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

What does the aviation accident lawyer need to prove in order to win a "design defect" lawsuit against the manufacturer of the aircraft that injured his client?   

It varies from state to state. But it's never enough simply to prove that the aircraft's design caused the accident or injury.  The victim's lawyer always has to prove more than that.  One way for the aviation lawyer to win the lawsuit under California law is to prove to the jury all of the following things:

1. That the pilot did not misuse the aircraft, but instead operated it in a way the manufacturer could have anticipated;
2. That the aircraft’s design presented a real risk of injury, and not just a remote possibility of injury; 
3. That a different, safer design would have avoided the accident or injury, and
4. That the safer design was “feasible.”  In other words, a safer design would not have been too expensive, been too difficult, made the aircraft too heavy, significantly detracted from the aircraft’s performance or usefulness, or presented other serious drawbacks.

To support the case, the victim's lawyer can present to the jury evidence such as the testimony of expert engineers, pilots or eyewitnesses; documents from the manufacturer's files; pieces of the aircraft wreckage; “mock-ups” of safer, alternative designs; and laboratory test results.  He cannot, however, use any of the conclusions or opinions contained in the National Transportation Safety Board report concerning the accident.  That's because the NTSB's opinions are inadmissible in court.

After all the evidence has been presented, the judge explains to the jury exactly what the victim's lawyer needed to prove in order to win. The explanation is called the "jury instructions."  The judge gets the instructions from standard, pre-published forms that he modifies as needed for the particular case. 

For the victim to win, the jury must agree, after reviewing all the evidence, that his lawyer proved his case by a "preponderance of the evidence."  That means that the evidence, taken together, showed that each element of the victim’s case was “more likely than not” true.  The lawyer need not prove his case “beyond a reasonable doubt.” That standard of proof applies only in criminal cases.  

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The General Rule

Mechanics are required by regulation to follow the instructions set forth in the manufacturer's maintenance manuals when working on an aircraft.  The mechanic is not allowed to deviate from the instructions covering the work he undertakes.  If he does deviate, and someone is injured as a result, the mechanic is liable.

Service Bulletins

Sometimes, a manufacturer learns of a problem with the way its product is performing in the field. The manufacturer may then issue a “service bulletin” to warn the industry of the problem and how to correct it.  For example, when it learned that its exhaust valves were failing at an unacceptably high rate, one engine manufacturer  issued a service bulletin requiring that those valves be inspected regularly (pdf) and, if necessary, repaired or replaced.  The service bulletin warns that failure to perform the inspection can result in engine failure.  Because the risk is so great, the manufacturer labeled this particular service bulletin "mandatory."

If a mechanic works on an aircraft but returns it to service without performing the "mandatory" inspection, is the mechanic responsible to those injured if the engine quits shortly thereafter due to valve failure?

You might think so.   After all, of all the manufacturer's instructions, those in the service bulletins might be the most important.   However, the regulations allow mechanics to ignore service bulletins entirely, even “mandatory” ones, and still pronounce the aircraft to be "airworthy."  That is, at least when working on aircraft operated under Part 91 of the FAA regulations—the section under which most general aviation aircraft are operated.   

The Industry Practice

When an aircraft is brought into the shop for service, many mechanics provide the owner with a written list of the service bulletins that apply to the owner's aircraft.  Unless the maintenance manuals expressly require the mechanic to comply with all service bulletins, the mechanics leave that decision to the owner. After explaining to the owner the work entailed, its cost, and its importance to flight safety, these mechanics require the owner to direct them, in writing, either to comply with the various service bulletins or to ignore them.

The mechanics keep the owner's written instructions on file.  In the event of an accident, the mechanic will argue that, although he was the one who pronounced the aircraft "airworthy," it was the owner who decided not to follow the manufacturer's recommendations.  The mechanic will argue that therefore the owner, not the mechanic, is the one responsible for the resulting injuries or death.  

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I blogged here on whether it was icing that caused the crash of Flight 3407, or whether the pilot simply pulled back on the yoke when he should have pushed forward.  The NTSB's animation, using data gathered from the aircraft's black boxes, makes a strong case for the latter. 

The video is 2 minutes 39 seconds long.  Watch the airspeed drop dangerously low by 2:04 and the stick shaker activate at 2:07.  The pilot should have immediately pushed the yoke forward, which would have pointed the nose down and allowed the aircraft to regain airspeed.  Instead, he pulls the yoke back.

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Cory Lidle's wife and Tyler Stanger's family are suing Cirrus Design, alleging that a problem with the plane's flight controls caused Lidle and Stanger's plane to crash into a Manhattan hi-rise.

Miles O'Brien, a former CNN correspondent, calls the lawsuit frivolous, because the NTSB concluded the cause was pilot error.  According to O'Brien, "in our litigious society, the facts don't matter for much."

O'Brien is missing the fact that the NTSB's conclusion is marred by a built-in conflict of interest. That’s because the NTSB allowed Cirrus to participate in the investigation, but not the families or the families’ experts. Is it any surprise that the NTSB’s final conclusions favored the manufacturer?

There is a known problem with the Cirrus ailerons jamming at full deflection. After this accident, Cirrus published a number of service bulletins in an attempt to correct the problem and, ultimately, the FAA issued an Airworthiness Directive against the aircraft. That doesn't necessarily mean that the aileron problem caused the Lidle crash. But the families are entitled to use the power of subpoena that comes with filing a lawsuit to investigate what happened. They don’t have to simply accept the NTSB’s conclusion — a conclusion the NTSB reached after closed-door meetings with Cirrus’ experts. 

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The Cirrus is a “new generation” aircraft loaded with safety features. For example, if a pilot flying after dark gets too close to a ridge line, the Cirrus' on-board Terrain Awareness Warning System generates a voice urging him to “Pull Up! Pull Up!”  The plane’s wings secrete fluid that helps prevent them from icing up in poor weather. The cockpit has airbags, and its seats protect the passengers in a crash by absorbing 26 times the force of gravity.  The Cirrus is the only aircraft of its kind that comes with a rocket propelled parachute that can shoot out of the back of the plane in an emergency. Partly as a result of all its safety features, the Cirrus has become the most popular general aviation aircraft, with sales surpassing long-time industry leaders Cessna, Beechcraft, and Piper.

Critics, however, say that the aircraft has a lousy safety record, with a fatal accident rate significantly higher than the “old style” Cessnas and Beechcrafts. They say that the Cirrus, made mostly of fiberglass rather than the traditional aluminum, is not crashworthy. Not only does the fiberglass splinter instead crushing to absorb impact forces like aluminum, but they say the fiberglass and the parachute are prone to catching fire after impact with the ground.  They point out that, unlike other aircraft, the Cirrus is not recoverable if the pilot enters an inadvertent spin.  

Cirrus owners say their aircraft is well-designed and that its safety record is not bad when compared to aircraft performing the same mission, rather than to the population of general aviation aircraft as a whole.  Some Cirrus owners argue that the critics should be disbelieved because they are either salesmen trying to sell Cessnas or, worse yet, plaintiffs' lawyers.

So, where does an owner who is also a plaintiffs' lawyer weigh in on the debate?

The Safety Record:  

Cirrus fans who parse the statistics miss the point.  Cirrus markets itself as a company dedicated to providing “unprecedented levels of safety.”   Spend some time with the statistics and you have to conclude that the Cirrus is, at best, only marginally safer than other aircraft.  But no matter how you look at it, Cirrus' safety record is nothing to brag about.  The aircraft may have been designed to provide “unprecedented levels of safety” but, in practice, it really doesn’t.

Why the Record Fails to Live Up to the Design’s Promise: 

My bet is that “Risk Homeostasis” is at work.  Risk Homeostasis theory suggests that, when given the opportunity, pilots will use a safety feature to enhance the aircraft's utility rather than enjoy the increased level of safety the feature could provide.  For example, a pilot without on-board weather equipment will go many miles out of his way to avoid a deadly thunderstorm, regardless of how inconvenient, because he is uncertain where the storm begins or ends.  If given weather depiction equipment, the pilot will use it to get closer to the thunderstorm than he otherwise would.  Because the equipment provides better information concerning the storms contours, the pilot will not give the storm the same wide berth and will instead cut his safety margins and shorten his trip.  

Similarly, a pilot who would not otherwise fly over inhospitable terrain due to fear of engine failure might make the flight if his plane has a built-in parachute, because the parachute improves the odds of surviving should the engine quit.  By choosing to make the flight, the pilot has used a safety feature (the parachute) to increase the plane's utility, but he takes a risk he would not otherwise have exposed himself to. 

The Marketing Should Be Changed:  

A feature should be marketed as either a safety feature or a feature that increases an aircraft's utility.  To blur the distinction is to invite trouble.  And that's what Cirrus' marketing does.  For example, Cirrus now sells an improved anti-icing system for its aircraft.  Should the system be used to increase safety?  Or to increase the aircraft's utility?  It can't do both.  But according to Cirrus' website: 

Cirrus again delivers increased aircraft safety and utility. With Known Ice Protection. . .pilots can now launch or continue flight with the peace of mind . . .that they're both legal and safe. . .

This type of marketing only invites trouble.   

The Training Should Be Changed: 

Pilots who fly Cirrus aircraft need to be trained on the differences between using a feature to enhance safety and to increase the aircraft's utility.  Using a feature to increase the aircraft's utility necessarily undermines the feature's safety benefits.

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The National Transportation Safety Board doesn't have the engineering expertise or financial resources to investigate an accident on its own. So it asks industry representatives for help.  In almost every case, it turns to the manufacturer of the aircraft component that failed or malfunctioned.  In other words, the NSTB asks the entity most likely to have caused the crash for help investigating it. The NTSB calls this method of investigation the "party system."

Can we really expect a manufacturer to point out to the NTSB evidence suggesting that it may have been at fault?  Of course not.  Asking industry representatives to help determine the cause of an accident is like asking the fox to help figure out what happened to the chickens.

Victims' families are not allowed to participate in the NTSB's accident investigations. Nor are experts hired by the families or by the families' attorneys. So the investigation is necessarily one-sided, with the NTSB's final report heavily "influenced" by the very corporations whose products or services are being investigated. The NTSB has recognized the conflict of interest inherent in its "party system" but, unfortunately for victims and their families, continues the practice in just about all of its investigations. 

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The Washington Times recently reported that British Airways passengers may proceed with their lawsuit for compensation for lost baggage.  British Airways loses 23 bags per 1,000 passengers carried, a rate more than 60 percent higher than the industry's average, according to the Air Transport Users Council. 

The Warsaw Convention limits to $9.07 per pound what a passenger can recover against an airline for lost luggage, up to a maximum of  $1500 per bag. The frustrated passengers' class action lawsuit (pdf) seeks to recover the full value of items lost, even if it exceeds the Warsaw Convention's monetary limit, because British Airways prematurely auctions personal items that inspectors remove from baggage-- such as iPods, digital cameras, computer laptops, and mobile phones-- instead of giving the passengers a reasonable chance to reclaim them. The passengers say that the airline auctions off items which have only been 'missing' for a few weeks.

British Airways says the suit overreaches. Nonetheless, federal judge Nicholas G. Garaufis has permitted the lawsuit to continue (pdf). The passengers may have found an ally in Judge Garaufis.  But proving willful misconduct -- required before the passengers can bust the Warsaw limits -- will be difficult.   My prediction: the passengers' lawsuit, like their baggage, will ultimately be lost. 

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