HENDRYCH v. SHELTAIR AVIATION SERVICES, LLC et al

Filing 138

MEMORANDUM OPINION AND ORDER granting in part, denying in part, and deferring in part 127 Motion for Sanctions. It is hereby ordered as follows: 1. Borfitz Opinion Numbers 4, 5, 6, 7, 9, and 10, as referenced in the opinion, are stricken. 2. The Court is taking no action at this time concerning Mr. Hendrych's report and opinions, in relation to the arguments in Defendant's Motion for Sanctions. 3. Defense counsel shall submit its fees and expenses incurred for the preparation of th eir Motion for Sanctions 127 and Reply Brief 131 on or before March 30, 2021. Any response from Plaintiff's counsel shall be filed on or before April 6, 2021. The response from Plaintiff's counsel shall be limited to the monetary amount of any sanctions and shall refrain from any further discussion on the merits of the motion for sanctions. 4. Should the parties reach any agreement regarding experts or the outcome of Defendant's Motion for Sanctions, they should so inform the court on or before April 6, 2021. Signed by Judge Marilyn J. Horan on 3/22/2021. (bjl)

Case 2:18-cv-00701-MJH Document 138 Filed 03/22/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
MARK GEORGE HENDRYCH,
Plaintiff,
vs.
SHELTAIR AVIATION LGA, LLC,

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2:18-CV-00701-MJH

Defendant,
MEMORANDUM OPINION AND ORDER
Presently before the Court are Defendant’s Motion for Sanctions (ECF No. 127),
Plaintiff’s Response in Opposition (ECF No. 128), Defendant’s Reply Brief (ECF No. 131),
Plaintiff’s Motion for Leave to File Reply to Response and Sur-Reply to Defendant’s Motion for
Sanctions (ECF No. 135), and Plaintiff’s Notice to Withdraw Goglia as Expert in Case in Chief
(ECF No. 137). Upon its review of the following, Defendant’s Motion for Sanctions will be
granted in part, denied in part, and deferred in part.
I.

BACKGROUND
This matter arises from Mr. Hendrych’s claim for damages to his airplane allegedly

caused by a Sheltair employee while backing up a fuel truck. Expert discovery deadlines were
originally set forth by a December 5, 2019 Court Order. (ECF No. 106). On January 31, 2020,
Plaintiff produced reports from four experts: an appraiser (Richard Lucas); a licensed Airframe
& Powerplant (A&P) mechanic (Edward Libassi); an FAA Designated Engineering
Representative (DER) (Michael Levenson); and Plaintiff himself. (ECF No. 127 at ¶ 4).
Defendant deposed each of the four experts in Summer 2020. Id. at ¶ 5. On September 21,

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2020, Sheltair produced reports from three experts: an appraiser (Jeffrey Soules); an A&P
Mechanic (Leonard Boyd); and a DER (Jon Moore). Id. at ¶ 6.
On November 2, 2020, Plaintiff advised that Michael Levenson, Plaintiff’s DER expert,
passed away on October 15, 2020. (ECF No. 115). Plaintiff then moved to add experts, Michael
Borfitz and the Honorable John Goglia, to account for Levenson’s unavailability and to rebut
Defendant’s reports regarding repair practices and repair costs. Id. By its December 2, 2020
Order, this Court permitted Plaintiff to secure up to “two experts, whose opinion(s) are within
the scope, do not exceed Michael J. Levenson's original report, and do not duplicate one
another.” (ECF No. 125). The Court denied Plaintiff’s request for any additional rebuttal
reports. Id. The Order also required Plaintiff to submit any new reports on or before January 25,
2021. Id. On January 25, 2021, Plaintiff served two expert reports: one from Borfitz and one
from Goglia.
On February 2, 2021, Defendant filed the instant Motion for Sanctions on the basis that
Plaintiff has violated this Court’s December 2, 2020 Order. On March 14, 2021, following
briefing and responses to Defendant’s Motion for Sanction, Plaintiff filed a notice that he was
withdrawing Goglia as an expert in his case in chief.
II.

DISCUSSION
Fed. R. Civ. P. 37 provides for sanctions in relevant part as follows:
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer,
director, or managing agent--or a witness designated under Rule 30(b)(6)
or 31(a)(4)--fails to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a), the court where the
action is pending may issue further just orders. They may include the
following:

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(i)

directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the
prevailing party claims;

(ii)

prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters
in evidence;

(iii)

striking pleadings in whole or in part;

(iv)

staying further proceedings until the order is obeyed;

(v)

dismissing the action or proceeding in whole or in part;

(vi)

rendering a default judgment against the disobedient party; or

(vii)

treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2). Should the Court find that a party has disobeyed a discovery order, “the
court must order the disobedient party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(b)(2)(C).
A. Report Duplication
Defendant argues that the Borfitz and Goglia reports are materially identical and
therefore violate this Court’s express order that any reports to replace Levenson’s should “not
duplicate one another.” Defendant specifically has highlighted instances throughout the Goglia
Report that are verbatim to the Borfitz report. (ECF Nos. 127 at ¶ 12 and 127-4). In his
response, Plaintiff counsel acknowledges that Borfitz and Goglia’s “overlapped because [he and
his client] were not sure if both would testify depending on outstanding issues.” (ECF No. 128
at p. 1). Plaintiff asserts that he did not receive Borfitz and Goglia’s draft expert reports until the
morning of January 25, 2021 and that he would have designated certain opinions by each expert
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to avoid duplication. Id. at p. 2. Because of issues related to Plaintiff counsel’s health, he did not
provide those designations until his February 11, 2021 response to the within motion for
sanctions. Id.
While the Court is not unsympathetic to Plaintiff counsel’s emergent and ongoing
medical issues, the arrival of the Borfitz and Goglia reports to Plaintiff counsel on the morning
of their due date does not reflect a diligent effort to review and prepare them for submission.
Counsel was well aware of this Court’s anti-duplication directive in its December 2, 2021 Order.
Plaintiff counsel knew at some point between October 15, 2021 and November 2, 2021 that Mr.
Levenson would no longer be available for trial. When he filed a motion to add experts on
November 2, 2021, Plaintiff’s counsel indicated that he was requesting to add Borfitz and Goglia
to replace Levenson and even provided affidavits on November 17, 2021 that both had
undertaken at least some review of the case. (ECF Nos. 115, 118-1, and 118-2). By December
2, 2021, counsel had the greenlight from this Court to proceed with one or two experts as long as
those experts did not duplicate or exceed the scope of the Levenson report and that those
report(s) were due by the January 25, 2021 deadline. Any drafting and designations of Borfitz
and Goglia’s reports should have occurred well before the January 25, 2021 deadline and before
they were transmitted to defense counsel. Further, Plaintiff counsel made no representation that
he intended to designate certain opinions when he first transmitted those reports to defense
counsel. Furthermore, Plaintiff’s counsel did not withdraw Goglia’s report until March 14,
2021, more than a month after Defendant filed its Motion for Sanctions.
Therefore, based upon the Court’s review of the reports and Plaintiff counsel’s own
acknowledgment that the Borfitz and Goglia reports contain duplications, the Court finds that
Plaintiff’s counsel violated this Court’s December 2, 2021 Order.

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B. Scope of Reports relative to Levenson’s Report
Defendant next argues that both the Borfitz and Goglia reports exceed the scope of
Levenson’s report because both contain rebuttals of defense experts’ opinions. Plaintiff denies
that the reports exceed the scope of Levenson’s report. In Plaintiff’s response to the Motion for
Sanctions, he designated the opinions to which Goglia and Borfitz would testify. (ECF No. 128
at p. 2). Plaintiff also maintains that he would be prejudiced if Goglia and Borfitz are not
permitted to refute A&P Mechanic Boyd’s opinion. (ECF No. 135 at p. 4-5). Plaintiff has since
withdrawn Goglia as an expert. (ECF No. 137). Thus, the Court will only evaluate the Borfitz
opinion designations against Mr. Levenson’s report.
Plaintiff’s Counsel has proffered that Borfitz will opine as follows:
1. Requirements for Aircraft Type and Production Certificates, and differences
between requirements for Production Certificates and Certificated Repair
Stations; (Borfitz Opinion 1).
2. Content of FAA Approved Technical Data for Major Repairs, and importance
to comply with FAA Approved Technical Data when making a Major Repair;
(Borfitz Opinion 2).
3. The Ocean Aire Quote omits significant costs and delays to repair and return
N8076Y to legal Airworthy flight status, including, but not limited to: at least
$20,000 to $30,000 for one or more DERs to prepare FAA Approved
Technical Data that would require Ocean Aire to fabricate new Fixtures and
instructions for new methods of assembly, and flight testing; new equipment
for aligning parts to specifications and tolerances; and increased labor.
(Borfitz Opinion 3).
4. Ocean Aire’s method of assembling the Aft Fuselage Section shown in
Boyd’s Report differs significantly from the methods used by Piper, and may
adversely impact the flight characteristics and limitations of the airframe;
(Borfitz Opinion 4).
5. The Ocean Aire Quote and method of repair described in Boyd’s Report
violate the FAR and would not only fail to return N8076Y to legal Airworthy
flight status, Ocean Aire’s methods of repair without FAA Approved
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Technical Data present a significant risk that the repaired aircraft is unsafe to
fly to its Type Certificate limitations. (Borfitz Opinion 5).
6.

Boyd’s statement that if a Major Repair was required, that Ocean Aire could
legally return N8076Y to Airworthy status without FAA Approved Technical
Data or submitting the proposed repair for FAA Field Approval on Form 337
by using the alternative endorsements Certified Repair Stations may use under
14 C.F.R Part 43, Appendix B, is patently FALSE. (Borfitz Opinion 6).

7.

Boyd and Moore were required to know the content FAA Order 8300.16A
[Major Repair and Alteration Data Approval] and FAA AC 43-210A
[Standardized Procedures for Obtaining Approval of Data Used in the
Performance of Major Repairs and Major Alterations] and should have known
Boyd’s above statement was FALSE. (Borfitz Opinion 7).

8. It is not reasonable to believe Ocean Aire was capable of disassembling the
Fuselage Aft Section and Stabilator to replace damaged parts and then
reassemble the Fuselage Aft Section and Stabilator to the same quality as
Piper, and that it is reasonable to believe these differences would shorten the
number of flight hours Mr. Hendrych could safely fly N8076Y to its
maximum Service Ceiling of 25,000 feet and near its maximum speed (Vne).
(Borfitz Opinion 8).
9. I agree with those portions of Mr. Hendrych’s Report related to safety
concerns after major repairs, and that airframes lose their rigidity and stiffness
based on total time and severity of operation, which reduces the maximum
speeds the aircraft can fly safely. (Borfitz Opinion 9).
10. If the FAA had actual notice that Boyd and Ocean Aire were returning Major
Repairs of aircraft to service (flight status) without FAA Approved Technical
Data, the FAA would pursue Enforcement Actions in accordance with FAA
Order 2150.3C [FAA Compliance and Enforcement Program], which can
result in an Order to Revoke or Suspend their Certificates as an A&P
Mechanic, Inspector Authorization, and Certificated Repair Station. (Borfitz
Opinion 10).
Borfitz Opinions Number 4, 5, 6, 7, 9, and 10 address issues to rebut the reports of Leonard
Boyd and Jon Moore or issues that that Levenson clearly did not address. Further, Plaintiff’s
arguments, with regard to prejudice, that he must have an opportunity to now rebut the opinions
of Boyd and Moore, are unavailing. Both Boyd and Moore speak to issues that appeared in the
affirmative defenses of Defendant’s Answer. (ECF No. 90 at p. 11-12). The issues regarding

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damages, repairability, and safety are not new to this case. Moreover, as discussed above, this
Court had deferred any requests for rebuttal reports. Thus, in regards to scope and rebuttal,
Borfitz Opinions Numbers 4, 5, 6, 7, 9, and 10 violate this Court’s directive.
The Court will grant Defendant’s Motion for Sanctions by striking Borfitz Opinion
Numbers 4, 5, 6, 7, 9, and 10, as beyond the scope of this Court’s December 2, 2020 Order.
C. Proffer of New Aircraft Appraisal
Finally, Sheltair argues that the Court should strike any attempt by Plaintiff to incorporate
his valuation expert, Mr. Lucas’s, report into his own. Sheltair contends that Plaintiff violated
this Court’s December 2, 2020 Order because Mr. Hendrych, proffering himself as an expert,
provided an expert report in January 2020, but now has disclosed on January 25, 2021, that he
will also serve as an appraisal expert. Plaintiff argues that this supplemental disclosure does not
alter Mr. Hendrych’s January 2020 report wherein he incorporated Lucas’s report. Further,
Plaintiff indicated that he will be withdrawing Lucas as an appraisal expert.
This Court’s December 2, 2020 Order did not contemplate a request to substitute Mr.
Hendrych as an appraisal expert. Therefore, Plaintiff’s disclosure of Mr. Hendrych’s updated
resume does not violate the December 2, 2020 Order. Whether Mr. Hendrych is qualified to
opine as an appraiser in this case or whether his January 2020 report is sufficient is not within the
subject of Defendant’s Motion for Sanctions pursuant to Fed. R. Civ. P. 37 and will not be
addressed herein.
Accordingly, Defendant’s Motion for Sanctions, as regard Mr. Hendrych’s appraisal
reports, is denied.

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ORDER
And now this 22nd day of March 2021, following review of Defendant’s Motion for
Sanctions (ECF No. 127), Plaintiff’s Response in Opposition (ECF No. 128), Defendant’s Reply
Brief (ECF No. 131), Plaintiff’s Motion for Leave to File Reply to Response and Sur-Reply to
Defendant’s Motion for Sanctions (ECF No. 135), and Plaintiff’s Notice to Withdraw Goglia as
Expert in Case in Chief (ECF No. 137), and for the reasons stated above, Defendant’s Motion for
Sanctions is granted in part, denied in part, and deferred in part. Accordingly, it is hereby
ordered as follows:
1. Borfitz Opinion Numbers 4, 5, 6, 7, 9, and 10, as referenced above, are stricken.
2. The Court is taking no action at this time concerning Mr. Hendrych’s report and
opinions, in relation to the arguments in Defendant’s Motion for Sanctions.
3. Defense counsel shall submit its fees and expenses incurred for the preparation of
their Motion for Sanctions (ECF No. 127) and Reply Brief (ECF No. 131) on or
before March 30, 2021. Any response from Plaintiff’s counsel shall be filed on or
before April 6, 2021. The response from Plaintiff’s counsel shall be limited to the
monetary amount of any sanctions and shall refrain from any further discussion on
the merits of the motion for sanctions.
4. Should the parties reach any agreement regarding experts or the outcome of
Defendant’s Motion for Sanctions, they should so inform the court on or before April
6, 2021.
BY THE COURT:
Marilyn J. Horan
United States District Judge

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