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LaCourse v. Pae Worldwide Inc.

United States District Court, D. Maryland

November 15, 2017

PATRICIA LACOURSE Plaintiff
v.
PAE WORLDWIDE INCORPORATED, et al. Defendants

          MEMORANDUM AND ORDER

          MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE.

         The Court has before it Plaintiff Patricia LaCourse's (First) Motion to Enforce Subpoena Duces Tecum [ECF No. 1], Plaintiff Patricia LaCourse's Second Motion to Enforce Subpoena Duces Tecum [ECF No. 13], the United States Air Force's Motion to Dismiss [ECF No. 24], Defendant PAE's Motion to Require CT Scan Prior to Disassembly and Further Inspection [mailed to chambers and dated September 14, 2017], and the materials submitted relating thereto. The Court has held a teleconference on the record regarding these motions and has had the benefit of arguments of counsel.

         I. BACKGROUND

         On November 6, 2014, Plaintiff Patricia LaCourse's husband, a civilian Department of Defense employee, was killed when the F-16 aircraft that he was piloting crashed. Plaintiff filed the underlying suit against the civilian defense contractor PAE Worldwide Inc., and others (collectively, “Defendants”), for negligent maintenance of the F-16, in the United States District Court for the Northern District of Florida.[1]

         The United States Air Force (“Air Force”) is not a party to the underlying case. But, because the Air Force owned the aircraft involved, it retained control of all evidence related to the crash. Patricia LaCourse and PAE (collectively, “the Parties”) issued a Joint Touhy Request, followed by two subpoenas, seeking evidence under the Air Force's control.

         A. The Crash

         Matthew LaCourse, the decedent, was a former fighter pilot in the Air Force with experience flying F-16s. In 2014, Mr. LaCourse died when the plane he was flying crashed into the Gulf of Mexico.

         The Parties advance competing views of the cause of the crash. Plaintiff's theory is that the crash was caused by certain problems in the F-16's hydraulic systems, which are responsible for moving the aircraft's flight controls, analogous to the power steering in a car. The F-16's maintenance records show that the aircraft had hydraulic problems in the weeks and days preceding the crash.

         Defendants contend that the crash was not caused by any mechanical or hydraulic problems, but was instead due to the decedent being unable to properly pilot the plane, perhaps due to his health and excess gravity forces shortly before he crashed.

         B. Plaintiff's First Motion to Enforce

         Plaintiff Patricia LaCourse's (First) Motion to Enforce Subpoena Duces Tecum requested unclassified maintenance instructions (i.e., technical orders, or “TOs”) and video footage of the underwater recovery of the aircraft. Pl.'s Mot. at 4, ECF No. 1. The Air Force produced what they allege to be all of the requested items. Air Force's Opp. at 2-3, ECF No. 17.

         C. Plaintiff's Second Motion to Enforce

         Plaintiff Patricia LaCourse's Second Motion to Enforce Subpoena Duces Tecum [ECF No. 13] requested discovery regarding the hydraulic filter from the aircraft wreckage that was recovered from the Gulf of Mexico.[2]

         The record reflects the following facts. On December 9, 2016, the Air Force responded to the Parties' Joint Touhy request by letter. Pl.'s Opp. Ex. A, ECF No. 27-1. This was one of several formal responses by the Air Force. Pl.'s Opp. Ex. B at 1, ECF No. 27-2. Notably, in response to the Parties' request to have an “inspection of the aircraft wreckage” and to have an “inspection of the aircraft hydraulic and flight control systems and their component parts to include disassembly, ” the Air Force stated that the Parties may contact Captain Joel Andreason to arrange inspections. Pl.'s Opp. Ex. A ¶¶ 3-4, ECF No. 27-1. The Air Force did not deny those requests.

         On March 29, 2017, counsel for Plaintiff contacted Captain Nicholas Cooper to follow up on some of the requests, including the request for inspection of the hydraulic filter. Air Force's Mot. Dismiss Ex. A at 2-3, ECF No. 24-2. In this email, the Parties outlined a proposed protocol for inspection of the filter. Id. At the time, Plaintiff appeared to be amenable to conducting an inspection on an Air Force base if the right equipment was present, although she stated that she was considering the use of some private laboratories. Id.

         On April 5, 2017, counsel for the Plaintiff wrote another follow-up email, this time with specific details about the testing protocols she wished to have followed. See Pl.'s Second Mot. Enforce Ex. F at 1, ECF No. 13-8 (“I have also attached proposed protocols to this email”). In this April email, the Plaintiff explained that it wishes to have its experts conduct a CT scan and other tests on the F-16's hydraulic filter on two separate off-base laboratories equipped to perform such an inspection. See Pl.'s Second Mot. Enforce Ex. F at 3 and 11, ECF No. 13-8. This would require first shipping the hydraulic filter from the Air Force base in Florida to a private laboratory in Maple Grove, Minnesota, and then to ...


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