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.)

American Airlines Flight 587 encountered wake turbulence. The pilot countered with rudder inputs. The rudder inputs were excessive, the tail assembly failed, and the aircraft crashed, killing 265 people.

The NTSB determined that the Airbus’ rudder controls are unduly sensitive and make it easy for a pilot to overstress the aircraft’s structure, causing a catastrophic failure.  Now, eleven years after that crash,the FAA has issued an Airworthiness Directive against the A300 Airbus to remedy what it considers to be a problem with the aircraft’s design. 

Originally, the FAA was going to require that all the A300’s be modified to limit the rudder pedals’ travel.  The FAA felt that such a modification would make it much more difficult for a pilot to overstress the aircraft. That modification would have cost about $200,000 per aircraft. But Airbus convinced the FAA to allow a cheaper fix.  So for about half of that cost, the FAA will allow the A300’s simply to be equipped with a warning light on the glareshield directly in front of each pilot and an associated "stop rudder inputs" aural warning.

A Warning is a Last Resort

Any engineer will tell you that when a hazard is discovered, the best option is to design out the hazard. If that can’t be done, then the hazard should be guarded against. If that isn’t feasible, the last resort is to warn against the hazard. That’s what’s known as the engineer’s “Safety Hierarchy.”

Here, there was a feasible way to change the design to eliminate the hazard – limit the travel Stress Performance Curveof the rudder pedals. Thus, a warning is the wrong way to go.

A Warning Is Not Always Appropriate.

Warnings work well in some situations. A warning system that alerts a pilot to low fuel is great. A warning system that alerts the pilot that some system is overheating is also useful. But warning systems that activate in emergency situations are often useless.

The problem is that under stressful situations, a pilot’s performance can degrade rapidly. The pilot is unable to comprehend a warning’s meaning in an emergency and respond appropriately. That’s what the BEA (Europe’s NTSB) concluded happened to Air France Flight  447. Confronted with an emergency, the crew could not comprehend and react to the Airbus’ aural warnings. As summed up by Paul Marks:

Despite a stall warning sounding continually, it was ignored and the pilot kept the plane’s nose pointing upward – while the plane was in fact plummeting toward the ocean. All the crew needed to do was push the nose down to regain lift – but they didn’t.

In the first minute after the autopilot disconnection, the failure of the attempt to understand the situation and the disruption of crew cooperation had a multiplying effect, inducing total loss of cognitive control of the situation," the BEA says.

The combination of the [Airbus] warning system ergonomics, and the conditions under which [Air France] pilots are trained and exposed to stalls during their professional and recurrent training, did not result in reasonably reliable expected behaviour patterns," the BEA adds with massive understatement.

Stress Performance Curve

Why would a trained crew essentially ignore the aircraft’s warning systems in an emergency? A little stress helps people focus, and they tend to perform better.  But after a point, stress makes it difficult, if not impossible, to think.  A Vietnam fighter pilot used to tell me: “The first thing that happens in an emergency is your IQ gauge goes to zero.” 

The Airbus’ rudder pedals can be feasibly redesigned to eliminate the hazard. That makes a warning system the wrong solution.

Today a French court of appeals reversed the conviction for criminal manslaughter against the Continental Airlines mechanic involved in the Air France Concorde crash.

That brings the criminal proceedings to a close 12 years after the airliner went down.  I wrote here that the proceedings would do nothing for the families.  To the extent that the families obtained any compensation at all, it was through the civil system, not the criminal trial.Air France Concorde - Flight 4590

What the criminal trial did do, however, is forever change the landscape for airline accident investigations, for the worse. Sure, the mechanic was ultimately acquitted. But the ordeal that the mechanic went through will not be soon forgotten by the aviation community worldwide. 

The Air France Concorde ran over a strip of metal on the runway at Charles de Gaulle Airport. One of the Concorde’s tires exploded. A chunk of the debris from the tire punctured the Concorde’s fuel tank. Fuel leaked from the tank, and into an engine. The ensuing fire and engine failure brought down the aircraft. 113 people were killed.

The metal strip fell onto the runway from a Continental Airlines DC-10 that had taken off minutes earlier. Had Continental’s mechanic attached it properly, it wouldn’t have fallen off. Continental’s maintenance practices were sloppy. No doubt about that. And the mechanic who was involved was in some fashion responsible for the crash. But not criminally. He shouldn’t have been prosecuted.

Next time an airliner crashes, would anyone blame a mechanic for clamming up, instead of cooperating with the NTSB?

The Montreal Convention requires airlines to compensate international travelers who are injured as a result of an “accident.”  If the passenger is killed, the Montreal Convention requires the airline to compensate the family members. But the Convention considers neither an airliner’s pilots nor its flight attendants to be “passengers.”  Thus, crew members’ claims (or the claims of their familiesCrew Cap in the event of a fatal accident), are usually governed by by local law, not the Convention. In the US, that means that any lawsuit the crew member might bring against the airline would likely be barred by the applicable workers compensation statutes, which typically prevent any employee from suing his or her employer for work-related injuries.

Of course, crew members or their families are free to pursue claims against those other than the airline who might be responsible for an accident. Often that’s an aviation manufacturer. But unlike passengers, crew members generally cannot sue the airline.

There is one exception. A crew member may be considered a “passenger” if she was “deadheading.” That is, if the crew member was off-duty, but the airline had her on the aircraft simply to transport her from Point A to Point B, then the Convention would apply to her claims.

The owner of the Glasair III had finished painting the aircraft just before the fatal flight that killed him and his passenger near Byron, according to his ex-wife.

[Behne] had just finished painting the plane at his private airstrip when he and a friend went on the ill-fated flight. "He wanted to get it up and running," said Shelley Rose, whose marriage to Behne ended in divorce in 2009."

When an aircraft is painted, the painter must mask holes in the aircraft’s exterior, called static ports, as well as the aircraft’s pitot tube.  The pitot tube and static ports sample air pressure exerted on different parts of the aircraft during flight.  That information from the pitot static system drives the aircraft’s airspeed indicator, altimeter, and vertical airspeed indicator.

Forget to remove the masking tape, or allow tape residue to clog the tiny static ports, aPitot tubend none of the instruments will work properly.  Masking tape is what brought down a Boeing 757 in 1996, killing 70.   A problem with the pitot-static system (unrelated to masking tape) was also implicated in the crash of Air France flight 447.

Years ago,  I picked up my plane after it was repainted by a reputable shop in Northern California.  During my pre-flight inspection, I found tape residue clogging the pitot tube.  The tape residue would have prevented the airspeed indicator from working properly, and could have caused problems in controlling the aircraft, especially on takeoff.

An inoperative pitot-static system always presents challenges.  But the challenges are greatest at night or in bad weather, not during the nearly ideal flight conditions the Glasair pilot experienced.

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.

Another Robinson R44 Helicopter rolled over and almost immediately caught fire.  This time it was at Slaton Municipal Airport in Slaton, Texas.  According to the Avalanche-Journal, the Robinson R44 firehelicopter was engulfed in flames within 10 seconds of the helicopter rolling onto its side.

Fortunately, the pilot got out.  But the R44 is racking up quite a record for catching fire in otherwise survivable accidents. The problem is that once the helicopter’s rotor blades strike the ground, its transmission rips into the fuel tank.  See here, here, and maybe here.

These fires aren’t supposed to happen. In 2010, Robinson began using a different fuel tank that is supposed to be resistant to punctures. But it didn’t retrofit the existing fleet.  This aircraft was a 2004 model.

 

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 NTSB has determined that the probable cause of the Galloping Ghost’s crash at last year’s Reno Air Races was flutter. No surprise there — I wrote about flutter within hours of the accident. At its presentation, the NTSB even showed the same NASA video demonstrating flutter that I had posted last year.

Flutter can occur whenever an aircraft is flown faster than it is designed to fly. As it turned out, Jimmy Leeward, the pilot of Galloping Ghost, exceeded by nearly 40 mph the aircraft’s previous top speed without any previous testing to determine if the aircraft would be able to resist flutter at the new speeds. As it turned out, it couldn’t. Board member (and pilot) Robert Sumwalt was highly critical of Leeward’s decision to fly the aircraft in competition without first testing it at race speeds:

If you want to go out and fly fast and try to win, that’s one thing. If you’re modifying an aircraft without fully understanding how the modifications can affect the aerodynamics, you’re playing Russian roulette.”

A loose trim tab assembly contributed to the flutter’s onset. The assembly came apart because the lock nuts that held it in place had been reused multiple times. That’s a no-no. Each time locknuts are removed and then re-tightened, they lose a bit of their ability to grip. That’s why once removed, locknuts should always be replaced with new.

What was surprising was the NTSB’s sentiments concerning “assumption of risk”.  According to the NTSB board chair Deborah Hersman:

At the heart of the tragedy was the fatal intersection in transference of risks from participant to observers. One moment, spectators were thrilled at the spectacle of speed only to have it followed by inescapable tragedy. The pilots understood the risks they assumed. The spectators assumed that their safety had been assessed.”

Those sentiments echoed what I wrote here.  Judging from readers’ comments to that post, many disagree.

Transcript of the NTSB presentation here.

All this blog’s Reno Air Crash posts here.