The plaintiffs’ attorney in the Lidle case told the press that, once the judge ruled that certain key evidence would be kept out of trial, a defense verdict was a foregone conclusion.
The plaintiffs wanted to tell the jury about an incident where, according to a Cirrus flight instructor, a Cirrus’ controls locked up in flight without warning in March 2006. That evidence, according to the plaintiffs’ attorney, would tend to prove that there was a problem with the Cirrus flight control system, just as plaintiffs had alleged. And typically such evidence of “other similar incidents” is exactly what persuades a jury that a product is indeed defective. But the trial judge kept that evidence out of trial. In an opinion issued earlier today, the federal court of appeals for the second circuit ruled that the judge’s decision was within her discretion -- in other words, it wasn’t wrong.
Plaintiffs argue that the district court erred by excluding evidence of a March 2006 incident involving another Cirrus Model SR20 G2 aircraft (the "Doremire Incident") to prove [Cirrus’] negligence and notice of a defective condition.
Evidence of prior accidents may be admitted at trial only if the proponent "establish[es] their relevance by showing that they occurred under the same or substantially similar circumstances as the accident at issue." Whether a prior accident occurred under "substantially similar" conditions necessarily "depends upon the underlying theory of the case, and is defined by the particular defect at issue."
The [trial judge] . . .concluded that the Doremire Incident did not occur under substantially similar circumstances because plaintiffs had not "provide[d] evidence that the Doremire incident involved [a rudder-aileron interconnect] lockup where the Adel clamp crossed over and locked on a bungee clamp."
. . . We see no abuse of discretion here. Accordingly, we affirm the [trial judge’s] ruling.
Plaintiffs also wanted to tell the jury about an Airworthiness Directive the FAA issued after the Lidle crash concerning the Cirrus’ rudder-aileron interconnect, again to prove that the design of the aircraft’s control system was defective. The judge kept that from the jury too. Again, the court of appeals ruled that the decision was within the trial judge’s discretion.
Federal Rule of Evidence 407 generally prohibits a plaintiff from introducing evidence of [a manufacturer’s] subsequent remedial measures "that would have made an earlier injury or harm less likely to occur" to prove the defendant's "negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. Nevertheless, evidence of such measures may be introduced for other purposes, such as impeachment or -- if disputed -- to prove ownership, control, or the feasibility of precautionary measures.
Plaintiffs argue that the district court erred by excluding. . .a March 2008 . . . Airworthiness Directive mandating certain adjustments to the rudder-aileron interconnect on all Cirrus aircraft . . .Plaintiffs contend that Rule 407 does not apply to the Airworthiness Directive because it is a subsequent remedial measure taken by the government, not by Cirrus.
The . . . Airworthiness Directive incorporated by reference a 2007 Service Bulletin issued by Cirrus, which the [trial judge] excluded as a subsequent remedial measure and which exclusion plaintiffs do not challenge on review. The [trial judge] concluded that allowing plaintiffs to introduce the Airworthiness Directive would function as a "back door" to introducing evidence of Cirrus's own subsequent remedial measure, which was squarely prohibited by Rule 407. Further, the [trial judge] explained that "in the circumstances of this case where the [Airworthiness Directive] was issued as a direct response to [Cirrus' Service] Bulletin, it is covered by Rule 407. . . because to determine otherwise might discourage manufacturers from issuing service bulletins as part of voluntary compliance procedures.
The second circuit's ruling finally brings the Lidle case to a close.
The Cirrus SR22 crashed while landing at Falmouth Airpark in Massachusetts and immediately exploded in a fireball. One occupant died. Two others, however, survived, only to be badly burned in the post-crash fire.
Some say that, if properly designed, an aircraft should not burn as a result of an otherwise survivable impact. Technology that prevents such fires has existed since the 70's.
Of course, many aircraft flying today were designed before such technology became available. But the Cirrus was designed in the '90's. One might expect that a fire after a survivable Cirrus crash should be a rare event. But that doesn't seem to be the case.
Cirrus critics, pointing to the Cirrus crash at Scottsdale, among others, want to know why the aircraft seems to be more prone than legacy aircraft to post-crash fires, rather than less. Some blame the fact that the Cirrus is constructed of composite material, while older aircraft are metal. I'm not sure that's an explanation, since I have been unable to find a report of anyone being burned in a Diamond aircraft. Diamond aircraft compete with Cirrus and are also of composite construction.
The Minnesota Supreme Court has now spoken, bringing to an end the litigation against Cirrus for its alleged failure to train pilot Gary Prokop.
Prokop flew his new Cirrus SR22 into conditions of poor visibility and crashed, killing himself and his passenger. The passenger's family sued Cirrus, as will as Prokop's estate, claiming that Cirrus didn't properly train Prokop on the use of the plane's autopilot. The wrinkle is that Cirrus had agreed by contract to provide the pilot a full course of training but, when the time came, Cirrus skipped the lesson on using the autopilot to exit bad weather.
A jury awarded more than $10 million to the families of the pilot and passenger. The jury felt that, had Cirrus provided the contracted-for training, the accident wouldn't have happened.
The Minnesota Court of Appeal reversed. It ruled that Minnesota law permits no claim for injuries suffered as a result of "educational malpractice" and, when you boil it all down, "educational malpractice" was exactly what plaintiffs were claiming. A dissenting judge reasoned that plaintiffs were not claiming that the training was in error, but rather that it wasn't provided at all. Thus, Minnesota's bar to "educational malpractice" claims shouldn't apply.
The Minnesota Supreme Court agreed to review the case. In its decision, handed down just yesterday, the Supreme Court more or less agreed with the dissenting appellate court judge that the case didn't involve the educational malpractice doctrine. Rather, the Supreme Court felt that the case was really a traditional products liability case. Nonetheless, it ruled for Cirrus.
The Supreme Court reasoned as follows:
The Cirrus aircraft is a dangerous product;
Therefore, Cirrus was required to provide instructions on how properly to use the aircraft, including the autopilot, to avoid injury;
Cirrus provided such instructions in its manuals and other written materials;
No one argues that the written materials were wrong or otherwise inadequate; and
The fact that Cirrus failed to provide flight training on the use of the autopilot is irrelevant.
Case closed. In short, the Court ruled that while a manufacture has a duty to warn the user about the dangers of a product and how to avoid injury, it does not have a duty to train the user. Finally, the Court ruled that, even if Cirrus had agreed to train the pilot, the failure to do what it agreed allows for only contract damages, not wrongful death damages. While damages for breach of contract are inadequate and ill-suited for cases involving personal injury, the Supreme Court ruled that only contract damages were available under the circumstances.
A dissenting judge disagreed:
a party should not be "immunized[d]. . .from tort liability for his wrongful acts" just because those acts "grow out of" or are "coincident" to a a contract .. .If the mere presence of a contract foreclosed all tort liability, medical malpractice claims would cease to exist. A passenger injured in a car accident while riding in a taxi cab would have only a breach of contract claim against he cab driver and cab company. A paid babysitter who failed to prevent injury to a child would be liable only in contract. . . "
Some say that Cirrus aircraft are improperly designed because they tend to catch fire on impact more frequently than other aircraft, such as those manufactured by Cirrus competitors, like Diamond or Cessna. And there are plenty of examples of post-crash Cirrus fires to talk about. Critics argue that those fires prove that the aircraft is unduly dangerous and defective.
An aircraft should be designed such that no one is burned to death in an otherwise survivable accident. At least, that’s the design standard in the auto industry. It became the standard when, during the 1970's, Bell Helicopters showed that some simple engineering enhancements could virtually eliminate post-crash fires in survivable Huey helicopter accidents. That technology has been around now for 40 years. The technology works in helicopters and cars, so there’s no reason for a properly designed, modern airplanes to catch fire either.
But the key is thatthe crash must be otherwise survivable. If the crash is not otherwise survivable, the post-crash fire is irrelevant to the fate of the occupants. To date, the Cirrus fires that critics point to (like this one, and this one) were accidents that likely would have been fatal regardless of whether there was a post crash fire. So from those accidents, no conclusions about the fuel system's safety can be drawn.
But this morning, everything changed. A Cirrus crashed in Phoenix while on approach to land at Scottsdale Airport. Both the pilot and the passenger survived the impact. But then a fire broke out. The fire killed one occupant and badly burned the other.
Unlike other Cirrus crashes, the Scottsdale crash was undeniably survivable. The post - crash fire raises legitimate questions about whether the Cirrus fuel system is as crashworthy as it should be.
A pilot crashed his new Cirrus, killing himself and his passenger. According to the families, Cirrus didn't train the pilot on the use of the plane's autopilot when he showed up at the factory to pick up his new aircraft, and that contributed to the crash. The details are here.
In vacating the verdict, the court of appeal ruled that, even assuming for argument's sake that Cirrus failed to train the pilot properly, it doesn't mean that the families had a right to sue. That's because Minnesota law prohibits lawsuits for "educational malpractice."
. . . determination of whether the transition training was ineffective because the instructor failed to provide a flight lesson on [the use of the autopilot] would involve an inquiry into the nuances of the educational process, which is exactly the type of determination that the educational-malpractice bar is meant to avoid.
But one judge on the three-judge panel, Roger Klaphake, dissented. He reasoned that the "educational-malpractice bar" did not apply because the families did not claim that Cirrus' improperly instructed the pilot on the use of the autopilot. Rather, the families claimed that Cirrus failed to instruct the pilot at all.
The Minnesota Supreme Court's decision to review the case is unusual. Each year, the Supreme Court is asked to take up and review more than 600 appellate decisions. But it agrees to hear only about 60. The rest are simply not important enough to take up the court's time.
It is, of course, impossilbe to predict how the Supreme Court will decide the Cirrus case. About 30% of the time, the Supreme Court affirms (completely agrees with) the court of appeal decision. About 15% of the time, it reverses (completely disagrees with) the court of appeal. The rest of the time, it's a mixed result.
The Supreme Court can reinstate the jury's verdict against Cirrus, erase it (as the court of appeal did), or issue new rules for the jury to follow and then order that the case be retried. But the case's ramifications will not be limited to Cirrus, flight training, or even aviation law. Rather, the court can be expected to clarify Minnesota's law banning "educational malpractice" suits generally.
The lawyer representing Lidle’s widow told the Associated Press that today’s verdict for Cirrus was a foregone conclusion once the judge decided to keep out certain key evidence.
. . .the jury result was predictable because the judge refused to allow jurors to hear that the company revised its manufacturing process after the crash to prevent the flight controls from getting jammed. She also had ruled that they could not hear that a flight instructor had a lockup of flight controls and almost crashed in a similar plane.
Should the judge have allowed the evidence in?
Generally, the fact that a manufacturer has “fixed” what the plaintiffs consider to be a defect is not admissible to show that the manufacturer was negligent. Otherwise, manufacturers might be reluctant to remedy problems after an accident. But there is an exception to the exclusionary rule under the Federal Rules of Evidence. The jury may hear of "subsequent remedial measures" where that evidence proves that the manufacturer could have easily designed the product in a safer way.
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The exception might have applied to allow into evidence Cirrus' "fix" for the aileron control system, but only if Cirrus argued that there was no feasible safer alternative design for the system. We don't know from the news reports whether Cirrus made that argument. But it's unlikely Cirrus would have commited such a strategic blunder.
What about the evidence of another Cirrus aircraft whose controls locked up? Usually, evidence of “other similar incidents” is very important to a jury. If a design is defective, one might expect that others would have experienced the same problem. But judges are wary of admitting evidence of "other similar incidents." Proving what happened in other cases can take up considerable court time, creating a "trial within a trial."
The reason is that, by federal statute (49 USC 1441(e)), the NTSB’s conclusions are inadmissible in court.
No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned is such report or reports.”
As it turns out, the statute doesn’t mean exactly what it says. Some parts of an NTSB report are sometimes admissible. But the courts have made clear that the NTSB's probable cause finding must always stay out of evidence.
Many find that surprising. Federal statute aside, shouldn’t the jury be told what the NTSB concluded? Isn’t the NTSB, after all, in the best position to determine the cause of the accident?
No and No.
The Jury should Not be Told of the NTSB’s Conclusions
It wouldn’t be fair to stick the families involved in the Lidle case with the NTSB’s conclusion given that the NTSB didn’t give them the opportunity to be heard.
The Jury, not the NTSB, is in the Best Position to Determine the Cause of the Accident
Unlike the NTSB, the jury will hear the testimony of experts from both sides of the case. Both the experts retained by Cirrus and those retained by the familes. That places the jury in a better position than the NTSB to determine the true cause of the crash.
A pilot flew his new Cirrus into conditions of poor visibility and crashed, killing himself and his passenger. The passenger's family sued not just the pilot, but Cirrus as well.
Why sue Cirrus? According to the family, Cirrus didn't train the pilot properly when he showed up at the factory to pick up his new plane, and that contributed to the crash. The jury agreed, handing Cirrus Design one of the most controversial aviation verdicts in recent memory. It awarded more than $10 million to the families of the pilot and passenger.
But today, the court of appeals erased the verdict, and ordered that judgment be entered in favor of Cirrus. It ruled that, even if Cirrus failed to train the pilot properly, it doesn't mean that the family has a right to sue.
Here's the story.
The pilot, Gary Prokop, was relatively inexperienced. He did not have an instrument-rating. That means he was allowed to fly in good weather only. If a pilot without an instrument rating flies into clouds, he will likely quickly become disoriented, be unable to keep the aircraft right side up, lose control, and crash. That seems to be what happened, for example, last October when a Cirrus crashed near Agua Dulce, California.
The Pilot's Purchase of the Cirrus
When a pilot buys a plane, he doesn't just jump in and fly away, even if he is already licensed to fly. To be safe the pilot must be trained in the particular plane's idiosyncrasies. In this case, that training -- called "transition training" -- was included in the SR22's purchase price.
One of the items the pilot was supposed to learn was how to use the Cirrus' sophisticated autopilot to reverse course in the event he inadvertently encountered poor weather. Inexplicably, however, his instructor skipped that lesson, but nonetheless signed the pilot off as having completed the transition training in full.
It's not hard to guess what happened next. A month later, the pilot inadvertently encountered conditions of poor visibility. He did not have the skills necessary to turn around. Unable to see where he was going, he became disoriented, lost control, and crashed.
The Jury Verdict Against Cirrus
The jury was convinced that had the pilot been given the lesson he paid for, the outcome would have been different. They felt that the missing lesson cost the two men their lives. The jury found that the pilot was 25% at fault for the accident, and that the rest of the fault lay with Cirrus' failure to train him as agreed.
The verdict was not well received by the piloting community, to say the least. In fact, they hated it. After all, the pilot is the captain of the ship. It's the pilot who is ultimately responsible for the safe conduct of the flight. If a pilot is unable to handle adverse conditions, he is supposed to avoid them. If he ventures where he has no business being and kills himself or others, only he is to blame. Or so say many pilots.
The Appellate Court Reverses and Grants Judgment for Cirrus
The court of appeal reversed the verdict, but not for the reasons the piloting community urged. Rather, even assuming (1) that Cirrus didn't train the pilot properly, and (2) that the lack of training contributed to the accident, the families still had no case against Cirrus. In Minnesota, there is no claim for injuries suffered as a result of "educational malpractice." And, according to the court, when you boil it all down, "educational malpractice" was exactly what plaintiffs were claiming.
If a negligence claim raises questions concerning the reasonableness of the educator's conduct in providing educational services, then the claim is one of educational malpractice . . . [plaintiffs] ultimately challenge the quality of the transition training . . . But a determination of whether the transition training was ineffective because the instructor failed to provide a flight lesson on this topic would involve an inquiry into the nuances of the educational process, which is exactly the type of determination that the educational-malpractice bar is meant to avoid."
A dissenting judge reasoned that Cirrus should not be entitled to assert the "educational-malpractice bar" because plaintiffs did not claim that Cirrus' instruction of the pilot on the use of the autopilot was improper. Rather, plaintiffs claimed that Cirrus failed to provide the instruction at all.
I wrote here that the door on N146CK, the Cirrus SR22 that crashed August 4 at Deer Valley, opened in-flight. Yesterday, Fox News in Phoenix aired video from a security camera that captured the impact. Here are frame grabs from the video showing the open door.
Usually, when a door pops open in flight, aerodynamic forces keep the door from opening more than an couple of inches, as depicted here. The door on N146CK was open much more than just a couple of inches. Of course, the aerodynamic forces operating on this aircraft were far from normal.
Steve Wilson argues that there are safety issues with Cirrus airplanes. First, Wilson feels that the Cirrus is more prone than your typical Beechcraft to crashes in which the pilot loses control of the aircraft while maneuvering. Second, Wilson feels that the Cirrus is more susceptible to crashes involving inadvertent encounters with icing conditions.
Of course, the NTSB chalks up both of these types of accidents to pilot error, not to a fault in the
An instrument rating entitles a pilot to legally navigate an aircraft when the weather is bad enough that he can't see outside. A pilot who is not instrument-rated must always stay out of the clouds. If the weather is such that he can't do that, he must stay on the ground.
The training required to obtain an instrument rating is extensive. In most cases, it takes a pilot longer and costs him more to obtain the rating than it did for him to get his pilot's license in the first
The Cirrus aircraft is loaded with advanced safety features lacking in older "legacy" aircraft. Yet, the Cirrus safety record appears to be no better -- and perhaps even worse -- than that of the legacy fleet. How can this be?
I've written before that "risk homeostasis" may be one factor at work. I suggested here and here that pilots might tend to use the advanced features of the aircraft to fly into more challenging conditions than they otherwise would. While using the features in that fashion might increase the utility of the aircraft, it necessarily undercuts many of the features' safety benefits.
It turns out that that three human factors experts have published a short article (see below) on risk
Vice President of Business Administration Cirrus Aircraft Duluth, Minnesota 55811
I own one of your aircraft. There are some nice things about the Cirrus. But a few things, from a safety standpoint, really suck. First, the doors don’t stay closed. Second, too many pilots and passengers are getting killed when pilots try to land the thing. Third, the fuel gauges don’t work.
I read your comments on each of these issues in today’s Duluth News Tribune. Considering that they come from a company that prides itself on “celebrating safety,” I found some of the comments disturbing.
Bill, they pop open. A lot. It’s always a distraction when it happens. If they pop open at a bad time, it can spell real trouble. More on that here.
I read how you flew from one airport to another a few weeks ago with a door that wasn’t shut, and
Cirrus N146CK crashed on August 4 at Deer Valley, Airzona. The pilot was killed. Just before the accident, the aircraft's door popped open. We know that because the pilot reported to air traffic control that his door was open and that he needed to return to the airport to close it. Plus, surveillance cameras confirmed that the pilot's door was indeed ajar.
The plane's door popped open? What's with that?
The Cirrus doors are poorly designed. It's that simple. They just don't stay shut in flight.
The plane flies okay after a door pops open. But the distraction can be dangerous, and can lead to a loss of control, as demonstrated by this 2009 Cirrus crash. Following the 2009 accident, John
Cirrus asked the federal judge who is hearing the case to toss it out as being based on "junk science." Cirrus argued that under legal precedent known as Daubert v. Merrell Dow Pharmaceuticals, the judge must act as a "gatekeeper." That means she must review the expert
That's the number one question I've been asked about this accident. Not "why did the accident happen," but "why didn't the pilot use the parachute?"
As I note here, most Cirrus pilots would say that the parachute should be deployed in the event of engine failure, unless there is a long, paved runway beneath the aircraft such that a safe on-airport landing is assured. But that doesn't mean that, if there is no airport within range, a pilot who opts to glide to a field rather than pull the chute is negligent.
Pulling the parachute has serious risks. The aircraft's rate of descent under the parachute is high. Ground impact forces are severe. Cirrus warns that the decision to deploy the parachute should
A Cirrus SR-22, N224GS, crashed yesterday in Washington state. The pilot was killed. The passenger was critically injured. The aircraft departed Concord, California (CCR) in good weather, bound for home. It crashed in Morton, 60 miles from its destination, which was presumably Renton (RNT).
The accident appears to have been the result of engine failure:
Most general aviation aircraft manufactured today come with "glass cockpits." Instead of being equipped with mechanical gauges and indicators, they are equipped with computer screens. The screens integrate and display all sorts of useful flight information. The information displayed may include satellite weather, synthetic vision, infrared vision, terrain awareness information, traffic
Cirrus aircraft are now available with "flight into known icing" (FIKI) capability. That's a great feature. I've written before, however, that Cirrus is asking for trouble with its marketing. Cirrus sells the feature as one that both enhances safety and increases the aircraft's utility. But Cirrus can't have it both ways. If a pilot uses the FIKI capability by, for example, flying in conditions that would otherwise keep him on the ground, he necessarily undermines that feature's safety benefits. I discuss why Cirrus' marketing is a problem here.
Steve Wilson, who is an air safety investigator (among other things), now slams Cirrus' marketing even harder. According to Wilson, some aspects of Cirrus' marketing encourage pilots to use the FIKI capability to take risks that are simply foolish.
Some say that Wilson's criticisms should be discounted because he sells Cessna aircraft and Cessna competes with Cirrus. But Wilson isn't criticizing Cirrus' product, just its marketing. It seems hard to argue with him.
A Cirrus SR-20 single engine aircraft collided with a Pawnee tow plane that was pulling a glider. The Cirrus reportedlyran into the Pawnee's tow line. The Pawnee crashed and the pilot was killed. The occupants of the Cirrus were also killed. The glider pilot, however, recognized the impending collision, released his aircraft from the tow line, and landed without injury to himself or his two
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."
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
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