His website tells of an illustrious legal career spanning decades.  Pictured next to an antique race car, Terry O’Reilly boasts that he is “one of the most distinguished and successful trial lawyers” in the entire United States. O’Reilly lists many awards he claims to have received and explains that “I have the largest number of seven and eight figure verdicts in Northern California.”  He speaks of one aviation case he settled for more than $160 million.  Scattered through the website are other photos showing him surrounded by the trappings of his success.

A prospective client couldn’t help but be impressed.  Terry O'Reilly's Bentley

But it now looks as though O’Reilly’s show is mostly smoke and mirrors.  Yesterday the Boalt Law School graduate filed personal bankruptcy, with unpaid debts approaching $10 million. 

O’Reilly brings with him into bankruptcy the O’Reilly Law firm itself.  O’Reilly is legally permitted to continue practicing law even though he is bankrupt.  But all that is left of his firm is a small desk in a San Mateo, California office building.  The office is staffed by a disbarred lawyer, Pamela Stevens.  Stevens, according to State bar records, bilked her injured clients out of millions of dollars of settlement money and is considered a danger to the public.  Not someone who an accident victim would want working on his or her case.  

Certain types of attorneys can serve clients perfectly well even if they are themselves insolvent.  But plaintiffs lawyers working on contingency need to finance their clients’ cases.  They must advance on their clients’ behalf hundreds of thousand of dollars for experts and court costs.  With no money, it’s unclear how O’Reilly will be able to adequately represent the clients he seeks to attract.  

How was O’Reilly able to appear to be so successful? Last week a California court of appeal ruled that over the years O’Reilly was able to buy flashy stuff by improperly siphoning money from his previous law firm.  As a result, he ended up driving that law firm, O’Reilly & Collins, into bankruptcy in 2012:

O’Reilly, “in a concerted effort to wring from the firm every last dollar . . wrote firm checks to others to: build and furnish for him and his wife a luxury ranch in Idaho; buy expensive vintage cars here and abroad in furtherance of his racing hobby; buy fine wine, entertainment systems, and clothes;  pay taxes and insurance on his home in San Francisco; fly around on private jets, take ski vacations and travel to rugby matches; pay for vacations and shopping sprees for his current spouse; and fund his personal trust and retirement accounts. . . “

In short, O’Reilly was buying things with other people’s money.  And he apparently had no way of paying those people back.  Yesterday, it all caught up with him.  

Having worked with O’Reilly years ago, it’s sad to see.

Hall of Fame Aerobatic pilot Eddie Andreini died during the "Thunder Over Solano" air show at Travis Air Force Base in May.  There was a mishap during his routine, and his Stearman biplane slid to a stop on the runway. Eddie wasn’t hurt, but he was trapped in the plane.  He radio’d for help.

The Air Force had told the performers that its fire trucks would be positioned and ready to respond toEddie Andreini such an emergency within seconds.  But for some reason, the trucks were nowhere to be found during Eddie’s routine. Instead of getting to Eddie in a minute or less, as they were supposed to, the trucks didn’t get to Eddie for nearly five minutes.  By then, Eddie’s plane was engulfed in flames and it was too late.  Eddie was gone.

Where were the firetrucks?  What took them so long to get to Eddie?  When the family asked the Air Force these questions, the Air Force closed ranks and went mum.  So the family exercised its rights under the Freedom of Information Act. The family formally requested the Air Force to turn over to them the documents that would show why the Air Force fire trucks didn’t come to Eddie’s aid as it had promised, and instead let Eddie burn to death.  

Under the law, the Air Force had 20 days to respond to the family’s request. We had hoped that, out of respect for the family, it would have turned over documents right away.  But that was not to be. The family made its request to the Air Force four months ago. Yet the Air Force has yet to turn over to the family even a single piece of paper.

We’ve just filed suit against the Air Force for violating the Freedom of Information Act.  We want to know:  

  • Does the Air Force believe it is above the law?  
  • Does the Air Force believe that the family has no right to know why Eddie died?
  • What is the Air Force trying to hide from Eddie’s family and the public about it’s role in Eddie’s death?  

 

Complaint – Travis AFB Re FOIA Request – FEC

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

The Robinson R66’s safety record to date is troubling.  The aircraft did not go into production until 2010 and the fleet is very small.  Yet a total of five R66 helicopters have already crashed, killing 11:

  • July 12, 2011, Flandes, Colombia, pilot and passenger killed;Robinson R66
  • October 1, 2011, near Philip, South Dakota, pilot killed;
  • January 3, 2013, Caraguatatuba, Sao Paolo, Brazil, pilot and passenger killed;
  • March 9, 2013, Oamaru Valley, near Taupo, New Zealand, pilot killed; and
  • July 27, 2013, near Skyhaven Airport, Pennsylvania, pilot and 4 passengers killed. 

Lawsuits have just been filed regarding two of those crashes. 

The first was filed last month in Los Angeles against Robinson Helicopter Company and others arising from the Colombia Crash. The crash occurred moments after take off in good weather  The lawsuit alleges that the R66 fuel system was defective and that, as a result, the Rolls-Royce RR300 turbine engine that powers the R66 repeatedly cycled between full power and low power, rendering the helicopter uncontrollable and causing it to crash. The suit was filed by Ronald Goldman and Ilyas Akbari, two attorneys who have a long track record of suing Robinson.   

The second suit deals with last month’s R66 crash in northeastern Pennsylvania. That helicopter crashed in the vicinity of thunderstorm activity.  The suit was filed by another prominent helicopter accident attorney, Gary Robb of Kansas City on behalf of a woman who lost her 3 year old son in the crash.  Robb’s suit alleges that the charter service that owned the R66 is liable for allowing a pilot to fly the helicopter who was not competent for the mission he was attempting.

A jury in Washington state handed down a $26 million verdict against Avco Lycoming as a result of a fatal Cessna 172 crash that killed three people in 2008.  The  jury’s award included $6 million in punitive damages, designed to punish Lycoming for consciously disregarding the safety of the flying public.

It’s the second time a jury has slammed Lycoming with punitive damages for its carb floats. In 2010, a jury awarded $89 million, including $64 million in punitive damages, as a result of 1999 Cherokee 6 crash that killed four and injured one.

This case, however, was a bit different. It was the judge who ruled that Lycoming was responsible for the crash before the case ever reached the jury.  All that was left for the jury to decide was how much to include in its verdict.  The judge ruled against Lycoming because it refused to turn over relevant documents in the case.  Apparently, the documents were so incriminating that Lycoming felt it was better to suffer a certain jury verdict than to allow the documents to see the light of day. 

[I]n December 2005, Lycoming participated in a series of emails discussing the leaking Delrin Float issue, none of which Lycoming produced during discovery. The series of emails informs Lycoming of the significance of the Delrin float leaking problem. In the emails, Lycoming employees state that it is clear that hollow plastic carb floats can leak, allowing fuel to enter the interior of the floats. The emails reflect that there was also a recent inflight [engine] stoppage. The email also recognized the danger of discussing the defects in writing: “It is too bad that we have to answer in writing on such a touchy issue.”

Plaintiffs asked Lycoming to turn over the rest of the emails on the subject, including those that went to upper managment.  The emails would have been important evidence that Lycoming knew the floats leaked and could cause engine failure. But Lycoming refused. So the court ordered Lycoming to turn them over. Lycoming still refused. 

Lycoming’s  willful and deliberate refusal to follow the court’s order prevented plaintiffs from proving their case. So the court did the only thing that was fair and ruled that the floats were defective and caused the accident.

The Judge’s order is an interesting read. 

Judge’s Sanctions Order Against Lycoming

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.)

In July, aviation lawyers Terry O’Reilly and James P. Collins were billing their firm, O’Reilly & Collins, as “the premier trial law firm in Northern California.” They claimed the firm had the financial resources to take on any fight, and that it was “one of the most successful plaintiff’s trial law firms in the United States.”  O’Reilly was a long-time member of the prestigious Inner Circle of Advocates, and had just been named a Northern California Super Lawyer. To celebrate, Collins and O’Reilly published ads showing the pair posing in front of Terry O’Reilly’s very expensive 1954 Bentley race car, talking about all the cases they have won. 

Sweet.

But today, O’Reilly & Collins is in bankruptcy, leaving its creditors holding the bag for millions.  All the firm’s lawyers, except for O’Reilly himself, have scattered.   

Court records show that the San Mateo aviation firm has passed off some of its clients to John Kristensen, one of O’Reilly’s former associates.  Other cases have been handed off to Jack Stein of the Boccardo firm in San Jose. Terry O’Reilly himself is holding on to at least one case involving the Pilatus crash at Butte, Montana

O’Reilly continues to be assisted by Pamela Stevens, a lawyer who, according to California State Bar records, bilked her injured clients, including children, out of millions in settlements. The Bar pulled Stevens’ license in 2002, finding that she posed a danger to the public.

In July, a San Francisco jury returned a verdict against O’Reilly & Collins for $3.2 million. The judge sanctioned O’Reilly personally for more than $107,000 for failing to turn over documents and then giving false testimony about it. 

The firm still has its office in San Mateo, but its website has been taken down.  Since the verdict, O’Reilly says that he has moved out of state. 

O’Reilly has paid neither the judgment nor the sanctions order. 

Bonanza N7472N crashed in December 2008 after its engine failed in flight. The engine failed because the crankshaft broke. The 25 year-old pilot was killed in the forced landing attempt. The pilot’s widow sued Continental Motors, alleging that the crankshaft, which was only 58 hours old, was defective. This week, the jury sided with Continental.Beech Bonanza After Crankshaft Failure

The plaintiff brought the suit in Continental’s home court, in Mobile, Alabama. The key ruling, according to well-known plaintiff’s attorney Kirk Presley, was the judge’s decision to keep from the jury evidence of other similar failures of Continental crankshafts. That sort of evidence is often crucial. If a jury hears of other similar failures, it is more likely to find against the manufacturer. If it doesn’t, it tends to believe that there is nothing wrong with the product and finds for the defendant.  In this case, the jury decided that the fault was not with the crankshaft’s manufacturer but with the facility that installed it into the Bonanza’s IO-520 engine a year before the crash. According to an article appearing in Alabama Live, the facility was Performance Engines

A similar ruling may have played a key role in the Corey Lidle trial against Cirrus Aircraft. (There, the judge would not allow the jury to learn about other cases where Cirrus controls jammed in the same fashion that plaintiff alleged the controls jammed on Lidle.)

This is the second win in a row for Continental. In 2011 it won a case involving allegedly defective magnetos. That case was also tried in Continental’s home court in Mobile. 

The last time Continental lost at trial was 2008, in a case involving cylinders that came loose from an IO-550 engine installed in a 1966 Bonanza. That case was tried in California, and the judge allowed the jury to hear evidence of a limited number of other similar failures.

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

More than 30 Cessna 208 and 208B Caravans have crashed when their wings iced up in flight. Victims’ families have filed many product defect lawsuits against Cessna, claiming that Cessna concealed from the pilots defects in the aircraft’s deicing system. Silvey v. Cessna is the first case to reach trial. At least the first that I know of.

Silvey, which is pending in federal court in Fort Worth, Texas, involves a Caravan that crashed near Parks, Arizona in November 2002.  The pilot reported encountering light icing. According to the NTSB report, a short time later, a witness saw the aircraft come spinning out of the clouds with its nose pointed down. All four on board were killed on impact.Cessna Caravan

After that crash, the FAA issued at least three airworthiness directives against the Cessna Caravan, all concerning the aircraft’s deicing system.  Cessna asked the Silvey trial judge, the Honorable Terry Means, to keep the airworthiness directives from the jury.  Cessna argued that since the FAA didn’t issue the airworthiness directives until after the accident, they are not relevant. The judge declined to rule whether the evidence will come in or stay out. Instead, he ruled that he’d have to see how the trials goes before deciding.

Three of the airworthiness directives at issue are:

  • AD 2005-07-01, prohibiting takeoff when there is any ice on the aircraft, and requiring pilots to feel the wings for ice rather than simply inspect visually;
  • AD 2006-01-11 requiring owners to modify the aircraft’s deicing system to legally fly in icing conditions; and
  • AD 2006-06-06 prohibiting flight in anything other than “light” icing conditions, requiring pilots to maintain higher air speeds when climbing through ice, and advising pilots that the aircraft’s stall warning system cannot be relied on in icing conditions.