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COMPLAINT
Neil J. Prisco,Jr., individually and as Administrator of the Estate of Donna Lynn Prisco,
by and through his attorneys Motley Rice LLC, for the Compliant against defendants, and each
PARTIES
1. Plaintiff is the duly appointed Administrator of the Estate of Donna Prisco, who
died in the crash of Continental Flight 3407 on February 12, 2009. Letters of Administration
Estate of Donna Prisco, deceased, and on behalf of each and every beneficiary, survivor, and heir
of decedent under applicable law, including their children and himself as surviving husband of
Donna Prisco.
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organized and existing under the laws of Delaware, maintains its principal place of business in
Memphis, Telmessee, is and was engaged in the business of air transportation and the carriage of
persons and property for hire in the State of New York and elsewhere in the United States,
including this Judicial District. Defendant Pinnacle Airlines Corp. is and was, at all times
organized and existing under the laws of Delaware, maintains its principal place of business in
Houston, Texas, and is engaged in business in new York, including this Judicial District, and
a corporation organized and existing under the laws ofthe State of Texas, and maintains its
principal place of business in Quebec, Canada. Bombardier conducts substantial business in and
7. Defendant Colgan Air, Inc. (hereafter "Colgan") is and was, at all times relevant
to this Complaint, a wholly owned subsidiary of Defendant Pinnacle Airlines Corp. and a
corporation organized and existing under and by virtue of the laws of the Commonwealth of
Virginia, having its principal place of business in the Commonwealth of Virginia. Defendant
Colgan is and was engaged in the business of air transportation in the State of New Yark and
elsewhere in the United States pursuant to an Air Carrier Operating Certificate issued to it by the
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"air transportation" and "air commerce" as defined in Section 40102 of the Transportation Act
"FSI") is and was, at all times relevant to this Complaint, a corporation and/or corporate
enterprise organized and existing under and by virtue of the laws of the State of New York that is
authorized to do and is doing business in the State of New York, County of Queens.
9. Defendant FSI is and was, at all times relevant to this Complaint, the holder of a
"Training Center Certificate," "Training Specifications" and/or such other air agency certificates
issued by the FAA pursuant to Part 142 of the FAA Regulations [14 C.F.R. 142.1 et seq.]
authorizing Defendant FSI to provide flight simulation equipment, training devices and, among
other services, initial, transition and recurrent pilot training to and for the benefit of persons,
airmen, agencies and air carriers in the aviation industry, including Defendants Colgan, Pinnacle
and/or Continental.
10. This Court has jurisdiction pursuant to, 28 U.S.C. § 1332. There is diversity of
citizenship and the matter in controversy exceeds the sum of seventy five thousand ($75,000.00)
FACTUAL ALLEGATIONS
13. On or about February 12,2009, Donna Prisco was a flight attendant employed by
Colgan Air, Inc. (hereinafter Colgan) on board Continental Connection Flight 3407, en route
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14. The aircraft involved in the Accident was a Bombardier Model Dash 8-Q400 civil
aircraft bearing Serial No. 4200 and U.S. Registration No. N200WQ, a Transport Category
aircraft powered by Turboprop Pratt & Whitney 150A Engines and equipped with, among other
things, an Ice and Rain Protection System, a Stall Protection System, a Low Speed Que, a digital
Air Speed Indicator system, a Control Warning System, and a digital Engine Display (hereinafter
15. On or about said date, as the aircraft approached Buffalo Niagara International
16. For a measurable period of time, the aircraft flew out of control, violently moved
in unexpected directions, dived, rolled, inverted, and subjected Donna Prisco to unusual g-forces,
all of which resulted in physical bodily injuries, pain and suffering, mental anguish, emotional
distress, property damage, and other damages to Donna Prisco aboard the aircraft.
17. Thereafter the plane crashed into the ground, resulting in further damages and
injuries to Donna Prisco and damage to her personal property and which crash ultimately
18. As a direct and proximate result of the conduct of defendants herein, and each of
them, there was a measurable and significant period of time before the crash, as well as before
the first trauma causing injury to Donna Prisco and/or the time she was otherwise first injured
before her death, she consciously suffered pre-impact fright and terror and physical pain and
suffering, post-impact fright and terror and physical pain and suffering, mental anguish,
emotional distress, sever injuries, and damages for a measurable period of time before she died.
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19. As a direct and proximate result of the conduct of defendants herein, and each of
them, before her death, Donna Prisco's personal property and the use thereof, were damaged,
20. As a direct and proximate result of the conduct of defendants herein, and each of
them, Donna Prisco died and her beneficiaries, heirs and survivors including her husband and
children, have been and continue to be, deprived of their wife's and mother's companionship,
care, comfort, consortium, education, guidance, training, and other economic and pecuniary
21. As a direct and proximate result of the conduct of defendants herein, and each of
them, Donna Prisco died and her beneficiaries, heirs and survivors including her husband and
children have suffered, and continue to suffer, other compensable damages under applicable law,
according to proof.
22. As a direct and proximate result of the conduct of defendants herein, and each of
them, Donna Prisoc died and her beneficiaries, heirs and survivors including her husband and
children have incurred funeral, burial, travel, and related expenses and property damage,
according to proof.
23. Before and on February 12. 2009, defendants Continental, Pinnacle and Colgan
were commercial common carries engaged in the business of carrying passengers for hire in
interstate and international commerce in that, among other things, they each regularly operated
scheduled passenger flights and maintained, inspected, serviced, scheduled, leased, and
purchased aircraft, including the N200WQ, and aircraft manuals for the aircraft and their flight
operations.
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24. Before and on February 12, 2009, defendants Continental and Pinnacle owned,
monitored, marketed, sold and placed into the stream of commerce the Bombardier Aircraft and
manuals, instruction. Bulletins, and warnings for the Bombardier Aircraft and its components
parts and systems including, but not limited to, the Aeroplane Operating Manual, the Airplane
Flight Manual, Quick Reference Handbook, service bulletins and other warnings (herein after the
"manuals").
27. The Bombardier Aircraft and its component parts, systems and manuals were sold
relating to the purchase of twenty-five (25) Bombardier Q400 series aircraft, dated February 17,
2007.
28. On February 12, 2009, the Bombardier Aircraft and its component parts and
systems were being operated and used by Colgan for the purpose and in the manner for which
they were designed, manufactured, distributed, sold, marketed and intended to be used in a
manner reasonably foreseeable to Bombardier and in a condition without substantial change from
29. Subsequent to the sale and distribution of the Bombardier Aircraft and its
component parts, systems and manuals, Bombardier continued to provide customer support to
Colgan and Pinnacle, including information concerning the design, operation and maintenance of
the Bombardier Aircraft and its component parts, systems and manuals.
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30. Bombardier owed a duty to Colgan, Pinnacle and Donna Prisco to exerCIse
reasonable care in the design, manufacturing, testing, inspection, and maintenance of the
Bombardier Aircraft and its component parts, systems and manuals. Upon information and
31. Upon information and belief, the Accident and the plaintiffs damages were
proximately caused, in whole or in part, by the acts or omissions of Bombardier with respect to
the design, manufacturing, testing, inspection, and maintenance of the Bombardier aircraft and
distributed, serviced, maintained, monitored, repaired, marketed and introduced into the stream
of commerce the aircraft, and its component parts, including, but not limited to, the aircraft's de-
icing system, flight control system, stabilizer system, electrical system, and flight
instrumentation system, along with instructions, warnings, and flight operations and maintenance
manuals, for the aircraft and its component parts which it approved, wrote, prepared, provided,
monitored and sold, delivered, and provided to defendants, Continental, Pinnacle and Colgan,
and each of them and thereafter each of said defendants monitored the aircraft for maintenance,
mechanical reliability and airworthiness and undertook to, and did, service and maintain the
33. Prior to February 12, 2009, and while Defendant FSI was acting pursuant to a
training agreement entered into between Defendant FSI, as contract provider and Defendants
Colgan, Pilmacle and/or Continental as contractee(s), Defendant FSI authorized agent of its
Renslow, with the necessary flight simulator training required by Part 121 of the FAA
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Regulations [14 C.F.R. 121.1 et seq.] to qualify Captain Renslow for duty as pilot in command
of a Bombardier Dash 8-Q400 aircraft operated in regular air carrier line operations.
34. More specifically, in November of 2008 Captain Renslow was trained using FSI"s
35. Prior to February 12, 2008, and while Defendant FSI was acting pursuant to a
training agreement entered into between Defendant FSI as contract provider and Defendants
Colgan, Pinnacle and/or Continental, as contractee(s), Defendant FSI as authorized agent of its
Shaw, with the necessary ground and transition flight simulator training required by Part 121 of
the Federal Aviation Regulations [14 C.F .R. 121.1 et seq.] to qualify First Officer Shaw for duty
as a first officer.
36. More specifically, on March of 2008 First Officer Shaw participated in and
completed the "First Officer Dash 8-Q400 Initial/Transition Course" at FSI's Toronto Learning
Center.
37. At all times relevant to this Complaint, up to and including February 12, 2009,
Defendant FSI, from its headquarters in Flushing, Queens County, New York, actively marketed
its services to the aviation community, airlines, private companies and the general public,
proclaiming that "The best safety device in any aircraft is a well trained crew.'®" - making clear
that FSI's products and training were offered not just for the benefit of its customers, but for
those passengers and flight attendants that flew on its customer's aircraft.
38. At all times relevant to this Complaint, up to and including February 12, 2009,
Defendant FSI advertised on its website that it provided "safety centered training to flight crews
of Bombardier regional jets: and provided training on the Dash 8-Q400 and claimed to have "day
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to day working relationships with the great majority of the aircraft manufacturers, which
ensures ... access to the latest bulletins and best practices advisories." Despite this advertising
and these claims, upon information and belief, FSI never provided instruction to the Captain or
the First Officer in utilizing the stick pusher component in the Dash 8-Q400.
39. At all times relevant to this complaint, up to and including February 12, 2009,
upon information and belief, Defendant FSI provided to its customers and utilized in its training
Dash 8-Q400 simulation and training equipment that was not representative of aircraft
performance.
40. Upon information and belief, at all times relevant to this Complaint, up to and
including February 12, 2009, FSI was under tremendous financial pressure, and FSI's president
exhorted employees in an April 3, 2003, memorandum to "do more to reduce costs and increase
revenues" because "[a]t the present time, expenses are too high for the amount of revenues we
generate;" he pressured employees to cut costs, reduce staffing, increase revenue, and do
everything possible to run things more "efficiently;" he referred to the current "training systems
that.. .need[ed] to challenge and impress customers, make learning fun, and provide a level of
competency not yet achieved;" he asked all employees to "consolidate jobs," "cut overhead,"
"better utilize" instructor time, and "find creative ways to streamline processes, both human and
computerized .... " This corporate culture and purposeful decision making led to substandard
flight and simulator training where key components of the aircraft - including the stick pusher
mechanism on the Dash 8-Q400 were not adequately or accurately represented by flight
simulation and training devices, and thus not adequately explained or taught.
41. Defendants, and each of them, and their parents, subsidiaries, associates, and
partners, at all times pertinent hereto, and each of them, were the agent, servant, employee,
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assignee, successor in interest or joint venture of each other, and were acting within the time,
purpose or scope of such agency or employment; and all acts or omissions alleged herein of each
such defendant were authorized adopted, approved, or ratified by each of the other defendants.
42. At all times here mentioned, defendants, and each of them, were fully informed
of the actions of their agents and employees and thereafter no officer, director, or managing
agent of defendants repudiated those actions, which failure to repudiate constituted ratification,
43. Each of the defendants actions described in this Complaint were wanton and
reckless and demonstrated a conscious indifference and utter disregard of their effects upon the
health and safety of others, including the Plaintiff s decedent, Donna Prisco
COUNT I
44. Plaintiff incorporates by reference all prior and subsequent allegations of this
Complaint.
45. Donna Prisco, on February 12, 2009, was an employee of Defendant, Colgan,
working on board Continental Connection Flight 3407, enroute from Newark, New Jersey to
46. Defendant, Colgan, owed a duty to Donna Prisco, to conduct operations safely as
not to jeopardize the health and lives of their employees. Defendant, Colgan violated this duty,
and was negligent, careless, reckless, willful and wanton, including but not limited to the
following particulars:
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including but not limited to, airspeed limitation compliance, incorrect use
procedures
shaker"
training
n. failed to effectively monitor and enforce their policy of flight crews not
o. failed to monitor and prevent crews from long commutes preceding crew
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pilots
t. failed to provide adequate and well trained flight instructors and check
airmen, and/or
47. Defendant, Colgan, knew, or in the exercise of ordinary care should have known,
that the negligent, careless, reckless, willful and wanton acts, listed in Paragraph 46, would result
48. The death of Donna Prisco was more than the mere fact of life of industrial
employment and was the result of the Defendant Colgan's negligent, careless, reckless, willful
COUNT II
49. Plaintiff incorporates by reference all prior and subsequent allegations in this
Complaint.
50. At all relevant times herein, defendants Colgan, Continental and Pinnacle were
authorized common carriers by air transportation and owed a duty of care to Plaintiff's decedent
to operate and maintain the aircraft with the utmost of care and to the highest degree of safety.
Share Agreement dated July 1, 1997 between Colgan and Continental, the rights and
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Colgan, said Defendants acted in concert, each as the agent and/or principal of the others,
for the purposes of their joint and several use and operation of Civil Aircraft N200WQ on
February 12,2009, as Continental Connection Flight 3407 and their joint and several
52. The crash of continental COlmection Flight 3407 and resulting death of Plaintiff's
decedent as aforesaid were proximately caused through no fault of the decedent by joint and
several negligence, careless acts and omissions, wrongful acts and omissions, wanton and willful
acts and omissions, recklessness and dereliction of duty of Defendants Colgan, Pinnacle and
Continental and, further, by their failure to take all necessary means to avoid the crash and fatal
injuries to Plaintiff's decedent, accordingly, each of the said Defendants is jointly and severally
53. At all times herein relevant, defendants, and each of them, negligently, carelessly,
wantonly and recklessly operated, maintained, controlled, inspected, serviced, repaired, loaded,
dispatched, scheduled, and monitored flight 3407 and had negligently, carelessly, and recklessly
trained flight crews, including the crew of flight 3407. Further, defendants, and each of them,
negligently, carelessly, and recklessly leased and/or purchased the N200WQ for the purpose to
wantonly and recklessly dispatched, operated, and flew flight 3407 into icing conditions knowing
said aircraft was inadequately equipped with ineffective de-icing equipment, and had negligently
failed to train the crew of flight 3407 to operate the aircraft in such circumstances.
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55. That as a direct and proximate cause of the acts and conduct alleged herein, the
flight went out of control and flight 3407 was caused to, and did, crash, thereby injuring
Plaintiff's decedent and causing her death and the injuries and damages sustained by Plaintiff
herein.
COUNT III-
this Complaint.
57. The aircraft and its component parts, systems, manuals, instructions, and
manufacture, and/or marketing and the failure of defendant to give adequate and proper
warnings of the dangers existing therein and adequate instructions regarding the
avoidance of such dangers. The defective and umeasonably dangerous conditions in such
aircraft exposed Plaintiff's decedent and the public in general to an umeasonable risk of
harm and were a producing cause of Plaintiff's injuries and damages. The umeasonably
dangerous conditions /defect(s) include, among other things, the de-icing system, the
pilot's operating manual, the flight control systems, maintenance manuals and
procedures, and the absence of adequate warnings and instructions regarding such
dangers, including but not limited to the failure to provide pilots with a system to
58. At the time the subject aircraft and its de-icing system, maintenance
procedures, and other pertinent component parts were sold and/or marketed and/or placed
into the stream of commerce by defendants, such products were defective and
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decedent, who could reasonably be expected to use or benefit from it, and which
defective and unreasonably dangerous conditions were a direct and proximate cause of
Plaintiff's damages, The subject aircraft was also defective by reason of such
dangers associated with the design and foreseeable maintenance and use of the products
and how to avoid such dangers, and which defects rendered the subject aircraft
unreasonably dangerous and a direct and proximate cause of Plaintiff's injuries and
damages.
59. Defendants are aerospace manufacturers who hold themselves out to the
public as having superior knowledge, skill and experience in the design, construction,
manuals, and inspection of transport category aircraft and their components, and, in the
manuals, and caused to be certified under Part 25 of the federal Aviation Regulations the
Dash 8-Q400 model transport category aircraft, including N200WQ, which defendants
expressly and impliedly warranted was fit for its intended purpose use as a vehicle in air
transportation, being airworthy and free of unreasonably dangerous defects; and, further,
defendant marketed, sold, distributed and caused to be introduced N200WQ into the
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60. The uncontrolled flight and crash alleged herein and the injury, damage,
conscious indifference and utter disregard of their effects upon the health and safety of
Count III
this Complaint.
63. At all times herein relevant, defendants, and each of them, so negligently,
carelessly, wantonly and recklessly designed, manufactured, tested, and marketed the
aircraft and its component parts, systems, manuals, instructions, and warnings so as to
have causes the loss of control and crash of flight 3407. Defendants knew, or in the
exercise of ordinary care should have known, that aircraft and its component parts,
systems, manuals, instructions, and warnings were defective and unreasonably dangerous
to those persons likely to use the products for the purposes and in the manner for which
they were intended to be used and for the purposes reasonably foreseeable to such
defendants, including the purpose for which N200WQ was used on February 12, 2009.
Defendants were negligent in the particulars set forth in this and the preceding
paragraphs, among other reasons, and said negligence was a proximate cause of the
occurrence made the basis of this suit and Plaintiff's injuries and damages.
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64. Defendants knew, or in the exercise of ordinary care should have known,
of the means of designing, testing or equipping the subject aircraft, manuals, de-icing
system, and flight control systems, such that the type of incident and resulting injuries as
described herein would be prevented. Defendants had actual knowledge of the means of
designing and testing an aircraft, manuals and flight control systems, including but not
limited to a system that would provide pilots with adequate warnings of dangerously low
airspeeds, approaching stalls or imminent stalls, such that They would not be inadequate
Continental, Pinnacle, Colgan and Plaintiffs decedent, and failed to recall or timely
recall the products or make appropriate post-marketing efforts to prevent incidents such
violated their duty and were negligent, said negligence including those acts of omission
severally, were a proximate cause or causes of the accident made the basis of this suit, the
injury to and death of decedent, and the injuries and damages sustained by Plaintiff.
66. The defective condition and consequent crash of the aircraft were
and reckless acts and omissions of said defendants in design, manufacture, assembly,
aircraft and in their failure to warn of and take appropriate remedial action with respect to
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a known and dangerously defective condition. Defendants' actions were done knowingly
and intentionally, wanton and reckless and demonstrated a conscious indifference and
utter disregard of their effects upon the health and safety of others, including the
COUNT IV
this Complaint.
68. Defendants, by and through the sale of the products in question, expressly
and impliedly warranted to the public generally, and to the Plaintiff's decedent
specifically, that the products in question were fit for the purposes for which they were
intended.
69. Plaintiff's decedent made use of the products as alleged herein, and relied
70. Contrary thereto, the products were not fit for their intended and
71. Defendants breached their express and implied warranties because of the
products' failure and defective components as alleged herein, and because of the
or defects and failure to instruct in the safe operation and maintenance of the products
rendered the products unreasonably dangerous and a proximate cause and producing
cause of the occurrence in question and the resulting injuries suffered by Plaintiffs.
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Further, defendants' conduct was done knowingly, intentionally and was wanton and
reckless and demonstrated a conscious indifference and utter disregard of their effects
upon the health and safety of others, including the Plaintiffs decedent, Donna Prisco.
73. The crash of the aircraft and death of Plaintiffs decedent was proximately
warranties of the said aircraft's fitness for use and defendant's breach of its
representations that the Dash-8 Q400 model aircraft, and, in particular Dash-8, were free
detriment upon defendants' express and implied representations of safety and fitness for
75. As a direct and proximate cause of the breach of each warranty, N200WQ
was caused to, and did, crash, causing the injuries, death, and damages complained
herein.
COUNT V
this Complaint.
77. Upon information and belief, the Defendant FSI conducts and operates a
78. Upon information and belief, in March 2008, the Defendant FSI provided
training and instruction to Colgan employee Rebecca Shaw, the First Officer on
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Marvin Renslow, the Captain on Continental Connection Flight 3407, was trained and
instructed in the operation of the Dash 8-Q400 aircraft at FSI's St. Louis Training Center
80. Upon information and belief, Defendant FSI designed the aforesaid
training programs and simulator(s) used therein that were provided to Rebecca Shaw and
81. Upon information and belief, the crash of Continental Connection Flight
3407 was proximately caused by the negligence, careless acts and omissions, wrongful
acts and omissions, wanton and willful acts and omissions, and recklessness and
dereliction of duty of Defendant FSI in instructing and training Rebecca Shaw and
Marvin Renslow and/or its creation and/or design of the aforesaid programs of instruction
and training.
82. As a result of the foregoing, Defendant FSI proximately caused the fatal
crash of Continental Connection Flight 3407 and the resulting injuries and damages to
Plaintiff's decedent.
compensatory damages in a sum that exceeds the jurisdictional limits of all lower cOUlis
which would otherwise have jurisdiction and for punitive damages; Plaintiff will seek
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COUNT VI
this Complaint.
85. The crash of Continental Connection Flight 3407 and resulting death of Plaintiff s
decedent as aforesaid were proximately caused through no fault of the decedent by the
negligence, careless acts and omissions, wrongful acts and omissions, wanton and willful acts
and omissions, recklessness and dereliction of duty of Defendant FSI, acting by and through its
officers, agents, servants, and employees, while affirmatively discharging its contractual
obligations pursuant to its contract(s) with Defendants Colgan, Pinnacle and/or Continental.
Defendants Colgan, Pinnacle and/or Continental, Defendant FSI created an unreasonable risk of
harm to others, increased a risk of harm to others, created a dangerous condition, and/or
87. Upon information and belief, Plaintiffs decedent and other Continental
Connection Flight 3407 passengers relied upon FSI's performance of its contractual obligations.
88. As a result of the foregoing, Defendant FSI launched a force and/or instrument of
harm and was a proximate cause of the fatal crash of Continental COID1ection Flight 3407 and the
as follows:
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2. For damages arising from the pre-impact physical pain and suffering, and
7. For costs of suits incurred herein and attorneys fees as allowed by law;
9. For such other and further relief as the COUli may deem just and proper.
By~'~~__~~~~__~
Fidelma L. Fitz rick
Attorney for Plaintiff
Motley Rice LLC
275 Seventh Ave., 2 nd floor
New York, NY 10001
Tel. (401) 457-7728
Fax (401) 457-7708
ffitzpatrick(iiJ,motleyrice.com
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