United States District Court, C.D. California
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE
a Federal Tort Claims Act (“FTCA”) case in which
Plaintiff Aeros Aeronautical Systems Corporation is suing the
United States for damages for the loss of a unique,
blimp-like aircraft known as the RAVB (pictured below). Aeros
was housing the RAVB in a government hangar in Tustin,
California, when the roof collapsed. The Court has already
determined that the government was negligent in maintaining
the hangar and is, therefore, liable for the loss. The issue
that remains is damages. Plaintiff claims that the RAVB was a
state-of-the-art, one-of-a-kind airship and seeks damages in
the amount of $65 million dollars. The government contends
that the aircraft was worthless at the time of the roof
collapse and that, as a result, Aeros is not entitled to any
damages. For the reasons set forth below, the Court concludes
that Aeros is entitled to $6, 882, 918 for the loss of the
aircraft and the consequential damages that flowed from the
picture of the RAVB during flight testing in August 2013.
FINDINGS OF FACT
Plaintiff Aeros is incorporated under the laws of the state
of California and has its principal place of business in
Defendant is the United States government, acting through the
Department of the Navy and its employees, officers, and
of the RAVB
2008, the government sought to determine the feasability of a
rigid-aeroshell, variable-buoyancy aircraft to carry troops
and equipment around the world. Exh. 565 at 1-2. The goal of
the project was to design, construct, and test Aeros's
proprietary Control of Static Heaviness or “COSH”
system. Exh. 565 at 4. The COSH system allows a
heavier-than-air aircraft, similar to a blimp, to become
buoyant by releasing compressed helium (stored in canisters
inside the aircraft) into bladders inside the aircraft until
the aircraft becomes buoyant. The aircraft can then be flown
to the intended destination and descend to the landing site
by compressing a sufficient amount of helium to make the
aircraft heavier than air. After unloading people and/or
equipment, the crew can then release the helium back into the
aircraft, causing it to become lighter than air again,
allowing it to be flown away. Reporter's Transcript
(“RT”) 4/11/17 a.m. at 39:8-21.
2008, the government and Aeros began negotiations for the
development of an aircraft to test the COSH system. RT
4/11/17 a.m. at 43:10-44:20, 132:14-23. The government was
not interested in having Aeros develop a working prototype.
It was, instead, interested in having Aeros build a
demonstrator model so that the COSH system could be tested
inside a hangar to see if it would work. The proposed
contract did not require nor did it contemplate that the RAVB
would be flown outside the hangar. RT 4/14/17 a.m. at 14:12-16.
was selected as the contracting agency for the government.
Exh. 565 at 1. It was tasked with providing technical and
project assistance to Aeros as well as contract management.
RT 4/14/17 a.m. at 6:2-4.
During negotiations, Aeros offered to perform the contract
for $50.9 million. RT 4/12/17 p.m. at 67:25-68:24; Exh. 548;
Joint Stipulated Facts (Doc. No. 195-1) (“JSF”)
¶ 2. NASA rejected this offer. JSF ¶ 3.
Through a series of negotiations, Aeros and the government
ultimately agreed to a firm, fixed-price contract of $38.2
million dollars to build and test the RAVB. RT 4/12/17 p.m.
at 72:3-25. The evidence established that during the
negotiations the government and Aeros recognized that it
would cost Aeros slightly more than $43 million to build the
RAVB and perform the tests anticipated under the contract,
about $5 million more than the government was willing to pay.
RT 4/12/17 p.m. at 70:12-71:24. Further, that $5 million
shortfall was premised on Aeros performing the contract for
the estimated price. Were the costs to exceed the estimates,
under the contract, Aeros would have to absorb those costs.
The contract also provided, however, that the government was
limited in how it could use the data developed by Aeros and,
importantly, that Aeros could keep the RAVB at the end of the
contract. RT 4/14/17 a.m. at 16:6-20, 12:10-18; RT 4/12/17
p.m. at 70:12-15; Exh. 38 at 7.
the next four years, there were a total of 39 modifications
to the contract for various changes and additional testing.
Exh. 575; JSF ¶ 1. Ultimately, the contract price
swelled to $54.5 million.
Aeros leased a hangar from the Navy at the former Marine
Corps Air Station in Tustin, California to construct the
Aeros developed and built the RAVB using a rapid prototyping
process called “Iterative - Prototyping
Development.” This was not the way the government
normally developed aircraft. Typically, the government would
come up with engineering requirements, create a design,
analyze the feasibility of such an aircraft, and build a
prototype to verify and validate the design. RT 4/14/17 p.m.
at 5:6-17, 17:11-20; Exh. 155 at 24. The build-out of the
RAVB, however, was accomplished through trial and error. As
one NASA engineer observed, Aeros's philosophy was to
build and test, and, if it failed, to redesign, rebuild, and
retest. RT 4/14/17 p.m. at 15:6-13. This trial and error
process resulted in considerable inefficiencies. For example,
Aeros used several different materials for the skin of the
RAVB, trying one, abandoning it, and then trying another. RT
4/14/17 p.m. at 13:15-14:14.
Because the RAVB was a demonstrator model, not a
production-line aircraft, Aeros did not have in place
policies and procedures necessary to develop any of the
specialized engineering plans or drawings which would allow
for the recreation of the RAVB. RT 4/11/17 a.m. at 70:16-18.
In fact, no production drawings or work instructions were
created for the RAVB. RT 4/11/17 a.m. at 70:21-71:7,
106:15-20, 108:8-10, 108:16-109:4. Aeros possessed conceptual
designs for the RAVB but the adjustments made during the
actual construction, such as altering the placement or type
of a bolt used, were not marked in production drawings
because no such drawings were made. RT 4/11/17 a.m. at
RAVB was built by hand. RT 4/11/17 a.m. at 54:5-8. It had a
three-dimensional frame composed of trusses. The trusses were
made of aluminum and carbon or carbon with aluminum ends. RT
4/11/17 a.m. at 53:16-23. Aeros built the internal frame
system like a “house of cards” from the bottom
up. RT 4/11/17 a.m. at 54:1-8.
Aeros did document changes to the conceptual design learned
from the in-process testing and construction it carried out
on what it called “red line” or “red
pen” drawings. RT 4/11/17 a.m. at 72:15-21; RT 4/12/17
p.m. at 12:3-13. Engineers made notes on drawings of the
structure which were hung up on the wall at the hangar. RT
4/12/17 p.m. at 12:19-13:7. Those drawings were lost after
the roof collapsed.
part of the contract, the government made NASA engineers
available to Aeros for consultation on design, engineering,
and construction. NASA assigned the Systems Analysis Group to
work with Aeros on the NASA Contract. Dr. John Melton served
as the technical liaison between Aeros and NASA. Dr. Melton
was a senior aerodynamic engineer in the Systems Analysis
Group and had been an engineer with NASA since 1985. RT
4/14/17 a.m. at 47:2-19. Michael Ospring was another NASA
engineer who provided technical assistance to Aeros for the
RAVB project. RT 4/14/17 p.m. at 5:15-9:1. He worked for NASA
for 41 years. RT 4/14/17 p.m. at 6:5-9.
Aeros had its own engineers working on the project as well.
Ultimately, Timothy Kenny became the lead engineer and later
the director of engineering at Aeros. RT 4/12/17 a.m. at
35-36. In 2007, he earned his undergraduate degree in
engineering. RT 4/12/17 a.m. at 62:25-63:1. In 2009, he
started working for Aeros. RT 4/12/17 a.m. at 35. He had no
training in aerodynamics and had never worked on an aircraft
before coming to Aeros. RT 4/12/17 a.m. at 64:3-66:23. The
NASA engineers found the Aeros engineers young,
inexperienced, and overwhelmed. RT 4/14/17 p.m. at
NASA engineers were deeply troubled by Aeros's design,
engineering, and construction practices. They regularly
questioned Aeros's methods in developing and constructing
the RAVB. During the course of the project, the structural
design of the RAVB changed continually. RT 4/14/17 p.m. at
13:15-14:12. The engineering approach taken by Aeros in the
design and construction of the RAVB was a significant
contributor to the constant changes to the RAVB.
part of the contract, Aeros performed a number of tests. JSF
¶ 18. The most significant test was a test of the COSH
system and of the RAVB's ability to remain heavier than
air and become lighter than air while carrying a weighted
load. This test occurred in January 2013 inside the Tustin
hangar with the hangar doors closed. RT 4/14/17 p.m. at
35:20-37:8; Exh. 486 at 5-6. Five hundred pounds of lead shot
were loaded into the cockpit of the RAVB. RT 4/14/17 p.m. at
36:3-24. Helium was released from canisters inside the RAVB
into bladders inside the RAVB and the RAVB floated off the
Tustin hangar floor to a height of approximately 10 feet. RT
4/14/17 p.m. at 36:3-24. The COSH system was then engaged,
compressing the helium and the RAVB descended to the hangar
floor. The lead shot was then unloaded and the RAVB remained
on the ground, proving that it was heavier than air. RT
4/14/17 p.m. at 36:3-24. Helium was then released back into
the RAVB and the RAVB became lighter than air. RT 4/14/17
p.m. at 36:3-24. The helium was then compressed again and the
RAVB descended to the hangar floor. RT 4/14/17 p.m. at
Four trusses of the RAVB suffered near-catastrophic failure
during this test as a result of the force acting on the RAVB
from lifting off the ground and floating to a height of ten
feet. RT 4/14/17 p.m. at 37:1-17. Those trusses had broken
cores and experienced local buckling. RT 4/14/17 p.m. at
37:1-17. NASA engineers found that multiple end fittings had
failed and several bolts holding the end fittings together
were bent. RT 4/14/17 p.m. at 37:1-17. They also observed
that several bays inside the trusses had buckled and that
several of the cords on a number of trusses had broken. RT
4/14/17 p.m. at 38:4-38:10. In short, as a result of the
in-hangar static hover test the RAVB suffered
“significant structural damage inside the internal air
frame.” RT 4/14/17 p.m. at 37:6-8.
response to the structural failures from the January 2013
test, Aeros undertook repairs that NASA engineers believed
were less than ideal and which were completed without
conducting an analysis of the reasons for the failures. RT
4/14/17 p.m. at 38:13-39:9. NASA engineers wanted to
determine the root cause of the failures but Aeros did not
want to do so. RT 4/14/17 p.m. at 38:13-39:9. Instead, Aeros
repaired or replaced the broken structural components with
the same materials that had failed in the hangar test. RT
4/12/17 a.m. at 68:13-19; RT 4/14/17 p.m. at 38:13-39:9. In
several locations, Aeros simply taped the structures
together. RT 4/14/17 p.m. At 38:13-39:1. None of these
repairs allayed NASA's concerns about the structural
defects of the RAVB.
Aeros subsequently decided that it had to take the RAVB
almost completely (70%) apart and rebuild it, a process that
took four months at a cost of $5.5 million. RT 4/12/17 a.m.
at 37:3-14; RT 4/17/17 a.m. at 88:14-90:8. The aircraft was
“disassembled down to its bare structure” and it
was reassembled. RT 4/12/17 a.m. at 37:3-21.
Additional in-hangar testing, including a repeat of the
January 2013 test, was conducted during the summer of 2013.
This was the final test for the RAVB under the contract and
the test was successful. JSF ¶ 18.
the spring of 2013, NASA learned that Aeros was planning to
conduct an outdoor flight test of the RAVB. RT 4/14/17 p.m.
at 39:13-17. Upon learning this, NASA engineers working on
the project became very concerned. RT 4/14/17 p.m. at
39:18-40:21. They knew that an outdoor flight test would
subject the RAVB to considerably more load than the in-hangar
tests and they were worried that the RAVB's structure
could not handle the load. RT 4/14/17 p.m. at 40:21-24.
Accordingly, NASA engineers performed a computer analysis to
determine the structural integrity of the RAVB under a
rational set of outdoor loads, using a modest forward flight
speed and modest wind speeds. RT 4/14/17 p.m. at 41:2-5. NASA
also asked two computational fluid dynamics experts, one from
NASA and one from outside NASA, to devise a series of
pressure distributions based on loads for the RAVB. RT
4/14/17 p.m. at 41:5-9. That load case assumed a 30-knot
forward speed and a 20-knot gust of wind. RT 4/14/17 p.m. at
41:10-14. These experts determined that, under those
conditions, there was a strong possibility of structural
failure throughout the RAVB. It was only when the forward
speed was reduced to 10 knots and the wind speed reduced to
10 knots that failure could be avoided and then only barely.
RT 4/14/17 p.m. at 41:17-23, 42:8-24; Exh. 497 at 4-5.
Ultimately, the engineers concluded that “unless they
flew [the RAVB] at very, very low speeds and encountered,
really, no gust loads, ” the RAVB structure would
likely be damaged. RT 4/14/17 p.m. at 42:19-24.
This analysis caused NASA engineers grave concern. RT 4/14/17
p.m. at 42:19-24. In May 2013, they drafted a report for NASA
management, warning that an outdoor flight of the RAVB
demonstrator could be catastrophic. Exh. 497. In an August
2013 report, they described the RAVB and Aeros's
engineering approach and presented the results of the
analysis, concluding: “[f]rom a structural perspective,
the lack of design requirements, loads and load cases,
verification approach, complete engineering analysis and
overall configuration management resulted in a RAVB structure
that is thought by NASA to have been at the very limit of its
structural ability in rising, in a level altitude, in still
air.” Exh. 486 at 17; RT 4/14/17 p.m. at 69:20-70:17.
They concluded that the RAVB, “as currently designed,
cannot sustain any combination of buoyancy, forward speed,
rational gust speed, intertial force and nominal angle of
attack without inducing negative margins in structural
elements.” Exh. 497 at 5. In response to the warnings,
NASA management attempted to persuade Aeros not to conduct an
outdoor flight. RT 4/14/17 p.m. at 44:16-25.
Aeros disagreed with the government's analysis and
elected to go forward with flight tests outside the hangar.
It obtained a 60-day Experimental Research & Development
Airworthiness Certificate from the FAA. Exh. 512 at 7. The
FAA safety inspector who was involved in certifying the RAVB
for outdoor flight testing did not know that NASA had advised
Aeros not to fly the RAVB outside when he approved the flight
testing. RT 4/14/17 p.m. at 144:16-18. Nevertheless, he
limited Aeros to altitudes of 50, then 100, feet. Exh. 512 at
August 30, 2013, the RAVB was flown outside the hangar for
the first time. Ex. 736 at 3. Over the next 12 days it was
flown outside four more times. Exh. 736.
History Channel crew was on site at the Tustin hangar for
three months in the summer of 2013, videotaping many aspects
of the flight testing, including the outdoor flight tests. RT
4/12/17 a.m. at 16:16-17:1. The final flight of the RAVB was