Defective Carburetor Results in Jury Verdict Against Avco Lycoming

Posted on April 9, 2010 by Mike Danko

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. 
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Preserving the Aircraft Wreckage

Posted on September 28, 2009 by Mike Danko
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. 
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Is Lidle Suit against Cirrus Frivilous?

Posted on May 14, 2009 by Mike Danko

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.

Lidle Crash Photo from WikipediaMiles 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’ experts. 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. 

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

Posted on May 5, 2009 by Mike Danko

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. 

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