Flight Design Response to Daniel Barnath's Lawsuit

[MrMorden]

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 (ussyorktown). 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:

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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.publicati...docs/S44863.htm

http://www.wweek.com...el_bernath.html

http://www.oregonliv...s_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

[3Dreaming]

They got the website here wrong. It could have brought new members.

[zaitcev]

I did not realize it was "our" Dan.

[ct4me]

Yah... it appears he was "holding back" here... 'looks like we got the reserved version... compared to the stuff he's capable of... read some of the links... and this:
http://thisainthell.us/blog/?p=38816

[Jack Tyler]

"Although I cannot discuss the particulars of this case..."

Seems to me Tom did a fairly thorough job. Ouch. Usually, it's a pilot's flying skills that are the source of criticism and public scorn. In this case, it is more the man's character.

[zaitcev]

I think the case ought to unravel on the merits, without a detour into the character. The case of "Zoom" Campbell against Cirrus ended in a total loss without him being insane coming into consideration. Unfortunately, it's still going to cost Flight Design a pretty coin by the time it ends. Then, other customers will have to carry the premium thanks to Dan's antics. That's the unpleasant downside which I expect.

[ct4me]

I think the letter from Flight Design was mostly directed towards alerting owners to the Class Action lawsuit, and warning them about who they might be getting into bed with...

I think most companies have insurance or reserves to cover them on normal lawsuits, but not sure about a class action event. By limiting the number of people who sign-up for the class action, they may be nipping that action in the bud.

I, too, think maybe too much is being said... but it could be just the tip of the iceburg. When you start to unravel a concocted story, it's surprising how much you can discover.

[roger lee]

It was just FD alerting owners. It is the rest of the world that has attacked him. Not a single supporter that I have heard of.

[theoarno]

Why am I not surprised?
I did laugh when I saw mention to the iPad speedometer. Lord how many times was he warned about that?
He just couldn't get through this without laying blame on someone else.