The FAA has instituted new rules designed to keep sightseeing helicopters from colliding with airplanes that are transitioning the Hudson River Corridor near the Statue of Liberty.  The San Francisco Daily Journal, California’s largest legal newspaper, published this column on how the new rules came to pass, and why they aren’t enough.

FAA and NTSB Battle Over Aviation Safety

The NTSB’s preliminary report on the crash contains little more than what was in the news accounts. The report does, however, offer one bit of new information.  The helicopter impacted on a magnetic heading of 230 degrees.  That heading is not in line with the route from Reno to Susanville.  While that might ultimately prove to be important, little can be made of that information without a careful examination of the layout of the terrain near the accident site and the roadway that the pilot might have been using to aid in his navigation.     

Though the information in the NTSB’s official report is sparse, an NTSB spokesman did offer his expanded comments to Mary Pat Flaherty, a reporter for the Washington Post who has been following the poor EMS safety record during the past months. The NTSB’s Ted Lopatkiewicz told Flaherty that the Mountain Lifeflight helicopter didn’t have certain important safety equipment.  Lopatkiewicz was referring to the helicopter’s lack of an autopilot, a ground proximity warning system, night vision goggles (discussed in this post), and other equipment necessary to navigate in poor weather.

But in this case the pilot was flying in good weather.  He did not collide with the ground because he could not see it.  Rather, as discussed here, it appears that the pilot crashed because of some type of mechanical problem with the helicopter.  It’s unlikely the helicopter’s lack of advanced equipment played any role in the accident at all. 

Related Posts:

Compensating the Families of the Mountain Lifeflight EMS Crash

Mountain Lifeflight EMS Helicopter Crash at Doyle, California

EMS Helicopter Safety: NTSB Pushes the Envelope

OSC: FAA Ignoring EMS Helicopter Dangers For Fear of Negative Publicity 

Aircraft engine manufacturers recommend that owners overhaul their engines when they accumulate a certain amount of operating time, usually between 1200 and 2400 hours depending on the engine’s make and model. For example, Teledyne Continental Motors suggests that owners overhaul its IO-550 model engine at 2000 hours. Textron LycLycoming Engine - photo by wirelizardoming suggests that owners overhaul its O-235 engine, like the one pictured, at 2400 hours.

Overhauls are expensive.  Some can cost $40,000 or more.  An increasing number of owners opt to run their engines 200, 400 or more hours past the manufacturer’s recommended "time between overhauls," or TBO.  Once past TBO, they may take extra precautions by, for example, regularly sending out engine oil samples for spectrographic analysis, checking the engine’s compression, and looking inside certain parts of the engine with a boroscope to insure that  things look good. They feel the manufacturer’s TBO recommendations are somewhat arbitrary. By running their engines past TBO they are squeezing more life out of them, and that just makes good economic sense.

The FAA does not require private owners to comply with the manufacturer’s stated TBO interval. The manufacturer’s TBO is therefore advisory only.  As long as a properly certified mechanic has

Continue Reading Running Past TBO: Smart Economics or Owner Negligence?

Burdett v. Teledyne Continental Motors involved the forced landing of a Beech Bonanza after the Teledyne Continental IO-550 engine installed in the aircraft came apart in cruise flight. The passenger was severely injured.

The National Transportation Safety Board blamed the engine failure on the mechanic who last worked on the engine, and cleared the engine manufacturer, Teledyne Continental, from any liability.

We suspected that the NTSB’s determination had been influenced by Teledyne’s engineers, who the NTSB had allowed to assist in the investigation, despite the obvious conflict of interest that presented.  We thus conducted our own, independant investigation.  We concluded that, contrary to the NTSB’s findings, Teledyne Continental was to blame.  After a six-week trial, the jury agreed.

At its annual convention in San Francisco, the California Trial Lawyers Association, known as the Consumer Attorneys of California, honored aviation accident attorney Mike Danko as a Trial Lawyer of the Year finalist for 2009 in recognition of our work in the Burdett case. The Trial Lawyers Association showed this video presentation during the ceremony.

 

 

A crew member injured by an aircraft’s defective design may sue to hold the aircraft manufactuSuper Stallion Helicopterrer accountable.  At least he can when the aircraft involved in the accident was a civilian aircraft. If, however, the airplane or helicopter was a military aircraft, then the rules change.

A manufacturer who built an aircraft specifically for the military may be able to avoid liability to those injured by the aircraft’s design by asserting the "government contractor defense."  That defense provides the manufacturer complete immunity from lawsuits. But the Supreme Court ruled in Boyle v.United Technologies that a manufacturer can take advantage of that defense only if it can prove all of the following things:

  1. That the US government specifically required or approved the design feature that caused the accident or injury; 
  2. That what the manufacturer built conformed to the specifications that the government approved, and
  3. That the manufacturer warned the government about any dangers in the design that the manufacturer knew about and that the government didn’t.

If the manufacturer fails to prove all three of these things, then it may be sued just as a manufacturer of a civilian aircraft, and an injured crewmember is entitled to hold it accountable for any injuries the aircraft’s design caused him.  

An A-Star AS350B air ambulance helicopter crashed November 14 at Doyle, California, killing the A-Star Helicopter that Crashed Saturdaythree crew members on board.  According to an article in the Reno Gazette Journal, the pilot made a distress call before the crash. That indicates that the pilot was likely experiencing a mechanical emergency. The photographs accompanying the article show that the wreckage was spread over a fairly large area.  That indicates that the pilot lost control of the helicopter well before he was able to attempt an emergency landing.

Under the circumstances, the NTSB will be looking at the helicopter’s

Continue Reading Mountain Lifeflight EMS Helicopter Crash at Doyle, California

Zodiac AircraftThis past April, the NTSB called upon the FAA to ground the entire fleet of Zodiac aircraft because their wings tend to fall off in mid-flight.  As it turns out, a defect in the Zodiac’s design induces an aerodynamic phenomenon known as flutter.  Flutter can destroy a wing or other control surface in a matter of seconds.  This well-known, dangerous, but rare condition is shown occurring in the tail surfaces of other aircraft types here and here. 

When the NTSB’s issued its "urgent recommendation," a total of ten people had already been killed in Zodiacs due to flutter-induced failures.  Back then, the NTSB was under heavy fire for sitting on a long list of NTSB recommendations pertaining to a number of different aviation industry sectors while lives were being lost. Because of that, I figured that this was one recommendation the FAA would act on, and fast.

The FAA will see Zodiac’s manufacturer as an easy target and move against it — if for no other reason than to quiet its critics.

I was wrong.  The FAA refused to ground the aircraft.  Even I was surprised.

Of course, it was just a matter of time.  On November 6, another Zodiac crashed in Arkansas.   It looks like another flutter-induced failure.  That brings the death toll to 11.  On November 13, the NTSB issued an official "I told you so."

The Safety Board’s urgent recommendation to the FAA was to "prohibit further flight of the Zodiac CH-601XL, both special light sport aircraft and experimental, until such time that the FAA determines that the CH-601XL has adequate protection from flutter." The FAA replied in July that they lacked "adequate justification to take immediate certificate action to ground the entire fleet." 

The NTSB’s unstated question:  Just how many deaths are required before the FAA finds "adequate justification" to act?

Generally, crew members may not sue their employers for injuries sustained on the job. Even where the crew member’s injury was caused by the negligence  of the employer or one of the crew member’s co-employees, the crew member’s sole remedy against his employer is to pursue a workers’ compensation case. This is known as the "exclusive remedy rule."  The trouble with the exclusive remedy rule is that worker’s compensation benefits are limited and are seldom adequate to compensate a crew member or the crew member’s family for the injuries suffered in an aviation accident.  

Fortunately, the exclusive remedy rule does not prevent a crew member from suing third parties who caused or contributed to the injury.  Therefore, a crew member injured in an aviation accident may sue the aircraft manufacturer if the accident was caused by a defect in the design or manufacture of the aircraft.  Similarly, where the accident was caused by the negligence of a mechanic who worked on the aircraft, the crew member may sue the mechanic provided, of course, that the mechanic was not one of the crew member’s co-employees. 

There are few exceptions to the "exclusive remedy" rule.  For example, a crew member can sue the employer who caused his injuries where:

  • The employer didn’t maintain workers compensation insurance;
  • The injury was the result of certain types of intentional wrongdoing on the employer’s part; or
  • The crew member was injured by a product or part that the employer manufactured.

The "exclusive remedy" rule also prevents the crew member from suing any co-worker who caused the accident.  Again, there are a few exceptions for unusual situations. For example, a crew member may sue his co-worker where the co-worker’s actions were malicious and with an intent to cause injury, or when the co-worker was intoxicated. 

I blogged about Scene Systems’ animation of Flight 1549’s landing in the Hudson here back in March.  Great effort, but I noted that it would take hundreds more hours of work before it could be used in court.  That’s because it did not appear that the animation accounted for and synchronized all the available data for the flight.  For example, the flight path depicted in the animation could not have been true to the information from the flight data recorder, because the flight data recorder had not yet been downloaded and made available by the NTSB.  As a result, Scene System’s finished product involved too much guesswork to ever be shown to a jury.

Just for fun, Kas Osterbuhr of Exosphere3d in Denver has been working on perfecting an animation ever since.  He emailed me the link late last night.  Kas, whose firm creates animations for use in court, explained to me that his animation is pretty much technically perfect.

Among the datasets utilized are: audio transcripts and recordings, digital flight data recorder, raw radar data, NEXRAD weather, witness statements, satellite imagery, elevation maps and several of the NTSB reports published in the docket. . .All aspects of this animation are based on actual data, whether from the NTSB docket or otherwise. The entire 3D reconstruction is built into a single environment where every piece of information can be aligned in position and on a timeline.

Tons of work went into this animation and it shows.  Aviation accident animations don’t get any better than this.

One question, Kas.  The animation depicts flames coming from the aircraft’s engines at certain times.  On what data is this based and what would happen if the judge ultimately determined that that evidence for this aspect of the animation is insufficient to allow it to be shown to a jury?

November 9 Update: Kas’ response is in the comments.

Not necessarily.

The accident victim should retain the best aviation contingency fee attorney he can find, regardless of the attorney’s piloting credentials. Rather than asking whether the prospective attorney has a pilot’s license, the victim should ask whether the attorney has a history of successful jury verdicts in aviation cases. A record of successful verdicts is important even if the victim would prefer to settle rather than go to trial. Defendants and their insurance companies will seldom pay a fair settlement to a victim represented by an attorney who has not proven that he can take an aviation case all the way to verdict. The lack of a trial record is a weakness that a defendant or the insurance company will always exploit. It’s a weakness that no amount of piloting credentials can make up for.

Of course, many of  the aviation lawyers who own the best trial records are also active pilots. That’s because current piloting experience is an advantage when interviewing witnesses or taking their depositions, sifting through evidence, and working with experts.

For this reason, the manufacturers who are to blame for an accident often chose lawyers who are pilots to defend them. They feel that, all other things being equal, lawyers who are pilots have an advantage over those who aren’t.

But for the victim of an aviation accident, the prospective aviation attorney’s record at trial is always more important that his flying credentials. If the aviation attorney doesn’t have a history of successful jury verdicts, that lawyer – regardless of whether he holds a pilot’s license — is a poor choice.

Related Post: Helicopter Crash Lawyers Bribe Judge, Settle Case, Get Sued