Case 8:10-cv-01991-DKC Document 21 Filed 10/19/10 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CHRISTINA LIPPY, et al., :

Plaintiffs, :

v. : Civil No. PJM-10-627

UNITED STATES OF AMERICA, :

Defendant. :
:
...o0o...

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. The United States admits the allegations asserted in Paragraph 5.

6. 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. The United States admits the allegations asserted in Paragraph 12.

13. 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. The United States denies the allegations in paragraph 21.

22. The United States denies the allegations in paragraph 22.

23. The United States denies the allegations in paragraph 23.

24. The United States denies the allegations in paragraph 24.

25. 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. The United States denies the allegations in paragraph 30.

31. 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. The United States denies the allegations in paragraph 34.

35. The United States denies the allegations in paragraph 35.

36. The United States denies the allegations in paragraph 36.

37. The United States denies the allegations in paragraph 37.

38. The United States denies the allegations in paragraph 38.

39. 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. The United States denies the allegations in paragraph 41.

42. The United States denies the allegations in paragraph 42.

43. 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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