I wrote here that mediations are often preferable to settlement conferences. The mediator is chosen by the parties, while the trial judge who presides over the settlement conference generally is not. Further, the mediator often has more time than the trial judge to devote to the settlement process.

This month’s Forum Magazine published an article by Kristine Meredith and Judge John Judge John F. Herlihy (ret.)Herlihy (recently retired from the bench and now a private judge) that touched on this very topic.  Kristine asked Judge Herlihy, who has 29 years experience on the bench, why the parties should even bother attending a pre-trial settlement conference if the case couldn’t be settled at a mediation.  According to Judge Herlihy, timing can be everything:

As the case gets closer to trial the [likely] outcome becomes clearer.  I often told lawyers that although the case didn’t resolve at mediation, as a trial judge, I had an advantage that the prior mediator did not have.  If the case didn’t resolve when it was in my department for trial, then the next step was to call for the jury panel.  That immediacy had a direct effect on the parties’ and attorneys’ willingness to try one last time to settle.

"Reality Check: A Trial Judge’s Approach to Settling Cases," appears in the May/June issue of Forum Magazine.  The full text is available from the Consumer Attorneys of California. 

At least 10 people aboard United Flight 935 were hurt when the aircraft encountered severe turbulence.  Is the airline responsible for compensating its injured passengers?

Continental 767 CabinBecause Flight 935 was an international flight, a treaty known as the Montreal Convention governs the passengers’ claims.  The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident."  The definition of "accident" includes an encounter with severe turbulence.  The passenger need not prove that the airline was at fault for the accident.  Under the Convention, the airline is automatically liable.

Some courts have ruled that while an airline is automatically liable for any "accident" on an international flight, its obligation to compensate an injured passenger may be reduced if the passenger himself contributed to his injury.  One issue that typically arises in turbulence cases is whether the injured passenger should have been wearing his seat belt.  In this case, it appears the seat belt sign was off and the turbulence competely unexpected, so that should not be an issue.

As discussed here, the Convention entitles the passengers to be compensated for the emotional distress they have suffered, but only if they also suffered some sort of physical injury as well.

Finally, as discussed here, the passengers are entitled to sue the airline for compensation in the United States, and in particular in California (Los Angeles or San Francisco), regardless of their citizenship or final destination. 

Ten years ago, an Air France Concorde SST departing from Charles de Gaulle Airport ran over a strip of metal on the runway.  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 Crash Was Avoidable

The metal strip fell onto the runway from a Continental Airlines DC-10.  Had Continental’s mechanics attached it properly, it wouldn’t have fallen off.  Continental’s maintenance practices were sloppy.

It is not unusual for airplane tires to rupture during takeoff for one reason or another.  On most airliners, tire blow-outs pose no serious safety threat.  That’s not the case with the Concorde. Unlike other aircraft, the Concorde’s fuel tanks are positioned directly over the tires.  The tanks are therefore at risk of being ruptured if a tire explodes.  Furthermore, the aircraft’s engines are positioned so thHenri Perrier (Third from Left)at any fuel from a rupture could easily start a fire.  That makes the Concorde design suspect.

This wasn’t the first time a blown tire ruptured a Concorde’s fuel tank. In fact, there was a string of previous incidents. So the potential for disaster was obvious. Nonetheless, Air France, as well as the Concorde’s manufacturer, chose to simply ignore the problem and hope for the best. 

It was a bad decision.

The Criminal Trial

A criminal trial began in France in February. Yesterday, French prosecutors asked that Henri Perrier, the engineer who most refer to as the “father” of the Concorde, be sentenced to jail, but that the sentence be suspended.  (Perrier is third from left in this 1969 photo.)  Prosecutors asked for the same for the two Continental Airlines mechanics whose sloppy maintenance allowed the metal strip to end up on the runway.

Some suggest the trial is a colossal waste of time and effort. What, after all, is the point? How will the trial enhance aviation safety?  Certainly, it won’t help the families at all, will it?

No, it will not.  In fact, such criminal prosecutions actually impede safety. If the mechanics and engineers who are involved in an aircraft accident investigation need to be concerned

Continue Reading Concorde Trial: Criminal Prosecution of Chief Engineer Not in Best Interests of Safety

Counting today’s Air India crash, the last 11 airline accidents resulting in passenger fatalities have all involved foreign airlines (fatalities in parenthesis):

2010:

  • May 22 – Air India Express Flight 812 at Mangalore International Airport  (158)
  • May 17 – Pamir Airways Flight 112, Afghanistan (43)
  • May 12 – Afriqiyah Airways Flight 771 at Tripoli International Airport (103)
  • January 25 – Ethiopian Airlines Flight 409, Mediterranean Sea (90)

2009:

  • November 12 – RwandAir Flight 205 at Kigali International Airport (1) 
  • August 4 – Bangkok Airways Flight 266, Ko Samui, Thailand (1) 
  • July 24 – Aria Air Flight 1525, Mashhad, Iran (17)
  • July 15 – Caspian Airlines Flight 7908, Qazin, Iran (168)
  • June 30 – Yemenia Flight 626, Indian Ocean  (152)
  • June 1 – Air France Flight 447, Atlantic Ocean (228)
  • February 25 – Turkish Airlines Flight 1951, Amsterdam (9)

 

The Death on the High Seas Act was originally intended to apply to shipwrecks and other shipping accidents in international waters.  Though a law of admiralty, DOHSHigh Seas and Air France Flight 447A’s wording is broad enough to cover any accident, not just shipping accidents. Therefore, it applies with equal force to aviation accidents occurring on the high seas.

The "high seas" are those international waters more than 12 nautical miles from the shore of the United States or one of its islands.  After an aviation accident, it doesn’t matter whether the passenger’s family sues the responsible airline under the Warsaw or Montreal conventions, a mechanic for negligence, or a manufacturer for a defectively designed product. If the accident happened on or over the "high seas," those responsible for the

Continue Reading The Death on the High Seas Act (DOHSA) and Aviation Accidents

The General Aviation Revitalization Act immunizes aircraft manufacturers from liability for defects in their products once those products turn 18 years old.  GARA was enAge of General Aviation Fleetacted in 1994.  Back then, more than half the general aviation fleet was older than 18 years. 

In other words, in 1994, the manufacturers were allowed to "walk away" from the majority of the fleet they had produced, as well as any defects that they had built into them. But once relieved of that financial responsibility, the manufacturers were supposed to spring into action and start cranking out new aircraft at more affordable prices. 

True, anyone injured by a defect in an older aircraft would be left without a legal remedy against the manufacturer that caused the injury.  But GARA proponents argued that the flood of new piston aircraft would lead to the older aircraft being removed from service.  In short order, GARA proponents argued, the average age of the aircraft in the fleet would drop and manufacturers would 

Continue Reading GARA Covers an Increasing Percentage of the General Aviation Fleet

A settlement conference is supervised by the trial judge or by another judge who is assigned to the settlement conference by the court administration. The parties mAviation Accident Mediationeet with the judge informally in the judge’s chambers (his office) and try to resolve the case.  The judge makes no rulings and issues no orders during the conference.  The decision either to settle or to proceed to trial remains with the parties. 

Given the pressure of his court docket, the judge may have only a couple of hours to devote to the settlement conference. Because aviation cases can be complex, that often isn’t enough time.


A mediation is similar to a settlement conference. But instead of the settlement talks being supervised by a judge, in a mediation the talks are supervised by a neutral lawyer or a retired judge.  The parties pay the mediator for his time.  The mediator, unlike a sitting judge, has no docket pressures and may spend several days working with the parties if that appears constructive. That’s one reason why a mediation may be more likely than a settlement conference to resolve an aviation accident case.

Another reason a mediation may be more effective is that, while a settlement judge is assigned to the case, a mediator is selected by the parties. Though the parties to an aviation lawsuit can choose any mediator they want, they usually select one who is knowledgeable about airplane or helicopter accidents or, depending on the case, airline mass disasters.  The mediator may even be a pilot.  Sometimes the parties select a mediator because he or she has experience — as either a lawyer or judge — in cases involving the type of burn injuries or traumatic brain injuries that are common in aviation accidents. The expertise means that the mediator is "on the same page" with the parties as well as with any insurers who may be involved.  

A cabin suddenly fills with fumes.  Passengers get ill.  The fumes eventually clear.  But for some, the symptoms persist long after the flight is over.  Others will first develop symptoms weeks or months later, and may not even relate their symptoms to their flight.  These passengers are all the victims of what has become known as a "fume event."

Here’s what happens: Airlines pump air into the cabin.  The air is a mix of fresh air and air that has been compressed by the aircraft’s engines–known as "bleed air."  But when the air distribution system malfunctions, toxic chemicals found in the aircraft’s engine oil can be heated and pumped through the airplane, creating a fume event. Bleed Air Schematic According to the Wall Street Journal:

Airline companies and jet manufacturers say that fume events are rare, and that when they do occur, air quality still exceeds safety standards. But unions representing pilots and flight attendants say the chemicals entering the aircraft cabin can endanger the health of flight crews and passengers.

For years, the airlines denied that fume events occurred at all  Then, the airlines admitted the events occurred, but denied that they were dangerous.  But fume events appear to be happening with more and more frequency, and the airlines seem to be more willing to admit that there is a danger to the flying public.  Regardless, in March the US Senate approved a measure that would require the FAA to study cabin air quality generally and fume events in particular.

The increased focus on fume events is for the most part due to injuries that American Airlines flight attendant Terry Williams suffered in April 2007.  She recently filed a lawsuit against Boeing, the manufacturer of the aircraft on which she was flying.  Williams is represented by Alisa Brodkowitz, a prominent aviation lawyer in Seattle, who is perhaps the nation’s leading expert on fume events.

What about the passengers of American Airlines Flight 49, who were involved in a fume event today while travelling from Paris to Dallas-Forth Worth? 

Because the flight was international, the Montreal Convention applies.  The Convention requires the airlines to offer fair compensation to anyone injured as a result of an "accident."  An accident is an "unexpected or unusual event or happening" on board the aircraft that is "external to the passenger."  A fume event would likely qualify (though some airlines contend that fume events are "normal".)

The flight attendants will have a tougher go of obtaining compensation for any long lasting injuries they might have suffered.  They can’t sue the airlines due to workers’ compensation laws.  That means their only claim is a product defect claim against Boeing, the aircraft’s manufacturer.

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

Continue Reading Defective Carburetor Results in Jury Verdict Against Avco Lycoming

The NTSB has released its preliminary report of the off-airport landing of Lancair IV-P N9JE at Hilton Head.  The accident killed a jogger but left the plane’s two occupants uninjured. According to the preliminary report, 

Further examination of the airplane revealed that the propeller assembly separated from the crankshaft flange and was missing.

In other words, the crankshaft failed.

One wouldn’t expect a crankshaft to break absent some sort of defect. If that proves to be the case, could the manufacturer of the crankshaft be held liable to the jogger’s family?

The aircraft was built from a kit and was thus "experimental." The engine, however, was not. Rather, according to FAA records, it appears that the engine was an FAA-certified, turbocharged piston engine manufactured by Teledyne Continental Motors, a company that has had its share of lawsuits related to its engines coming apart in flight. Teledyne TSIO-550-C

The General Aviation Revitalization Act, or GARA, protects aircraft engine manufacturers from liability for defective engine parts older than 18 years.

We don’t know how old the engine was in this case.  However, the Lancair builder had reportedly taken the engine from a Piper Malibu.  Piper stopped using the Teledyne Continental TSIO-520 engine in its Malibus due to reliability problems. In 1988, it switched and began installing Avco Lycoming engines instead. Thus, if it turns out that the engine was an original equipment Malibu engine, then it had to be at least 20 years old — 2 years beyond GARA’s age limit.

So is Teledyne Continental Motors off the hook, regardless of whether the jogger’s family can prove that the engine was defective? 

No.

There is one important but little-known exception to GARA.  Regardless of the defective part’s age, GARA doesn’t protect its manufacturer from lawsuits brought by the families of those killed on the ground.