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 to 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?
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.
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;
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.
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 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.
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.
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.
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.)
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.
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. . . "
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.
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.
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 than 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.
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 accident, 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.
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.
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.
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.
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 it. So does Solis. They bribed the judge for favorable pre-trial rulings, and then, after getting those rulings, they settled the helicopter crash case, obtaining $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.
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 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."
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:
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?
Not surprisingly, the surviving passenger has sued Auburn Flight Service, which performed the 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.
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.
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.
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 McDonnell 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 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.
The case is In re Air Crash at Madrid, Spain, on August 2, 28, 211 WL 158452 (CD Cal. Mar. 22, 2011.)
The reason Tesla 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.
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.
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 little 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 dramatically 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.
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 system 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.
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 entrustment."
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.
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.
A Philadelphia jury has determined that a defective carburetor caused the 1999 crash of single-engine aircraft that killed four and injured one. The aircraft, a Piper Cherokee Six, was manufactured in 1968. The jury’s verdict included $25 million for compensatory damages and $64 million as punitive damages against the engine manufacturer Avco Lycoming, a division of Textron.
Since the Aircraft was Older than 18 Years, Why Didn’t the General Aviation Revitalization Act Protect Lycoming from Liability?
There are a number of exceptions to the General Aviation Revitalization Act (known as GARA). In particular, GARA doesn’t apply when the manufacturer, in obtaining FAA certification of its part, conceals from the FAA information about defects in the part's design. The jury in this case determined that Lycoming did just that. Thus, GARA was no defense.
The NTSB Determined the Cause of the Crash was Pilot Error. Its Report Didn’t Say Anything About a Defective Carburetor. Why Wasn’t the Jury Bound by the NTSB’s Findings?
The NTSB’s accident reports almost always favor the manufacturers. That’s because the NTSB relies on the manufacturer for help in determining the cause of the crash it is investigating. The NTSB calls this method of investigation the “party system.”
Of course, asking the manufacturer for help in figuring out if there was a defect in its engine is much like asking the fox for help in determining what happened to the chickens. There’s a built-in conflict of interest. The NTSB is aware of the conflict, but continues using the party system anyway.
Here, after consulting with Lycoming’s experts, the NTSB decided not even to examine the carburetor. Since the NTSB never tore down this critical component, it’s no surprise that the NTSB did not discover any problems with it.
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 the 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.
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.
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.
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 Burdettcase. The Trial Lawyers Association showed this video presentation during the ceremony.
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 what 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.
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.
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 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.
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
The Danko Meredith Firm represents victims of aviation accidents throughout the United States and abroad. Its lawyers have handled cases involving just about every type of flying machine, from simple ultralights to complex helicopters, and from small commuter airliners to...More...
Aviation lawyer & attorney of Michael Danko Law Firm, offering services related to helicopter accidents, airplane crashes, airline-related death & injury, serving San Mateo, Santa Clara, San Jose, San Francisco, Silicon Valley and Northern California.