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Quote of the Day - It wasn't contrived or a stunt -- that's the way I am. - Bradford Cohen
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What Witnesses See: Credible Or Inexperienced?

Melissa files an Zivko Edge 540 stunt plane, and she's 25 years old, having logged more than 1,500 hours in the air from when she started at 18 to when she got into a bit of trouble at 22.  She got her new plane to her family at the Butler County airport in Pennsylvania, climbed into the cockpit and took off.  Once in the air, she made a turn and then landed the plane.

Melissa is a stunt pilot, and a very good one at that.  Aerial acrobatic maneuvers are prohibited below 1,500 feet for obvious reasons:  they're somewhat dangerous and we don't like planes to fall out of the sky.  The rationale is that a stunt pilot can probably recover from failed maneuver within that 1,500 safety window.

When Melissa took off, two others watched her in addition to her family.  According to the Ninth Circuit's opinion, "Andrew Pierce, an aviation safety inspector for the Allegheny Flight Standards Office, and Christopher Hayden, the chief pilot for AirQuest Aviation, were at the Butler County Airport that day and witnessed Andrzejewski's flight. Neither Pierce nor Hayden had experience with Edge aircraft."

What they saw was a steep takeoff, followed by a wing wag and a steep incline landing.  They turned her into the FAA, which without any hearing suspended her license.  She appealed to an Administrative Law Judg, who saw the dispute this way:  "I'm not saying that the [FAA's] witnesses didn't see what they say, but perhaps they misunderstood what they saw."

In other words, they might not have known what they were talking about.  On the other hand, one of Melissa's witnesses saw it this way:  "Her three expert witnesses testified that Andrzejewski's flight was within the normal operating procedures for the Edge aircraft, which procedures include steep takeoffs, high speeds, and clearing turns. Robert Holland, an aerobatic pilot and flight instructor, specifically noted that a witness unfamiliar with the Edge might think that Andrzejewski's flight was abnormal, while in fact, for an Edge, the flight was actually 'very normal.'"

Not surprisingly, the ALJ restored Melissa's license.  Unhappy with that outcome, the FAA appealed to the National Transportation Safety Bureau and got her license revoked again.  Melissa appealed, and somehow the case ended up out here in the Ninth Circuit.

The court first wrote this observation:  " This is precisely what triers-of fact should do when confronted with expert witnesses whose testimony conflicts on such basic issues as whether the pilot operated the particular plane in an "aerobatic flight" or in a "careless or reckless" manner. After all, what may look like derring-do to a Sunday driver may be a routine cut to a NASCAR driver."  For some unknown reason, the court took that language out of its opinion, but sent the matter back to the NTSB with instructions to defer to the ALJ's observations about the credibility of the witnesses.

Melissa still has a chance to climb back in the cockpit, but it appears that she's been grounded for more than three years.  Although I'm not a pilot and I doubt any of the judges who heard this case on the Ninth Circuit are pilots either, at least they saw what's going on. 

Hopefully, she'll get her wings back.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, April 11, 2009 at 06:58 Comments Closed (0) |
 
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