Aviation Defense Attorneys Tout Their Chummy Relationship With The NTSB

The NTSB allows aviation manufacturers to participate in its crash investigations.  But it excludes from the investigation the crash victims, the victims’ lawyers, and their experts.  That’s how the NTSB has gone about investigating aviation accidents for years.  It’s little wonder, then, that the NTSB’s final reports are frequently biased in favor of the manufacturers and against the pilots or the passengers.  The conflict of interest inherent in the NTSB’s investigations is one reason why the NTSB most often concludes that a crash is due to pilot error rather than, for example, a mechanicalChairman of Wilson Elser's Helicopter Defense Practice defect.

Lawyers for crash victims have long complained that the manufacturers and their lawyers are too cozy with the NTSB.  When the manufactures aren’t trying to influence the NTSB’s conclusions in their favor, they are using their status as a “party” to the NTSB investigation to gather information they can later use to defend themselves in lawsuits the victims might bring.

Lawyers for manufacturers used to deny that they were too chummy with the NTSB.  Now, not only do they concede that its true, but they have started touting their relationship with the NTSB as a way of attracting more manufacturers as clients.

Wilson Elser is one of the country’s largest aviation lawyer firms representing manufacturers and other industry interests.  Today the firm announced that it is launching a “national helicopter defense practice.”  Why should a helicopter manufacturer hire Wilson Elser after a crash?  Well, because Wilson Elser is in tight with the NTSB:

Our team consists of accomplished litigators and trial attorneys, which are key to any defense team, as well as collective experience in aviation and aerospace with a distinct focus on rotorcraft. Together with our strong relationships with the National Transportation Safety Board and Federal Aviation Administration, we are able to gather the information necessary to create strong defense theories.”

It hardly seems fair that defense law firms are allowed to use their cozy relationship with the NTSB and their status as a “party participant” in the NTSB investigations to gain an advantage in litigation against the crash victims.  Yet, that is the way it is.

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

Plaintiffs' Lawyers Uncover Smoking Gun that NTSB Missed in Colgan Air Crash

The NTSB is underfunded and understaffed. So it investigates accidents using the "party system."  That means the NTSB relies on those who may have caused the accident for help in investigating the accident's cause. Unfortunately, the "party participants" seldom point the NTSB towards evidence in their files that would tend to incriminate them. As a result, NTSB reports go easy on the industry players.

From time to time, I've offered examples of cases (like the ones here and here) where the real cause of the accident was found by plaintiffs lawyers -- sometimes well after the NTSB report is published.

Here’s yet another example, this time arising out of the crash of the Continental (Colgan) Flight 3407. According to a recent CBS News report, lawyers for the families uncovered emails showing that Colgan Air knew the captain was not qualified to fly the Q400, but put him in the left seat anyway.   

According to an ABC report, in one of the emails a Colgan Vice President states that the captain

had a problem upgrading” and, taking that into consideration, “anyone that does not meet the [minimums] and had problems in training before is not ready to tackle the Q.”

The “Q” is a reference to the Bombardier Q400. Despite Colgan's concerns about the captain's ability to fly the Q400, they promoted him anyway.  Just five months after that, the new Q pilot crashed his aircraft in Buffalo, killing 50.

This wasn't merely a case of "pilot error," it was the result of an airline that didn't take safety seriously enough. The newly released emails are critical to understanding why the accident happened, and how similar accidents can be avoided in the future. Yet, an NTSB spokesman confirmed that Continental did not provide these emails to the NTSB at any time during its year long investigation of the crash.

It looks like the company's emails tell the story of why Continental Flight 3407 crashed.  And it was the plaintiffs' lawyers, not the NTSB, who found them. 

Reno Air Race Disaster: Airport Seeks to Influence NTSB Investigation

The NTSB excludes family members from its accident investigations.  But it allows those who may have caused or contributed to a crash to participate.  That's an obvious conflict of interest.  As a result, NTSB probable cause findings are not always impartial.  Instead, they tend to favor the industry players.  Reno-Tahoe International

The industry players have long argued that, while they may be allowed behind closed doors to assist the NTSB in their investigations, they would never seek to influence the investigation's outcome. 

Yeah, right.

The Reno-Tahoe Airport Authority, which owns Reno-Stead Airport, has dropped the pretense of "just wanting to help the NTSB find out what happened."  Rather, it has gone whole-hog in seeking to actually influence the investigation of the Reno Air Race Disaster.  In fact, it has hired professional help from a Washington lobbying firm. 

You won't find that information on the Airport Authority's website.  But you will find it in papers filed in Washington, DC. According to  The Hill:

The Reno-Tahoe Airport Authority has hired Gephardt Government Affairs to lobby on the “government investigation of crash at Reno Air Races,” according to new lobbying forms released this week.

An NTSB investigation is not supposed to be a political process.  It's hard to imagine anything more inappropriate than hiring lobbyists to influence its outcome.

But that is what it has come to. 

Thankfully, we still have the jury system.  No lobbying allowed there.  Everything has to be done in open court, for all to see.

Related Content:

NTSB Boots American Airlines Off Jackson Hole Investigation

I often write about the NTSB's "party system." That's the NTSB's practice of asking airlines and manufacturers for help in determining an accident's cause.  If you ask me, it's a bit like asking the fox for help in figuring out what happened to the chickens. The party system allows industry participants to bias NTSB probable cause findings in their favor.

The NTSB allows party participants to handle evidence and perform certain engineering tests.  But one thing the NTSB insists on doing all by itself is downloading the data from an aircraft's black boxes.  The NTSB's labs in Washington DC are well equipped for that job, and it doesn't require any "help" from the airlines. 

But when it received the black boxes from the American Airlines 757 that ran off the runway at Jackson Hole, the NTSB quickly figured out that one of the black boxes had already been tampered with. The culprit turned out to be the trusted "party participant," American Airlines:
The Safety Board learned that the recorders were flown to Tulsa, Okla., where American Airlines technicians downloaded information from the DFDR. . .
That was too much industry "help" for even the NTSB to tolerate.  So the NTSB kicked American off the investigation.
Because maintaining and enforcing strict investigative protocols and procedures is vital to the integrity of our investigative processes, we have revoked the party status of American Airlines and excused them from further participation in this incident investigation.
Revoking a participant's "party status" is the NTSB's equivalent of the death penalty.  It is the harshest punishment the NTSB has the power to dole out. Still, it doesn't seem like much of a deterrent for next time.
 
Narrated video of landing shows spoilers, thrust reversers failing to deploy: 
 

Steve Wilson: "The Cirrus Airplane Has Serious Problems"

Steve Wilson argues that there are safety issues with Cirrus airplanes. First, Wilson feels that the Cirrus is more prone than your typical Beechcraft to crashes in which the pilot loses control of the aircraft while maneuvering. Second, Wilson feels that the Cirrus is more susceptible to crashes involving inadvertent encounters with icing conditions.

Of course, the NTSB chalks up both of these types of accidents to pilot error, not to a fault in the

aircraft.  But as far as I’m concerned, the NTSB finds pilot error too often, frequently overlooking how the machine may have contributed to an accident.  Certainly, not everyone agrees with me.  But Wilson seems to.

A former NTSB-trained accident investigator myself, I assure you, prejudice during investigation is always to blame a pilot. There is inadequate focus on the aircraft. Investigation parties of small aircraft consist of an NTSB investigator, possibly an FAA Flight Standards Inspector (there to violate the pilot), manufacturer reps (there to defend the product); there is never a human factors expert.

Prone to Loss of Control Accidents

So what is it about the machine that may contribute to loss of control accidents? According to Wilson, it’s theCirrus Side Stick design of the Cirrus' flight controls.

The Cirrus control system offers no “feel”, very little aerodynamic resistance because its control mechanism is centered by springs, not by aerodynamic pressure. A Cirrus control in flight feels the same to a pilot at any airspeed. Furthermore, small hand movements command full flight control deflection. The Cirrus joystick is so touchy that Cirrus instructors teach pilots to squeeze the control handle instead of pull back to rotate at takeoff.

Wilson notes the industry recognizes unusual flight control response as a hazard in other aircraft such as the Zodiac. But while the NTSB has zeroed in on the troubled Zodiac, it has not looked into the Cirrus' design at all.  In fact, except for Wilson, few have linked Cirrus' accident record to its flight control system. But Wilson doesn't stand completely alone. Another flight instructor and Cirrus owner, Philip Greenspun, has made similar observations.  According to Greenspun:

One problem with the Cirrus is its unforgiving handling compared to other basic four-seaters. For pilots accustomed to learning about an impending stall by feeling reduced airloads on the flight controls, the Cirrus provides much less stall warning. This is due to spring cartridges that continue to resist flight control movement even when the airplane is not moving.

Pilots refer to some aircraft as “honest airplanes.” A change in the "feel" of an honest airplane warns the pilot that he is approaching the edge of an envelope. If you ask me, the Cirrus’ spring cartridges mask much of that feedback, just as Wilson and Greenspun suggest.  According to Wilson, the lack of control "feel" may account for the string of loss of control accidents involving highly experienced Cirrus pilots.

Especially Dangerous in Icing Conditions

Next, Wilson says the Cirrus is particularly dangerous when it encounters icing conditions.   The Cirrus' "laminar flow" wing is built for speed, not safety.  Compared to other wings, it is more vulnerable to stalling when it is contaminated with ice.  According to Wilson, while ice can bring down any aircraft, the Cirrus' margin of safety is very small. 

The design of Cirrus' tail is also problematic, according to Wilson, because the elevator is susceptible to “ice bridging."  In short, the elevator control can lock-up due to ice, making the airplane uncontrollable.

True, the aircraft isn’t certified for flight in icing conditions, and pilots are supposed to stay out of ice. But, Wilson says, if you inadvertently find yourself in icing conditions, the Cirrus' design characteristics won't afford you much of a chance to escape.

Cirrus Design will continue to lure pilots into situations that are beyond what reasonable skill level and human attention can be expected to handle. . . Be warned Cirrus pilots. You are at more risk than you may know.

NTSB Probable Cause Findings and Pilot Error

According to the NTSB, most aviation accidents are caused by pilot error. But avNTSB Investigates for Probable Causeiation lawyers know that as many as half the cases that the NSTB says were the result of "pilot error" simply weren't.

The NTSB does its best to get an accident's probable cause right. The trouble is that, in almost every one of its cases, the NTSB turns to the manufacturer of the aircraft for help in figuring out what happened. In other words, the NSTB asks one of the entities who may have caused the crash for help investigating it. The NTSB calls this method of investigation the "party system."  It presents an unavoidable conflict of interest.  It's like asking the fox for help in figuring out what happened to the chickens.  

More often than not, the "party system" results in the pilot taking the blame, even when the accident may really have been the manufacturer's fault. I've seen this happen dozens of times. I've written about it here and here and here

NTSB investigators don't disagree.  Well, at least one doesn't. From an anonymous email:

[W]e rarely, if ever, can exclude the manufacturers' representatives from access to every part and detail of an investigation. We (NTSB investigators) are open and forthright with these people. Unfortunately, such a candid exchange is rarely a two-way communication...And the process gets pretty cloudy when we send the wreckage, or part, to that manufacturer for teardown and examination. Sure, we're there 'in-charge' of the process...but that's just a formality.

But isn't the NTSB watching everything that the manufacturer is doing?

NTSB investigators 'observing' may be more like a dog watching television when it comes to the latest technology that is known only by those experts who made it in the first place. And it's even worse if an FAA Inspector stands in for the NTSB investigator.  Then our 'eyes' may be almost an in-house friend of the manufacturer...

Predictable Probable Cause Findings

So, what do you expect as a result? 'Nothing wrong with our engine! (or accessory) (or special part)'...and that's what goes down in the report...That's the simple reason that 'statistics' cite 80% pilot error...This high rate is simply not accurate, it's far more often a system failure... but the NTSB cannot buck industry when we have to use the 'party system.'

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

because the design of a defendant’s product was proven defective. Rather, the defendant’s conduct must evidence a “conscious disregard of the safety of others.”

Here, the jury determined that Lycoming willfully concealed from the FAA information concerning possible defects in its carburetor – even though it knew that any such defects could cause unnecessary injury or death. That fact alone demonstrates that Lycoming acted in conscious disregard of the safety of others, and justifies a punitive damages award.

The punitive damages in this case amounted to about 10 percent of Avco Lycoming’s net worth. The jury determined that that sum was sufficient to dissuade Lycoming from hiding from the FAA its knowledge of defective parts in the future. In other words, it was an amount calculated to take the profit out of Lycoming’s wrongdoing.

Why Didn't Lycoming Just Settle Instead of Going to Trial?

Good question.  Lycoming's best settlement offer was $75,000 to be split among all the plaintiffs.  In other words, Lycoming offered plaintiffs virtually nothing.  It was Lycoming, not the plaintiffs, who forced the matter to trial.

What other Factors were at Play?

According to the report of the plaintiffs’ attorney, the court had ordered Lycoming to turn over to plaintiffs all relevant documents about the carburetor before trial. Lycoming, however, intentionally withheld certain documents without telling plaintiffs that they existed. Lycoming’s litigation strategy – if it can be called that – backfired when the plaintiff’s attorney obtained the documents from another source and then proved during trial that Lycoming was hiding evidence.

Is this Verdict Unprecedented?

The plaintiffs’ attorneys did a wonderful job overcoming many obstacles that the manufacturer placed in their path over the last 9 years or so.  And punitive damages awards are rare indeed.

But while the verdict in this case is out of the ordinary, the story underlying the verdict is not:

  • Aviation manufacturers have a history of concealing defects in the design of their products.
  • After an accident, manufacturers frequently convince the NTSB to look no further than the pilot, or perhaps a mechanic, as the cause of the crash. Just as Lycoming did here, they often convince the NTSB that there is no need to dig into their engine before completing its report.
  • When the defect is discovered by experts hired by the victims' families, the manufacturers adopt a “defend at all costs” mentality.  Just as did Lycoming, manufacturers generally refuse to accept any responsibility for the harm they have caused unless and until a jury requires them to. 

Another example involving a more recent crash and a Teledyne Continental Motors engine is discussed here and here.

Related Material: The plaintiff attorney’s account of the verdict. 

Preserving the Aircraft Wreckage

What happens to the wreckage after an airplane accident? Who gets access to it? What does the aviation accident attorney need to do to make sure it is properly preserved?
 
Here's what happens: 
 
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 Wreckage Awaiting NTSBsure no one tampers with it.  The Board investigator inspects, documents, and photographs the wreck.
 
2. The Wreckage is Removed to a Secure Location. After the Board investigator has inspected the wreckage on site, it asks a salvage company to remove it to a secure location.  The salvage company usually cuts the aircraft up, loads it on a truck and carts it away.  Wreckages from northern California airplane accidents often end up at a facility called Plain Parts in Pleasant Grove near Sacramento.  Wreckages from southern California accidents often end up at Aircraft Recovery Services in Pearblossom, California. Though the wreckage is now in the hands of a private salvage company, it is still considered to be in the custody of the NTSB. The salvage yard operators are supposed to allow no one access to the wreckage without the NTSB's permission.
 
3. The NTSB Goes to the Storage Facility. The NTSB visits the storage facility with the other parties whom the NTSB has invited to participate in the accident investigation.  (As discussed here, the NTSB often invites the aircraft and engine manufacturer to participate in the investigation. The NTSB never invites the victim or the victim's representatives. In fact, the NTSB won't even allow the victim or his representatives access to the wreckage.)  The NTSB and the invited parties conduct a more detailed inspection of the parts, and they may disassemble the engine. They may send parts out for testing. 
 
4. The Wreckage is "Released" to the Owner.  When the NTSB is done with its various inspections, it "releases" the wreckage to the owner.  By now, legal title to the aircraft has often changed from its original owner to the insurance company that paid for the loss of the aircraft. As far as the NTSB is concerned, the owner -- whether it's the insurance company or the original owner -- is now free to do with the wreckage what it wants, including scrapping it or selling it.    
 
Of course, the aircraft wreckage is important evidence. Therefore, before the NTSB releases the wreckage, the aviation attorney must take whatever steps are necessary to make sure the wreck is preserved.  The victim's attorney needs to determine who the aircraft wreckage's owner is, and he must obtain the owner's written agreement to keep the wreck secure once the NTSB releases it. If the owner refuses, or threatens to destroy the wreck, the attorney may need to seek a court order. 

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.

That’s because the NTSB allowed Cirrus to participate in the investigation, but not the families or the families’ expeLidle Crash Photo from Wikipediarts. Is it any surprise that the NTSB’s final conclusions favored the manufacturer?

There is a known problem with the Cirrus ailerons jamming at full deflection. After this accident, Cirrus published a number of service bulletins in an attempt to correct the problem and, ultimately, the FAA issued an Airworthiness Directive against the aircraft. That doesn't necessarily mean that the aileron problem caused the Lidle crash. But the families are entitled to use the power of subpoena that comes with filing a lawsuit to investigate what happened. They don’t have to simply accept the NTSB’s conclusion — a conclusion the NTSB reached after closed-door meetings with Cirrus’ experts. 

The Conflict of Interest Built-in to the NTSB's Party System

The National Transportation Safety Board doesn't have the engineering expertise or financial resources to investigate an accident on its own. So it asks industry representatives for help.  In almost every case, it turns to the manufacturer of the aircraft component that failed or malfunctioned.  In other words, the NSTB asks the entity most likely to have caused the crash for NTSB Investigator Gathers Data at Crash Sitehelp investigating it. The NTSB calls this method of investigation the "party system."

Can we really expect a manufacturer to point out to the NTSB evidence suggesting that it may have been at fault?  Of course not.  Asking industry representatives to help determine the cause of an accident is like asking the fox to help figure out what happened to the chickens.

Victims' families are not allowed to participate in the NTSB's accident investigations. Nor are experts hired by the families or by the families' attorneys. So the investigation is necessarily one-sided, with the NTSB's final report heavily "influenced" by the very corporations whose products or services are being investigated. The NTSB has recognized the conflict of interest inherent in its "party system" but, unfortunately for victims and their families, continues the practice in just about all of its investigations.