Posted on 03/13/2003 8:06:41 AM PST by Scholastic
And with good reason: The NTSB has never issued an official cause for TWA800. They have only offered a theory, backed by the rather unique assistance of the Central Intelligence Agency.
A good civil lawyer (like the incomparable Gerry Spence) would certainly exploit this and Boeing would come out vindicated.
Not exactly, counselor. IF the movant has satisfied their initial burden on summary judgment of essentially showing by whatever means there is no genuine issue of material fact, it is then up to the non-movant to show discovered facts outside of the pleadings that prove there are sufficient material facts in question. While this is the federal standard (where this case is), state standards vary. In Texas, for example, there is no requirement on the part of the non-movant to even respond. The motion for summary judgment stands or falls on it's own.
Either way, it has nothing to do with "admitting" anything, only acknowledging whether there are or are not sufficient material fact issues. Summary judgment is a huge part of my practice, and I win the majority of mine. I would almost never recommend a non-movant not respond, but getting sloppy when it comes to burdens on either party can prove fatal -- either at that time or on appeal.
We already thrashed this issue out in posts 79 and 118. 56.1 is an EDNY Local Rule, not FRCP at all. So it wasn't the motion in its entirety, just the SMF that the government allegedly didn't respond to. That would go to the establishment of facts - not the granting of the motion - but only if certain other events did not occur. Since this is an interested party and not an independent reporter, and nobody has disclosed the pleadings or the government's response, the story really doesn't tell us what (if anything) the consequences will be.
Just like Texas, the Georgia Fed Districts (and the state courts, too) do not grant a MSJ simply because the opposing party does not respond. The movant still has to demonstrate that no disputed question of material fact exists and that he is entitled to judgment as a matter of law, with all inferences construed against him. Not always an easy task. And a plaintiff's MSJ is significantly more difficult to win than a defendant's MSJ.
In the deathless words of Topsy, "Somebody ain't tellin' all they knows."
When I was in private practice, my rule was never to file a MSJ if I wasn't pretty darned sure I could win it. I would settle the losers rather than file a useless motion, unless the plaintiffs weren't amenable to a reasonable settlement, in which case we took it to trial and either settled it on the courthouse steps or fought it out in front of the jury. (Surprising how many lawyers don't REALLY want to try a case, isn't it? :-D )
One unexpected side benefit of this practice was that after a few years the judges knew that I didn't file junk. They seemed to appreciate that. Did it tip a close case my way? Don't know. But making judges' lives easier is a good rule to live by!
You are just erecting a strawman to knock down.
No one with knowledge of the sequence of events is maintaining that the "massive fireball" was the explosion of the CWT. The Massive Fireball was the explosion of the fuel from the almost full wing tanks that had ruptured by the time the aircraft had descended from 13,800 feet (where the initiating event occured whether it be missile or CWT exposion) to under 8,000 where the Large Fireball was witnessed.
Exterminators! Keep Lincoln's old adage in mind: the best thing for the business of a small country lawyer in a small town is the appearance of another lawyer.
Our coming out of the woodwork on Freerepublic.com may not help our business (and I am in government in any event), but maybe some day we can get our TWP posts back.
I suspect I have read much more of the evidence and qualifications than have you. Enjoy your train trip.
I have... and posted the math here on FR. The math, based on radar returns and triangulation, shows that TWA-800 climbed a maximum of 200 feet (more likely less than 100) before beginning a ballistic fall that terminated in the Atlantic Ocean exactly where the math said it would in the time the math said it would.
The CIA scenario (~3000 foot climb in ~8 seconds) and the NTSB scenario (~1700 foot climb in ~8 seconds) REQUIRE an additional 8 seconds of FALL TIME from the peak altitude merely to return to the altitude of the initiating event... which adds SIXTEEN SECONDS to the time to fall from ~13,800 feet (the altitude of the initiating event)... time which cannot be accounted for in the radar returns! At least FOUR MORE radar returns would have been shown had either scenario occurred.
In addition, your argument about kinetic energy conservation holds no water. If TWA-800 had given up forward momentum for vertical climb, the parabola of the ballistic fall would have been much steeper (larger vertical radii, shorter horizontal radii). In other words, had there been any significant climb at all, the splahsdown location would have been MUCH closer to the position of the initiating event than it was. Since the radar returns and the splashdown location coincide almost exactly with a theoretical ballistic fall from the initiating event at ~13,800 feet, there was no climb.
Show me math from your "good aerodynamics book" that will allow a 747 to climb and fall 3000 feet adding an additional SIXTEEN SECONDS and still splash down when and where it actually did. You can't. And neither can the CIA or the NTSB.
OK, here are some of your eyewitness accounts. All describe something different. So which are right and which are BS?
EYEWITNESS Michael Wire, described by the CIA as a key eyewitness, saw what he at first thought was a "cheap firework" ascending from behind a house near the beach, arching over, speeding out to sea, and culminating in an explosion so powerful that it shook a 70-ton bridge on which he was standing.
EYEWITNESS Dwight Brumley, an excellent witness according to the CIA, was in a plane going north when he noticed a fast-moving light at a lower altitude also going north. Its flight ended with two explosions a short distance ahead. He said another passenger told him he had seen the cabin lights of eastbound TWA 800 before the explosions.
EYEWITNESS Richard Goss was on the porch of the Westhampton Yacht Club gazing over the ocean. He saw what he thought was a firework going straight up. It was very bright, almost pink. It arched over and went south out to sea, but it then made a sharp left turn. Two explosions followed, the second more to the east and larger, like something broke off and caught fire.
EYEWITNESS Paul Angelides, an engineer, from the deck of his beach house saw a red glowing object quite high in the sky. At first it moved slowly, leaving a short white smoke trail, but it picked up speed, streaking out to sea. He lost sight of it when it was about 10 degrees above the horizon. He then saw a series of flashes followed by a fireball falling into the ocean. He heard a prolonged boom like thunder followed by three loud bursts of sound, the last so strong that it shook the house.
EYEWITNESS Maj. Frederick Meyer was in an Air National Guard helicopter when he saw a streak of light 10 or 15 miles away for 3 to 5 seconds. He lost it for about a second, and then further to the left he saw two bright white explosions, which he identified as ordnance, followed by a fuel explosion that was bright orange.
EYEWITNESS William Gallagher was on his boat facing east 10 to 12 miles west of TWA 800 when he saw what looked like a red flare heading into the sky from the horizon from his right to his left, meaning that it was going toward the shore. He said it became a "big white ball of light, from which two orange streaks emerged. One went down and the other arched up a little before coming down," he said.
EYEWITNESS #649 was in Westhampton when he noticed an object from behind the trees in front of him. It was bright white with a reddish pink aura, rising vertically at moderate speed. It then veered southwest, out to sea, appearing to slow and "wiggle." It then speeded up. He noticed it was going toward what appeared to be stationary glittering object higher in the sky. It looked like it would miss that object, but in less than a second he saw a white flash followed by another farther east, and two objects arching upward, trailing smoke that turned into large balls of fire
All different, half say the missile came from shore, and not a single one resembles any of the missile firings that I've ever seen, and I personally witnessed over a dozen, both day and night. I've seen Standard missiles fired, Tarter missiles fired, I even saw them shoot off one of the old Talos missiles once, and they are all alike. The launch is marked by a brilliant flash of fire. The missile gives off a plume of smoke and flame that trails behind it for a hundreds of feet. None of these accounts sound anything like that. None of the accounts that I've seen from anyone sounds like that.
So I don't know what caused the plane to explode. I just know what it can't be, based on your 'evidence'. It wasn't a Navy missile.
Under different circumstances, and you have to admit that they did a bang up job of hushing that one up, too. </sarcasm>
But hey, far be it from me to piss all over your Post Toasties. You believe whatever you want to believe.
In some 30 years of litigation experience I have never seen the government fail to contest a summary judgment motion. Not only is this minor, it is an extremely significant breakthrough.
Please explain also how such a failure to contest by the government is something other than a fact?
The only question here is whether the assertion of the fact is true, which is a matter of public record.
I still remember a very early radio news item that mentioned the FBI questioned the owner of a boat rental operation. Never heard or read that again in the news.
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