The Cirrus SR20 burst into flames on impact.  The pilot’s wife died inside.  The pilot escaped from the wreckage, but died from his burn injuries in the hospital.Cirrus SR20 Crash at Bolingbrook

Some say that a properly designed aircraft should not catch fire in an otherwise survivable accident.  We know this crash was survivable, because the pilot was able to walk away from the wreckage.  If it weren’t for the post-crash fire, the pilot likely would have survived.

The Cirrus Aircraft boasts many safety features, such as its rocket-propelled parachute.  But the Bolingbrook crash is one more data point tending to show that the Cirrus seems to be unusually susceptible to post crash fires, especially when compared to other modern aircraft.  

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.

(All citations omitted, full opinion here.)

Cirrus Fire at FalmouthThe Cirrus SR22 crashed while landing at Falmouth Airpark in Massachusetts and immediately exploded in a fireball.  One occupant died.  Two others, however, survived, only to be badly burned in the post-crash fire.

Some say that, if properly designed, an aircraft should not burn as a result of an otherwise survivable impact. Technology that prevents such fires has existed since the 70’s.

Landing at Falmouth AirparkOf course, many aircraft flying today were designed before such technology became available.  But the Cirrus was designed in the ’90’s. One might expect that a fire after a survivable Cirrus crash should be a rare event.  But that doesn’t seem to be the case. 

Cirrus critics, pointing to the Cirrus crash at Scottsdale, among others, want to know why the aircraft seems to be more prone than legacy aircraft to post-crash fires, rather than less.  Some blame the fact that the Cirrus is constructed of composite material, while older aircraft are metal.  I’m not sure that’s an explanation, since I have been unable to find a report of anyone being burned in a Diamond aircraft.  Diamond aircraft compete with Cirrus and are also of composite construction.

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. . . "


Prokop Supreme Court Opinon

Some say that Cirrus aircraft are improperly designed because they tend to catch fire on impact more frequently than other aircraft, such as those manufactured by Cirrus competitors, like Diamond or Cessna. And there are plenty of examples of post-crash Cirrus fires to talk about. Critics argue that those fires prove that the aircraft is unduly dangerous and defective.

An aircraft should be designed such that no one is burned to death in an otherwise Cirrus Fuel Portsurvivable accident. At least, that’s the design standard in the auto industry. It became the standard when, during the 1970’s, Bell Helicopters showed that some simple engineering enhancements could virtually eliminate post-crash fires in survivable Huey helicopter accidents.  That technology has been around now for 40 years. The technology works in helicopters and cars, so there’s no reason for a properly designed, modern airplanes to catch fire either.

But the key is that the crash must be otherwise survivable. If the crash is not otherwise survivable, the post-crash fire is irrelevant to the fate of the occupants. To date, the Cirrus fires that critics point to (like this one, and this one) were accidents that likely would have been fatal regardless of whether there was a post crash fire. So from those accidents, no conclusions about the fuel system’s safety can be drawn.

But this morning, everything changed. A Cirrus crashed in Phoenix while on approach to land at Scottsdale Airport.  Both the pilot and the passenger survived the impact. But then a fire broke out.  The fire killed one occupant and badly burned the other.   

Unlike other Cirrus crashes, the Scottsdale crash was undeniably survivable. The post – crash fire raises legitimate questions about whether the Cirrus fuel system is as crashworthy as it should be.

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.

The jury agreed with the families, handing Cirrus Design one of the most controversial aviation verdicts in recent memory. Then, in April, a court of appeals vacated (erased) the verdict, and ordered that judgment be entered in favor of Cirrus. Now, in the most improbable turn of all, the Supreme Court of Minnesota has agreed to hear the case by granting a petition for review.

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 Dissenting Cirrus Judge Roger Klaphakeeducational-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. 

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, manufCirrus Side Stick Controlleracturers 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."

The Lidle jury will never learn that the NTSB concluded the crash was caused by pilot error, and not a defect in the plane, as plaintiffs allege.  

The reason is that, by federal statute (49 USC 1441(e)), the NTSB’s conclusions are inadmissible in court.

No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned is such report or reports.”

As it turns out, the statute doesn’t mean exactly what it says. Some parts of an NTSB report are sometimes admissible.  But the courts have made clear that the NTSB’s probable cause finding must always stay out of evidence.

Many find that surprising.Lidle Crash Analysis  Federal statute aside, shouldn’t the jury be told what the NTSB concluded? Isn’t the NTSB, after all, in the best position to determine the cause of the accident?

No and No.

The Jury should Not be Told of the NTSB’s Conclusions

The NTSB allows the manufacturers who are potentially responsible for a crash, such as Cirrus, to participate in its investigation. But the NTSB excludes the victim’s family. This practice, which the NTSB calls the "party system" of investigation, results in probable cause conclusions which favor the industry players. It’s one reason why most accidents are chalked up to "pilot error." 

It wouldn’t be fair to stick the families involved in the Lidle case with the NTSB’s conclusion given that the NTSB didn’t give them the opportunity to be heard.

The Jury, not the NTSB, is in the Best Position to Determine the Cause of the Accident

Unlike the NTSB, the jury will hear the testimony of experts from both sides of the case. Both the experts retained by Cirrus and those retained by the familes. That places the jury in a better position than the NTSB to determine the true cause of the crash. 

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

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 idiosyncrasiesCirrus S-Tec 55x Autopilot. 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.  

The Crash   

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.


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I wrote here that the door on N146CK, the Cirrus SR22 that crashed August 4 at Deer Valley, opened in-flight.  Yesterday, Fox News in Phoenix aired video from a security camera that captured the impact.  Here are frame grabs from the video showing the open door. 

Cirrus Open Door

Cirrus Open Door 2

Usually, when a door pops open in flight, aerodynamic forces keep the door from opening more than an couple of inches, as depicted here.  The door on N146CK was open much more than just a couple of inches.  Of course, the aerodynamic forces operating on this aircraft were far from normal.

Full video here. (Note: the video is disturbing.)