Jump to content
FlyingMonkey

FD Response Letter to Daniel Barnath Suit

Recommended Posts

I got an e-mail from Flight Design yesterday responding directly the lawsuit filed by everybody's favorite dis-barred lawyer and navy hero, Daniel Barnath. I don't have a good way to post the letter PDF, but here is the text of the letter for your education and entertainment:

 

-------------------------------------------------------------------------------------

To: CTSW Owners January 27, 2014

 

From: Tom Peghiny

 

Re: Letter soliciting CTSW “Class action suit”

 

Dear CTSW Owner:

 

I am writing to you regarding the recent solicitation from a Mr. Daniel Bernath to participate in a Class action lawsuit against Flight Design, Flight Design USA and Hillsdale Aviation, a Flight Design dealer and Flight school. Most of you who know us probably threw the letter out, but there might be some out there who are confused and frightened by the letter giving them a bad feeling about flying their planes.

 

I’d like to start by categorically disagreeing with Mr. Bernath’s assertions that there is something wrong with the Flight Design CTSW, Flight Design’s testing of the design and some kind of "spooky cover-up". The Flight Design CTSW has been flying in the USA since late 2004 and has a much better than average safety record for a Special Light Sport Aircraft.

 

Flight Design has a fuel system design philosophy that the simpler the system, the better the probability that a pilot operating it will not make a mistake. Fuel system mistakes (selecting the wrong tank, taking off with the fuel switched off and running the plane out of fuel) are the single largest factor after pilot error in aviation accidents.

 

That is why there are no fuel selector valves on the CTSW and the CTLS. Just like on other aircraft, this can lead to one tank draining faster than the other. Owners new to the type can find this a bit disconcerting, but it is something that we have seen, used and flown with very successfully since the type was introduced to the USA in 2004.

 

Mr. Bernath suggests that the engine will stop if one tank is allowed to run dry. This is not correct. The engine will continue to run as long as there is minimum fuel in one tank and that fuel is available for the fuel pick up. Flight Design tested each plane at the factory for the ability to run with minimum fuel and did significant inflight testing as well to document that. Those of you who have owned Flight Design planes for a while know that Flight Design does issue Safety of Flight notices and does follow up with changes to design or documentation if needed.

 

Mr. Bernath alleges that the British CAA forced Flight Design to placard the CT2K and CTSW to not fly without fuel in both tanks. This was a recommendation from the local importer which was republished by the CAA to have service recommendations centrally available.

 

Mr. Bernath suggests that Flight Design has somehow hidden this and then “corrected these fatal design flaws” on the CTLS by adding an anti-sloshing rib on the CTLS. The anti-sloshing rib is a part of the CT2K, CTSW and CTLS fuel tanks. The changes to the CTLS tanks are the addition of a small flapper valve at the bottom of the anti-sloshing rib, slightly larger tubes in the A pillar and a different fuel vent arrangement, moving them to the winglet mostly for appearance sake. These are evolutionary changes along with many other changes like the longer fuselage and had less affect than was expected.

 

We strongly disagree with the cause and the alleged damages, including his claim of being injured. The following statements should give you pause as you consider the false allegations being made upon us and more importantly as you consider the possibility of joining with him:

 

(1). The day after his off field landing he was proclaiming on his Facebook page, “What’s the big deal folks? I landed short of the runway and not a scratch on me”.

 

(2). He denied injury to investigating law enforcement officials and further opined to them that he "misjudged" the winds and ran out of fuel.

 

(3). He admitted to making a precautionary landing at a private airport seven miles from his intended destination to check his fuel status and then departed from that airfield knowing he had insufficient fuel available pursuant to FAR §91.151. (The "30 minute" rule - one needs sufficient fuel on board to fly to your intended destination and then have a half hour reserve).

 

(4). To date, he has refused to cooperate with NTSB investigators as to the facts and circumstances of this accident and even prior to a preliminary report being drafted.

 

(5). His claims of negligence or improper design lack any empirical evidence or expert opinion to support his "theory" of fault as suggested in his letter to you.

 

(6). Prior to the NTSB even issuing a preliminary report, he sent demand letters to our company requesting a quick "out of court" settlement under threat of being sued.

 

(7). Bernath was previously suspended from the practice of law in California and denied admission to be a lawyer in Oregon by the Oregon Supreme Court because he was found to be of "unfit moral character".

 

(8). He is currently under investigation by the Oregon State Bar for the unauthorized practice of law.

 

(9). He has been sued previously by persons he has targeted, resulting in a judgment against him for "malicious persecution"

 

Malicious prosecution is a common law intentional tort, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. Our legal team will not hesitate to strike back with such a claim upon the dismissal of the pending case and we believe strongly that such a burden simply cannot be met by Mr. Bernath.

 

For those of you who have not been active on the CT Owners forum or other aviation blogs, I suggest that you take the time to go to a few websites and find out more about Mr. Bernath and his colorful past and history as a lawyer. Please conduct a simple internet search under his name or view the smattering of websites below so as to make your own decision as to whether or not you wish to contact Mr. Bernath to have him represent you:

 

http://www.publications.ojd.state.or.us/docs/S44863.htm

 

http://www.wweek.com/portland/article-5118-daniel_bernath.html

 

http://www.oregonlive.com/portland/index.ssf/2010/10/portland_judge_orders_social_s.html

 

http://www.clr.org/or.html

 

Alternatively, there are many respectable aviation attorneys out there with the support staff and engineering experts available to conduct a thorough examination of your airplane. We welcome any such scrutiny or analysis. We are confident in both the safety and integrity of our airplanes.

 

In summary, I would like to restate that Mr. Bernath is not a licensed attorney in his home state of Oregon. The CT2K and CTSW are as safe to fly as any SLSA when operated in an appropriate manner consistent with good judgment.

 

Our opinion is that the fault for this incident lies with pilot error as to insufficient fuel reserves pursuant to FAA regulations. We are also investigating the alternate possibility that Mr. Bernath may indeed have had sufficient fuel on board but stalled and crashed his airplane on short final due to his professed use of an iPad GPS "speedometer" app in place of the airspeed indicator. (Please see the thread under his screen name "ussyorktown" on sportpilotmag.com). If indeed this alternate theory is correct, that may explain why he remains uncooperative in the NTSB investigation and why he was less than candid with investigating officers at the crash scene.

 

I am incorporating herein the preliminary report of the NTSB to date:

 

"NTSB Identification: WPR13LA396 14 CFR Part 91: General Aviation Accident occurred Sunday, September 01, 2013 in Sisters, OR Aircraft: FLIGHT DESIGN GMBH CTSW, registration: N102HA

 

Injuries: 1 Uninjured.

 

This is preliminary information, subject to change, and may contain errors. Any errors in this report will be corrected when the final report has been completed. NTSB investigators may not have traveled in support of this investigation and used data provided by various sources to prepare this aircraft accident report.

 

On September 1, 2013, about 1800 Pacific daylight time, a Flight Design CTSW, N102HA, lost engine power, and landed short of Sisters Eagle Air Airport, Sisters, Oregon. The light sport airplane was registered to, and operated by, the pilot under the provisions of 14 Code of Federal Regulations Part 91. The sport pilot was not injured. The airplane sustained substantial damage to the firewall and lower right fuselage during the accident sequence. The cross-country personal flight initially departed Coeur d'Alene Airport - Pappy Boyington Field, Coeur d'Alene, Idaho, at an unknown time, with a planned destination of Sisters Eagle Airport. Visual meteorological conditions prevailed, and no flight plan had been filed.

 

 

 

The pilot provided a verbal statement to a deputy of the Deschutes County Sheriff's Office following the accident. He reported departing Coeur d'Alene en route to Sacramento, California, and that he encountered strong head winds and low clouds during the flight. Subsequently, he landed at a private airstrip approximately 7 miles east of Sisters Airport to check the airplane's fuel levels. Estimating that he had sufficient fuel for approximately 30 more minutes of flight, he departed for Sisters. As he approached the airport the engine "sputtered" and then stopped producing power, and he performed a forced landing into a field.

 

At the time of publication of this preliminary report, the pilot had not provided a verbal or written statement to the NTSB regarding the circumstances of the accident.

 

Index for Sep2013 | Index of month"

 

So as we await the full report of the NTSB, we cannot comment further but wanted to take this opportunity to contact you in response to Mr. Bernath's correspondence so as to assuage any fear or apprehension before your next flight.

 

Although I cannot discuss the particulars of this case, I will make myself available to talk to any owner regarding the technical aspects of this incident and how to properly operate the CT series aircraft with regard to fuel management, proper air speeds, correct landing procedures and flight planning.

 

You can call me at 860-963-7272 9 to 5 daily.

 

 

 

Tom Peghiny

 

President, Flight Design USA

Share this post


Link to post
Share on other sites

A class action could kill a little company like FD though and at minimum, dissuades investors and makes it hard to them to get financing.  I got two letters from Bernath asking me to join his class action suit.  They are written much like his hysterical blogs.

 

 

Spoiler alert: I declined

Share this post


Link to post
Share on other sites

I'd like to do something to help FD, but I'm not a lawyer.  Does anyone know what would be involved to submit a "friend of the Court" letter supporting FD's position as a CT owner?  Anyone else interested in signing such a letter?

Share this post


Link to post
Share on other sites

I'd like to do something to help FD, but I'm not a lawyer.  Does anyone know what would be involved to submit a "friend of the Court" letter supporting FD's position as a CT owner?  Anyone else interested in signing such a letter?

There has been some talk about helping, even as much as a defense fund.  The 778 posts ripping our litigious pilot on the Pilots of America forum sure won't help him.  I like the idea of a "friends of the court" letter.  We'll have to see if it will help.  I'm guessing, between here and the various aviation forums, we could find a few folks who were smart enough to figure out you shouldn't fly with no fuel.

Share this post


Link to post
Share on other sites

Perhaps what you are talking about is an Amicus brief.   http://en.wikipedia.org/wiki/Amicus_curiae

 

When I appealed a decision by a California Superior Court to force me to pay alimony after my ex-wife remarried some family law experts contacted me because they were interested in submitting an Amicus brief.

Share this post


Link to post
Share on other sites

Tom spoke to me about why the FD letter was written this way. There is a very good reason for why it was written the way it was, but because i am not under advisement by an attourney, I am choosing not to say anything more so no one gets in trouble by benign intentions.

Share this post


Link to post
Share on other sites

By throwing all this inflammatory stuff out there he has really left himself wide open to be counter-sued for tortious interference.  From patent and contract law, I know that one must be very careful about doing anything to intentionally jam up another company's trade or else risk being held liable for whatever damage estimates you are alleged to have caused (even if you win your case).  Direct mailing a long, unsubstantiated list of denigrating comments to the entire FD customer base is pretty good way to go about that.

Share this post


Link to post
Share on other sites

By throwing all this inflammatory stuff out there he has really left himself wide open to be counter-sued for tortious interference. From patent and contract law, I know that one must be very careful about doing anything to intentionally jam up another company's trade or else risk being held liable for whatever damage estimates you are alleged to have caused (even if you win your case). Direct mailing a long, unsubstantiated list of denigrating comments to the entire FD customer base is pretty good way to go about that.

What is not substantiated though? They put a LOT of verifiable information in their letter. The only part that I am concerned about is the links to multiple websites and stating that he has had a "colorful" past as a lawyer, but again, anyone with basic search skills can find piles of evidence supporting that claim, including cases of disbarment and investigations for the illegal practice of law.

 

Additionally, Mr Bernath has also slung a lot of mud, having purported a lot of WRONG information and speculation, and has spread this with letters to Flight Design's customer base. I feel that if there is going to be libel and slander awards, FDUSA's is going to be much greater than Mr Bernath's.

 

As I has said above (but cannot share), the reason for this letter is very important, and I trust FDUSA's attorney knows risk vs reward very well.

Share this post


Link to post
Share on other sites

The 'He' was Mr. bernath and his letter.  FD's letter doesn't interfere with whatever business Bernath is in, whatever that is now that he is a disbarred lawyer.

Share this post


Link to post
Share on other sites

The 'He' was Mr. bernath and his letter.  FD's letter doesn't interfere with whatever business Bernath is in, whatever that is now that he is a disbarred lawyer.

Oh, you weren't clear about that :)

Share this post


Link to post
Share on other sites

"By throwing all this inflammatory stuff out there he has really left himself wide open to be counter-sued for tortuous interference. "

 

Exactly. Stand by and watch. :) I think He may regret being an idiot.

 

Forrest Gump summed it it much better,

 

"Stupid is as stupid does." and this guy right from the beginning. I talked to someone yesterday who knows him and his mechanic. The mechanic told my friend he has been waiting for this guy to crash and burn for quite a while. Seems like this guy has a life long history of poor decision making.

Share this post


Link to post
Share on other sites

My feeble legal mind sees the primary issue as whether or not unusable and or unported fuel constitutes a design defect in a high wing gravity fed fuel system.

 

If someone is expert on this question then that person's input could have value as an expert witness or amicus curiae.

Share this post


Link to post
Share on other sites

I agree with zaitcev on sport pilot talk.  The case should be decided on its merits not on the plaintiff's character.

I agree. However, the fact is the fuel system was sufficient to tell Barnath to make a precautionary landing. He determined at that time he had insufficient fuel to take off again at all and still be legal under VFR fuel minimums. Because he could not obtain fuel in his location, and doing otherwise would be inconvenient, he took off anyway. NTSB found no fuel on board following the crash.

 

The merits of the case seem pretty clear.

Share this post


Link to post
Share on other sites

Talked to Tom today about a few things, most of which is unrelated (this whole thing really has him stressed out, i offered to buy him lunch but he seems to be too proud to accept :D. Oh well, Dave and Matt both got it instead :) )

 

He didn't really say much about us supporting them, but he did say thanks to everyone for the offer. From personal speculation, if he does really needs our support, at least he knows and can reach out to us. He is aware of this thread and has read your comments.

Share this post


Link to post
Share on other sites

Of course he has our support.  And I am unhappy to hear Tom is upset. 

 

Again, from personal experience.  The best way to grind through this is to lay low, put it out of the mind, let the lawyer handle it, don't take anything personally or get anxious, hope for the best but expect something less, and don't fall prey to negative emotions because that lets the guy win before the case is over.

 

If it goes to trial, the best Tom can hope for is the Jury gets a few flyers on it, and his lawyer is good at what he does.

 

I have every confidence that FD. will prevail. However the expense, aggravation and loss of work caused by frivolous lawsuits are a real problem, currently in our country.

 

Cheers.

Share this post


Link to post
Share on other sites

One thing the system encourages is frivolous lawsuits in the hope the plaintiff will get something from a settlement. This tactic often works because even a simple case will cost a defendant big bucks as opposed to a much smaller settlement.

Share this post


Link to post
Share on other sites

As in so much, Shakespeare has some sound advice!

 

“The first thing we do, let's kill all the lawyers.”

 

― William Shakespeare, King Henry VI, Part 2

Share this post


Link to post
Share on other sites

One thing the system encourages is frivolous lawsuits in the hope the plaintiff will get something from a settlement. This tactic often works because even a simple case will cost a defendant big bucks as opposed to a much smaller settlement.

Agree!  Talk to a lawyer (I have some friends that are)  and they rarely make it to court.  It is usually about settlement negotiations.  I don't know the law well but if there were laws that would allow counter suits for frivolous lawsuits, you would probably have less filed.  

You would think twice about throwing that rock, if there was a big chance it would be thrown back at ya!!

Share this post


Link to post
Share on other sites

Actually there is a lot of debate about changing our system to a "loser pays" (a system that is used in just about every single western civilization now). It would do much to discourage lawsuits unless the plaintiffs have a strong case, but as a drawback, it makes the problem much worse when it comes to little guy vs big guy. Suggestions were also put forth to put a cap on how much the loser would be required to reimburse the winner's legal fees, so that mitigates much of that issue. With the court system is badly tied up, and if we could get copyright and patents under control too, a loser pays system would be massively beneficial.

Share this post


Link to post
Share on other sites

Today I received two more letters from Mr. Bernath. They are identical. They refute the FD response to the lawsuit, states he has received many signed contracts from CT owners, and includes an agreement to sign if we want in on the class action suit.

 

I'msure other owners have received similar letters. Maybe someone a little more tech savvy could post a copy for all to enjoy. If not, maybe someone could talk me through the process. 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

×