EMS helicopter crash cases aren’t easy.  A lawyer representing a victim’s family ought to have experience in helicopter crash cases.  If he doesn’t, he should bring into the case a lawyer who does.  What he should not do, obviously, is make up for lack of experience by bribing the judge. 

It’s shocking to think that a lawyer would ever bribe a judge.  But that’s what Texas lawyers Jim Solis and Marc Rosenthal did.   The judge admits it.  So does Solis.  They bribed the judge for favorable pre-trial rulings, and then, after getting those rulings, they settled the helicopter crash case, Texas Lawyer Marc G. Rosenthalobtaining $15 million for the families involved. Out of the settlement, the attorneys ended up with a $5.2 million fee.

Now the attorneys are being sued by their clients. The clients want that $5.2 million back. According to the lawsuit:

Plaintiffs are innocent and without prior knowledge of Defendants’ criminal acts. Not only did Defendant breach their fiduciary duties to their clients, but in doing so they dishonored the memories of Michael T. Sanchez and Raul Garcia.

Under the law of many states, a lawyer who violates legal or ethical rules can be required to forfeit his or her fee. 

But even if legally entitled to the fee, are plaintiffs morally entitled to it?  After all, how were the families harmed by the lawyers’ scheme? The families ended up with a settlement which, presumably, they found acceptable.

Families who lose loved ones in a helicopter or other crash sue for money.  No doubt about that. But perhaps more importantly, victims’ families sue for justice.  They pay their attorneys to expose wrongdoing and hold accountable those responsible for an accident.  Putting aside all else, the attorneys in this case simply didn’t do that job. The Sanchez and Garcia families did not get what they paid for.  

The case is Sanchez v. Rosenthal et al.

Running out of gas is a leading cause of piston aircraft engine failures. So you’d think that pilots would have zero tolerance for the shoddy fuel gauges installed in many aircraft, such as the ones installed in the Cirrus SR22.  But instead, they tend to make excuses for the manufacturers. "It would be too expensive to make gauges that work." Or, "you shouldn’t trust a fuel gauge anyway." Or, my favorite:

Well, you know, the regulations require that the gauge be accurate only when reading empty."

That last one makes the least sense of all. A pilot doesn’t need a gauge to tell him his tanks have just reached "empty." The aircraft has another way of informing the pilot the very moment that happens.

I don’t know how thisAircraft fuel gauge stuff about the regulations started.  But I’ve heard it from dozens of pilots over the years.  Even from those who work for manufacturers, and so should know better. 

The Regulations Do Not Say that the Fuel Gauge Must be Accurate "Only When Reading Zero"

Most aircraft carry "unusable fuel."  For example, perhaps there are three gallons that sit in a fuel line that can’t be pumped to the engine. So while the aircraft carries 53 gallons of fuel on board, only 50 are "usable." The federal aviation regulations, not surprisingly, require that the gauge read "zero" when there are three gallons left on the aircraft, since that’s when the engine will stop. 

Each fuel quantity indicator must be calibrated to read "zero" during level flight when the quantity of fuel remaining in the tank is equal to the unusable fuel supply . . ."

Put another way, the gauge must read "zero" when there is no usable fuel on board. But it doesn’t follow that when there is usable fuel on board, the gauge need not be accurate. 

The Gauge Must Be Accurate At All Fuel Levels.

The regulations require the gauge to show the quantity of usable fuel in each tank "during flight."  It doesn’t matter whether there is a quarter tank, a half tank, or a full tank of usable fuel.  The gauge must indicate the quantity accurately. The only time the gauge need not be accurate is when the aircraft is sitting on the ground.

If a fuel indicating system does not comply with the regulations, it is defective. Plain and simple.

The relevant part of the aviation regulations is as follows:

§ 23.1337 Powerplant instruments installation.

     Fuel quantity indication. There must be a means to indicate to the flightcrew members the quantity of usable fuel in each tank during flight. An indicator calibrated in appropriate units and clearly marked to indicate those units must be used. In addition: [] Each fuel quantity indicator must be calibrated to read "zero" during level flight when the quantity of fuel remaining in the tank is equal to the unusable fuel supply. . . 

After a helicopter accident, many airplane pilots are quick to conclude that the helicopter pilot violated one aviation regulation or another.  But the laws that airplane pilots know so well do not always apply to helicopters. Rather, helicopters operate largely under their own set of rules. Some of the differences between the rules applicable to airplanes and helicopters are:

Minimum Altitudes. Airplanes must stay 500 feet above any person and 1000 feet above any person or building in a populated area.  Flying any lower is a regulatory violation.  But helicopters can get as close to a building or person as they want, as long as the flight poses no "hazard to persons or property on the surface." 

Minimum Fuel. Airplanes must carry enough fuel to reach their planned landing site, then 30 minutes thereafter.  If it’s a night flight, airplanes must carry 45 minutes of extra fuel.  Helicopters are allowed to fly with a smaller fuel reserve — 20 minutes worth, day or night. 

Traffic Patterns. When approaching an airport, airplanes are supposed to fly in the designated traffic pattern.  But helicopters are expected to "avoid the flow of fixed wing aircraft."  That means helicopters are to take an alternate routing when there are airplanes in the area — a routing which would be unacceptable for airplanes.  

Visibility. Except when on an instrument flight plan, airplanes cannot fly unless the weather conditions allow a certain minimum visibility.  For example, in airspace outside of air traffic control jurisdiction, airplane pilots may not operate unless the weather is clear enough to see at least 1 mile ahead of them.  But in that situation, there is no minimum visibility requirement for helicopters.  Rather, helicopter pilots can fly in that same airspace as long as they stay out of any clouds. 

The Hawaiian air tour industry has a horrible safety record. And now it has claimed yet another life – that of a 53 year-old Californian who had traveled with his wife to the islands to celebrate their 25th wedding anniversary.

I’ve written before about the dangers of Hawaiian helicopter tours. But this tourist’s death was not the result of a helicopter crash.  Rather, it was the result of the crash of a “Light-sport Aircraft” or LSA.  And, in fact, this was the third fatal LSA crash in Hawaii since last April.  Altogether, 6 people have died.Quik 912S

So what’s an LSA? It’s an aircraft that, among other things, weighs less than 1320 pounds and flies no faster than 140 miles per hour. LSA’s come in different shapes and sizes.  The model involved in the most recent crash, the Quik 912s, is pictured to the right.

LSA’s are cheap to buy and to operate. They are much, much less expensive than helicopters.  And many think they are just as good as helicopters, if not better, for “low and slow” sightseeing. 

There’s one catch. It’s illegal to use an LSA for commercial air tours. LSAs are not engineered and tested to the same standards as conventional aircraft. If a hobbyist wants to fly an LSA, that’s one thing. But the FAA won’t allow a pilot to use an LSA to give a member of the public an aerial tour for hire. LSA’s just aren’t safe enough.

Then how do the Hawaiian operators get away with doing just that?  The loophole: While a pilot can’t use an LSA to give tours for hire, he can give flight lessons.  So the pilot need only call this ride the tourist’s first "flight lesson,” and he’s legal.

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."

In many countries, criminal prosecution of those involved in aviation accidents is the rule, not the exception.  For example, the French courts began a criminal investigation almost immediately after the crash of Air France Flight 447. The Indonesian legal system convicted a Garuda Airlines 737 pilot of negligence and sentenced him to two years in prison following a 2007 crash in Jakarta. And a French court convicted a US mechanic of involuntary manslaughter for causing the July 2000 crash of the Air France Concorde.  The mechanic got 15 months.  

This week a Brazilian court convicted two American pilots of negligence for their role in the midair collision involving a Embraer Legacy and a Gol Airlines 737 over the jungles of Brazil in 2006. That court handed each pilot a four year suspended jail sentence.Damage to Legacy 600 fromr MidAir Collison with Gol 737

Why are foreign courts so quick to turn aviation accidents into criminal cases?

Simple. The US legal system focuses on requiring those responsible for a crash to compensate their victims. When that happens, victims feel that, to some extent, justice has been served. The legal systems of many other countries, however, do not really concern themselves with compensating victims. Thus, to make things right, someone must be punished criminally and handed a jail sentence. Even if it was “just an accident.”

Either system may serve the interests of "justice." But the US system better serves the interests of safety. By taking the profit out of carelessness, it gives the airlines a monetary incentive to be safe.  The systems of other countries, however, actually impede the interests of safety.  That’s because criminal prosecutions cause those involved in aviation accident investigations to "clam up" for fear of ending up in jail.  That makes it only more difficult to determine the cause of an aviation accident and, most importantly, to bring about the changes necessary to prevent similar accidents from happening again in the future. 

Cirrus says Cory Lidle crashed because he was inexperienced, not because his controls locked up.  But a surprise witness testified that Lidle had flown the East River Corridor successfully four times in the two months before the crash.  According to a NY Daily News account, the witness related that Lidle talked with her about his flights with some enthusiasm:

He said it was outstanding, beautiful," she told rapt jurors, adding that he had taken the same 25-minute flight twice at night and twice in the daytime. "He said, ‘You really have to come with me the next time I go.’"

The NTSB brief on the accident noted that Lidle’s logbook showed no record of having flown the corridor before.  It goes on to conclude that the accident was caused by Lidle’s inexperience and failure to plan properly. It faulted Lidle for not recognizing that there was limited turning space in the corridor.  In other words, the situation caught Lidle unprepared.

The surprise witness’ testimony calls that conclusion into question. 

Of course, a pilot need not log all his flights.That’s why an investigator needs to talk to the witnesses to learn about a pilot’s experience, and can’t always just rely on what’s in the logbooks.

The NTSB investigated this accident much more thoroughly than the typical general aviation accident.  And the NTSB did, in fact, interview this witness before publishing its report. Why didn’t the NTSB get this information from the witness when its investigators interviewed her? According to the witness, that was simple:

They didn’t ask me."

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. 

Early news reports described the pilot in the Senator Stevens crash as a hero. According to the reports, the fact that there were any survivors at all is a testament to his flying skills.

I disagreed. (See Pilot in Senator Stevens Crash a Hero?)

As I saw it, the pilot took off in poor weather. When the weather deteriorated, instead of returning to the safety of the lodge, he pressed on, bobbing and weaving around low clouds, until he slammed into the side of a mountain. Nothing particularly skillful about that.  Terrain Avoidance "Inhibit" Button

Opting out of the instrument flight system, the pilot had to stay under the clouds. He couldn’t go through them because once inside, he wouldn’t be able to see and might bump into something hard and pointy. So he had to stay in the clear and visually pick his way around the terrain in his path. But as he maneuvered under the low clouds and around the fog, he suddenly came upon a mountain’s steep up-slope. He shoved the throttle forward, pulled the nose up and began a climb. But the terrain rose faster than could his aircraft. He bellied onto the rising slope while in full control of a perfectly functioning aircraft.

Sadly, the new information that the NTSB just released suggests that my analysis was correct.

  • The aircraft was equipped with a terrain awareness warning system (TAWS).  The pilot had turned the TAWS off.  He probably turned it off because, as he picked his way through the mountains, he found the frequent audible warnings annoying. 
  • One survivor recalled seeing only "white-out conditions outside the airplane."  That probably means the pilot was in clouds or fog.   Of course, the pilot was supposed to stay out of the clouds, so that he can see the terrain ahead and avoid it.
  • The fact that the ventral fin located beneath the aircraft had broken from the aircraft first, followed by impact by the left float, suggested to investigators that the aircraft impacted at a pitch attitude of 17° nose up and 30° roll to the left.  Most likely, as the pilot came out of a cloud or fog, he saw the mountainside ahead of him and pulled up and to the left in an attempt to avoid it.  But by then it was too late.

 Debris Field Suggests Aircraft Impacted Nose Up in a Left Turn

Unfortunately, there doesn’t appear to be anything particularly heroic about the pilot’s actions in this case.  Rather, it seems he flew a "perfectly good airplane" into a mountainside.  Looks like a classic case of controlled flight into terrain.

We knew from the surviving passenger that the Cirrus’ engine quit before crashing at Morton, Washington.  But did the engine quit because of a mechanical problem? Or did it quit, perhaps, due to fuel starvation?

I discussed those questions here, days after the accident happened.  Now, a year later, the NTSB says the engine failure was the result of both.  Or, more accurately, fuel starvation caused by faulty maintenance.

Not surprisingly, the surviving passenger has sued Auburn Flight Service, which performed theMorton Washington Cirrus Crash Photo by Sarah Erskine faulty maintenance.  From the NTSB’s report, it seems that Auburn Flight Service’s liability is clear.  When putting the plane’s fuel system back together just 11 hours before the crash, it failed to tighten a cap on the throttle and metering-assembly inlet.  The cap came loose in flight.  That allowed fuel to escape the assembly and flow overboard without getting to the engine. 

The loose cap wasn’t caught and the aircraft was released to the pilot because Auburn failed to perform the "post-service inspection" it boasts of on its website.

Auburn Flight Service has not taken responsibility for the crash.  It reports that it feels badly, but not, apparently, for anything it may have done or failed to do.

Everyone at Auburn feels very badly about this tragic accident as we would any tragic accident where people were injured or killed."

One would think that, in this case, the Auburn folks would feel just a little worse than usual.

The injured passenger, who was the pilot’s employee, also sued the pilot’s estate. Why? Well, certainly there will be questions raised concerning the pilot’s decision to attempt to land in a field, rather than deploy the aircraft’s parachute.  Many Cirrus pilots would argue that the parachute should be deployed in any case of engine failure, unless there is a long, paved runway beneath the aircraft such that a safe on-airport landing is assured. Interestingly, however, the NTSB did not cite the pilot’s failure to deploy the parachute as a contributing factor. 

Regardless, the "pilot error" part of the case is apt to be quite controversial.  That’s if the passenger’s case against the pilot’s estate makes it past the workers’ compensation defense.