Petition for Writ of Certiorari — Hertz v. United States (No. 09-26)

Supreme Court. U

FiteéoD

\3e7 fr 09°26 JUN 2 9 2009

No. OFFICE OF THE CLERK

Jn The

Supreme Court of the United States

SUSAN HERTZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF ROGER B. HERTZ, DECEASED,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Douc.as A. LATTO JILL M. WHEATON

BAUMEISTER & Counsel of Record

SAMUELS, P.C. DANIELJ. STEPHENSON

ONE EXCHANGE PLAZA KATHRYN J. HUMPHREY

New York, NY 1OO0O6 David M. GEORGE

(212) 363-1200 DYKEMA GOSSETT PLLC

2723 SOUTH STATE ST.

Ste. 400

ANN ArRrROR, MI 48104

(734) 214-7660

Attorneys for Petitioner

June 29, 2009

Becker Gallagher - Cincinnati. OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED FOR REVIEW

Should this Court grant certiorari where the Sixth

Circuit Court of Appeals established a new rule of law

governing the accrual of claims under the Federal Tort

Claims Act in plane crash cases, which decision

conflicts with both a decision of this Court and

decisions of other Circuit Courts of Appeals and which,

if not reversed by this Court, will result in substantial

prejudice to the Petitioner and lead to the filing of

numerous unnecessary Administrative Claims.

Petitioner’s husband died in a plane crash. Three

weeks after the crash Petitioner acquired knowledge

that the crash may have been caused by the actions of

the air traffic controllers, who are employees of the

United States government. Petitioner filed an

Administrative Claim against the government within

two years of learning facts evidencing possible

government involvement in the crash but more than

two years from the date of the crash. The Sixth Circuit

found her claims to be time-barred and created a rule

that in plane crash cases, a claim under the Federal

Tort Claims Act accrues on the date of the crash if,

within the subsequent twenty-four months, the

claimant should have been able to determine whether

to file an Administrative Claim. As stated above, such

a rule is without precedent, conflicts with other

relevant decisions, and review by this Court is

warranted.

1

PARTIES TO THE PROCEEDING

The caption contains the names of all of the parties

to the proceeding.

Petitioner is an individual and therefore no

corporate disclosure statement is necessary.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... 1

PARTIES TO THE PROCEEDING ............ 11

FAR OF CORTE RICES 5s ces Ree xG es bss i

TABLE OF CITED AUTHORITIES ............ v1

CITATIONS FOR THE OPINIONS

RE 5 eee Oa A a eee i

BASIS FOR JURISDICTION ................. 1

STATUTORY PROVISIONS INVOLVED ....... 1

STATEMENT OF THE CASE ................ y

I. BACKGROUND FACTS ............. 2

If. DISTRICT COURT CASE AND

RF sda ee ee wes oe

It]. DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS .............. 4

ASSURE nee es oe be oe ee <q eee

I. THE SIXTH CIRCUIT'S DECISION

CONFLICTS WITH A RELEVANT

DECISION OF THIS COURT ........ 7

A. Kubrick Held That a Claim Accrues

When the Plaintiff Knows Both Her

Injury and its Cause .....

~~)

1V

B. The Sixth Circuit’s Opinion Ignores

Kubrick’s Knowledge of Cause

pe a eae 9

II. THE SIXTH CIRCUITS DECISION

CONFLICTS WITH DECISIONS OF

THE FIRST, FIFTH, SEVENTH, AND

EIGHTH CIRCUIT COURTS OF

APPEAL ON THE SAME SUBJECT

ss ee ee ee 12

A. The First, Fifth, Seventh, and Eighth

Circuits Consider Knowledge of

Government Cause When

Determining Claim Accrual....... 13

B. The Sixth Circuit’s New Rule is

Unsupported by any Precedent. and

Ignores the Issue of Knowledge of

Government Cause ............. Le

CONCLUSION .........

APPENDIX

Appendix A—Sixth Circuit Opinion, Hertz v

USA, 560 F.3d 615 (6 Cir. 2009) .......... la

Appendix B—Opinion and Order Granting

Defendants February 7, 2007 Motion to

Dismiss, Hertz v USA, 2007 WL 1041242 (16.D.

eet, Ari G, DT) 2 ce cee ew eee . 8a

Appendix C—28 U.S.C. § 2401(b)

Appendix D—National Transportation Safety

Board Factual Repurt .................. 14a

Appendix E—Affidavit of Susan Hertz

Appendix F—Claim of Damage, Injury or Death

I Bt oe rar ry ee eee AQa

Appendix G—June 15, 2006 claim denial letter

from Federal Aviation Administration .... 1l107a

Vi

TABLE OF CITED AUTHORITIES

Page(s)

CASES

Attallah v. United States,

955 F.2d 776 (1st Cir. 1992) ......... oo a

Chomic v. United States,

377 F.3d 607 (6th Cir. 2004) ........ et

Drazen v. United States,

162 F.2¢G 56 (7th Cir. 1985) ...... 14,15, 22, 25

Garza v. United States,

284 F.3d 930 (8th Cir. 2002) .. 10, 21, 22, 25, 28

Green v. United States,

L172 F3d 56 (9th Cir. 1998)................ 26

Kronisch v. United States,

150 F.3d. 112 (2nd Cir. 1998) He 23, 24

McIntyre v. United States,

367 F.3d 38

(ist Cir. 2004) 7,10, 18, 19, 23-25. 28

Rakes v. United States.

442 F.3d 7 (1st Cir. 2006) .. ;. 30, 18. 25. 25

Ramming v. United States,

281 F.3d 158 (5th Cir. 2001) . . 30, 20. 25. 28

Schuler v. United States,

628 F.2d 199 (D.C.Cir.. en banc, 1980) htc DES?

Page(s)

Skwira v. United States,

344 F.3d 64

(iat Cir. Z00G)........ 10, 13, Bi, 23, 20. 24, 20

Stoleson v United States,

629 F.24 1265 (ith Cir 1980)........ -. ae

United States v. Kubrick,

444 U.S. 111; 100 S.Ct. 352; 62 L.Ed.2d 259

(1979) 6-16, 18, 19, 24, 25, 27, 28

COURT RULES

Sup. Ct. RK. 10 a oe 7

REGULATIONS

AO C.F.R. § 831.2(a)(1) ... iP ietuak h eee

49 C.F.R. § 831.13(b)) | | 12

STATUTES

28 U.S.C. § 1254(1) l

28 U.S.C. $1331 . . 3

8 U.S.C. § 1346(b) 3

28 U.S.C. § 2401(b) Passi

]

CITATIONS FOR THE OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is published at 560 F.3d 615.

(Apx. la-7a.) The opinion and order of the United

States District Court Eastern District of Michigan is

unpublished, but unofficially reported at 2007 WL

1041242 (April 6, 2007). (Apx. 8a-lla.)

BASIS FOR JURISDICTION

The judgment and opinion of the Sixth Circuit

Court of Appeals was entered on March 31, 2009. This

Court has jurisdiction over this petition under 28

U.S.C. § 1254(1).

STATUTORY

PROVISIONS INVOLVED

28 U.S.C. § 2401(b), part of the Federal Tort Claims

Act (“FTCA”), provides as follows:

A tort claim against the United States shall be

forever barred unless it is presented in writing

to the appropriate Federal agency within two

years after such claim accrues or unless action

is begun within six months after the date of

mailing, by certified or registered mail, of notice

of final denial of the claim by the agency to

which it was presented.

(Apx. 12a.)

STATEMENT OF THE CASE

I. BACKGROUND FACTS

This is a wrongful death suit brought under the

FTCA against the United States for negligence and

reckless conduct by air traffic controllers which caused

a plane crash. On May 31, 2004, Petitioner/Plaintiff

Susan Hertz’ (“Plaintiff’? or “Petitioner”) husband,

Roger B. Hertz, was a passenger on board an amateur-

built airplane for a business trip from Michigan to

Oregon. (Complaint, {| 9). The plane was flown by a

licensed pilot and there was one other passenger on

board in addition to Plaintiffs husband. (National

Transportation Safety Board’s Factual Report (“NTSB

Report”), p. 1; Apx. 15a.) During the flight, the pilot

requested the air traffic controllers to provide vectors

around adverse weather and informed air traffic

control that the aircraft was not equipped with

weather radar. (/d., p. la; Apx. 16a-1'7a.) Despite this

explicit request, the air traffic controllers failed to

provide adverse weather avoidance as they are

required to do. (/d., pp. la, 1f; Apx. 16a, 18a.) Instead,

the air traffic controllers’ instructions, which the pilot

followed, directed the aircraft into level-six

thunderstorm activity, the most extreme thunderstorm

classification. (/d., p. la; Apx. 17a-18a.) Upon entering

this adverse weather, the plane went into a spiral

descent and crashed in the woods near Vermontville,

Michigan, killing all on board. (/d., pp. 1b, le; Apx

19a-20a.)

On June 25, 2004, in a telephone conversation with

the NTSB investigator-in-charge, Plaintiff learned for

the first time that the NTSB’s investigation (the only

investigation permitted by law) suggested that the

“2

a

plane crash, and, accordingly, her husband’s death,

may have been caused by the actions of air traffic

control. (Affidavit of Susan Hertz, 4/4]. 5-9; Apx. 34a-

35a.) This was the first time Plaintiff learned (or could

have possibly known) that air traffic control may have

been the cause of her husband’s death.

Plaintiff retained counsel (who were subsequently

replaced by her current counsel) in July 2004 to

prosecute any claims she had relating to her husband's

death. U/d., 410; Apx. 36a.) On June 9, 2006, Plaintiff

served an Administrative Claim, known as a Form 95,

relating to her husband’s death on the Federal

Aviation Administration (“FAA”). (Plaintiff's Form 95;

Apx. 40a.) The FAA denied Plaintiffs claim as

untimely because it was served more than two years

after the date of the accident. (June 15, 2006 Letter

from FAA; Apx. 107a.)

Ii. DISTRICT COURT CASE AND DECISION

On Deceinber 8, 2006, Plaintiff filed a wrongful

death action under the FTCA against the United

States in the United States District Court for the

Eastern District of Michigan alleging air traffic contro!

negligence. The district court had jurisdiction over the

matter pursuant to 28 U.S.C. §§ 13831 and 1346(b). The

United States moved to dismiss the complaint on

statute of lhmitations grounds’ because’ the

Administrative Claim was not filed within two years of

the decedent’s death. (Defendant’s Motion to Dismiss.)

Plaintiff opposed the motion. (Plaintiffs Brief in

Opposition to Defendant’s Motion to Dismiss.) Oral

argument was held. (April 5, 2007 Transcript.)

In response to the motion, Plaintiff argued that her

claim was not barred because it did not accrue until

she first became aware (or could possibly have become

aware) that the conduct of air traffic controllers may

have caused her husband’s death. On April 6, 2007,

the district court granted the United States’ motion

and dismissed Plaintiffs complaint, essentially finding

that the claim accrued on the date of the accident.

(Apx. 10a.) The district court also noted that Plaintiff

had 22 months in which to file her claim after she

spoke with the NTSB investigator-in-charge. (Apx.

10a.)' Plaintiff timely appealed the district court's

decision to the Sixth Circuit Court of Appeals

Il, DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS

On March 31, 2009, the United States Court of

Appeals for the Sixth Circuit affirmed the district

court’s order granting Defendant’s motion to dismiss.

(Apx. la.) The court held that “an [FTCAF claim

accrues when a plaintiff possesses enough information

with respect to her injury that, ‘thJad [she) sought out

independent legal and [expert] advice at that point,

[she] should have been able to determine in the two

year period whether to file an administrative claim.”

(Apx. 4a-5a, cites omitted.) The court noted that in

cases such as medical malpractice claims, a plaintiff

might need to know of doctor-caused harm in order for

his or her claim to accrue, but “deaths by plane crashes

are different.” The court then stated that “plane

crashes by their nature typically involve negligence

' Plaintiff also made an equitable tolling argument which was

rejected by the lower courts and ts not at issue in this petition

somewhere in the causal chain; and the mere fact of

the event is thus typically enough to put the plaintiff

on inquiry notice of his claim.” (Apx. 5a, emphasis in

original.) The court found that because Plaintiff knew

within the two year period following the crash that she

had aclaim against the government, her claim accrued

on the date of injury, t.e., on the date of the crash.

(Apx. 6a.) In so holding, the Court of Appeals created

a new rule of law that an FTCA claim arising from a

plane crash accrues on the date of the crash if the

claimant was able to determine, or should have been

able to determine, anytime within the subsequent two

years that he or she had a claim ageinst a

governmental agent.

ARGUMENT

The FTCA grants a limited waiver of sovereign

immunity and allows tort claims against the United

States to proceed in the same manner and to the same

extent as against a private individual under like

circumstances. To pursue a FTCA claim against the

United States the claim, known as an “Administrative

Claim,” must be “presented in writing to the

appropriate federal agency within two years after such

claim accrues... .” 28 U.S.C. § 2401(b).° Whether

“Courts have interpreted the PTCA as requiring that a plaintift

both file an Administrative Claim within two years of when the

claim accrues and bring suit within six months of the denial of

that Administrative Claim. See, ez. Schuler v. United States, 628

F.2d 199 (D.C.Cir., en banc, 1980). It is undisputed that Plaintiff!

filed her complaint within six months of the denial of her

Administrative Claim. Therefore, only the first of these two

requirements iS at issue in this CAaASe

6

Plaintiffs Administrative Claim was timely depends

on when her claim is deemed to nave accrued.

The question of when a claim accrues under the

FTCA is an important issue of federal law. This Court

has rejected the argument that an FTCA claim always

accrues on the date of the injury at issue. United

States v. Kubrick, 444 U.S. 111; 100 S. Ct. 352; 62 L.

Ed. 2d 659 (1979). In Kubrick, this Court found that an

F'T'CA claim accrues when the plaintiff knows both the

existence and the cause of his injury. Since Kubrick

was decided, many Circuit Courts have applied

Kubrick to determine claim accrual under the FTCA.

The Sixth Circuit’s holding that an FTCA claim

against the government arising from a plane crash

accrues on the date of the crash if the record reveals

that the plaintiff should have been able to determine

in the two year period following the crash whether to

file an administrative claim is inconsistent with

Kubrick and other Circuit Courts’ interpretation of

Kubrick. Strangely, the Sixth Circuit’s rule looks to

determine when the plaintiff knew or should have

known of a_ possible governmental cause, the

touchstone of the discovery rule, as discussed below.

But the court’s rule does not. then utilize this date to

start the accrual period, as should be the case, but

instead uses it to determine that if this happened

within two years of the crash, the discovery rule does

not apply. In other werds, the Sixth Circuit finds the

discovery date to be relevant only because the court

may then render it irrelevant for claim accrual

purposes.

The Sixth Circuit’s holding is inconsistent with

Kubrick's finding that a claim accrues when the

plaintiff Knows both the existence and the cause of his

7

injury. The Sixth Circuit’s holding also conflicts with

other Circuits’ holdings that claims brought under the

FTCA accrue only when the plaintiff knows of the

decedent's death and its potential causal connection

with the government. For these reasons, as discussed

in more detail below, review and reversal by this Court

is warranted. Sup. Ct. R. 10(a) and (c).

I THE SIXTH CIRCUIT’S DECISION

CONFLICTS WITH A RELEVANT DECISION

OF THIS COURT.

Although the general rule in FTCA actions is that

the two-year period to file an Administrative Claim

begins to run on the date of the injury at issue,

iubrick, 444 U.S. at 120, exceptions have evolved to

avoid the injustice that would result from the

application of this rule in a rigid, inflexible manner,

for example, when a plaintiff knows she has been

injured but does not yet know the cause of the injury.

To remedy this injustice, this Court has held that the

accrual of a cause of action under the FTCA occurs

when a plaintiff has discovered both her injury and its

cause. Id. (emphasis added). This judicial exception is

commonly referred to as the “discovery rule.” See

Chomic v. United States, 377 F.3d 607, 613 (6th Cir.

2004); McIntyre v. United States, 367 F.3d 38, 51-52

(ist Cir. 2004).

A. Kubrick Held That a Claim Accrues When

the Plaintiff Knows Both Wer Injury and

its Cause.

In Kubrick, a veteran brought suit under the FTCA

to recover for hearing loss allegedly caused by medical

malpractice in a Veterans Administration (“VA”)

8

hospital. Kubrick, 444 U.S. at 118-15. In April 1968,

the plaintiff was admitted to the VA hospital for

treatment of an infection of the right femur. Following

surgery, the infected area was irrigated with

neomycin, an antibiotic. Approximately six weeks

after the plaintiff was discharged he noticed some

hearing loss and was diagnosed with bilateral nerve

deafness. Jd. Thereafter, in January 1969, after

looking at plaintiffs VA hospital records, a specialist

informed the plaintiff that it was highly possible that

his hearing loss was the result of the neomycin

treatment administered at the VA hospital. Based on

this information, the plaintiff sought additional

benefits from the VA. Id.

In June 1971, during the course of the plaintiff's

unsuccessful administrative appeal from the VA’s

denial of his claim for benefits, another private

physician told the plaintiff that the neomycin that

caused his injury should not have been administered.

Id. In 1972, the plaintiff filed a malpractice suit

against the government under the FTCA.

The government moved to dismiss the plaintiffs

complaint arguing that the claim was barred by the

two year statute of limitations because it accrued in

January 1969—when Kubrick learned that his hearing

loss resulted from the neomycin. Jd. at 115. The

district court denied the motion, and the Court of

Appeals for the Third Circuit affirmed, both holding

that the plaintift’s claim did not accrue until June

1971, when he found out that the neomycin should not

have been administered by the VA doctor. Jd. at 116.

This Court, however, reversed the lower court's

decisions and held that that the plaintiffs claim

accrued earlier, when he learned that the neomycin

treatment caused his hearing loss. /d at 115, 119. This

Court reasoned that the two year period to bring an

FTCA claim begins to run when the plaintiff has

discovered the essential facts of his injury and its

cause. Jd. at 121.

In Kubrick, the plaintiffs claim did not accrue as

early as the date on which the neomycin was

administered. Nor did it accrue later when the plaintiff

learned that the administration of neomycin may have

been improper. Instead, his claim accrued when he

learned that his hearing loss may have been caused by

the actions of a government employee in administering

neomycin, knowledge he gained months after the

administration of the medication, and after discovery

of the injury. /d. at 115, 119. Thus, the Administrative

Claim period does not begin to run until there is

knowledge of the cause of an injury (the

administration of neomycin there; the activities of air

traffic control here), which may come after discovery of

the injury (hearing loss there; death by plane crash

here) and before discovery of legal culpability (medical

malpractice there; air traffic control negligence here).

It simply cannot be said after Kubrick that an FTCA

claim accrues on the date of injury, regardless of

knowledge, or lack of knowledge, as to its cause.

B. The Sixth Circuit’s Opinion Ignores

Kubrick’s Knowledge of Cause

Requirement.

The Sixth Circuit’s decision ignores the cause

element of claim accrual acknowledged in Kubrick. Its

explanation for not following Kubrick is that death by

plane crashes are different, for purposes of claim

accrual, than death by, for example, cancer. (Apx. 5a.)

10

Yet, Kubrick’s claim accrual rule is not specifically

limited to medical malpractice claims, and has been

applied in cases involving claims other than

malpractice. See e.g., Skwira v. United States, 344

F.3d 64, 74 (1st Cir. 2003) (applying discovery rule in

negligent supervision case involving plaintiff's death

due to criminal conduct of nurse at VA hospital); Rakes

v. United States, 442 F.3d 7 (1st Cir. 2006) (wrongful

disclosure and negligent supervision claims under the

FTCA accrue only when person in the plaintiffs

position has sufficient facts to permit reasonable

person to belicve there is a causal connection between

the government and the injury); McIntyre, supra, 367

F.3d 38 (discovery rule applied in wrongful death case

against federal government involving negligence in

revealing victim’s status as FB] informant); Rammuing

v. United States, 281 F.3d 158, 162 -63 (5th Cir. 2001)

(malicious prosecution claim brought under FTCA only

accrues when plaintiff is aware of the injury and the

connection between the injury and the government’s

actions); Garza v. United States, 284 F.3d 930, 934

(8th Cir. 2002) (negligent supervision FTCA claim

accrues only when plaintiff has reason to believe he

has been injured by an act or omission of the

government). This makes sense because Kubrick's logic

applies to all types of cases in which the injured party

does not (and could not) immediately know the causé

of his or her injurv, regardless of the nature of the

claim.

The Sixth Circuit’s analysis is inconsistent with

Kubrick. The court took the date of injury, added two

years, and asked whether the plaintiff could have

determined whether to file a claim within that two

year period. Under the Sixth Circuit’s rationale, if a

claimant learns of the potential cause attributable to

11

the government one year and 364 days after the

accident, he or she must file the Administrative Claim

the very next day (day 730) or be time-barred, because

the knowledge acquired on day 729 (i.e., one year and

364 days) causes the claim to accrue retroactively. This

is not a proper claim accrual analysis under Kubrick.

In Kubrick, this Court found that for statute ef

limitations purposes under the FTCA, a plaintiffs

ignorance of his legal rights and his :gnorance of the

fact of his injury or its cause should not receive

identical treatment.

That he has been injured in fact may be

unknown or unknowable until the injury

manifests itself; and the facts about causation

may be in the control of the putative defendant,

unavailable to the plaintiff or at least very

difficult to obtain. The prospect is not so bleak

for a plaintiff in possession of critical facts that

he has been hurt or who has inflicted the injury.

He is no longer at the mercy of the latter. There

are others who can tell him if he has been

wronged, and he need only ask.

Kubrick, 444 U.S. at 122. (emphasis added)

Both the Sixth Circuit and the district court

focused on Plaintiff's knowledge of the injury itself and

her ignorance of her legal rights, and overlooked her

ignorance as to who caused the injury. Although death

by plane crash is different than death by cancer, this

is irrelevant to the claim accrual issue and certainly

should not mean that every claimant in an airplane

crash must assume that government conduct may have

played a role in the crash. The courts below were

12

required to base their claim accrual decision on when

Plaintiff could have acquired possession of the critical

facts regarding who inflicted her injury. Jd. This is

especially true because the facts about causation were

in the exclusive control of the putative defendant, /.e.,

the United States.’ More specifically, the lower courts

were required to analyze when Plaintiff should have

known that the government may have caused the

crash and held that it was then, and only then, that

the cause of action accrued under the FTCA. Their

failure to do so and the Sixth Circuit’s new claim

accrual rule conflict with this Court’s analysis and

holding in Kubrick, and warrants review, and

ultimately reversal, by this Court.

W.THE SIXTH CIRCUIT’S DECISION

CONFLICTS WITH DECISIONS OF THE

FIRST, FIFTH, SEVENTH, AND EIGHTH

CIRCUIT COURTS OF APPEAL ON THE

SAME SUBJECT MATTER

The Sixth Circuit refused to follow the rule set

forth in Kubrick, and held that Plaintiffs claim

In the weeks between the accident and when the NTSB

investigator-in-charge advised Plaintiff that air traffic control

conduct may have led to the crash, Plaintiff could not have

conducted any investigation into the actions of air traffic control

personnel; by law the NTSB had exclusive access to the

information necessary to allow a reasonable person to conclude

that air traffic control conduct caused the crash. See 49 C.F.R

§ 831.2(a)(1). This is still the law. Until the NTSB releases

information concerning an accident investigation, only the

investigator-in-charge can release or approve the release of

information to any person who ts not a party to the investigation

49 C.F_R. § 831.13(b). Petitioner was not a party to the NTSB’s

accident investigation

13

accrued on the date of the crash. The court supported

this refusal by distinguishing negligent air traffic

control from negligent medical treatment.* Kubrick

and its progeny, however, have made it clear that the

“discovery rule”—or “inquiry-notice rule” as the Sixth

Circuit now calls it—applies to cases outside of the

medical malpractice arena. In other words, other

circuits have held that non-medical malpractice claims

brought under the FTCA do not accrue until the

plaintiff knew or should have known of her injury and

the cause attributable to the government. This Court

could make this the clear rule by granting certiorari in

this case.

A. The First, Fifth, Seventh, and Eighth

Circuits Consider Knowledge of

Government Cause When Determining

Claim Accrual.

The First, Fifth, Seventh, and Eighth Circuit

Courts of Appeal have applied Kubrick’s holding that

a claim accrucs when the plaintiff knows or should

have known of his injury and its cause to cases outside

of the medical malpractice context, and have held that

FTCA claim accrual awaits knowledge not just of a

cause, but of government cause.

* Although the First Circuit Court of Appeals in Skwira also

distinguished between medical malpractice and other types of

claims, as discussed infra, it noted that one is more likely to know

of the cause of an injury in medical malpractice claims than in

other sorts of claims, which argues in favor of expanding the cases

in which the discovery rule applies, not restricting it, as the Sixth

Circuit has done

14

1. The Seventh Circuit Court of Appeals

Shortly after Kubrick was decided, the Seventh

Circuit ruled on the issue of whether the discovery rule

only applied to FTCA medical malpractice cases.

Stoleson v United States, 629 F.2d 1265 (7th Cir 1980).

In Stoleson, an occupational exposure case, the court

held that the discovery rule is not Jimited to

malpractice cases and found that the plaintiff's claim

did not accrue until she had knowledge of causation.

Id. at 1270-71. Indeed, the court found that the FTCA

statute of limitations did not begin to run until the

point in time in “at which [the plaintiff] could have

pursued a claim against the Government.” /d.

Several years later the Seventh Circuit further

analyzed Kubrick, and held that when there are two

causes of an injury, and only one is attributable to the

vovernment, the knowledye required to start the FTCA

limitations period is knowledge of the government

cause, not knowledge of the other cause or causes.

Drazen v. United States, 762 F.2d 56, 59 (7th Cir.

1985). Although Drazen was a medical malpractice

case, the court’s opinion included a_ hypothetical

analogy that is applicable to this case.

A postal van knocks a man down. No one sees

the aceident, and the hospital to which the body

is taken gives ovt the cause of death as a

fractured skull. That is one cause but the postal

service is another; and unless the decedent's

survivors know or should know that the postal

service caused the decedent's head to hit the

pavement, just knowing that he died from a

fractured skull does not start the statute of

15

limitations running [for purposes of bringing a

claim under the FTCA].

Id. The Seventh Circuit found that under this

hypothetical, the plaintiff's claim would accrue when

he or she first had reason to believe that an act or

omission by the government had been a cause of the

decedent’s death, not when they knew an accident

fractured the decedent’s skull. The clock begins to run

“when the government cause is Known or when a

reasonably diligent person reacting to any suspicious

circumstances of which he might have been aware

would have discovered the government cause.” /d.

Here, the obvious cause of Plaintiffs decedent’s

death was the plane crash. There are numerous

potential underlying causes of a plane crash, however,

such as pilot error, pilot illness, mechanical failure,

product defect, extreme weather, etc. The potential

cause for purposes of the FTCA—air traffic control

conduct in the instant case—which turned out to be

the actual cause of the crash, was unknown (and

unknowable) to everyone but the NTSB for the first 25

days after the crash. Under these circumstances, just

knowing that Plaintiffs decedent died in an airplane

crash did not start the statutc of limitations running

under Kubrick, as analyzed by other Court of Appeals,

such as the Seventh Circuit. The clock did not start to

run until Plaintiff knew or should have known that the

actions or inactions of government personnel may have

caused the crash.

2. The First Circuit Court_of Appeals

The First Circuit Court of Appeals has held on

numerous occasions that Knowledge (actual or :mputed

16

under a reasonable person standard) of government

cause is the critical element in FTCA claim accrual.

One of the first non-medical malpractices cases'that

made this distinction after Kubrick was Attallah v.

United States, 955 F.2d 776 (1st Cir. 1992). There, the

plaintiffs sued the government to recover damages for

property theft following the robbery and murder of a

courier by United States custom agents. Jd. at 778.

The First Circuit rejected the government’s claim that

the plaintiffs were armed with the crucial facts

concerning their injury (loss of assets) and its cause

(abduction and murder of courier) when the courier’s

body was found. Instead, the court found that the

plaintiffs’ cause of action did not accrue” until

government involvement in the abduction and murder

were known, /.e., criminal indictments were brought

against the government agents.” ld

Here, the Sixth Circuit should have followed the

reasoning of the First Circuit and rejected the

government's argument that Plaintiff's claim accrued

when she was armed with facts concerning her injury

(the decedent’s death) and its cause (plane crash). Like

the First Circuit, the court should have held that

Plaintiff's cause of action did not accrue until she was

aware (or through reasonable diligence could have

become aware) of the facts concerning air traffic

control's involvement in the crash

After Afttallah, the First Circuit thoroughly

analyzed Kubrick and applied the knowledge of

Plaintiffs claims were ultimately barred on grounds unrelated

to the FTCA statute of limitation:

17

government cause requirement to a non-medical

malpractice wrongful death case in Skwira, holding:

Outside the medical malpractice context, a

claim accrues under the FTCA once a plaintiff

knows, or in the exercise of reasonable diligence

should know, (1) of her injury and (2) sufficient

facts to permit a reasonable person to believe

that there is a causal connection between the

government and her injury.

344 F.3d at 82. Skwira involved a wrongful death case

against the government for the death of a patient at

the VA Medical Center. Jd. at 67. Five years after the

death, a nurse was convicted of murdering the

decedent by injecting lethal doses of a drug to

stimulate natural death. Jd. The decedent’s survivors

filed suit one year later. Jd. at 70. The court found that

the cause of action accrued, at the latest, on the day

after the patient’s autopsy—which was after the date

of death—because the plaintiffs then learned that the

decedent did not die of causes listed on the death

certificate.® Jd. at 80. Since Skwira, the First Circuit

has continued to apply what it refers to as the

“discovery rule” to define FTCA claims accrual as

distinct from the date of injury.

In a 2004 First Circuit case, a decedent’s personal

representative brought an action against the United

States for negligence for revealing an informant’s

identity, the disclosure of which ultimately led to the

” The court of appeals affirmed the trial court’s dismissal of the

plaintiffs’ claim because they did not file their administrative

claim within two years after the autopsy. /d. at 83

18

decedent/informant’s murder by gang members.

McIntyre, supra, 367 ¥.3d 38. The court held that

claims against the government by the murder victim’s

family accrued when the family learned that the FBI

disclosed the victim’s status, not earlier when they

learned that the victim had been murdered. /d. at 54-

56.

In analyzing whether the discovery rule extended

the time in which to file an Administrative Claim, the

Mclntyre court examined this Court’s holding in

Kubrick. It acknowledged that once the claimant has

“knowledge of the fact of injury and the identity of the

party that caused |it|,.. .”, 367 F.3d. at 52 (emphasis

added), the limitations clock begins to run. “The same

is not necessarily true of plaintiffs who are ignorant of

the facts, particularly when the government may be in

possession or control of the necessary information.” /d.

The question posed by the court was whether a

reasonable person in the plaintiffs position, after

conducting a diligent investigation, would have

uncovered a sufficient factual basis to believe, more

than two years prior to the filing of plaintiffs

Administrative Claim, that the FBI was the source of

the leak of the decedent’s identity to the gang

members. The court answered no. Jd. at 54.

In the case at bar, a reasonably diligent

investigation could not have disclosed a connection

between the plane crash and the government’s acts at

any point before the NTSB provided information about

its preliminary conclusions to the decedent’s widow. As

mentioned above, the NTSB, a federal agency, was in

exclusive possession and control of the investigation

into the plane crash and the Plaintiff was not a party

to the NTSP’s accident investigation

19

The First. Circuit again analyzed the applicability

of the discovery rule to FTCA claim accrual in Rakes,

supra, 442 F.3d 7. Rakes involved claims by extortion

victims who alleged that the extortionists were

informants shielded by the FBI, and therefore the

government was liable for plaintiffs’ money losses. /d.

at 11. The First Circuit reiterated that the discovery

rule governs claim accrual under the FTCA where the

cause of an injury is unknown (or unknowable) to the

plaintiff for some time after the injury occurs. /d. at

19. Rakes acknowledged that this Court applied the

discovery rule in the medical malpractice context in

Kubrick, and that the First Circuit has applied the

discovery rule outside of the medical malpractice

context, making it a rule of general application. /d.,

citing Kubrick, 444 U.S. at 111. It also acknowledged

that the First Circuit has continuously held that the

“start of the FTCA’s hmitation period may be delayed

during a period in which an injured party has no way

of knowing that he has been injured or that it was the

government who caused the injury.” 442 F.3d at 11.

Echoing the holding in Melntyre, the First Circuit

panel in Rakes employed the “objective observer”

standard in determining whether the injured party

knew, actually or constructively, sufficient facts so as

to permit a reasonable person to believe that there was

a causal connection between the injury and the federal

yvovernment. Jd. at 20. In that case, the court

determined that the plaintiffs did not have knowledge

of the injury and the government causation on the date

of the injury. Jd. at 23. The court therefore extended

the claim accrual date more than 14 years past the

date of injury to a date in which the court believed the

20

plaintiffs should have known of the FBI's

involvement.’

‘

3. The Fifth Circuit Court of Appeals

The Fifth Circuit has similarly held that an FTCA

claim accrues upon knowledge of the “existence of the

injury and causation, that is, the connection between

the injury and the defendant’s actions.” Ramming,

supra, 281 F.3d at 162-63. As to causation, the court

found that the claim does not begin to accrue until the

claimant has “knowledge of facts that would lead a

reasonable person (a) to conclude that there was a

causal connection...or (b) to seek professional advice,

and then, with that advice, to conclude that there was

a causal connection between the {government’s] acts

and the {plaintiffs] injury.” Jd. (citing Piotrowski v.

City of Houston, 51 F.3d 512, 516 (5th Cir. 1995)).

Under this claim accrual test, Plaintiffs cause of

action did not accrue until she had knowledge of facts

that would lead a reasonable person to conclude that

there was a causal connection between’ the

government's acts—air traffic control—and the death

of her husband. The Sixth Circuit’s holding that her

claim accrued on the date of the crash, rather than on

the date when she learned (or for the first time could

have possibly learned) that air traffic control’s actions

may have caused the crash, conflicts with this test.

‘The court ultimately held the plaintiff's claim was nonetheless

barred because despite application of the discovery rule, the claim

was still not timely filed.

21

4. The Fighth Circuit Court of Appeals

The Eighth Circuit is in line with the FTCA claim

accrual analysis of the First, Fifth, and Seventh

Circuits in non-medical malpractice cases. In Garza,

supra, a federal prisoner, having escaped from a

halfway house, killed his wife. 284 F.3d at 933. The

wife’s estate brought a wrongful death action under

the FTCA against the United States Prison Bureau

alleging that federal employees had failed to

adequately supervise the prisoner and failed to advise

authorities and the decedent of the prisoner’s escape.

Id. at 934. The Court of Appeals held that the FTCA

claim accrued for limitations purposes when it was

apparent that there was a relationship between the

halfway house and federal authorities that would

require further inquiry.

In support of its holding, the Garza court found

that although a FTCA claim generally accrues when

the plaintiff is injured, sometimes it does not accrue

until the plaintiff knows of both an injury’s existence

and its cause. /d. at 934. The court further found that

this discovery rule does not apply only to medical

malpractice cases. Rather, it applies in situations

where a plaintiff is blamelessly unaware of his claim

because the facts establishing a causal link between

the injury and the tortious activity are in control of the

tortfeasor or are otherwise not evident. Jd. “Therefore,

where the government has shown that a suit was

untimely in that the claim was presented more than

two years from the date of injury, the plaintiff may

show that he had no reason to believe he had been

injured by an act or omission by the government.” Jd.

The covrt continued, “when there are two causes of an

injury, and only one is the government, the knowledge

22

that is required to set the statute of limitations

running is knowledge of government cause, not just

the other cause.” /d. (citing Drazen, 762 F.2d at 59-60).

Although that court found that the claim accrual

date was later than the date on which the decedent

was murdered, it ultimately held that the estate’s

claim was nevertheless time-barred. This was because

the court found that sufficient details were presented

to give notice of the Bureau’s involvement and to

require inquiry as to their legal significance more than

two years before the claim was filed (but significantly

this date was after the date of the decedent’s death).

284 F.3d at 937. Here, Plaintiffs claim accrued not on

the date of the plane crash, but on the date at which

Plaintiff had sufficient details to be on notice of the

FAA’s involvement, u.e., June 25, 2004, and the

Administrative Claim was filed within two years of

that date.®

B. The Sixth Circuiit’s New Rule is

Unsupported by any Precedent and

Ignores the Issue of Knowledge of

Government Cause.

The Sixth Circuit’s holding is based on its newly

announced rule that “a claim accrues when a plaintiff

* Indeed, it cannot be disputed that plaintiff was diligent in

discovering potential government culpability in the death of her

husband. On June 25, 2004, less than one month after the crash,

Plaintiff, on her own initiative, contacted the NTSB Investigator-

in-Charge to learn of any facts surrounding her husband’s death.

Prior to that date, Plaintiff was in a state of shock, did not discuss

the facts of the accident with anyone, and was not contacted by

the NTSB. <Affidavit of Susan Hertz, 19 5-9; Apx. 34a-35a.)

23

possesses enough information with respect to her

injury that, ‘{had] [she] sought out independent legal

and lexpert] advice at that point, [she] should have

been able to determine in the two-year period whether

to file an administrative claim.” (Apx. 4a-6a.) The

court found that a claim arising from a plane crash

accrues on the date of the crash as long as the record

reveals that the plaintiff should have been able to

determine in the subsequent two year period whether

to file an administrative claim. Under the court’s

analysis, Plaintiffs claim accrued on the date of the

crash because she had 22 months after she discovered

the potential cause attributable to the

government—which, the court implied, was cnough

time to determine whether to file a claim. (Apx. 6a.)

The Sixth Circuit cited McIntyre, supra, and

Kronisch v. United States, 150 F.3d. 112, 121 (2nd Cir.

1998), in support of the above stated rule. Neither of

these cases, however, support such an unprecedented

holding. The quoted language from McIntyre is from

the portion of McIntyre that discusses Skwira. In

Skwira, the court found that the two year limitations

period began when a reasonable person would believe

that there was a causal connection between the injury

and the acts or omission of a government employee.

Skwira, 344 F.3d. at 80. Both Skwira and Mclntyre

based their claim accrual decision on objective

knowledge of a causal connection between the

government and the injury. The Sixth Circuit, on the

other hand, did not discuss how Plaintiffs knowledge

or ignorance of air traffic control conduct affected

claim accrual, or why the claim accrual date would be

retroactively fixed, based on later events, 1.e.,

Plaintiffs discovery of the government’s potential

involvement in the death of her husband. As stated

24

earlier, the Sixth Circuit’s decision is nonsensical in

that it looks at when the plaintiff had knowledge or

should have had knowledge of a governmental cause.

In so doing, the Sixth Circuit appears to be applying

the discovery rule, only to then hold that this means

there is no discovery rule, and if you discovered the

governmental cause any time within two years after

the crash, your claim accrued back when the crash

occurred. Clearly, this is not what the discovery rule

required and such a holding is inconsistent with this

Court’s, as well as other Circuit’s, application of the

discovery rule.

In Kronisch, the Second Circuit Court of Appeals

held that the plaintiffs FTCA claim was untimely

because he was aware of the basic facts of his FTCA

claim more than two years before he filed his claim.

150 F.3d. at 121. The Sixth Circuit relied on Kronisch’s

finding that “a claim will accrue when the plaintiff

knows, or should know, enough of the critical facts of

injury and causation to protect himself by seeking

legal advice.” (Apx. 5a.) The court in Kronisch, like

most courts, determined an accrual date based on

what plaintiffshould have known at different points in

time. Once an accrual date is determined, the

plaintiff's subsequent knowledge is irrelevant. Indeed,

under the Sixth Circuit’s analysis, if Plaintiff did not

know, and could not have known, about air traffic

control’s conduct until more than two years after the

crash, its holding likely would have been different.

Here, however, the Sixth Circuit determined an

accrual date based on subsequent knowledge. This

approach to claim accrual] is clearly inconsistent with

Kronisch, McIntyre and the other cases interpreting

Kubrick.

20

Although the Sixth Circuit implicitly conceded that

June 25, 2004—the date Plaintiff spoke with the NTSB

investigator—was the first day she knew or should

have known that the government may have caused the

crash, it ignored the rule set forth in McIntyre, Rakes,

Skwira, Garza, Ramming, and Drazen that a claim

does not accrue until the claimant knows or should

have known of facts relating to government causation,

and failed to set June 25, 2004, as the claim accrual

date. The court sidestepped this critical analysis by

stating that Plaintiffhad plenty of time (22 months) to

file her claim.’ Yet, the Sixth Circuit should not have

affirmed the district court unless it found that the

government cause (air traffic control) was known, or

should have been known, by plaintiff on or before June

8, 2004, two years and one day before the

Administrative Claim was filed. It made no such

finding because such a finding was not supported by

the record.

By ignoring the issue of knowledge of government

causation, or, more accurately, misapplying it, the

Sixth Circuit established a claim accrual rule for

FTCA cases that conflicts with the First, Fifth,

Seventh, and Eighth Circuits.’? That rule, if not

*° The Sixth Circuit’s reference to 22 months is yet another

example of its error in determining claim accrual in this case and

why its unprecedented rule is inconsistent with §240 I(b). The rule

allows aclaimant 24 months. A claim accrual rule that focuses on

any period of time less than 24 months is improper and

inconsistent with Kubrick and the Courts of Appeal cases

discussed herein.

' The Ninth Circuit Court of Appeals held in a plane crash case

that the plaintiffs claim accrued when she knew of her injury (the

26

reversed, will result in irreparable harm and

substantial prejudice to Plaintiff. Moreover, such a

precedent will encourage the filing of Administrative

Claims after all plane crash cases in the Sixth Circuit.

Counsel for injured families will file claims purely as

a preventive measure in case it should be discovered

within the next two years that a governmental agency

may have been the cause of the crash, thus

retroactively causing the FTCA claim to begin to

accrue on the date of the crash.

In an apparent attempt to evade the question of

knowledge of government cause, the Sixth Circuit

stated that “plane crashes by their nature typically

involve negligence somewhere in the causal chain; and

the mere fact of this event is thus typically enough to

put the plaintiff on inquiry notice of his claim.” (Apx

5a.) First, this statement is simply not true. Events

such as bird or lightening strikes, or pilot illness, may

cause a crash without there being any negligence by

anyone involved. Also, in the case of a single aircraft

accident as in the case at bar, governmental

involvement in the cause is not common. Second, even

if this were true, it is irrelevant to the issue of claim

accrual. An FTCA claim accrues only when a plaintiff

is armed with sufficient facts to permit a reasonable

person to believe that there is a causal connection

death of her mother) and its immediate physical cause (the plane

crash). Green v. United States, 172 F3d 56 (9"" Cir. 1998)

(unpublished table decision). Although the Ninth Circuit's ruling

(which was not relied upon below) is consistent with the Sixth

Circuit opinion at issue, it provides little guidance as it does not

discuss the discovery rule in any depth or discuss the reasons for

its holding If nothing else, Green shows there to be a circuit split

that further warrants this Court’s review.

27

between the government and their injury, not just that

someone at some point may have been negligent.

lI]In the medical malpractice context, where

there is often a direct relationship between the

patient and doctor, one need not know of a

governmental causal connection for a claim to

accrue under the FTCA. Outside the medical

malpractice context, however, the identity of the

individual(s) responsible for an injury may be

less evident, and a plaintiff may have less

reason to suspect governmental involvement.

Not surprisingly, courts of appeals have been

slightly more forgiving in these cases, deferring

the accrual of claims until a reasonably diligent

plaintiff has reason to suspect a governmental

connection with the injury.

Skwira, 344 F.3d at 77. The Sixth Circuit’s reasoning

for distinguishing plane crashes from other events is

flawed. If anything, plane crashes present a more

compelling case for application of the discovery rule

because (1) the relevant facts are within the exclusive

province of the NTSB and individual investigations are

not allowed, and (2) air traffic control negligence

involving the crash ofa single general aviation aircraft

is uncommon, and therefore, an unanticipated event.

Under Kubrick and its progeny as annunciated by

the First, Fifth, Seventh, and Eighth Circuits, to

determine the point of accrual, the Sixth Circuit and

trial court were required to evaluate when a

reasonable person received sufficient information to

place him or her on notice that the government was

responsible for the crash. Before June 25, 2004, a

reasonable person in Plaintiffs position would not

28

have uncovered a sufficient basis to believe that the

FAA was the cause of the crash because the NTSB had

exclusive access to the necessary information. See

McIntyre, 367 F.3d at 54; see also 49 C.F.R.

§ 831.2(a)(1)(2008). It was not until June 25, 2004, at

the earliest, that Plaintiff (through her own initiative)

could have discovered both her injury (the decedent’s

death) and the government-related cause (air traffic

control). Under these circumstances, just knowing that

Plaintiffs decedent died in an airplane crash should

not have started the statute of limitations running for

purposes of claim accrual under the FTCA. The clock

did not begin to run until Plaintiff knew or should

have known that the actions or inactions of

government personnel caused the crash. See Skwira,

344 F.3d at 82; Rakes, 442 F.3d at 11; McIntyre, 367

I’.3d at 52; Garza, 284 F.3d at 934; Ramming, 281 F.3d

at 162-63. This occurred on June 25, 2004, and the

Administrative Claim was timely filed before June 25,

2006, two years after the claim accrued. Therefore, the

Sixth Circuit erred and review by this Court is

necessary.

CONCLUSION

The Sixth Circuit Court of Appeals created a new

rule of law that an FTCA claim arising from a plane

crash accrues on the date of the crash if the claimant

should have been able to determine anytime within the

following two years that he or she had a claim against

a governmental entity. The Sixth Circuit’s holding and

rule is inconsistent with this Court’s holding in

Kubrick and the First, Fifth, Seventh, and Fighth

Circuits application of Kubrick’s “discovery rule”

regarding claim accrual.

99

Lea

Petitioner respectfully requests that this Court

grant the writ of certiorari, review this case, and upon

review, reverse the Sixth Circuit Court of Appeals’

decision.

Respectfully submitted,

June 29, 2009

Jill M. Wheaton (499921)*

Daniel J. Stephenson (P34500)

Kathryn J. Humphrey (P32351)

David M. George (P68812)

DYKEMA GOSSETT PLLC

2723 South State St., Ste. 400

Ann Arbor, MI 48104

(734) 214-7660

Douglas A. Latto

BAUMEISTER & SAMUELS, P.C.

One Exchange Plaza

New York, NY 10006

(212) 363-1200

Attorneys for Petitioner

* Counsel of Record

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 07-1724

[Filed March 31, 2009]

SUSAN HERTZ, Individually and as Personal

Representative of the ESTATE OF ROGER

HERTZ, Deceased,

Plaintiff-Appellant,

Uv.

UNITED STATES OF AMERICA,

Defendant-Appellee.

_ —— ~ _— —_—— — —

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 06-15443—John Corbett O’Meara,

District Judge.

Argued: January 22, 2009

Decided and Filed: March 31, 2009

Before: SURHEINRICH, GRIFFIN, and

KE’THLEDGE, Circuit Judges.

COUNSEL

2a

ARGUED: Jill M. Wheaton, DYKEMA GOSSETT,

Ann Arbor, Michigan, for Appellant. Colleen Love

Conlin, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON

BRIEF: Danie! J. Stephenson, David M. George,

DYKEMA GOSSETT, Ann Arbor, Michigan, Kathryn

J. Humphrey, DYKEMA GOSSETT, Detroit, Michigan,

for Appellant. Colleen Love Conlin, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. Deborah A. Hebert, Michael J. Sullivan,

COLLINS, EINHORN, FARRELL & ULANOFF,

Southfield, Michigan, for Amici Curiae.

OPINION

KETHLEDGE, Circuit Judge. PlaintiffSusan Hertz

appeals the district court’s dismissal, on limitations

grounds, of her claim under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seg. We

affirm.

Roger Ilertz, a passenger on board an

amateur-built experimental airplane, was killed on

May 31, 2004, when the plane flew into a

thunderstorm and crashed. The National

Transportation Safety Board (“NTSB”) investigated

the crash. On June 25, 2004, Hertz’s widow, Plaintiff

Susan Hertz, telephoned the NTSB’s

Investigator-in-Charge, who told her that “the NTSB

believed that the cause of the accident. was related to

air traffic controller negligence.” The Federal Aviation

Administration (“FAA”) apparently had _ been

responsible for the plane’s air-traffic control.

3a

Plaintiff promptly retained counsel to pursue

claims against any entities responsible for her

husband’s death, “including the United States.” The

estates of two other passengers indeed filed claims

against the United States within the two-year period

prescribed by 28 U.S.C. § 2401(b). Plaintiffs

then-counsel, however, did not file a claim with the

FAA until June 9, 2006, which was more than two

years after the crash. The FAA denied her claim as

untimely.

Plaintiff thereafter commenced this lawsuit in the

United States District Court for the Eastern District of

Michigan. ‘The United States moved to dismiss the

claim as time-barred under § 2401(b). The district

court granted the motion, and this appeal followed.

Il.

We review de novo a district court’s grant of a

motion to dismiss under Fed. R. Civ. P. 12(b)(1), see

Abbott v. Michigan, 474 F.3d 324, 328 (6th Cir. 2007),

as well as a district court’s interpretation of the

FTCA’s statute of limitations. See Tolbert v. State of

Ohio Dep't of Trans. , 172 F.3d 934, 938 (6th Cir. 1999)

Title 28 U.S.C. § 2401(b) provides, in relevant part,

that “[a] tort claim against the United States shall be

forever barred unless it is presented in writing to the

appropriate Federal agency within two years after

such claim accrues|.]” Under this section, the “general

rule” is that “a tort claim accrues at the time of the

plaintiffs injuryl.]” U.S. v. Kubrick, 444 U.S. 111, 120

(1979); see also, e.g., Kronisch v. U.S., 150 F.3d 112,

121 (2d Cir. 1998) (“Ordinarily, a plaintiffs FTCA

claim accrues at the time of injury”). Application of

,

4a

that rule would bar Plaintiffs claim. The question

presented in this case, therefore, is whether the record

permits making an exception to the rule.

Kubrick is the leading precedent concerning accrual

of claims for purposes of § 2401(b). There; Kubrick

asserted a medical-malpractice claim based upon

treatment he had_ received in a_ Veterans

Administration (“VA”) hospital. His injury, which was

hearing Joss, occurred in 1968; in January 1969, he

learned that the hearing loss may have been caused by

an antibiotic, neomycin, given to him by the VA; and in

June 1971, he learned that the neomycin “should not

have been administered” to him at all. Jd. at 114.

Kubrick argued that his claim accrued on the latter

date, since that was the date on which he first

discovered that VA negligence may have played a role

in his injury. But the Supreme Court disagreed. The

Court reasoned that “accrual’ of a claim” does not

“await awareness by the plaintiff that his injury was

negligently inflicted.” Jd. at 123. Instead, the Court

held, a claim accrues when a plaintiff, “armed with the

facts about the harm done to him, can protect himself

by seeking advice in the medical and _ legal

community.” 7d. Under that test, Kubrick’s claim

accrued in January 1969--when he learned that

neomycin caused his injury—because at that time he

“need only have made inquiry among doctors with

average training and experience in such matters to

have discovered that he probably had a good cause of

action.” Id.

Kubrick thus apphed not a discovery rule (in the

sense of discovering the existence of a claim) with

respect to the accrual of claims under the FTCA, but

an inquiry-notice rule. Specifically, a claim accrues

5a

when a plaintiff possesses enough information with

respect to her injury that, “{hlad [she] sought out

independent legal and [expert] advice at that point,

lshe] should have been able to determine in the

two-year period whether to file an administrative

claim.” McIntyre v. U.S., 367 F.3d 38, 53 (1st Cir.

2004); see also Kronisch, 150 F.3d at 121 (“a claim will

accrue when the plaintiff knows, or should know,

enough of the critical facts of injury and causation to

protect himself by seeking legal advice”) (internal

quotation marks omitted).

The determination as to when a plaintiff has such

knowledge is necessarily fact-intensive. ln some cases,

particularly medical-malpractice cases in which the

plaintiff has little reason to suspect anything other

than natural causes for his injury, a plaintiff might

need to know, or have reason to know, of doctor-caused

harm (though not necessarily of negligently

doctor-caused harm) in order for his claim to accruc.

See e.g., Drazan v. U.S., 762 F.2d 56, 59 (7th Cir. 1985)

(plaintiffs mere knowledge that her spouse died of

cancer did not trigger accrual of claim for VA

malpractice); Diaz v. U.S., 165 F.3d 1337, 1341 (11th

Cir. 1999) (plaintiffs knowledge of spouse’s suicide,

“without any indication of medical treatment

beforehand,” did not trigger accrual of malpractice

claim).

But deaths by plane crashes are different, for

purposes of this rule, than deaths by cancer. Plane

crashes by their nature typically involve negligence

somewhere in the causal chain; and the mere fact of

the event is thus typically enough to put the plaintiff

on inquiry notice of his claim. If the record further

reveals that the plaintiff “should have been able to

6a

determine in the two-year period whether to file an

administrative claim|[,]” McIntyre, 367 F.3d at 53, then

there is no reason to depart from the general rule that

accrual occurs upon injury.

Such is the case here. Plaintiffs spouse died,

tragically, in a plane crash. The record makes

plain—and Plaintiff herself concedes—not only that

she should have been able to determine in the two-year

period whether to file a claim, but that she in fact

made that determination, when the NTSB investigator

told her, less than a month after the crash, that “the

NTSB believed that the cause of the accident was

related to air traffic controller negligence.” The

problem was simply that, for whatever reason, her

then-counsel chose not to file the claim in the

remaining 22 months of the period prescribed by

Congress.

We lack authority to overlook that omission.

“Section 2401(b), the limitations provision involved

here, is the balance struck by Congress in the context

of tort claims against the Government; and we are nut

free to construe it so as to defeat its obvious purpose,

which is to encourage the prompt presentation of

claims.” Kubrick, 444 U.S. at 117. Anything other than

affirmance would frustrate that purpose here. And so

too would granting Plaintiffs request that we apply

equitable tolling to her claim. See generally Chomic v.

U.S.,377 F.3d 607, 615-16 (6th Cir. 2004) (refusing to

apply equitable tolling where “the record is clear that

Chomic had _ seventeen months as_ Personal

Representative in which she could have investigated

and filed a timely claim”).

Ta

The District Court’s Apmnl 6, 2007 Opinion and

Order are affirmed.

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 06-15443

[Filed April 6, 2007}

SUSAN HERTY, Individually and as Personal

Representative of the ESTATE OF ROGER B.

HERTZ, Deceased,

Plaintiff,

ie

UNITED STATES OF AMERICA,

Defendant.

ee

Honorable John Corbett O'Meara

OPINION AND ORDER GRANTING

DEFENDANT’S FEBRUARY 7, 2007.

MOTION TO DISMISS

This matter came before the court on defendant

United States of America’s February 2, 2007 motion to

dismiss. Plaintiff Susan Hertz filed a response March

94

23, 2007; and the government filed a reply April 3,

2007. Oral argument was heard April 5, 2007.

BACKGROUND FACTS

Roger B. Hertz, Plaintiffs decedent, was killed in

the crash of an experimental airplane on May 31,

2004, near Vermontville, Michigan. Although Plaintiff

knew of both her husband’s death and the cause of

death at that time, it was not until she met with

officials of the Federal Aviation Administration

(“FAA”) on June 25, 2004, that she first became aware

of “certain facts that implicated potential culpability

on the part of the FAA.” Plaintiffs br. at 7.

On June 9, 2006, Plaintiffs counsel sent an

administrative claim to the Federal Aviation

Administration (“FAA”), seeking money damages for

his wrongful death. The claim was denied as untimely.

The sole issue before the court is whether Plaintiff's

claim was timely filed under the two-year statute of

limitations in the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2401(b). If Plaintiff's wrongfui death claim

accrued on the date of the plane crash in which her

husband was killed, then her administrative claim,

filed more than two years later, is barred by the

statute of limitations. If, however, as Plaintiff argues,

by operation of the “discovery rule,” the cause of action

accrued when she first became aware of the potential

culpability on the part of the FAA, her claim was

timely filed. [In the alternative, Plaintiff argues that

the equitable tolling doctrine applies to prevent the

running of the statute of limitations.

10a

LAW AND ANALYSIS

The statute of limitations for the FTCA mandates

that “[a] tort claim against the United States shall be

forever barred unless it is presented in writing to tne

appropriate Federal agency within two years after

such claim accrues... .” 28 U.S.C. § 2401(b).

Plaintiff relies on the discovery rule enunciated by

the United States Supreme Court in Kubrick v. United

States, 441 U.S. 111 (1979). However, Plaintiffs

argument, that her claim did not accrue until she

became aware of the FAA’s potential culpability, was

explicitly rejected by the Court. “We thus cannot hold

that Congress intended that ‘accrual’ of a claim must

await awareness by the plaintiff that his injury was

negligently inflicted.” Id. at 123. Instead, the Court

held, “fal claim accrues within the meaning of

§ 2401(b) when Plaintiff knows both the existence and

the cause of his injury, and not at a later time when he

also knows that the acts inflicting the injury may

constitute medical malpractice {negligence].” Id. at

111. The Court reasoned that a plaintiffsuch as Hertz,

who knows the fact of her injury, as well as its cause,

can protect herself by seeking advice in the legal

community. Id.

In this case plaintiff Hertz had ample opportunity,

22 months, in which to file her claim even after she

spoke with FAA officials in June 2004. The United

States Court of Appeals for the Sixth Circuit recently

commented under similar circumstances that 17

months constituted ample opportunity for a plaintiff to

file a claim. Chomic v. United States, 377 F.3d 607 (6"

Cir. 2004).

lla

Plaintiffs alternative theory is that equitable

tolling should stop the running of the statute of

limitations period because the government itself had

all of the evidence regarding the plane crash;

therefore, the government controlled when she could

have found out about the potential culpability of the

FAA. In this case, however, Plaintiff has not alleged

any misconduct, fraud, or concealment of material

facts by the FAA to induce Plaintiff into letting the

statute of limitations expire before knowing the fact of

her injury as well as its cause. Although this circuit

has acknowledged that equitable tolling may be

applied in suits against the government, it may be

used only “sparingly,’ and not where there has been

only ‘a garden variety claim of excusable neglect.”

Chomic, 377 F.3d at 615.

The record in this case indicates that Plaintiff had

more than 22 months after retaining counsel to

investigate and file a timely claim. Lack of diligence

defeats her argument for equitable tolling.

ORDER

It is hereby ORDERED that the government’s

February 7, 2007 motion to dismiss is GRANTED.

s/John Corbett O’Meara

United States District Judge

Dated: April 6, 2007

l\Certificate of Service omitted

in printing of this appendix]

12a

APPENDIX C

United States Code

Title 28. Judiciary and Judicial Procedure

Part VI. Particular Proceedings

Chapter 161. United States as Party Generally

28 U.S.C. § 2401. Time for commencing action

against United States

(a) Except as provided by the Contract Disputes Act of

1978, every civil action commenced against the United

States shall be barred unless the complaint is filed

within six years after the right of action first accrues.

The action of any person under legal disability or

beyond the seas at the time the claim accrues may be

commenced within three years after the disability

ceases.

(b) A tort claim against the United States shall be

forever barred unless it is presented in writing to the

appropriate Federal agency within two years after

such claim accrues or unless action is begun within six

months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim by

the agency to which it was presented

CREDIT(S)

(June 25, 1948, c. 646, 62 Stat. 971; Apr. 25, 1949, c.

92,$1,63 Stat. 62; Sept. 8, 1959, Pub... 86-238, § 1(3),

73 Stat. 472; July 18, 1966, Pub.L. 89-506, § 7, 80 Stat.

loa

307; Nov. 1, 1978, Pub.L. 95-563, § 14(b), 92 Stat.

2389.)

Current through P.L. 111-25 (excluding P.L. 111-22)

approved 6-2-09

l4a

APPENDIX D

National Transportation Safety Board

FACTUAL REPORT AVIATION

i

NTSB ID:

CHI04LA129

Aircraft Registration

Number: N707SH

5/3 1/2004

Occurrence Date:

Fatal

eee ee

Most Critical Injury:

—

Occurrence Type:

Investigated By:

Accident NTSB

Location/Time

Nearest State Zip Local Time

City/Place Code Time Zone

Vermontville MI 49096 1400 kD

Airport Proximity: Off Airport/Airstrip

Distance From Landing Facility:

Direction From Airport:

Aircraft Information Summary

Aircraft

Manufacturer

Hall

Model/Series

Lancair IV-P?

Sightseeing Flight: No

Type of

Aircraft

Airplane

—

—

l5a

Air Medical Transport Flight: No

Narrative

Brief narrative statement of facts, conditions and

circumstances pertinent to the accident/incident:

HISTORY OF FLIGHT

On May 31, 2004, at 1400 eastern daylight time, an

amateur-built Hall Lancair IV-P, N707SH, piloted by

a private pilot, was destroyed during an in-flight

collision with terrain following a loss of control during

cruise flight near Vermontville, Michigan. Instrument

meteorological conditions (IMC) with thunderstorms

were present at the time of the accident. The business

flight was operating under the provisions of 14 Code of

Federal Regulations (CFR) Part 91 on an instrument.

flight rules (IFR) flight plan. The pilot and two

passengers were fatally injured. The flight departed

Willow Run Airport (YIP), Ypsilanti, Michigan, at

1330, and was en route to Billings Logan International

Airport (BIL), Billings, Montana.

At 1213, the pilot of N707SH contacted Lansing (LAN)

Automated Flight Service Station requesting a

weather briefing for a flight from YIP, to Portland

International Airport (PDX), Portland, Oregon, with

an en route stop to be determined. The briefer advised

the pilot to expect thunderstorm and rain shower

activity in Michigan, moderate turbulence below 9,000

feet msl, and icing conditions between 7,000 and

14,000 feet msl. The briefer also described an area of

thunderstorms extending frem south of Milwaukee

(MKE) through the Chicago metropolitan area and

extending almost to the lowa border. The briefer did

l6a

not specify the source of the thunderstorm

informacion, although it coincided with the area

covered by SIGMET 43C (valid from 1155 to 1355).

This SIGMET reported a developing area of

thunderstorms moving from the west at 30 knots, with

tops reaching 28,000 feet msl. The briefer advised the

pilot to contact Flight Watch or flight service after

departure for assistance in avoiding this adverse

weather. The briefer then continued to provide

weather information from the eastern Michigan area

toward PDX and BIL, as well as winds aloft for the

pilot’s requested cruise altitude of 10,000 feet msl.

When asked where he planned to stop en route to

PDX, the pilot replied, “Why don’t we plan on Billings.”

The briefer advised that there were numerous notices

to airmen in effect for BIL airport and its associated

approach procedures. The pilot then filed an IFR flight

plan from YIP to BIL via MKE, requesting a 10,000

feet msl cruise altitude.

N707SH departed YIP at 1330 en route to BIL. The

cleared route of flight was YIP direct EARVN

intersection, direct MKE, direct to BIL, cruising at

10,000 feet msl. The aircraft was initially in contact

with Detroit departure control, and was subsequently

handled by LAN approach control, Cleveland Air Route

Traffic Control Center (ZOB), and finally Chicago Air

Route Traffic Control Center (ZAU).

The pilot contacted LAN approach at 1341 while

climbing to 10,000 feet msl. At 1344, the LAN

approach controller asked if the aircraft was equipped

with weather radar. The pilot responded that 1t was

not, and the controller advised the pilot of weather

l7va

ahead that might affect the aircraft’s flight. The pilot

requested vectors around the weather.

At 1345, the LAN controller asked Grand Rapids

approach control (GRR) to see if they could provide

further information on the extent and intensity of the

precipitation. GRR approach control was equipped

with an ASR-9 radar antenna that depicted six-level

weather information in addition to its basic air traffic

control display capabilities. LAN approach control was

equipped with an ASR-7 radar antenna that had

limited weather capabilities. The GRR controller was

unable to assist at that moment due to workload, but

said that he would call back. The LAN controller then

issued N707SH a 270-degree heading to avoid the

weather depicted on the controllers display.

During this period, the aircraft climbed above its

assigned altitude of 10,000 feet msl twice, at one

instance reaching 10,800 feet msl. At 1349, the pilot

requested to climb to 11,000 feet msl because it was

“pretty bumpy” in the clouds. The LAN controller told

the pilot to expect 12,000 feet msl, but to remain at

10,000 feet msl pending coordination with ZOB.

At 1350, the LAN controller completed an autoniated

handoff to the ZOB Jackson sector. The LAN controller

advised the ZOB Jackson controller that N707SH was

on a 270-degree heading to avoid weather, and relayed

the pilot’s request for 12,000 feet msl. At 1351, the

ZOB Jackson controller cleared N707SH to climb to

12,000 feet ms! and instructed the pilot to proceed

direct MKE when able, but did not provide any

information about radar-observed weather ahead of

the aircraft.

18a

Aircraft radar track data was obtained from the GRR

approach cuntrol facility. The plotted data showed the

accident aircraft turned from the previously assigned

270-degree heading about 20-30 degrees right to a

direct course toward MKF.

At 1351:41, the ZOB Jackson sector controller advised

the ZAU Sparta sector controller that N707SH was

proceeding direct to MKE and had not requested any

weather deviations. The ZOB Jackson controller also

told the ZAU Sparta controller that ZAU Sparta sector

had control for any weather deviations and that the

pilot had been having trouble holding altitude while at

10,000 feet msl. At. 1354:06, the ZAU Sparta controller

checked to see if N707SH was on frequency and asked

the pilot to verify his altitude. The pilot stated that he

was at 11,900 feet msl. At 1354:55 the ZAU Sparta

controller told the pilot to report reaching 12,000 feet

msl, which the pilot complied with at 1355:02.

At 1358:34, the pilot of N707SH transmitted, “Center

this is uh 707SH what do you show us in up here?” The

ZAU Sparta controller twice asked the pilot to repeat

his message, with no immediate response. Aircraft

radar track data was plotted on a weather radar chart

that depicted areas of precipitation and their

corresponding intensities. The plotted data showed the

accident airplane flying into an area of level six

precipitation at 12,000 feet msl, prior to a rapid loss of

altitude. Level six precipitation returns are

characterized as “Extreme” by the National Weather

Service and are the highest intensity classification.

At 1359:09, the pilot transmitted, “7O7SH SOS I’ve got

something wrong with the fi'ght controls.” At 1359:16,

the ZAU Sparta controller responded, “7675H_ go

19a

ahead let me know what you need.” At 1359:19, the

sound of an open microphone was heard on the

frequency for 12 seconds. At 1359:40, the pilot said,

“Chicago center 707SH we are (going in I) can’t

maintain altitude. At 1359:53, the ZAU Sparta

controller responded, “707SH roger there’s no aircraft

between you and the airport (unintelligible) for Grand

Rapids. Grand Rapids is approximately twelve o'clock

about 15 miles.” ‘There were no further contacts with

N707SH.

At 1400:04, the ZAU Sparta radar associate controller

contacted GRR approach to coordinate emergency

information on N707SH. He informed GRR that the

aircraft had been at 12,000 feet msl but appeared to

have departed that altitude. At 1400:47, the ZAU

Sparta radar associate told GRR, “... twenty to twenty

five southwest of LAN looks like we’ve gone to a

primary only it looks like he’s right in the middle of

that cell.” The GRR controller was unable to assist

ZAU Sparta sector in locating N707SH, but at 1402:02

he did report that he could see a weather cell at the

location provided by ZAU Sparta sector for the

aircraft.

The ZAU Sparta controllers contacted LAN approach,

ZOB, and GRR approach and asked other aircraft in

the area for assistance in locating or reestablishing

contact with N7O7SH. At 1414:54, GRR approach

advised the ZAU Sparta controller that the Eaton

County police were investigating a report of an aircraft

accident near Vermontville, Michigan. The wreckage

site was subsequently located by the police and

confirmed to be the accident airplane.

20a

Transcripts of the voice communications and plots of

the aircraft :adar track data are included with the

docket material associated with this factual report.

Several witnesses reported first hearing the sound of

a revving aircraft engine before seeing the airplane

descending rapidly in a spiraling descent, according to

an Eaton County Sheriff Case Report. The report

indicated that a pilot-rated witness observed the

airplane in a “flat spin” before impacting the terrain.

The responding Deputy Sheriff reported that, “At the

time the lfaccident] call was going out I was

approximately a mile and a half away in Vermontville.

At that time it had just started raining very heavily in

Vermontville. It had been scattered clouds and then

started raining heavily about the time the [accident]

call went out.”

PERSONNEL INFORMATION

The pilot held a private pilot certificate with

single-engine Jand and instrument airplane ratings.

Federal Aviation Administration (FAA) records

indicate his last airman medical examination was

completed on December 6, 2002, when he was issued

a third-class medical certificate with the restriction;

“must have available glasses for near vision.”

The pilot’s current flight logbook was stored on a

laptop computer, which was reportedly damaged

during the accident. Another copy of the pilot’s

computerized logbook was located on _ different

computer that documented his flight experience

between July 5, 2000, and April 23, 2004. According to

the last logbook entry, the pilot had a total flight time

2la

of 1,073.8 hours, of which 1,000.0 hours were as

pilot-in-command (PIC). The pilot had reportedly flown

approximately 65 hours in the accident airplane.

A portion of the pilot’s hard-bound flight logbook was

provided by a representative of his estate. This logbook

contained training endorsements and documented his

ground and flight training in the accident airplane.

The most current flight review and instrument

proficiency check were completed on May 29, 2001, as

required by 14 CFR Part 61.56 and 61.57(d)

respectively.

On April 26, 2004, the pilot reported his most. current

flight review was completed on April 10, 2004, while

applying for an airplane insurance policy. However,

the recovered flight logbooks did not contain a specific

endorsement for the reported flight review training.

On April 9-10, 2004, the pilot obtained 10.0 hours of

dual flight instruction from a Lancair endorsed flight

instructor. On April 9, 2004, the pilot received an

endorsement for ground instruction covering Lancair

{V-P systems and operations. On April 10, 2004, the

pilot received an endorsement for high-altitude

airplanes, as required by 14 CFR Part 61.31(g). The

pilot did not receive endorsements for a flight review

or instrument proficiency check from the Lancair

endorsed flight instructor. Subsequent to the accident,

the flight instructor provided the pilot’s insurance

company the following signed statement: “Having

flown with [the pilot], if 1 had been asked at the time

we flew (April 2004), I would have agreed to endorse

his logbook for the biennial flight review in accordance

with the Federal Aviation Regulations.”

22a

The following flight times were calculated from the

pilot’s computerized flight logboox:

The pilot accumulated 156.0 flight hours in the past

year, 77.3 hours during the prioy 6 months, 47.6 hours

during the past 90 days, and no hours during the

previous 30 days. The last flight logbook entry was

dated April 23, 2004.

The pilot had accumulated 107.1 flight hours in actual

IMC. He did not log any flight hours in actual IMC

during the previous year and no _ instrument

approaches during flights in actual IMC. The

computerized logbook did not track simulated

instrument time. No safety pilot or instructor

information was included with the logbook entries, as

required by 14 CFR Part 61.51(g) if simulated

instrument time had been flown.

The pilot had accumulated 113.6 flight hours during

night conditions. During the previous 90 days he

logged 2.0 hours at night and no hours during the prior

30 days.

AIRCRAFT INFORMATION

The accident airplane was a Hall Lancair IV-P, serial

number LIV-363. The airplane was a pressurized,

low-wing airplane equipped with a retractable tricycle

landing gear, electrically actuated wing flaps, and a

single reciprocating engine with a constant speed

propeller. The airframe was constructed of high

temperature, epoxy prepreg, carbon fiber materials.

The airplane was configured with two pilot stations

and dual control side-sticks. The airplane

23a

accommodated four occupants and had a

builder-specified maximum takeoff weight of 3,700 Ibs.

The amateur-built aisplane was issued an

experimental airworthiness certificate on April 1,

2001. The last annual condition inspection was

completed on April 7, 2004, at 84.7 hours total time

since new. The airplane had _ reportedly flown

approximately 65 hours since the inspection. The

altimeter, static system, automatic pressure altitude

reporting equipment and ATC transponder were last

tested/certified on March 25, 2003. All applicable

service bulletins had been complied with as of the

April 2004 condition inspection.

The airplane was equipped with a 350 horsepower

Teledyne Continental Motors TSIO-550-EIB engine,

serial number 803149. The TSIO-550-E18 model was

a six-cylinder, 550 cubic inch displacement, twin

turbocharged, fuel injected, horizontally opposed

reciprocating engine. The engine was manufactured on

November 26, 2000, and installed on the accident

airplane on January 4, 2003. The engine had a total

time of 24.7 hours since new as of the April 2004

condition inspection. A review of the engine

maintenance records found no history of operational

problems.

The propeller was a_ three-bladed _ Ilartzell

PHC-H38YF-2RE/F7490, hub serial number HR138B.

The propeller was manufectured on October 4, 2000,

and was installed on the accident airplane on March

26, 2003. The propeller had accumulated 24.7 hours

since new as of the April 2004. A review of the

propeller maintenance records found no history of

operational problems

24a

A post-accident calculation of the airplane’s weight

and balance inaicated that it was under the

builder-specified maximum gross weight and within

the approved center-of-gravity range.

On May 28, 2001, the airplane was substantially

damaged during a forced landing following a loss of

engine power white in cruise flight. The aircraft was

repaired by the original builder and subsequently sold

to the accident pilot on April 8, 2004.

METEOROLOGICAL INFORMATION

There was an Automated Surface Cbserving System

(ASOS) station located at the Gerald R. Ford

International Airport, about 25 nm west-northwest of

the accident site. The following weather conditions

were recorded before and after the time of the

accident:

At 1256: Wind 240 degrees true at 25 knots, gusting to

29 knots; visibility 10 statute miles (sm); broken

ceiling at 2,200 feet above ground level} (agl), broken

ceiling at 4,500 feet agl; temperature 21 degrees

Celsius; dew point 15 degrees Celsius; altimeter

setting 29.43 inches of mercury; Remarks: peak wind

of 29 knots from 230 degrees true (recorded at 1256).

At 1356: Wind £'50 degrees true at 24 knots, gusting to

29 knots; visibility 10 sm; broken ceiling at 2,800 feet

agl (towering cumulus), broken ceiling at 8,000 feet

agl, broken ceiling at 16,000 feet agl; temperature 21

degrees Celsius; dew point 13 degrees Celsius;

altimeter setting 29.43 inches of mercury, Remarks:

peak wind of 29 knots from 240 degrees true (recorded

25a

at 1355), towering cumulus present northwest to

north.

At 1420: Wind 240 degrees true at 24 knots, gusting to

33 knots; visibility 10 sm; scattered clouds at 3,100

feet agl, broken ceiling at 18,000 feet agl; temperature

21 degrees Celsius; dew point 12 degrees Celsius;

altimeter setting 29.44 inches of mercury, Remarks:

peak wind of 33 knots from 250 degrees true (recorded

at 1415), cumulonimbus present distant east moving

northeast.

A Meteorological Impact Statement (MIS) was issued

by the Center Weather Service Unit located at the

Chicago Air Route Traffic Control Center. The MIS

was issued for planning air traffic control operations

and coordinating aircraft traffic flow. The statement

indicated scattered areas of rain showers with isolated

to widely scattered thunderstorms within the ZAU

control area. ‘Thunderstorm tops were stated to be

between 20,000 feet and 25,000 feet msl.

An AIRMET for turbulence was issued at 1105 and

was valid until 1600. The AIRMET' forecasted

occasional moderate turbulence below 9,000 feet. ms!

due to moderate northwesterly to westerly winds.

Convective SIGMET 47C was valid at the time of the

accident and noted a developing area of thunderstorms

moving from 260 degrees true at 35 knots, with tops

up to 29,000 feet msl.

Convective SIGMET 45C was valid at the time of the

accident and noted a line of thunderstorms 30 nm wide

moving from 270 degrees true at 30 knots, with tops

up to 28,000 feet msl.

26a

WRECKAGE AND IMPACT INFORMATION

Federal Aviation Administration (FAA) inspectors

performed the on-scene inspection of the wreckage.

A global positioning system (GSI) receiver recorded

the position of the main wreckage as 42-degrees

37.793-minutes north latitude, 85-degrees

03.632-minutes west longitude. The main wreckage

was found in a wooded area located about 1.5 nm west

of Vermontville, Michigan.

The main wreckage consisted of the fuselage, wings,

empennage, engine, and propeller. There was no

evidence of lateral wreckage propagation. There were

several tree branches surrounding the main wreckage,

consistent with the airplane traveling vertically

through trees prior to impact. The leading edges of

both wings were not deformed or crushed in the aft

direction. There was no evidence of either wing being

displaced in the aft direction. ‘he elevator

counterbalance weights were found separated and

embedded in the terrain directly below their respective

elevators. The lower fuselage was crushed upward,

uniformly along its length. The engine and propeller

were partially buried in the terrain. The distribution

of the wreckage was consistent with a= slightly

nose-low, wings level, vertical impact.

Aircraft debris was distributed around the main

wreckage up to 50 feet. All primary airframe

structural components, flight control surfaces,

powerplant components, and propeller blades were

present. Aileron flight control continuity was

confirmed from the control surfaces to the cockpit

side-sticks. Elevator and rudder flight contro!

27a

continuity could not be established due to damage.

Inspection of the recovered flight control components

did not exhibit any evidence of pre-impact malfunction.

The wing flaps and speed brakes were found retracted.

Damage to the nose and main landing gear was

consistent an extended landing gear position at the

time of impact.

The engine remained attached to its engine mounts

and the firewall. The propeller remained attached to

the engine propeller flange. All three propeller blades

remained attached to the hub assembly. One blade had

leading edge damage, chordwise _ scratching,

burnishing of the blade backs, and spanwise S-shape

bends. The other two blades were bent spanwise

opposite the direction of rotation.

MEDICAL AND PATHOLOGICAL INFORMATION

An autopsy was performed on the pilot and two

passengers on June 1, 2004, at the Sparrow Regional

Laboratories, Lansing, Michigan.

Toxicology samples for the pilot were submitted to the

FAA Civil Aeromedical Institute, Oklahoma City,

Oklahoma, and negative results were reported for all

tests performed.

TESTS AND RESEARCH

FAA handbook 7110.65, “Air Traffic Control”,

paragraph 2-6-4, “Weather and ChaffServices”, states

In part:

Issue pertinent intormation on observed/reported

weather or chaff areas. Provide radar navigation

28a

guidance and/or approve deviations around weather or

chaff areas when requested by the pilot.

* Issue weather and chaff information by defining the

area of coverage in terms of aziumuth (by referring the

12-hour clock) and distance from the aircraft or by

indicating the general width of the area of coverage in

terms of fixes or distance and direction from fixes.

* Issue the level of echo intensity when that

information is available

* When a deviation cannot be approved as requested

and the situation permits, suggest an alternative

course of action.

* In areas of significant weather, plan ahead and be

prepared to suggest, upon pilot request, the use of

alternative routes/altitudes.

* Weather significant to the safety of aircraft includes

such conditions as tornadoes, lines of thunderstorms,

embedded thunderstorms, large hail, wind shear,

microbursts, moderate to extreme _ turbulence

(including clear air turbulence), and light to severe

icing.

During an interview of the ZOB Jackson controller, the

controller was asked what he meant by telling the pilot

to proceed direct Milwaukee when able. The ZOB

controller responded that he believed it was better to

allow the pilot go on course and give the ZAU center

control for possible deviations around any weather

that they were showing on their displays. The ZOB

controller confirmed that he saw weather about 8-10

minutes ahead of the accident airplane’ and

29a

acknowledged that the LAN controller had placed the

airplane on the 270 degree heading to avoid weather.

The ZOB controller stated he generally allows pilots to

make any weather deviations based ..1 the weather

information that he relays. When asked to clarify why

he believed the pilot could deviate around weather on

his own after the LAN controller initiated the 270

degree heading to avoid weather, he responded that he

was allowing the pilot to make his own decisions

regarding weather.

Weather intensity and its NWS category is depicted on

ARTCC controller displays by shade and type of

shading: medium blue (level 2, light to moderate),

crosshatched blue and cyan (level 3-4, strong), and

solid cyan (level 5-6, intense to extreme).

During a post-accident interview, the ZAU controller

stated that there were three levels of weather depicted

on a scope: “light green” represented rain, “dark green”

represented heavier rain, and a “checkerboard pattern”

indicated the heaviest precipitation. The ZAU

controller further stated that “light green” areas are

level 1 weather or less, “dark green” represents levels

2 and 3, and the “checkerboard pattern” indicates level

3 or above.

ADDITIONAL DATA/INFORMATION

Parties to the investigation included the FAA,

National Air Traffic Controllers Association (NATCA),

and Lancair Internationa! Inc.

3U0a

Factual Report Aviation - Cont

|\See fold-out, next 3 pages}

NTSBID: CHIO4LA129

Occurrence Date: 5/31/2004

Occurrence Type: Accident |

Landing Facility/Approach Information

Airport Name [Aron 10 Airport Elevation | Runway Used] Runway Length | Runway Width

| Ft MSL} NA | |

! wis ices aiiadaidel Aciiiianiamicemedanal —

| Runway Surface Type

— = —<- = ——— —— ae — --_e- ——

Runway Surface Condition

Type Instrument Approach: NONE

VFR Approach/Landing: None wa

Aircraft information __ ; a

Aircraft Manufacturer Model/Series Serial Number

Hall Lancair IV-P LIV-363

Airworthiness Certificates): Experimental (Special)

——_ ed

Landing Gear Type: _ Retractable - Tricycle

Homebuill Aircraft? Yes | Number of Seats) 4 | Certified Max Gross Wi 3700 LBS | Number of Engines: 4

Engine Type Engine Manufacturer Model/Series Rated Power: |

Reciprocating a. ore Teledyne Continental TSIO-550-E1B 350 HP

- Aircraft Inspection Information

Type of Last Inspection Date of Last Inspection | Time Since Last nspection | Airframe Total Time |

Annual 4/7/2004 65 Hours | 150 Hours |

- Emergency Locator Transmitter (ELT) Information “|

ELT Installea? Yes ELT Operated? No ELT Aided in Locating Accident Site? No ij

Owner/Operator Information

Registered Aircraft Owner | Street Address : ee

3401 Berry Road

Ward Synthesis, Inc City

Se

Street Address

-— State | Zip Code

| Vii_| 48198

| _Same as Registered Aircraft Owner an

| City State Zip Code

i }

{

{

Operator of Aircraft

Same As Reg'd Aircraft Owner

ees ae |

| Operator Des gnator Code

—— ot

Operator Does Business As

- Type of U.S. Certificate(s) Held: None

Aur Carnes Operating Certificate(s)

- - —

Operating Cerificate | Operator Certificate

——————— oe ——— -— —_—— - - rr

Regulation Fight Conducted Under. Part 91° Genera! Aviation

Type of Flight Operation Conducted Business

VACTIAL DEPART. AVIATION Page 2

{RANG

NTSB ID:

CHI04LA129

National Tra orta pn Safety Board

FACTH bREPORT Occurrence Date: 5/31/2004

AY: N Occurrence Type: Accident

First Pilot Information

Name City State | Date of Birth | Age

Allen C Ward Ypsilanti MI On File 92

Sex: MM} Seat Occupied: | eff Principal Profession Unknown Certificate Number: On File

Certificate(s) Private

Airplane Rating(s):

Single-engine Land

Rotorcraft/Glider/LTA:

None

Instrument Rating(s) 9; nian,

Instructor Rating(s): None

Type Rating/Endorsement for Accident/Incident Aircraft? nyo

Current Biennial Flight Review? 5/29/2001

Medica! Cert.: Class 3

Medical Cert. Status: Valid Medical--w/ waivers/im.

Date of Last Medica! Exam: 42/6/2002

- Flight Time Matrix | A"Ac | [MPs Penile Pre Night PB ap Rotorcraft | Glicer Lapel

- Total Time 1074 | 65 1074 414 107

i Pliotin Command{PIC) | 1000 1000

' Instructor

' Last 90 Days 48 48 2 0

Last 30 Days 0 ‘ 0 0 0

Last 24 Hours 0 {| 0 0 0

Seatbelt Used? Yes Shoulder Harness Used? Yes Toxicology Performed? Yes |Second Pilot? No

Flight Planiitinerary

Type of Flight Plan Filed icp |

Departure Point | | State | Arrport Identifier] Departure Time | Tune Zone

Ypsilanti MI YIP 1330 EDT

Destination | State | Airport Identifier

Billings MT BIL

Type of Clearance IFR_

Type of Airspace’ Gag &

Weather Information

—- —~

Source of Priefirg ,,

49 Nationa! Weather Service

Method of Briefing Telephone

MaewTe sat NOrNnaAnwTr

eUreawusve:

National Tra sports ty

NTSB ID:

CHI04LA129

FACTBABBEPORT — | Occurrence Date 5/31/2004

AVEATION Occurrence Type: Accident

Weather Information _

WOF 1D | Observation Time | Time Zone | WOF Elevation | WOF Distance From Accident Site | Direction From Accident Site

GRR 1356 EDT 794 Ft. MSL 25 NM 300 Deg. Mag.

Sky/Lowest Cloud Condition: Ft. AGL | Condition of Light! Day

Lowest Ceiling: Broken 2800 Ft AGL | Visibility: 10 SM | Altimeter 29 43 "Hg

Temperature: 24 °C] Dew Point: 13 °C | Wind Direction: 250 Density Altitude: 2250 Ft.

Wing Speed: 24 Gusts: 29 Weather Condtions at Accident Site: Instrument Conditions

Vistoility (RVR): Ft. | Visibility (RVV) SM | Intensity of Precipitation:

Restrictions to Visibility:

Type of Precipitation:

Accident Information

Aircraft Damage: Destroyed

Aircraft Fire. None

Aircraft Explosion None

Classification: U.S. Registered/U.S. Soil

- Injury Summary Matnix

Fatal

Serious

Minor None

TOTAL

First Pilot

1

_—

Second Pilot

Student Pilot

Flight Instructor

Check Pilot

Flight Engineer

Cabin Attendants

Other Crew

Passengers

- TOTAL ABOARD -

Other Ground

- GRANO TOTAL -

Te wr). eR A mn

3la

Administrative Information

Investigator-In-Charge (JIC)

Andrew T Fox

Additional Persons Participating in This

Accident/Incident Investigation:

Dan Diggins

Inspector

Federa) Aviation Administration

Washington, DC

Barry Anshell

Controller

National Air Traffic Controllers Association

Chicago, IL

Robert Wolstenhorne

Technical Represenative

Lancair International] Inc.

Redmond, OR

Carolyn B. Remol

Inspector

Federal Aviation Administration

Grand Rapids, MI 49588

32a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No.: 06-15443

[Dated March 20, 2007]

UNITED STATES OF AMERICA,

Defendant.

SUSAN HERTZ, Individually andas_)

Personal Representative of the )

Estate of ROGER B. HERTZ, )

Deceased, )

)

Plaintiff, )

)

- against- )

)

)

)

)

)

AFFIDAVIT OF SUSAN HERTZ

SUSAN HERTZ, being duly sworn, deposes and

says:

1. fam the spouse of the decedent, Roger B. Hertz,

one of the passengers killed on board a Hall Lancair

IV-P experimental home-built aircraft, FAA

registration number N707SH, which crashed near

33a

Vermontville, Michigan on Mav 31, 2004. submit this

affidavit in further opposition to the motion to dismiss

served by the defendant United “tates of America (the

“United States”). I am also the Personal

Representative of my husband’s estate. A copy of the

letter appointing me Personal Representative is

attached hereto.

2. My husband ana ft were married on August 10,

1991. From the time of our marriage until Roger’s

death on May 31, 2004, we continuously resided

together in Burlington, Ontario, Canada. My husband

and I have two (2) children, Israel and Ariella Hertz,

ages 2 and 1 respectively at the time of my husband’s

death. I am a citizen and resident of Burlington,

Ontario, Canada and at the time of his death, my

husband was also a citizen and resident of Canada.

3. On May 31, 2004 at approximately 10:00 p.m.

local police officers from the Burlington, Ontario police

department came to my home and advised me that my

husband Roger had been killed in an airplane crash’

This was the first that had learned that my husband

had died.

4. My husband’s body was not released until

approximately one (1) week after his death and his

funeral was held on June 9, 2004. From the time of his

death until well after my husband's funeral, I did not

discuss the facts of the accident with anyone. During

this time, I was in a state of shock at the loss of my

husband. ther than directing the _ funeral

arrangements, I was unable to care for myself or my

' Roger was traveling on business at the time of his death

toad

34a

children. Family members, including my sister, mother

and my husband’s mother helped care for me and my

children. I was unable to eat having lost approximately

12 pounds in the weeks after Roger’s death. Also, I was

not aware of any facts surrounding the crash

whatsoever, except that the aircraft was a home-built

aircraft. Neither my family or trends discussed the

accident with me.

5. On June 25, 2004, on my own initiative, 1

contacted Andrew T. Fox, the National Transportation

Safety Board’s (“NTSB”) Investigator-in-Charge

(“TIC”) of the accident investigation as I wanted to

learn of the facts surrounding my husband’s death. I

haa been provided Mr. Fox’s name by one of the local

police officers who advised me that Mr. Fox was in

charge of the accident investigation. At no time prior

to this conversation did I have any contact with

anyone from or associated with the N’T'SB nor did the

NTSB contact me. In addition, other than very limited

discussions with the local police department in

Burlington, Ontario, and the local police department

in Vermontville, Michigan, I had no discussions with

anyone concerning the accident or the investigation

into same. My conversations with police department

personnel were limited to my husband Roger, the fact

that he died in the crash, as well as making

arrangements for the release of his remains. Not one

of these conversations had anything to do with the

cause of the accident because the accident

investigation was being conducted exclusively by Mr.

Fox and the NTSB.

6. My conversation with Ms. Fox on June 25, 2004

lasted for eleven (11) minutes. This was the only time

that J spoke with anyone from the NTSB concerning

35a

the accident investigation. A copy of my telephone

records reflecting this eleven (11) minute conversation

with Mr. Fox is also attached hereto.

7. It was during tats conversation that I learned,

for the first time, that the NTSB believed that the

cause of the accident was related to air traffic

controller negligence. Indeed, since I knew that the

aircraft was home built, [had simply assumed that the

accident was related to the aircraft itself.

§. During our conversation, Mr. Fox and I discussed

the route of flight as well as the fact that the aircraft

entered a “flat spin” prior to the crash. It was at this

time that relatively “out of the blue”, Mr. Fox advised

that he will be talking to everyone at air traffic control

concerning the accident. I asked him what he meant by

this, and whether he believed that air traffic control

played a part in the crash. Mr. Fox then advised me to

my surprise that he had very serious concerns

regarding air traffic control and he left me with the

clear impression that the conduct of air traffic control

caused the accident.

9. As aforementioned, at no time prior to my

conversation with Mr. Fox was I aware of any facts

whatsoever that indicated that air traffic control was

somehow responsible for the accident. Neither | or

anyone on my behalf was a party to the NYTSB’s

accident investigation and I did not have access to my

information that potentially implicated the failures of

air traffic control as a cause of the accident. My

conversation with Mr. Fox on June 25, 2004 was the

only conversation that I ever had with anyone from the

NTSB.

36a

10. In July 2004, Sheldon L. Miller, Esq., of the law

firm Sheldon L. Miller & Associates, as well as Linda

Atkinson Muller, Esq., of the law firm Atkinson,

Petruska, Kozma, Hart PC (collectively referred herein

as “Prior Michigan Counsel”) were retained to

prosecute any and al! causes of action against any

entity responsible for the death of my husband,

including the United States. In or about September

2006, | discharged Prior Michigan Counsel, and on

October 26, 2006, I retained the law firm of

Baumeister & Samuels, P.C. to prosecute any and all

causes of action against any entity as a result of or in

connection with the death of my husband.

Further affiant sayeth not.

Dated: March 20, 2007 /s/

SUSAN HERTZ

Sworn to before me this

20" day of March 2007.

/s/

Notary Public

37a

ATTACHMENT 1

TO EXHIBIT B

pved, SCAO OSM CODF: LET

STATE OF MICHIGAN PROBATE

COURT COUNTY OF EATON

LETTERS OF AUTHORITY FOR

PERSONAL REPRESENTATIVE

File No. 05-39159-DE

Estate of Roger Barry Hertz, Deceased

TO: Name, address, and telephone no.

Susan Hertz

5230 Rome Crescent

Burlington, Ontario L.7L7B7

(905) 331-9934

You have been appointed and qualified as personal

representative of the estate on 02/28/2005. You are

authorized to do and perform all acts authorized by

law except as to the following:

{ | Real estate or ownership interests in a business

entity excluded from your responsibilities in your

acceptance of appointment

|] Restrictions and limitations:

|| These letters expire: no expiration date

02/28/2005 | | TO

Date Judge (formal proceedings)/Register

(auformal proceedings) Bar no.

SEE NOTICE OF DUTIES ON SECOND PAGE.

The Findling Law Firm

Darren Findling P51350

Attorney name (type or print) Bar no.

415 5. West St., Suite 200 _

Address

Royal Oak, MI 48067 (248) 399-3300

City, state, zip ‘Telephone no.

I certify that I have compared this copy with the

original on file and that it is a correct copy of the

original and that these letters are in full force and

effect as of the date on the letters

02-28-2005 |

Date Register

Do not write below this line - For court use only

MCL 700.3103, MCL 700.3307, MCL 700.3414, MCL

700.3504, MCL 700.3601, MCR 5.202(A), MCR 5.206,

MCR 5.307, MCR 5.310

39a

ATTACHMENT 2

TO EXHIBIT B

sell Account Summary

|See fold-out exhibit, next 2 pages

40a

APPENDIX F

CLAIM FOR DAMAGE, INJURY, OR DEATH

INSTRUCTIONS: Please read carefully the

instructions on the _ reverse side and_ supply

information requested on both sides of this form. Use

additional sheet(s) if necessary. See reverse side for

additional instructions.

FORM APPROVED

OMB NO.

1105-0008

1. Submit To Appropriate Federai Agency:

Assistant Chief Counsel, Litigation Division, AGC-400

Federal Aviation Administration

800 Independence Avenue, SW

Washington, DC 20591

2. Name, Address of claimant and claimant’s personal

representative, if any. (See instructions on reverse.)

(Number, Street, City, State and Zip Code) Estate of

Roger Barry Hertz, deceased, by and through his

personal representative, Susan Hertz

3. TYPE OF EMPLOYMENT

O MILITARY ® CIVILIAN

4. DATE OF BIRTH

2/14/1968

4la

or

. MARITAL STATUS

Married

a

~~

. DATE AND DAY OF ACCIDENT

5/31/2004. Monday

>

~s

. TIME (A.M. OR P.M.)

2:00 P.M.

8. Basis of Claim (State in detail the known facts and

circumstances attending the damage, injury, or death,

identifying persons and property involved, the place of

occurrence and the cause thereof. Use additional pages

if necessary.)

See attached. Addendum to Claim for Damage,

Injury or Death

9, PROPERTY DAMAGE

NAME AND ADDRESS OF OWNER, IF OTHER

THAN CLAIMANT (Number, Street, City, State, and

Zip Code).

BRIEFLY DESCRIBE THE PROPERTY, NATURE

AND EXTENT OF DAMAGE AND THE LOCATION

WHERE PROPERTY MAY BE INSPECTED.

(See Instructions on reverse side.)

LO. PERSONAL INJURY/WRONGEFUL DEATH

STATE NATURE AND EXTENT OF EACH INJURY

OR CAUSE OF DEATH, WHICH FORMS THE BASIS

OF THE CLAIM. IF OTHER THAN CLAIMANT,

42a

STATE NAME OF INJURED PERSON OR

DECEDENT

See attached, Addendum to Claim for Damage

1! WITNESSES

NAME

See attached, Addendum to Claim for Damage

ADDRESS (Number, Street, City, State, and Zip

(lode

See attached. Addendum to Claim for Damage

12. (See instructions on reverse.)

AMOUNT OF CLAIM (in dollars)

L2a. PROPERTY DAMAGE

12b. PERSONAL INJURY

$1,.000.000.00

2c. WRONGFUL DEATH

$8 500,000.00

12d. TC YTAL (Failure to specify may cause forfeiture of

your rights.)

$9 500,000.00

1 CERTIFY THAT THE AMOUNT OF CLAIM

COVERS ONLY DAMAGES AND INJURIES

CAUSED BY THE INCIDENT ABOVE AND

AGREE TO ACCEPT SAID AMOUN'TT IN FULL

43a

SATISFACTION AND FINAL SETTLEMENT OF

THIS CLAIM

13a. SIGNATURE OF CLAIMANT (See instructions

on reverse side.)

/s/

13b. Phone number of person signing form

905-331-9934

14. DATE OF SIGNATURE

May 9/06

CIVIL PENALTY FOR PRESENTING

FRAUDULENT CLAIM

The claimant shall forfeit and pay to the United States

the sum of $2,000 plus double the amount of damages

sustained by the United States. (See 31 U.S.C. 3729.)

CRIMINAL PENALTY FOR PRESENTING

FRAUDULENT CLAIM OR MAKING

FALSE STATEMENTS

Fine of not more than $10,000 or imprisonment for not

more than 5 years or both. (See 18 U.S.C. 287, 1001.)

95-1090

NSN 7540-00-634-4046

STANDARD FORM 95

PRESCRIBED BY DEPT. OF JUSTICE

28 CFR 14.2

44a

INSURANCE COVERAGE

In order that subrogation claims may be adjudicated,

it is essential that the claimant provide the following

information regarding the insurance coverage of his

vehicle or property.

15. Do your carry accident insurance? 0 Yes If yes, give

name and address of insurance company (Number,

Street, City, State, and Zip Code) and policy number.

® No

16. Have you filed a claim on your insurance carrier in

this instance, and if so, is it full coverage or

deductible?

Oo Full Coverage G

&® No Deductible U

17. If deductible, state amount.

18. If a claim has been filed with your carrier, what

action has your insurer taken or proposed to take with

reference to your claim? (It is necessary that you

ascertain these facts.)

19. Do you carry public lability and property damage

insurance? 0 Yes If yes, give name and address of

insurance carrier (Number, Street, City, State, and Zip

Code). (1 No

INSTRUCTIONS

Claims presented under the Federal Tort Claims

Act should be submitted directly to the

“appropriate Federal agency” whose employee(s)

was involved in the incident. If the incident

45a

involves more than one claimant, each claimant

should submit a separate claim form.

Complete all items -

Insert the word NONE where applicable.

A CLAIM SHALL BE DEEMED TO HAVE BEEN

PRESENTED WHEN A FEDERAL AGENCY

RECEIVES FROM A CLAIMANT, HIS DULY

AUTHORIZED AGENT, OR LEGAL

REPRESENTATIVE, AN EXECUTED STANDARD

FROM 95 OR OTHER WRITTEN NOTIFICATION OF

AN INCIDENT, ACCOMPANIED BY A CLAIM FOR

MONEY DAMAGES IN A SUM CERTAIN FOR

INJURY TO OR LOSS OF PROPERTY, PERSONAL

INJURY, OR DEATH ALLEGED TO HAVE

OCCURRED BY REASON OF THE INCIDENT. THE

CLAIM MUST BE PRESENTED TO THE

APPROPRIATE FEDERAL AGENCY WITHIN TWO

YEARS AFTER THE CLAIM ACCRUES.

Failure to completely execute this form or to

supply the requested material within two years

from the date the claim accrued may render

your claim invalid. A claim is deemed presented

when it is received by the appropriate agency,

not when it is mailed.

If instruction is needed in completing this form, the

agency listed in item #1 on the reverse side may be

contacted. Complete regulations pertaining to claims

asserted under the Federal Tort Claims Act can be

found in Title 28, Code of Federal Regulations, Part

.4. Many agencies have published supplementing

regulations. If more than one agency is involved,

please state each agency.

46a

The claim may be filed by a duly authorized agent or

other legal representative, provided evidence

satisfactory to the Government is submitted with the

claim establishing express authority to act for the

claimant. A claim presented by an agent or legal

representative must be presented in the name of the

claimant. If the claim is signed by the agent or legal

representative, it must show the title or legal capacity

of the person signing and be accompanied by evidence

of his/her authority to present a claim on behalf of the

claimant as agent, executor, administrator, parent,

guardian or other representative.

If claimant intends to file for both personal injury and

property damage, the amount for each must be shown

in item #12 of this form.

The amount claimed should be substantiated by

competent evidence as follows:

(a) In support of the claim for personal injury or

death, the claimant should submit a written report by

the attending physician, showing the nature and

extent of injury, the nature and extent of treacment,

the degree of permanent disability, if any, the

prognosis, and the period of hospitalization, or

incapacitation, attaching itemized bills for medical,

hospital, or burial expenses actually incurred.

(6) In support of claims for damage to property,

which has been or can be economically repaired, the

claimant should submit at least two itemized signed

statements or estimates by reliable, disinterested

concerns, or, if payment has been made, the itemized

signed receipts evidencing payment.

Ala

(c) In support of claims for damages to property

which 1s not economically repairable, or if the property

is lost or destroyed, the claimant should submit

statements as to the original cost of the property, the

date of purchase, and the value of the property, both

before and after the accident. Such statements should

be by disinterested competent persons, preferably

reputable dealers or officials familiar with the type of

property damaged, or by two or more competitive

bidders, and should be certified as being just and

correct.

(d) Failure to specify a sum certain will

render your claim invalid and may result in

forfeiture of your rights.

PRIVACY ACT NOTICE

This Notice is provided in accordance with the Privacy

Act, 5 U.S.C. 552a(e)(3), and concerns the information

requested in the letter to which this Notice is attached.

A. Authority: The requested information is

solicited pursuant to one or more of the

following: 5 U.S.C. 301, 28 U.S.C. 501 et seq., 28

U.S.C. 2671 et seq., 28 C.F.R. Part 14.

B. Principal Purpose: The information requested 1s

to be used in evaluating claims.

C. Routine Us. See the Notices of Systems of

Records for the agency to whom you are

submitting this form for this information.

D. Effect of Failure to Respond: Disclosure 1s

voluntary. However, failure to supply the

48a

requested information or to execute the form

may render your claim “invalid”.

PAPERWORK REDUCTION ACT NOTICE

This net.ee is solely for the purpose of the Paperwork

Reduction Act, 44 U.S.C. 3501. Public reporting

burden for this collection of information is estimated to

average 6 hours per response, including the time for

reviesying instructions, searching existing data

sources, gathering and maintaining the data needed,

and completing and reviewing the collection of

information. Send comments regarding this burden

estimate or any other aspect of this collection of

information, including suggestions for reducing this

burden, to the Director, Torts Branch, Attention:

Paperwork Reduction Staff, Civil Division, U.S.

Department of Justice, Washington, D.C. 20530 or to

the Office of Management and Budget. Do not mail

completed form(s) to these addresses.

SF 95 BACK

49a

ADDENDUM TO CLAIM FOR

DAMAGE, INJURY OR DEATH

Estate of Roger Hertz, Deceased,

by his Personal Representative Susan Hertz,

Heirs and Survivors of Roger Hertz

In Re: Aircraft Accident near

Vermontville, Michigan on May 31, 2004,

involving the aircraft federally

registered as N707SH

8. Basis of Claim

On May 31, 2004, a Hall Lancair IV-P aircraft,

federally registered as N7O7SH, crashed near

Vermontville, Michigan killing all three persons

aboard, including the pilot, Allen C. Ward. This crash

occurred when the accident airplane flew through into

an area of adverse (extreme) weather and

subsequently entered a flat spin causing it to impact

the terrain. The accident airplane was on an

instrument flight rules (IFR) flight plan and under

Federal Aviation administration (FAA) radar control

from departure through the time of impact with the

ground.

The investigation: date as conducted by the National

Transportation *utety Board, the Federal Aviation

Administration, additional parties to the National

Transportation Safety Board, Sheldon Miller &

Associates, and The Law Offices of Mark Kelley

Schwartz, P.C., demonstrate, without limitation, the

following factual bases for this claim.

50a

The FAA LAN Automated Fhght Service

Station (AFSS) failed to provide the pilot of the

accident aircraft with complete and accurate

weather information, including notification of

SIGMET 43 Charlie;

The FAA Controller at Lansing Approach (LAN)

~was informed by the pilot that the accident

aircraft was not equipped with weather radar

and failed to properly, adequately and clearly

pass along that information on at least one

occasion to the other controller;

The FAA Cleveland Air Route Traffic Control

Center (ZOB) — Jackson Sector, upon receiving

the handoff from the LAN controller failed to

advise the pilot of the accident aircraft of the

adverse weather that existed along his route of

flight;

The FAA Cleveland Air Route Traffic Control

Center (ZOB) — Jackson Sector Controller

cleared the accident aircraft to an en-route fix

(MKE) which placed the accident aircraft’s

route of flight directly through adverse weather;

The FAA Cleveland Air Route Traffic Control]

Center (ZOB) — Jackson Sector Controller failed

to adequately monitor, observe, and perform the

necessary functions of his job duties in

controlling the accident aircraft and providing

weather services;

The FAA Cleveland Air Route Traftic Control

Center (ZOB) — Jackson Sector Controller failed

to provide any weather information (including

5la

the severe weather in the accident aircraft’s

ruute of flight) to the pilot of the accident

aircraft despite that information which was

depicted, or alternatively, should or could have

been depicted on his screen or on screens or

other display terminals readily available to him

for that purpose;

The FAA Cleveland Air Route Traffic Control

Center (ZOB) — Jackson Sector Controller,

knowing the type of aircraft and the weather

conditions in and around his area of control,

never inquired as to the weather avoidance

equipment aboard the accident aircraft;

The FAA Cleveland Air Route Traffic Control

Center (ZOB) — Jackson Sector Controller failed

to advise the FAA Chicago Air Route Traffic

Control Center (ZOA) Sparta Sector controller

of the accident aircraft’s request for deviation

around adverse weather;

The FAA Chicago Air Route Traffic Control

Center (ZOB) — Sparta Sector Controller failed

to adequately monitor, observe, and perform the

necessary functions of his job duties in

controlling the accident. aircraft and providing

weather services;

The FAA Chicago Air Route Traffic Control

Center (ZOA) Sparta Sector Controller knowing

the type of aircraft and the weather conditions

in and around his areas of control, never

inquired as to the weather avoidance equipment

aboard the accident aircraft, and,

52a

The FAA Chicago Air Route Traffic Control

Center (ZOA) Sparta Sector Controller failed to

recognize that the accident aircraft’s route of

flight placed it directly into an area of adverse

weather.

See further, the attached National Transportation

Safety Board Report and Docket at Exhibit 1.

As set forth, in relevant part, in the probable cause

determination made by the National Transportation

Safety Board:

The airplane flew into a thunderstorm during

cruise flight and subsequently entered a flat

spin until impact with terrain. The airplane had

been given a heading to avoid the adverse

weather by Lansing approach control. During

transfer of contro! between Lansing approach

and Cleveland Center, the Cleveland controller

was advised that the aircraft had been given a

heading to avoid the adverse weather. After the

handoff, the Cleveland controller instructed the

pilot to precede direct to an in route fix when

able, but did not provide any information about

radar-observed weather ahead of the aircraft.

The Chicago Center controller who next handled

the airplane was briefed that the airplane was

proceeding direct to the in route fix and had not

requested any weather deviations. About seven

minutes after the handoff between Cleveland

and Chicago centers, the pilot transmitted,

“center this is uh 707SH what do you show us in

up here?" Aircraft and weather radar data

showed the accident airplane flew into an area

of level six precipitation (extreme weather) prior

53a

to a rapid loss of altitude. Several witnesses

repurted first hearing the sound of the revving

aircrafl engine before seeing the airplane

descending rapidly in a spiraling descent. A

pilot-rated witness reported that the airplane

was ina “flat spin” before impacting the terrain.

OK

The National Transportation Safety Board

determines the probable cause of this accident

as follows. The Air Route Traffic Control Center

controllers not providing adverse weather

avoidance assistance as required by FAA

directives, resulting in the airplane flying into

a thunderstorm and the pilot not been able to

maintain aircraft control. A factor to the

accident was the thunderstorm.

As a result of aforesaid facts, and without limitation,

the following negligent and grossly negligent acts and

omissions are claimed. The FAA controllers and

personnel were both negligent and grossly negligent in

the following manner:

By allowing the accident aircraft to enter into

the area of adverse and extreme weather

conditions,

By failing to warn the aircraft of the adverse

and extreme weather conditions about which it

was to enter or along its route of flight;

By tuiling to abide by the pilot’s request for

weather avoidance;

54a

By failing to make adequate inquiry as to the

existence and type of weather avoidance aboard

the accident aircraft;

By failing to provide vectors or alternate

courses to the accident aircraft to avoid the

adverse and extreme weather;

By giving the pilot vectors and courses which

would take the accident aircraft directly

through an area of adverse and extreme

weather;

By failing to communicate to other controllers

the pilot’s request for weather deviations;

By failing to abide by the ATC Manual, FAA

Handbook, FAA Practices, AA Procedures and

FAA Directives and Studies.

By other conduct, or by omission of such

conduct, as more fully and completely set forth

in the National ‘l'ransportation Safety Board

Report and the docket, including factual

statements made by parties, groups (e.g, Air

Traffic and Meteorology), committees, witnesses

and the involved FAA personnel.

10. Nature and Extent of Injury that Forms the

Basis of the Claim.

As a result of the negligence, gross negligence and

other wrongful conduct alleged, the Estate of Roger

Hertz, Deceased, by and through his Personal

Representative, Susan Hertz, and the Survivors and

Heirs of Roger Hertz, claim the following, without

55a

limitation, economic losses in past, present and future;

pain anu suffering damages in the past, present and

future; burial and medical expenses in the past,

present and future; conscious knowledge of impending

death; conscious pain and suffering in the past present

and future; emotional pain and anguish in the past,

present and future; loss of services in the past, present

and future; loss of support in the past, present and

future, loss of enjoyment of lif in the past, present

and future; loss of inheritance in the past, present and

future; loss of consortium in the past, present and

future; fright, terror, shock and mortification in the

past, present and future; exemplary damages in the

past present and future, attorneys’ fees, costs and

expenses in the past, present and future; as well as all

other damages, reparations and _ recoveries as

permitted by applicable law.

Biographical Information Pertinent to the

Nature and Extent of the Injury

Dr. Roger Hertz was a man with a glowing future. On

May 31, 2004, the date of his death, he looked forward

to a long and fulfilling life, in which he would be

gainfully employed.

Education

Dr. Hertz completed high school in Saskatoon,

Saskatchewan I 1984. Thereafter he briefly attended

Canadian Bible College, but then attended the

University of Saskatchewan, graduating first in his

class, with a Bachelor of Science in mechanical

engineering. He proceeded to the University of Toronto

Engineering School and gained his Ph.D. in aerospace

engineering.

56a

Employment

After receiving his Ph.D., Dr. Ward Hertz joined FRS

CRS Robotics Corp. and its successor company,

Thermo Electron. There, he was extremely successful

in all of his endeavors. Indeed, at the time of his death,

he was responsible for three engineering departments.

[lis forte was research and development, and in recent

months he had become acquainted with Alan Ward of

Ward Synthessis, Inc., Ypsilanti, Micigan.

Ward Synthesis, Inc. specialized in “lean product

development.” Dr. Hertz was enthusiastic about the

lean development concept. Thus, he gave notice to

Thermal Electronic, expecting to join Ward Synthesis

after May, 2004. His plan was to consult with Ward

Synthesis, Inc. as a _ self-employed businessman.

Toward that end, he signed a consulting contract with

Ward Synthesis. On May 31, 2004, Dr. Hertz was on

his way to the western United States to participate as

a consultant with Ward Synthesis

While working at Thermal Electronic, Dr. Hertz was

earning $130,000 per year. The consulting contract

with Ward Synthesis set forth his remuneration at

$2,400 per day. Dr. Hertz anticipated that he would

consult three days per week (on the road) and be home

four days per week

Dr. [lertz’s long term goal was to introduce Lean

Product Development to the pharmaceutical industry

lle planned to work in product development with Alan

Ward for a number of years and then to utilized hi:

expertise to revitalize other companies, tn which he

would acquire an ownership interest. Notably, Ward

Synthesis, was a dynamically growing organization. It

r

57a

had been given the go-ahead to completely re-engineer

Hewlett-Packard’s ink jet printer division, using the

methodologies and systematic approaches for lean

product development.

amily Loss

Dr. Hertz, tragically, left behind his two young

daughters and his wife. At the time of his demise, Dr.

Hertz was in excellent health with a radiant future to

forward to. In addition to his immediate family, he also

left behind his parents and three brothers. Dr. Hertz’s

wife is attempting to deal with her grief by attending

“COPING,” a grief center in Cambridge, Ontario. His

older daughter, Israel, three years old, is having

difficulty with the loss of her father, as she cannot

understand why her father was taken away.

Although Dr. Hertz’s services about the home included

a wide range of chores and services, the loss of these

services cannot compare to the emotional loss and the

financia! loss due to the loss of decades of significant

earnings.

In support of the claims made herein, the following

documents are attached:

A. Master Business License, Ontario Province.

B. Consulting contract with Ward Synthesis, Inc.

C. Professional resume.

D. Employment agreement between Hertz and

CRS Robotics Corp.

EK. Federal Tax Returns for Hertz 2000 through

2004

KF. Doctor of Philosophy, University of Toronto.

58a

G. Bachelor of Science, University of

Saskatchewan

H. Michigan Letter of Authority Appointing Susan

Hertz Personal Representative of the Estate of

Roger Hertz, dec’d

I. Certificate of Death

11. Witnesses

All persons, parties and entities noted in the reports

and docket of the National Transportation Safety

Board concerning this aircraft crash.

Personnel, record custodians, employees, agents,

contractors, servants of the Federal Aviation

Administration, Washington, D.C.

Personnel, record custodians, employees, agents,

contractors, servants of the Federal Aviation

Administration, Cleveland Air Route Traffic Control

Center, Oberlin, Ohio. —

Personnel, record custodians, employees, agents,

contractors, servants of the Federal Aviation

Administration, Chicago Air Route Traffic Control

Center, Aurora, Illinois.

Personnel, record custodians, employees, agents,

contractors, servants of the National Transportation

Safety Board, Washington, D.C.

Susan Hertz, Individually and as_ Personal

Representative of the Estate of AHen-C—Ward Roger

Hlertz, Deceased c/o Sheldon Miller & Associates, 3000

Town Center, Suite 1700, Southfield, MI, 48075.

BEST AVAILABLE COPY

59a

Record custodians, personnel, employees, agents of the

Faton County Sheriffs Department, 1025

Independence Blvd, Charlotte, Michigan.

Records custodians, personnel, employees, agents of

the Eaton County Medical Examiners Office, Eaton

County, Michigan.

Robert Leeser, M.D., and Records Custodian of Robert

Leeser, M.D., 123 Lansing Road, Charlotte, MI 48813

Record custodians, personnel, employees, agents,

franchises of Express Services, Inc. 8516 Northwest

Expressway, Oklahoma City, OK 73162

Hope Alexander, (Responsible for Wreckage

Preservation and Retention) 416 Augusta St, Elmore,

OH 43416.

Record custodians, former employees, contractors,

accountants, joint-venturers of Ward Synthesis, I[nc.,

Ypsilanti, Michigan.

Record custodians, former employees, contractors,

accountants of FRS CRS Robotics Corp. and its

successor company, Thermo Electron.

60a

Ontario

Master Business License

Date Issued: 2004-03-24

(yyyy-mm-dd)

Business Name and Mailing Address:

LEAN PRODUCT CONSULTING

424-2000 APPLEBY LINE

BURLINGTON ON L7L 7H7

Business

Address: SAME AS ABOVE

Telephone: (905) 331-9934 Ext:

Fax: (905) 315-8495

E-Mail:

Legal

Name(s): ROGER BARRY HERTZ

Type of

Legal Entity: SOLE PROPRIETORSHIP

Business Information

BUSINESS NAME REGISTRATION

Number

140349887

Eftective Date (yyyy-mm-dd)

2004-03-24

6la

Expiry Date (yyyy-mm-dd)

2009-03-23

Page 1 of 1

To the Client: When the Master Business License ts

presented to any Ontario business program, you are

not required to repeat information contained on this

licence. Each Ontario business program is required to

accept this licence when presented as part of its

registration process.

Call the Ontario Business Connccts Helpline at 1-800-

565-1921 or (416) 314-9151 or TDD (416) 326-8566 if

you have any problems.

To the Ontario business program: A client is not

required to repeat any information contained in this

licence in any other form used in your registration

process.

98/11

62a

Consulting Contract

Ward Synthesis Inc of Ypsilanti Michigan (hereinafter

called “WS]”) desire to utilize the professional and

expert assistance of Dr. Roger B. Hertz, President of

Lean Product Consulting of Burlington Ontario

(hereinafter called “the Consultant”) in the field or

fields in which the Consultant has_ professional

qualifications.

2.

Parties and Relationships

WSI is a an incorporated US business engaged in

management and engineering consulting services

that are directed toward improving the managerial,

operating, and economic performance of companies

by analyzing and resolving strategic and operating

problems in the area of product development,

research & development and engineering. The

Consultant is a person who by education, training

and experience is uniquely skilled in the provision

of the service required

Character and Extent of Services

It is the mutual intent of the parties that the

Consultant shall act strictly in a professional

consulting capacity as an independent contractor

for the purposes and in all situations and shall not

be considered an employee of WSI.

WS] and the Consultant will mutually determine of

the manner and selection of methods with respect

to rendering the OConsultant’s — professional

consulting services to WSI.

The Consultant agrees to perform his activities in

accordance witk the highest and best state of the

art in the profession.

b)

Cc)

A.

a)

b)

Cc)

63a

Period of Service and Termination

The period of service by the Consultant under this

agreement shall be from April 1, 2004 through

March 31, 2005 and may be renewed upon the

mutual agreement of the parties hereto.

Either WSI or the Consultant may terminate this

agreement by giving the other party 30 days’

written notice of intention of such action.

WSI reserves the right to halt or terminate the

conduct of a seminar-workshop by the Consultant

without prior notice or claim for additional

compensation should, in the opinion of WSI, such

conduct not be in the best interest of WSI.

Compensation

Upon the Consultant’s acceptance hereof, WSI

agrees to pay the Consultant according to the

following schedule:

t. $1,400 (US) per day or 62.5% of total WSI

consulting fee, whichever is greater, while

on the premises of a paying WSI customer.

In the event that WSI desires, and it is mutually

agreed to by the Consultant, the Consultant’s

services may be used in activities not specifically

identified in paragraph 4(a). In such cases, WSI

agrees to pay the Consultant on the basis of the

following schedule

i. Intellectual property development at $60

(US) per hour.

ii. The Consultant will not charge hourly fee for

mutually agreed training activities.

In the event of special circumstances, variations to

the fee schedule of paragraphs 4(a) and 4(b) will be

allowed as mutually agreed in writing by the

parties hereto.

5.

64a

Notification

The Consultant will be notified by WSI in writing

to begin his’ participation in_ specific

sem.nar-workshops and/or consulting assignments

to which the fee schedule of paragraphs 4(a) and

4(b) applies. Such notification will include a

statement of the time(s) and place(s) of the

intended seminar/consultation involvement with

other necessary information.

Expenses

The Consultant, as an independent contractor,

shall be responsible for any expenses incurred in

supporting chents. Reasonable expenses are those

the client will reimburse, and will be reimbursed to

the Consultant by WSI, including:

Commercial flights, economy class

seating.

il. Car rental, mid-size or below class of

vehicle.

lil. [fa personal vehicle is used, mileage ata

rate of $0.35 per mile.

iV Travel expenses, such as tolls & parking.

Vv. Accommodations at a mutually agreeable

hotel,

vi Meals.

V1. Supplies required to perform duties while

onsite

A copy of the receipts for reasonable expenses will

be provided to WSI by the Consultant upon

request. Other expenses should be agreed to in

advance.

Cc)

65a

Method of Payment

The Consultant shall be paid as provided for in

paragraphs 4(a) and 4(b) hereof, on the basis of a

properly executed “Invoice” form (sample attached).

The “Invoice” form is to be submitted at the end of

ach week that the consulting services are

performed. Exceptions to this arrangement are

allowed with the written approval of WSI.

Payment to the Consultant will be made by check,

delivered by mail postmarked no later than 60 days

subsequent to receipt of the “Invoice” form as

provided in paragraphs 7(a) and 7(b).

8. Copyrights

a)

The Consultant agrees that WST shall determine

the disposition of the title to and the rights under

any copyright secured by the Consultant on

copyrightable material first produced or composed

and delivered to WSI under this agreement. The

Consultant hereby grants to WSI a royalty-free,

nonexclusive, irrevocable license to reproduce.

translate, publish, use, and dispose of, and to

authorize other to do so, all copyrighted or

copyrightable work not first produced or composed

by the Consultant in the performance of this

agreement but which is incorporated into the

material furnished under this agreement, provided

that such license shall be only to the extent the

Consultant now has or prior to the completion or

final settlement of this agreement may acquire the

right to such license without becoming liable to pay

compensation to other solely because of such grant.

The Consultant agrees that he will not knowingly

include any copyrighted material in any written or

copyrightable material furnished or delivered

under this agreement without a license as provided

66a

in paragraph 8(a) hereof or without the consent of

the copyright owner, unless specific written

approval of WSI to the inclusion of such

copyrighted material is secured.

c) The Consultant agrees to report in writing to WS]

promptly and in reasonable detail any notice or

claim of copyright infringement received by the

Consultant with respect to any material under this

agreement.

9. Drawings, Designs, Specifications

a)

10.

a)

All drawings, sketches, designs, design data,

specifications, notebooks, technical and scientific

data, and all photographs, images, reports,

findings, recommendations, data, and memoranda

of every description relating thereto, as well as

copies of the foregoing, relating to the work

performed under this agreement or any part

thereof, shall be subject to he inspection of WSI at

all reasonable times; and the Consultant shall

afford WSI proper facilities for such inspection; and

further shall be the property of WSI and may be

used by WSI for any purpose whatsoever without

any claim on the part of the Consultant for

additional compensation, and subject to the right of

the Consultant to retain a copy of said material

shall be delivered to WSI or otherwise disposed of

by the Consultant, either as WSI may from time to

time direct during the progress of the work, on in

any event, as WSI shall direct upon the completion

or termination of this agreement

Confidentiality

It is understood that in the performance of his

duties, the Consultant will obtain information

about both WSI and WSI's clients, and that such

Gla

information may include financial data, client lists,

methods of operating, policy statements,

engineering data, and other confidential data.

b) The Consultant agrees to restrict his use of such

above-mentioned information to the performance of

his duties described in this agreement. ‘The

Consultant further agrees to return to WSI and to

WSI’s clients upon the completion of his duties any

and all documents (originals and copies) taken from

either organization to facilitate the performance of

duties described herein, and to secure such

material against theft by others.

11. Non-Competition

The Consultant agrees that he will not perform his

protessional services for any organization known to

the Consultant to be a client of WSI unless WSI has

employed the Consultant for the provision of such

services to the client while this agreement is in

affect. In addition, the Consultant will not perform

his professional services in the area of product

development consulting for non-WSI clients while

this agreement 1s in effect, or for a period of one

year after termination of the agreement.

12. Applicable Law

The parties agree that this agreement is to be

construed according to the laws of the State of

Michigan, USA. Under the laws of Michigan, this

type of engineering consulting services that the

Consultant will be engaged in does not require a

state license.

13. Assignment

WSI or the Consultant may not assign or transfer

this agreement, any interest therein or claim

68a

thereunder without the written approval of both

parties

14. Integration

This agreement, executed in duplicate, constitutes

the entire contract between the parties and may be

canceled, modified, or amended only by a written

supplemental document executed by each of the

parties hereto.

IN WITNESS WHEREOF, the parties hereto have

accepted and executed this agreement this 27th day

of May , 2004

/s/

Roger Hertz, Consultant

by: /s/ . (Witness)

(Authorized signatory)

/s/

Ward Synthesis Incorporated

HVa

Professional Resume

Roger B. Hertz, Ph.D.

5230 Rome Crescent

Burlington, Ontario, Canada

L7L-LB7

(905) 331-9934 (home)

(905) 541 -5004 (cel!)

roger hertz@thermo.com

Relevant Empleyment Experience

Thermo Electron, Laboratory Automation &

Integration, (formerly CRS Robotics

Corporation),

sJurlington, Ontario, Canada

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I2a

Dynacon Enterprises Ltd, Mississauga, Ontario,

Canada

Research Engineer (Part-Time)

September 1991 — December 1992

¢ Developed a computer-based simulation used to

verify control algorithms for a space-based

tracking antenna.

Education

1990-1998: Ph.D. in Aerospace Engineering,

University of Toronto, Ontario,

Canada

Fast-tracked directly from a Master’s

into Ph.D. program.

Thesis Title: “Kinematics and Design

of a Class of Parallel Manipulators”

1986 — 1990: Bachelor of Science in

Mechanical Engineering,

University of Saskatchewan, Canada

Graduated #1 in my class, with great

distinction.

Patents

R.B. Hertz and D.C McCrackin, Linear

Conveyer System, Application #09/870,075, May

30, 2001

HI. Haas, T.J. Jones, R.B. Hertz et. al., Modular

Drug Discovery'™ System, Application

#60/ 350,943. Jan 24, 2002.

S. Treadwell J. Cheung, R. Hertz, 1. Hatherley

and M. Riff, Robotic Device, US Industria!

Design Patent #484154 for the “Flip Mover’,

filed Jan 25, 2002, granted Dec 23, 2003.

73a

Selected Publications & Presentations

R.B. Wertz, “Lean I‘roduct Development

Implementation at Thermo Electron”. Workshop

talk given at the /nternational Association of

Product Development (LAPD) Workshop #41,

Nov 3-5, 2003, Boston, MA.

D.C. McCrackin and R.B. Hertz, “CRS

Dimension4 High-Speed Distributed Motion

System”, Robotics Today Online, First Quarter

2003, Volume 16, No. 1.

R.B. Hertz, “Practical Implementation of Lean

Product Development at Thermo CRS”. Invited

talk given at the First Lean Product

Development Conference, Oct. 22-23, 2002, Ann

Arbor, Michigan.

M. Peck. G. Rogers and R. Hertz, “Combining

Static Scheduling and Dynamic Rescheduling”,

poster session presented at IabAutomation

conference Jan 30, 2002.

R.B. Hertz and P.C. Hughes, “Kinematic

Analysis of a General Double-Tripod Parallel

Manipulator,” Mechanism and Machine Theory,

Vol. 33, No. 6, pp. 683-689, 1998.

Roger B. Hertz, Kinematics and Design of a

Class of Parallel Manipulators, Ph.D. Thesis,

University of Toronto, Aerospace Engineering,

Toronto, Ontario, Canada, Feb 1998.

R.B. Hertz and P.C. Hughes, “Kinematics and

design of a new. parallel’ industrial

manipulator,” in The Fifth National Applied

Mechanisms and Robotics Conference, Vol. 1,

(Cincinnati, Ohio), AMR9Y7-019, Oct 1997.

R.B. Hertz and P.C. Hughes, “Kinematic

analysis of a class of spatial parallel

manipulators with three degrees of freedom,” in

Design Engineering: Robotics: Kinematics,

74a

Dynamics and Controls, Vol. 72, (Minneapolis,

Minnesota), pp. 279-384, ASME, Sept 1994.

e RB. Hertz and P.C. Hughes, “Forward

kinematics of a 38-DOF variable-geometry-truss

manipulator,” in Computational Kinematics (J.

Angeles, G. Hommel, and P. Kovacs, eds.), pp.

241-250, Kluwer Academic Publishers, 1993.

e A. Durand, R. Hertz, D. Mitchell, and K.

Rezkallah, “Design and Analysis of a Modular

Micro-gravity Test Platform for Use Aboard the

NASA KC-1 35 Aircraft,” in Proceedings, Second

Workshop on Muicro-gravity Experimentation,

May, 1990.

Hobbies

Singing, mountain biking, hockey & guitar

References

Available Upon Request

75a

EMPLOYMEN'T AGREEMENT

THIS AGREEMENT is made as of the date set out

in Schedule A.

BETWEEN:

CRS ROBOTICS CORPORATION, a corporation

incorporated under the laws of the Province of

Ontario,

(the “Corporation”)

- and -

The Executive whose name appears in Schedule A

attached hereto

(the “Executive’’)

RECITALS:

A. The Corporation together with its subsidiaries

(collectively, the “CRS Group”) are involved in the

business of the design, manufacture and distribution

of advanced laboratory automation technology.

B. The Corporation and the Executive wish to enter

into this Agreement to set forth the rights and

obligations of each of them as regards the Executive’s

employment for their mutual benefit and to reflect the

nature of the Executive’s employment by a_ public

corporation.

NOW THEREFORE IN CONSIDERATION OF

THE MUTUAL COVENANTS AND

76a

AGREEMENTS CONTAINED IN THIS

AGREEMENT AND OTHER GOOD AND

VALUABLE CONSIDERATION (THE RECEIPT

AND SUFFICIENCY OF WHICH ARE HEREBY

ACKNOWLEDGED), THE CORPORATION AND

THE EXECUTIVE AGREE AS FOLLOWS:

}. Definitions

(a) In this Agreement,

“Adjusted Year of Employment” means the

period commencing on the date which is the

commencement of the Term as set out in

Schedule “A” and ending December 31, 2001.

“Agreement” means this Agreement and all

schedules attached to this agreement, in each

case as they may be amended or supplemented

from time to time;

“Board of Directors” means the Board of

Directors of the Corporation;

“Business Day” means any day, other than

Saturday, Sunday or any statutory holiday in

the Province of Ontario;

“Business of the Corporation” means the

design, manufacture and_ distribution of

advanced laboratory automation technology;

“Change of Control of the Corporation”

means the occurrence of a transaction or series

of transactions as a result of which the

Corporation becomes controlled by a Person; for

77a

the purpose of the foregoing, with any of its

affiliates, beneficially owns shares of the

Corporation carrying more than 50.01% of the

voting rights ordinarily exercisable at meetings

of shareholders of the Corporation, such rights

being sufficient to elect a majority of the

directors of the Corporation;

“Human Resource and Compensation

Committee” means the compensation

committee of the Board of Directors of the

Corporation;

“Competitive Business” means any aspect of

the following business carried on anywhere in

Canada, the United States, Europe, the United

Kingdom, Sweden, Norway and Japan; the

design, manufacture and _ distribution of

advanced laboratory automation technology or

any other technology, application or service

incidental to any of the foregoing;

“Confidential Information” means all

confidential or proprietary information,

Intellectual Property (including trade secrets)

and confidential facts relating to the business or

affairs of the Corporation or the CRS Group,

whether or not originated by the Executive

including, without limitation, work product

resulting from or related to work or projects

performed or to be performed by the

Corporation or the CRS Group, internal

personnel and financial information of the

Corporation or the CRS Group, vendor names

and other vendor information, purchasing and

internal cost information, service and

78a

operational manuals, the manner and method of

conducting the business of the Corporation or

the CRS Group, marketing and development

plans and agreements, price and cost data, price

and fee amounts, pricing and billing policies,

quoting procedures, marketing techniques,

methods of obtaining business, forecasts and

forecast assumptions and volumes, future plans

and potential strategies of the Corporation or

the CRS Group which have been or are being

discussed, ideas concerning proposed projects,

contracts and their contents, client services,

data provided by clients and the type, quantity

and specifications of products and services,

purchased, leased, licensed, engaged, employed

or received by the Corporation or the CRS

Group or by clients of the Corporation or the

CRS Group, business plans, customer, client

and vendor lists, business deals with any of

these, financing, acquisition, production,

development and distribution agreements and

budgets and investment opportunities and

structures;

“Disability” means the mental or physical

state of the Executive such that the Executive

qualifies for disability coverage as prescribed

under the Corporation’s disability plan as it

exists from time to time and the Executive is

unable to fulfil his obligations under this

Agreement either for any consecutive 180 day

period or for any period of 180 days (whether or

not consecutive) in any consecutive 365 day

period;

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“ESA” means the Employment Standards Act

(Ontario) as the same may be amended from

time to time and any successor legislation

thereto or similar legislation governing the

employment of the Executive;

“Intellectual Property” means all legally

recognized rights which result or derive from

the Executive’s services provided to the

Corporation or the CRS Group or with the

knowledge, use or incorporation of Confidential

Information, and includes but is not limited to

developments, inventions, designs, works of

authorship, improvements and ideas, whether

or not patentable or copyrightable, conceived or

made by the Executive (individually or in

collaboration with others) during the Term or

which result from or derive from the

Corporation's or the CRS Group’s resources or

which are reasonably related to the business of

the Corporation or the CRS Group.

“Just Cause” means: (i) the failure of the

Executive to properly carry out his material

duties after written notice by the Corporation of

the failure to do so (specifying the breach) and

an opportunity for the Executive to correct the

same within a reasonable time from the date of

receipt of such notice, (ji) theft, fraud,

dishonesty or misconduct by the Executive

involving the property, business or affairs of the

Corporation or the CRS Group or the carrying

out of the Executive’s matenal duties; or (it)

any breach or non-observance by the Executive

of any term of this Agreement;

S0a

“Person” means any individual, partnership,

limited partnership, joint venture, syndicate,

sole proprietorship, company or corporation

with or without share capital, unincorporated

association, trust, trustee, executor,

administrator or other legal personal

representative, regulatory body or agency,

government or governmental agency, authority

or entity however designated or constituted;

“Plans” means individually and collectively,

the Share Purchase Plan and the Stock Option

Plan;

“Rules” means all regulatory laws governing

the issuance of options, including all requisite

TSE rules and all laws and regulations under

the Securities Act (Ontario);

“Stock Option Plan” means the Stock Option

Plan of the Corporation dated as of September

27. 2000 as amended from time to time:

“Term” has the meaning set out in Section 3;

“TSE” means the Toronto Stock Exchange;

“Year of Employment” means thereafter each

12 month calendar period commencing January

1 and ending December 31 commencing after

the expiry of the Adjusted Year of Employment.

2. Employment of the Executive

The Corporation will employ the Executive, and the

Executive will serve the Corporation, in the position,

Sla

and in the duties and responsibilities as set out in

Schedule A and, subject to the consent of the

Executive, in positions assigned by the Board of

Directors from time to time that are consistent with

the Executive’s skills and experience. The Executive

shall comply with all rules, regulations and

instructions of the Corporation now in force, or which

may be adopted from time to time, and communicated

by the Corporation to its employees.

3. Term

The Executive’s employment will, subject to section

9, be for the term specified in Schedule A attached

hereto (the “Term”).

4. Performance of Duties

During the Term, the Executive will faithfully,

honestly and diligently serve the Corporation and the

CRS Group. The Executive will (except in the case of

illness or accident) devote his full working time and

effort so as to ensure the effective management of the

Corporation and will use his best efforts to promote

the interests of the Corporation. During the Term, the

Executive will present to the Corporation all of his

ideas concerning the Business of the Corporation.

5. Remuncration

(a) Basic Remuneration. The Corporation will

pay the Executive a gross annual salary (the “Salary’)

in the amount set out in Schedule A and thereafter in

an amount determined by the Board of Directors from

time to time in respect to the Adjusted Year of

Employment or each Year of Employment (before

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deduction for income taxes and other required

deductions, such as Canada Pension Plan and

Unemployment Insurance contributions, but excluding

the Benefits paid by the Corporation as provided in

section 5(b), but not less than the amount in Schedule

A (unless waived by the Executive)). The Salary will be

payable in equal instalments bi-weekly in arrears in

each month during the Adjusted Year of Employment

and each Year of Employment thereafter.

(b) Benefits. The Corporation will provide to the

Executive the benefits set out in Schedule A and any

benefits provided from time to time to employees of the

Corporation generally as well as a benefits allowance

in an amount to be determined by the Board of

Directors from time to time in its sole discretion (the

“Benefits”). In addition, the Executive will be entitled

to participate in accordance with and subject to the

terms and conditions of any applicable fund, plan or

arrangement relating to senior executives of the

Corporation in effect generally from time to time with

respect to the CRS Group.

(c) Bonus Remuneration. The Executive will be

entitled to receive such bonus remuneration, if any, in

respect of the Adjusted Year of Employment and each

Year of Employment thereafter during the ‘Term, as

the Board of Directors may determine. based on the

criteria set out in Schedule A.

(d) Pro-Rata_ Entitlement in the Event_ of

Termination. If the Executive's employment is

terminated pursuant to section 9 the Executive will

receive (in addition to any other amounts payable

pursuant to section 9), the appropriate pro-rata

portion of the Executive's Salary, Benefits and bonus

Sa

remuneration (if any) in respect of the Adjusted Year

of Employment or the Year of Employment in which

the effective date of the termination of employment

occurs.

6. Expenses

The Corporation will, upon presentation of expense

statements or receipts and such other supporting

documentation as the Corporation may reasonably

require, pay or reimburse the Executive in accordance

with the Corporation’s expense policies for all trave!

and out-of-pocket expenses reasonably incurred or paid

by the Executive in the performance of his duties and

responsibilities

7. Vacation

The Executive will be entitled during the Adjusted

Term of Employment and each Year of Employment

during the ‘Term to such period of vacation with pay as

set out in Schedule A or such greater amount as the

Board of Directors, in its sole discretion, may

authorize, provided that the Executive will be entitled

to at least the minimum number of weeks required by

the ESA.

8. Share Purchase Plan and Stock Option Plan

The Executive will be entitled to participate in the

Share Purchase Plan, if such plan is being offered by

the Corporation

The Executive may be entitled to participate in the

Stock Option Plan from time to time to the extent that

S4a

the Board of Directors, in its sole discretion, may

determine.

9. Termination

(a) Notice. The Executive's employment may be

terminated at any time:

() by the Corporation without prior notice

and without further obligations to the

Executive for reasons of Just Cause or

Disability;

(11) on prior written notice by the Executive

on the terms set out in Schedule B; or

(41) in any other case, by the Corporation on

the terms as set out in Schedule B.

‘Termination of the Fxecutive’s employment by the

Corporation pursuant to clause 9(a)(i) or clause 9(a)(ili)

may be undertaken only under the authority of a

resolution of the Board of Directors approved by a

majority of the directors.

The Executive's einployinent will be terminated in

the event of the Executive's death. In the case of such

event, the Basic Remuncration, Benefits and

Mxpenses, if any, set out in sections 5 and 6 shall

continue to be paid and provided by the Corporation to

the named beneficiary of the Executive listed in

Schedule B for a period of 90 days following the date of

termination. With the exception of payments described

in the preceding sentence, there will be no further

obligation on the part of the Corporation or the CRS

85a

Group (except as to the pro-rata entitlements referred

to in clause 5(d) upon the Executive’s death.

(b) Effective Date: The effective date on which

the Executive’s employment will be deemed to have

been terminated will be:

(1) in the case of termination under clause

9(a)(i), the day on which the Executive is

deemed, under section 18, to have

received notice from the Corporation of

termination;

(11) in the case of termination under clauses

9(a)(i1) or (iil), and subject to section 10,

the last day of the minimum period

referred to in the relevant paragraph;

and

(iii) inthe case of the death of the Executive,

on the date of the Executive’s death.

(c) Change of Control. If there is a Change of

Control of the Corporation and without the consent of

the Executive, the Executive is: (a) demoted or (b) the

Salary is reduced; or (c) the job title, duties or

responsibilities are materially modified; or (d) the

terms and conditions of the Execcutive’s employment

are otherwise materially changed, the Executive may,

within 60 days of being advised of the same, give

notice to the Corporation that he is leaving its

employment, and such leaving shall be treated for all

purposes of this Agreement as a termination by the

Corporation of the Executive’s employment pursuant

to section 9(a)(111).

86a

(d) Rights of Executive on Termination and

Lump Sum Payment. Where the _ Executive’s

employment under this Agreement has_ been

terminated by the Corporation under section 9{a){iil),

the Executive shall be entitled, upon receipt by the

Corporation of appropriate releases, resignations, and

other similar documentation, to receive from the

Corporation, in addition to accrued but unpaid Salary

and bonus remuneration, if any, a lump sum payment

equai to the amount set out in Schedule B, less any

amounts owing by the Executive to the Corporation for

any reason. Such amount shall be paid by the

Corporation to the Executive in instalments, cach

instalment to be equivalent to the Executive’s current

periodic salary and benefit entitlement and payable at

the same intervals as would be the case had the

Executive remained as an employee of the

Corporation. All payments made by the Corporation in

respect of the severance payment shall be subject to all

required deductions for income tax and other statutory

withholdings.

(e) No Other Entitlement. Except as provided

above in this section 9, where the Executive’s

employment has been terminated by the Executive or

terminated or deemed to have been terminated by the

Corporation for any reason, the Executive will not be

entitled, except to the extent required under any

mandatory employment standard under the ESA, to

receive any payment as termination pay, severance

pay, in lieu of notice, or as damages. Except as to any

entitlement as pr

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