[00:00:03] Speaker 04: Good morning, Your Honors. [00:00:04] Speaker 04: Ben Cimino on behalf of the Ellicott Plaintiffs. [00:00:06] Speaker 04: I'd like to reserve three minutes for rebuttal, if I may. [00:00:09] Speaker 04: And are you guys splitting time? [00:00:11] Speaker 04: Unfortunately, yes. [00:00:12] Speaker 04: We decided I would take 12, my friend would take eight. [00:00:17] Speaker 04: Thank you, Your Honors. [00:00:19] Speaker 04: Two facts in this case are undisputed. [00:00:21] Speaker 04: First, it's undisputed that Nichols never provided Brown's plane with four miles of radar separation from the FedEx 757. [00:00:31] Speaker 04: And second, it's undisputed that four miles of radar separation would have prevented this crash. [00:00:36] Speaker 04: Despite those undisputed facts, the district court put zero liability on the controllers in this case. [00:00:42] Speaker 04: And it did so for two reasons. [00:00:44] Speaker 04: First, it concluded that controllers had no duty to provide radar separation. [00:00:48] Speaker 04: And second, it found that Brown's negligence was a superseding cause of the crash. [00:00:53] Speaker 04: Both of those are questions of law. [00:00:55] Speaker 04: Both of those were wrong. [00:00:57] Speaker 04: And this court should reverse. [00:00:59] Speaker 04: Turning first to that duty question, a controller's duties are dictated by the ATC manual. [00:01:06] Speaker 04: And the manual requires that in Class C airspace, [00:01:10] Speaker 04: Small planes be given four miles of separation behind any 757s. [00:01:15] Speaker 04: The only exception to that is section 7-2-1 of the manual, which allows controllers to terminate radar separation if they explicitly instruct the pilot to, quote, maintain visual separation, and the pilot accepts that instruction. [00:01:32] Speaker 04: It's undisputed that that never happened here, and therefore, Nickel had the duty to provide Brown's plane with four miles of separation behind the FedEx 757. [00:01:41] Speaker 01: Are you arguing for a rule of basically strict compliance with the ATC manual? [00:01:46] Speaker 04: We are not, Your Honor. [00:01:48] Speaker 04: The reason we're not is because [00:01:50] Speaker 04: What this leaves open, our position, is if there were some sort of justification for a failure to provide radar separation, such as an emergency that required the controller's attention elsewhere, the government could have presented that evidence and could have said, look, we understand that this duty exists, but this duty is subject to extenuating circumstances. [00:02:09] Speaker 04: They didn't do that here. [00:02:10] Speaker 04: In fact, the record shows that within, I think, weeks, if not days, of the accident, [00:02:17] Speaker 04: The NTSB interviewed Nickel and asked him, you know, you had these two options. [00:02:22] Speaker 04: You didn't do either. [00:02:23] Speaker 04: What was your justification? [00:02:25] Speaker 04: And he offered zero justification. [00:02:28] Speaker 05: Is it your position if Mr. Nickel had said, per the manual, maintain visual separation, the accident wouldn't have occurred? [00:02:37] Speaker 04: Slight clarification there, a caveat to that. [00:02:40] Speaker 04: If he had said those words and Brown had accepted that explicitly, then our position is that Nickel would not have had the responsibility to provide radar separation. [00:02:49] Speaker 04: That's correct. [00:02:51] Speaker 05: Yes. [00:02:51] Speaker 03: Pretty clear that the court is saying there is no negligence per se for a failure to follow that manual. [00:02:59] Speaker 03: But what is the standard of care? [00:03:01] Speaker 03: And did the court properly set out the standard of care owed by Nickel? [00:03:07] Speaker 04: Yeah, I think the district court bought into my friend's sort of characterization of this as a strict liability or negligence per se situation, and it's not. [00:03:17] Speaker 04: We're not, for the reasons that I just gave a moment ago to Judge Bress, which is we're not here to say that the government is handcuffed and must always provide this separation when it applies if they have some other situation that dictates control or attention elsewhere. [00:03:32] Speaker 04: that there's no evidence of that here instead this case was fought really on duty grounds they took the position that we didn't have a duty to provide that separation and more specifically your honor they took that position because they said well look Brown [00:03:47] Speaker 04: was flying under VFR, visual flight rules, he saw his traffic so the district court found and therefore there was nothing else to do with radar separation. [00:03:58] Speaker 04: He had an obligation to avoid the traffic and he didn't do it and that's it. [00:04:01] Speaker 04: And it just doesn't work that way because that is an either or proposition that the manuals expressly [00:04:09] Speaker 04: foreclose in this circumstance. [00:04:11] Speaker 04: They give a concurrent duty until it's terminated under 7-2-1. [00:04:14] Speaker 04: They give a concurrent duty to both parties, the controller to provide radar separation and the pilot to use their eyes to avoid traffic. [00:04:22] Speaker 04: And it's that redundancy, that concurrent duty, which is thought to best promote air safety. [00:04:28] Speaker 04: And that's what didn't apply here. [00:04:30] Speaker 04: As I mentioned a moment ago, the government's position really is that controllers can unilaterally terminate radar separation and don't have to follow 7-2-1. [00:04:41] Speaker 05: It seems like the district court's point was that what the air traffic controller did was reasonable in the totality of the circumstances. [00:04:51] Speaker 05: Even though he didn't, say, maintain visual separation and get a confirmation, he did warn about wake turbulence and identify these planes. [00:04:59] Speaker 05: I know there's dispute of whether they saw the UPS or FedEx, but assuming that this, of course, findings are correct, that he essentially put the pilot on notice, did something reasonable, or what a reasonable air traffic controller would do. [00:05:14] Speaker 05: What's your response to that? [00:05:16] Speaker 04: My response to that is that's a slippery slope that becomes a very dangerous slope. [00:05:20] Speaker 04: I mean, we need bright lines in aviation to promote safety. [00:05:24] Speaker 04: We need bright lines to instruct pilots and tell them exactly when they do and do not have the benefit of radar separation. [00:05:32] Speaker 04: And the notion that a controller can withdraw this affirmative obligation, because again, under the manual, the default setting is that radar separation must be provided. [00:05:42] Speaker 04: The manual could have very easily been written to say, [00:05:45] Speaker 04: Controllers provide radar separation when you think it's needed, when you look at the circumstances and you think that the pilot needs it, then provide it. [00:05:52] Speaker 04: But it doesn't say that. [00:05:53] Speaker 04: It says you have to provide it unless this exchange occurs. [00:05:56] Speaker 04: And it's very explicit about that. [00:05:58] Speaker 01: But it seems like when you say it that way, it does start to sound a little more like negligence per se. [00:06:04] Speaker 04: It's not negligence per se to say that controllers have this duty and that unless they can come up with a justification for failure to do it, it is negligence if they fail to do so. [00:06:16] Speaker 04: That's how I've always understood negligence per se, that you say, look, [00:06:19] Speaker 04: Here's the standard of care, you deviated from that, and unless you can provide a justification for your deviation, you're negligent. [00:06:28] Speaker 04: That's how I've understood that. [00:06:30] Speaker 04: We're not saying that in every case where this duty applies and a controller fails to do it, it's automatic negligence. [00:06:38] Speaker 04: They have the opportunity to bring in some sort of reason why they didn't do that. [00:06:41] Speaker 04: But that reason can't be, I didn't think the pilot needed it because the pilot was visually flying and the pilot saw the traffic and that was the end of it. [00:06:49] Speaker 04: Because that essentially is a circular reason that just removes this whole concept from the rule book. [00:06:55] Speaker 04: And I would invite my friend when they get up here in a moment to provide you with the circumstance in which there would ever be a duty to provide radar separation if all that it took was to say, well, [00:07:07] Speaker 04: The pilot was flying VFR. [00:07:09] Speaker 04: Everything looked OK. [00:07:11] Speaker 04: Therefore, I didn't think the pilot needed it. [00:07:12] Speaker 01: I mean, there's more than that here. [00:07:14] Speaker 01: I mean, I think that sort of understates the other side's defense on this. [00:07:19] Speaker 01: But I think that same question can be flipped around to you, to your side, to say, well, under what circumstances are you going to say that noncompliance with the ATC is going to be non-negligent? [00:07:31] Speaker 04: I think in a circumstance where you have an affirmative duty under the manual to provide radar separation, I admit there won't be a lot of circumstances where a controller's failure to do it won't constitute negligence. [00:07:45] Speaker 04: I think that's a fair characterization. [00:07:47] Speaker 04: But this court's precedents demonstrate that one example is where there's an emergency or there's something else that takes the controller's attention elsewhere. [00:07:57] Speaker 04: And on that, I mean, it doesn't [00:07:59] Speaker 01: But then we're not, then we think we're talking maybe on the same terms. [00:08:04] Speaker 01: We're just asking kind of what are the set of facts that are going to justify not following the manual? [00:08:10] Speaker 01: And your view is that that's going to be a pretty narrow set of facts. [00:08:13] Speaker 01: It involves like an emergency or some kind of, you know, dire situation. [00:08:17] Speaker 01: And the government would say, well, no, it involves sort of a broader set of facts and circumstances. [00:08:23] Speaker 01: That seemed to be where the district court was on this. [00:08:25] Speaker 04: And the trouble with that is, Your Honor, those facts are going to exist in virtually every case. [00:08:31] Speaker 04: And there's a second problem with it besides it being sort of commonplace, if not every case, which is the ambiguity inherent in that. [00:08:41] Speaker 04: I mean, part of the function of this provision is to have the conversation between the pilot and the controller, so we're very clear that radar separation is not, that safety net is not being provided. [00:08:51] Speaker 04: And if controllers can just look at the picture and just say, I think the pilot's got it, and quietly to themselves decide, I'm not going to provide radar separation, that's a very ambiguous circumstance. [00:09:04] Speaker 05: What's the interplay here between state law, you know, Nevada state law, which I think on the FTCA, they say we should look at tort laws, state tort law of the state, and the federal guidance here, the ATC manuals, which I think we've said, you know, these [00:09:22] Speaker 05: Generally guidance manuals that don't go through notice and comment process. [00:09:25] Speaker 05: They're not binding law. [00:09:26] Speaker 05: They're just kind of guidance. [00:09:27] Speaker 05: How do we balance this kind of state tort law, which says totality of circumstances, and then we kind of have this overlay of this ATC manual, which isn't binding as law. [00:09:37] Speaker 05: I mean, how do we balance these two? [00:09:40] Speaker 05: It's an interplay between the two. [00:09:41] Speaker 04: Sure. [00:09:42] Speaker 04: It's a great question, Your Honor. [00:09:43] Speaker 04: And my answer is this. [00:09:44] Speaker 04: I think we are in a dangerous place when we start to say that provisions of the manual do and don't apply in certain states. [00:09:53] Speaker 04: The purpose here is to have a clear standard that applies from sea to shining sea. [00:09:58] Speaker 04: This is a heavily regulated industry. [00:10:00] Speaker 04: We need pilots to know when I'm in this airspace versus that airspace, the rules are the same. [00:10:06] Speaker 04: We cannot have them change. [00:10:08] Speaker 04: And I think this idea of a collision between federal, how we characterize the manual, and state law is a little bit overblown in my friend's position, because it really comes down to this concept of negligence per se. [00:10:20] Speaker 04: And I want to be very clear. [00:10:22] Speaker 04: saying that a violation of the manual always results in liability for the controllers. [00:10:27] Speaker 04: We're not saying that. [00:10:29] Speaker 04: And even in states where it would constitute negligence per se, [00:10:33] Speaker 04: that opportunity provided justification comes in. [00:10:35] Speaker 04: I mean, this is not a situation where you have to decide that Nevada law controls. [00:10:42] Speaker 04: Although I would say, you know, it would present an interesting preemption issue if the manual said that pilots, I'm sorry, controllers have to do X and state law suggested that they could do Y. I mean, that seems to me to be a classic preemption situation. [00:10:56] Speaker 04: So I think that this court's precedents are clear. [00:11:00] Speaker 04: that the manual is what sets the duties and responsibilities of controllers. [00:11:04] Speaker 04: Now whether or not they violated those is a circumstantial inquiry. [00:11:09] Speaker 04: But their argument essentially reduces to we didn't have the duty. [00:11:13] Speaker 04: And that's in conflict with the manual just straight up. [00:11:17] Speaker 04: And apart from the ambiguities that it would entail, I also want to emphasize this is a record where, I mean, the evidence is actually really, really strong and consistent that [00:11:30] Speaker 04: you have to strictly comply with 7-2-1 in order to terminate the duty to provide radar separation. [00:11:36] Speaker 04: I mean, that's not just us. [00:11:38] Speaker 04: Obviously, we have our experts. [00:11:39] Speaker 04: But that was their experts. [00:11:41] Speaker 04: Turner, their ATC expert, said so. [00:11:45] Speaker 04: Nickel conceded the point. [00:11:47] Speaker 04: You have the evidence that the FAA, within days of this incident, issued a bulletin to the tower that said, hey, we mean it when we say. [00:11:54] Speaker 04: You have to say, maintain visual separation, or you have to provide radar separation. [00:11:59] Speaker 04: you know, loosey goosey, well, we thought it was okay, so we didn't do it. [00:12:03] Speaker 04: It's an either or. [00:12:04] Speaker 04: You had the NTSB in their findings. [00:12:06] Speaker 04: You even had the tower retrain nickel afterwards and emphasize that same, this is a fork in the road. [00:12:13] Speaker 04: You gotta go this way or you go that way. [00:12:15] Speaker 04: So it's actually really, really consistent on this point. [00:12:20] Speaker 03: Is there a different standard of care after the collision warnings came out? [00:12:25] Speaker 03: I mean, we're analyzing this on the transfer of responsibility, but what happened after those collision warnings were produced, and then what should ELECR have done then? [00:12:38] Speaker 04: You're referencing those alarms that went off in the tower, Your Honor. [00:12:42] Speaker 04: So that happened very late. [00:12:44] Speaker 04: I want to emphasize in the last minute of this incident. [00:12:49] Speaker 04: And I'm not suggesting that the standard of care should have necessarily changed. [00:12:54] Speaker 04: Really our position is that there should have been something done earlier in this flight. [00:12:59] Speaker 04: Although we do think that that is still an opportunity for Nickel to have given some instruction to Brown to [00:13:08] Speaker 04: let him know that, hey, you know, you're getting close and perhaps you want to go around. [00:13:12] Speaker 04: I mean, give him some information at that point to help him safely finish this flight. [00:13:19] Speaker 03: It seems like the analysis of the district court is focused on the experience of Brown as a pilot and as somebody who was recognized by the FAA as being very skilled. [00:13:34] Speaker 03: Was that proper under the circumstances? [00:13:37] Speaker 04: I don't think it was proper because I don't know how the controller would have known that at the time. [00:13:44] Speaker 04: I don't know that the controller can look and say, oh, well, we got Brown up there. [00:13:47] Speaker 04: He's good. [00:13:48] Speaker 04: I can go smoke a cigarette or something. [00:13:50] Speaker 03: So there's no evidence in the record to support that conclusion. [00:13:53] Speaker 04: I don't believe there is, and I don't think we want controllers doing that and tailoring their instructions based on the person in the cockpit. [00:14:03] Speaker 04: And before I forget, I do want to go back to one point about this concept of the government's position that, well, it looked like everything was okay and brown-hatted and he saw the traffic, et cetera, so I didn't need to provide radar separation. [00:14:16] Speaker 04: Another problem with that position is it really conflates a controller's duties in these two worlds that exist. [00:14:24] Speaker 04: In the management activities case, which is the government's favorite case, I think they cite it like two dozen times in their brief, that really shows you this fork in the road and how this works. [00:14:34] Speaker 04: When you have an affirmative obligation to provide radar separation, you have that affirmative obligation. [00:14:38] Speaker 04: You must provide it. [00:14:40] Speaker 04: That ceases when you have this conversation with the pilot where you say maintain visual separation, or I think in the context of an IFR pilot, it's a visual approach clearance. [00:14:49] Speaker 04: And after that, the controller can sit back and do nothing until they are confronted with facts or circumstances that they perceive, hey, this pilot needs some guidance. [00:15:00] Speaker 04: And that's replete throughout management activities. [00:15:03] Speaker 04: It's also this circuit's precedence that, let's see. [00:15:10] Speaker 04: The Hamilton case, this court's decision at 497, federal seconds, 370, pages 375 through 376. [00:15:21] Speaker 04: And that is the circumstance where the controllers then have to do exactly what Nicol purports to have done here, where they look and say, everything looked fine to me. [00:15:30] Speaker 04: I didn't need to do anything. [00:15:32] Speaker 04: Or conversely, gee, I saw some stuff that looked concerning, and so I intervened. [00:15:37] Speaker 04: They want to conflate that and do away with counselors watch your clock because you're eating up into your co-counsel's time So, oh, well, then I apologize and I will see you on rebuttal. [00:15:46] Speaker 04: Thank you [00:16:01] Speaker 02: It pleases the court, Austin Sweet, on behalf of the Brown family, and I would like to reserve two minutes of rebuttal. [00:16:10] Speaker 02: Your Honor, I want to start by addressing some of the court's questions. [00:16:14] Speaker 02: First of all, the conversation about negligence, per se, and strict liability. [00:16:19] Speaker 02: And you mentioned, Judge Lee, the issue of the statement of caution, wake, turbulence. [00:16:25] Speaker 02: the uh... the united states throughout their briefing and i think the district court relied on this as well misunderstood and i i believe the difference between the caution with turbulence warning and the words maintain visual separation and i think that's very important we're talking about strict liability when the district courts throughout various decisions cited in the united states brief [00:16:49] Speaker 02: talk about caution wake turbulence, that is a warning. [00:16:53] Speaker 02: That is a warning that is discretionary to the controllers that is given when the controller feels it is necessary and appropriate. [00:17:00] Speaker 02: But the words maintain visual separation are an instruction. [00:17:04] Speaker 02: And that is part of the transfer of the duty from controller applied radar separation to pilot applied visual separation. [00:17:12] Speaker 02: And those words are necessary and mandatory [00:17:16] Speaker 02: As part of the transfer of that duty, it is an instruction to the pilot to maintain visual separation and it is telling the pilot that the controller is no longer providing radar separation. [00:17:27] Speaker 02: And of course, the pilot can say no. [00:17:30] Speaker 02: The pilot does not have to accept that instruction. [00:17:33] Speaker 02: And so by saying maintain visual separation and waiting for the pilot to acknowledge, there is a handoff of that duty, of that responsibility to maintain wake turbulence separation. [00:17:45] Speaker 02: And that's different from the advisory of caution wake turbulence. [00:17:50] Speaker 02: That is an advisory that does not change any party's duties. [00:17:53] Speaker 02: And the reason that's important is if you're talking about strict liability or negligence per se, [00:17:58] Speaker 02: The cases cited by the United States say that providing a caution wake turbulence warning does not necessarily create negligence. [00:18:09] Speaker 02: If the controller should have said caution wake turbulence but didn't, that didn't cause the crash because the pilot already knew that he was supposed to look at that aircraft and avoid its wake turbulence. [00:18:20] Speaker 02: That's different than [00:18:23] Speaker 02: The transfer of duty for wake turbulence separation with the words maintain visual separation because until the controller tells the pilot maintain visual separation and until the pilot agrees to do so, the pilot has every basis to believe that he is being provided four miles in this case of wake turbulence separation and he has no reason to know or believe that the controller has stopped doing so. [00:18:49] Speaker 02: The other issue where the district court erred is the affirmative finding that Mr. Brown saw FedEx 1359. [00:18:58] Speaker 02: According to the district court, Mr. Brown's, excuse me, the district court understood Mr. Brown's final words. [00:19:06] Speaker 02: Mr. Brown's final words were that he had a visual on the airliner for the right. [00:19:13] Speaker 02: And as discussed in our brief what he meant and all parties agree to trial was I have a visual on the airliner that is landing on runway one six right at the time there were two airliners landing on one six right throughout the decision by the district court. [00:19:29] Speaker 02: The district court repeatedly stated that Mr. Brown said he had a visual on an airliner to his right or on his right or off to his right. [00:19:38] Speaker 02: That is not what Mr. Brown said. [00:19:40] Speaker 02: And that misunderstanding of the evidence permeated throughout the decision and resulted in the district court believing that Mr. Brown affirmatively saw FedEx and not the UPS. [00:19:54] Speaker 02: And based upon that decision, the district court found that Mr. Brown [00:19:58] Speaker 02: had that affirmative duty to now that he had seen the correct airplane. [00:20:03] Speaker 02: He had the duty, regardless of what Mr. Nickel had done to put him in the situation he was in. [00:20:08] Speaker 02: to safely extract himself from that situation and land his aircraft. [00:20:12] Speaker 05: We have to give some deference to the district court's finding, factual finding, that the pilot saw the FedEx and the UPS. [00:20:21] Speaker 05: And I take your point that he said for the right, to the right, maybe referring to the runway. [00:20:26] Speaker 05: But there's some countervailing evidence that maybe he did see the FedEx, not the UPS, because the UPS was close to landing on the runway already. [00:20:35] Speaker 05: Given that, don't we have to give deference to the district court here in this factual finding? [00:20:42] Speaker 02: Some of the findings, sure, but the particular finding as to what he said and where he was looking when he said he had a visual on the aircraft [00:20:51] Speaker 02: It is flat wrong compared to the undisputed evidence. [00:20:55] Speaker 02: And that finding permeates all the other findings. [00:20:58] Speaker 02: The district court refers back to that belief that Mr. Brown said he had a visual on an aircraft to his right. [00:21:04] Speaker 02: That keeps coming up in the order. [00:21:06] Speaker 02: It's cited over and over and over again. [00:21:09] Speaker 02: Every time the district court makes another finding as to why it believes Mr. Brown saw the FedEx, not the UPS, it refers back to the aircraft on his right. [00:21:18] Speaker 01: Let me ask you, let's imagine that he had clearly said, I see the aircraft to my right, and we weren't having this discussion about this particular factual issue. [00:21:28] Speaker 01: Would there still be, would you still say that the air traffic controller breached the legal duty at that point? [00:21:35] Speaker 02: Your Honor, the problem is the answer is yes. [00:21:38] Speaker 02: And what we need to analyze is when did he see the aircraft and what could he have done at that time? [00:21:44] Speaker 02: Because the problem is the physics of it, he was already not provided four miles of separation. [00:21:51] Speaker 02: Because remember, the way these aircraft are converging on the airport, the duty to have provided four miles of separation has already been breached. [00:22:02] Speaker 02: And so at that point, of course, Mr. Brown had a duty if he saw the correct aircraft to avoid it. [00:22:08] Speaker 02: But what needed to have been analyzed, which the district court didn't do because we went past that, was at what point did he see it? [00:22:17] Speaker 02: What could he have done about it at that point? [00:22:19] Speaker 02: And was the comparative negligence between what the controller had done put him already in a situation where he was already too close to the FedEx aircraft and compared to [00:22:33] Speaker 01: What Mr. Brown could and should have done to avoid what did the record show on this point about what once he said I have visual to the right whether he could have done anything more to avert this. [00:22:47] Speaker 02: So there of course was no explanation or no decision as to. [00:22:54] Speaker 02: had he seen an aircraft to the right, what he could or should have done differently. [00:22:58] Speaker 01: What the... Was there expert testimony on this point? [00:23:01] Speaker 02: The expert testimony was that before this even happened, Mr. Nichols should have removed Mr. Brown from the landing pattern and had him circle around so that he would already be back behind the FedEx 1359 before he even got into that situation. [00:23:17] Speaker 02: Now, again, the testimony or the record showed that Mr. Brown saw an aircraft that was landing for the right, which one he saw was not specified in his transmission. [00:23:29] Speaker 02: And so there was no expert testimony as to if he had in fact said, I see an aircraft on my right, what he could have done differently at that point. [00:23:40] Speaker 02: We don't know. [00:23:40] Speaker 02: And the problem is we're speculating as to what he meant and what he saw and what he could have done based upon the failure to communicate by the air traffic control. [00:23:49] Speaker 01: Is this governed in Nevada by a comparative negligence regime that somebody could say, well, there was fault on both sides and then try to apportion that? [00:23:58] Speaker 02: Absolutely. [00:23:58] Speaker 02: And that's what we think should be done on remand. [00:24:02] Speaker 02: And I'll reserve the rest of my time unless there's further questions. [00:24:04] Speaker 05: You guys have exceeded your time, but I'll give you two minutes each. [00:24:07] Speaker 02: Thank you. [00:24:36] Speaker 00: please the court. [00:24:38] Speaker 00: My name is Robert Gross and I represent the United States of America in this case. [00:24:45] Speaker 00: We had eight days of trial. [00:24:49] Speaker 00: Judge Dewey [00:24:52] Speaker 00: heard the testimony of numerous experts, heard the testimony of Greg Nicol. [00:25:00] Speaker 00: Greg Nicol got off the witness stand, explained his observations, what he saw, what he believed, using a mock tower. [00:25:10] Speaker 00: Keep in mind that a controller in a tower [00:25:14] Speaker 00: has windows. [00:25:15] Speaker 00: And his primary responsibility is the runways, watching the runways, watching the taxiways. [00:25:22] Speaker 00: He has radar, but that's not his function. [00:25:26] Speaker 00: That's just an aid as compared to a trachon. [00:25:30] Speaker 00: Brown originally spoke with the trachon, approach control. [00:25:35] Speaker 00: And a trachon is in a room looking at a radar scope, a dark room. [00:25:40] Speaker 00: It's a totally different ballgame. [00:25:43] Speaker 00: she heard the testimony of the witnesses she reviewed documents many documents and after all that she concluded that Gregory Nickle the air traffic controller that alleged was they're alleging was negligent in this case originally they alleged other controllers but their focus is on Nickle she concluded that [00:26:13] Speaker 00: He was not negligent and no way caused or contributed to the accident. [00:26:21] Speaker 00: And that the sole and proximate cause of the crash was the negligence of Pilot Brown. [00:26:31] Speaker 00: Those findings are hers. [00:26:33] Speaker 00: Those conclusions are supported by abundant evidence in the record. [00:26:39] Speaker 00: and backed by, as I said, fact and expert testimony. [00:26:43] Speaker 00: She found the government's experts to be credible, she found Nicholl to be particularly credible, and she found the plaintiff's experts to be not persuasive and not credible. [00:26:56] Speaker 00: And she mentioned that in her decision. [00:27:01] Speaker 00: our position that there's just no basis here for a reversal. [00:27:05] Speaker 01: I mean, to what extent is credibility part of this? [00:27:08] Speaker 01: Because, you know, Nichols can credibly testify that I believe that the pilot had visual separation. [00:27:15] Speaker 01: That doesn't necessarily answer the question of whether he had a legal duty under the circumstances to say something more to the pilot, even though he may credibly explain why he did what he did. [00:27:25] Speaker 00: Well, let me explain that. [00:27:32] Speaker 00: Nicole explained and the court found his explanation to be credible that he believed that the pilot had accepted responsibility to provide his own visual separation. [00:27:47] Speaker 00: And the basis for that was initially the pilot was flying on a downwind leg away from the airport. [00:27:56] Speaker 00: He had already been told that there was a 757 [00:28:02] Speaker 00: was told by the TRACON 15 miles from the airport. [00:28:10] Speaker 00: Nickel had told the pilot to continue inbound on the downwind and the pilot on his own initiative turned from the downwind to a base leg. [00:28:25] Speaker 00: It turned out to be a modified base which we're calling a dog leg. [00:28:29] Speaker 00: But he made that turn by himself. [00:28:31] Speaker 00: He's VFR. [00:28:33] Speaker 00: It's a perfectly clear day. [00:28:34] Speaker 00: I mean, perfectly clear. [00:28:37] Speaker 00: It's good visibility, more than 10 miles. [00:28:39] Speaker 00: All you need is three for VFR. [00:28:42] Speaker 00: The sun is up in the sky. [00:28:45] Speaker 00: He's flying under visual flight rules. [00:28:47] Speaker 00: And he makes that turn. [00:28:49] Speaker 00: That conveyed to Nicholl [00:28:53] Speaker 00: That was the expert testimony that he did not want four miles of radar separation, because if he did, he would have continued on the downwind, as was explained, and put four miles behind the other three planes. [00:29:10] Speaker 00: There was a, you know, in order FedEx, then the UPS, and American. [00:29:16] Speaker 00: The court found that, you know, the nickel explained that [00:29:23] Speaker 00: that he believed that the pilot would be listening to those transmissions, because that was his duty, and the court found that he would know their general positions and intentions. [00:29:37] Speaker 00: So the pilot is essentially [00:29:40] Speaker 00: taking a shortcut, he's making that turn, and then he continues turning so that he's now on a dog leg. [00:29:49] Speaker 00: So just so you know, two parallel runways, you have the FedEx who's on a nine-mile final, and you have Brown, Pilot Brown, now turning on a dog leg. [00:30:02] Speaker 00: That's a 60-degree angle from the final. [00:30:06] Speaker 00: He's coming in, [00:30:08] Speaker 00: on what we call a modified base, and then he turns and makes onto a close-in base, and then he turns onto final. [00:30:21] Speaker 00: When you come in like that, as the ex, there was expert testimony on this, and Nichols said this too, you're not expecting or wanting, you know, four miles of radar separation. [00:30:35] Speaker 00: So the judge credited Nichols' testimony on that, and the testimony of the expert witnesses, that he did not want or expect four miles of radar separation. [00:30:48] Speaker 01: So basically... How far does this get us here? [00:30:50] Speaker 01: Because, I mean, I think he would say, well, I didn't know, you know, I wasn't told about the four miles, so I didn't, I wasn't given the choice to accept it or reject it. [00:31:01] Speaker 00: Keep in mind, this is an experienced pilot who's based there, and owns a flight school, Flying Star Aero Assessment Pilot Center. [00:31:12] Speaker 00: He's been there for several years. [00:31:15] Speaker 00: It's an airport that has a mix of small planes and airliners coming into land. [00:31:22] Speaker 00: The idea that he didn't know that he was not getting four miles of visual separation flies in the face of the evidence and is absurd. [00:31:31] Speaker 00: Of course he knew. [00:31:32] Speaker 00: The plaintiffs want this court and wanted the district court to believe that he didn't know he wasn't getting four miles. [00:31:39] Speaker 00: Remember, when he turned from the dogleg [00:31:44] Speaker 00: to the close-in base, he was a mile away from this FedEx that had just crossed in front of him. [00:31:54] Speaker 00: The idea that he didn't know the difference between one mile and four miles, there's a vast difference between those two amounts. [00:32:05] Speaker 00: Further, this idea that he saw the UPS, he reported the UPS that was landing, [00:32:14] Speaker 00: He saw that, but he didn't see the FedEx when it crossed in front of him. [00:32:19] Speaker 00: Plus, the evidence shows that when he said he had a visual on the airliner for the right, that this airliner was obviously on his right. [00:32:36] Speaker 00: Even the plaintiff's experts conceded that when the pilot was told he has [00:32:43] Speaker 00: His traffic is a 757 on a 90-mile final caution wake turbulence. [00:32:51] Speaker 00: This pilot would know where that is. [00:32:53] Speaker 00: And he would know that these planes travel about three miles a minute. [00:32:59] Speaker 00: So in a minute, that plane's going to go from nine miles to six miles. [00:33:03] Speaker 00: So when the pilot said he had a vigil on the airliner for the right, [00:33:11] Speaker 00: Why would he be reporting a plane that was about to land? [00:33:15] Speaker 00: That wasn't his traffic. [00:33:17] Speaker 00: And the court found that Nicholl had every reason to believe that he was reporting the right, the correct aircraft. [00:33:28] Speaker 00: Because for a plane to go from a nine mile final, actually to now a half mile final, you'd have to be going the speed of sound. [00:33:40] Speaker 00: Plus, that's how planes come in on approaches. [00:33:45] Speaker 00: So the other thing is that when he reported having a visual, it was when the Bonanza, remember, he was coming in on the downwind and he made a descending turn. [00:34:02] Speaker 00: The FedEx is also descending. [00:34:05] Speaker 00: When they are exactly at the same altitude, [00:34:08] Speaker 00: is when he reported the FedEx. [00:34:12] Speaker 00: And that's typical. [00:34:14] Speaker 00: The air traffic control expert said that was a typical scenario. [00:34:20] Speaker 00: And we had our own experts go out and fly in this area. [00:34:24] Speaker 00: And they could hardly, they could not see planes that were landing when they were a half mile away from the airport because they were in ground clutter. [00:34:35] Speaker 00: The other thing is, you know, the brown controller nickel told the 757 that the Bonanza on a four mile base, left base, has you in sight. [00:34:54] Speaker 00: And then the FedEx said, we're looking. [00:34:58] Speaker 00: A plane that is about to land, [00:35:01] Speaker 00: isn't going to be concerned about a plane that's four miles away. [00:35:07] Speaker 00: And so Brown would know that. [00:35:11] Speaker 00: He would know that if he did make a mistake, and we don't think he did, the evidence showed that he didn't. [00:35:20] Speaker 00: And that's what the court found. [00:35:21] Speaker 05: On that point, I mean, are you really addressing the duty or negligence, or is this really more about proximate cause? [00:35:28] Speaker 00: Well, both. [00:35:29] Speaker 00: I mean, if you want to get the court [00:35:32] Speaker 05: Most of it seems to be proximate cause that is, you know, pilot knew, should have known, didn't know. [00:35:38] Speaker 00: In terms of negligence, the controller passed the baton. [00:35:45] Speaker 00: This pilot knew, had to know, and it was reasonable for the controller to believe he knew, because based on his flight path, based on the fact that he was facing the 757 all times, his rate of descent matched that of the 757. [00:36:03] Speaker 00: He turned toward the 757. [00:36:07] Speaker 00: All that indicated to the controller that he was maintaining visual separation. [00:36:14] Speaker 00: Plus it was his duty to do that and he had been warned earlier caution wakes turbulence. [00:36:20] Speaker 00: So how do you, his duty at that point as a VFR pilot is to maintain visual separation from that plane. [00:36:27] Speaker 05: Can you step back here just a broader legal issue? [00:36:32] Speaker 05: I had asked your friends on the other side, how do we balance the state tort law and the federal guidance? [00:36:39] Speaker 05: And maybe this is just the future of the Federal Tort Claims Act. [00:36:42] Speaker 05: But it does seem a little bit weird to say we look at the state tort law of the state when we're talking about airplanes that cross multiple states repeatedly. [00:36:53] Speaker 05: I mean, I don't know if the tort law of the 50 states differs significantly, but... Not when it comes to negligence. [00:37:01] Speaker 00: I mean, the standard is reasonableness under the circumstances in every state. [00:37:07] Speaker 00: So court did her duty. [00:37:09] Speaker 00: She analyzed the state as she has to under the Federal Tort Claims Act. [00:37:13] Speaker 00: I mean, analyzed the case using... [00:37:17] Speaker 00: Nevada tort law. [00:37:18] Speaker 00: That's what she did. [00:37:20] Speaker 00: Now, the Ninth Circuit has already said that the air traffic control manual is just evidence of, doesn't set the standard. [00:37:28] Speaker 00: Now, there's no preemption. [00:37:30] Speaker 00: Admiralty, that's a different story. [00:37:33] Speaker 00: There's preemption, federal, but not here. [00:37:35] Speaker 00: That's not how the FDCA works. [00:37:38] Speaker 00: So she found that, given the totality of the circumstances, [00:37:43] Speaker 00: the controller's conduct is reasonable, and it was not foreseeable that at the last second, the pilot who was coming in perpendicular to the FedEx now, perpendicular, right, that the pilot, the last second, here's the FedEx coming in, he crosses right to left, [00:38:05] Speaker 00: They're a mile apart, which is quite a distance a mile apart. [00:38:09] Speaker 00: Just when you're driving on the highway and it says, exit one mile ahead, take a look at how long that is. [00:38:18] Speaker 00: Perfectly safe, normal, everything's normal at this point. [00:38:23] Speaker 00: The FedEx crosses in front of them. [00:38:25] Speaker 00: Now the procedure is to note the flight path of the plane that you're following. [00:38:31] Speaker 00: stay above it, note its landing point, and then land beyond it. [00:38:37] Speaker 00: Then you won't get into the wake. [00:38:39] Speaker 00: What this pilot did was, as the plane passed him, this is the flight path. [00:38:48] Speaker 00: It's like a triangle, the hypotenuse of a triangle. [00:38:50] Speaker 00: This is the threat area. [00:38:53] Speaker 00: plane is now here, but the threat area is here. [00:38:56] Speaker 00: This is the flight path. [00:38:58] Speaker 00: He was above that flight path. [00:39:00] Speaker 00: You could see that in the diagrams that are in the briefs. [00:39:03] Speaker 00: But then he made a descending left turn [00:39:08] Speaker 00: that are just holding his altitude, for some reason he started ascent and he dipped down last second into the wake, and that's what caused the crash. [00:39:19] Speaker 00: Judge Dew correctly determined that there was no connection between the actual cause of the crash, which was pilot negligence, and any act or omission on the part of Nickel. [00:39:33] Speaker 00: She found that the [00:39:37] Speaker 00: Negligence of the pilot was the sole and proximate cause of the crash. [00:39:43] Speaker 00: In other words, it was not that any act or omission on the part of Nicholl was not even a factor, let alone a substantial factor in causing this accident. [00:39:58] Speaker 00: And these are factual determinations she made. [00:40:00] Speaker 00: They're all factual, and she should be in a not clear error. [00:40:10] Speaker 00: there should be deference to the factual determinations that she made regarding proximate cause and also breach of duty. [00:40:19] Speaker 00: She found no breach of duty. [00:40:21] Speaker 00: Now, they're arguing what they argued at trial, but, you know, the court [00:40:28] Speaker 00: The district court addressed their arguments in her order denying the plaintiffs, in this case Appellus, post-trial motions for rehearing. [00:40:52] Speaker 00: One second. [00:40:54] Speaker 00: Here we go. [00:40:55] Speaker 00: So with regard to the Ellicors, she said, and I'm reading from the record, page four of the ER, from her order, the Ellicor party's argument that the court overlooked the fact that Nicol did not say maintain visual separation and the conclusions the Ellicor party's wish followed from that omission [00:41:20] Speaker 00: which is that the controller should have given him four miles of separation, is beyond unpersuasive. [00:41:30] Speaker 00: It is frustrating. [00:41:32] Speaker 00: The court simply was not persuaded by the Ellicott Party's theory of the case. [00:41:40] Speaker 00: Then she goes on to say the ELICA parties also attempt to factually distinguish some of the case law upon which the court relied in the bench order and missed the point in doing so. [00:41:50] Speaker 00: As the court explained in the bench order, the court reads these cases suggest that it may consider the context [00:41:57] Speaker 00: surrounding the air traffic controller's interactions with the pilot in determining whether the air traffic controller was negligent, which directly contradicts the ELICA party's theory of the case. [00:42:10] Speaker 00: That Nicol is essentially strictly liable for the plane crash because he did not, say, maintain visual separation. [00:42:19] Speaker 00: in contravention of the air traffic control manual. [00:42:21] Speaker 00: Now, it's true, he did not use the prescribed, he didn't use the magic words, you know, the prescribed phraseology. [00:42:32] Speaker 00: But there was a meeting of the minds. [00:42:34] Speaker 00: This pilot was not operating under the assumption that he was getting four miles. [00:42:40] Speaker 00: That, assuming [00:42:45] Speaker 00: As our expert pointed out, Turner, the requirement to provide four-mile separation arises only if you're not going to have visual separation. [00:42:55] Speaker 00: And Mr. Nickel testified, my job was to apply separation until separation was applied by the pilot. [00:43:06] Speaker 00: So that baton had been passed. [00:43:08] Speaker 00: There's no continuing duty to [00:43:13] Speaker 00: for the controller to all of a sudden tell the pilot, hey, stop what you're doing. [00:43:18] Speaker 00: The pilot in command, okay, to just override him and say, hey, stop what you're doing. [00:43:24] Speaker 00: I've got to give you four miles. [00:43:27] Speaker 00: These two were on the same page. [00:43:29] Speaker 00: They had a meeting of the minds. [00:43:31] Speaker 00: They were [00:43:34] Speaker 00: no way that this pilot could have possibly believed that he was not—that he was getting four miles. [00:43:41] Speaker 00: He was not expecting it. [00:43:43] Speaker 00: Now, in terms of control, concurrent [00:43:48] Speaker 00: duties. [00:43:49] Speaker 00: Cases are pretty clear that concurrent duties aren't, isn't necessarily concurrent liability, like the Spaulding case, for example, where that phrase comes from. [00:44:01] Speaker 00: But the plaintiffs, Ellicott has given an analogy where the two drivers pass through, like blow through stop signs and intersection, and, you know, they hit each other. [00:44:17] Speaker 00: And they use that analogy to show that there's concurrent responsibility here. [00:44:22] Speaker 00: But in that case, the analogy, the two drivers were expecting the other driver to stop. [00:44:31] Speaker 00: In this case, our case here, there was no expectation in the part of Brown that he would be getting four miles of separation. [00:44:40] Speaker 00: The evidence showed he didn't want four miles and that he continued [00:44:46] Speaker 00: Anyway, he continued knowing that he wasn't getting four miles. [00:44:52] Speaker 00: And from the time he said he has a visual to the time of the crash. [00:44:57] Speaker 00: And that's just like spaulding other cases, black. [00:45:00] Speaker 00: But the judge didn't find there was necessarily, there was no superseded cause. [00:45:05] Speaker 00: You could find that here. [00:45:06] Speaker 00: that there was a superseding cause. [00:45:08] Speaker 00: She found that there was just, that he acted reasonably, there's no breach, nickel, no breach and no causation. [00:45:15] Speaker 00: And to answer your question about pilot's experience, that went to the pilot recognition that he wasn't getting four miles. [00:45:26] Speaker 00: And also, there's no way that he didn't know that, a pilot of his experience. [00:45:31] Speaker 00: The controller doesn't know, like you said, the pilot's background, but he does know whoever's flying his high-performance plane into our airport, the high-performance plane has to be well-trained. [00:45:44] Speaker 00: Because it's not, you know, a Cesta 152 or 172, these small trainers. [00:45:50] Speaker 00: This is a high-performance plane with retractable gear. [00:45:54] Speaker 00: So, you know, he has certain expectations. [00:45:56] Speaker 00: He has the right to believe that this pilot is going to follow the federal aviation regulations and stay high, land long, and avoid a wake encounter. [00:46:10] Speaker 00: Great. [00:46:10] Speaker 00: Thank you. [00:46:10] Speaker 00: Does anybody have any other further questions? [00:46:12] Speaker 00: We're done. [00:46:12] Speaker 00: Great. [00:46:13] Speaker 00: Thank you. [00:46:30] Speaker 04: Thank you, Your Honors. [00:46:31] Speaker 04: So just very quickly here, you heard it just a moment ago, this idea that the controller had no responsibility to provide wake turbulence separation because Brown was flying a pattern that brought him within four miles. [00:46:44] Speaker 04: I mean, effectively, that reduces to a premise that any time the controller observes a pilot flying within that [00:46:51] Speaker 04: that amount of distance, that there's no obligation to provide radar separation, which would categorically deny radar separation in every single case where it's needed the most. [00:47:01] Speaker 04: The pilots who are four or more miles away from the aircraft in front of them don't need that radar separation, and those are the only people under the government's rule who would get it. [00:47:10] Speaker 04: That makes no sense. [00:47:11] Speaker 04: This notion that proximate cause here doesn't apply because it wasn't foreseeable to the controller, that Brown wouldn't execute this fly high land long procedure, that fly high land long procedure applies every single time you are following a wake producing aircraft on a parallel runway or on a single runway where you're in a queue. [00:47:33] Speaker 04: So this is the belt and suspenders approach that we're talking about. [00:47:37] Speaker 04: The government keeps wanting to reduce this to an either or, and it's not an either or. [00:47:41] Speaker 04: It's a belt and suspenders. [00:47:42] Speaker 04: So you get that separation, the requisite distance, and you fly high and land long. [00:47:47] Speaker 04: And when you do both, nobody dies. [00:47:49] Speaker 04: When someone drops the ball on one of those, crashes happen like it did here. [00:47:54] Speaker 04: And also the whole premise about not foreseeable, I mean, the manual says explicitly that the whole concept of redundancy, as I just described, is to compensate in many cases for failures that may affect safety. [00:48:09] Speaker 04: So it's categorically foreseeable that mistakes are going to happen, and that's why we have these redundancies. [00:48:14] Speaker 04: Also, this notion, I do have to hit it because it's pernicious and it comes up. [00:48:21] Speaker 04: It was replete in the testimony, if you recall Nichols' testimony, that he had responsibilities for the air traffic and the ground. [00:48:30] Speaker 04: That is just wrong and it's, you don't have to take my word for it, this is at 2ER, [00:48:34] Speaker 04: 167 where the government at paragraphs 21 and 22 these are their proposed factual findings they say that nickel operated the local control and Eric Edney operated the ground control position and then it says the duties of the GC and LC overlap but the GC is primarily handles aircraft on [00:48:53] Speaker 04: primarily handles the aircraft, that's the ground control, not nickel, on the taxiways, while the local control primarily handles aircraft flying within Reno's Class C airspace. [00:49:02] Speaker 04: So this notion that he was trying to do two things at once is just wrong. [00:49:07] Speaker 04: His responsibility was to provide that separation. [00:49:10] Speaker 04: He didn't do it. [00:49:11] Speaker 04: This crash happened. [00:49:12] Speaker 04: This court should reverse and remand for allocation of fault and damages. [00:49:16] Speaker 05: Thank you. [00:49:17] Speaker 05: Thank you. [00:49:26] Speaker 02: Your Honours, my friend on behalf of the government repeatedly said that Mr. Nickel passed the baton. [00:49:33] Speaker 02: He didn't pass the baton, he dropped the baton, walked away, and assumed that Mr. Brown was going to pick it up. [00:49:40] Speaker 02: And that's not how the FAA regulations work. [00:49:42] Speaker 02: Safety protocols matter, especially when it comes to controlling air traffic. [00:49:46] Speaker 02: The FAA has spent decades building a system of rules and procedures to ensure air travel is safe for pilots and their passengers. [00:49:54] Speaker 02: And that system depends on clear, concise, reliable verbal communications over the radio. [00:50:03] Speaker 02: That's why air traffic controllers use words like Niner and a phonetic alphabet to ensure clear, concise, reliable communications. [00:50:12] Speaker 02: The system does not work merely because we have rules in place. [00:50:15] Speaker 02: The system only works when those rules and procedures are actually implemented and followed. [00:50:22] Speaker 02: When the rules and procedures require the controller to pick up the radio and actually communicate with the pilot, it's not sufficient for the controller to simply look out the window and make assumptions as to what the pilot intends and wants. [00:50:37] Speaker 02: The district court here got it wrong when it found that Mr. Nickel was relieved of his duty to provide that four mile of radar controller applied radar separation despite not actually communicating that intention with Mr. Brown and that decision should be reversed. [00:50:53] Speaker 02: Thank you. [00:50:54] Speaker 05: Great. [00:50:54] Speaker 05: Thank you. [00:50:55] Speaker 05: Thank you all for the helpful argument. [00:50:57] Speaker 05: Case has been submitted and recess for the day.