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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHRISTINA LIPPY, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. : : : : : : ...o0o... Civil No. PJM-10-627

UNITED STATES’ FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT Pursuant Fed. R. Civ. P. 15(a) and the written consent of Plaintiff (Ex. A), Defendant United States of America hereby submits this First Amended Answer and Affirmative Defenses to Plaintiffs’ Complaint as follows: 1. The allegations in paragraph 1 contain legal conclusion to which no

response is required. To the extent that a response is required, the United States denies the allegations. 2. The allegations in paragraph 2 contain legal conclusions to which no

response is required. To the extent that a response is required, the United States denies the allegation.

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3.

The allegations in paragraph 3 contain legal conclusions to which no

response is required. To the extent that a response is required, the United States admits that Plaintiffs herein have served the Complaint upon the Attorney General and the United States Attorney. 4. The United States admits only that the accident that is the subject of

Plaintiffs’ Complaint occurred in Southern Maryland. Except as expressly admitted herein, the United States is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 4, and therefore denies them. 5. 6. The United States admits the allegations asserted in Paragraph 5. The United States admits that, as of the date of filing of Plaintiffs’

Complaint, the Federal Aviation Administration (“FAA”) had not responded to Plaintiffs’ administrative claim. Except as expressly admitted herein, the allegations contained in paragraph 6 are denied. 7. The United States admits only that Plaintiffs have apparently elected to file

suit in accordance with 28 U.S.C. § 2678(a). Except as expressly admitted herein, the allegations of paragraph 7 are denied. 8. The United States is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations contained in paragraph 8, and therefore denies them.

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9.

The United States admits only that the FAA, which is an agency of the

United States, employs air traffic controllers who provide air traffic services to certain aircraft operating within the National Airspace System. Except as expressly admitted herein, the allegations in paragraph 9 are denied. 10. The United States is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations contained in paragraph 10, and therefore denies them. 11. The United States is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations contained in paragraph 11, and therefore denies them. 12. 13. The United States admits the allegations asserted in Paragraph 12. The United States is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations contained in paragraph 13, and therefore denies them. 14. The United States admits only that on September 27, 2008, the helicopter

operating as Trooper 2 picked up motor vehicle accident victims near the Waldorf, Maryland area and subsequently departed with an intended destination of Prince George’s Hospital (“PGH”) in Cheverly, Maryland. Except as expressly admitted herein, the United States is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 14, and therefore denies them.

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15.

The United States is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations contained in paragraph 15, and therefore denies them. 16. The United States admits only that on September 27, 2008, the pilot

of the helicopter operating as Trooper 2, while en route to PGH, diverted to Andrews Air Force Base (“ADW”). Except as expressly admitted herein, the United States is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 16, and therefore denies them. 17. The United States admits only that the transcript of communications

between the Potomac Terminal Radar Approach facility and the pilot of Trooper 2 indicates that on September 28, 2008 at 0348:08 Universal Time Coordinated (“UTC”), the pilot of Trooper 2 transmitted, “Potomac Approach Trooper two uh we tried to make a medevac up to PG Hospital we’re about seven miles northwest of Andrews would like to climb to two thousand feet and shoot an approach into uh runway one left at Andrews.” Except as expressly admitted herein, the United States is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in paragraph 17, and therefore denies them.

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18.

The United States admits only that on September 27, 2008, the helicopter

operating as Trooper 2 flew in airspace wherein FAA air traffic controllers provided certain air traffic services. Except as expressly admitted herein, the allegations in paragraph 18 are denied. 19. The United States admits only that the pilot of Trooper 2 was in radio

contact with FAA air traffic controllers who provided certain air traffic services to Trooper 2 on September 27, 2008 while acting in the course and scope of their employment. Except as expressly admitted herein, the allegations in paragraph 19 are denied. 20. The United States admits only that on September 27, 2008, FAA air traffic

controllers provided certain weather information to the pilot of Trooper 2. Except as expressly admitted herein, the allegations in paragraph 20 are denied. 21. 22. 23. 24. 25. The United States denies the allegations in paragraph 21. The United States denies the allegations in paragraph 22. The United States denies the allegations in paragraph 23. The United States denies the allegations in paragraph 24. The United States admits only that the transcript of communications

between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0356:45 UTC, the pilot of Trooper 2 transmitted, “Andrews tower Trooper two I’m not picking up the glidescope.” Except as expressly admitted herein, the United States is without

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knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in paragraph 25, and therefore denies them. 26. The United States admits only that the transcript of communications

between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0356:50 UTC, the ADW air traffic controller transmitted, “Trooper two roger uh its showing green on the panel but uh you’re the only aircraft we’ve had in a long time so I don’t really know if its working or not.” Except as expressly admitted herein, the United States is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in paragraph 26, and therefore denies them. 27. The United States admits only that the transcript of communications

between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0357:00 UTC, the pilot of Trooper 2 transmitted, “okay can I get an ASR approach in.” Except as expressly admitted herein, the United States is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in paragraph 27, and therefore denies them. 28. The United States admits only that an ASR approach is one in which the

controller provides navigational guidance in azimuth only. Except as expressly admitted herein, the allegations of paragraph 28 are denied. 29. The United States admits only that the transcript of communications

between ADW and the pilot of Trooper 2 indicates that on September 28, 2008 at 0357:00, the ADW air traffic controller transmitted, “I don’t have anybody to do that um
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I’m not current on that I can’t do it.” Except as expressly admitted herein, the allegations in paragraph 29 are denied. 30. 31. The United States denies the allegations in paragraph 30. The United States admits only that the helicopter operating as Trooper 2

impacted terrain, resulting in the deaths of three occupants as well as the pilot and that one occupant survived with injuries. Except as expressly admitted herein, the allegations in paragraph 31 are denied. 32. The United States is without knowledge or information sufficient to form a

belief as to the truth or falsity of the allegations in paragraph 32, and therefore denies them. COUNT I 33. The United States incorporates by reference all of its answers to the

paragraphs above into this paragraph as if fully restated herein. 34. 35. 36. 37. 38. 39. The United States denies the allegations in paragraph 34. The United States denies the allegations in paragraph 35. The United States denies the allegations in paragraph 36. The United States denies the allegations in paragraph 37. The United States denies the allegations in paragraph 38. The United States denies the allegations in paragraph 39.

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COUNT II 40. The United States incorporates by reference all of its answers to the

paragraphs above into this paragraph as if fully restated herein. 41. 42. 43. The United States denies the allegations in paragraph 41. The United States denies the allegations in paragraph 42. The United States denies the allegations in paragraph 43.

The “Wherefore” clause is a prayer for relief and requires no response. To the extent a response is required, the allegations of the “Wherefore” clause are denied. GENERAL DENIAL The United States denies all allegations of the Complaint not specifically admitted. AFFIRMATIVE DEFENSES 1. The Court lacks subject matter jurisdiction over this matter under the

Federal Tort Claims Act, 28 U.S.C. § 2680. Plaintiffs’ complaint lacks specificity as to some
of the alleged failures on the part of FAA air traffic controllers. See, e.g., Complaint at para. 37 (controllers “failed to follow all proper operational protocols and procedures”). To the extent that any such alleged failures are both discretionary and of the type the discretionary function defense is designed to shield, such failures fall outside of the FTCA’s limited waiver of sovereign immunity.

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2.

The injuries described in the Complaint were solely and proximately caused

by the conduct of third persons or entities over which the United States had no control or right of control and for whom the United States is not legally responsible. More specifically, the pilot in command of Trooper 2 breached his duty of care to Plaintiffs in his planning of the flight by, without limitation, failing to: (1) make a proper risk assessment; (2) ensure the aircraft was equipped with current and appropriate instrument approach charts; (3) familiarize himself with the current and forecast weather conditions; and (4) anticipate and plan for an inadvertent encounter with instrument weather conditions. The pilot in command also breached his duty of care in executing the flight by, without limitation, failing to: (1) use the call sign “Lifeguard” in communicating with the Potomac TRACON and the Andrews Air Traffic Control Tower; (2) execute properly an instrument approach to Andrews Air Force Base; (3) follow the published and prescribed instrument approach procedure for Runway 19 Right; (4) fly a proper, acceptable, and safe approach profile after he reported "I’m not picking up the glide slope"; (5) ensure that his aircraft's descent rate was not too great (particularly not greater than 1000 feet per minute (FPM) during the final stage of the approach (i.e., when the aircraft is below 1,000 feet above ground level)) (see FAA Instrument Flying Handbook, emphasizing that “descent rates greater than 1,000 FMP are not permitted in either the instrument or visual portions of an approach,” and that such descent rates are “unacceptable.”); (6) abide by Federal Aviation Regulations, including but not limited to FAR 91.13 ("careless and reckless") and 91.175 ("takeoff and landing under IFR"); (7) fly
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a stabilized approach after reporting the glide slope failure in accordance with good and acceptable operating practices and procedures; (8) revert to a “localizer only” approach after he reported the glide slope failure; (9) execute a missed approach or request an instrument approach to another runway; (10) after learning that the controller could not provide an Airport Surveillance Radar Approach, revert to a “localizer only” approach, execute a missed approach, request another type of approach, or declare an emergency; (11) level off at the minimum descent altitude for the localizer only approach and fly inbound on the localizer to the visual descent point; and (12) heed both the aural and visual warnings provided by the aircraft’s radar altimeter by making an immediate missed approach; (13) properly monitor and cross-check his flight instruments; (14) maintain situational awareness, including guarding against spatial disorientation and visual illusions; and (15) heed the warnings and cautions contained in the FAA Aeronautical Information Manual, FAA Instrument Flying Handbook, Aircraft Flight Manual, and Maryland State Police Operations Manual, and similar publications, pertaining to instrument approaches, as well as his pilot training. Contributing to the accident was (1) the pilot’s limited recent instrument flight experience; (2) pilot fatigue; (3) improper use of or malfunction of the autopilot or other aircraft equipment; (4) the lack of adherence to effective risk management procedures by the Maryland State Police; (5) lack of training, supervision, flight following, and oversight by the Maryland State Police; and (6) the lack of a terrain awareness system on board the aircraft. No alleged act or omission on the part of the United States caused or contributed to the accident. In addition, many of the
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alleged acts or omissions by the controllers were discrete and supervened by the pilot’s subsequent and highly unusual and extraordinary conduct in allowing or placing the aircraft in an extremely aggressive and improper descent of over 2000 feet per minute when flying less than 1000 feet above ground level, and also in not stopping that descent before crashing into the ground. In addition to the above, the pilot’s supervening, intervening, and unforeseeable negligence included, but was not limited to: (a) flying below the authorized minimum descent altitude for the “localizer only” approach to Runway 19 Right, and (b) ignoring the aural and visual alarm set off at 300 feet above the ground by the aircraft’s radar altimeter. 3. Any alleged liability on the part of the United States, which alleged liability

is expressly denied, is barred or reduced by the negligence, gross negligence and/or other fault of the pilot-in-command, other employees of the State of Maryland, and/or other individuals. As stated above (see affirmative defense no. 2), any alleged procedural deficiencies by air traffic controllers did not cause or contribute to the accident. No alleged act or omission on the part of the United States was even a factor, let alone a substantial factor in causing the accident. As described above (see affirmative defense no. 2), the pilot’s conduct, in combination with the conduct of the Maryland State Police, was the cause of the accident. In addition, an equipment malfunction on board the aircraft may have contributed to the crash. Thus, Plaintiffs are barred from recovery. 4. In the event the United States is found to be at fault in this matter, which

fault is expressly denied, fault should be apportioned among and allocated to all parties,
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nonparties, persons, or entities at fault, including, but not limited to, present and future parties. See affirmative defenses nos. 2 and 3. 5. In the event the United States is found to be at fault in this matter, which

fault is expressly denied, the amount of damages recoverable by Plaintiffs, if any, is limited pursuant to any cap on damages under Maryland state law. Md. Code Ann., Cts. & Jud. Proc. § 11-108. 6. In the event the United States is found to be at fault in this matter, which

fault is expressly denied, the amount of damages recoverable by Plaintiffs, if any, should be reduced by amounts collected by Plaintiffs from any source. 7. Plaintiffs are not entitled to costs or disbursements. 28 U.S.C. §§ 2412(b),

2412(d)(1)(A). 8. Plaintiffs are not entitled to prejudgment interest. 28 U.S.C. § 2674.

WHEREFORE, Defendant United States of America prays for judgment dismissing Plaintiffs’ Complaint with prejudice and that Defendant United States be granted its costs of defense, and such other, further, or different relief to which it might otherwise show itself to be justly entitled. Dated: September 16, 2010 Respectfully submitted, TONY WEST Assistant Attorney General ROD ROSENSTEIN United States Attorney
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JOSEPH BALDWIN Assistant United States Attorney s/ Robert J. Gross ROBERT J. GROSS and s/ Ahsley E. Dempsey ASHLEY E. DEMPSEY Trial Attorneys Civil Division, Torts Branch U.S. Department of Justice P. O. Box 14271 Washington, DC 20044-4271 Tel: (202) 616-4038 Fax: (202) 616-4159 Attorneys for Defendant United States of America Of Counsel: Bradley J. Preamble Office of the Chief Counsel Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Telephone: (202) 385-8223 E-mail: brad.preamble@faa.gov

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of September 2010, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF, which will be served this day on all counsel of record identified on the attached service list via transmission of the Notice of Electronic Filing generated by CM/ECF.

/s/ Robert J. Gross SERVICE LIST Robert D. Schulte, Esq. SCHULTE BOOTH, P.C. 3001 Elliott Street Baltimore, MD 21224 (410) 732-1315 Attorneys for Plaintiffs

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