LEGAL UPDATE:

LESSONS FROM FONTALVO V. SIKORSKY

ABC 2018Loews

Miami Beach

USDC, Southern District of California

• HOW DID WE GET TO TRIAL

• TRIAL

• POST-TRIAL

• TAKEAWAYS

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Topics of Discussion:

THE ACCIDENT

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Landing gear safety pin

NAVY INVESTIGATION

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• Landing gear energized by exposed wires

• Fontalvo should have recognized danger of stuck pin

• Significant Marine Corps training issue regarding landing

gear safety pins

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Left MainLanding Gear

Left Electronics Bay

Landing Gear Control Wire

Cockpit

Hydraulic Module

Landing Gear Hydraulic Line

367 inches of Kapton-----70 inches of Spec 55

Landing gear

Down Valve

Landing gear

Up Valve

Looking Forward

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LANDING GEAR

DOWN VALVE

LANDING GEAR

UP VALVE

DAMAGED SPEC-55 WIRE

BARE WIRE ON THE P494 PIN A

Repair splice

Repair splice

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DETERIORATED KAPTON WIRE

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DETERIORATED

KAPTON WIRE

KAPTON

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• Kapton wire required by US Navy specs

• 58 other Kapton caused incidents

• 3-Stage Navy field retro-fit program

• Similar CH-53E collapse incident in 2005

Government Contractor Defense

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Sgt Alex Fontalvo (posthumously promoted to Staff Sergeant):

• 24 years old

• 8 years in USMC/Airframe CDQAR

• Single

• One biological child

• Fiancée (Tashina Amador) daughter was alleged to be a

Fontalvo dependent.

PLAINTIFFS

ATTEMPTS TO SETTLE AND PRE-TRIAL MOTIONS

• Oct 2016 – $15 million demand

• Dec 2016 – offer of judgment (1.1 million)

• Nov 2017 - Motion For Summary judgment (denied)

Demand increased to $30 million

• Jan 2018 – mandatory settlement conference

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TRIAL

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JUDGE

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Hon. Gonzalo Curiel

JURY

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8 (started with 9)

• 6 homeowners

• 7 some connection to military

• 1 retired Navy Chief

• 1 private pilot

• 1 attorney (insurance defense and plaintiffs work)

PLAINTIFFS’ CASE

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PLAINTIFFS’ OPENING STATEMENT TO THE JURY: ITS SPEC-55

“IF YOU DON’T FIND ITS SPEC-55, THROW US OUT OF COURT.”

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MANUFACTURING

AND

DESIGN

DEFECTS

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o PLAINTIFFS’ EXPERTS:

LEE COFFMAN – SPEC 55 DAMAGE

JOHN BLOOMFIELD – CAUSE OF MISHAP/ALTERNATIVE DESIGN

o DOWN WIRE ENERGIZED UP WIRE

o UP/DOWN WIRES COMMINGLED

o UP/DOWN CONTROL VALVES ON SAME SIDE OF MODULE

PLAINTIFFS’ KEY

DEMONSTRATIVE

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PAGE 121 LINE 24

“Because engineering logic, more likely than not, a high degree of probability -- the only

way that this accident could have happened is that the up wire…had 28 volts and

current applied to it for it to happen. And the only wire that's in the vicinity is

the down wire, which could normally have 28 volts on it. They're all together,

they're all commingled and they're all compromised in their insulation.”

-JOHN BLOOMFIELD

PAGE 185 LINE 13

“I would not bundle the up and the down wire in the same

bundle because if they are and you have a compromise, this is

the result, the accident.”

"Likewise, the utility module itself could just as easily, and

for the same cost, have been designed with the up and down

control valves on opposite sides”

-JOHN BLOOMFIELD

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-USMC LT COL IN CHARGE OF INVESTIGATION

• Spec-55 was the “culprit”

PLAINTIFFS CASE IS HELPED BY MARINE

CORPS TESTIMONY:

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TESTIFIED THAT FONTALVO DID NOTHING WRONG

• USMC corporal that served with Fontalvo

• USMC captain that trained Fontalvo

PLAINTIFFS CASE IS HELPED BY MARINE

CORPS TESTIMONY:

Page 40

6 Q Okay. Do you ever -- do you recall,

7 during your training of Sergeant Fontalvo, whether

8 you discussed the landing gear -- the landing gear

9 system with him?

10 A I do not recall.

11 Q Okay. Do you recall ever discussing the

12 landing gear safety pin with him?

13 A I do not recall.

MH-00039-06

USMC CAPTAIN

Page 42

7 Q As you sit here today, do you know what to

8 do if you encounter a stuck landing gear safety pin?

9 A As I sit here today, no, sir. Obviously,

10 after what happened, I would change what I would –

11 if I felt one now, I would never touch it. But we

12 were never instructed. It was not common knowledge,

13 if you felt, you know, something that was stuck, not

14 to pull it out.

15 Q Okay. So when you were working as an

16 airframe mechanic, you don't believe you were ever

17 instructed as to what to do if you encountered a

18 stuck landing gear safety pin?

19 A No, sir.

MH-00039-06

USMC CAPTAIN

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PLAINTIFFS

USED LOTS OF

EMOTION

Page 92

Q. I want to ask you some questions about the incident.

So at any time you want to take a break, just take a break.

A. Okay.

Q. How did you first find out about the incident?

A. They -- two marines came to my -- two

marines came to my house around 10:30 at night.

Q. And what do you -- what do you recall

they told you?

A. My husband opened the door and then --

and then he hand me a paper and he's telling me that

my son (crying) was killed in a -- an accident and he

got pinned under the helicopter or something like

that.

NF-00092-15

SGT FONTALVO’S MOTHER

Page 95

16 Q. What -- do you recall what they told

17 you about what happened when you were there at the

18 helicopter?

19 A. I don't recall that much. I just --

20 they just showed us around and showed -- one of the

21 marines there showed us what he's supposed to do;

22 that they pull a pin. It looks like a -- he tried to

23 pull it out. (Crying.) It looks like it got stuck.

24 He tried again and the tires went up and --

25 Q. Did they --

1 A. -- then it fell on top of him and he

2 got (crying) -- he got stuck in there for two hours.

3 They couldn't lift that thing up.

NF-00092-15

SGT FONTALVO’S MOTHER

PLAINTIFFS’ ECONOMIST:

$1.5 MILLION

CROSS: ADMITTED CALCULATION SHOULD BE

CLOSER TO $1 MILLION

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DEFENDANTS’ CASE

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GOVERNMENT CONTROL

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John Wakefield:

• Former Sikorsky CH-53E Production Manager

• Former USMC CH-53E helicopter pilot

WAKEFIELD: GOVERNMENT CONTROL

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Page 76

1 I forgot to ask

2 you earlier…how many engineers work here

3 at NAVAIR?

4 A At Pax River I believe about 17,000.

5 Q 17,000?

6 A People.

7 Q How many with engineers degrees?

8 A Whew, I have no idea.

9 Q Over a hundred?

10 A Yes.

11 Q Over a thousand?

12 A Definitely into the thousands.

13 Q Into the thousands, okay. And those are

14 all engineers that work on aircraft systems?

15 A Correct.

16 Q And the various subsystems that we

17 talked about earlier, so could be landing gear,

18 electrical, propulsion, whatever, right?

19 A Correct.

LL-00075-25

GOV WITNESS: CONFIRMS GOV CONTROL

Page 115

11 Q Okay. For the CH-53E, right, it would have

12 generated, it would have provided drawings to NAVAIR

13 for the CH-53E?

14 A Correct.

15 Q Right, for all of the subsystems?

16 A Correct.

17 Q NAVAIR would have reviewed those

18 drawings?

19 A Correct.

20 Q Analyzed those drawings?

21 A Correct.

22 Q And if were any changes that they

23 wanted to make, their engineers would have then

24 gone back to Sikorsky with those changes, correct?

25 A Correct.

LL-00115-11

GOV WITNESS: CONFIRMS GOV CONTROL

TAUGHT JURY ABOUT:

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Jim Knox – electrical system expert

• CH-53E LG SYSTEM

• KAPTON DAMAGE

• WHY PLAINTIFFS’ SPEC-55 THEORY IS

WRONG

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Drag Strut/Hydraulic Landing Gear Operation

KNOX MADE USE OF ANIMATION:

KEY TRIAL DEMONSTRATIVE:

Jury came out of

their seats to view

its operation.

MARINE CORPS MAINTENANCE

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Rob Ostrowski

• current Sikorsky employee

• 18 year USMC CH-53E maintainer and crew chief

MARINE CORPS MAINTENANCE

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Rob Ostrowski – testified about:

• NAVAIR and USMC CH-53E maintenance

• Wire damage due to poor maintenance

• Replacement of utility module in accident helicopter

Page 50

8 Q So during maintenance that's done on an

9 aircraft, that can occasionally damage a wire, correct?

10 A Yes.

11 Q And what are the ways in which that

12 maintenance can damage wire?

13 A Well, from my experience and what I've seen

14 is it's not the electricians or the avionics

15 technicians who have problems with the wiring. Because

16 that's what they're trained in. It's, like, the

17 hydraulic servicing guys. And they would replace a

18 line and they move the wiring out of place to get to

19 the unit. And they put it back, but they don't know

20 exactly what they're doing. So they won't necessarily

21 put it back correctly.

MM-00050-07

GOV WITNESS:

CONFIRMS USMC MAINTENANCE ISSUES

Page 59

4 Q So, Martin, before we broke, we were

5 talking about maintenance that caused problems or

6 damaged wiring. So maintenance procedures that would

7 ultimately lead to wiring being damaged, correct?

8 A Correct.

9 Q Now, when we were talking about that

10 subject, were you limiting that just to Kapton wiring,

11 or did those kinds of problems occur with all types of

12 wiring?

13 A That's all types of wiring.

14 Q So, for example, you've mentioned that

15 you've seen hydraulic system guys not put wiring back

16 in the correct place. Was that just limited to Kapton,

17 or have you seen that with other types of wiring?

18 A I've seen that with all types of wiring.25 Q And we talked about nicks in wiring where

1 the insulation is taken away down to the conductor.

2 Have you seen that with other types of

3 wiring as well?

4 A Yes.

MM-00059-04

Page 51

10 Q Would you read -- would you read what you wrote

11 from Mitch on down to signing it Aldo?

12 A Yeah. Good morning. My thoughts, it could be

13 that we, including myself, are so used to seeing the Kapton

14 in that degraded condition that it looks normal to us. I

15 have suggested a bulletin to replace that wire to the up

16 solenoid next phase for all aircraft. This is something

17 the fleet can implement now even without a bulletin and

18 signed it Aldo.

19 Q Did that ever happen?20 A No, I don't believe so.

AB-00051-10

GOV WITNESS: POOR CONDITION OF KAPTON

IS THE NORM

Page 93

3 Q Do you know why a system safety risk

4 assessment needed to be done at this point in time,

5 2009?

6 A There was always a risk assessment done

7 that was part of the -- that's how the 2B came about

8 and how it all changed in time. But around this time

9 Rear Admiral Eastburg became the PEOA and --

10 Q Let's stop there.

11 What is a PEOA?

12 A Program executive officer for air programs…

24 …when Rear Admiral Eastburg took over

25 PEOA, he insisted on having an actual signed risk

1 acceptance for every risk that we had in the program,

2 across the PEO, not just our program.

WM-00093-03

GOV WITNESS: CONFIRMED KNOWLEDGE

OF CH-53E WIRE PROBLEMS

Page 94

9 Q But the risk that's being accepted here --

10 what is the risk that's being accepted?

11 A To -- acknowledgment that there is -- a

12 hazard had been identified. This is the probability

13 and consequence of that hazard. Do we concur that it's

14 okay to continue to operate aircraft with this known

15 hazard.

16 Q And everyone that signed this is indicating

17 that -- or everyone that signs this, their response to

18 that question is yes?

19 A Yes.

WM-00093-03

WM-00093-03

3 that they understand the risks associated with

4 continuing to operate the CH-53 Echo. And one of those

5 risks is the -- is that you may have an inadvertent

6 landing gear retraction while the aircraft is on the

7 ground, correct?

8 A Yes.

9 Q They understand that that's a risk. And

10 they are saying that this aircraft is going to continue

11 to operate even with that known risk, correct?

12 A Yes.

1 Q So Brigadier

2 General Davis and Rear Admiral Eastburg are stating

PAGE 17 LINE 5

Q When did you first become aware that if the

landing gear safety pin on a CH-53E helicopter

offers resistance, you shouldn't pull it?

A That was one of the things they taught when

they talked about the landing gear pins.

MARINE WITNESS: FONTALVO TRAINING

PAGE 17 LINE 5

landing gear safety pin offers resistance, you

should not try to force it out or pull it out?

A Yes, sir.

MARINE WITNESS: FONTALVO TRAINING

Q You gave some instruction to Sergeant

Fontalvo when you were both stationed in

Okinawa, correct?

A Yes.

Q Did you teach him both of those things?

A Yes, sir.

Q Specifically did you teach him that if the

CLOSING ARGUMENTS

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• Plaintiffs asked jury to award $47 million

$1 million economics

$46 million non-economics

VERDICT

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• For the Defense in 80 minutes

• Manufacturing: No defect

• Design: Found defect under “consumer

expectation” test but found defect was not

a substantial factor

POST-TRIAL

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• Court awarded Sikorsky $41K costs

• Motion for JMOL and New Trial

• Settlement:

o Less than Dec 2016 offer of judgment

o Plaintiffs’ attorneys waived all fees

o Trial judgment remains in place

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TAKEAWAYS

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• Jurors in federal court taken from voting records

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REMOVAL TO FEDERAL COURT

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ACCESS TO CLIENT EMPLOYEES

EARLIER THE BETTER

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IMPORTANCE OF VIDEO DEPOSITIONS

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DO A MOCK TRIAL

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DURING TRIAL:

• Keep the story focused

• Use engaging demonstratives – don’t have

to be flashy

• Be flexible: Don’t be afraid to remove/add

witnesses

WHAT JURY SAID:

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• Plaintiffs’ case:

WHAT JURY SAID:

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• Defendants’ case:

WHAT JURY SAID:

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• Defendants’ case:

Questions?