Air Force Agrees to Change ARFF Procedures; Pay $1.4 Million to Settle Andreini Death Lawsuit

Aerobatic hall of fame pilot Eddie Andreini was flying a routine at the Travis Air Force Base. He was attempting a stunt known as an inverted ribbon cut. Something went wrong. Eddie's Stearman slid upside down along the runway, coming to a stop at show center. His Stearman caught fire. Eddie couldn’t get out. The crowd watched, prayed, and waited for fire trucks to arrive. Some bystanders wanted to rush to the plane to help, but the announcer warned everyone to stay back and "let the firefighters do their job."

But the firefighters didn't do their job. By the time the trucks showed up, almost 5 minutes had passed. It was too late. Eddie, age 77, had burned to death.Eddie Andreini Inverted Ribbon Cut

When they couldn't get answers from Travis brass, Eddie's family sued the United States Air Force. The Air Force denied any liability. It claimed its response to Eddie's accident was "by the book;" that the trucks arrived on scene within the time set by all Air Force standards; and that the Air Force response to Eddie's mishap was otherwise in all respects "exemplary." Further, according to the Air Force, the fire spread so fast that Eddie could not have been saved regardless of how quickly trucks arrived. Finally, the Air Force claimed it was immune from the family's lawsuit because, first, the Air Force is an instrumentality of the United States Government, and second, Eddie had signed a waiver of liability before he took off.

We proved that the Air Force's rescue efforts didn't even meet its own standards. Trucks could have saved Eddie had they been positioned at show center.  But instead, the trucks were positioned more than a mile away. Finally, instead of being suited up and ready to respond during Eddie's performance, firefighters were wandering about the airfield in shirt sleeves taking pictures when the crash alarm rang out. We showed that, under the circumstances, the Air Force was not entitled to immunity from suit under the Federal Tort Claims Act.

With trial against the Air Force set to begin later this year, the Air Force agreed to change its procedures for protecting performers at its air shows across the country. From now on, it will position fire trucks so that they have immediate access to the show line. It will also have firefighters dressed and ready to go whenever a performer is in the air, eliminating the time needed after a crash for fire firefighters to get dressed and get to their trucks. Finally, the Air Force will pay the family $1.4 million, believed to be a record government payout for the death of a 77 year old.

It took four years of litigation to hold the Air Force accountable for its role in causing Eddie's death. But by persevering, the family helped ensure that lives of other performers will not be needlessly lost at Air Force air shows.

Related Entries:

Andreini Family Speaks Out

Andreini Family Files Suit Against the Air Force

Air Force Documents Reveal Travis Confused

Air Force Hides the Ball


Family Sues ICON for Fatal A5 Crash

ICON Aircraft hired away from Ford Motor Company a superstar PhD to lead its engineering department.  When Cagri Sever showed up at ICON's facility in Vacaville, the first thing ICON did was send him off on a "demonstration" flight with the company's chief pilot, Jon Karkow. Karkow flew to Lake Berryessa, a virtual stone's throw from the ICON factory.  Once there, Karkow couldn't resist the urge to engage is some low level maneuvering over the water.  Minutes after takeoff, Karkow crashed onto the shore, leaving both of them dead.

There are less than two dozen ICON A5 aircraft flying.  Yet, there have already been two fatal crashes, the second one taking the life of baseball player Roy Halladay.  Both crashes involved hot-dogging.

Critics of the A5 -- which some refer to as "a jet-ski with wings" -- questioned from the outset whether it was such a good idea. The A5 is all about the fun and excitement of flying close to the water.  But low level maneuvering is dangerous business and, as any fighter pilot will tell you, it's even more so when conducted over water.  Does it really make sense to market a machine built for this purpose to the general public?

ICON has already conceded that Karkow was to blame.  And the National Transportation Safety Board agrees, having determined that the crash was the result of the pilot's "failure to maintain clearance from terrain while maneuvering at a low altitude"-- NTSB code for "hot-dogging."

Along with our co-counsel Nelson & Fraenkel,  we've filed a wrongful death lawsuit against ICON on behalf of Sever's wife and two children. 

The general rule is that a family cannot sue an employer for a loved one's work-related death.  Such suits are generally barred by Workers Compensation laws.  But this situation is unusual.  The ICON A5 is a seaplane and it crashed along the shores of Lake Berryessa, which is considered "navigable waters."  Thus, the federal laws of admiralty apply.  Those laws, which would hold ICON accountable for the actions of its chief pilot, trump state workers compensation law.

Sever v. ICON Aircraft by Mike Danko on Scribd

Bogus Airplane Parts and a Cessna 182 Crash

A courageous client speaks to Stephen Stock about the risks to the flying public. 


Sikkelee v. Precision Airmotive Corp.: Manufacturer Can Be Sued Even Though FAA Approved Design

Here’s the pre-emption argument:

Our plane’s design was approved by the FAA.  If plaintiffs think there is something wrong with it, they should take it up with the FAA. But they should leave us alone.”  

Manufacturers make this argument in just about every aviation case we bring.  We  respond that that the FAA regulations are the bare minima only, and weren’t intended to be the last word on whether an aircraft’s design is safe. Besides, the FAA is stretched so thin that it allows many manufacturers to essentially self-certify their design work.  So in many cases the FAA stamp of approval was placed on the aircraft by someone who was actually on the manufacturer’s payroll.  How safe is that?

Sikkelee v. Precision Airmotive involved the crash of a 1998 Cessna 172.  The plaintiffs alleged the crash was caused by a defective carburetur. The manufacturers asked the court to dismiss the case against them because the aircraft engine's design was FAA-approved.  

The court noted the controversy concerning the FAA’s practice of allowing manufacturers to self-certify, but held it wasn’t really relevant.  Instead, the court agreed with plaintiffs that Congress simply didn’t intend the FAA regulations to be the last word on safety. That means that the regulations did not pre-empt state law, and the plaintiffs' tort case against the manufacturers of the plane and the plane’s engine components could proceed.

The manufacturers argued that if plaintiffs were allowed to sue over products even though they comply with all FAA regulations, it would end up killing the aviation industry.  The court had an answer for that: 

On the contrary, [our holding] simply maintains the status quo that has existed since the inception of the aviation industry, preserving state tort remedies for people injured or killed in plane crashes caused by manufacturing and design defects.”

No question that aviation manufacturers will continue to make the preemption argument going forward, as they are always looking for that sympathetic ear.  They just didn’t find one in the Third Circuit.

Sikkelee v. Precision Airmotive  

Spirit Airlines Likely Immune from Allred's Suit Alleging Airline Served Too Much Alcohol

Injured passengers have filed suit against Spirit Airlines in connection with last month’s drunken melee on board a flight from Baltimore to LAX.  The plaintiffs, represented by Los Angeles attorney GloriaAllred Sues Spirit Allred, seek to hold Spirit Airlines responsible for the conduct of the unruly passengers who injured them because Spirit Airlines allegedly fueled the flap with copious amounts of alcohol and failed to protect them from injury

Claims against ground-based barkeepers and others who over serve customers are permitted in some states.  But such suits don’t work when the defendant is an airline.  The Airline Deregulation Act of 1978 grants an airline immunity from any liability arising from the airline’s choices in connection with “routes, rates, or service.”  “Service” includes drink service.  That means that when a drunken passenger injures his fellow traveler, the airline who served the offending passenger cannot be held liable.  Gee v. Southwest Airlines.   

This case isn’t going anywhere. 

Van's Aircraft Company Sued

Experimental amateur-built aircraft crash more often than those assembled in a factory. The Australian Transport Safety Bureau found that, when compared to factory-built aircraft used in similar flight operations, amateur-built aircraft crash three times as often.  Our own National Transportation Safety Board studied the amateur-built accident rates and made similar findings.Victoria Vabre photo

One might expect that, because they are built by an amateur, an experimental aircraft’s wings would tend to fall off more often than those of a factory-built aircraft.  But that doesn’t seem to be the case. Most experimental aircraft are structurally sound.  Rather, according to NTSB data, the biggest issue is engine failure, often because of fuel flow problems.

And that’s exactly what brought down an experimental Van’s RV-10 aircraft in Toledo, Oregon, in June 2014.  The aircraft lost power on takeoff, killing the pilot and his 4 year-old passenger.  The NTSB concluded the engine failed because it wasn’t getting fuel.  Investigators found broken fragments of sealant in the aircraft’s fuel line where, of course, it wasn’t supposed to be.   

There are no statistics on how often the companies who sell kits get sued, but it’s hardly ever.  After all, who is responsible for the defect in the aircraft’s manufacture or design that caused the crash? The company who sold the kit?  Or the guy who spent several years putting the kit together in his garage?  While some builders follow the kit maker’s directions to the letter, many do not, taking it upon themselves to modify at least some portion of the aircraft. That's allowed by regulations and seems to be part of the fun of building the aircraft.  For example, John Denver was killed years ago when the amateur-built aircraft he was piloting crashed off the California coast.  The amateur who put the kit together thought he had a better way of doing it and installed the aircraft fuel valve in a place other than as recommended by the kit's seller.  The NTSB ultimately determined that it was that modification that led to the crash. 

But even if the victim’s lawyer proves it was the kit maker, and not the builder, who was responsible for the defect, few kit makers carry insurance.  That means a verdict against the aircraft company may be impossible to collect.

Despite the hurdles, the family of the girl killed in the Toledo crash has filed suit against Van’s Aircraft Inc., blaming it for exploiting FAA “loopholes” that allow it to sell aircraft  that have not been properly tested and are thus unproven and unsafe.  The suit goes on to allege that

Not only are Van’s aircraft designs untested and unsafe, but its assembly instructions are also inadequate and unsafe.

The suit goes on to allege that the fuel flow transducer that Van's supplied with the kit was dangerous because it was not capable of dealing with a blockage, as would be required of on a fuel flow transducer mounted on a factory-built aircraft.

We can expect Van’s to argue that their experimental aircraft are just that – experimental.  They are not intended to have all the safety features included with factory-built aircraft.  That is why the word “experimental” is required by law to be prominently displayed inside each one.  

Boy Injured by Plane that Landed on Beach Sues

Nicholas Baer was body boarding in Carlsbad on the Fourth of July when a plane towing a banner crash-landed on the beach and injured him. The twelve-year-old is now suing the pilot and theCarlsbad Piper Crash company that owns the Piper that struck him.  The boy's attorney argues that even though the Piper's engine failed, the pilot shouldn't have landed on the beach where someone could be injured. The pilot should have instead attempted to land in the water. Though the pilot might not have fared as well had he landed in the surf, there would certainly have been less chance of injuring beachgoers.

Seems that the boy's attorney has a point. And this particular scenario - beachgoers being injured or even killed when a pilot attempts to put his plane down on the beach - is not entirely unheard of. It happened in Florida a year ago. The pilot in that case tried to land his Piper Cherokee, and in the process hit and killed a man and a daughter who were walking on the beach.  And it happened in Venice Florida Piper Crash2010 when a Lancair pilot landed on a beach in Hilton Head after his plane lost its propeller. In that case it was a lone jogger who was killed.Hilton Head Lancair Crash

In each of the cases, the victims were innocents. The risk of being injured by an airplane was certainly the furthest thing from their mind.

Andreini Family Speaks Out

The Andreini family gave their first interview since Eddie's death to KTVU's John Sasaki.  John asks us about the lawsuit we filed today against the United States Air Force. 


Andreini Family Files Suit Against Air Force

Eddie Andreini's plane slid to a stop at show center and caught fire.  Eddie was trapped inside. The crowd watched, prayed, and waited for fire trucks to arrive. Some bystanders wanted to rush to the plane to help Eddie get out, but the announcer warned everyone to stay back and "let the firefighters do their job."

But the firefighters didn't do their job. By the time the trucks showed up, almost 5 minutes had passed and it was too late. Eddie survived the impact unharmed, but died of burn injuries.

The Travis Air Force base fire trucks were supposed to be positioned at show center so that, in case of a crash, they would have immediate access to the runway.  Where were they? Those who were at last year's "Thunder Over Solano" air show want to know and so does Eddie's family.  But within hours of Eddie's death the Air Force closed ranks.  Since then, it has simply refused to explain itself to anybody.

  • The Air Force declined to answer any questions at all from the family in the days and weeks following the accident.
  • Though it had by law only 20 days to respond to our formal request under the Freedom of Information Act, the Air Force ignored that deadline altogether and gave us nothing.
  • The Air Force had six months to respond to the family's official claim under the Federal Tort Claims Act. That deadline has also long passed.  The Air Force hasn't offered so much as a phone call in response.

So what is the Air Force hiding?

It looks as though there are three three things the Air Force doesn't want to talk about.  

First, Travis didn't place its trucks at show center as it was supposed to.  Instead, it parked them more than a mile away. 1.3 miles away, to be exact. 

Second, Travis brass told the firefighters that, in responding to any fire, they could drive their trucks down the taxiways no faster than 25 miles per hour.  That speed limit applied to all the fire trucks, including the Air Force's so-called "Rapid Intervention Vehicle," designed and built to get to the scene at top speed and start applying foam before the big trucks arrive.  

Third, the Travis firemen may not have been in their station and ready to respond like they were supposed to be.  Rather, it looks as though they may have been out across the field taking pictures of airplanes parked on the grass.

Today we filed suit against the Air Force on behalf of Eddie's family.  The Air Force has 60 days to respond. 

Andreini vs. Air Force

Record Jury Award Against Airplane Mechanic Faride Khalaf

Dr. Ken Gottlieb’s Cessna 182 took off from Napa Airport with only Dr. Gottlieb aboard. As the Cessna climbed from the runway, it turned in the wrong direction. It collided with high terrain just north of the airport. Dr. Gottlieb was killed on impact. His body was ejected and the aircraft exploded and burned.

The NTSB ruled the crash was caused by pilot error, finding that Gottlieb encountered poor weather, became confused, and failed to follow the correct instrument departure procedure.Dr. Ken Gottlieb

The family asked us to investigate. We learned that Gottlieb’s instructor had flown with Gottlieb a few days before the crash. The instructor found Gottlieb (pictured right) to be well-versed in the Napa departure procedure and otherwise meticulous in his flying. The instructor felt it unlikely that Gottlieb would become confused and turn in the wrong direction. As far as the instructor was concerned, whatever caused the crash was “out of Ken’s control.”

Faride Khalaf (pictured below) was the plane's mechanic.  We learned that Khalaf began working on general aviation aircraft only after he was fired from United Airlines. We uncovered evidence that Khalaf had performed maintenance on Gottlieb's aircraft without properly recording the work in the aircraft’s logs. In fact, Khalaf performed undocumented repairs on the pilot’s seat just a few weeks before the crash.

We examined what little remained of the wreckage and found two things that were unusual. First, we saw evidence that, at the moment of impact, the pilot seat was in the full aft position. Second, the pilot’s seat belt was unbuckled.

Based on their forensic work, our experts testified that as Gottlieb climbed away from the runway, his seat suddenly and unexpectedly slid to its full aft position and jammed. Gottlieb’s hands and feet could not reach the aircraft’s controls and the aircraft flew off course, out of control. Gottlieb unbuckled his seat belt so that he could scoot on his knees up to the aircraft’s control wheel.  But before Dr. Gottlieb could regain control of the aircraft, it crashed into the hillside.

Faride KhalafThe pilot seat slid back and jammed because Khalaf’s undocumented work was improperly performed.  He charged the aircraft owners for new seat parts, but did not install them. Instead, he illegally jury-rigged the existing seat release mechanism. The faulty repair held up for a while, but failed just as Gottlieb took off, causing the seat to slide back and jam in place.

Making matters worse, we found emails from Khalaf on Gottlieb’s hard drive. Gottlieb had asked Khalaf to perform an annual inspection of the aircraft just days before the crash.   Khalaf's emails confirmed that he had in fact "finished with the annual" and that the plane was "good to go."  Based on Khalaf's confirmation that the plane was safe to fly, Gottlieb departed on his flight from Napa. But, in fact, Khalaf never inspected the plane at all. All he did was change the oil, to make it appear as though he had serviced the aircraft when in fact he had not.  Had Khalaf performed the inspection, he might have learned that his previous improper repairs were about to fail.  

Earlier this afternoon, the jury entered its verdict against Khalaf for $13,360,000. The verdict is believed to be a record amount in California for the death of someone over age 65.

Khalaf's attorney quit the case one year before the trial was set to begin. Khalaf elected to representCessna 182 N23750 himself during the 7 day trial. Adbi Anvari of Air West Aircraft Engines testified as Khalaf's expert.  Khalaf called Dr. John Kane to testify about medical issues that Khalaf contended afflicted the pilot, but the judge ruled the doctor to be unqualified and refused to allow him to take the stand.

Dr. Gottlieb was a prominent San Francisco forensic psychiatrist.  He left his wife Gale, daughter Tamar, and son, Mike who is a lawyer and special assistant to President Obama.

Before trial, Gottlieb's family offered to drop the suit entirely if Khalaf agreed to surrender his mechanic’s license. Khalaf refused.  That means despite the verdict, Khalaf is still legally entitled to work on aircraft and return them to service.



Khalaf Verdict

Aviation Lawyer Terry O'Reilly Files Bankruptcy

His website tells of an illustrious legal career spanning decades.  Pictured next to an antique race car, Terry O’Reilly boasts that he is “one of the most distinguished and successful trial lawyers” in the entire United States. O'Reilly lists many awards he claims to have received and explains that “I have the largest number of seven and eight figure verdicts in Northern California.”  He speaks of one aviation case he settled for more than $160 million.  Scattered through the website are other photos showing him surrounded by the trappings of his success.

A prospective client couldn't help but be impressed.  Terry O'Reilly's Bentley

But it now looks as though O'Reilly's show is mostly smoke and mirrors.  Yesterday the Boalt Law School graduate filed personal bankruptcy, with unpaid debts approaching $10 million. 

O’Reilly brings with him into bankruptcy the O’Reilly Law firm itself.  O'Reilly is legally permitted to continue practicing law even though he is bankrupt.  But all that is left of his firm is a small desk in a San Mateo, California office building.  The office is staffed by a disbarred lawyer, Pamela Stevens.  Stevens, according to State bar records, bilked her injured clients out of millions of dollars of settlement money and is considered a danger to the public.  Not someone who an accident victim would want working on his or her case.  

Certain types of attorneys can serve clients perfectly well even if they are themselves insolvent.  But plaintiffs lawyers working on contingency need to finance their clients' cases.  They must advance on their clients' behalf hundreds of thousand of dollars for experts and court costs.  With no money, it’s unclear how O’Reilly will be able to adequately represent the clients he seeks to attract.  

How was O'Reilly able to appear to be so successful? Last week a California court of appeal ruled that over the years O’Reilly was able to buy flashy stuff by improperly siphoning money from his previous law firm.  As a result, he ended up driving that law firm, O'Reilly & Collins, into bankruptcy in 2012:

O’Reilly, “in a concerted effort to wring from the firm every last dollar . . wrote firm checks to others to: build and furnish for him and his wife a luxury ranch in Idaho; buy expensive vintage cars here and abroad in furtherance of his racing hobby; buy fine wine, entertainment systems, and clothes;  pay taxes and insurance on his home in San Francisco; fly around on private jets, take ski vacations and travel to rugby matches; pay for vacations and shopping sprees for his current spouse; and fund his personal trust and retirement accounts. . . “

In short, O’Reilly was buying things with other people’s money.  And he apparently had no way of paying those people back.  Yesterday, it all caught up with him.  

Having worked with O'Reilly years ago, it's sad to see.

Air Force Hides the Ball on Andreini Crash Response

Hall of Fame Aerobatic pilot Eddie Andreini died during the "Thunder Over Solano" air show at Travis Air Force Base in May.  There was a mishap during his routine, and his Stearman biplane slid to a stop on the runway. Eddie wasn't hurt, but he was trapped in the plane.  He radio'd for help.

The Air Force had told the performers that its fire trucks would be positioned and ready to respond toEddie Andreini such an emergency within seconds.  But for some reason, the trucks were nowhere to be found during Eddie's routine. Instead of getting to Eddie in a minute or less, as they were supposed to, the trucks didn't get to Eddie for nearly five minutes.  By then, Eddie's plane was engulfed in flames and it was too late.  Eddie was gone.

Where were the firetrucks?  What took them so long to get to Eddie?  When the family asked the Air Force these questions, the Air Force closed ranks and went mum.  So the family exercised its rights under the Freedom of Information Act. The family formally requested the Air Force to turn over to them the documents that would show why the Air Force fire trucks didn't come to Eddie's aid as it had promised, and instead let Eddie burn to death.  

Under the law, the Air Force had 20 days to respond to the family's request. We had hoped that, out of respect for the family, it would have turned over documents right away.  But that was not to be. The family made its request to the Air Force four months ago. Yet the Air Force has yet to turn over to the family even a single piece of paper.

We've just filed suit against the Air Force for violating the Freedom of Information Act.  We want to know:  

  • Does the Air Force believe it is above the law?  
  • Does the Air Force believe that the family has no right to know why Eddie died?
  • What is the Air Force trying to hide from Eddie's family and the public about it's role in Eddie's death?  


Complaint - Travis AFB Re FOIA Request - FEC

NTSB Sued for Obstruction of Justice

Families of those involved in five different general aviation crashes and their lawyer are suing the NTSB, charging it with obstruction of justice.  The suit claims that the NTSB withheld from the families information concerning each of the crashes in violation of the Freedom of Information Act.

I’ve commented before about how the NTSB’s “party system” creates a conflict of interest that skews the results of its investigations in favor of the manufacturers.  But this lawsuit goes further than that.  It alleges not just a conflict of interest, but collusion between the NTSB and the manufactures:

Upon information and belief, investigators and others employed by the NTSB collude with manufacturers and, upon their departure from government, most often accept employment defending the aircraft and component manufacturers whom they are previously tasked to investigate.

As a result of that collusion, the lawsuit alleges, the NTSB withholds and even destroys evidence for the express purpose of preventing the victims and their families from finding out what really caused the crash and holding those responsible accountable.

The NTSB, through its officers, employees and/or its agents, including party participants, acted and continues to act with the intent to avoid, evade, prevent and/or obstruct the timely investigation of airplane crashes.

Does the NTSB really destroy evidence? Every aviation lawyer knows that it does exactly that, at least to some extent.  For example, an NTSB investigator may take many photos of an accident scene or wreckage.  Yet, he will make part only certain of those photographs part of the “Public Docket.”  The investigator may simply discard the rest before the NTSB releases its final report and opens the docket to public review.  The lawsuit seems to suggest that at least some investigators discard material purposely and selectively so that evidence that would incriminate the manufactures or other “party participants” never sees the light of day.

Explosive stuff.


Obstruction of Justice against the NTSB

Robinson R66 Crashes: Two More Lawsuits Filed

The Robinson R66's safety record to date is troubling.  The aircraft did not go into production until 2010 and the fleet is very small.  Yet a total of five R66 helicopters have already crashed, killing 11:

  • July 12, 2011, Flandes, Colombia, pilot and passenger killed;Robinson R66
  • October 1, 2011, near Philip, South Dakota, pilot killed;
  • January 3, 2013, Caraguatatuba, Sao Paolo, Brazil, pilot and passenger killed;
  • March 9, 2013, Oamaru Valley, near Taupo, New Zealand, pilot killed; and
  • July 27, 2013, near Skyhaven Airport, Pennsylvania, pilot and 4 passengers killed. 

Lawsuits have just been filed regarding two of those crashes. 

The first was filed last month in Los Angeles against Robinson Helicopter Company and others arising from the Colombia Crash. The crash occurred moments after take off in good weather  The lawsuit alleges that the R66 fuel system was defective and that, as a result, the Rolls-Royce RR300 turbine engine that powers the R66 repeatedly cycled between full power and low power, rendering the helicopter uncontrollable and causing it to crash. The suit was filed by Ronald Goldman and Ilyas Akbari, two attorneys who have a long track record of suing Robinson.   

The second suit deals with last month's R66 crash in northeastern Pennsylvania. That helicopter crashed in the vicinity of thunderstorm activity.  The suit was filed by another prominent helicopter accident attorney, Gary Robb of Kansas City on behalf of a woman who lost her 3 year old son in the crash.  Robb's suit alleges that the charter service that owned the R66 is liable for allowing a pilot to fly the helicopter who was not competent for the mission he was attempting.

$26 Million Jury Verdict After Lycoming Refuses to Turn Over Documents

A jury in Washington state handed down a $26 million verdict against Avco Lycoming as a result of a fatal Cessna 172 crash that killed three people in 2008.  The  jury's award included $6 million in punitive damages, designed to punish Lycoming for consciously disregarding the safety of the flying public.

It's the second time a jury has slammed Lycoming with punitive damages for its carb floats. In 2010, a jury awarded $89 million, including $64 million in punitive damages, as a result of 1999 Cherokee 6 crash that killed four and injured one.

This case, however, was a bit different. It was the judge who ruled that Lycoming was responsible for the crash before the case ever reached the jury.  All that was left for the jury to decide was how much to include in its verdict.  The judge ruled against Lycoming because it refused to turn over relevant documents in the case.  Apparently, the documents were so incriminating that Lycoming felt it was better to suffer a certain jury verdict than to allow the documents to see the light of day. 

[I]n December 2005, Lycoming participated in a series of emails discussing the leaking Delrin Float issue, none of which Lycoming produced during discovery. The series of emails informs Lycoming of the significance of the Delrin float leaking problem. In the emails, Lycoming employees state that it is clear that hollow plastic carb floats can leak, allowing fuel to enter the interior of the floats. The emails reflect that there was also a recent inflight [engine] stoppage. The email also recognized the danger of discussing the defects in writing: “It is too bad that we have to answer in writing on such a touchy issue.”

Plaintiffs asked Lycoming to turn over the rest of the emails on the subject, including those that went to upper managment.  The emails would have been important evidence that Lycoming knew the floats leaked and could cause engine failure. But Lycoming refused. So the court ordered Lycoming to turn them over. Lycoming still refused. 

Lycoming's  willful and deliberate refusal to follow the court’s order prevented plaintiffs from proving their case. So the court did the only thing that was fair and ruled that the floats were defective and caused the accident.

The Judge's order is an interesting read. 

Judge's Sanctions Order Against Lycoming

Jury Verdict for Cirrus and Against Lidle and Stanger Families Affirmed on Appeal

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.

(All citations omitted, full opinion here.)

Aviation Law Firm O'Reilly & Collins in Bankruptcy

In July, aviation lawyers Terry O’Reilly and James P. Collins were billing their firm, O'Reilly & Collins, as “the premier trial law firm in Northern California.” They claimed the firm had the financial resources to take on any fight, and that it was “one of the most successful plaintiff’s trial law firms in the United States.”  O'Reilly was a long-time member of the prestigious Inner Circle of Advocates, and had just been named a Northern California Super Lawyer. To celebrate, Collins and O’Reilly published ads showing the pair posing in front of Terry O’Reilly’s very expensive 1954 Bentley race car, talking about all the cases they have won. 


But today, O'Reilly & Collins is in bankruptcy, leaving its creditors holding the bag for millions.  All the firm’s lawyers, except for O'Reilly himself, have scattered.   

Court records show that the San Mateo aviation firm has passed off some of its clients to John Kristensen, one of O’Reilly’s former associates.  Other cases have been handed off to Jack Stein of the Boccardo firm in San Jose. Terry O’Reilly himself is holding on to at least one case involving the Pilatus crash at Butte, Montana

O’Reilly continues to be assisted by Pamela Stevens, a lawyer who, according to California State Bar records, bilked her injured clients, including children, out of millions in settlements. The Bar pulled Stevens' license in 2002, finding that she posed a danger to the public.

In July, a San Francisco jury returned a verdict against O'Reilly & Collins for $3.2 million. The judge sanctioned O’Reilly personally for more than $107,000 for failing to turn over documents and then giving false testimony about it. 

The firm still has its office in San Mateo, but its website has been taken down.  Since the verdict, O’Reilly says that he has moved out of state. 

O'Reilly has paid neither the judgment nor the sanctions order. 

Mobile Jury Sides With Continental Motors In Engine Failure Case

Bonanza N7472N crashed in December 2008 after its engine failed in flight. The engine failed because the crankshaft broke. The 25 year-old pilot was killed in the forced landing attempt. The pilot’s widow sued Continental Motors, alleging that the crankshaft, which was only 58 hours old, was defective. This week, the jury sided with Continental.Beech Bonanza After Crankshaft Failure

The plaintiff brought the suit in Continental’s home court, in Mobile, Alabama. The key ruling, according to well-known plaintiff’s attorney Kirk Presley, was the judge’s decision to keep from the jury evidence of other similar failures of Continental crankshafts. That sort of evidence is often crucial. If a jury hears of other similar failures, it is more likely to find against the manufacturer. If it doesn’t, it tends to believe that there is nothing wrong with the product and finds for the defendant.  In this case, the jury decided that the fault was not with the crankshaft’s manufacturer but with the facility that installed it into the Bonanza’s IO-520 engine a year before the crash. According to an article appearing in Alabama Live, the facility was Performance Engines

A similar ruling may have played a key role in the Corey Lidle trial against Cirrus Aircraft. (There, the judge would not allow the jury to learn about other cases where Cirrus controls jammed in the same fashion that plaintiff alleged the controls jammed on Lidle.)

This is the second win in a row for Continental. In 2011 it won a case involving allegedly defective magnetos. That case was also tried in Continental’s home court in Mobile. 

The last time Continental lost at trial was 2008, in a case involving cylinders that came loose from an IO-550 engine installed in a 1966 Bonanza. That case was tried in California, and the judge allowed the jury to hear evidence of a limited number of other similar failures.

Minnesota Supreme Court Rules That Cirrus Not Liable for Failure To Train

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. . . "


Prokop Supreme Court Opinon

Cessna Caravan Trial Begins 10 Years After Crash

More than 30 Cessna 208 and 208B Caravans have crashed when their wings iced up in flight. Victims’ families have filed many product defect lawsuits against Cessna, claiming that Cessna concealed from the pilots defects in the aircraft’s deicing system. Silvey v. Cessna is the first case to reach trial. At least the first that I know of.

Silvey, which is pending in federal court in Fort Worth, Texas, involves a Caravan that crashed near Parks, Arizona in November 2002.  The pilot reported encountering light icing. According to the NTSB report, a short time later, a witness saw the aircraft come spinning out of the clouds with its nose pointed down. All four on board were killed on impact.Cessna Caravan

After that crash, the FAA issued at least three airworthiness directives against the Cessna Caravan, all concerning the aircraft’s deicing system.  Cessna asked the Silvey trial judge, the Honorable Terry Means, to keep the airworthiness directives from the jury.  Cessna argued that since the FAA didn't issue the airworthiness directives until after the accident, they are not relevant. The judge declined to rule whether the evidence will come in or stay out. Instead, he ruled that he’d have to see how the trials goes before deciding.

Three of the airworthiness directives at issue are:

  • AD 2005-07-01, prohibiting takeoff when there is any ice on the aircraft, and requiring pilots to feel the wings for ice rather than simply inspect visually;
  • AD 2006-01-11 requiring owners to modify the aircraft’s deicing system to legally fly in icing conditions; and
  • AD 2006-06-06 prohibiting flight in anything other than “light” icing conditions, requiring pilots to maintain higher air speeds when climbing through ice, and advising pilots that the aircraft’s stall warning system cannot be relied on in icing conditions.

Helicopter Crash Leads to $10 Million Jury Verdict

Power lines can be virtually invisible from the air.  The trick to avoiding them is, paradoxically, not to try to find them.  Instead, the pilot should look for the towers from which they are strung.  Once the pilot has the towers in sight, he should choose one and fly directly over it, rather thaPike's Piaseckin between them.  By flying over one of the towers the pilot can be assured of avoiding the wires, since no wires are strung higher than the tower itself.  

In November 2009, a Piasecki helicopter struck high tension wires shortly after departing from Adelanto airport as it headed for an airshow in Riverside, California.  The helicopter crashed and burned, and all three aboard were killed.

We represented Colleen Goble, the widow of one of the pilots on board the helicopter.  Yesterday, a jury in San Bernardino county, California rendered a $10 million verdict in her favor against the estate of Joseph Pike, who was the other pilot in the helicopter and the helicopter’s owner.  The jury determined that Pike was the pilot in command at the time of the accident.

Pike, a well-known flight instructor with over 12,000 hours of flight time, trained his students to never fly between electrical towers.  Rather, he taught his student to pick one tower and fly over it.  On the day of the accidentPiasecki Crash at Adelanto, however, Pike chose to “split the towers” and ended up in the wires.

Pike’s estate had argued that forensic evidence showed that Goble, not Pike, was at the controls.  Pike’s estate also argued that the lines’ owner, the city of Los Angeles, should have installed orange marker balls on the lines to make them visible. Pike’s estate had sued both Goble and the city of Los Angeles but dismissed both those claims shortly before trial.

Goble was a vintage helicopter buff. He worked for a medical technology company and held several patents.  His work had been featured on National Geographic Television and had been displayed in the Smithsonian.  He was 58.  The couple lived in Connecticut and had no children.

The name of the case is Goble v. Estate of Pike.  The judge was the Honorable Steve Malone.

First Settlement in Bleed Air Fume Event Case

The air in an airliner's cabin has been compressed by the aircraft's engines. Most of the time, the air is safe to breathe. But if a leaky seal in the engine allows the air to first mix with heated engine oil, the cabin air can be contaminated with toxic fumes.

When a cabin fills with toxic chemicals from an engine's bleed air, it's a "fume event." For years, Boeing denied that fume events occurred at all. Then, it conceded fume events happened, but denied that they were dangerous.  

Terry Williams was an American Airlines flight attendant. She says the chemicals she breathed during a fume event in 2007 caused her debilitating tremors, memory loss, and headaches. When Boeing denied that a fume event could be responsible for William's illness, Seattle aviation attorney Alisa Brodkowitz filed suit on Williams behalf.

What Brodkowitz uncovered created an uproar. As it turns out, Boeing has known about the risks since the 1950's. But instead of fixing the problem, Boeing just covered it up.

According to Brodkowitz, Boeing has made no attempt to keep the flying public safe from fumes.

To this day, the only thing filtering this toxic soup out of the cabin are the lungs of the passengers and crew.

This week Boeing settled Williams' lawsuit. But it still denies any liability. Alhough Boeing insists it is safe to breathe the cabin air in its aircraft, it nonetheless designed its new 787 Dreamliner so that the cabin is pressurized without using a bleed air system. 

Good idea. 

Prokop v. Cirrus Heads to Minnesota Supreme Court

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.

The jury agreed with the families, handing Cirrus Design one of the most controversial aviation verdicts in recent memory. Then, in April, a court of appeals vacated (erased) the verdict, and ordered that judgment be entered in favor of Cirrus. Now, in the most improbable turn of all, the Supreme Court of Minnesota has agreed to hear the case by granting a petition for review.

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 Dissenting Cirrus Judge Roger Klaphakeeducational-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. 

Helicopter Crash Lawyers Bribe Judge, Settle Case, Get Sued

EMS helicopter crash cases aren't easy.  A lawyer representing a victim's family ought to have experience in helicopter crash cases.  If he doesn't, he should bring into the case a lawyer who does.  What he should not do, obviously, is make up for lack of experience by bribing the judge. 

It's shocking to think that a lawyer would ever bribe a judge.  But that's what Texas lawyers Jim Solis and Marc Rosenthal did.   The judge admits itSo does Solis.  They bribed the judge for favorable pre-trial rulings, and then, after getting those rulings, they settled the helicopter crash case, Texas Lawyer Marc G. Rosenthalobtaining $15 million for the families involved. Out of the settlement, the attorneys ended up with a $5.2 million fee.

Now the attorneys are being sued by their clients. The clients want that $5.2 million back. According to the lawsuit:

Plaintiffs are innocent and without prior knowledge of Defendants' criminal acts. Not only did Defendant breach their fiduciary duties to their clients, but in doing so they dishonored the memories of Michael T. Sanchez and Raul Garcia.

Under the law of many states, a lawyer who violates legal or ethical rules can be required to forfeit his or her fee. 

But even if legally entitled to the fee, are plaintiffs morally entitled to it?  After all, how were the families harmed by the lawyers' scheme? The families ended up with a settlement which, presumably, they found acceptable.

Families who lose loved ones in a helicopter or other crash sue for money.  No doubt about that. But perhaps more importantly, victims' families sue for justice.  They pay their attorneys to expose wrongdoing and hold accountable those responsible for an accident.  Putting aside all else, the attorneys in this case simply didn't do that job. The Sanchez and Garcia families did not get what they paid for.  

The case is Sanchez v. Rosenthal et al.

Lidle Judge Keeps Evidence Out; Jury Rules for Cirrus

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, manufCirrus Side Stick Controlleracturers 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."

Surprise Witness at Lidle Trial

Cirrus says Cory Lidle crashed because he was inexperienced, not because his controls locked up.  But a surprise witness testified that Lidle had flown the East River Corridor successfully four times in the two months before the crash.  According to a NY Daily News account, the witness related that Lidle talked with her about his flights with some enthusiasm:

He said it was outstanding, beautiful," she told rapt jurors, adding that he had taken the same 25-minute flight twice at night and twice in the daytime. "He said, 'You really have to come with me the next time I go.'"

The NTSB brief on the accident noted that Lidle's logbook showed no record of having flown the corridor before.  It goes on to conclude that the accident was caused by Lidle's inexperience and failure to plan properly. It faulted Lidle for not recognizing that there was limited turning space in the corridor.  In other words, the situation caught Lidle unprepared.

The surprise witness' testimony calls that conclusion into question. 

Of course, a pilot need not log all his flights.That's why an investigator needs to talk to the witnesses to learn about a pilot's experience, and can't always just rely on what's in the logbooks.

The NTSB investigated this accident much more thoroughly than the typical general aviation accident.  And the NTSB did, in fact, interview this witness before publishing its report. Why didn't the NTSB get this information from the witness when its investigators interviewed her? According to the witness, that was simple:

They didn't ask me."

NTSB: Maintenance-Induced Fuel Starvation Caused Cirrus Crash at Morton, Washington

We knew from the surviving passenger that the Cirrus' engine quit before crashing at Morton, Washington.  But did the engine quit because of a mechanical problem? Or did it quit, perhaps, due to fuel starvation?

I discussed those questions here, days after the accident happened.  Now, a year later, the NTSB says the engine failure was the result of both.  Or, more accurately, fuel starvation caused by faulty maintenance.

Not surprisingly, the surviving passenger has sued Auburn Flight Service, which performed theMorton Washington Cirrus Crash Photo by Sarah Erskine faulty maintenance.  From the NTSB's report, it seems that Auburn Flight Service's liability is clear.  When putting the plane's fuel system back together just 11 hours before the crash, it failed to tighten a cap on the throttle and metering-assembly inlet.  The cap came loose in flight.  That allowed fuel to escape the assembly and flow overboard without getting to the engine. 

The loose cap wasn't caught and the aircraft was released to the pilot because Auburn failed to perform the "post-service inspection" it boasts of on its website.

Auburn Flight Service has not taken responsibility for the crash.  It reports that it feels badly, but not, apparently, for anything it may have done or failed to do.

Everyone at Auburn feels very badly about this tragic accident as we would any tragic accident where people were injured or killed."

One would think that, in this case, the Auburn folks would feel just a little worse than usual.

The injured passenger, who was the pilot's employee, also sued the pilot's estate. Why? Well, certainly there will be questions raised concerning the pilot's decision to attempt to land in a field, rather than deploy the aircraft's parachute.  Many Cirrus pilots would argue that the parachute should be deployed in any case of engine failure, unless there is a long, paved runway beneath the aircraft such that a safe on-airport landing is assured. Interestingly, however, the NTSB did not cite the pilot's failure to deploy the parachute as a contributing factor. 

Regardless, the "pilot error" part of the case is apt to be quite controversial.  That's if the passenger's case against the pilot's estate makes it past the workers' compensation defense.

Jury Verdict Against Cirrus Overturned on Appeal

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

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 idiosyncrasiesCirrus S-Tec 55x Autopilot. 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.  

The Crash   

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.


Prokop v Cirrus Design -

US Court Dismisses All Spanair Flight 5022 Crash Lawsuits

A McDonnell Douglas MD-82 crashed in August 2008 while taking off from Barajas Airport in Madrid. 154 on board were killed and 18 were injured. The injured passengers and the families of those killed filed lawsuits in the US against Boeing, which merged with Spanair 5022 Crash LocationMcDonnell Douglas in 1997, claiming that the aircraft was defective.

Here’s what the plaintiffs say happened:

  • The airplane crashed because its flaps and slats were not extended as required for takeoff.
  • The pilot was not alerted that the flaps and slats were in the wrong position because the “Take-Off Warning System” (or TOWS) failed to operate.
  • The TOWS failed to operate because mechanics, to deal with another problem, had disconnected an electrical relay which, in turn, deprived the TOWS of power.

How would any of this make the manufacturer liable?

Because, according to plaintiffs, the manufacturer should have wired the TOWS to be “fail-safe” so that, if power to the system was disrupted, it still warned the pilot:

Plaintiffs contend that the Spanair crash at issue in this case is strikingly similar to a crash of a McDonnell Douglas MD–82 on takeoff from Detroit Metropolitan Airport in 1987. . .  According to Plaintiffs, the NTSB concluded that the TOWS system in that plane did not receive electrical power and thus failed to warn the crew that the plane was not properly configured for takeoff . . . Plaintiffs further report that the NTSB made six recommendations, including a design modification that would illuminate a “fail” light in the event of a circuit power loss, but Defendants did not adopt that recommendation . . . Plaintiffs contend that TOWS failures now account for 49 accidents. . . On the basis of these allegations, Plaintiffs contend that “[t]his case is about a design defect that remains uncorrected despite Defendants' knowledge of it for over 20 years.”

But even assuming plaintiffs made out a viable case against the manufacturer, there was still the question of whether the cases should be tried in the US or, under the doctrine of forum non conveniens, dismissed and sent to Spain, where the accident occurred.

In the end, the California federal court dismissed the cases, just as in the Air France Flight 447 litigation.

In dismissing the cases, the court decided that, in essence, it would be more convenient for all parties if the suits were brought in Spain. Two parts of its ruling were interesting. First, the court considered and rejected plaintiffs' argument that it would be a great economic burden for them to bring the suits in Spain because in Spain, contingency fee agreements aren't allowed.  

if the unavailability of contingency fee arrangements weighed against dismissal, it would likely weigh against dismissal in every case. This factor therefore does not deserve “substantial weight” in the balancing . . . Further, Plaintiffs have argued only that they will face “serious financial impediments.” Notably, they have not argued, or pointed to any evidence, that these financial impediments will be prohibitive.

In other words, it might be very difficult for the plaintiffs, many of whom had lost their bread winners, to pay hourly rates for attorneys to bring the cases in Spain. But it wasn’t impossible.

Second, the court ruled that it would be cheaper for the plaintiffs to obtain witness testimony if the cases were in Spain rather than the US.

Damages testimony--from family, friends, and doctors--will be necessary for each of the 100 victims.  All plaintiffs and the decedents they represent are from outside of the United States.  The cost of travel for these witnesses alone is extremely high.  Because almost all of the decedents come from Spain, the costs associated with obtaining testimony from those witnesses in that country would be far lower.

Never mind that plaintitffs, in chosing to bring the cases in the US, were obviously willing to bear those costs. Sure, they knew it might be cheaper to bring the witnesses to court in Spain.  But it wouldn't matter much because in Spain the cases would be next to worthless.

Cases dismissed.

The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)

Tesla Crash Case: Why Wasn't Tesla Sued?

That's the question I'm asked most often about the case filed by the family of the passenger lost in the Tesla plane crash

The reason TTeslaesla wasn't sued is simple.  Neither a passenger nor his family is allowed to sue an employer for a work-related injury or death.  Instead, they are stuck with the meager workers' compensation benefits available to them.  Even if the death was caused by the employer's negligence, the family can't bring the employer into court.

But as I told the New York Times when they called today, it gets worse.  The family isn't allowed to sue the co-employee either.  Or, for that matter, the co-employee's estate. 

There are very few exceptions to the workers' compensation rule prohibiting an injured employee from suing a co-employee.  I've discussed those before here.  None of the exceptions seem to apply in this case.  Pilot error or not (and that's debatable at this point), you can bet that the pilot's estate will be asking very early on to have the case against it thrown out.

Tesla Crash Lawsuit: Pilot Negligent for Taking Off in Low Visibility Conditions

The family of one of the Tesla employees lost in last year's Cessna crash at East Palo Alto has filed suit against the estate of the Cessna's pilot.  The suit alleges that the pilot's decision to takeoff in foggy conditions was negligent.

The air traffic controller told [the pilot]: "The runway is not visible so it's at your own risk." Thirty seconds later, the controller repeated: "I cannot clear you for takeoff because I don't have visibility on the runway, so the release is all yours and it's at your own risk, sir."  [The pilot] replied: "OK," and took off anyway.

The pilot had received his "release."  (". . the release is all yours".)  That means that air traffic control had reserved airspace for him so that, once off the runway, he could safely fly in the clouds.  But the pilot had not been issued a takeoff clearance. ("I cannot clear you for takeoff.")  What was that about?

When a tower controller clears a pilot for takeoff, the controller is assuring the pilot that there is no one on the runway that the pilot needs to worry about hitting.  If the controller can't see the departure path due to restricted visibility, he can't clear the pilot, and so the takeoff is at the pilot's "own risk." 

But just because the controller can't see the runway from up in the tower cab, it doesn't mean the pilot can't.  And as long as the pilot can see what lies ahead, there's really no problem. 

The helipad at Palo Alto airport is on the southwest side of the field.  The tower controller's view of that area is blocked by obstructions.  As a result, every helicopter takeoff, regardless of the weather conditions, is at the pilot's "own risk."  It's up to the pilot to make sure he doesn't hit something.  That's standard procedure.

No one would argue that every helicopter pilot who takes off at his own risk is thereby negligent.  Hard to see why the Cessna pilot should be viewed any differently.

Suit Filed Against Karen Trolan For Truckee Tahoe Plane Crash

We've filed suit against Los Gatos real estate broker Karen Trolan (pictured), her husband Steve Trolan, and their company, Trolan Enterprises, as a result of the September 2009 plane crash that left the Trolans' passenger, 14 year-old Marilyn Mitchell, seriously injured. 

The Trolans were headed from Truckee Tahoe airport to San Jose. They needed very littlKaren Trolane fuel for the short flight. But fuel was a few pennies per gallon cheaper in Truckee than in San Jose.  The Trolans decided to fill the tanks of their single-engine Cessna 206 to the tops.

When departing a high altitude airport such as Truckee, that's a very dangerous thing to so. As discussed here, the combination of thin air and a heavy aircraft can dramTrolan Plane Wreckatically compromise the aircraft's ability to climb. After takeoff, the aircraft will ride briefly on the cushion of air that exists between the plane's wings and the runway, and then crash.  And that's exactly what happened.

The NTSB's preliminary report confirmed that the Trolans' tanks were indeed full when they attempted to take off.

The crash was caused by pilot error, plain and simple.  Yet, the Trolans have turned their back on Marilyn and her family, leaving them to fend for themselves. The Trolans have yet to pay any of Marilyn's medical bills, which continue to mount.

US Court Tosses Out All Air France Flight 447 Cases

Most of the families of the 228 passengers who were aboard Flight 447 filed suit in the United States. The reason they chose to file suit in the United States was simple. The courts of other countries provide little compensation to those who have lost loved ones due to the negligence of another.  And resolving cases in other countries can take seemingly forever. For example, as discussed here, the July 2000 crash of the Air France Concorde is still wending its way through the French court system. That’s despite the fact that the families who sued in the US settled their cases years ago. It may be surprising to many, but the US court Air France Wreckagesystem moves much faster than those of many other countries.

The Air France Flight 447 cases were all pending before a federal judge sitting in San Francisco.  Earlier this week, the judge reluctantly dismissed all the cases, ruling that they should be brought in France instead of the US.

The judge noted at the outset that dismissing the cases will mean that they will likely be refiled in France where they will languish.  It is thus doubtful that the families will ever be fairly compensated. But given the law of forum non conveniens, he couldn’t justify keeping the cases in the US:  

The Court has great sympathy for all the families who lost loved ones in this horrific accident and is interested in seeing those families fairly and timely compensated. But sympathy cannot substitute for an unbiased application of the law.

The judge noted that many manufacturers of the aircraft’s various components are located in the United States. That means the United States does indeed have a legitimate interest in the litigation. After all,

The United States [has] an interest in deterring the manufacture of defective products by domestic corporations.

But the judge decided that interest was outweighed by other factors. For example, a criminal investigation into the cause of the crash is currently taking place in France. French civil courts can get access to the evidence that is gathered in that investigation. But US courts cannot. That, according to the judge, makes it more appropriate for the cases to be heard in France.

Unfortunately, as discussed here, nothing ever seems to come of those criminal investigations in France. And it’s unlikely that, in France, the victims will ever receive fair compensation for their loss. In fact, any compensation at all from the manufacturers is now a long, long way off.

The judge's 20 page opinion can be found here.

An FBO's Liability for Negligent Entrustment of Aircraft

An FBO is not supposed to rent an aircraft to a pilot who the FBO knows isn't competent to complete the planned flight safely. If it does, and a passenger is hurt or killed by the pilot's mistake, the victim or his family can hold the FBO responsible. That's the law of "negligent Negligent entrustment of aircraftentrustment."

A pilot who doesn't hold the proper license or rating to operate the aircraft he is seeking to rent is probably not competent to complete the planned flight safely.  But what if the pilot is properly licensed and meets all the FAA's other requirements? If the FBO rents the aircraft to the pilot, can the FBO still be held responsible for what turns out to be the pilot's mistakes?

Sometimes, the answer is yes.

The landmark case is White v. Inbound Aviation. A young pilot had just recently received his private pilot's license. He was comfortable flying the FBO's Piper Archer in which he had been "checked out" by one of the FBO's instructors. The FBO felt the renter was a good pilot.  It felt, however, that the pilot should obtain some additional instruction in "mountain flying" before flying to an airport in the mountains nearby.  The FBO felt that without the instruction, the pilot might not be able to handle the special challenges presented by "high density altitude" airports. 

One day the pilot showed up to rent the Archer. He told the FBO that he wanted to fly two friends to Lake Tahoe airport, an airport in the mountains.  The pilot hadn't obtained the mountain-flying instruction, but the FBO rented the aircraft to him anyway.

The pilot landed at Lake Tahoe airport without incident. But he wasn't prepared for the effects of the altitude, heat, and weight of the aircraft on takeoff.  When he attempted to depart, he crashed, killing himself as well as his two passengers.

The family of one of the passengers sued the FBO, arguing it should never have rented the plane to the pilot for this particular trip. The jury agreed and held the FBO liable.Archer II by Markus

The FBO appealed.  It argued that the pilot held a license that legally entitled him to fly anywhere he wanted, including mountain airports like Lake Tahoe. That, the FBO argued, should have been the end of the matter. If the pilot was competent in the eyes of the FAA, he should have been deemed competent in the eyes of the court.

The court of appeal disagreed, and affirmed the jury's verdict against the FBO.  Though the young pilot may have been a competent pilot generally, that wasn't the issue.  The FBO knew that, notwithstanding his license, the pilot wasn't competent for the particular flight he had planned.  As the court of appeal noted:

[The issue as plaintiffs framed it] was not whether [the pilot] was competent in general to pilot an aircraft but whether [he] was competent to 'operate the aircraft that he operated on the day he operated it and in the manner in which he operated it under the conditions he experienced ... on July 3rd with three people on board going to Lake Tahoe.'

The FBO knew that, even though he was properly licensed, the pilot was not competent to conduct the particular flight he had planned under the conditions that existed on the day of the accident.  The court of appeal ruled that, therefore, the jury properly held the FBO liable for the accident under the law of negligent entrustment.  

Defective Carburetor Results in Jury Verdict Against Avco Lycoming

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 $64Piper Cherokee Six - PA32 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 thPrecision Carburetorere 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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Lawsuit Filed: Bell 206B Helicopter (Fish and Game) Crash at Auberry, California

Nothing scares helicopter pilots more than wires. Flying into a wire is often fatal. What worries the pilot is that wires are hard to spot. The trick is to look for the towers. Once you see the towers, you can spot the wires strung between them.

But not always.

In January, a California Fish and Game helicopter flew into wires near Auberry, California. Four died in the ensuing crash. Two families have now sued Southern California Edison, alleging that theTana Ball power company should have marked its wires with orange balls to make them more visible.

The twist to the case is that the helicopter did not strike the 2” thick high tension wires that carry electricity.  Rather, it flew into thinner, harder-to-see “static lines” that were strung above the high tension wires.

From one of the lawsuits:

The transmission lines directly over Willow Creek span 3,000 feet from tower to tower. . . Static lines are normally within several feet of the power transmission lines however on the 3,000 foot span the static lines were constructed and maintained so as to be significantly elevated above the power lines. . . . helicopter pilots flying in and about transmission lines would form the belief that the static lines would be maintained at the approximate same distance above the power lines . . . Because of the size of the static lines, they are nearly invisible until they are within about 285' so that at a nominal speed of 60 knots the pilot has no more than 2.8 seconds to observe the lines and avoid them whereas with colored ball warnings on the lines they are easily seen from a safe distance to allow pilots to identify the lines and to easily avoid the hazard of them.

Here is a photo of marker balls installed on a nearly invisible static line, and the high tension wires that hang below.  (This is not the accident site.)  Note what a difference the balls make.

Wire Ball Markers

Mike Danko Honored As 2009 California Attorney of The Year Finalist

Burdett v. Teledyne Continental Motors involved the forced landing of a Beech Bonanza after the Teledyne Continental IO-550 engine installed in the aircraft came apart in cruise flight. The passenger was severely injured.

The National Transportation Safety Board blamed the engine failure on the mechanic who last worked on the engine, and cleared the engine manufacturer, Teledyne Continental, from any liability. 

We suspected that the NTSB's determination had been influenced by Teledyne's engineers, who the NTSB had allowed to assist in the investigation, despite the obvious conflict of interest that presented.  We thus conducted our own, independant investigation.  We concluded that, contrary to the NTSB's findings, Teledyne Continental was to blame.  After a six-week trial, the jury agreed.

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 the Burdett case. The Trial Lawyers Association showed this video presentation during the ceremony.



More Zodiac Victims File Suit

The families of the victims of the Zodiac crash near Oakdale, California, have filed suit against the aircraft's maker, Zenith Aircraft, alleging that the Zodiac's design is defective. The Zodiac is the two-seat aircraft whose wings tend to break off in flight due to a design-induced aerodynamic phenomenon known as flutter.  That appears to be exactly whatZodiac happened in the Oakdale crash. The design has caused at least 10 deaths so far. 

According to the Modesto Bee, Zenith Aircraft is blaming the pilot and passenger for getting into the airplane it designed.

 Zenith Aircraft said the crash was caused by the "negligence" of [the pilot and his passenger]. The company said both had "full appreciation" of the risks involved.

As discussed here, months ago the NTSB called upon the FAA to ground all Zodiacs. The FAA, however, has yet to do so.  Unfortunately, the NTSB has no power to ground an aircraft on its own.  It doesn't matter how bad the design of the aircraft is; only the FAA can ground a fleet. 

The FAA refuses to act, and Zenith Aircraft won't accept responsibility for the fatal flaws in its aircraft's design.  Lawsuits brought by aviation accident lawyers like the families' lawyers in this case seem to be the only way to prevent others from being killed in the Zodiac. 

Is Lidle Suit against Cirrus Frivolous?

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.

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British Air Passengers' Baggage: Going, going, gone . . .

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. 

Continental (Colgan) Flight 3407: Law Firms Take Different Tacks

Right after the crash of Flight 3407 at Buffalo, investigators  focused on the aircraft's deicing system. The question, as explained by former CNN reporter and pilot Miles O'Brien, was whether ice had accumulated on the plane's wings faster than the de-icing system could remove it, leading to an aerodynamic “stall,” or loss of lift. 

But as the investigation progressed, it began to look as though, just before the pilot lost control of the aircraft, the nose of the plane pitched up  -- not down as usually happens when ice overwhelms an aircraft.  That raised an almost unthinkable possibility:  gross pilot error.  When an aircraft gets

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