United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. GARBIS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
Plaintiff's First Motion to Enforce
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.
Plaintiff's Second Motion to Enforce
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.
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
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
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