Minge et al v. TECT Corporation et al
Filing
203
MEMORANDUM AND ORDER denying 168 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 11/18/2011. (df)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
UNITED STATES OF AMERICA EX REL. )
MINGE, et al.,
)
)
Relators,
)
)
vs.
)
)
TECT AEROSPACE, INC., et al.,
)
)
)
Defendants.
)
___________________________________ )
Case No. 07-1212-MLB
ORDER ON DEFENDANT’S MOTION TO COMPEL
SUPPLEMENTAL INTERROGATORY RESPONSES
Before the Court is the Motion to Compel Supplemental Interrogatory
Responses filed by Defendant Hawker Beechcraft Corporation. (Doc. 168). The
underlying issues were addressed in Defendant’s prior Motion to Compel (Doc.
128) and ruled upon in the Court’s corresponding Order (Doc. 154, incorporated
herein by reference). Even so, a dispute remains concerning whether Relators’s
supplemental responses to Interrogatories Nos. 1 and 2 complied with the
parameters of the Court’s previous Order.
BACKGROUND
As discussed in the Court’s prior Order, Relators have brought this case
under the False Claims Act (FCA), 31 U.S.C. §§ 3729-33, on behalf of the United
States, claiming that Defendants falsely represented that certain aircraft parts were
manufactured in accordance with United State’s specifications. Relators’ theory,
explained in their Fourth Amended Complaint (Doc. 80, “the Complaint”) and in
the current discovery responses, is that the parts at issue (wing spars) were
“manufactured using a defective process.” They allege that Defendants
misrepresented that their manufacturing process would be controlled in a manner
to produce repeatable and reliable wing spars. (Doc. 80, ¶2). Relators conclude
that because of that process, “no one can be sure whether some or any of the spars
conformed to contractually required design specifications and performance
standards.” (Doc. 80, ¶ 3).
Relators claim that “supplying aircraft with wing spars without the
contractually required manufacturing process, quality assurance procedures and
testing are per se nonconforming even if some of the aircraft . . . have spars with
the same basic performance characteristics as those that would have been produced
in compliance with the terms of the contract.” (Doc. 80, ¶ 4). Relators claim that
Defendants “expressly or impliedly certified that, in compliance with the contract
documents, drawings, specifications and federal regulations, they had established
and used a repeatable manufacturing process designed to assure that . . . wing spars
for use on these . . . aircraft were made to the original design data in all respects
and had undergone rigorous testing and quality assurance procedures, even though
they knew they had not complied.” (Doc. 80, ¶¶ 62, 73).
The Complaint itemizes various regulatory and contractual certifications
which Relators contend constitute or evidence the express or implied certifications
of compliance, and establish the requirements for manufacturing processes. The
allegations of deficiencies in the Complaint focus on claims of nonconforming
manufacturing processes, and Defendant’s claimed knowledge of the process
deviations. The Complaint details some history of parts rejected (usually by
Defendant Raytheon) because of defects allegedly caused by the noncompliant
manufacturing process. Relators contend that some parts were accepted by
Raytheon and used in aircraft notwithstanding Raytheon’s knowledge of either
defects, or of the use of a process that resulted in defects. The Complaint alleges
that the techniques used to correct deficiencies were, themselves, nonconforming.
Relators also contend that Defendants misrepresented that they had complied with
design specification of particular types of aircraft. They allege that every aircraft
of the named type sold to the United States had wing spars “manufactured using
the defective process.”
Relators enumerate specific “JPATS T-6A” aircraft which they contend
were falsely certified as conforming to the contracts, “without noting that the wing
spars were not manufactured in accordance with the original design data and had
not undergone rigorous testing and quality assurance procedures.” (Doc. 80, at
293.) Relators list specific “King Air” aircraft which they contend were sold with
false certifications “that the wing spars in the aircraft conformed to the contract.”
(Id., at ¶ 294.)
Interrogatory No. 1 states the following:
With respect to each aircraft identified by aircraft serial
number in paragraphs 293 and 294 of the Fourth
Amended Complaint, specify the manner in which that
aircraft is alleged to be ‘not manufactured in accordance
wi th the original design data’ and lacking in ‘rigorous
testing and quality assurance procedures’ (Dkt. 80, at 109
¶293) or is otherwise alleged to be ‘nonconforming.’ In
your response for each allegedly ‘nonconforming’
aircraft,
(a)
(b)
(c)
identify the specific part number(s), serial
number(s), and all other identifying
information of each spar, spar cap, spar
assembly, and any other component alleged
to be nonconforming;
describe in detail the manner in which each
particular spar, spar cap, spar assembly, and
other component is nonconforming,
including (but not limited to) all allegations
regarding ‘hot forming 2024-T3 material’
(Dkt. 80, at 58) and ‘cold forming
techniques, including ‘bashing’ (Dkt. 80, at
64);
identify each specification, design, drawing,
contract, and regulation that each identified
part does not conform to and describe how
each identified part does not conform to the
particular specification, design, drawing,
contract, or regulation;
(d)
(e)
(f)
identify each individual who has personal
knowledge of each specific alleged
nonconformity;
identify all photographs, videos, and any
other media or documents showing or
otherwise documenting each specific
nonconformance of each part; and
describe when and how (if at all) any HBC
and TECT personnel learned of each alleged
nonconformity for each particular part.
Interrogatory No. 2 states:
With respect to each aircraft identified within paragraphs
293 and 294 of the Fourth Amended Complaint and in
your response to Interrogatory No. 1, identify each
voucher, invoice, or other document that you contend
was a ‘false or fraudulent claim' that Defendant HBC
knowingly presented, or caused to be presented, to the
United States for payment or approval and identify each
record, statement, certification, or other document that
you contend was a ‘false record or statement’ that
Defendant HBC knowingly made, used, or caused to be
made or used to get that allegedly false or fraudulent
claim paid or approved by the United States. (Dkt. 80, at
108-09 ¶292.) With respect to each document identified
in response to this interrogatory:
(a)
(b)
(c)
(Doc. 169-1, at 12.)
specify each line item and other portion that
is allegedly false or fraudulent;
identify each HBC personnel (if any) who
knew that the document contained a false or
fraudulent statement or claim; and
identify each TECT personnel (if any) who
had knowledge of the false or fraudulent
statement or claim.
DISCUSSION
As mentioned above, the parties disagree as to whether Plaintiff’s
supplemental responses to Interrogatories Nos. 1 and 2 comply with the Court’s
prior Order (Doc. 154). In that Order, which granted in part and denied in part
Defendant’s Motion to Compel, the Court held:
Relators response to subpart (a) of Interrogatory No. 1 is
insufficient. Although Relators have provided part
numbers that relate to each type of aircraft, they have not
provided specific serialized parts as to each individual
aircraft. The Court infers from the response contained in
Relators’ objections and memoranda that Relators do not
know the answer to this part of the question. Defendant,
however, is not required to rely on such an inference; it is
entitled to an answer. Relators will either provide the
detail requested or clearly state that they do not know the
answer.
Assuming that Relators’ proper response to part (a) is
that they cannot identify the specific serialized parts for
each aircraft because they do not know, their remaining
responses will be sufficient with a minor clarification.
Their response is that the uncertainty as to any of the
parts makes each part nonconforming. They have
identified persons and contract provisions as requested
with relate to their contentions concerning the
manufacturing process. If however, Relators have the
specific information requested, including any knowledge
about specific defects in parts in the individual aircraft
identified in the Fourth Amended Complaint (beyond
their contention of general nonconformity), they will
supplement their response to disclose that information.
Otherwise, Relators will, as to each subpart of
Interrogatories Nos. 1 and 2, confirm that they do not
know the requested information relating to each specific
part on each specific aircraft.
(Doc. 154, at 8-9.)
Defendant now moves to compel further supplementation of Relators’
responses to Interrogatories Nos. 1 and 2, arguing that the current responses
are inadequate because Relators have not followed the
Court’s Order requiring Relators to ‘either provide the
detail requested or clearly state they do not know the
answer.’ Relators still have not confirmed that they do
not have information showing any of the specific spar
caps at issue are nonconforming, yet they do not answer
the interrogatory subparts that seek additional
information pertaining to each allegedly nonconforming
spar cap.
(Doc. 169, at 3; see also Doc. 169-1, at 4-9.) Relators respond that they have
complied with the Court’s Order because
at this time, Relators are without sufficient information to
form a belief as to whether any of the spar caps on each
fo the 41 exemplar aircraft are in a defective condition
unreasonably dangerous so as to pose a risk to the safety
of flight or that the effects of the processes have
diminished the contracted for useful life of the spar caps
on each of those aircraft.
(Doc. 181, sealed, at 3.)
The Court has reviewed Relators’ responses (see generally, Doc. 169-1) and
does not agree with Defendants’ position that they are inadequate. To the contrary,
Relators have stated what they think the defects are, explained why they think the
parts are non-conforming, and have specifically referred to numerous “Quality
Notifications,” which are offered as evidence “that some of the spar caps on some
of the aircraft in question have documented witness marks such as dents, gouges,
missing material, excessive material and misformed areas.” (Doc. 181, sealed, at
8.)
In the Court’s opinion, Plaintiff’s supplemental responses comply with the
spirit of the Court’s prior Order. The Court sees no detriment to Defendant by the
way Relators have chosen to respond. Should Defendant feel additional
information is needed from Relators, the most recent Scheduling Order has
provided them with the opportunity to serve an additional 25 interrogatories.
(See Doc. 202, at 4.)
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
Supplemental Interrogatory Responses (Doc. 168) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 18th day of November, 2011.
S/KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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