16 Comments

I don’t understand why they would sue Comair, and why Comair would entertain anything less than full defense. How is this crash the fault of Comair? What did they do wrong?

Pat

Ah, to be that innocent again…

Comair’s great crime, and the reason they are being sued, is that they have both of the following factors:
1. They have any kind of relationship AT ALL to any kind of accident anywhere.
2. They have money.

Justice? Where exactly does that fit into the equation again?

Let’s see, the pilot, a Comair employee, tried to take off on thr wrong runway and killed everyone on board. Yup, no liability there.

Pat, who’s to blame is completely irrelevant in the US legal system.
The only thing that matters is who has the deepest pockets.
And Comair will have more money (and easier to get at money) than the aircraft manufacturer who’s a foreign company who will just withdraw from the country (like others did before them) rather than let themselves be sued into bankruptcy.

Pat, you too can be a successful plaintiffs’ attorney! Just follow my three step process–

Step 1: Comb through every corporate email and written memo in which Comair employees discuss flight operations, aircraft design, emergency procedures, etc. Like any major corporation, they have employees responsible for setting policy for day to day operations, emergency procedures, and likely have a hand in the interior aircraft design. There will be plenty of written correspondence on these issues.

Step 2: Highlight the suggestions contained within said documents, but not implemented. Claim that adoption of suggested policies would have prevented the attack.

Step 3: Claim that failure to implement any procedure was based solely on financial factors (i.e., that Comair knew implementing such procedures would be safer, but more expensive). It is not necessary to actually prove the greedy corporation’s decisions were driven by pecuniary interests. The jury already knows this is true and no evidence can rebut it.

That’s right, anyone can sue their way to the top! A copy of my new book, “Sue Anyone, Anytime!” is available for $19.95 plus shipping and handling (and of course 40% of any recoveries, before expenses).

Let’s not forget who maintained the aircraft. The maintance records will be gone over with a fine tooth comb as well. An example would be “How come some of your aircraft engines generate 108% rated power in high power turn tests, while some only rate 104%? The crashed plane’s engines were only rated at 103% that extra 5% could have prevented the crash.”.

The one I’d love to see would be the FAA being named in the lawsuits. “Sir. This aircraft crashed because it was overloaded for the amount of runway it had on takeoff. If the aircraft didn’t have to carry so much extra fuel, due to your agency’s regulations it would have been light enough to have taken off.”

Remember one thing, when this goes to trial there won’t be anyone with the slightest knowledge of aviation on that jury.
One of the Senior Engineers I work with is a firm believer in the establishment of “Professional Jurors” with some technical knowledge in the subject of the lawsuit. I’m starting to agree with him.

Deoxy, do you really believe that the fact that the pilots who took off on the wrong runway were Comair employees should not be a close enough factual connection to subject Comair to suit?

J.T. Wenting, Bombardier is the fourth largest aircraft manufacturer in the world and the owner of Learjet. The likelihood of it cutting ties to the United States seems remote.

Brian P., what “attack” are you talking about? And are you suggesting that if Comair discussed possible procedures to prevent an aircraft from taking off on the wrong runway but failed to implement those procedures, that information is not relevant?

Jim Collins, I suspect that the FAA would respond that its regulations had nothing to do with the fact that “the amount of runway [the plane] had on takeoff” was half as much as it was supposed to have. I also wonder how much professional training in aviation is necessary to understand the difference between one runway and a second runway half as long.

And Walter, are you implying that increased pain should not translate into increased damages?

Jim,

I really like the thought process that leans away from jury fact-finding to independent expert analysis with regard to scientific evidence, but cannot think of a better way to implement such as system. Daubert was supposed to do it, but failed miserably. Judges are empowered to toss junk science, but rarely do it. The ostensibly easy answer is to appoint knowledgeable “professional jurors,” but the rub is in promulgating a process by which such jurors can be found.

Fist you need to get through the initial hurdle of convincing the public (in each of the 50 states) that juries are simply not equipped to handle the duty of resolving fact issues in cases involving scientific issues. This hurdle has been enough—to date—to keep a legitimate debate over how to implement a new system in check. I can complain about juries and their shortcomings all day to friends at the bar, and they are generally fairly receptive to my rantings; but as a political issue limiting the power of juries is not something people are ready to embrace

Let’s presume, however, that such a debate took place in the public sphere (as it has quite frequently in my own mind). That first hurdle is nothing.

How do you implement a system that takes fact finding away from jurors?

Idea 1:
Identify cases involving scientific issues and send them to a special court whereby a jurist (or jury) with scientific experience finds facts?

Problem:
Who decides whether any particular case turns completely on the scientific evidence or whether there are other fact issues which a jury should resolve (i.e., conflicting testimony regarding exposure to a product in a toxic tort case or use of a drug in a pharmaceutical case)? An appointed or elected judge still has the responsibility to move such as case to a “scientific court”. Or the federal government implements a system in which a state court case can be removed to a scientific court—which is almost impossible. The federal courts may take jurisdiction over many patent issues and a few interstate commerce issues, but nothing in the Constitution allows federal intervention over state lawsuits based on the mere fact the decision might rest on a scientific finding of fact. What we’re left with, then, is a system in which state judges have complete discretion over whether to cede jurisdiction to a scientific court. It’s not gonna happen. Just like Daubert giving discretion to judges to exclude junk science didn’t cure the problem, neither will this.

Idea 2:
Appoint an “independent” court expert to give an analysis of scientific issues and give the boot to experts hired by both plaintiffs and defendants.

Problem: This is a decent idea, but, again, it comes down to the whims of the jurist in charge of the case. In my own jurisdiction judges are empowered to appoint mediators, who almost never are really “independent.” I can only presume that most state court judges make decisions that are, in some part, based on the wants of their appointers or constituents. So long as the system of appointed and elected judges remains status quo, the appointment of independent experts by those judges will remain equally flawed. Don’t think for a minute I have a better plan for installing judges; just understand that given our system, there is a serious flaw in allowing them to appoint “independent” scientific experts at their discretion.

Idea 3: Science rules

Problem: Let’s assume for a moment that there is an easy and publicly acceptable way to appoint a scientific court or scientific jury to resolve. Does a truly independent scientific expert offer the only true conclusion? Anyone with any background in scientific experimentation and statistics will admit that science is not an exact science. We draw conclusions base on experimental conclusions with a P value of less than .05, but for even this to be meaningful, there are numerous factors within the study that must be meticulously undertaken. In recent history, there are numerous examples of bias within so called “scientific” studies which render them worthless as a predictor. Because of such lackadaisical scientific research, there are many issues that come up in litigation that can be argued both ways. How does the appointment of a single independent expert resolve issues that are generally unresolved, even in the scientific community (think global warming)?

I would love to find a workable way to get rid of random jurors (and their random predisposed opinions) in civil cases whenever possible, but I must admit that every time I come up with an idea to do so, it simply will not work. Sometimes it’s for social and political reasons, sometimes it’s unconstitutional, and sometimes it’s just plain stupid . . . but always, it just won’t work. Ideas?

Brian, regarding the damages for suffering: Can you explain how it is justice for one person to get money for SOMEONE ELSE’S sufering? I never did understand that. No amount of money will bring that person back to life, yet a boatload of cash will make it all better for his relatives. And please don’t say “It’s not about the money!!!” because if it wasn’t they wouldn’t settle with confidential terms like we all know they will and always do.

Also IANAL, so please edumacate me: how is the entire corporation liable for the pilot’s unintentional bad act? Is there some sort of strict liability for employees of corporations?

Logic would dictate that the person that did something wrong gets sued, which in this case looks like the pilot, the FAA, and the airport. So again it begs the question: what, exactly, did the airline do wrong?

>are you implying that increased pain should not translate into increased damages?

Were it up to me, passenger recovery after air crashes would be handled by way of contractual principles, and it is exceedingly unlikely that rational consumers before a crash would seek out coverage for pain-and-suffering damages (as distinct from other kinds). Individuals buying “first-party” insurance for themselves, for example, do not buy pain-and-suffering coverage, even as they do choose to purchase other sorts of coverage (lump sum, wage replacement, etc.)

I am surprised there has been so little comment on the original point of the post, namely the prospect of otherwise unnecessary second autopsies conducted for purposes of pecuniary gain. The linked article pretty clearly indicates that many folks are squeamish about the idea of re-cutting up their loved ones for that purpose. Should we be squeamish too?

Comair will be vicariously liable for any negligence of its pilots, and there isn’t any legal controversy over that, but I sure question the efficacy as a matter of public policy.

Does anyone believe that a pilot is more likely to commit suicidal negligence if he knows his employer won’t be held liable for pain and suffering damages? What can employers do to incentivize their employees not to make a mistake that will kill them?

“Deoxy, do you really believe that the fact that the pilots who took off on the wrong runway were Comair employees should not be a close enough factual connection to subject Comair to suit?”

Do you really believe that their mer ownership of the plane would NOT have been nough? In fact, their PREEVIOUS ownership of the plane (if fairly recent) would likely be enough! But here are some other things that make this less-than-obvious: (from http://www.kentucky.com/mld/kentucky/news/special_packages/crash/15429895.htm)

“Some pilots have told the Herald-Leader that the layout of taxiways and runways at the airport can be confusing. There have been other cases in which pilots mistakenly lined up for takeoff on the smaller Runway 26, but they or air-traffic controllers caught the mistake and averted disaster.

Clay and Polehinke also hadn’t flown into the airport since the runway approach had been changed during a repaving project. It was dark, and the centerline lights on the longer runway were out because of the construction — eliminating a potential clue that Flight 5191 was on the wrong runway.”

“It could take a year for the NTSB to rule on the cause of the crash. Investigators will examine a wide range of issues, including whether pilot fatigue or inattention played a role; whether having a second controller in the tower — as the FAA had directed, but not enforced — would have helped; whether the plane had any mechanical or instrument problems; and signs and lighting at the airport.”

“The lone air traffic controller on duty cleared Flight 5191 to taxi to Runway 22 and, as Clay guided the plane past the tower, cleared the flight to take off. Then he turned around to catch up on paperwork.”

In short, any suit against the airline at this point is, at the very, very most charitable, extremely premature. Unless they are just seeking the deepest pocket.

I’ll disagree with Deoxy to some extent. The suit may seem premature, and it is so in the vacuum of viewing a lawsuit as a truth-seeking device, but existing legal rules provide very strong incentives to plaintiffs’ attorneys not to wait until all the facts are in. An attorney who does wait will find his suit stuck in the queue behind attorneys who filed “prematurely,” or, worse, will find himself entirely cut out of the lucrative “steering committee.” It’s the advantage the legal system provides those who win the “race to the courthouse” that is the cause of much unseemly scrambling.

Then that’s yet another area in serious need of reform.

Brian P., what “attack” are you talking about? And are you suggesting that if Comair discussed possible procedures to prevent an aircraft from taking off on the wrong runway but failed to implement those procedures, that information is not relevant?

First, it’s not clear to me that it should be. Are you saying that it’s more negligent to discuss it and not implement it than it is to not discuss it and not implement it?

Second, the point Brian was making is that “Comair” wouldn’t have discussed it. Some one or two of tens or hundreds or thousands of employees may have discussed it. But the fact that one of them made the mistake of committing his thoughts to paper (or not! See Ted’s earlier post on having to save voice mails!) somehow turns into the corporation having knowledge of, and ignoring, some idea or piece of information. Litigation shouldn’t be (but of course is) a fishing expedition for plaintiffs’ lawyers to find the one email written five years ago by some random employee where some tangentially related issue was discussed.