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

Other countries severely limit compensation that may be awarded in wrongful death lawsuits arising from airline accidents.  For example, many other countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society."  As a result, in almost all situations, the best venue for a family's lawsuit against an airline is the United States.

If the airline passenger's trip included an international stop, then the proper venue for the lawsuit is controlled entirely by international treaties known as the Warsaw and Montreal Conventions.  The Warsaw Convention permits the passenger (or the passenger's family) to sue in the United States, even though the accident happened on foreign soil, if and only if:

1. The passenger's ticket was issued in the United States;
2. The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States; 
3. The airline is incorporated in the United States; or
4. The airline's principal place of business is in the United States.

The Montreal Convention has replaced the Warsaw Convention in most situations. The Montreal Convention adds to the list what has been called a "fifth jurisdiction." Regardless of where the accident occurred, or where the passenger began or ended his trip, the international traveler or his family may sue the foreign airline in the United States if the United States was the passenger's "principal and permanent residence."  For this fifth option to be available, however, the airline must maintain some sort of presence in the United States.     

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In the early stages of a lawsuit, it is often unclear which of two different defendants is responsible for an aviation accident.  But as the case progresses, evidence may point to one defendant over another.  When that happens, it may seem like a good idea for the victim to settle with (or dismiss from the lawsuit) the defendant whose liability appears tenuous, and to proceed to trial against the defendant who appears blameworthy.  Experienced aviation lawyers think carefully, however, before following that course, for fear of creating an "empty chair" in the courtroom.

Let's say that, at the outset of the case, it is unclear whether the aircraft crash was caused by the defective design of a part (for which the aircraft manufacturer would be responsible), or negligent maintenance (for which the aviation mechanic would be responsible).  But let's say that, as the suit progresses, evidence is uncovered indicating that the responsibility should rightfully lie with the manufacturer.  It may seem like good sense to dismiss the mechanic from the lawsuit and proceed to trial against only the manufacturer.  Doing so, however, may allow the manufacturer to argue to the jury that the one truly responsible for the accident is someone who is not present in the courtroom -- someone who should be seated in the "empty chair," but whom the victim decided not to bring into court. 

This strategy is called "blaming the empty chair."  Of course, the "empty chair" cannot defend itself.  Thus, if allowed to employ this tactic, the wrongdoer can sometimes escape liability altogether. 

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I blogged about Scene Systems' animation of Flight 1549's landing in the Hudson here back in March.  Great effort, but I noted that it would take hundreds more hours of work before it could be used in court.  That's because it did not appear that the animation accounted for and synchronized all the available data for the flight.  For example, the flight path depicted in the animation could not have been true to the information from the flight data recorder, because the flight data recorder had not yet been downloaded and made available by the NTSB.  As a result, Scene System's finished product involved too much guesswork to ever be shown to a jury.

Just for fun, Kas Osterbuhr of Exosphere3d in Denver has been working on perfecting an animation ever since.  He emailed me the link late last night.  Kas, whose firm creates animations for use in court, explained to me that his animation is pretty much technically perfect.

Among the datasets utilized are: audio transcripts and recordings, digital flight data recorder, raw radar data, NEXRAD weather, witness statements, satellite imagery, elevation maps and several of the NTSB reports published in the docket. . .All aspects of this animation are based on actual data, whether from the NTSB docket or otherwise. The entire 3D reconstruction is built into a single environment where every piece of information can be aligned in position and on a timeline.

Tons of work went into this animation and it shows.  Aviation accident animations don't get any better than this.

One question, Kas.  The animation depicts flames coming from the aircraft's engines at certain times.  On what data is this based and what would happen if the judge ultimately determined that that evidence for this aspect of the animation is insufficient to allow it to be shown to a jury?  

November 9 Update: Kas' response is in the comments.

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1. The National Transportation Safety Board Secures the Wreckage on Site. The wreckage usually remains at the site of the aircraft accident until the National Transportation Safety Board arrives. The Board investigator immediately secures the wreckage and makes sure no one tampers with it.  The Board investigator inspects, documents, and photographs the wreck.

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An aviation insurance company must fairly compensate those injured due to the negligence of one of its policy holders.  Of course, in most cases, the insurance company's  financial responsibility is limited to the dollar limits of the insurance policy. 

But not always. 

When an insurance company unreasonably forces an aviation accident victim to take his case to trial instead of paying the policy limits to settle out of court, the rules change.  In that situation, the insurance company may be required to pay whatever amount the jury decides would fairly compensate the injured person, even if that amount is more than the limits of the policy.  That is because an insurance company who unreasonably refuses to pay its policy limits to settle a case is considered to be acting in "bad faith." 

Here's an example of how California insurance law works. Let's say that a passenger is injured in an aircraft crash, and that the crash was caused by the pilot's negligence.  Let's also say that the passenger has medical bills and lost wages or more than $250,000, but that the limit of the pilot's insurance policy is only $100,000.  If the injured passenger demands  from the pilot's insurance company $100,000 to settle out of court, the insurance company should pay it.  After all, it would be unreasonable not to pay that amount given the harm  the passenger has suffered.  But what if the insurance company decides to play "hard ball" and force the case to trial?  If a jury renders a verdict against the pilot of, say, $500,000, the insurance company may be required to pay the entire amount.  It is no defense that its policy was for only $100,000.  

This doesn't mean that the insurance company must automatically fork over the policy limits to the accident victim in every case. Rather, the insurance company must pay the limits to settle only when it would be unreasonable not to.  In short,  if the insurance company decides to play hardball with the injured party, then the insurance company can be held financially responsible for the consequences.

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Clients often ask: "Shouldn't we wait for the National Transportation Safety Board to finish its report before deciding whether to bring a lawsuit?" Sometimes, that makes sense. But most of the time, waiting is not in the client's best interests. Here are four reasons not to wait:

1. The NTSB's Findings are Seldom Unbiased. The NTSB doesn't have the engineering expertise or financial resources to investigate an accident on its own. So it asks for technical help from the aircraft manufacturers. For example, if a case involves an engine failure, the NTSB will ask the engine manufacturer for help in determining why the engine failed. Not surprisingly, the manufacturer seldom points out to the NTSB evidence suggesting that its own product may have caused the accident. The conflict of interest inherent in the NTSB's investigations mean that the NTSB's final reports almost always favor the big industry players.

2. The NTSB Seldom Tackles the "Why" Questions.  More and more, the NTSB's report describes what happened, without really saying why it happened. But the "why" questions are the ones that matter most.

As an example, in one case, an EMS helicopter crashed and all aboard were killed. A year and a half later, the NTSB published its probable cause report concluding that one of the helicopter's rotor blades came apart in flight. That, however, was obvious from the outset.  Only during the lawsuit that followed the crash was it discovered that the blade came apart because, months before the accident, a mechanic had botched a repair to the blade, weakening its internal structure. The NTSB never interviewed the mechanic involved.  It was satisfied that it had determined the "cause" of the accident when it figured out that the rotor blade failed. As far as the NTSB was concerned, once it determined that the blade failed, the case was closed.  The NTSB told us what happened, but not why. 

3. The NTSB's Accident Report Isn't "Binding" on Anyone. The NTSB's conclusions have no legal effect, and they are inadmissible it court.  So we can't just rely on the NTSB to do our work for us; we have to conduct our own investigation. Waiting for the report just puts us behind.

4. We Could be Waiting Forever. It usually takes the NTSB one to four years, sometimes even longer, to come out with a report.  The NTSB is so slow that if we begin a lawsuit right away, it often can be settled and sometimes even tried to verdict before the NTSB report is completed. On the other hand, if we wait for the NTSB's report before starting our own investigation, witnesses' memories will have faded and important documents may be lost or destroyed.  The wreckage may end up being scrapped before our experts examine it.  Worst of all, statutes of limitation may run on the claim, preventing us from filing any lawsuit at all regardless of what the cause of the accident turns out to be. 

The NTSB investigators are good people dedicated to aviation safety. They perform a very difficult job under harsh conditions. They are, however, underfunded, understaffed, and overwhelmed. They just don't have the necessary resources or expertise, especially when it comes to investigating general aviation accidents. Sad to say -- NTSB reports are seldom worth waiting for.

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Two months ago, Scene Systems -- a litigation support firm -- released its animation of Flight 1549's crash into the Hudson. I posted here that, in all likelihood, the animation would not be admissible in court. The legal objection would be that the animation "lacked foundation." For example, without information from the Airbus' black boxes, Scene Systems couldn't confirm the aircraft's flight path or guarantee that the Air Traffic Control audio was properly synchronized to the aircraft's path of travel.  Therefore, the animation involved too much guesswork to be shown to a jury.

The National Transportation Safety Board has now released its own animation. Having retrieved the black bloxes, the NTSB was able to plot accurately the Airbus' position, speed, and altitude at each point along the aircraft's short flight.  The NTSB then properly synchronized the Air Traffic Control audio to the aircraft's flight path.

The only audio on the NTSB's animation is the radio transmissions between the crew and Air Traffic Control. As is typical, the NTSB did not make public the audio of the cockpit conversation between the captain and the first officer. The NTSB did, however, prepare a written transcript of that conversation. The NTSB superimposed the transcript on the animation. (HOT-1 is the pilot, HOT-2 is the first officer.)

Would this animation be admissible in court?  While Scene System's animation would not pass legal muster, the NTSB's work probably would. 

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

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

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

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

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

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

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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 too slow and is about to stall (that is, quit flying), the pilot is supposed to push forward on the yoke and pitch the nose down, not pull back.  If the pilot pulls back, the nose will pitch up at exactly the wrong moment and the plane will stall. 

This is basic airmanship.  In fact, every student pilot is taught the proper stall recovery technique before he makes his first solo.  Could a professional airline captain have caused the crash by pulling back on the yoke instead of pushing forward?  Well, not only did the nose pitch up, but the aircraft's flight data recorder showed that the pilot did, in fact, pull back on the yoke just before losing control of the aircraft.

Now two prominent aviation law firms, representing different families, are taking different tacks. The first firm, the Clifford Law Firm in Chicago, has filed suit on behalf of two families, alleging that the aircraft crashed because it was inadequately equipped to deal with icing.

The second firm, Kreindler & Kreindler, representing 10 of the families of Flight 3407, says that pilot error caused the crash, not icing or any defect in the aircraft's deicing equipment.

Which is it? A defective de-icing system or pilot error? Commuter turboprops have a history of crashing due to ineffective de-icing systems, and they are most vulnerable when on approach to landing,  just as was Flight 3407. I represented the family of the pilot killed in the crash of Comair Commuter Flight 3272 near Monroe Michigan in 1997. All aboard were lost for just that reason – a defectively designed de-icing system that the FAA should never have certified.  And some of the similarities between Flight 3407 and Flight 3272 are striking. 

But, in this case, it is hard to square the information from the flight data recorder with anything other than pilot error.  Is it possible to come up with a scenario where pulling back on the yoke was anything but a very bad piloting mistake?  Yes.  Pulling back on the yoke, instead of pushing it forward, can be considered an appropriate reaction, for example, when ice overwhelms the tail of the aircraft rather than the wings.  But as explained by airline pilot and Salon columnist Patrick Smith, it is unlikely that the pilot was faced with tailplane icing.  That leaves pilot error as the most likely cause of the crash.

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Most victims of a helicopter or airplane accident can't afford to pay aviation attorneys an hourly rate to investigate the cause of the crash or to take an aviation lawsuit to trial.  For these people, the doors of the courthouse would be essentially closed were it not for the contingency fee agreement.  The contingency fee agreement places the victim on a level playing field with the aviation manufacturers, insurance companies and other major corporations who may be responsbile for an aircraft accident.  Under a contingency fee agreement, the client hires a lawyer, but if there is no settlement or verdict, the client pays nothing to the attorney for his work in investigating the case, initiating the lawsuit, or taking the case through trial.  All costs associated with the investigation and the lawsuit are paid by the attorney. The contingency fee agreement allows any victim access to the legal system, regardless of the victim's financial circumstances.

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Scene System's animation of the crash of US Airways Flight 1549 is a viral hit.  The litigation support firm combined available ATC audio tapes, flight track information, and an on-scene photograph into a great recreation.  This is the exactly the type of animation used in court to help juries understand the details of an aviation accident.  

But would this particular animation be admissible in a lawsuit?  Probably not. It incorporates too much guesswork.  For example, Scene System overlays the animation with audio from Air Traffic Control tapes.  Are the movements and positions of the aircraft properly synchronized with the audio? To do that right, you'd most likely need information from the Flight Data Recorder , which isn't yet available. Without that data, the animation is objectionable as "lacking foundation."  It's safe to say that, before it could be shown in court, the animation would require hundreds more hours of work and refinement. 

Of course, Scene Systems wasn't out to produce a recreation that was admissible in court. It was just trying to show the type of product it is capable of. And it did that very nicely. 

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