Well, that seems to be what the National Transportation Safety Board said today when it commented on the preliminary accident statistics for 2008.

The NTSB’s comment:

The 2008 accident statistics reveal a mixed picture. . . We are particularly concerned with the spike in fatalities in on-demand air charter operations. There’s a lot of room for improvement in this area, and as evidenced by our recent forum on emergency medical service helicopter accidents, we continue to do everything we can to identify the safety issues involved, and to advocate for the adoption of our recommendations that will make the skies safer.

Our Translation:  "The 2008 accident statistics wouldn’t look bad except for all the air ambulance helicopter crashes.  We’ve got some ideas on how to make air ambulance operations safer, but the FAA keeps ignoring us.  As usual." 

Some people think that the National Transportation Safety Board is the final authority over an aviation accident — that the NTSB acts as the accident "police."  They think that, in the end, the NTSB will catch the one responsible for the accident and make that person answer for what happened.  But that’s just not the case.

It’s true that, like a cop, the NTSB can secure an accident scene and keep others away.    It can examine the aircraft wreckage. It can have aircraft parts tested to help determine why the accident happened. It can even subpoena evidence. But the NTSB investigates a crash for one reason only: to gather and then publish information so that similar accidents may be avoided in the future.

Although it is an agency of the federal government, the NTSB has no enforcement powers. That means that the NTSB can’t bring criminal charges. It can’t fine anyone. The NTSB can’t suspend anyone’s license as a result of what it learns, and it can’t put anyone out of business. If the NTSB concludes that someone, such as a maintenance facility, was responsible for the crash, that facility is free to ignore the findings and carry on business as usual. 

When the NTSB is done with its investigation, it prepares a report. The report usually includes the NTSB’s opinion as to the accident’s "probable cause."  The hope is that the aviation community will read the report and learn something from it.  Because that is the report’s only permissible purpose, by federal law, the opinions in the report are inadmissible in any lawsuit arising from the crash. 

Sometimes the NTSB, as a result of what it learns, will publish a safety recommendation.  Often the recommendation is that the FAA pass tougher regulations.  But the FAA need not follow the NTSB’s recommendations, and frequently chooses not to.   

If there is a lawsuit concerning the crash, the NTSB will not get involved.  Not only is the NTSB’s report of the accident’s probable cause inadmissible, but the NTSB investigators are prohibited by law from testifying in court, even if they are served with a subpoena.

Mike Danko is an aviation safety advocate and Danko Meredith’s founding partner.  He has tried cases on behalf of injured clients as far east as Massachusetts and as far west as Hawaii. His aviation trial results include a $15 million verdict for his client in Burdett v. Teledyne Continental Motors , a $10 million verdict in Goble v. Pike, and a $13 million verdict in Gottlieb v. Khalaf.  He has been honored with a Trial Lawyer of the Year nomination by his state’s trial lawyers association, the Consumer Attorneys of California. He has been named one of Northern California’s Top 100 “Super Lawyers” by Thomson Reuters.

In addition to representing victims of general aviation accidents, Mike Danko represents the families of those lost in airline disasters. He has represented families in such disasters as TWA Flight 800, the Crash of the Air France Concorde, Alaska Airlines Flight 261, EgyptAir Flight 990, Adam Air Flight 574, and Air Philippines Flight 541, among others.

Mr. Danko is a frequent speaker on topics related to Aviation Safety, Aviation Accidents and the Law. He has been invited to appear on National Television shows such as The CBS Early Show, Good Morning America, Fox News, and CBS News. His work has been written about in such print media as the Wall Street Journal, USA Today, Forbes, the Boston Globe, the Los Angeles Times, the San Francisco Chronicle and the Houston Chronicle.

He is a rated jet pilot who has logged more than 3500 hours over the past 30 years. He has owned and operated personal aircraft continuously since 1984. He currently owns and flies a Cirrus SR22T and an Enstrom 280FX Helicopter.

Practice Areas

  • Aviation Accidents
  • Catastrophic Personal Injury
  • Products Liability
  • Drug Company Liability
  • Wrongful Death
  • Business Torts

Professional Associations

  • American Association for Justice (Leaders’ Forum)
  • Lawyer-Pilots Bar Association
  • Consumer Attorneys of California (Board of Governors)
  • Western Trial Lawyers Association
  • San Francisco Trial Lawyers Association
  • Santa Clara County Trial Lawyers Association
  • San Mateo County Trial Lawyers Association

Education

  • JD, University of Virginia School of Law, 1983
  • AB, Dartmouth College, magna cum laude, 1980

Bar Admissions

  • California

Most victims of a helicopter or airplane accident can’t afford to pay aviation attorneys an hourly rate to investigate the cause of the crash or to take an aviation lawsuit to trial.  For these people, the doors of the courthouse would be essentially closed were it not for the contingency fee agreement.  The contingency fee agreement places the victim on a level playing field with the aviation manufacturers, insurance companies and other major corporations who may be responsbile for an aircraft accident.  Under a contingency fee agreement, the client hires a lawyer, but if there is no settlement or verdict, the client pays nothing to the attorney for his work in investigating the case, initiating the lawsuit, or taking the case through trial.  All costs associated with the investigation and the lawsuit are paid by the attorney. The contingency fee agreement allows any victim access to the legal system, regardless of the victim’s financial circumstances.

Kristine Meredith is a trial lawyer and partner at the Danko Meredith Law Firm.  She has represented victims of aviation accidents or their families in both state and federal courts. She has been named a Northern California “Super Lawyer” by vote of her peers and has extensive experience in federal multi-district litigation.

In addition to representing victims in cases against aircraft and engine manufacturers, Ms. Meredith has at one time or another represented injured clients against virtually every major US airline. She brings to her cases special expertise in the medicine relevant to thermal injuries and to traumatic brain injuries.

Practice Areas

  • Aviation Accidents
  • Catastrophic Personal Injury
  • Wrongful Death
  • Products Liability

Professional Associations

  • San Francisco Trial Lawyers Association
  • San Mateo County Trial Lawyers Association
  • Santa Clara County Trial Lawyers Association
  • Consumer Attorneys of California
  • American Association for Justice

Education

  • BA, Brigham Young University, J. Reuben Clark School of Law, 1992
  • JD, University of California Davis, with Honors, 1989

Bar Admissions

  • California

An airline’s liability for a passenger’s injury or death is most often determined by state law. But if the passenger’s trip includes a stop in a foreign country, then the airline’s liability is controlled entirely by international treaties.  The treaties are known as the Warsaw Convention and the Montreal Convention. 

The treaties also govern a passenger’s claims for injuries occurring on a domestic flight, as long as a foreign destination was on the passenger’s itinerary.  That means that state law may govern the claims of one victim of an airline disaster, while a treaty may govern the claims of his friend in the very next seat.  Because different law applies, one victim (or his family) might be entitled to compensation from the airline, and the other not.

Which is more favorable for the victim — state law or the treaties? It depends on the circumstances of the case. For example, if state law applies, to successfully sue an airline, the passenger must prove that the injury occurred because the airline was "negligent" or, in other words, "careless".  But if a treaty applies, the passenger need not prove the airline was negligent at all. If a treaty applies, the passenger need only prove that his injuries were the result of an "accident." 

What if a flight attendant accidently pours hot coffee on you and you are seriously burned?  Under state law, you could recover from the airline, if you prove the flight attendant was careless.  Of course, if the flight attendant splashed you on purpose, you would be entitled to compensation as well.  But what  if the treaties apply? Can the flight attendant’s intentional act be considered an "accident"?  Courts have struggled with this sort of question, and offer no clear-cut answer. 

For years, wrongdoers have tried to avoid responsibility for accidents they cause by arguing that, as long as they have complied with the applicable FAA regulations, they should be off the hook.  Aircraft manufacturers, for example, argue that because the FAA certified their aircraft design before it went into production, a passenger injured in one of their airplanes should not be able to sue for design defects. Maintenance facilities argue that they should be immune from lawsuits for maintenance errors unless the injured passenger proves that the mechanic violated one of the federal aviation’s maintenance regulations.   

These arguments are called the "pre-emption defense."  The reasoning goes something like this:  If it’s good enough for the FAA,  it should be good enough for the court system.  Courts shouldn’t  be allowed to second guess the FAA.  A court should not require more of a defendant than do the regulations. 

Over the years, the pre-emption defense hasn’t worked all that well for defendants.  After all, the FAA regulations themselves make clear that they are "minimum" standards only.  Recently, however, the pre-emption defense has gained traction with some courts.  For example, one federal appeals court recently ruled that airlines don’t have to warn passengers about the risks of airline-induced Deep Vein Thrombosis, even though the airlines knew that warnings would save passengers’ lives. The court’s reasoning was that the FAA regulations cover what warnings an airline must give to its passengers.  The regulations require the airline to tell passengers how to unbuckle their seat belts, how to use the oxygen masks, and about placing their seat backs in the upright position before landing.   The regulations don’t require the airline to tell passengers how to avoid DVT.  So, according to the courts, that’s the end of the matter.  The airlines are off the hook.   

The US Supreme Court just put the brakes on the pre-emption defense with its decision in Wyeth v. Levine (pdf).  Wyeth wasn’t an aviation case.  It was a drug case.  But the drug company in Wyeth made the same pre-emption argument that defendants make in aviation cases.  And the Court rejected it.  It  ruled that the defendant drug company was properly found liable for failing to warn about a drug’s side effects.  The fact that the drug company’s warnings complied with all the federal regulations was not a defense.

Wyeth is now the law of the land.   A careless defendant can’t count on it’s having met the bare minimum of the regulations as a sure-fire way to to escape responsibility for the harm it causes.   According to the Supreme Court, a defendant’s compliance with the regulations will be a complete defense only where holding the defendant to a higher "due care" standard would frustrate the purpose of the regulations, or make it impossible for the defendant to comply with the regulations. 

The Supreme Court explained that one reason drug companies can be held to a higher standard than set forth in the regulations is because the Food and Drug Administration regulations were not intended to be the "final word" on drug safety.    Defendants will likely seize on this part of the Wyeth opinion to argue that Wyeth shouldn’t apply in aviation cases.  They will point to some federal appeals court opinions that have ruled that  the FAA regulations, unlike the FDA regulations, were intended to "occupy the field." 

 

CNN recently came up with advice on how to survive a plane crash.  Make a plan, brace yourself, know where the exits are, and so on. All good stuff.  But if you really want to increase the odds of surviving your flight, here’s what you need to do: every hour, unbuckle your seatbelt, get up, and walk around for 5 minutes.  Then drink a glass of water.

The biggest threat to your health and safety on board a long-haul flight is not a crash.  It’s something called "Deep Vein Thrombosis."  In plain english — blood clots.  The clots are relatively harmless if they stay in your legs where they first develop.  But if they break off and move through your system, they can cause fatal pulmonary embolisms, strokes, or heart attacks. Walking around during your flight and staying hydrated are among the best ways to keep clots from forming.

The risk of death from blood clots dwarfs all other aviation-related risks. An airline traveler is 100 times more likely to die from an airline-induced blood clot, for example, than from all causes related to bad weather, pilot error, mechanical failure, and terrorism combined.  Airhealth.org estimates that up to 100,000 people die each year as a result of airline induced DVT.  On the other hand, less than 1000 die each year from airliners going down. 

The airlines have been aware of the risks of blood clots since the 70’s. Nonetheless, the airlines have done little to spread the word. In fact, they’ve kind of kept the risks under wraps.  We don’t expect that to change, since the courts have ruled repeatedly that the airlines have no legal obligation to warn their passengers about the risks of DVT and what can be done to avoid them. 

What factors contribute to formation of blood clots? Stasis — the pooling of blood in the legs from prolonged sitting; decreased blood oxygen levels resulting from the cabin environment, bruising of deep vein in the back of the leg from prolonged term sitting (no, you can’t feel it happening) , and dehydration that results from the dry cabin air.

Walking around every hour or so and remaining hydrated are good strategies for avoiding Deep Vein Thrombosis and staying safe.