Swift Air execs want separate trial on liability, damages issues

Swift Air executives Jeffry Conry and Boris Van Lier are asking the federal court to separately try the issues of liability and damages in Saipan Air Inc.’s lawsuit against them.

Attorney Michael A. White, counsel for Conry and Van Lier, asked the U.S. District Court for the NMI to issue an order separating the liability and damages phases of the trial scheduled for Feb. 2, 2015.

In the alternative, White asked the court that the determination of the amount of punitive damages, if any, be bifurcated from the balance of the trial.

White said the issue of liability for the alleged fraud is separate and distinct from the amount of damages Saipan Air claims it is entitled to.

White said Saipan Air contends defendants are liable for practically all—if not all—expenses it incurred from April 6 through June 21, 2012.

The lawyer said the amount of alleged compensatory damages depends on evidence that overlaps only to a limited extent with any evidence of liability.

He said that based on its itemized statement of damages, Saipan Air intends to seek as part of its damages “miscellaneous itemized expenses incurred between April 6, 2012, and June 21, 2012,” totaling $741,370.78.

White said those miscellaneous expenses include hundreds of separate items, and defendants had direct involvement with few, if any, of those expenses.

White said going through each of the miscellaneous expenses would consume hours of the court’s, jury’s, and parties’ time.

“If the issues are not bifurcated, the parties will be required to engage in the exercise of addressing each item of expenses even if the jury ultimately determines that defendants are not liable to Saipan Air for fraud, the lone remaining claim,” he said.

White said Conry and Van Lier would be severely prejudiced if Saipan Air is permitted to inform the jury that it seeks $10 million in punitive damages from the two prior to the determination of liability for any compensatory damages, much less punitive damages.

He said providing the jurors with that information, which has no relevance to liability, would serve no purpose other than to paint Conry and Van Lier as bad actors based on the sheer amount of damages sought by Saipan Air.

White said the trial could also be expedited if Saipan Air is prohibited from presenting evidence going only toward the amount of punitive damages during the liability phase of the trial.

He said Saipan Air did not identify the basis for its original punitive damages request of $50 million in response to defendants’ first set of interrogatories.

However, White said, Adam Ferguson, Saipan Air’s witness, testified relative to how Saipan Air determined the amount of its original punitive damages claim.

White said that Conry and Van Lier vehemently dispute that it is proper for Saipan Air to seek punitive damages for the economic injury to the island and people of Saipan as a whole.

White said although Saipan Air has reduced its punitive damages claim by $40 million, it presumably applied a similar approach to determining the amount of its current punitive damages claim.

“Any evidence Saipan Air intends to present regarding the impact on the tourist industry in Saipan or on the markets in Japan and China, including any injury to any individual or entity other than Saipan Air, would have absolutely no relevance to the issues of liability or compensatory damages in this case,” he said.

White said it would be improper to address the issues of liability and the amount of punitive damages, if any, in a single trial.

White and attorney Nathan Duggins are representing Conry and Van Lier. Attorney Steven Pixley is counsel for Saipan Air Inc.

Last month, Manglona ruled that Saipan Air’s fraud claim against Conry and Van Lier shall proceed, but not against Swift Air’s Donald A. Stukes.

Manglona also granted summary judgment in favor of Conry, Van Lier, and Stukes in Saipan Air’s claims for violations of Racketeer Influenced and Corrupt Organization Act and for unjust enrichment. This means that Saipan Air’s RICO and unjust enrichment claims in the lawsuit are dismissed.

The trial will be against Conry and Van Lier relating to the fraud claims.

Conry and Van Lier are currently employed by Arizona-based Swift Air, which emerged from bankruptcy in 2013.

Saipan Air filed the racketeering lawsuit against Conry, Van Lier, and Stukes in July 2012.

Swift Air filed for bankruptcy protection in Arizona shortly after notifying Saipan Air that it would not deliver two 757 aircraft and one 737 aircraft for Saipan Air’s program. Saipan Air was unable to sue Swift Air directly because of the bankruptcy filing.