At trial, the Defense will have a real expert
Rather than summarizing what is a short and hard-hitting filing by the defense - here is the notice by Mr. Forkner's defense attorneys of their designation of an expert witness. As just an SLF (& att'y) I'm refraining from commenting on any specific credentials of this expert, though it won't (or shouldn't) offend any aviators to note that if this individual is not an expert for purposes of this trial, then there is no such thing as expert witness testimony.
"Pursuant to the Court’s Scheduling Order (ECF No. 12), Mr. Forkner hereby designates D. Lee Moak as a potential witness who may be construed as an expert under Federal Rules of Evidence 702, 703, and 705.
Lee Moak is a former U.S. Marine and U.S. Navy fighter pilot. With the U.S. Marine Corps (1977–1989), he flew the F-4 Phantom and F-18 Hornet and was progressively promoted through the ranks to Captain. With the U.S. Navy Reserve (1989–2001), he was promoted to Commander. While a pilot at Delta Airlines for 26 years (1988–2014), Mr. Moak flew the Boeing 727, 737, 757, and 767, and L1011. Additionally, he was the Master Executive Chairman of the Delta Master Executive Council (2005–2010) and President of the Air Line Pilots Association, International (2011–2014). Mr. Moak received his BA in Communication Arts from the University of West Florida in 1979.
After the tragic Boeing 737 MAX accidents, Mr. Moak was selected by the Secretary of the United States Department of Transportation to co-chair a special committee to review the Federal Aviation Administration’s aircraft certification process. That committee published a report on January 16, 2020, titled, “Official Report of the Special Committee to review the Federal Aviation Administration’s Aircraft Certification Process,” which is attached hereto as Exhibit 1.
We propose that Mr. Moak attend the trial and be prepared to rebut any testimony offered by other pilots who may testify. Beyond that:
Mr. Moak may testify about the training and responsibilities of a Boeing 737 pilot, including: how a trained pilot uses the equipment in the cockpit—such as the control column (or yoke), thrust levers, autopilot, autothrottles, main electric stabilizer trim, manual stabilizer trim, stabilizer trim wheel, and stabilizer trim cutout switches; that a trained pilot does not need to understand how an airplane is engineered in order to fly it safely; that MCAS is a code or software within the 737 MAX, designed to replicate the feel of the flight controls of the 737 NG in a certain regime of flight; that MCAS was designed to activate outside the normal operating envelope of a commercial flight; that a 737 pilot is trained to respond to appropriate and inappropriate stabilizer trim wheel movement and to not diagnose what is causing the movement; that a trained 737 pilot would not experience MCAS while flying the airplane in normal flight because a pilot who follows normal procedures would not place the airplane in or near a stall situation; and that even if a trained 737 pilot were to experience conditions wherein MCAS could activate, the airplane would be restored to normal flight either automatically or due to the trained pilot’s following proper procedures—such as the QRH/QRC.
Mr. Moak may also testify about the causes of the tragic Lion Air and Ethiopian Airlines accidents. fn1
fn-1 The government alleges that MCAS contributed to the crashes; that Mr. Forkner withheld information about MCAS from the FAA; and that the FAA would have found that information “material.” At the same time, the government does not contend that Mr. Forkner caused the crashes. Without more, that allegation will be confusing to the jury, and we offer Mr. Moak to put the crashes in greater context.
In the case of the Lion Air accident, Mr. Moak would explain that the airline installed a refurbished Angle-of-Attack sensor in the days leading up to the accident and failed to properly calibrate the sensor—such that the sensor transmitted inaccurate information to the airplane's flight control computer. This led MCAS to activate when it was not intended to. Mr. Moak would explain that Lion Air flight crews flying the airplane with the miscalibrated AOA sensor the day or days before the accident: experienced “uncommanded trim” due to the inaccurate information being fed by the miscalibrated AOA sensor; flew the airplane to the route’s destination; landed the airplane; and either failed to alert maintenance to fix the issue or alerted them but maintenance failed to fix the issue. Mr. Moak would explain that this failure violated acceptable, standard maintenance and flight operations procedures. Mr. Moak would also explain that the captain and first officer on Lion Air Flight 610 experienced “uncommanded trim” multiple times during that flight before crashing. But had the AOA sensor been installed correctly, or been fixed after an earlier flight, or had the crew of Flight 610 followed standard procedures in their manual on “uncommanded trim,” there would have been no crash. The standard procedure in their manual called for a response to “uncommanded trim” regardless of the cause of that trim. This is true in the Ethiopian Airlines crash as well.
Mr. Moak may also testify that U.S.-based airline carriers such as American Airlines, Southwest Airlines, and United Airlines did not experience any incidents involving runaway trim on the 737 MAX prior to the Lion Air and Ethiopian Airlines accidents, including any activation of MCAS during flight due to faulty installation of an AOA sensor. Mr. Moak would explain that a U.S.-based airline crew is trained to respond to “uncommanded trim” and would have been able to respond successfully to the conditions in the cockpits on the flights that crashed.
Mr. Moak may also testify about the FAA’s reaction to the Lion Air accident. Specifically, he would explain that after the Lion Air accident, the FAA did not require training on MCAS and instead issued an Airworthiness Directive restating prior QRH/QRC procedure for runaway stabilizer trim—that is to remind pilots to use the stabilizer cutout switches in the event of “uncommanded trim.” In other words, the Airworthiness Directive was a reminder to pilots to follow the training they had already been given. [fn 2 omitted-WR 6-3]
Mr. Moak’s testimony is based on his training; experience; and work as a pilot, pilot representative, and industry consultant in the aviation field for over 40 years. He is type-rated for the 737-NG, with 744 hours as a Captain. Additionally, Mr. Moak’s testimony is based on his work as co-chair of the Department of Transportation’s Special Committee, including flying the conditions experienced in the cockpits of the two aircrafts that crashed, in a MAX simulator."