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

The General Aviation Revitalization Act immunizes aircraft manufacturers from liability for defects in their products once those products turn 18 years old.  GARA was enacted in 1994.  Back then, more than half the general aviation fleet was older than 18 years. 

In other words, in 1994, the manufacturers were allowed to "walk away" from the majority of the fleet they had produced, as well as any defects that they had built into them. But once relieved of that financial responsibility, the manufacturers were supposed to spring into action and start cranking out new aircraft at more affordable prices. 

True, anyone injured by a defect in an older aircraft would be left without a legal remedy against the manufacturer that caused the injury.  But GARA proponents argued that the flood of new piston aircraft would lead to the older aircraft being removed from service.  In short order, GARA proponents argued, the average age of the aircraft in the fleet would drop and manufacturers would 

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A settlement conference is supervised by the trial judge or by another judge who is assigned to the settlement conference by the court administration. The parties meet with the judge informally in the judge's chambers (his office) and try to resolve the case.  The judge makes no rulings and issues no orders during the conference.  The decision either to settle or to proceed to trial remains with the parties. 

Given the pressure of his court docket, the judge may have only a couple of hours to devote to the settlement conference. Because aviation cases can be complex, that often isn't enough time.

A mediation is similar to a settlement conference. But instead of the settlement talks being supervised by a judge, in a mediation the talks are supervised by a neutral lawyer or a retired judge.  The parties pay the mediator for his time.  The mediator, unlike a sitting judge, has no docket pressures and may spend several days working with the parties if that appears constructive. That's one reason why a mediation may be more likely than a settlement conference to resolve an aviation accident case.

Another reason a mediation may be more effective is that, while a settlement judge is assigned to the case, a mediator is selected by the parties. Though the parties to an aviation lawsuit can choose any mediator they want, they usually select one who is knowledgeable about airplane or helicopter accidents or, depending on the case, airline mass disasters.  The mediator may even be a pilot.  Sometimes the parties select a mediator because he or she has experience -- as either a lawyer or judge -- in cases involving the type of burn injuries or traumatic brain injuries that are common in aviation accidents. The expertise means that the mediator is "on the same page" with the parties as well as with any insurers who may be involved.  

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A cabin suddenly fills with fumes.  Passengers get ill.  The fumes eventually clear.  But for some, the symptoms persist long after the flight is over.  Others will first develop symptoms weeks or months later, and may not even relate their symptoms to their flight.  These passengers are all the victims of what has become known as a "fume event."

Here's what happens: Airlines pump air into the cabin.  The air is a mix of fresh air and air that has been compressed by the aircraft's engines--known as "bleed air."  But when the air distribution system malfunctions, toxic chemicals found in the aircraft's engine oil can be heated and pumped through the airplane, creating a fume event.  According to the Wall Street Journal:

Airline companies and jet manufacturers say that fume events are rare, and that when they do occur, air quality still exceeds safety standards. But unions representing pilots and flight attendants say the chemicals entering the aircraft cabin can endanger the health of flight crews and passengers.

For years, the airlines denied that fume events occurred at all  Then, the airlines admitted the events occurred, but denied that they were dangerous.  But fume events appear to be happening with more and more frequency, and the airlines seem to be more willing to admit that there is a danger to the flying public.  Regardless, in March the US Senate approved a measure that would require the FAA to study cabin air quality generally and fume events in particular.

The increased focus on fume events is for the most part due to injuries that American Airlines flight attendant Terry Williams suffered in April 2007.  She recently filed a lawsuit against Boeing, the manufacturer of the aircraft on which she was flying.  Williams is represented by Alisa Brodkowitz, a prominent aviation lawyer in Seattle, who is perhaps the nation's leading expert on fume events.

What about the passengers of American Airlines Flight 49, who were involved in a fume event today while travelling from Paris to Dallas-Forth Worth? 

Because the flight was international, the Montreal Convention applies.  The Convention requires the airlines to offer fair compensation to anyone injured as a result of an "accident."  An accident is an "unexpected or unusual event or happening" on board the aircraft that is "external to the passenger."  A fume event would likely qualify (though some airlines contend that fume events are "normal".)

The flight attendants will have a tougher go of obtaining compensation for any long lasting injuries they might have suffered.  They can't sue the airlines due to workers' compensation laws.  That means their only claim is a product defect claim against Boeing, the aircraft's manufacturer.

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A Philadelphia jury has determined that a defective carburetor caused the 1999 crash of single-engine aircraft that killed four and injured one. The aircraft, a Piper Cherokee Six, was manufactured in 1968. The jury’s verdict included $25 million for compensatory damages and $64 million as punitive damages against the engine manufacturer Avco Lycoming, a division of Textron.

Since the Aircraft was Older than 18 Years, Why Didn’t the General Aviation Revitalization Act Protect Lycoming from Liability?

There are a number of exceptions to the General Aviation Revitalization Act (known as GARA). In particular, GARA doesn’t apply when the manufacturer, in obtaining FAA certification of its part, conceals from the FAA information about defects in the part's design. The jury in this case determined that Lycoming did just that. Thus, GARA was no defense.

The NTSB Determined the Cause of the Crash was Pilot Error. Its Report Didn’t Say Anything About a Defective Carburetor. Why Wasn’t the Jury Bound by the NTSB’s Findings?

The NTSB’s accident reports almost always favor the manufacturers. That’s because the NTSB relies on the manufacturer for help in determining the cause of the crash it is investigating. The NTSB calls this method of investigation the “party system.” 

Of course, asking the manufacturer for help in figuring out if there was a defect in its engine is much like asking the fox for help in determining what happened to the chickens. There’s a built-in conflict of interest. The NTSB is aware of the conflict, but continues using the party system anyway.

Here, after consulting with Lycoming’s experts, the NTSB decided not even to examine the carburetor. Since the NTSB never tore down this critical component, it’s no surprise that the NTSB did not discover any problems with it.

Fortunately for the victims’ families, the NTSB’s conclusions are by regulation inadmissible in court.

Why Did the Jury Award Punitive Damages?

A jury cannot award punitive damages simply because the defendant was negligent, or just

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