Aviation Law Monitor : Aviation Lawyer & Attorney : Michael Danko Law Firm : California Airplane & Helicopter Crashes : Aviation Law Monitor

Aircraft engine manufacturers recommend that owners overhaul their engines when they accumulate a certain amount of operating time, usually between 1200 and 2400 hours depending on the engine's make and model. For example, Teledyne Continental Motors suggests that owners overhaul its IO-550 model engine at 2000 hours. Textron Lycoming suggests that owners overhaul its O-235 engine, like the one pictured, at 2400 hours.

Overhauls are expensive.  Some can cost $40,000 or more.  An increasing number of owners opt to run their engines 200, 400 or more hours past the manufacturer's recommended "time between overhauls," or TBO.  Once past TBO, they may take extra precautions by, for example, regularly sending out engine oil samples for spectrographic analysis, checking the engine’s compression, and looking inside certain parts of the engine with a boroscope to insure that  things look good. They feel the manufacturer's TBO recommendations are somewhat arbitrary. By running their engines past TBO they are squeezing more life out of them, and that just makes good economic sense.

The FAA does not require private owners to comply with the manufacturer’s stated TBO interval. The manufacturer's TBO is therefore advisory only.  As long as a properly certified mechanic has

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A crew member injured by an aircraft's defective design may sue to hold the aircraft manufacturer accountable.  At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.

A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft's design by asserting the "government contractor defense."  That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:

1. That the US government specifically required or approved the design feature that caused the accident or injury; 
2. That what the manufacturer built conformed to the specifications that the government approved, and
3. That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn't.

If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft's design caused him.  

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At its annual convention in San Francisco, the California Trial Lawyers Association, known as the Consumer Attorneys of California, honored aviation accident attorney Mike Danko as a Trial Lawyer of the Year finalist for 2009 in recognition of our work in Burdett v. Teledyne Continental Motors. The Trial Lawyers Association showed this video presentation during the ceremony.

The case involved the forced landing of a Beech Bonanza after theTeledyne Continental IO-550 engine installed in the aircraft came apart in cruise flight.

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An A-Star AS350B air ambulance helicopter crashed November 14 at Doyle, California, killing the three crew members on board.  According to an article in the Reno Gazette Journal, the pilot made a distress call before the crash. That indicates that the pilot was likely experiencing a mechanical emergency. The photographs accompanying the article show that the wreckage was spread over a fairly large area.  That indicates that the pilot lost control of the helicopter well before he was able to attempt an emergency landing.

Under the circumstances, the NTSB will be looking at the helicopter's hydraulic actuator system carefully.  The actuators move the helicopter's rotor blades, allowing the pilot to control the flight of the aircraft. The AS350B's hydraulics -- similar to a power steering system in a car --  help move the helicopter's actuators. 

The A-Star helicopter's hydraulics have a troubled history. The hydraulic system seems to fail frequently.  Without hydraulic assistence, the pilot may find it hard to move the actuators and thus the helicopter can be difficult to control.  In fact, one of the country's largest operators of A-Star helicopters is on record as saying that the design of the helicopter's hydraulic system is so prone to failure that it is defective and dangerous and needs to be redesigned.  

While a problem with the hydraulic system can make the helicopter difficult to control, a disconnected actuator control rod will make the helicopter impossible to control. That's what happened in 2007, when an AS350B just like the one in involved in this accident crashed in Hawaii, killing four tourists.

Days after the accident in Hawaii,  the A-Star helicopter's manufacturer, Eurocopter, issued a Special Airworthiness Bulletin (see below) prompted by two previous fatal accidents, warning of the consequences of loose servo control rod end fittings. 

This condition could lead to flight control disconnect and subsequent loss of aircraft control. Two fatal accidents have occurred after the servo-control rod end-fitting became detached from the servo-actuator. 

Of course, it's far too early to say what caused the Mountain Lifeflight accident.  But the helicopter's hydraulic actuator system is certainly something that needs to be looked at very carefully.

AS350BService Bulletin

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This past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight.  As it turns out, a defect in the Zodiac's design induces an aerodynamic phenomenon known as flutter.  Flutter can destroy a wing or other control surface in a matter of seconds.  This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here. 

When the NTSB's issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures.  Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac's manufacturer as an easy target and move against it -- if for no other reason than to quiet its critics.

I was wrong.  The FAA refused to ground the aircraft.  Even I was surprised.

Of course, it was just a matter of time.  On November 6, another Zodiac crashed in Arkansas.   It looks like another flutter-induced failure.  That brings the death toll to 11.  On November 13, the NTSB issued an official "I told you so."

The Safety Board's urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet." 

The NTSB's unstated question:  Just how many deaths are required before the FAA finds "adequate justification" to act?

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Generally, crew members may not sue their employers for injuries sustained on the job. Even where the crew member's injury was caused by the negligence  of the employer or one of the crew member's co-employees, the crew member's sole remedy against his employer is to pursue a workers' compensation case. This is known as the "exclusive remedy rule."  The trouble with the exclusive remedy rule is that worker's compensation benefits are limited and are seldom adequate to compensate a crew member or the crew member's family for the injuries suffered in an aviation accident.  

Fortunately, the exclusive remedy rule does not prevent a crew member from suing third parties who caused or contributed to the injury.  Therefore, a crew member injured in an aviation accident may sue the aircraft manufacturer if the accident was caused by a defect in the design or manufacture of the aircraft.  Similarly, where the accident was caused by the negligence of a mechanic who worked on the aircraft, the crew member may sue the mechanic provided, of course, that the mechanic was not one of the crew member's co-employees. 

There are few exceptions to the "exclusive remedy" rule.  For example, a crew member can sue the employer who caused his injuries where:

• The employer didn't maintain workers compensation insurance;
• The injury was the result of certain types of intentional wrongdoing on the employer's part; or
• The crew member was injured by a product or part that the employer manufactured.

The "exclusive remedy" rule also prevents the crew member from suing any co-worker who caused the accident.  Again, there are a few exceptions for unusual situations. For example, a crew member may sue his co-worker where the co-worker’s actions were malicious and with an intent to cause injury, or when the co-worker was intoxicated. 

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I blogged about Scene Systems' animation of Flight 1549's landing in the Hudson here back in March.  Great effort, but I noted that it would take hundreds more hours of work before it could be used in court.  That's because it did not appear that the animation accounted for and synchronized all the available data for the flight.  For example, the flight path depicted in the animation could not have been true to the information from the flight data recorder, because the flight data recorder had not yet been downloaded and made available by the NTSB.  As a result, Scene System's finished product involved too much guesswork to ever be shown to a jury.

Just for fun, Kas Osterbuhr of Exosphere3d in Denver has been working on perfecting an animation ever since.  He emailed me the link late last night.  Kas, whose firm creates animations for use in court, explained to me that his animation is pretty much technically perfect.

Among the datasets utilized are: audio transcripts and recordings, digital flight data recorder, raw radar data, NEXRAD weather, witness statements, satellite imagery, elevation maps and several of the NTSB reports published in the docket. . .All aspects of this animation are based on actual data, whether from the NTSB docket or otherwise. The entire 3D reconstruction is built into a single environment where every piece of information can be aligned in position and on a timeline.

Tons of work went into this animation and it shows.  Aviation accident animations don't get any better than this.

One question, Kas.  The animation depicts flames coming from the aircraft's engines at certain times.  On what data is this based and what would happen if the judge ultimately determined that that evidence for this aspect of the animation is insufficient to allow it to be shown to a jury?  

November 9 Update: Kas' response is in the comments.

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Not necessarily.

The accident victim should retain the best aviation contingency fee attorney he can find, regardless of the attorney’s piloting credentials. Rather than asking whether the prospective attorney has a pilot’s license, the victim should ask whether the attorney has a history of successful jury verdicts in aviation cases. A record of successful verdicts is important even if the victim would prefer to settle rather than go to trial. Defendants and their insurance companies will seldom pay a fair settlement to a victim represented by an attorney who has not proven that he can take an aviation case all the way to verdict. The lack of a trial record is a weakness that a defendant or the insurance company will always exploit. It’s a weakness that no amount of piloting credentials can make up for.

Of course, many of  the aviation lawyers who own the best trial records are also active pilots. That's because current piloting experience is an advantage when interviewing witnesses or taking their depositions, sifting through evidence, and working with experts.

For this reason, the manufacturers who are to blame for an accident often chose lawyers who are pilots to defend them. They feel that, all other things being equal, lawyers who are pilots have an advantage over those who aren’t.

But for the victim of an aviation accident, the prospective aviation attorney's record at trial is always more important that his flying credentials. If the aviation attorney doesn’t have a history of successful jury verdicts, that lawyer – regardless of whether he holds a pilot’s license -- is a poor choice.
 

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Thursday's mid-air collision involving a Coast Guard C-130 and Marine Corps AH-1H Super Cobra was the second military helicopter crash that has occurred east of San Clemente Island since 2007.  

On January 26, 2007, four were killed when a Navy MH-60S Seahawk crashed just miles from the spot of Thursday's accident.

The Navy was unable to determine the cause of the 2007 crash.  As reported by the Navy Times,

[Navy] investigators were unable to conclusively determine a specific cause for the mishap, unable to find fault, finding no culpability, no sign of neglect on the part of the aircrew nor the personnel responsbile for maintaining the aircraft. 

When the Navy was unable to determine a cause, the family members hired their own aviation experts to investigate.  But, as reported by the Aviation Internation News Network,  the Navy wouldn't allow the families' experts access to the wreckage, instead requiring them to file a lawsuit so that they could conduct their own investigation.

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