[00:00:01] Speaker 02:
All right.

[00:00:01] Speaker 02:
The next case for argument is Bradshaw versus American Airlines.

[00:00:07] Speaker 02:
It is docket 23-5074.

[00:00:11] Speaker 02:
Mr. Gray, we are ready for your argument when you're ready to begin.

[00:00:15] Speaker 04:
Thank you, Your Honor.

[00:00:17] Speaker 04:
My name is Stephen Gray.

[00:00:19] Speaker 04:
My co-counsel is Mr. Gary Richardson, who's not here with us.

[00:00:22] Speaker 04:
We are here representing Mrs. Antow and Mrs. Bradshaw in this matter.

[00:00:28] Speaker 04:
May I please the court?

[00:00:31] Speaker 04:
This is a case that we believe has two defendants, Mesa Airlines and American Airlines.

[00:00:37] Speaker 04:
And the basic premise of the plaintiff's position is that there was negligence, both in the air and on the ground.

[00:00:45] Speaker 02:
So you are still maintaining your claim against American?

[00:00:49] Speaker 04:
Yes, sir.

[00:00:53] Speaker 04:
We disagree with the court's holding.

[00:00:58] Speaker 04:
with regard to dismissing the case, but would point out to the court that the long-standing case law in the 10th Circuit is that although the Airline Deregulation Act of 1978 preempted many things with regard to airfares, routes, and service, it did not preempt common law claims of negligence or torts.

[00:01:23] Speaker 04:
And we believe that the facts in this case would justify that.

[00:01:28] Speaker 04:
The court bases part of its dismissal on the O'Donnell case.

[00:01:33] Speaker 04:
And the O'Donnell case is very interesting because in that case, there was an inebriated passenger who served some further alcoholic drinks, got off the plane, got in a car, was in a car accident where he was killed along with five other people.

[00:01:52] Speaker 04:
In that instance,

[00:01:53] Speaker 04:
You had a state actor, the New Mexico, it was a beverage controller, alcohol beverage control commission, that had passed some regulations and statutes, or regulations rather, trying to mandate what type of service in terms of alcohol service and what type of training the flight attendants were to have.

[00:02:14] Speaker 04:
The O'Donnell case clearly held that that was preempted and struck down what the New Mexico was trying to do.

[00:02:23] Speaker 04:
Here, we don't have a state actor.

[00:02:26] Speaker 04:
We have two individual actors.

[00:02:28] Speaker 04:
And the difference in the facts in this case that we do believe there were facts and evidence that came from the defendant's pleadings in their motion for summary judgment and in their attachments, the affidavit of Captain Omar Aquino, as well as the statement of one of the flight attendants.

[00:02:53] Speaker 00:
Well, Counsel, can I ask you to go back?

[00:02:55] Speaker 00:
I guess I'm not following your distinction of our O'Donnell case because, I mean, there we basically said there is field preemption of airline safety, period.

[00:03:07] Speaker 00:
This case clearly involves airline safety, which means that we look to federal regulations for the standard of care.

[00:03:15] Speaker 00:
And as far as I can see, you never even have to this day cited any federal regulations that govern the standard of care.

[00:03:23] Speaker 00:
Why can't we just stop there?

[00:03:25] Speaker 00:
Why even go to your arguments when your complaint doesn't suggest there are any controlling federal regulations here?

[00:03:33] Speaker 04:
Judge Moritz, I think the issue is not so much federal regulations as much as under the previous case that we believe it was Piper versus Cleveland, or the Cleveland case that said that common law claims for negligence or tort were not preempted at all.

[00:03:52] Speaker 00:
I understand the claims aren't preempted, but we're talking about what standard of care governs.

[00:03:57] Speaker 00:
And that's what the district court very clearly relied on O'Donnell for.

[00:04:01] Speaker 00:
That's what we said in O'Donnell.

[00:04:03] Speaker 00:
Correct.

[00:04:04] Speaker 00:
So you've got to look to the federal standard of care, federal regulations for that, and you don't, is what I'm saying.

[00:04:10] Speaker 00:
So can we just stop there?

[00:04:11] Speaker 00:
Do we have to suggest what federal regulations would apply?

[00:04:18] Speaker 04:
Well, I think in this instance, Your Honor, there are facts that the lower court did not consider in this.

[00:04:27] Speaker 04:
that I think go to the standard of care.

[00:04:30] Speaker 00:
When I'm talking about the facts right now, I'm talking about what standard of care that you've asserted applies, and I don't believe you ever asserted anywhere that a federal regulation standard of care applies.

[00:04:40] Speaker 04:
Well, I think it would be a safety for the passengers, Your Honor, because we believe that that was what was breached, both in the air and on the ground.

[00:04:50] Speaker 01:
Is that a federal, are you saying that's a federal standard of care, or are you trying to say that some state standard of care has been breached?

[00:05:01] Speaker 04:
I believe a state standard of care was breached, Your Honor, but I think implicit in the federal airlines regulation is for the safety of the passengers, and so I'm just- The standard is a careless and reckless disregard.

[00:05:15] Speaker 00:
Yes.

[00:05:17] Speaker 00:
Careless and reckless standard of care.

[00:05:20] Speaker 00:
It's 14 CFR 91.

[00:05:23] Speaker 00:
That's the standard.

[00:05:23] Speaker 00:
But what I'm saying is you've never alleged that standard to the state.

[00:05:29] Speaker 00:
You've never tried to apply that standard.

[00:05:32] Speaker 00:
You're applying a state standard, which is what we've said you can't do with field preemption.

[00:05:38] Speaker 04:
Your honor, whether it is a state standard or federal standard, we still believe that that standard was missed and it was failed on behalf of the airlines, your honor.

[00:05:51] Speaker 02:
So are you conceding that it's 91.113 that applies and now you're saying that one was violated?

[00:06:00] Speaker 04:
Your Honor, I don't have that specific statute in front of me.

[00:06:02] Speaker 02:
It's a regulation that, and it's really short, aircraft operations for the purpose of air navigation.

[00:06:09] Speaker 02:
No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

[00:06:16] Speaker 02:
In other words, the standard of care.

[00:06:18] Speaker 04:
Then I would agree that there is a federal standard of care that I think the state standard of care would track with, Your Honor.

[00:06:28] Speaker 02:
Well, track with.

[00:06:29] Speaker 02:
Do you agree that the federal standard is the standard that is applied here because of preemption based on what the district court said?

[00:06:38] Speaker 02:
How do you contest what the district court said?

[00:06:41] Speaker 02:
Tell us how district court heard.

[00:06:43] Speaker 04:
Thank you, Your Honor.

[00:06:44] Speaker 04:
I think in that instance, you have to go to the Cleveland case, Your Honor, which does hold that there is preemption with regard to routes, service, and to airfares.

[00:06:56] Speaker 04:
But it did not preempt the negligence.

[00:07:02] Speaker 04:
So you're talking ADA.

[00:07:05] Speaker 02:
ADA, yes, Your Honor.

[00:07:07] Speaker 02:
What about FAA?

[00:07:08] Speaker 02:
That's your first hurdle, isn't it?

[00:07:10] Speaker 02:
The Federal Aviation Administration.

[00:07:12] Speaker 02:
Yes, and the preemption under that.

[00:07:15] Speaker 02:
Again, Your Honor.

[00:07:16] Speaker 02:
Which Judge Moritz provided you the case as well as others.

[00:07:21] Speaker 04:
Okay.

[00:07:22] Speaker 04:
I don't believe that the court of this Tenth Circuit Court has totally preempted the negligence claim that we have, Your Honor, with regard to what Judge Moritz was saying.

[00:07:36] Speaker 04:
I do believe that the

[00:07:41] Speaker 04:
There is an FAA standard that is correct, but there's still a common law standard of care that we believe was breached, Your Honor.

[00:07:51] Speaker 04:
Based on what?

[00:07:53] Speaker 04:
Based on the Cleveland case, Your Honor, which the O'Donnell case did not overrule and did not circumscribe.

[00:07:59] Speaker 04:
So are you back to ADA?

[00:08:02] Speaker 04:
I would be back to ADA.

[00:08:03] Speaker 04:
Yes, Your Honor.

[00:08:07] Speaker 01:
So let me just jump in.

[00:08:08] Speaker 01:
So are you arguing that under the Cleveland case, there are still common law claims that you can bring?

[00:08:17] Speaker 04:
Yes.

[00:08:18] Speaker 01:
And that the US Airways didn't take that away?

[00:08:23] Speaker 04:
The US Airways case being the O'Donnell case.

[00:08:26] Speaker 01:
I'm sorry, yes.

[00:08:27] Speaker 04:
I would agree with that.

[00:08:28] Speaker 04:
I don't think the O'Donnell case eliminated that at all.

[00:08:32] Speaker 04:
I think the O'Donnell case where they preempted was based on the state actor being the state of New Mexico trying to pass regulations on how to train flight attendants and how to regulate alcohol service, which clearly violated the FAA and the Airline Deregulation Act.

[00:08:50] Speaker 01:
And because here you're not, there's no statute involved.

[00:08:57] Speaker 01:
You're saying that's the distinction.

[00:08:58] Speaker 04:
Yes, Your Honor.

[00:09:00] Speaker 01:
Thank you.

[00:09:06] Speaker 04:
With regard to the factual distinction that we think we have here, in the facts, there was a flight attendant that was experiencing oxygen deprivation and dizziness.

[00:09:20] Speaker 04:
And she walked back to talk to her co-flight attendant.

[00:09:26] Speaker 04:
He didn't appear to be experiencing the same thing.

[00:09:29] Speaker 04:
And she walked back to her station and sat down.

[00:09:32] Speaker 04:
And in her statement, she observed

[00:09:34] Speaker 04:
that the passengers were dealing with the air vents, turning them on.

[00:09:39] Speaker 04:
And she even says in her statement, something was wrong.

[00:09:44] Speaker 04:
Then at some point, there was also an emergency flight light sensor that went on and then shut off.

[00:09:51] Speaker 04:
And this occurred before the flight descended 19,000 feet.

[00:09:56] Speaker 04:
Now in the affidavit of the

[00:10:00] Speaker 04:
of Captain Aquino, he talks about it was a controlled descent.

[00:10:05] Speaker 04:
But that controlled descent was 3,800 feet per minute of going down.

[00:10:11] Speaker 04:
Our clients believe that that was almost a hazardous nosedive type situation.

[00:10:17] Speaker 04:
And they were even texting their family members that this was it.

[00:10:22] Speaker 04:
But in addition, the cockpit filled with smoke due to some sort of improper malfunction within the system.

[00:10:31] Speaker 04:
But there was no communication with the, no statement to the passengers until they got down to 19,000 feet.

[00:10:40] Speaker 04:
Excuse me, they went down to 10,000 feet by Captain Okino.

[00:10:47] Speaker 04:
But there had been some time from the time that the flight attendant had noticed there was a problem, the light sensor had gone off.

[00:10:53] Speaker 04:
There was no communication to the passengers.

[00:10:57] Speaker 00:
Under the Abdullah case... This was a summary judgment motion, wasn't it?

[00:11:02] Speaker 04:
Yes, it was, Your Honor.

[00:11:03] Speaker 00:
You had discovery.

[00:11:04] Speaker 00:
Did you have an expert on either of these issues as far as the standard of care deviation, regardless of what standard of care we're applying here?

[00:11:12] Speaker 04:
Your Honor, we did have an expert in reserve as a rebuttal witness.

[00:11:16] Speaker 00:
Okay, but you seem to be relying on your two passengers' knowledge of

[00:11:22] Speaker 00:
what would be what they think should have been the appropriate time for the pilot dealing with this emergency to inform the passengers.

[00:11:33] Speaker 00:
Doesn't that require some expert testimony to establish that there was a deviation from the standard of care?

[00:11:40] Speaker 04:
I don't question that, Your Honor.

[00:11:42] Speaker 04:
I'm just saying that I think that the Abdullah case may apply here based on what occurred factually.

[00:11:48] Speaker 00:
What was the Abdullah case?

[00:11:50] Speaker 04:
The Abdullah case was a situation where an airline pilot failed to communicate in a timely manner, or at all, I believe, to the passengers what was going on.

[00:12:01] Speaker 04:
And the court held that that was reckless conduct and careless.

[00:12:07] Speaker 00:
And then there was no communication at all in that case.

[00:12:10] Speaker 00:
We definitely have communication.

[00:12:13] Speaker 04:
Sometime after the fact, yes, Your Honor.

[00:12:17] Speaker 04:
In addition, that's with regard to Mesa Airlines.

[00:12:20] Speaker 04:
But there's a second defendant, and that's American Airlines.

[00:12:25] Speaker 04:
Captain Aquino radioed to the air traffic controllers that they had a problem.

[00:12:30] Speaker 04:
And so they had to divert from going to Dallas and land in Atlanta.

[00:12:35] Speaker 04:
When they landed on the ground, there was no type of medical protocols, medical treatment, or anything provided by American Airlines to the traumatized passengers.

[00:12:47] Speaker 04:
There was no medical personnel to make sure that their health was okay or that they would have any type of need for assistance emotionally, even in the school shooting cases.

[00:12:59] Speaker 00:
First of all, step back.

[00:13:00] Speaker 00:
What's the basis for any liability against American Airlines?

[00:13:04] Speaker 00:
How does the plaintiff

[00:13:08] Speaker 00:
sue American Airlines when they are not even, I mean, they indemnify essentially Mesa here, but they're not, how are they even a party, I guess I'm asking.

[00:13:16] Speaker 00:
They're a party.

[00:13:19] Speaker 04:
They're a party because they landed, at that time there was some sort of joint agreement with the Mesa and American Airlines.

[00:13:24] Speaker 04:
They landed at American Airline gate.

[00:13:26] Speaker 04:
American Airlines knew that they were coming.

[00:13:29] Speaker 04:
There was no assistance medically,

[00:13:33] Speaker 02:
or emotionally provided to... The district court went through this in detail and said nothing had alerted American that there was any problem.

[00:13:42] Speaker 02:
And in fact, after the aircraft landed, nobody had a problem.

[00:13:47] Speaker 04:
Your Honor, I don't believe how... Let me just put it this way.

[00:13:51] Speaker 04:
It's like a person who's in a car accident and they get out of the car and the first thing they're asked is, are you okay?

[00:13:57] Speaker 04:
And they say, I'm okay.

[00:13:58] Speaker 04:
They may be in such a state of shock, they really don't know what their medical condition is.

[00:14:03] Speaker 04:
And I think that was the case here from this traumatic event of American Airlines had no one on the ground that had any kind of medical training that we were able to discern.

[00:14:15] Speaker 04:
So with regard, that's a very good question.

[00:14:19] Speaker 04:
But when you weigh the equities between a big corporation like American Airlines as opposed to two individuals who don't experience, don't know what it's like to go through a traumatic experience of an airline emergency,

[00:14:33] Speaker 04:
I think they were in a better position to provide assistance and service on the ground, which did not occur.

[00:14:40] Speaker 02:
Let me ask you about Abdullah real fast, because that's one of the big cases.

[00:14:43] Speaker 02:
And it says that state and territorial standards of care and aviation safety are federally preempted.

[00:14:51] Speaker 02:
And then it leaves open the remedy, as does the district court in our case.

[00:14:55] Speaker 02:
So it looks like the district court's following Abdullah and that that's what you're

[00:15:01] Speaker 02:
opposing counsel is asking us to do, and yet you're citing it.

[00:15:05] Speaker 02:
I'm confused.

[00:15:07] Speaker 04:
Again, Your Honor, the Abdullah case, I think it is factually distinguishable from the standpoint that there was no communication by the pilot.

[00:15:16] Speaker 04:
But I think the delay in communicating to the passengers in this case, I think that does fit under the Abdullah holding, Your Honor.

[00:15:26] Speaker 02:
OK.

[00:15:27] Speaker 04:
Thank you.

[00:15:29] Speaker 02:
Other questions?

[00:15:31] Speaker 02:
Thank you, sir.

[00:15:36] Speaker 03:
Good morning, Your Honors.

[00:15:38] Speaker 03:
Craig Bouchon and Timothy Spencer from McPhee and Taft representing the defendant's appellees, Mesa Airlines and American Airlines.

[00:15:50] Speaker 03:
The district court opinion in this case on summary judgment should be affirmed.

[00:15:56] Speaker 03:
It correctly found that plaintiff's claims are preempted under the FAA and its regulations.

[00:16:04] Speaker 03:
And based on the record that is before the court today, the district court properly determined that defendant's actions on the subject flight complied with the applicable federal standards, the applicable standard of care, which is a federal standard of care, and its own procedures that are, I should mention, approved by the FAA.

[00:16:30] Speaker 03:
There were no issues of disputed fact despite counsel's argument as presented today.

[00:16:36] Speaker 03:
I would also urge the court that to reverse the district court here would require this court to step back from what is binding precedent in the US Airways versus O'Donnell case.

[00:16:51] Speaker 03:
The district court got it right, and this court should affirm it.

[00:16:55] Speaker 02:
Does O'Donnell cover it, or do we have to go a little further than O'Donnell?

[00:16:59] Speaker 03:
We got to go a little further back than O'Donnell, and let me direct this court to Abdullah, Third Circuit.

[00:17:07] Speaker 03:
Let me direct this court to Green, cited in the brief, Sixth Circuit.

[00:17:13] Speaker 03:
And let me also direct this court to Montavo, Ninth Circuit.

[00:17:18] Speaker 03:
All of those cases predate the US Airways versus O'Donnell case.

[00:17:25] Speaker 03:
Those circuits already did a very comprehensive field preemption analysis, which is exactly what the district court did here and which is exactly what should be applied.

[00:17:40] Speaker 03:
Abdullah, I'll start there.

[00:17:44] Speaker 03:
Federal law establishes the standard

[00:17:48] Speaker 03:
of aviation safety.

[00:17:51] Speaker 03:
State standards of care are federally preempted.

[00:17:58] Speaker 03:
In determining the federal standard of care, you must refer to specific federal regulations, and Your Honors, we know

[00:18:09] Speaker 03:
There are hundreds of federal regulations implemented by the FAA to govern the field of aviation safety.

[00:18:21] Speaker 03:
When a specific FAR doesn't apply, and sometimes that's the case, that's when the careless and reckless standard, the 91.13, is implicated.

[00:18:36] Speaker 03:
It's the general federal standard of care.

[00:18:41] Speaker 03:
Montalvo, Ninth Circuit, same holdings.

[00:18:45] Speaker 03:
The district court dismissed the failure to warrant claim in that case based on a field preemption analysis.

[00:18:55] Speaker 03:
And that's because the FAA preempts the entire field of aviation safety.

[00:19:04] Speaker 03:
Here, that's exactly what the district court did.

[00:19:07] Speaker 03:
It first relied on

[00:19:09] Speaker 03:
the case from the 10th Circuit, the O'Donnell case, and all of the cases that I've just gone through in support of finding that the federal regulations govern as does the federal standard of care.

[00:19:25] Speaker 03:
And I would also point out, Your Honors, based on the scouring of this record, there hasn't been any articulated violation of a federal standard

[00:19:37] Speaker 03:
There hasn't been a claim presented in this case that they violated the general standard of care, the reckless and careless standard, under 91.13.

[00:19:49] Speaker 03:
So in moving for summary judgment, Mesa Airlines and American Airlines moved based on the application of the federal standards of care.

[00:20:02] Speaker 03:
And the court correctly applied those standards to this case.

[00:20:07] Speaker 03:
The plaintiffs in this case allege that the district court applied the wrong standard.

[00:20:16] Speaker 03:
We disagree.

[00:20:17] Speaker 03:
And we didn't ask the court or make any argument to the district court with respect to the ADA.

[00:20:26] Speaker 03:
As Abdullah points out, on the very ADA preemption argument that the plaintiff is trying to make,

[00:20:35] Speaker 03:
ADA preemption is an opposite to resolving preemption questions related to the safety of air operations.

[00:20:44] Speaker 03:
So it's inapplicable here.

[00:20:47] Speaker 03:
What is applicable is the FAA, its regulations, and its standard of care.

[00:20:54] Speaker 01:
Counsel, while you take a break there, can I ask you what you think the role of state law is, if any?

[00:21:02] Speaker 01:
Or is there no role at all, in your view?

[00:21:06] Speaker 03:
In our view, we believe that as it relates to air safety, there is no room for state negligence laws.

[00:21:15] Speaker 03:
And let me also answer that question based on just presenting the court with a policy argument.

[00:21:21] Speaker 03:
You know, from a policy standpoint, federal preemption regarding regulation of aviation safety makes complete sense if you think about it.

[00:21:28] Speaker 03:
This flight starts in North Carolina.

[00:21:31] Speaker 03:
At some point,

[00:21:33] Speaker 03:
From North Carolina to its destination, which is Dallas, Texas, there is, and it's undisputed, Your Honors, that this was an in-air emergency, right?

[00:21:43] Speaker 03:
This is not a situation where we have an Abdullah, right, where the captain actually knew there was a weather event.

[00:21:51] Speaker 03:
And he puts the seatbelt sign on, he goes back and he talks to the flight attendants, right?

[00:21:57] Speaker 03:
That's not what we have here.

[00:21:58] Speaker 03:
What we have here is an in-air emergency that happened somewhere between North Carolina and Texas.

[00:22:03] Speaker 03:
The plaintiffs here are not advocating that North Carolina state law should apply.

[00:22:10] Speaker 03:
They're not advocating that where the plane landed, Georgia law should apply, nor some unknown state where the in-air emergency occurs, right?

[00:22:20] Speaker 03:
We don't even know what state law would apply or state negligence claim would apply, because we don't know exactly where the plane was when the undisputed air emergency occurred.

[00:22:31] Speaker 03:
And the plaintiffs aren't even asking for Texas law to apply.

[00:22:35] Speaker 03:
They're asking for Oklahoma state law.

[00:22:38] Speaker 03:
It's a little bit unclear, to be frank, what exactly they are arguing this court should apply.

[00:22:45] Speaker 03:
At some point in the pleadings, they're arguing that the Oklahoma Common Carrier Act should apply.

[00:22:51] Speaker 03:
But that's simply because that's where the plaintiffs are from, and that's where they were when they bought their ticket.

[00:22:59] Speaker 03:
So if field preemption isn't applied to a case like this, then we'd have aviation standards from all 50 states.

[00:23:09] Speaker 01:
I appreciate your policy argument, but could I get you back to just our case law?

[00:23:18] Speaker 01:
Tell me what you think is left of our Cleveland case.

[00:23:23] Speaker 03:
State tort remedies.

[00:23:25] Speaker 03:
That's what's left.

[00:23:27] Speaker 01:
So there is a role for state law.

[00:23:29] Speaker 03:
As it relates to the remedy, not the standard of care, Your Honor.

[00:23:33] Speaker 01:
Okay, so how would that work in this case?

[00:23:36] Speaker 01:
I understand in your perspective, it has not worked.

[00:23:41] Speaker 01:
But how could it work in this case?

[00:23:43] Speaker 03:
Well, you would apply the federal standards.

[00:23:49] Speaker 03:
One, was there a federal standard breached?

[00:23:53] Speaker 03:
was the applicable 91.13 standard breached.

[00:23:58] Speaker 03:
And if so, if we got that far, then you could apply a state court remedy.

[00:24:03] Speaker 03:
And I think that's where we are right now in light of American Airlines, excuse me, US Airways versus O'Donnell and Cleveland.

[00:24:11] Speaker 03:
I think that's how, and the district court addressed that in the order, right?

[00:24:16] Speaker 03:
That this doesn't leave the state court remedy,

[00:24:23] Speaker 03:
Right?

[00:24:25] Speaker 03:
It keeps it intact.

[00:24:27] Speaker 03:
It just applies the federal standards as it relates to the duty owed.

[00:24:33] Speaker 02:
So you're saying they just never get to the state law remedy because they don't?

[00:24:38] Speaker 02:
Correct.

[00:24:39] Speaker 02:
But what are the different state law remedies that states may disagree on?

[00:24:45] Speaker 02:
Can you give us examples?

[00:24:48] Speaker 02:
If you're in state X, you have this remedy.

[00:24:50] Speaker 02:
If you're in state Y, you don't.

[00:24:53] Speaker 02:
In terms of what each state would.

[00:24:56] Speaker 02:
What does it mean when it says you still have your state remedies?

[00:25:00] Speaker 03:
I think your potential, your damages, your medical bills, your pain and suffering, those are your remedies.

[00:25:10] Speaker 03:
But in terms of the applicable standard as it relates to what is the pilot's duty under the applicable regulations, that's where the federal side of it is front and center, as I've already outlined.

[00:25:25] Speaker 03:
I want to address.

[00:25:26] Speaker 00:
I want to clarify.

[00:25:27] Speaker 00:
Yes, Your Honor.

[00:25:28] Speaker 00:
Once the district court said yes, federal preemption applies here.

[00:25:34] Speaker 00:
And it considers the particular regulation that we discussed in the standard of care, the federal standard of care under the FAA.

[00:25:45] Speaker 00:
And then it goes through the facts and says, well, this doesn't meet that standard of care.

[00:25:53] Speaker 00:
Isn't that what?

[00:25:55] Speaker 00:
what the district court did with respect to the two different claims.

[00:26:01] Speaker 00:
I'm kind of confused now whether you're arguing that the district court could have just stopped at some point and never considered the facts here.

[00:26:12] Speaker 03:
Well, I think that, well, first of all, as it relates to the facts, the district court did consider the facts.

[00:26:18] Speaker 03:
And I should remind the court that the 44 undisputed material facts as presented by the defendants were

[00:26:26] Speaker 03:
you know, not properly responded to and the district court deemed those admitted, right?

[00:26:30] Speaker 03:
So the district court, in her opinion, addressed the new facts that plaintiff brought up in response to summary judgment.

[00:26:39] Speaker 03:
And those facts are on the record and the district court properly in applying the federal standards and the federal standard of care to those new facts properly determined

[00:26:55] Speaker 03:
There was no issue of fact.

[00:26:57] Speaker 03:
And part of that was because the only thing in this naked record that has been presented to this court by the plaintiffs and as cited to by plaintiffs in the record are the uncontroverted affidavit of the pilot and the expert report of the defendant.

[00:27:18] Speaker 03:
So that's the record before- Do they even have their own affidavits?

[00:27:22] Speaker 03:
No.

[00:27:22] Speaker 03:
The plaintiffs in this case did not take... There really was no discovery then.

[00:27:26] Speaker 03:
Correct.

[00:27:26] Speaker 03:
They didn't take corporate representative depositions.

[00:27:29] Speaker 03:
They didn't take any depositions.

[00:27:30] Speaker 03:
There isn't an expert.

[00:27:32] Speaker 03:
So the district court evaluated all that, but you have to appreciate that the district court can only look at the record before it, and as can this court, right, in evaluating

[00:27:44] Speaker 03:
the alleged facts.

[00:27:45] Speaker 00:
I guess I'm asking you.

[00:27:46] Speaker 00:
I understood your argument to be, and maybe I misunderstood it, since the plaintiffs don't even concede, at least in their briefing, that the federal aviation regulation standard of care applies and have never cited it or relied upon it and continue not

[00:28:06] Speaker 00:
to agree to that at the appellate level, why are we even applying that to any set of facts, whether they're new facts or old facts?

[00:28:15] Speaker 00:
You see what I'm saying?

[00:28:16] Speaker 03:
I'm not quite following you, Judge.

[00:28:18] Speaker 00:
Maybe it's not making sense.

[00:28:19] Speaker 00:
Isn't the first job of the plaintiff here to say, what is the standard of care?

[00:28:26] Speaker 03:
I agree.

[00:28:27] Speaker 00:
And to this day, the plaintiffs don't agree that the standard of care is under the federal regulations, correct?

[00:28:35] Speaker 03:
Before I walked into the courtroom today, that was my understanding.

[00:28:37] Speaker 03:
But in listening to questions that were- Up to this point, they don't agree.

[00:28:43] Speaker 00:
So why are we, I'm asking, as an appellate court, we can resolve this question of which standard of care applies, and we can either agree or disagree with the district court.

[00:28:54] Speaker 00:
But if we agree with the district court, why do we go on and consider the facts here, as the district court did, when we don't even have the

[00:29:05] Speaker 00:
the plaintiffs themselves applying this standard of care.

[00:29:10] Speaker 00:
Do you see what I'm saying?

[00:29:11] Speaker 00:
Isn't that a preliminary issue?

[00:29:15] Speaker 00:
I thought you were arguing that, but maybe not.

[00:29:17] Speaker 03:
Well, I think that the plaintiffs have argued a dispute of fact.

[00:29:23] Speaker 03:
And I was attempting to address the dispute of fact.

[00:29:26] Speaker 00:
I get that.

[00:29:26] Speaker 00:
I'm just saying, if the plaintiffs can't even agree that the standard of care applies under the Federal Aviation Act,

[00:29:35] Speaker 02:
Then why are we talking about the facts?

[00:29:39] Speaker 00:
I thought you were arguing that in your briefing, but I don't see you arguing it today.

[00:29:45] Speaker 00:
You seem to suggest that you've basically waived that argument by arguing to the district court, gee, go ahead and apply the federal reg, even though they're not arguing it.

[00:29:55] Speaker 03:
Well, we asked the court to apply the federal regulations and the federal standard of care.

[00:30:00] Speaker 00:
Right.

[00:30:01] Speaker 00:
So did you waive this argument that I'm talking about?

[00:30:03] Speaker 03:
I don't believe so.

[00:30:06] Speaker 03:
So for all of the reasons in the briefing of appellees and for the arguments presented today, we'd ask this court to affirm the district court's finding of summary judgment in favor of the defendants.

[00:30:20] Speaker 01:
Thank you.

[00:30:23] Speaker 01:
Is there time?

[00:30:26] Speaker 02:
I'm still going to give you one minute, but I'm going to hold you to it, because I don't want you going home thinking if I'd had one more minute.

[00:30:39] Speaker 04:
Your Honor, distinguished panel of judges, whether it's an FAA standard or whether it's a tort claim standard, there was some duty of care that was violated.

[00:30:49] Speaker 01:
That's our position.

[00:30:50] Speaker 01:
Well, before you move on, though, can you address the question of whether you made an allegation of the violation of the federal standard?

[00:31:00] Speaker 01:
Does your complaint?

[00:31:02] Speaker 04:
I would stand on our amended complaint, Your Honor.

[00:31:04] Speaker 04:
I think there's a reference to a lack of care

[00:31:08] Speaker 04:
Offhand, I don't recall if it says a federal standard or a state, but I know we did a state standard.

[00:31:13] Speaker 04:
I don't recall being a federal standard, but I will stand on what the pleadings are, Your Honor.

[00:31:18] Speaker 01:
OK, thank you.

[00:31:24] Speaker 04:
We believe, whether it's a federal standard or a state standard, that there was some sort of duty of care that was breached.

[00:31:32] Speaker 04:
And we do believe that there were facts in the record that indicated that.

[00:31:37] Speaker 04:
And as I said, early on, there was a negligence that occurred in the air as well as on the ground from two different defendants.

[00:31:45] Speaker 04:
Thank you, Your Honor.

[00:31:47] Speaker 02:
Appreciate your courtesy.

[00:31:47] Speaker 02:
Thank you both for your arguments.

[00:31:49] Speaker 02:
Very helpful.

[00:31:51] Speaker 02:
The case is submitted and counsel are excused.