government response to lippy lawsuit
TRANSCRIPT
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND
CHRISTINA LIPPY, et al., :
Plaintiffs, :
v. : Civil No. PJM-10-627
UNITED STATES OF AMERICA, :
Defendant . ::
...o0o...
UNITED STATES FIRST AMENDED ANSWER ANDAFFIRMATIVE DEFENSES TO PLAINTIFFS COMPLAINT
Pursuant Fed. R. Civ. P. 15(a) and the written consent of Plaintiff (Ex. A),
Defendant United States of America hereby submits this First Amended Answer and
Affirmative Defenses to Plaintiffs Complaint as follows:
1. The allegations in paragraph 1 contain legal conclusion to which no
response is required. To the extent that a response is required, the United States denies
the allegations.
2. The allegations in paragraph 2 contain legal conclusions to which no
response is required. To the extent that a response is required, the United States denies
the allegation.
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3. The allegations in paragraph 3 contain legal conclusions to which no
response is required. To the extent that a response is required, the United States admits
that Plaintiffs herein have served the Complaint upon the Attorney General and the
United States Attorney.
4. The United States admits only that the accident that is the subject of
Plaintiffs Complaint occurred in Southern Maryland. Except as expressly admitted
herein, the United States is without knowledge or information sufficient to form a belief
as to the truth or falsity of the allegations contained in paragraph 4, and therefore denies
them.
5. The United States admits the allegations asserted in Paragraph 5.
6. The United States admits that, as of the date of filing of Plaintiffs
Complaint, the Federal Aviation Administration (FAA) had not responded to Plaintiffs
administrative claim. Except as expressly admitted herein, the allegations contained in
paragraph 6 are denied.
7. The United States admits only that Plaintiffs have apparently elected to file
suit in accordance with 28 U.S.C. 2678(a). Except as expressly admitted herein, the
allegations of paragraph 7 are denied.
8. The United States is without knowledge or information sufficient to form a
belief as to the truth or falsity of the allegations contained in paragraph 8, and therefore
denies them.
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15. The United States is without knowledge or information sufficient to form a
belief as to the truth or falsity of the allegations contained in paragraph 15, and therefore
denies them.
16. The United States admits only that on September 27, 2008, the pilot
of the helicopter operating as Trooper 2, while en route to PGH, diverted to Andrews Air
Force Base (ADW). Except as expressly admitted herein, the United States is without
knowledge or information sufficient to form a belief as to the truth or falsity of the
allegations contained in paragraph 16, and therefore denies them.
17. The United States admits only that the transcript of communications
between the Potomac Terminal Radar Approach facility and the pilot of Trooper 2
indicates that on September 28, 2008 at 0348:08 Universal Time Coordinated (UTC),
the pilot of Trooper 2 transmitted, Potomac Approach Trooper two uh we tried to make a
medevac up to PG Hospital were about seven miles northwest of Andrews would like to
climb to two thousand feet and shoot an approach into uh runway one left at Andrews.
Except as expressly admitted herein, the United States is without knowledge or
information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 17, and therefore denies them.
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18. The United States admits only that on September 27, 2008, the helicopter
operating as Trooper 2 flew in airspace wherein FAA air traffic controllers provided
certain air traffic services. Except as expressly admitted herein, the allegations in
paragraph 18 are denied.
19. The United States admits only that the pilot of Trooper 2 was in radio
contact with FAA air traffic controllers who provided certain air traffic services to
Trooper 2 on September 27, 2008 while acting in the course and scope of their
employment. Except as expressly admitted herein, the allegations in paragraph 19 are
denied.
20. The United States admits only that on September 27, 2008, FAA air traffic
controllers provided certain weather information to the pilot of Trooper 2. Except as
expressly admitted herein, the allegations in paragraph 20 are denied.
21. The United States denies the allegations in paragraph 21.
22. The United States denies the allegations in paragraph 22.
23. The United States denies the allegations in paragraph 23.
24. The United States denies the allegations in paragraph 24.
25. The United States admits only that the transcript of communications
between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0356:45
UTC, the pilot of Trooper 2 transmitted, Andrews tower Trooper two Im not picking up
the glidescope. Except as expressly admitted herein, the United States is without
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knowledge or information sufficient to form a belief as to the truth or falsity of the
allegations in paragraph 25, and therefore denies them.
26. The United States admits only that the transcript of communications
between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0356:50
UTC, the ADW air traffic controller transmitted, Trooper two roger uh its showing green
on the panel but uh youre the only aircraft weve had in a long time so I dont really
know if its working or not. Except as expressly admitted herein, the United States is
without knowledge or information sufficient to form a belief as to the truth or falsity of
the allegations in paragraph 26, and therefore denies them.
27. The United States admits only that the transcript of communications
between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0357:00
UTC, the pilot of Trooper 2 transmitted, okay can I get an ASR approach in. Except as
expressly admitted herein, the United States is without knowledge or information
sufficient to form a belief as to the truth or falsity of the allegations in paragraph 27, and
therefore denies them.
28. The United States admits only that an ASR approach is one in which the
controller provides navigational guidance in azimuth only. Except as expressly admitted
herein, the allegations of paragraph 28 are denied.
29. The United States admits only that the transcript of communications
between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at
0357:00, the ADW air traffic controller transmitted, I dont have anybody to do that um
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Im not current on that I cant do it. Except as expressly admitted herein, the allegations
in paragraph 29 are denied.
30. The United States denies the allegations in paragraph 30.
31. The United States admits only that the helicopter operating as Trooper 2
impacted terrain, resulting in the deaths of three occupants as well as the pilot and that
one occupant survived with injuries. Except as expressly admitted herein, the allegations
in paragraph 31 are denied.
32. The United States is without knowledge or information sufficient to form a
belief as to the truth or falsity of the allegations in paragraph 32, and therefore denies
them.
COUNT I
33. The United States incorporates by reference all of its answers to the
paragraphs above into this paragraph as if fully restated herein.
34. The United States denies the allegations in paragraph 34.
35. The United States denies the allegations in paragraph 35.
36. The United States denies the allegations in paragraph 36.
37. The United States denies the allegations in paragraph 37.
38. The United States denies the allegations in paragraph 38.
39. The United States denies the allegations in paragraph 39.
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COUNT II
40. The United States incorporates by reference all of its answers to the
paragraphs above into this paragraph as if fully restated herein.
41. The United States denies the allegations in paragraph 41.
42. The United States denies the allegations in paragraph 42.
43. The United States denies the allegations in paragraph 43.
The Wherefore clause is a prayer for relief and requires no response. To
the extent a response is required, the allegations of the Wherefore clause are denied.
GENERAL DENIAL
The United States denies all allegations of the Complaint not specifically admitted.
AFFIRMATIVE DEFENSES
1. The Court lacks subject matter jurisdiction over this matter under the
Federal Tort Claims Act, 28 U.S.C. 2680. Plaintiffs complaint lacks specificity as to some
of the alleged failures on the part of FAA air traffic controllers. See, e.g. , Complaint at para. 37
(controllers failed to follow all proper operational protocols and procedures). To the extent
that any such alleged failures are both discretionary and of the type the discretionary function
defense is designed to shield, such failures fall outside of the FTCAs limited waiver of
sovereign immunity.
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2. The injuries described in the Complaint were solely and proximately caused
by the conduct of third persons or entities over which the United States had no control or
right of control and for whom the United States is not legally responsible. More
specifically, the pilot in command of Trooper 2 breached his duty of care to Plaintiffs in
his planning of the flight by, without limitation, failing to: (1) make a proper risk
assessment; (2) ensure the aircraft was equipped with current and appropriate instrument
approach charts; (3) familiarize himself with the current and forecast weather conditions;
and (4) anticipate and plan for an inadvertent encounter with instrument weather
conditions. The pilot in command also breached his duty of care in executing the flight
by, without limitation, failing to: (1) use the call sign Lifeguard in communicating with
the Potomac TRACON and the Andrews Air Traffic Control Tower; (2) execute properly
an instrument approach to Andrews Air Force Base; (3) follow the published and
prescribed instrument approach procedure for Runway 19 Right; (4) fly a proper,
acceptable, and safe approach profile after he reported "Im not picking up the glide
slope"; (5) ensure that his aircraft's descent rate was not too great (particularly not greater
than 1000 feet per minute (FPM) during the final stage of the approach (i.e., when the
aircraft is below 1,000 feet above ground level)) ( see FAA Instrument Flying Handbook,
emphasizing that descent rates greater than 1,000 FMP are not permitted in either the
instrument or visual portions of an approach, and that such descent rates are
unacceptable.); (6) abide by Federal Aviation Regulations, including but not limited to
FAR 91.13 ("careless and reckless") and 91.175 ("takeoff and landing under IFR"); (7) fly
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a stabilized approach after reporting the glide slope failure in accordance with good and
acceptable operating practices and procedures; (8) revert to a localizer only approach
after he reported the glide slope failure; (9) execute a missed approach or request an
instrument approach to another runway; (10) after learning that the controller could not
provide an Airport Surveillance Radar Approach, revert to a localizer only approach,
execute a missed approach, request another type of approach, or declare an emergency;
(11) level off at the minimum descent altitude for the localizer only approach and fly
inbound on the localizer to the visual descent point; and (12) heed both the aural and
visual warnings provided by the aircrafts radar altimeter by making an immediate missed
approach; (13) properly monitor and cross-check his flight instruments; (14) maintain
situational awareness, including guarding against spatial disorientation and visual
illusions; and (15) heed the warnings and cautions contained in the FAA Aeronautical
Information Manual, FAA Instrument Flying Handbook, Aircraft Flight Manual, and
Maryland State Police Operations Manual, and similar publications, pertaining to
instrument approaches, as well as his pilot training. Contributing to the accident was (1)
the pilots limited recent instrument flight experience; (2) pilot fatigue; (3) improper use
of or malfunction of the autopilot or other aircraft equipment; (4) the lack of adherence to
effective risk management procedures by the Maryland State Police; (5) lack of training,
supervision, flight following, and oversight by the Maryland State Police; and (6) the lack
of a terrain awareness system on board the aircraft. No alleged act or omission on the
part of the United States caused or contributed to the accident. In addition, many of the
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alleged acts or omissions by the controllers were discrete and supervened by the pilots
subsequent and highly unusual and extraordinary conduct in allowing or placing the
aircraft in an extremely aggressive and improper descent of over 2000 feet per minute
when flying less than 1000 feet above ground level, and also in not stopping that descent
before crashing into the ground. In addition to the above, the pilots supervening,
intervening, and unforeseeable negligence included, but was not limited to: (a) flying
below the authorized minimum descent altitude for the localizer only approach to
Runway 19 Right, and (b) ignoring the aural and visual alarm set off at 300 feet above the
ground by the aircrafts radar altimeter.
3. Any alleged liability on the part of the United States, which alleged liability
is expressly denied, is barred or reduced by the negligence, gross negligence and/or other
fault of the pilot-in-command, other employees of the State of Maryland, and/or other
individuals. As stated above (see affirmative defense no. 2), any alleged procedural
deficiencies by air traffic controllers did not cause or contribute to the accident. No
alleged act or omission on the part of the United States was even a factor, let alone a
substantial factor in causing the accident. As described above (see affirmative defense
no. 2), the pilots conduct, in combination with the conduct of the Maryland State Police,
was the cause of the accident. In addition, an equipment malfunction on board the
aircraft may have contributed to the crash. Thus, Plaintiffs are barred from recovery.
4. In the event the United States is found to be at fault in this matter, which
fault is expressly denied, fault should be apportioned among and allocated to all parties,
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nonparties, persons, or entities at fault, including, but not limited to, present and future
parties. See affirmative defenses nos. 2 and 3.
5. In the event the United States is found to be at fault in this matter, which
fault is expressly denied, the amount of damages recoverable by Plaintiffs, if any, is
limited pursuant to any cap on damages under Maryland state law. Md. Code Ann., Cts.
& Jud. Proc. 11-108.
6. In the event the United States is found to be at fault in this matter, which
fault is expressly denied, the amount of damages recoverable by Plaintiffs, if any, should
be reduced by amounts collected by Plaintiffs from any source.
7. Plaintiffs are not entitled to costs or disbursements. 28 U.S.C. 2412(b),
2412(d)(1)(A).
8. Plaintiffs are not entitled to prejudgment interest. 28 U.S.C. 2674.
WHEREFORE, Defendant United States of America prays for judgment
dismissing Plaintiffs Complaint with prejudice and that Defendant United States be
granted its costs of defense, and such other, further, or different relief to which it might
otherwise show itself to be justly entitled.
Dated: September 16, 2010
Respectfully submitted,
TONY WESTAssistant Attorney General
ROD ROSENSTEINUnited States Attorney
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JOSEPH BALDWINAssistant United States Attorney
s/ Robert J. GrossROBERT J. GROSS
and
s/ Ahsley E. Demps eyASHLEY E. DEMPSEYTrial AttorneysCivil Division, Torts BranchU.S. Department of JusticeP. O. Box 14271Washington, DC 20044-4271
Tel: (202) 616-4038Fax: (202) 616-4159Attorneys for DefendantUnited States of America
Of Counsel:Bradley J. PreambleOffice of the Chief CounselFederal Aviation Administration
800 Independence Avenue, SWWashington, DC 20591Telephone: (202) 385-8223E-mail: [email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of September 2010, I electronically
filed the foregoing document with the Clerk of the Court using CM/ECF, which will be
served this day on all counsel of record identified on the attached service list via
transmission of the Notice of Electronic Filing generated by CM/ECF.
/s/ Robert J. Gross
SERVICE LIST
Robert D. Schulte, Esq.SCHULTE BOOTH, P.C.3001 Elliott StreetBaltimore, MD 21224(410) 732-1315Attorneys for Plaintiffs
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