Special rules protect careless health care providers in California.  The rules, collectively known as MICRA, were designed to make it harder for medical malpractice victims to sue the doctors who injure them. For example,

  • The medical malpractice victim must provide the defendant doctor a special notice before filing suit.
  • At any trial, special rules of evidence apply that favor the doctor.
  • There is a $250,000 limit on what the negligent doctor or his insurance company ever has to pay to compensate parents when the doctor causes their child’s death.
  • An injured party cannot recover against a negligent doctor more than the $250,000 limit for causing any sort of pain or disfigurement. 

But what do the MICRA rules have to do with helicopter crash cases?

In March 2008, a California court of appeal ruled that the medical malpractice rules apply to the claims of a someone injured in an ambulance.  In that case, called Cannister v Emergency Ambulance Service, the court ruled that a negligent ambulance company that injures a patient en route to the hospital was entitled to all the EMS Helicopter by JPCprotections of MICRA, because the ambulance company was properly considered a “health care provider.” The ruling extended the umbrella of MICRA’s protection from doctors to ambulance drivers, at least when those drivers are licensed as EMT’s.

An EMS air ambulance company will undoubtedly argue that Cannister — regardless of how unfair — applies not just to road-bound ambulances, but to air ambulances as well. The aviation lawyer must keep the MICRA rules in mind in handling EMS helicopter accidents in California, and he should be familiar with the strategies that medical malpractice lawyers use to minimize MICRA’s unfair impact on his clients.  

Mackinac Island, Michigan, located in Lake Huron, is 8.2 miles around. The only way onto the island is by boat or, better yet, general aviation aircraft. No motorized vehicles are allowed on the island.  Everyone gets around by horse-drawn carriage or bicycle.  It was a great venue for the Lawyer-Pilots Bar Association’s 50th Anniversary Meeting on July 8-12.

Some conference highlights–

National Transportation Safety Board.

The NRobert Zumwalt - NTSB Board Memberational Transportation Safety Board has hundreds of employees. The Board, itself, however, consists of only 5 members. One of the members is Robert Zumwalt.   Zumwalt, who serves as the Board’s vice chair, spoke to the group and gave us some useful insight into the Board’s inner workings.

Vice chairman Zumwalt also shared lessons he has learned from his work. One is that many accidents seem to follow from a “Normalization of Deviance.” Overly "relaxed" crew members begin to accept small deviations from Standard Operating Procedures as no big deal.  The deviations become the new norm.  That leads to trouble. In fact, Zumwalt says that crews who intentionally deviate from Standard Operating Procedures are about 3 times as likely to commit additional "errors of consequence."  

Jury Verdicts.

According to Insurance industry representatives: The unpredictability in jury verdicts confuses and discourages aviation business owners. Victims should not be allowed to sue unless the defendant violated a federal aviation regulation. If there is no violation, the lawsuit should be “pre-empted.” (I’ve discussed pre-emption previously here.) Business owners would then know exactly how to avoid liability: simply comply with the FAA regulations.

According to Plaintiffs lawyers: 95% of aviation lawsuits settle out of court because both sides agree what the likely jury verdict will be. It is only when the two sides, represented by experienced aviation lawyers, disagree on what the jury verdict will be that cases end up being tried.  By definition, then, the only cases that reach the jury are the “unpredictable” ones. Pre-emption is a bad idea because the regulations are minimum safety standards only. The regulations set the bar too low. Those involved in aviation should be held to a higher standard than the bare letter of the law. The flying public expects more when it comes to their safety.

Criminalization of Aviation Negligence. 

A growing trend to “criminalize” aviation negligence only hurts aviation safety. If, for example, an aviation mechanic has to worry about criminal prosecution, he will not speak with the NTSB after an accident. When the FBI gets involved, investigations tend only to grind to a halt. The best chance of finding out an accident’s cause is through the civil process, not the criminal process. Both the insurance industry and the plaintiffs lawyers seem to agree on this one: criminalizing aviation negligence hinders, rather than promotes, aviation safety. (I’ve written before about criminalization of negligence here.)

Biggest Change in Aviation Law in Past 50 Years?

Possibly the General Aviation Revitalization Act, or GARA.  GARA, discussed here, bars suits against aviation manufacturers for defective products that are more than 18 years old. It has cut down on litigation tremendously, but has left many of those injured by a defective aviation product without any means of obtaining compensation from those responsible.

The trip here from the San Francisco Bay Area took about 10 hours in the Cirrus. The trip home should be a bit longer. Thanks to LPBA President Susan Hofer for overseeing a great conference.

 

The Yemenia Air flight that crashed near Moroni wasn’t built in the United States. It had no Americans on board, and no part of the flight was through U.S. airspace. The aircraft, however, was leased to Yemenia Air by a Los Angeles company, International Lease Finance Corporation, or “ILFC.” Could the Yemenia Air families successfully bring a lawsuit against ILFC in the U.S.? Perhaps, but only if they could prove all of the following:

1. That Yemenia Air Was Not Competent to Operate the Aircraft. The European Union banned the accident aircraft from entering EU airspace in 2007 after inspecting the aircraft and finding a long Yemenia Air A310list of technical discrepancies. The EU is now considering banning the airline from operating any of its aircraft in EU airspace. The reason? The airline does not seem capable of operating safely. Apparently, Yemenia lacks the technical expertise, the resources, or the inspectors to make sure minimum safety standards are met. From what we know about Yemenia Air thus far, the families should have little difficulty proving that the airline was not competent to safely operate ILFC’s aircraft.

2. That ILFC Knew the Airline Was Not Competent. A lessor can be held accountable to those injured by a lessee airline’s incompetence if, when it entrusted the aircraft to the lessee airline, the lessor knew the airline was not competent to operate the aircraft safely. The legal theory is called “negligent entrustment.” Yemenia Air has a terrible reputation and the families would have a good chance of proving that the leasing company knew it. Red flags certainly would have been raised for ILFC at least by 2007, when it learned that the EU had banned its aircraft from EU airspace.

3. That the Federal Law Immunizing Lessors from Liability for the Negligence of their Lessees Does Not Apply. A federal statute, USC section 44112, states that one who leases an aircraft is not liable when the lessor has an accident. But that statute was designed to protect the lessor from “automatic” liability that might arise in some states simply because the leasing company owns the aircraft. It doesn’t protect a lessor from liability for its own wrongful conduct when, for example, it knowingly entrusts an aircraft to an airline that can’t operate it safely.

4. That it is More “Convenient” for ILFC to Litigate in the US Than in Yemen. The legal doctrine of forum non conveniens allows a US court to transfer a case to a foreign country if it believes that, all things considered, it would be more convenient for the parties. And a court in California did exactly that in the Flash Air case, which involved ILFC and a 2004 crash off the coast of Egypt. In the Flash Air case, the court transferred the case overseas because, among other reasons, it decided that the best evidence concerning the cause of the crash was overseas, and that evidence would be difficult to bring here.  That’s the same situation in this case. So overcoming ILFC’s “forum non conveniens” argument would be the families’ biggest challenge. There is, however, one significant difference between this case and the Flash Air case. This case would be all about ILFC’s “negligent entrustment” of the aircraft.  So in this case, the most important evidence concerns what ILFC knew about the airline’s level of competence. That evidence is most likely here, not overseas.
 

What must an aviation attorney prove to win a negligence lawsuit against someone who he believes responsible for the accident that injured his client? Two things. First, the aviation attorney must prove that the entity was "negligent."  Second, the attorney must prove that the defendant’s negligence was a "cause" of the accident or of the injury.

Negligence Defined. Someone is "negligent" if he was not "reasonably careful" under the circumstances. It is not enough for the attorney to prove simply that defendant could have avoided the accident by doing something differently.  No mechanic, pilot, or other defendant is expected to be perfect.  He is, however, expected to be as careful as others would have been in the same situation.  If he was not, then he was negligent.  

Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or other defendant violated a federal aviation regulation.  In some states, one who violates a regulation is automatically considered negligent, or "negligent per se."  In other states, one who violates a regulation isn’t automatically negligent, but the violation is something the jury is allowed to consider when deciding the question.

Compliance with Regulations.  Proving that the defendant violated a regulation goes a long way towards proving that the defendant was negligent.  But what if the defendant proves he complied with all the regulations?  Is he off the hook?  No.  One who complies with every regulation can still be found to be negligent.  That’s because the aviation regulations are minimum safety standards only.  Presumably, those involved in aviation hold themselves to a higher standard of care.  In other words, reasonable mechanics or manufacturers are expected to go above and beyond the regulations.

Causation.  To win the negligence lawsuit, the victim’s attorney must also prove that the defendant’s negligence was a cause of the accident or the injury. So, for example, it’s not enough for the victim’s attorney to prove that the mechanic was not reasonably careful. Sure, the mechanic may have been negligent for failing to tighten the nuts to the correct torque value.  But to win the case, the victim’s attorney must prove that the failure to tighten the nuts was one of the causes of the accident or injury. 

During the Vietnam war, hundreds of soldiers suffered serious burn injuries following otherwise survivable Huey helicopter crashes.  In 1970, Bell Helicopter responded by developing a crashworthy Huey photo by Cranefuel system and installing it in the new Hueys it produced.  The crashworthy system included stronger fuel cells, breakaway fuel lines, and cutoff valves.  

The Army kept track of the effectiveness of the new fuel system.  Over the next 39 months, 895 helicopters without the new system crashed.  Post impact fires resulted in 52 burn fatalities and 31 burn injuries.  Over the same time period, 702 helicopters with the new crashworthy fuel system went down.  Remarkably, there was not a single thermal injury or death in any of those crashes.  That was enough to convince the Army.  After that, it required all its helicopters to be manufactured with the crashworthy fuel system.   

Today, no one should be burned in an otherwise survivable helicopter accident.  The technology has long existed to almost completely eliminate post-crash helicopter fires. But while the risk has been virtually eliminated in military helicopter operations, post crash fires are still the single biggest hazard to survivors of civilian helicopter crashes. (pdf) That’s because some civilian helicopter manufacturers have resisted incorporating crashworthy fuel systems into their designs.    

Helicopter manufacturers know that some of the aircraft they manufacturer will inevitably be involved in accidents.  They must take steps to make their civilian helicopters reasonably safe in the event of an accident, just as they do when building helicopters for the military.  If someone is burned in a civilian helicopter crash, then the aircraft’s design may well be proven to be defective, and the manufacturer held accountable for the injuries its design has caused. 

Clients often ask: "Shouldn’t we wait for the National Transportation Safety Board to finish its report before deciding whether to bring a lawsuit?" Sometimes, that makes sense. But most of the time, waiting is not in the client’s best interests. Here are four reasons not to wait:

1. The NTSB’s Findings are Seldom Unbiased. The NTSB doesn’t have the engineering expertise or financial resources to investigate an accident on its own. So it asks for technical help from the aircraft manufacturers. For example, if a case involves an engine failure, the NTSB will ask the engine manufacturer for help in determining why the engine failed. Not surprisingly, the manufacturer seldom points out to the NTSB evidence suggesting that its own product may have caused the accident. The conflict of interest inherent in the NTSB’s investigations mean that the NTSB’s final reports almost always favor the big industry players.

2. The NTSB Seldom Tackles the "Why" Questions.  More and more, the NTSB’s report describes what happened, without really saying why it happened. But the "why" questions are the ones that matter most.

As an example, in one case, an EMS helicopter crashed and all aboard were killed. A year and a half later, the NTSB published its probable cause report concluding that one of the helicopter’s rotor blades came apart in flight. That, however, was obvious from the outset.  Only during the lawsuit that followed the crash was it discovered that the blade came apart because, months before the accident, a mechanic had botched a repair to the blade, weakening its internal structure. The NTSB never interviewed the mechanic involved.  It was satisfied that it had determined the "cause" of the accident when it figured out that the rotor blade failed. As far as the NTSB was concerned, once it determined that the blade failed, the case was closed.  The NTSB told us what happened, but not why. 

3. The NTSB’s Accident Report Isn’t "Binding" on Anyone. The NTSB’s conclusions have no legal effect, and they are inadmissible it court.  So we can’t just rely on the NTSB to do our work for us; we have to conduct our own investigation. Waiting for the report just puts us behind.

4. We Could be Waiting Forever. It usually takes the NTSB one to four years, sometimes even longer, to come out with a report.  The NTSB is so slow that if we begin a lawsuit right away, it often can be settled and sometimes even tried to verdict before the NTSB report is completed. On the other hand, if we wait for the NTSB’s report before starting our own investigation, witnesses’ memories will have faded and important documents may be lost or destroyed.  The wreckage may end up being scrapped before our experts examine it.  Worst of all, statutes of limitation may run on the claim, preventing us from filing any lawsuit at all regardless of what the cause of the accident turns out to be. 

The NTSB investigators are good people dedicated to aviation safety. They perform a very difficult job under harsh conditions. They are, however, underfunded, understaffed, and overwhelmed. They just don’t have the necessary resources or expertise, especially when it comes to investigating general aviation accidents. Sad to say — NTSB reports are seldom worth waiting for.

Two months ago, Scene Systems — a litigation support firm — released its animation of Flight 1549’s crash into the Hudson. I posted here that, in all likelihood, the animation would not be admissible in court. The legal objection would be that the animation “lacked foundation.” For example, without information from the Airbus’ black boxes, Scene Systems couldn’t confirm the aircraft’s flight path or guarantee that the Air Traffic Control audio was properly synchronized to the aircraft’s path of travel.  Therefore, the animation involved too much guesswork to be shown to a jury.

The National Transportation Safety Board has now released its own animation. Having retrieved the black bloxes, the NTSB was able to plot accurately the Airbus’ position, speed, and altitude at each point along the aircraft’s short flight.  The NTSB then properly synchronized the Air Traffic Control audio to the aircraft’s flight path.

The only audio on the NTSB’s animation is the radio transmissions between the crew and Air Traffic Control. As is typical, the NTSB did not make public the audio of the cockpit conversation between the captain and the first officer. The NTSB did, however, prepare a written transcript of that conversation. The NTSB superimposed the transcript on the animation. (HOT-1 is the pilot, HOT-2 is the first officer.)

Would this animation be admissible in court?  While Scene System’s animation would not pass legal muster, the NTSB’s work probably would.

 

The pilot’s original destination was Bozeman, Montana.  But the pilot amended his flight plan and diverted to Butte.  The pilot did not tell air traffic control why he was diverting.  About 25 minutes later, as the aircraft approached for landing at Butte, it went out of control and crashed. 

The NTSB is now investigating two things: (1) why the pilot diverted to Butte, especially when he was so close to Bozeman, and (2) why the pilot lost control and crashed so near the runway at Butte.

Some possible explanations for diverting include:

Continue Reading Pilatus Crash at Butte Montana and Occam’s Razor

Tim Vasquez is a meteorologist with Weather Graphics in Oklahomoa.  He has plotted Flight 447’s flight path against GOES-10 satellite and other weather data. Vaquez’ work suggests Flight 447 penetrated two thunderstorm cells.

The image below, according to Vasquez, is similar to what the Flight 447 crew would have seen on its weather radar screen, assuming its radar was working. The black line in the image represents the aircraft’s flight path.  "ACARS Position" represents the aircraft’s position when it sent it’s last ACARS message.

 Vasquez Figure 12

This next diagram is a cross section of Flight 447’s track through the thunderstorm cluster.  According to Vasquez, instead of fying around these two cells, Flight 447 flew through the top of the first cell and then continued on through the middle of the second.

Vasquez Figure 13

 

Not surprisingly, Vasquez concludes the aircraft encountered severe turbulence that may have damaged the aircraft.  The question of why Flight 447 failed to avoid the storms (theories discussed in a previous post) remains unanswered.  Vasquez’s full report can be found here.

 

Are the passengers’ families entitled to compensation for their loss? From whom? Does it matter what caused the crash? Can the families sue in the United States?

Air France is Responsible Regardless of the Cause of the Accident. 

The Montreal Convention requires Air France to compensate the families as long as the crash was caused by an accident.  The Convention defines "accident" to include any unexpected event, from an encounter with severe weather, to mechanical failure, to a terrorist attack.

Air France must compensate each passenger’s family:  

  • For all recoverable damages suffered up to $155,000; and
  • For all recoverable damages suffered in excess of $155,000, unless Air France proves it was not in any way “negligent or otherwise at fault."

In addition, Air France must advance $25,000 to cover each family’s “immediate economic needs” within 15 days of identifying who the proper claimants are. The $25,000 payment is credited against Air France’s ultimate obligation to the family.  

As a practical matter, Air France will be liable for all legally recoverable damages without regard to the $155,000 limit. That’s because to avoid liability, Air France has to prove a negative — that it was not in any way “negligent or at fault.” Regardless of whether it is ultimately determined that the crash was caused by weather, equipment failure, or even terrorism, Air France will not be able to demonstrate that its own negligence did not somehow contribute to the accident.  There are just too many possibilities for Air France to disprove.

The Final Amount of Compensation to Which a Family is Entitled Depends upon Where the Particular Family may Sue.

U.S. law is most favorable for the families, as the laws of other countries severely limit compensation in wrongful death cases. For example, unlike the United States, many countries do not allow families to be compensated for loss of a loved one’s "care, comfort, or society."  But the Montreal Convention will permit a family to sue Air France in the U.S. only if: 

  1. The United States was the passenger’s ultimate destination, or
  2. The passenger’s ticket was issued in the United States, or
  3. The passenger’s “principal and permanent residence” was in the United States.

The first two grounds are relatively straightforward. The passenger’s travel documents will determine whether the family meets the applicable requirement. The third ground, however, might well be hotly contested in at least some of the families’ cases. For example, two Flight 447 passengers were U.S. citizens from Texas who were living in Brazil. But was the U.S. their "principal and permanent" residence? That may depend upon whether they intended to return to their home in Texas and, if so, when. These details may need to be litigated.

Compensation from the Manufacturers.

If the crash was caused by a product defect – such as a problem with the Airbus’ weather radar, its flight control system, or a pitot tube — then the families would be entitled to pursue a product liability claim. Many of the Airbus’ components parts are manufactured by U.S. companies.  If  a U.S. manufacturer was responsible for the defect, the families would be permitted to sue the manufacturer here, even if the Montreal Convention did not allow them to sue Air France here.  A family that successfully sues in the United States may be compensated under U.S. law rather than the more restrictive foreign laws. 

Forum Non Conveniens is an Obstacle to Suing Manufacturers in the U.S.

The doctrine of forum non conveniens allows a U.S. court to decline jurisdiction and transfer a case to a foreign country if it decides that, all things considered, the foreign court would be more convenient for all involved.  U.S. courts frequently invoke the doctrine to avoid hearing cases involving foreign aviation accidents. Flight 447 may be one case, however, that a U.S. court may well decide to hear.  After all, the U.S. would be most convenient for the manufacturers because their engineers, their engineering documents and test data are undoubtedly here. There are no eyewitnesses to the accident who would need to be inconvenienced by traveling to the U.S. from abroad to testify. Finally, unlike disasters occurring on foreign soil, it makes no sense to have the case heard near the crash site because there is nothing at the crash site for any judge or jury to see.