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

Limited Liability Companies May Protect Aircraft Owners

It’s not uncommon for three or four pilots to share ownership of an aircraft. For years, owning an aircraft as “partners” was the norm. That form of ownership, however, carries with it some liability considerations.

  • “Partners” can generally be held individually liable for one another’s debts, including debts arising from one another’s negligence. In other words, if one partner ’s piloting mistake kills or injures a passenger, the other partners may in some cases be held accountable to the victim or the victim’s family.
  • Aircraft owners are responsible for maintaining their aircraft properly. If one of the partnership’s maintenance decisions – such as an ill-considered decision to run past TBO – leads to an accident, each partner could be held responsible for that as well.
  • Even assuming the partnership made all the right maintenance decisions, the partnership may still be held responsible for the negligence of the mechanic. More on that here. If the partnership is liable, each of the individual partners may be liable as well.

Many pilots seeking to share an airplane now form a limited liability company. They arrange it so that the company, and not the individual pilots, own the aircraft. The pilots own shares in the company only. Because the pilots do not themselves own the aircraft, they avoid some of the liability that comes with aircraft ownership generally and with the partnership relationship in particular.

But here’s where people often get confused: no form of ownership allows the pilot who is flying the aircraft to avoid responsibility for his own negligence. If a pilot error kills or injures someone, that pilot may be held accountable to the victim or his family regardless of whether the aircraft is owned by his partnership or by his limited liability company.

Suing the United States Government for an Air Traffic Controller's Negligence

Air traffic controllers work within the guidelines set forth in the Controller's Handbook (pdf), which they often call "the Bible."  The Handbook is hundreds of pages long, and controllers must follow it to the letter.  If they deviate and an accident results, the Federal Tort Claims Act permits the victim to sue the FAA for negligence. 

Sometimes, the Handbook doesn't cover a particular air traffic situation. In those cases, the controller is supposed to simply use his best judgment.  But this would seem to present a problem for the victim of the controller's error.  That's because one of the Federal Tort Claims Act's most important limitations is the "Discretionary Function Exception."FAA Control Tower The Discretionary Function Exception states that a victim can’t sue the federal government for bad decisions that the government left to the federal employee's best judgment.  Regardless of how careless the employee was, the government is immune from suit. 

Does that mean that, if a controller makes an error in a situation not covered by the Controller's Handbook, the victim can't sue?  

No.  Courts have ruled that an air traffic control error never falls within the Discretionary Function Exception. It doesn't matter whether the air traffic situation was covered in the Handbook, or was one left to the controller's judgment.  If a controller's error caused the accident, the victim can sue the FAA for negligence, just as though the FAA were a private party.

However, certain other rules will apply to the victim's lawsuit: 

  • Before starting the suit, the victim must file a claim against the government on a Form 95: 
  • The lawsuit must be filed in Federal Court, not State Court;
  • The judge -- not a jury -- decides the case;
  • No punitive damages can be awarded; 
  • The victim's attorney can charge a contingency fee of no more than 25% of any judgment that the court renders; 
  • If the FAA settles out of court,  the attorney can charge a contingency fee of no more than 20%.

EMS Helicopter Crash Suits Subject to Medical Malpractice Restrictions?

Special rules protect careless health care providers in California.  The rules, collectively known as MICRA, were designed to make it harder for medical malpractice victims to sue the doctors who injure them. For example,

  • The medical malpractice victim must provide the defendant doctor a special notice before filing suit.
  • At any trial, special rules of evidence apply that favor the doctor.
  • There is a $250,000 limit on what the negligent doctor or his insurance company ever has to pay to compensate parents when the doctor causes their child's death.
  • An injured party cannot recover against a negligent doctor more than the $250,000 limit for causing any sort of pain or disfigurement. 

But what do the MICRA rules have to do with helicopter crash cases?

In March 2008, a California court of appeal ruled that the medical malpractice rules apply to the claims of a someone injured in an ambulance.  In that case, called Cannister v Emergency Ambulance Service, the court ruled that a negligent ambulance company that injures a patient en route to the hospital was entitled to all the EMS Helicopter by JPCprotections of MICRA, because the ambulance company was properly considered a “health care provider.” The ruling extended the umbrella of MICRA's protection from doctors to ambulance drivers, at least when those drivers are licensed as EMT’s.

An EMS air ambulance company will undoubtedly argue that Cannister -- regardless of how unfair -- applies not just to road-bound ambulances, but to air ambulances as well. The aviation lawyer must keep the MICRA rules in mind in handling EMS helicopter accidents in California, and he should be familiar with the strategies that medical malpractice lawyers use to minimize MICRA's unfair impact on his clients.  

Proving Negligence in an Aviation Lawsuit

What must an aviation attorney prove to win a negligence lawsuit against someone who he believes responsible for the accident that injured his client? Two things. First, the aviation attorney must prove that the entity was "negligent."  Second, the attorney must prove that the defendant's negligence was a "cause" of the accident or of the injury.

Negligence Defined. Someone is "negligent" if he was not "reasonably careful" under the circumstances. It is not enough for the attorney to prove simply that defendant could have avoided the accident by doing something differently.  No mechanic, pilot, or other defendant is expected to be perfect.  He is, however, expected to be as careful as others would have been in the same situation.  If he was not, then he was negligent.  

Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or other defendant violated a federal aviation regulation.  In some states, one who violates a regulation is automatically considered negligent, or "negligent per se."  In other states, one who violates a regulation isn't automatically negligent, but the violation is something the jury is allowed to consider when deciding the question.

Compliance with Regulations.  Proving that the defendant violated a regulation goes a long way towards proving that the defendant was negligent.  But what if the defendant proves he complied with all the regulations?  Is he off the hook?  No.  One who complies with every regulation can still be found to be negligent.  That's because the aviation regulations are minimum safety standards only.  Presumably, those involved in aviation hold themselves to a higher standard of care.  In other words, reasonable mechanics or manufacturers are expected to go above and beyond the regulations.

Causation.  To win the negligence lawsuit, the victim's attorney must also prove that the defendant's negligence was a cause of the accident or the injury. So, for example, it's not enough for the victim's attorney to prove that the mechanic was not reasonably careful. Sure, the mechanic may have been negligent for failing to tighten the nuts to the correct torque value.  But to win the case, the victim's attorney must prove that the failure to tighten the nuts was one of the causes of the accident or injury. 

Jailing Pilots for "Negligence" Does Not Improve Safety

Two years ago, a Garuda Airlines 737 pilot botched a landing at Indonesia's Yogyakarta airport.  The plane crashed and 21 people were killed.  Many more were injured.

Indonesia's legal system focuses more on punishing the careless than on compensating the victims.  So, yesterday, the pilot was found "guilty of negligence" and sentenced to two years in prison.

While criminalizing negligence might seem like the "right" thing to do, it just doesn’t work to improve safety.  Indonesia's abysmal safety record is proof.

The US legal system does not send careless pilots to jail. Instead, it requires the careless pilot's employer to compensate the victims. The US system gives the airlines a monetary incentive to control the performance of their crews by training, evaluating and then retraining as necessary.  And that is one reason why we have the safest airlines in the world.