Preview
GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351 Electronically
JOHN H. MOON, State Bar No, 253811
MICHAELIS, MONTANARI & JOHNSON, P.C. by Superior Court of California, County of San Mateo
4333 Park Terrace Dr. #100 IN 2/18/2021
Westlake Village, CA 91361 By. /s/ Una Finau
Telephone No.: (818) 865-0444 Deputy Clerk
Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11
BRYAN TRUJILLO and CINDY Case No.: 18CIV01901
TRUJILLO, Honorable Nancy L. Fineman; Dept. 4
12
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Plaintiffs, OPPOSITION TO PLAINTIFFS’
MOTION IN LIMINE NO. 6 TO
14
VS. EXCLUDE TESTIMONY REGARDING
DEFENDANTS’ EXPERT BARRY
15 SCHIFF’S UNDISCLOSED FLIGHT
STEPHEN MAGEE, SAC AERO FLYING TESTING
CLUB, INC. and DOES 1 - 50,
16
Date: March 8, 2021
iv
Defendants. Time: 1:30 p.m.
Dept.: 4
18 Complaint filed: April 17, 2018
Trial Date: TB.
19
20 I INTRODUCTION
21 Captain Barry Schiff only conducted flight testing after it was learned by defendants at the
22 deposition of plaintiffs’ expert, Douglas Herliby, that Mr, Herlihy conducted some flight tests. Mr.
23 Herlihy’s expert deposition took place on October 28, 2019. One week before the original trial date
24 of November 4, 2019, Captain Schifi’s deposition was taken earlier, on October 23, 2019.
25 Therefore, defendants were not aware of the flight testing done by plaintiffs’ pilot expert before
26 Captain Schiffs deposition and could not at that time anticipate or indicate that there would be
27 additional work needed, i.c., flight testing to address testimony or issues raised by Mr. Herlihy.
28 Mii
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OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING
DEFENDANTS’ EXPERT BARRY SCHILFF’S UNDISCLOSED FLIGHT TESTING
A true and correct copy of Herlihy’s deposition excerpts are attached as Exhibit A to the
Montanari Declaration. In spite of the fact that Mr. MAGEE has consistently testified that he
retracted the flaps from 30 degrees to near 20 degrees on final approach, Mr. Herlihy chose to do ail
of his testing retracting the flaps from 30 degrees to zero degrees asserting the flaps were found in
that position after impact. (Herlihy Deposition, 55:16-56:3.) Mr. Herlihy had no flight test protocol
nor did he videotape the tests showing the instruments during the testing. (Herlihy Deposition,
47:12-23, 50:9-20.) Mr. Herlihy said in three simulator flight tests, he lost control of the aircraft
and in an actual flight when reducing the flaps with half power, he lost control of the aireraft.
(Herlihy Deposition, 51:9-25, 67:14-18.) Itis in response to these rather incredulous test results that
10 Captain Schiff decided to conduct flight tests to explore Mr, Herlihy’s results.
qd Captain Schiff attempted to schedule his own flight testing which eventually occurred on
12 December 28, 2019 and January 10, 2020. This necessitated developing a flight test protocol,
13 locating a Cessna 172N model aircraft and coordinating the schedules of Captain Schiff and the
14 photographer over the holidays. Counsel for plaintiffs was advised of this further work performed
15 by Captain Schiff by letter sent via email on January 17, 2020 and offering him for a deposition
16 asking plaintiffs’ attorney to provide some dates that work for his calendar. Plaintiffs’ attorney never
17 provided any dates to this day, now over one year since the notice of the flight tests. Plaintiffs’
18 motion states no reason why they chose not to notice a subsequent deposition of Captain Schiff after
19 first being notified on January 17,2020 of the additional work. Captain Schiff was repeatedly made
20 available for a further deposition at plaintiffs’ convenience in letters of January 23 and 31, 2020 and
21 February 4 and 13, 2020. (Decl. Montanari, Exhibit B.) The letter of February 13, 2020 listed the
22 opinions of Captain Schiff as a result of the flight tests. Plaintiffs’ counsel provided one sentence
23 responses by regular mail, as evidenced in the letters attached in plaintiffs’ Exhibits D and E.
24 Accordingly, plaintiffs declined to take Captain Schiff’s deposition after having been given ample
25 advance notice of the additional work in response to plaintiffs’ expert witness’s testimony and the
26 opinions formed as a result of that testing.
27 ‘ti
28 ‘ii
2.
OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING
DEFENDANTS’ EXPERT BARRY SCHIFI?S UNDISCLOSED FLIGHT TESTING
DEFENDANTS PROVIDED PROMPT NOTICE TO
PLAINTIFFS ABOUT ADDITIONAL FLIGHT
TESTING WITH SUFFICIENT TIME FOR
PLAINTIFFS TO CONDUCT A FOLLOWUP
DEPOSITION AT DEFENDANTS’ COST
In Easterby v. Clark (2009) 171 Cal.App.4th 772, 781, the Court of Appeal stated, in
pertinent part, as follows:
“The overarching principle in Kennemer, Jones and Bonds is clear:
aparty’s expert may not offer testimony at trial that exceeds the scope
10 of his deposition testimony if the opposing party has no notice or
11 expectation that the expert will offer new testimony, or ifnotice of the
12 new testimony comes at a time when deposing the expert is
13 unreasonably difficult. The present case differs from Kennemer,
14 Jones and Bonds in one salient respect: defendants learned
15 approximately three months before trial that Regan would go beyond
16 his original deposition testimony and offer a causation opinion at
17 trial. Specifically, plaintiffs informed defendants that Regan would
18 ‘testify at trial that to a reasonable degree of medical probability the
19 event of March 2, 2004, led to plaintiffs surgery.’ Thus, unlike the
20 defendants in Kennemer and Jones, and the plaintiff in Bonds, who
al had no reason to believe that the opposing party’s expert would offer
22 an opinion at trial not offered in his deposition, defendants in this
23 case were explicitly notified that Regan would offer an opinion that
24 was different from the opinion he offered in his deposition. And
25 unlike Kennemer, Jones and Bonds, defendants in this case had the
26 opportunity to take Regan’s deposition in light ofhis changed opinion
27 and prepare for cross-examination and rebuttal of his testimony. The
28 elements of unfair surprise and prejudice present in Kennemer, Jones
3e
OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING
DEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING
and Bonds are entirely absent in this case.”
(Easterby v. Clark, supra, 171 Cal.App.4th at 780.)
‘The Court of Appeal concluded under these circumstances that the trial court erred by striking expert
Regan’s testimony. (Jd. at 783.)
The same factual pattern that the Court of Appeal in Easterby held was error and a
miscarriage of justice to not allow an expert opinion to testify to new opinions is present in this
matter. In fact, defendants followed the Hasterby example to make sure there was zero
gamesmanship or prejudice. Defendants provided plaintiffs with notice that Captain Schiffhad done
additional work, Le., the flight tests, and did so with plenty of time for plaintiffs to take Captain
10 Schiff’s deposition. Defendants offered Captain Schiff for a deposition on any date convenient to
il plaintiffs. Additionally, plaintiff's were informed exactly what type of additional work Captain Schiff
12 did, why he did it, when he did it and his opinions based on those tests. Thus, the elements of unfair
13 surprise and prejudice with respect to Captain Schiff’s additional work were removed and plaintiffs
14 were put on full notice with ample opportunity to take Captain Schiff's deposition concerning the
1s flight testing.
16 Moreover, it is clear that the time given to plaintiffs to take a further deposition of Captain
1? Schiff was abundantly adequate as a matter of law. Plaintiffs now had at least one (1) year in which
18 to take it. In Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1260-
19 1261, the Court of Appeal held that the trial court properly allowed new expert testimony on testing
20 during a trial even though the opposing party was only given time to take the expert’s deposition
21 during the trial before cross-examination, Plaintiffs in this case had a much more reasonable
22 window to conduct a followup deposition of Captain Schiff, but chose to forego such a convenience
23 even though defendants adhered to the proper practices outlined by the Court of Appeal in Easterby.
24 Based on the foregoing, it would be reversible error for the Court to prohibit Mr. Schiff from
25 testifying about the flight tests he performed after his October 23, 2019 expert deposition because
26 there is demonstrably no unfair surprise and prejudice to plaintiffs regarding such additional work
27 and testimony.
28 it
-4-
OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO, 6 TO EXCLUDE TESTIMONY REGARDING
IEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING
Vv CONCLUSIO’
The Court is requested to deny plaintiffs’ motion in its entirety.
DATED: February 17, 2021 MICHAELIS, MONTANARI & JOHNSON
By
RRY, ITANARI
Attorne: ‘or Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC,
NAL7517ipld\trialtMMIL- new - plefStoppositions\p-opp.rmil.6.wpd
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5.
OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING
JPEFEN DANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING
PROOF OF SERVICE
STATE OF CALIFORNIA )
SS.
COUNTY OF LOS ANGELES )
1am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 4333 Park Terrace Dr. #100, Westlake
Village, California 91361.
On February 17, 2021, I served the foregoing document described as OPPOSITION TO
PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING
DEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING on the
interested parties in this action by placing a true copy thereof in a sealed envelope with postage
thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows:
Michael S. Danko, Esq. Attorneys for Plaintiffs
Shawn Miller, Esq.
10 Danko Meredith
333 Twin Dolphin Dr. #145
i Redwood Shores, CA 94065
tel: (650) 453-3600; fax: (650) 394-8672
12 Email: mdanko@dankolaw.com; smiller@dankolaw.com
Lg [x] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California.
The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with firm’s
14 practice of collection and processing correspondence for mailing. It is deposited with U.S. postal
service on that same day in the ordinary course of business. I am aware that on motion of party
LS served, service is presumed invalid if postal cancellation date or postage meter date is more than 1
day after date of deposit for mailing in affidavit.
16
sad [Xx] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to
be sent to the recipient noted above via electronic transfer (email) at the respective email addresses
18 indicated above because of the COVID-19 virus.
LS Ul (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office
located at Westlake Village, California. The envelope was mailed fully prepaid. I am “readily
20 familiar” with firm’s practice of collection and processing correspondence for mailing with Federal
Express. It is deposited with the Westlake Village Federal Express service on that same day in the
21 ordinary course of business. I am aware that on motion of party served, service is presumed invalid
if cancellation date is more than 1 day after date of deposit for overnight mailing in affidavit.
22
23 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
24
25 Executed on February 17, 2021 at Westlake Village, California.
26
Barbara HausSmann, CCLS
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GARRY L. MONTANARI, State Bar No. 89790
WESLEY 8. WENIG, State Bar No. 162351
JOHN H. MOON, State Bar No, 253811
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr, #100
Westlake Village, CA 91361
Telephone No.: (818) 865-0444
Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11
BRYAN TRUJILLO and CINDY Case No.: 18CIV01901
12
TRUJILLO, Honorable Nancy L. Fineman; Dept. 4
13
Plaintiffs, DECLARATION OF GARRY L.
MONTANARI IN SUPPORT OF
14
VS. OPPOSITION TO PLAINTIFFS’
MOTION IN LIMINE NO. 6 TO
15 EXCLUDE TESTIMONY REGARDING
STEPHEN MAGEE, SAC AERO FLYING DEFENDANTS’ EXPERT BARRY
16
CLUB, INC, and DOES 1 - 50, SCHIFF’S UNDISCLOSED FLIGHT
TESTING
Defendants. Date: March 8, 2021
17
Time: 1:30 p.m.
Dept: 4
18
Complaint filed: April 17, 2018
19 Trial Date: T
20 I, GARRY L. MONTANARI, declare and state:
21 1 Jam an attorney at law duly licensed to practice before all the Courts of the State of
22 California. Iam a partner with the law firm of Michaelis, Montanari & Johnson, counsel of record
23 for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC, I have personal
24 knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation
25 2 Captain Barry Schiff only conducted flight testing after it was learned by defendants
26 at the deposition of plaintiffs’ expert, Douglas Herlihy, that Mr. Herlihy conducted some flight tests.
27 Mr, Herlihy’s expert deposition took place on October 28, 2019. Captain Schiff’s deposition was
28 taken earlier, on October 23, 2019, Therefore, defendants were not aware of the flight testing done
-l-
DECL. MONTANARI IN SUPPORT OF OPP TO PLAINTIFFS’ MOTION IN LIMINE NO, 6 TO EXCLUDE
|"ESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIEF’S UNDISCLOSED FLIGHT TESTING
by plaintiffs’ pilot expert before Captain Schiff’s deposition and could not at that time anticipate or
indicate that there would be additional work needed, i-e., flight testing to address testimony or issues
raised by Mr. Herlihy.
3 A true and correct copy of Mr. Herlihy’s deposition excerpts are attached as Exhibit
A. In spite of the fact that Mr. MAGEE has consistently testified that he retracted the flaps from 30
degrees to near 20 degrees on final approach, Mr. Herlihy chose to do all of his testing retracting the
flaps from 30 degrees to zero degrees because the flaps were found in that position after impact.
(Herlihy Deposition, 55:16-56:3.) Mr. Herlihy had no flight test protocol nor did he videotape the
tests showing the instruments during the testing. (Herlihy Deposition, 47:12-23, 50:9-20.) Mr.
10 Herlihy said in three simulator flight tests, he lost control of the aircraft and in an actual flight when
11 reducing the flaps with half power, he lost control of the aircraft. (Herlihy Deposition, 51:9-25,
12 67:14-18.) It is in response to these rather incredulous test results that Captain Schiff decided to
13 conduct flight tests to explore Mr. Herlihy’s results.
14 4 Captain Schiff attempted to schedule his own flight testing which eventually occurred
15 on December 28, 2019 and January 10,2020, This necessitated developing a flight test protocol,
16 locating a Cessna 172N model aircraft and coordinating the schedules of Captain Schiff and the
17 photographer over the holidays. Counsel for plaintiffs was advised of this further work performed
18 by Captain Schiff on January 17, 2020, with an offer to schedule a subsequent deposition based on
19 plaintiffs’ attorney calendar, Captain Schiff was repeatedly made available for a further deposition
20 at plaintiffs’ convenience. In his letters of January 23 and 31, 2020, February 4 and 13, 2020
21 attached collectively as Exhibit B, I explained why the tests were performed, when they were
22 performed, the opinions as a result of tests and repeated offers to make Captain Schiff available for
23 asecond deposition. Plaintiffs’ counsel never noticed his deposition in the year since these letters.
24 I declare under penalty of perjury under the laws of the State of California that the foregoing
25 is true and correct.
26 Executed this 17th day of February, 2021, estlak lage, California.
27
GARRY
28 NA17517ipld\trial\MIL- new - plifs\oppositions\p-opp.mnil.6.dec.wpd
2-
DECL, MONTANARI IN SUPPORT OF OPP TO PLAINTIFFS’ MOTION IN LIMINE NO, 6 TO EXCLUDE
[ESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING
EXHIBIT A
ee
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
BRYAN TRUJILLO and CINDY ) Case No.
TRUJILLO, ) 18CIVO1901
Plaintiffs,
vs
STEPHEN MAGEE, SAC AERO FLYING
CLUB, INC., and DOES 1-50,
Defendants.
era ts
10
ALLIED PROPERTY AND CASUALTY
11 INSURANCE COMPANY; AMCO INSURANCE
COMPANY,
12
Plaintiffs-in-Intervention,
ded
vs
14
STEPHEN MAGEE, SAC AERO FLYING
LS: CLUB, INC.; AND DOES 1-20,
16 Defendants.
—— ———.
17
18
LG
20 Monday, Oc
BA, Redwood Shores, California
22 Reported By:
23: Hanna CLR, Kim,
CSR No. 13083
24 Job No. 3599300-1
25 Pages 1- 98
Page 1
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narrative, the information provided in the NTSB 10:34:36
report. 10:34:40
Q Okay. 10:34:46
A. And I say I believe so. As I sit here, 10:34:46
I remember reading it in the NTSB, so I'll have 10:34:49
to study that again. 10:34:54
Q What do you recall reading in the NTSB 10:34:55
report about the flaps being fully retracted back 10:34:57
to 0 degrees? 10:35:04
10 A. As I recall, they were in the -- they 10:35:07
11 were described as being in the up position. Up. 10:35:09
12 UL ou hi 10:35:28
13 st you: simulation a s ae
He LO35x30
14 fir ae wil th your s: mula: 1 £1 ght You don't 10:35:30
15 a Ligh a 10:35:43
16 d a under if rt 17 10:35:43
17 Li wi ey rc ogrammed ca ure oe latae 10:35:47
18 rm However Teas SO thing cer n i 10:35:50
19: wil go aC nd epl a as 10235255
20 you Lt da And ne. 10:36:01
21 m a ing of the of ant and 10:36:05
22 th of the mula. woul i Su ne 10:36:10
23. 10:36:14
24 Q. Well, I mean, you've participated ina 10:36:15
a5 lot of flight tests in your career, correct? 10:36:19
Page 47
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feeling and airspeed -- airspeed indicator went 10 40 21
higher and VSI went down, altimeter slided [sic] 10 40 29
down. I added full power right after I raised 10 40 38
the flaps to 0. And I climbed out straight ahead 10 40 43
and made a right turn out over the water when we 10 40 49
stopped the simulator. That was my first one, as 10 40 54
I recall. And I believe I used headwind on that 10 40 58
first one. 10 41 02
ia 3 one 10 41 04
10 36 of L simu 10 41 09
11 Im hing? ly 10 41 14
Lz Ec th 1c instruments? 10 41 18
13 No 10 41 22
14 thi 5 no rd 10 41 23
15 inst do. othe 4 youl 10 41 26
16 mem cor 10 41 28
U7 No unless here Ss 10 41 29
18 em dc LOW 10 41 34
13) wi the imu! ator can reco: tha or 10 41 37
20 in t ask £ know 10 41 44
21 Q All right. Let's talk the first one. 10 41 46
22 Now, did you do -- you know, from downwind, did 10 4l 5.
23 you do a 180-degree turn on the final, like 10 41 54
24 Mr. Magee testified he did? 10 41 58
25. A A couple of them, I did. But each 10:41 59
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time, we -- I tried various power settings and -- 10:42:08
and control inputs, we -- the simulator operator 10:42:13
brought the simulator back around to about a 10:42:21
90-degree turn to final. Never set me up on 10:42:27
final directly, but =e so I would turn in to the 10:42:33
final approach. But I must admit, he reset that, 10:42:39
so it would -- would kind of quickly go back 10:42:43
there. 10:42:47
N the ast three
th ree lost control of 10:42:48
10 eHe rc And I admit t 10:42:56
11 ade3G \ n down a 10:43:05
12 the 5 to not 10:43:11
13 a p: ilot [ just have hard t ime rash ling 10:43:15
14 t Ft went ly dow! in. mn and 10:43:21
LS groun ni pa he = a and the 10:43:26
16 ming up mu at imi t hat I ea 10:43:29
ee he imulator didn't ime crash nd 3 ried 10:43:33
18 d Ww full id > down and 10:43:41
19 st =a bi st or ar a1 At Lo 10:43:43
20 titu Le climbed up 10:43:48
21 30 di a 10:43:51
22 ne Lod from whe’ [ 1le out of 10:43:54
23 ai space cont ol 1 > wa S bound ° 10:43:59
24 ju didn my lL er 10:44:01
25 10:44:04
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initiated the sink, and adding various flight 10:49:20
controls is where I lost = I left controlled 10:49:25
flight. 10:49:28
Q. All right. 10:49:29
Was this ever any time -- did you ever 10:49:31
do any of the flights in a simulator just 10:49:40
retracting the flaps from 30 degrees to 10:49:43
20 degrees? 10:49:46
A Yes. The first three to four, I did 10:49:46
10 that, just raised the flaps and added power 10:49:50
ae without the input of flight controls, and I was 10:49:53
12 able to fly out. There was a == every one was a 10:49:58
13 descent, but the full power, even after the 10:50:04
14 flaps, enabled me to climb out, at least in the 10:50:08
15: simulator. 10:50:12
16 Just
us SO el that 10:50:13
17 om 3 legr 10:50:16
18 A. No 10:50:19
19 My LW we you
O' any 10:50:19
20 simu d gh e Ww 10:50:21
21 only From 30 BE ante 0 Ss? 10:50:24
22 A. ‘T didn't. sir. 10:50:26
=F ['m SG ectly
23 hehea yO For 10:50:30
24 a4 all ° 10:50:37
25 ene 30 10:50:48
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ly 400 00 lr 10:50:52
A. r} s co rect, dic =sae 10:50:57
at n 21t itu a: d3 a 10:51:00
Q And then you would get a sink; the 10:51:02
airplane would start to descend, correct? 10:51:04
A. Yes, air. 10:57 3.07
Q And then you would add various levels 10:51:08
of power, correct? 10:51:10
A I did, Hae, yes. 10351:12
10 Q. From half throttle to full throttle? LO2:51212
1. A I did, yes, sir. 10:51:16
12 Q You never stalled the airplane in any LOeSL2L7
i of these, correct? 10:51:20
14 A Well, I believe the last three, there 10251320
15 was some element of stall, because I had no 10:51:26
16 control in that right turndown. I believe 10:51:30
17 feeling -- stalling my airplanes many, many 10:51:41
18 times, I felt I was getting some differential 10:51:44
19) lift on the wings. As it turned first to the 10:51:48
20 left, the right wing was coming up, of course. 10751357
21 And then -- and these were the last three. As 10:52:01
22 the right wing came up, it seemed to drag 10:52:06
23 backwards and bring the nose over to the right. 10:52%20
24 I attribute that to, as that wing came up, the 10:52:14
25 right wing came up and I turned left. It was 10:52:18
Page 56
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the flaps to 0, you get a sink. The drop was 11 o7 33
about 200 feet -- 150 to 200 feet when I started 11 07 40
bringing in power. The first one was full power il O7 45
and I arrested the descent right at about il 07 49
3700 feet. So it ee it arrested the descent 11 o7 52
a + in -- almost instantly, even with the flaps Lt. 08 00
completely up. And I managed to climb out using EL, 08 05
full p
Preview
GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 Electronically JOHN H. MOON, State Bar No, 253811 MICHAELIS, MONTANARI & JOHNSON, P.C. by Superior Court of California, County of San Mateo 4333 Park Terrace Dr. #100 IN 2/18/2021 Westlake Village, CA 91361 By. /s/ Una Finau Telephone No.: (818) 865-0444 Deputy Clerk Attorneys for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY Case No.: 18CIV01901 TRUJILLO, Honorable Nancy L. Fineman; Dept. 4 12 13 Plaintiffs, OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO 14 VS. EXCLUDE TESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY 15 SCHIFF’S UNDISCLOSED FLIGHT STEPHEN MAGEE, SAC AERO FLYING TESTING CLUB, INC. and DOES 1 - 50, 16 Date: March 8, 2021 iv Defendants. Time: 1:30 p.m. Dept.: 4 18 Complaint filed: April 17, 2018 Trial Date: TB. 19 20 I INTRODUCTION 21 Captain Barry Schiff only conducted flight testing after it was learned by defendants at the 22 deposition of plaintiffs’ expert, Douglas Herliby, that Mr, Herlihy conducted some flight tests. Mr. 23 Herlihy’s expert deposition took place on October 28, 2019. One week before the original trial date 24 of November 4, 2019, Captain Schifi’s deposition was taken earlier, on October 23, 2019. 25 Therefore, defendants were not aware of the flight testing done by plaintiffs’ pilot expert before 26 Captain Schiffs deposition and could not at that time anticipate or indicate that there would be 27 additional work needed, i.c., flight testing to address testimony or issues raised by Mr. Herlihy. 28 Mii “1 OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHILFF’S UNDISCLOSED FLIGHT TESTING A true and correct copy of Herlihy’s deposition excerpts are attached as Exhibit A to the Montanari Declaration. In spite of the fact that Mr. MAGEE has consistently testified that he retracted the flaps from 30 degrees to near 20 degrees on final approach, Mr. Herlihy chose to do ail of his testing retracting the flaps from 30 degrees to zero degrees asserting the flaps were found in that position after impact. (Herlihy Deposition, 55:16-56:3.) Mr. Herlihy had no flight test protocol nor did he videotape the tests showing the instruments during the testing. (Herlihy Deposition, 47:12-23, 50:9-20.) Mr. Herlihy said in three simulator flight tests, he lost control of the aircraft and in an actual flight when reducing the flaps with half power, he lost control of the aireraft. (Herlihy Deposition, 51:9-25, 67:14-18.) Itis in response to these rather incredulous test results that 10 Captain Schiff decided to conduct flight tests to explore Mr, Herlihy’s results. qd Captain Schiff attempted to schedule his own flight testing which eventually occurred on 12 December 28, 2019 and January 10, 2020. This necessitated developing a flight test protocol, 13 locating a Cessna 172N model aircraft and coordinating the schedules of Captain Schiff and the 14 photographer over the holidays. Counsel for plaintiffs was advised of this further work performed 15 by Captain Schiff by letter sent via email on January 17, 2020 and offering him for a deposition 16 asking plaintiffs’ attorney to provide some dates that work for his calendar. Plaintiffs’ attorney never 17 provided any dates to this day, now over one year since the notice of the flight tests. Plaintiffs’ 18 motion states no reason why they chose not to notice a subsequent deposition of Captain Schiff after 19 first being notified on January 17,2020 of the additional work. Captain Schiff was repeatedly made 20 available for a further deposition at plaintiffs’ convenience in letters of January 23 and 31, 2020 and 21 February 4 and 13, 2020. (Decl. Montanari, Exhibit B.) The letter of February 13, 2020 listed the 22 opinions of Captain Schiff as a result of the flight tests. Plaintiffs’ counsel provided one sentence 23 responses by regular mail, as evidenced in the letters attached in plaintiffs’ Exhibits D and E. 24 Accordingly, plaintiffs declined to take Captain Schiff’s deposition after having been given ample 25 advance notice of the additional work in response to plaintiffs’ expert witness’s testimony and the 26 opinions formed as a result of that testing. 27 ‘ti 28 ‘ii 2. OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIFI?S UNDISCLOSED FLIGHT TESTING DEFENDANTS PROVIDED PROMPT NOTICE TO PLAINTIFFS ABOUT ADDITIONAL FLIGHT TESTING WITH SUFFICIENT TIME FOR PLAINTIFFS TO CONDUCT A FOLLOWUP DEPOSITION AT DEFENDANTS’ COST In Easterby v. Clark (2009) 171 Cal.App.4th 772, 781, the Court of Appeal stated, in pertinent part, as follows: “The overarching principle in Kennemer, Jones and Bonds is clear: aparty’s expert may not offer testimony at trial that exceeds the scope 10 of his deposition testimony if the opposing party has no notice or 11 expectation that the expert will offer new testimony, or ifnotice of the 12 new testimony comes at a time when deposing the expert is 13 unreasonably difficult. The present case differs from Kennemer, 14 Jones and Bonds in one salient respect: defendants learned 15 approximately three months before trial that Regan would go beyond 16 his original deposition testimony and offer a causation opinion at 17 trial. Specifically, plaintiffs informed defendants that Regan would 18 ‘testify at trial that to a reasonable degree of medical probability the 19 event of March 2, 2004, led to plaintiffs surgery.’ Thus, unlike the 20 defendants in Kennemer and Jones, and the plaintiff in Bonds, who al had no reason to believe that the opposing party’s expert would offer 22 an opinion at trial not offered in his deposition, defendants in this 23 case were explicitly notified that Regan would offer an opinion that 24 was different from the opinion he offered in his deposition. And 25 unlike Kennemer, Jones and Bonds, defendants in this case had the 26 opportunity to take Regan’s deposition in light ofhis changed opinion 27 and prepare for cross-examination and rebuttal of his testimony. The 28 elements of unfair surprise and prejudice present in Kennemer, Jones 3e OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING and Bonds are entirely absent in this case.” (Easterby v. Clark, supra, 171 Cal.App.4th at 780.) ‘The Court of Appeal concluded under these circumstances that the trial court erred by striking expert Regan’s testimony. (Jd. at 783.) The same factual pattern that the Court of Appeal in Easterby held was error and a miscarriage of justice to not allow an expert opinion to testify to new opinions is present in this matter. In fact, defendants followed the Hasterby example to make sure there was zero gamesmanship or prejudice. Defendants provided plaintiffs with notice that Captain Schiffhad done additional work, Le., the flight tests, and did so with plenty of time for plaintiffs to take Captain 10 Schiff’s deposition. Defendants offered Captain Schiff for a deposition on any date convenient to il plaintiffs. Additionally, plaintiff's were informed exactly what type of additional work Captain Schiff 12 did, why he did it, when he did it and his opinions based on those tests. Thus, the elements of unfair 13 surprise and prejudice with respect to Captain Schiff’s additional work were removed and plaintiffs 14 were put on full notice with ample opportunity to take Captain Schiff's deposition concerning the 1s flight testing. 16 Moreover, it is clear that the time given to plaintiffs to take a further deposition of Captain 1? Schiff was abundantly adequate as a matter of law. Plaintiffs now had at least one (1) year in which 18 to take it. In Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1260- 19 1261, the Court of Appeal held that the trial court properly allowed new expert testimony on testing 20 during a trial even though the opposing party was only given time to take the expert’s deposition 21 during the trial before cross-examination, Plaintiffs in this case had a much more reasonable 22 window to conduct a followup deposition of Captain Schiff, but chose to forego such a convenience 23 even though defendants adhered to the proper practices outlined by the Court of Appeal in Easterby. 24 Based on the foregoing, it would be reversible error for the Court to prohibit Mr. Schiff from 25 testifying about the flight tests he performed after his October 23, 2019 expert deposition because 26 there is demonstrably no unfair surprise and prejudice to plaintiffs regarding such additional work 27 and testimony. 28 it -4- OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO, 6 TO EXCLUDE TESTIMONY REGARDING IEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING Vv CONCLUSIO’ The Court is requested to deny plaintiffs’ motion in its entirety. DATED: February 17, 2021 MICHAELIS, MONTANARI & JOHNSON By RRY, ITANARI Attorne: ‘or Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC, NAL7517ipld\trialtMMIL- new - plefStoppositions\p-opp.rmil.6.wpd 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING JPEFEN DANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING PROOF OF SERVICE STATE OF CALIFORNIA ) SS. COUNTY OF LOS ANGELES ) 1am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 4333 Park Terrace Dr. #100, Westlake Village, California 91361. On February 17, 2021, I served the foregoing document described as OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO EXCLUDE TESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING on the interested parties in this action by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows: Michael S. Danko, Esq. Attorneys for Plaintiffs Shawn Miller, Esq. 10 Danko Meredith 333 Twin Dolphin Dr. #145 i Redwood Shores, CA 94065 tel: (650) 453-3600; fax: (650) 394-8672 12 Email: mdanko@dankolaw.com; smiller@dankolaw.com Lg [x] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with firm’s 14 practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party LS served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. 16 sad [Xx] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to be sent to the recipient noted above via electronic transfer (email) at the respective email addresses 18 indicated above because of the COVID-19 virus. LS Ul (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office located at Westlake Village, California. The envelope was mailed fully prepaid. I am “readily 20 familiar” with firm’s practice of collection and processing correspondence for mailing with Federal Express. It is deposited with the Westlake Village Federal Express service on that same day in the 21 ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than 1 day after date of deposit for overnight mailing in affidavit. 22 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 25 Executed on February 17, 2021 at Westlake Village, California. 26 Barbara HausSmann, CCLS 27 28 GARRY L. MONTANARI, State Bar No. 89790 WESLEY 8. WENIG, State Bar No. 162351 JOHN H. MOON, State Bar No, 253811 MICHAELIS, MONTANARI & JOHNSON, P.C. 4333 Park Terrace Dr, #100 Westlake Village, CA 91361 Telephone No.: (818) 865-0444 Attorneys for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY Case No.: 18CIV01901 12 TRUJILLO, Honorable Nancy L. Fineman; Dept. 4 13 Plaintiffs, DECLARATION OF GARRY L. MONTANARI IN SUPPORT OF 14 VS. OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE NO. 6 TO 15 EXCLUDE TESTIMONY REGARDING STEPHEN MAGEE, SAC AERO FLYING DEFENDANTS’ EXPERT BARRY 16 CLUB, INC, and DOES 1 - 50, SCHIFF’S UNDISCLOSED FLIGHT TESTING Defendants. Date: March 8, 2021 17 Time: 1:30 p.m. Dept: 4 18 Complaint filed: April 17, 2018 19 Trial Date: T 20 I, GARRY L. MONTANARI, declare and state: 21 1 Jam an attorney at law duly licensed to practice before all the Courts of the State of 22 California. Iam a partner with the law firm of Michaelis, Montanari & Johnson, counsel of record 23 for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC, I have personal 24 knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation 25 2 Captain Barry Schiff only conducted flight testing after it was learned by defendants 26 at the deposition of plaintiffs’ expert, Douglas Herlihy, that Mr. Herlihy conducted some flight tests. 27 Mr, Herlihy’s expert deposition took place on October 28, 2019. Captain Schiff’s deposition was 28 taken earlier, on October 23, 2019, Therefore, defendants were not aware of the flight testing done -l- DECL. MONTANARI IN SUPPORT OF OPP TO PLAINTIFFS’ MOTION IN LIMINE NO, 6 TO EXCLUDE |"ESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIEF’S UNDISCLOSED FLIGHT TESTING by plaintiffs’ pilot expert before Captain Schiff’s deposition and could not at that time anticipate or indicate that there would be additional work needed, i-e., flight testing to address testimony or issues raised by Mr. Herlihy. 3 A true and correct copy of Mr. Herlihy’s deposition excerpts are attached as Exhibit A. In spite of the fact that Mr. MAGEE has consistently testified that he retracted the flaps from 30 degrees to near 20 degrees on final approach, Mr. Herlihy chose to do all of his testing retracting the flaps from 30 degrees to zero degrees because the flaps were found in that position after impact. (Herlihy Deposition, 55:16-56:3.) Mr. Herlihy had no flight test protocol nor did he videotape the tests showing the instruments during the testing. (Herlihy Deposition, 47:12-23, 50:9-20.) Mr. 10 Herlihy said in three simulator flight tests, he lost control of the aircraft and in an actual flight when 11 reducing the flaps with half power, he lost control of the aircraft. (Herlihy Deposition, 51:9-25, 12 67:14-18.) It is in response to these rather incredulous test results that Captain Schiff decided to 13 conduct flight tests to explore Mr. Herlihy’s results. 14 4 Captain Schiff attempted to schedule his own flight testing which eventually occurred 15 on December 28, 2019 and January 10,2020, This necessitated developing a flight test protocol, 16 locating a Cessna 172N model aircraft and coordinating the schedules of Captain Schiff and the 17 photographer over the holidays. Counsel for plaintiffs was advised of this further work performed 18 by Captain Schiff on January 17, 2020, with an offer to schedule a subsequent deposition based on 19 plaintiffs’ attorney calendar, Captain Schiff was repeatedly made available for a further deposition 20 at plaintiffs’ convenience. In his letters of January 23 and 31, 2020, February 4 and 13, 2020 21 attached collectively as Exhibit B, I explained why the tests were performed, when they were 22 performed, the opinions as a result of tests and repeated offers to make Captain Schiff available for 23 asecond deposition. Plaintiffs’ counsel never noticed his deposition in the year since these letters. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing 25 is true and correct. 26 Executed this 17th day of February, 2021, estlak lage, California. 27 GARRY 28 NA17517ipld\trial\MIL- new - plifs\oppositions\p-opp.mnil.6.dec.wpd 2- DECL, MONTANARI IN SUPPORT OF OPP TO PLAINTIFFS’ MOTION IN LIMINE NO, 6 TO EXCLUDE [ESTIMONY REGARDING DEFENDANTS’ EXPERT BARRY SCHIFF’S UNDISCLOSED FLIGHT TESTING EXHIBIT A ee SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO BRYAN TRUJILLO and CINDY ) Case No. TRUJILLO, ) 18CIVO1901 Plaintiffs, vs STEPHEN MAGEE, SAC AERO FLYING CLUB, INC., and DOES 1-50, Defendants. era ts 10 ALLIED PROPERTY AND CASUALTY 11 INSURANCE COMPANY; AMCO INSURANCE COMPANY, 12 Plaintiffs-in-Intervention, ded vs 14 STEPHEN MAGEE, SAC AERO FLYING LS: CLUB, INC.; AND DOES 1-20, 16 Defendants. —— ———. 17 18 LG 20 Monday, Oc BA, Redwood Shores, California 22 Reported By: 23: Hanna CLR, Kim, CSR No. 13083 24 Job No. 3599300-1 25 Pages 1- 98 Page 1 Veritext Legal Solutions 866 299-5127 narrative, the information provided in the NTSB 10:34:36 report. 10:34:40 Q Okay. 10:34:46 A. And I say I believe so. As I sit here, 10:34:46 I remember reading it in the NTSB, so I'll have 10:34:49 to study that again. 10:34:54 Q What do you recall reading in the NTSB 10:34:55 report about the flaps being fully retracted back 10:34:57 to 0 degrees? 10:35:04 10 A. As I recall, they were in the -- they 10:35:07 11 were described as being in the up position. Up. 10:35:09 12 UL ou hi 10:35:28 13 st you: simulation a s ae He LO35x30 14 fir ae wil th your s: mula: 1 £1 ght You don't 10:35:30 15 a Ligh a 10:35:43 16 d a under if rt 17 10:35:43 17 Li wi ey rc ogrammed ca ure oe latae 10:35:47 18 rm However Teas SO thing cer n i 10:35:50 19: wil go aC nd epl a as 10235255 20 you Lt da And ne. 10:36:01 21 m a ing of the of ant and 10:36:05 22 th of the mula. woul i Su ne 10:36:10 23. 10:36:14 24 Q. Well, I mean, you've participated ina 10:36:15 a5 lot of flight tests in your career, correct? 10:36:19 Page 47 Veritext Legal Solutions 866 299-5127 feeling and airspeed -- airspeed indicator went 10 40 21 higher and VSI went down, altimeter slided [sic] 10 40 29 down. I added full power right after I raised 10 40 38 the flaps to 0. And I climbed out straight ahead 10 40 43 and made a right turn out over the water when we 10 40 49 stopped the simulator. That was my first one, as 10 40 54 I recall. And I believe I used headwind on that 10 40 58 first one. 10 41 02 ia 3 one 10 41 04 10 36 of L simu 10 41 09 11 Im hing? ly 10 41 14 Lz Ec th 1c instruments? 10 41 18 13 No 10 41 22 14 thi 5 no rd 10 41 23 15 inst do. othe 4 youl 10 41 26 16 mem cor 10 41 28 U7 No unless here Ss 10 41 29 18 em dc LOW 10 41 34 13) wi the imu! ator can reco: tha or 10 41 37 20 in t ask £ know 10 41 44 21 Q All right. Let's talk the first one. 10 41 46 22 Now, did you do -- you know, from downwind, did 10 4l 5. 23 you do a 180-degree turn on the final, like 10 41 54 24 Mr. Magee testified he did? 10 41 58 25. A A couple of them, I did. But each 10:41 59 Page 50 Veritext Legal Solutions 866 299-5127 time, we -- I tried various power settings and -- 10:42:08 and control inputs, we -- the simulator operator 10:42:13 brought the simulator back around to about a 10:42:21 90-degree turn to final. Never set me up on 10:42:27 final directly, but =e so I would turn in to the 10:42:33 final approach. But I must admit, he reset that, 10:42:39 so it would -- would kind of quickly go back 10:42:43 there. 10:42:47 N the ast three th ree lost control of 10:42:48 10 eHe rc And I admit t 10:42:56 11 ade3G \ n down a 10:43:05 12 the 5 to not 10:43:11 13 a p: ilot [ just have hard t ime rash ling 10:43:15 14 t Ft went ly dow! in. mn and 10:43:21 LS groun ni pa he = a and the 10:43:26 16 ming up mu at imi t hat I ea 10:43:29 ee he imulator didn't ime crash nd 3 ried 10:43:33 18 d Ww full id > down and 10:43:41 19 st =a bi st or ar a1 At Lo 10:43:43 20 titu Le climbed up 10:43:48 21 30 di a 10:43:51 22 ne Lod from whe’ [ 1le out of 10:43:54 23 ai space cont ol 1 > wa S bound ° 10:43:59 24 ju didn my lL er 10:44:01 25 10:44:04 Page 51 Veritext Legal Solutions 866 299-5127 initiated the sink, and adding various flight 10:49:20 controls is where I lost = I left controlled 10:49:25 flight. 10:49:28 Q. All right. 10:49:29 Was this ever any time -- did you ever 10:49:31 do any of the flights in a simulator just 10:49:40 retracting the flaps from 30 degrees to 10:49:43 20 degrees? 10:49:46 A Yes. The first three to four, I did 10:49:46 10 that, just raised the flaps and added power 10:49:50 ae without the input of flight controls, and I was 10:49:53 12 able to fly out. There was a == every one was a 10:49:58 13 descent, but the full power, even after the 10:50:04 14 flaps, enabled me to climb out, at least in the 10:50:08 15: simulator. 10:50:12 16 Just us SO el that 10:50:13 17 om 3 legr 10:50:16 18 A. No 10:50:19 19 My LW we you O' any 10:50:19 20 simu d gh e Ww 10:50:21 21 only From 30 BE ante 0 Ss? 10:50:24 22 A. ‘T didn't. sir. 10:50:26 =F ['m SG ectly 23 hehea yO For 10:50:30 24 a4 all ° 10:50:37 25 ene 30 10:50:48 Page 55 Veritext Legal Solutions 866 299-5127 ly 400 00 lr 10:50:52 A. r} s co rect, dic =sae 10:50:57 at n 21t itu a: d3 a 10:51:00 Q And then you would get a sink; the 10:51:02 airplane would start to descend, correct? 10:51:04 A. Yes, air. 10:57 3.07 Q And then you would add various levels 10:51:08 of power, correct? 10:51:10 A I did, Hae, yes. 10351:12 10 Q. From half throttle to full throttle? LO2:51212 1. A I did, yes, sir. 10:51:16 12 Q You never stalled the airplane in any LOeSL2L7 i of these, correct? 10:51:20 14 A Well, I believe the last three, there 10251320 15 was some element of stall, because I had no 10:51:26 16 control in that right turndown. I believe 10:51:30 17 feeling -- stalling my airplanes many, many 10:51:41 18 times, I felt I was getting some differential 10:51:44 19) lift on the wings. As it turned first to the 10:51:48 20 left, the right wing was coming up, of course. 10751357 21 And then -- and these were the last three. As 10:52:01 22 the right wing came up, it seemed to drag 10:52:06 23 backwards and bring the nose over to the right. 10:52%20 24 I attribute that to, as that wing came up, the 10:52:14 25 right wing came up and I turned left. It was 10:52:18 Page 56 —— “‘Veritext Legal Solutions 866 299-5127 — the flaps to 0, you get a sink. The drop was 11 o7 33 about 200 feet -- 150 to 200 feet when I started 11 07 40 bringing in power. The first one was full power il O7 45 and I arrested the descent right at about il 07 49 3700 feet. So it ee it arrested the descent 11 o7 52 a + in -- almost instantly, even with the flaps Lt. 08 00 completely up. And I managed to climb out using EL, 08 05 full p