated
Facts ¶ 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
checked the compression in N375B's engine and confirmed
Anders' belief that the engine was running poorly.
(Sanders Dep., Doc. 141, at 19). 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. (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,  at 14). Among other things,
Elkins corrected under-torqued spark plugs and wires that
Anders had installed. (Elkins Dep. at 27).
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).
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).
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).
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).
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
Flight from Ft. Pierce
approximately 1:11 p.m. Eastern Standard Time 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). 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.)).
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.
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.
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)).
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).
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). For the last seven years of
his career, Raulerson was a front line manager, meaning that
he supervised other controllers. (Id. at 27).
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).
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]." (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
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 (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).
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).
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).
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
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 but1 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
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).
to the Flagler Airport
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. The planned route would thus circle the
airport clockwise as N375B lost its 7000 feet of altitude so
that it could land.
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 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 like to break
out." (North Tr. at 2; North Audio at 1910:27).
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). Anders acknowledged this
information. (North Tr. at 3; North Audio at 1911:58).
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).
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).
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).
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).
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); CIO Tr.,
Pl's.' Ex. 14E, at 3; CIO Audio, Pl's.' Ex.
23, at 10:18-10:23). 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
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).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).
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).
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).
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.
TRIAL WITNESSES AND MOTIONS
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.
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.
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
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.
Motion to Strike Fagras's Testimony
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
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.
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.
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
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.
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.
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.
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.
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.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.
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.
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.
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
Motion to Strike Mackey's Testimony
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.
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,  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).
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.
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).
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.
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
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
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
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.
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).
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.
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.
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).
CONCLUSIONS OF LAW
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.
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.
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). In other instances, Fagras gave a
hypertechnical interpretation of a provision in order to
advocate for Plaintiffs.
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.
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.
Anders' request to descend and the grant of an IFR
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. 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.
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."
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. 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.)
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 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 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).
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