All posts by olsonbrooksby

What Can Be Done About Pilot Depression, Suicide, and Other Flight Crew Mental Health Issues?

Scott Brooksby recently co-authored the article, “What Can Be Done About Pilot Depression, Suicide, and Other Flight Crew Mental Health Issues?” in a newsletter published by the American Bar Association, Mass Torts Litigation Section on November 9, 2017.

Mental health problems are nearing epidemic levels in the
developed world. According to the Centers for Disease Control
(CDC), suicide is the tenth leading cause of death and claims over
43,000 lives per year. Not surprisingly, if it is an issue in the
mainstream, you can bet it is a problem in the cockpit. It is true
that pilot mental fitness-and its connection to human factors
analysis-has always been a critical aspect of aviation safety, but
recent events suggest it is becoming even more important to
examine ways to identify mental health problems that may affect
pilot performance and safety in the cockpit. As Jet Blue founder
and former chief executive officer David Neeleman suggested,
“nobody ever thought about having to protect the passengers from
the pilots.”

In truth, most pilots would readily acknowledge that while the use
of medications to help mitigate the effects of mental illnesses has
been a hot button issue in aviation for some time, actual
evaluation of mental and emotional fitness in connection with
medical certification and continuing monitoring for symptoms has
not been a priority for the Federal Aviation Administration (FAA) or
flight surgeons. In addition, the reliance on self-reporting by pilots
as part of the medical certification process, as well as the
confidentiality that protects doctors from disclosure, has created a
dangerous dynamic in the cockpit that can make it difficult for
aviation authorities and commercial carriers to vet and identify
these dangers before it is too late. Add to these factors, the
compelling incentive for pilots to hide mental health issues for fear
of losing their jobs and you have little chance of ever identifying
the problem, let alone getting pilots the help they need.

This article explores these pressing issues and whether it is realistic to think that merely asking a pilot during a flight physical how he or she feels, or how is the family, or whether any issues are troubling you, etc., will trigger a response that will reveal a mental deficiency.

The Danger of Bird and Animal Strikes in Aviation: What Can Be Done?

Scott Brooksby’s article, “The Danger of Bird and Animal Strikes in Aviation: What Can Be Done?” was featured in the October edition of the International Air and Transportation Safety Bar Association’s Air & Transportation Law Reporter.  Bird strikes pose an increasing danger to commercial, military and general aviation and have resulted in hundreds of deaths and serious injuries to passengers and crew, and hundreds of millions of dollars in damage to aircraft. Bird strikes are the second leading cause of death in aviation accidents.  Scott’s article explores what can be done to help alleviate and address these dangers.

 

The Claims are Paid, Now What? Subrogation!

The Claims are Paid, Now What? Subrogation!

by Scott Brooksby

“Sir, it is wrong to stir up law-suits; but when once it is certain that a law-suit is to go on, there is nothing wrong in a lawyer’s endeavoring that he shall have the benefit, rather than another.” –Samuel Johnson

Introduction

Subrogation is defined for present purposes as the substitution of one person in the place of another with respect to a lawful claim or right. Subrogation is the right that every insurance company reserves in all insurance policies to recover losses from a third-party who contributed to or caused the loss.  It is one of the oldest concepts in jurisprudence.  However, the doctrine is not well understood, even by lawyers and judges who may not deal with subrogation issues on a regular basis.

Webster’s defines subrogation as:

The assumption by a third party (such as a second creditor or an insurance company) of another’s legal right to collect a debt or damages

https://www.merriam-webster.com/dictionary/subrogation

Subrogation in the aviation context has important implications for insurers and insureds. When markets are rising, most carriers make money on their investments.  When markets are down, and especially when they crash, as they did in 2008 and 2009, carriers may lose money, in part because margins are somewhat limited by market performance.  However, subrogation claims, when carefully evaluated and handled, provide carriers a right to recover dollars that may be easier to collect than premium dollars.  Successful collection on subrogation claims may have significant impact on insurer financial performance.  Insureds also benefit from effective subrogation claims because ever-increasing deductibles can be recovered and result in better loss history and lower rates.

Brief Historical Overview: Roman Origins

Subrogation, as a legal concept, dates back to Roman times. Under the reign of Emperor Hadrian (AD 117-AD 138) Roman law began to shape the building blocks of subrogation.  The relation of suretyship could be created by stipulation.  Gary L. Wickert, The Societal Benefits of Subrogation https://www.mwl-law.com/defending-subrogation/. For broad historical perspective, see Saul Litvinoff, Subrogation, 50 La. L. Rev. (1990) http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5249&context=lalrev.

Although modern subrogation may have had its roots in Roman suretyship, scholars have generally noted that the Roman law required a more positive act to transfer rights before subrogation could occur. Therefore, many have raised the possibility that the modern doctrine arose somewhat independently of Roman and French antecedents as a purely English theory that seems to have had its origins in the courts of Equity.  M.L. Marasinghe, An Historical Introduction to the Doctrine of Subrogation: The Early History of the Doctrine I, 10 Val U.L. Rev. 45 (1975).

Commenting on Roman equity, one scholar expressed a view that subrogation was unknown to the Romans in the context in which it appears in the common law today. In Roman law, “subrogate” was a well-known term of constitutional law, providing for the replacement of one official by another or replacing one official’s actions with another’s action. Id., at 46, citing W.W. Buckland, Equity in Roman Law, 47-54 (1911).

Of subrogation, Buckland further reasoned that

“The corresponding right in English law, at least in case of a surety, amounts to actual subrogation, and is declared to be based on natural justice, no attempt being made to deduce it from any defined principle.” Id., citing Buckland at 54.

Therefore, under English common law, no express transference of rights has been required. Marasinghe, supra, at 46.

Brief History: Anglo-American Subrogation

“I do think that Magna Carta and international law are worth paying some attention to”

–Noam Chomsky

Despite its ancient roots, modern subrogation is a distinct concept, bearing little resemblance to the Roman version. It appears that the concept of subrogation was formally incorporated into the English common law in the Magna Carta, which provides:

Neither We nor Our bailiffs shall seize any land or rent for any debt so long as the debtor’s chattels are sufficient to discharge the same; nor shall the debtor’s sureties be distrained so long as the debtor is able to pay the debt. If the debtor fails to pay, not having the means to pay, then the sureties shall answer the debt, and, if they desire, they shall hold the debtor’s lands and rents until they have received satisfaction of the debt which they have paid for him, unless the debtor can show that he has discharged his obligation to them.  A.E. Dick Howard, Magna Carta, Text & Commentary 39 (rev. ed. 1998).

Although a complete historical analysis is far beyond the scope of this paper, the English judges linked subrogation to the equitable principle of contribution. Id., citing Pothier, Treatise on Obligation 259 (3d Amer. Ed. 1853).  By 1782 the common law courts had recognized the doctrine of subrogation and were using it “as if it had always been part of the common law of England.”  Marasinghe, at 49.  In Mason v Sainsbury, 3 Doug. 61, 64, 99 Eng. Rep. 525 (1782),  Lord Chief Justice Mansfield stated:   “Every day, the insurer is put in the place of the insured.  The insurer uses the name of the insured.” Id.

However, subrogation in the modern Anglo-American context has different meanings in different contexts. Modern subrogation can be generally categorized into three types:

Contractual subrogation, which is based on the contract between the parties such as subrogation language in an insurance policy. This is sometimes called “conventional subrogation”.

Equitable subrogation, sometimes called “legal subrogation,” is a product of equity. Equitable subrogation is not dependent on the existence of any contract assignment or privity.  It arises by operation of law out of the fairness doctrine.

Statutory subrogation is a mechanism that gives a carrier a right to recover certain benefits. Statutory subrogation may arise in areas such as workers compensation, hospital liens, and Medicare among other things.

Subrogation Waivers

A typical subrogation clause in an aviation insurance contract may read: “If we pay a claim under your policy, we will take over your right to recover that amount from any other person or organization.  You agree to cooperate with us and not to do anything that will interfere with our chances of recovery.”

The aviation industry is contract-intensive. Aviation-related contracts very often contain subrogation waivers in which each of the parties to the contract agrees to maintain its own insurance and also agrees to waive subrogation rights that may otherwise exist or arise with respect to insured losses. Waivers of subrogation most often apply to hull claims, but may sometimes be requested in product liability, airplane, airport, and hangar leases and pilot training.

A representative sample of a contractual subrogation waiver typically reads as follows:

“To the extent that any loss of any kind is covered or paid by any insurer, the contracting parties hereby waive subrogation or contribution rights against each other and their respective officers, agents and employees, and the contracting parties shall notify their respective insurers of this waiver of subrogation agreement and shall cause this waiver of subrogation agreement to be included in the insurance policies secured by each of the contracting parties.

A waiver of subrogation will result in the insurance carrier waiving the right to recover amounts paid under the policy from the person or entity that caused the loss. For example, a regional operator may contract with an FBO for pilot service.  Before a flight, the FBO requires execution of a subrogation waiver against the FBO related to the pilot service.  Assume further that the insurance company agrees to the waiver.  On the flight, the pilot fails to lower the landing gear, causing significant damage.  Without the waiver, the insurance company would have paid to repair the loss and then pursued a subrogation claim  against the FBO’s insurance.

As a practical matter, failure to provide a requested waiver may result in a failure to obtain the desired contract. However, before executing a waiver, insureds should recognize that there are significant downsides:

  • The insured could void the policy if the waiver is provided without receiving approval and endorsement from the insurer.
  • Losses that could have been subrogated may be fully charged against the policy loss record.
  • There may be a premium charge involved in providing the waiver.

The validity of waivers in aviation contracts has long been recognized. In Continental Manufacturing Corp. v. Underwriters at Lloyd’s of London, 185 Cal. App. 2d 545 (1960), the court held that an aviation insurer was not obligated to make a hull loss payment to its insured.  The insured had executed an earlier lease agreement that had released the party responsible, and therefore improperly defeated the insurer’s right of subrogation.

Aircraft Financing and Subrogation Waivers

Aircraft financiers typically require a waiver of subrogation to protect themselves from any action by the airline’s insurers who, at common law, are subrogated to all rights which the insured may have against third-parties, including financiers. Rod D. Margo, Aspects of Insurance in Aviation Finance, 62 J. Air L. & Com. 423, 455 (1996).  http://scholar.smu.edu/cgi/viewcontent.cgi?article=1428&context=jalc

Under English law, a waiver of subrogation clause cannot be relied on by a person who is not a party to the insurance contract. Id., at 456, citing National Oilwell (U.K.) Ltd. v Davy Offhsore Ltd., (1993) 2 Lloyd’s rep. 582, 602-04 (Eng. Q.B.); Enimont Supply SA v. Chesapeake Shipping Inc. (the “Surf City”), (1995) 2 Lloyd’s Rep. 242 (Eng. Q.B.).  Therefore, unless the financier has also been endorsed as an additional insured under the airline’s policy, a waiver of subrogation will likely be unenforceable for lack of privity of contract.

A waiver of subrogation is probably unnecessary where the financier is endorsed as an additional insured under the airline’s policy because the policies make it clear that an insurer cannot exercise any such rights of subrogation against their own insureds. Margo, supra, at 456.

Subrogation and the Non-Owner Pilot

Whether it is the owner or a lessor, some broad form of all-loss insurance is generally carried by the party that has the care, custody and control of the aircraft, and is responsible for maintaining the airworthiness of the aircraft and has dispatch authority. A non-owner pilot is the pilot named under the policy other than the owner, a pilot using the aircraft under the open pilot warranty or “permissive pilot” provision ,or a renter.

The insurance contract is an agreement between the insurer and the purchaser of the policy. Unless the pilot is an employee of the owner, he may be subject to a subrogation action.  For this reason, as discussed above, many contract pilots and pilot service companies usually demand that the aircraft owner or named insured provide the contract pilot with a waiver of subrogation and status as an “additional insured” under the policy.

The Importance of Spoliation Considerations in Aviation Subrogation

Complex issues arise when the insurer elects to undertake a spoliation investigation. For example, physical evidence which may be critical to insured and uninsured losses may need to be collectively preserved.  It may not even be clear which components or evidence in a subrogation claim relate to insured and uninsured losses for some time.  At the outset, it is necessary to determine who is responsible for preservation of any relevant evidence.  In most subrogation cases the plaintiff must preserve the evidence, but in aviation cases that responsibility generally falls to a potential defendant.

In aviation cases, preservation of evidence in subrogation cases is more complicated because the NTSB has complete authority to assume custody of evidence relevant to its investigation. .  Pursuant to 49 U.S.C. § 1901 et. seq., the NTSB also has the ability to limit party participation status.  See 49 C.F.R. § 831.11(a)(1).

Since the regulations also exclude persons who represent claimants or insurers from party status under 49 C.F.R. 831.11(a)(3), the NTSB and potential defendants typically have control of the investigation and the evidence during the important period between the time of the accident and the time the evidence is released to the owing party, often the hull insurer. The NTSB also prohibits lawyers or insurers or anyone whose role is the pursuit or defense of claims from participating in the process.

If the NTSB destroys, loses or otherwise is responsible for spoliation of the evidence, a lawsuit against the NTSB is precluded by the discretionary function exception to the Federal Tort Claims Act. See Black Hills Aviation Inc. v. United States, 34 F.3d 968, 976 (10th Cir. 1994).

The potential defendant manufacturers or other party participants to an NTSB accident investigation do not share the same protections or immunities. In Lowe v. TDU Industries, Inc., 2005 WL 1983750 (Cal. App 2d Dist. Aug. 18, 2005), an engine manufacturer lost the engine cylinders.  The court ruled that the plaintiff was entitled to an inference instruction that the cylinders would have supported plaintiff’s theory.  California, in particular, has created affirmative liability for spoliation of evidence.  See, e.g., Johnson v. United Services Automobile Association, 79 Cal. Rptr. 2d 234 (1998).

The Made Whole Doctrine

Among the many subrogation doctrines which is not well understood, and which takes many different state-specific forms, is the made whole doctrine. A complete discussion of the made whole doctrine is far beyond the scope of this article.

Because subrogation may lead to adverse consequences for insureds, the common law developed the made whole doctrine which limits the use of subrogation before an insured party receives full compensation for damages. As one scholar notes, the made whole doctrine is the “principal weapon used by contemporary courts to curb the harsh effect of contractual subrogation on the rights of the insured.”  Parker, Johnny C., The Made Whole Doctrine: Unraveling the Enigma Wrapped in the Mystery of Insurance Subrogation. Missouri Law Review, Vol. 70, 723, 723-775 (October, 2005) http://law.missouri.edu/lawreview/files/2012/11/Parker.pdf.

As originally developed, the made whole doctrine applied to subrogation, whether legal or conventional. Therefore, even where the insurer had paid all of the policy proceeds and included an expressed subrogation provision in the policy, the right to subrogation was stayed until the insured received complete compensation. Id., at 773.

However, many states have adopted a modified application of the made whole doctrine and have concluded that since the doctrine is of equitable origins and conventional subrogation is grounded upon a legal contract, the parties are free to agree that the rule does not apply. At least 14 jurisdictions have adopted a view that parties are free to agree that the made whole rule is inapplicable. Id.

The Anti-Subrogation Doctrine

Simply defined, the anti-subrogation doctrine provides that subrogation rights exist only as to third-parties.  The doctrine is a defense which provides that since the insurance company is standing in the shoes of its insured, it cannot sue its own insured, in whose shoes it stands.  The doctrine also prevents an insurer from pursuing a subrogation action against a third-party who qualifies as an additional insured.  The rule implicates public policy considerations, including the prevention of suits by insurers against insureds to recover for the very losses for which they have paid for coverage in the form of premiums and the avoidance of conflicts of interest.

Aviation insurance is a specialty line of coverage, often involving very large risks and more complex underwriting issues than most types of insurance. As a result, there are fewer aviation insurers, and the anti-subrogation doctrine may come into play more often.

If the potential defendant in a subrogation action is an insured or an additional insured on the same policy of insurance, a carrier paying a property damage claim cannot subrogate against an insured or additional insured on the same policy.

If the potential target of a subrogation action and the party sustaining the loss are both insured under different policies with the same insurer, there is a split of authority.

If a plaintiff property insurance carrier and a separate liability insurance carrier have both provided policies of insurance to the defendant, the anti-subrogation rule generally does not apply and subrogation is generally permitted if the companies are both members of the same family or group of companies.

Warranty Limitations That May Affect Subrogation Claims

Few lawyers enjoy working through situations that require analysis of the application of the economic loss rule. Although a complete discussion of the rule is far beyond the scope of this paper, it can be defined simply as the prohibition of the recovery of damages under tort theories such as negligence or strict liability when a product defect results in only economic loss, but does not cause personal injury or damage to any other property other than the product.  For a detailed explanation of the economic loss rule see Jamie Mayrose, “A “Simple” Explanation of the Economic Loss Rule”, Under Construction, Vol. 17, No. 3, Winter, 2016.  https://www.americanbar.org/publications/under_construction/2016/winter2016/economic_loss_rule.html

In its application, the economic loss rule precludes contracting parties from asserting tort causes of action as a means to recover economic or commercial losses arising out of a contract, and precludes a purchaser of a product from recovering from a manufacturer on a tort theory for damages that are solely economic.

The economic loss doctrine has implications in the context of aviation subrogation. In general, the economic loss doctrine applies to bar recovery if an allegedly defective part is part of the original bargain when an aircraft was purchased.  However, if the replacement part is not part of the original sale, the economic loss rule does not bar tort claims.  This is important in the context of aviation where contractual defenses such as warranty disclaimers and limitations of liability may severely restrict the ability to recover under contract theories.

The following warranty limitation is representative of the type of clause typically contained in many types of aviation-related contracts such as overhaul facilities:

Limited Warranty for Services and Components: _________ warrants that the services performed hereunder will comply with applicable FAA regulations in effect as of the date the work is performed (as interpreted by the FAA office having jurisdiction over the facility at which the work is performed) and will be free from defects in workmanship and material, including new components manufactured by ________, under normal use for one (1) year and for ninety (90) days on used components refurbished by ________ from date of installation. The warranty on all other new and used components shall be limited to the warranty provided by the supplying manufacturer or vendor, if any. This warranty does not apply to (i) normal wear and tear, (ii) the consequences of accident, negligence, abuse or misuse, or of repair, removal, reinstallation or alteration other than by ___________ and (iii) to Customer furnished parts or equipment or to work which, at Customers direction, was not performed in accordance with ____________ standard operating procedures. The sole and exclusive remedy of Customer, and ___________ sole and exclusive liability, with respect to this warranty is limited to repair or replacement (at _____________ option) of the nonconforming or defective work or component. Such repair or replacement shall be performed at a ___________ facility and Customer shall be responsible for transportation costs. THE FOREGOING WARRANTY IS IN LIEU OF, AND THE CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

Limitation of Liability: In no event shall ___________ be liable for any special, incidental, consequential and/or punitive damages, including, without limitation, loss of profits, loss of goodwill, loss of use, loss of time, diminution of value, or inconvenience, even if informed of the possibility of such damages. In the event _________ physically damages Customer’s property, Customer’s sole and exclusive remedy, and ____________ sole and exclusive liability, is limited to the repair or replacement (at ______________ option) of the damaged portion of the property.

As the representative limited warranty and limitations of liability provisions above make clear, pursuit of subrogation claims for the full award of damages which would be recoverable in the absence of such limitation provisions becomes much more questionable.

Conclusion

In addition to many other important subrogation principles, subrogation in the aviation context requires particularly careful economic evaluation, and budgeting.  Both pursuing and defending aviation subrogation cases in an economically rational manner requires careful adherence to litigation budgets.

The economics of aviation subrogation and the efficient pursuit of the intended economic offset or recovery, or the successful defense of a subrogation claim both require careful assessment of the potential recovery, the technical issues associated with proving causation, the impact of NTSB investigations and the other logistics of the potential claim, such as location of the wreckage, discovery, and witnesses.

In addition, the economics which may drive whether or not to pursue or defend a subrogation claim in the aviation context will be influenced by factors such as subrogation waivers, aircraft financing contracts, the made whole doctrine, complex conflict and ethical issues, and even the variations on policies covering pilots.

Scott Brooksby will speak about aviation subrogation at the 2017 Aviation Insurance Claims Conference

Birds, pets, stowaways, lasers, and other hot topics in aviation
Scott Brooksby will be a featured speaker at a prominent aviation conference in Baltimore, Maryland.

Scott Brooksby will be a featured speaker at the Aviation Insurance Claims Conference (AViCON) held in Baltimore, Maryland on September 14-15, 2017.

AViCON is an annual conference focused on aviation industry accident investigation, and conflict and claim resolution.  This unique, two day format centers around a fictional case study and features discussions lead by legal and insurance experts.  Together, the group will explore considerations and complexities of the case from accident investigation, legal discovery, multi-party litigation, and resolution. This conference is designed for professionals involved in aviation insurance, including underwriters, claims managers, lawyers, risk managers, insurance brokers, airline flight safety directors, airline board members with flight safety responsibility, claims investigators, and aircraft product manufacturers.

AViCON case studies are set within an environment that includes many possible choices of forum and law.  The accident scenario is presented with state-of-the-art interactive animation prepared by RTI’s Imaging Sciences Studios, and highlights a fresh set of issues of current concern and debate within the aviation market. This event presents a unique opportunity to gain a fuller understanding of the entire range of complexities involved in aviation safety, in a concise and effective format.

For more information, please visit: Aviation Insurance Claims Conference 2017

Kristin Olson wins a motion to dismiss in a complex commercial breach of contract case against Dave’s Killer Bread

Kristin Olson recently obtained a dismissal of all claims in a breach of contract case brought by Dave’s Killer Bread against Kristin’s client, Montana Merchandising, Inc., a Montana grain company.  Dave’s Killer Bread, Inc. v. Mont. Merch., Inc., Case No. 3:17-cv-0237-YY (D. Or. July 12, 2017).

Dave’s Killer Bread filed a lawsuit against Kristin’s client in Oregon.  Kristin’s client responded by suing Dave’s in Montana.  A dispute arose regarding the most appropriate venue–Oregon or Montana–for this complex commercial litigation case.

In a Motion to Dismiss, Kristin argued that the case should be litigated in Montana and that the Oregon lawsuit should be dismissed in its entirety.  The United States District Court for the District of Oregon agreed, and dismissed the case against Kristin’s client.

Kristin Olson, Oregon commercial litigation attorney
Kristin Olson obtains a full dismissal of a lawsuit brought against her client by Dave’s Killer Bread

Scott Brooksby recognized as a Super Lawyer for product liability litigation

Scott Brooksby has been recognized as an Oregon Super Lawyer for product liability defense litigation.

The objective of Super Lawyers’ patented multiphase selection process is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Super Lawyers selects attorneys via peer nominations and evaluations, which are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers Magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers.

Scott Brooksby
Top Oregon product liability lawyer

Scott Brooksby Recognized as One of the Best Lawyers in America

Scott Brooksby has been recognized as one of the Best Lawyers in America for product liability litigation.

Best Lawyers® compiles its lists of outstanding attorneys by conducting peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America© 2018 is based on millions of detailed evaluations of lawyers by other lawyers.

The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

Oregon product liability lawyer
Scott Brooksby, one of the Best Lawyers in America

Pennsylvania Court Takes New Approach in Forum Non Conveniens Dispute

On December 5, 2016, the Superior Court of Pennsylvania denied the appeal of a trial court decision to grant a forum non conveniens motion to dismiss claims brought by European family members following a fatal plane crash. The court rejected the idea that plaintiffs’ choice of forum should be given “overwhelming deference.” The court also appears to have adopted an approach favoring the qualitative comparison of categories of evidence available in the U.S. and in the alternative foreign forum. Bochetto, et al., v Dimeling, Schreiver & Park, et al., 2016 PA Super 272, Lexis 729 (Dec. 5, 2016).

The case arose from the crash of a twin-engine Piper PA-34-220T Seneca V on September 15, 2009 near Castro Verde, Portugal. The aircraft, which was manufactured by Piper Aircraft in Florida, crashed during a nighttime training exercise, killing the three occupants including a Spanish flight instructor, a student pilot who was a Dutch citizen, and a student pilot with dual Dutch-Australian citizenship. The case was initially filed in the Court of Common Pleas of Philadelphia. The plaintiffs alleged claims based on strict products liability, negligence, breach of express and implied warranties, fraud and civil conspiracy against 14 defendants, all of whom were located in the United States.

The manufacturer and some defendants filed a motion to dismiss pursuant to a Pennsylvania statute recognizing the doctrine of forum non conveniens, Pa.C.S. § 5322(e). Defendants argued that the aircraft was maintained in Portugal, the pilot was trained in Portugal, the underlying accident occurred in Portugal, the Portuguese government conducted the accident investigation, and all of the non-party witnesses and relevant documents were in Portugal, all of the decedents were from Europe, and the real parties in interest were from Europe.  The plaintiffs opposed the motion, countering that all the evidence related to the design and manufacture of the aircraft was located in the United States, the negligence claims against the foreign defendants were untenable, and the flight school had a strong presence in the United States.

The trial court granted the motion, and the plaintiffs appealed. Citing Pennsylvania law and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257–58 (1981), The Superior Court of Pennsylvania held that the trial court erred when it limited its discussion to those forum non conveniens factors that were specific to Pennsylvania, and did not address the network of connections to the United States as a whole. 2016 PA Super 272, Lexis 729 at *6.

The plaintiffs argued that they were due greater deference in their choice of forum in this case because “the choice was between Portugal, where no defendant or plaintiff is located, and the United States where all of the defendants reside, where the evidence supporting plaintiffs’ claims is maintained, and where the misconduct causing the accident occurred.” 2016 PA Super 272, Lexis 729 at *17.

The appellate court reasoned that although the plaintiffs were correct that their home countries of Spain, the Netherlands, and Australia may not present the most convenient forums, that did not mean that plaintiffs had “free choice” of any other forum since in a global case such as this, no one jurisdiction may stand out as convenient. The trial court was required to give some deference but not overwhelming deference to plaintiffs’ choice of forum.

The court analyzed the trial court’s methodology in balancing public and private interests, and noted that the trial court did conclude that some items weighed in favor of an American forum.  For example, evidence relating to aircraft design, original and subsequent American owners, and maintenance before the plane was sold to a European company were all located in the United States. The appellate court looked approvingly on the trial court’s comparison of the availability of other categories of evidence, such as the location of evidence related to more recent aircraft maintenance and pilot error in Portugal. The more relevant evidence was the documentation of maintenance and upkeep after the aircraft was sold to the Belgian company that leased it to the Portuguese flight school. By engaging in such a qualitative assessment of the evidence and its importance, rather than merely counting up items in a list, the appellate court found that the district court did not abuse its discretion and affirmed the dismissal of plaintiffs’ case.  2016 PA Super 272, Lexis 729 at * 22.

Pilot Mental Fitness in the Context of the International Mental Health Crisis

Aviation lawyer
Scott Brooksby, Portland product liability and aviation lawyer

Pilot Mental Fitness in the Context of the International Mental Health Crisis

by Scott Brooksby, Olson Brooksby PC

“But nobody ever thought about having to protect the passengers from the pilots”

David Neeleman, founder and former CEO, Jet Blue

Introduction

The importance of pilot mental fitness is not a new concept.  However, pilot mental health has been the subject of ferocious scrutiny in the wake of Germanwings 9525 and MH370.  Perspectives on detecting, reporting, treating, and monitoring pilot mental health, and the associated regulatory framework may be different for various groups of interested parties including:  (1) the flying public; (2) the airlines; (3) the regulators; and (4) pilots and crew.  Some knowledgeable observers, including the first TSA Administrator John Magaw, have been quoted raising questions about whether or not reinforced cockpit doors are too secure, and should provide a way back in the cockpit.  http://www.popularmechanics.com/flight/a10270/in-light-of-mh370-evidence-could-plane-cockpits-be-too-secure-16611747/

Overview of Germanwings 9525

  • On March 24, 2015, the A320 aircraft was on a scheduled flight en route from Barcelona to Dusseldorf, with 144 passengers and a crew of six.
  • The 27 year-old co-pilot, Andreas Lubitz, had been flying for Germanwings since June, 2014.
  • Lubitz’s First Class Medical Certificate was issued in April 2008, and had been renewed yearly.
  • Since July, 2009, the medical certificate had contained a waiver due to a prior major depressive episode without psychotic symptoms that lasted from 8/08-7/09.
  • The waiver in the medical certificate provided that the certificate would be revoked if there was a relapse into depression.
  • In December, 2014, Lubitz experienced symptoms consistent with the onset of a psychotic depressive episode.
  • Lubitz then consulted with several doctors, including a psychiatrist, who prescribed an anti-depressant.
  • None of the doctors notified the authorities or Germanwings.
  • Lubitz waited until he was alone in cockpit at cruise altitude, and then he changed the selected altitude from 38,000 feet to 100 feet, leading to a steady descent into terrain.
  • He also increased and decreased the airspeed inputs multiple times.
  • Lubitz ignored the PIC pounding on the cockpit door, and calls from civilian and military air traffic controllers and from other aircraft and kept cockpit door locked.
  • Lubitz had practiced similar inputs on a flight earlier that day.
  • The official BEA investigation concluded that the crash was intentional.

The crash in the French Alps was investigated by French Authorities, with assistance from their German counterpart, the Federal Bureau of Aircraft Accident Investigation (“BFU”), with assistance from the F.B.I.  The Bureau d’Enquêtes et d’ Analyses (“BEA”) released its preliminary report on May 6, 2015 and its final report on March 13, 2016.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiGgKbt7u7NAhUY_WMKHVF7ApUQFggcMAA&url=https%3A%2F%2Fwww.bea.aero%2Fuploads%2Ftx_elydbrapports%2FBEA2015-0125.en-LR.pdf&usg=AFQjCNE7DAUyu78jJpgHb8wZt8yKS9yjhw

On March 27, 2015, just three days after the crash, the European Aviation Safety Agency (“EASA”) issued a temporary recommendation that air carriers insure that at least two flight crew members, including one pilot, occupy the flight deck at all times during a flight.

The Mental Health Landscape

It is not a secret that there is a mental health crisis in the United States.  According to the CDC, a staggering 25% of the U.S. adult population has some form of mental illness. https://www.cdc.gov/mentalhealthsurveillance/

According to the CDC, suicide is the ninth leading cause of death, with more than 42,000 suicides in 2014.  http://www.cdc.gov/nchs/fastats/leading-causes-of-death.htm  Alarmingly, suicide is the second leading cause of death for the age group 25-34 and the fourth leading cause of death for those 35-54.  http://www.cdc.gov/violenceprevention/suicide/statistics/

An estimated 9.3 million adults in the U.S. reported having suicidal thoughts in 2013.  Females are more likely to have suicidal thoughts than males, but males take their own lives at nearly four times the rate of females, and account for 77.9% of all suicides.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwi7_pyX–vNAhXHLmMKHSVMDzQQFgglMAE&url=http%3A%2F%2Fwww.cdc.gov%2Fviolenceprevention%2Fpdf%2Fsuicide-datasheet-a.PDF&usg=AFQjCNGVGU8yBJOrXug-MxYn58gTllTr3Q

All of the commercial aviation disasters attributed to pilot mental health issues have involved male pilots. There have been no commercial disasters attributed to mental health involving U.S. Carriers.  A 2006 study by the FAA notes that between 1993 and 2002, there were 3648 fatal aviation accidents.  The NTSB concluded that there were 16 aircraft-assisted suicides, and one incident involving a flight student who intentionally exited a plane.  All 16 incidents involved general aviation.  The median age range for pilots in those incidents was 40 (15-67).  https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&cad=rja&uact=8&ved=0ahUKEwj8k5S-muzNAhUWS2MKHboVDHkQFghGMAY&url=https%3A%2F%2Fwww.faa.gov%2Fdata_research%2Fresearch%2Fmed_humanfacs%2Foamtechreports%2F2000s%2Fmedia%2F200605.pdf&usg=AFQjCNGjEu9KMnh2nG0vyiCuvYoRD1Dqbg

Another study examined statistics on aircraft assisted suicide in the context of general aviation, and concluded that there were 37 cases in which pilots either committed or attempted to commit suicide between 1983 and 2012.  38% of the pilots had psychiatric problems, 40% of the pilots in suicides or attempts had legal problems, and 46% of the pilots had domestic or social problems.  http://www.ingentaconnect.com/content/asma/asem/2005/00000076/00000008/art00001?crawler=true&mimetype=application/pdf http://time.com/3760132/germanwings-plane-crash-pilot-suicide-andreas-lubitz/

Pilot mental fitness did not emerge as an issue with the advent of Germanwings 9525.  In 2007, the Airline Pilots Association (“ALPA”) reported that 25% of the ALPA Aeromedical Office calls were mental health-related.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiMs5TrgP7NAhVO5mMKHU1xAY4QFggcMAA&url=http%3A%2F%2Fwww.alpa.org%2Fportals%2Falpa%2Fpresidentscorner%2FAug2007_MentalState.pdf&usg=AFQjCNFpDSzRrIDQBMx1wZT9rOY-OJmxeQ&bvm=bv.127178174,d.cGc

Despite an apparent recognition among their own ranks that pilot mental fitness is an important issue, the pilot unions in most of the commercial crashes of the last three decades reacted skeptically, or even disputed, at least initially, claims by investigators that the crashes were intentional.

A 2014 study examined aircraft-assisted suicides in the United States, United Kingdom, German and Finland between 1956 and 2012.  The study concluded that in the United States, for the 20 year period 1993-2012, the aircraft assisted suicide rate was 0.33%.

http://www.ingentaconnect.com/content/asma/asem/2014/00000085/00000008/art00010

Despite the horrifying circumstances surrounding flights such as Germanwings 9525, mental health issues arise with statistical irregularity in commercial aviation, and investigators do not always agree on the role played by mental health.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwicxab4nOzNAhVN4mMKHTdxCyAQFggcMAA&url=http%3A%2F%2Fflightsafety.org%2Ffiles%2FASWarticles%2FStatesofmind.pdf&usg=AFQjCNG567O-toF4PIsxFhGicPbpvDt3BQ&bvm=bv.126130881,d.cGc

Overview of Medical Certificate Requirements

FAA regulations require airline pilots to undergo a medical examination with an FAA-approved physician called an Aviation Medical Examiner (“AME”) every six to twelve months depending on the pilot’s age. http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=20455

According to the Guide for Aviation Medical Examiners, “The FAA does not expect the Examiner to perform a formal psychiatric examination.  However, the Examiner should form a general impression of the emotional stability and mental state of the applicant.”  FAA Guide for Aviation Medical Examiners, 137 (2015).

The Guide also explains how the Examiner may become informed about possible mental health concerns based on questions and answers an applicant provides about background, occupation, and reasons for seeking a certificate.  Id. at 138-39.  If the AME believes there may be mental health concerns, the Examiner is instructed to either deny the certificate or defer issuing the medical certificate and note the mental health issues on the examination report.  If the medical certificate application is deferred, the Examiner is to report the findings to the FAA, which will then request further evaluation and information from the applicant.  Id. at 139.

In the United States, there are three types of medical certificates.  14 C.F.R. Part 61.  A first-class medical certificate, which is required for airline pilots, expires twelve months after the date of the medical examination for pilots under age 40, or six months after the date of the examination for pilots over age 40 at the time of the most recent medical examination.

According to 14 C.F.R. § 67.107,

  • Mental standards for a first-class airman medical certificate are:
  • (a) No established medical history or clinical diagnosis of any of the following:
  • (1) A personality disorder that is severe enough to have repeatedly manifested itself by overt acts.
  • (2) A psychosis. As used in this section, “psychosis” refers to a mental disorder in which:
  • (i) The individual has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition; or
  • (ii) The individual may reasonably be expected to manifest delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition.
  • (3) A bipolar disorder.
  • (4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years. As used in this section –
  • (i) “Substance” includes: Alcohol; other sedatives and hypnotics; anxiolytics; opioids; central nervous system stimulants such as cocaine, amphetamines, and similarly acting sympathomimetics; hallucinogens; phencyclidine or similarly acting arylcyclohexylamines; cannabis; inhalants; and other psychoactive drugs and chemicals; and
  • (ii) “Substance dependence” means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by –
  • (A) Increased tolerance;
  • (B) Manifestation of withdrawal symptoms;
  • (C) Impaired control of use; or
  • (D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning.
  • (b) No substance abuse within the preceding 2 years defined as:
  • (1) Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
  • (2) A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
  • (3) Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds –
  • (i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
  • (ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.
  • (c) No other personality disorder, neurosis, or other mental condition that the Federal Air Surgeon, based on the case history and appropriate, qualified medical judgment relating to the condition involved, finds –
  • (1) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
  • (2) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.

The same standard applies to second-class and third-class airman medical certificates in 14 C.F.R. § 67.207 and 14 C.F.R. § 67.307, respectively.

Europe

Medical regulations associated with obtaining a medical certificate in Europe are arguably less specific than those in the United States.  The European Aviation Safety Agency (“EASA”), headquartered in Cologne, Germany has oversight responsibility for aviation safety in the European Union.  Commission Regulation (EU) 1178/2011 technical requirements pursuant to Regulation (EC) 216/2008, 2011 O.J. (L311) 175 (EASA Piloting Regulations), MED.A.015

The EASA regulations provide in part:

  • Applicants shall have no established medical history or clinical diagnosis of any psychiatric disease or disability, condition or disorder, acute or chronic, congenital or acquired, which is likely to interfere with the safe exercise of the privileges of the applicable licence(s).

Interestingly, the EASA regulations contain a specific provision addressing self-harm, and provide that “[a]pplicants with a history of a single or repeated acts of deliberate self-harm shall be assessed as unfit.”  MED.B.055.

The European regulations related to alcohol and drug use are also much more abbreviated than those applicable in the United States, and provide that “[a]pplicants with a mental or behavioral disorder due to alcohol or other use or abuse of psychotropic substances shall be assessed as unfit pending recovery and freedom from substance use and subject to satisfactory psychiatric evaluation after successful treatment.  Id.

Recent Regulatory Action

In response to Germanwings 9525 and MH 370, the FAA chartered the Pilot Fitness Aviation Rulemaking Committee (“ARC”) on May 11, 2015.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjZta_TuOzNAhVmHGMKHamWAX0QFggcMAA&url=http%3A%2F%2Fwww.faa.gov%2Fregulations_policies%2Frulemaking%2Fcommittees%2Fdocuments%2Fmedia%2Fpfarc-51115.pdf&usg=AFQjCNEkKMDyQJHjWUO8XlKwQYbzihamQw&bvm=bv.126130881,d.cGc

The ARC released its report on November 18, 2015.  The report generally concluded that the best strategy for minimizing the risk associated with pilot mental health is to create an environment that encourages and is supportive to voluntary self-disclosure.  The report recognized, however, that even when symptoms are recognized, pilot mental fitness issue self-reporting may be perceived as a high risk situation, with financial, and even career-ending implications.  The report contained eight recommendations:

  1. Enhance AME Training. The FAA should ensure all Aviation Medical Examiners demonstrate knowledge in assessing basic mental health concerns, and enhance AME training on this topic.
  2. Psychological Testing. The ARC does not recommend mandating formal psychological testing during the pilot hiring process nor as part of routine FAA aviation medical examination beyond those which already exist.
  3. Pilot Assistance Programs. Air carriers should develop effective pilot assistance programs.
  4. Air Carrier Education. Air carrier operators should be encouraged to implement mental health education programs…improve awareness and recognition of mental health issues, reduce stigmas, and promote available resources to assist with resolving mental health problems.
  5. Informational Material on Pilot Support Programs. The FAA should assemble and disseminate information on benchmark pilot support programs…to serve as a resource for air carriers to develop new or improve existing programs.
  6. Medical Professional Reporting. Encourage advocacy for a uniform national policy on mandatory reporting of medical issues that affect public safety.
  7. Two Persons on Flightdeck and Flightdeck Access. The ARC recommends no changes to the guidance found in applicable FAA orders.
  8. Aircraft Design Standards. The ARC believes existing aircraft and flightdeck door design standards are adequate and no changes are required by the FAA.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwino7KiuOzNAhVjF2MKHebTBakQFggcMAA&url=https%3A%2F%2Fwww.eurocockpit.be%2Fsites%2Fdefault%2Ffiles%2Ffaa_pilot_fitness_arc_report_2016.pdf&usg=AFQjCNGsAkE7pif54krzJ9kCdngKa1dH5g&bvm=bv.126130881,d.cGc

Many of the recommendations contained in the report tracked issues that the  Aerospace Medical Association (“AsMA”) had been addressing just prior to the Germanwings crash.  In fact, the AsMA Coordinating Chair had just discussed the issues at the 2014 European Society of Aerospace Medicine conference in Bucharest, Romania in September, 2014, a few months before the crash of Germanwings 9505.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwigz6HGu-zNAhUD6mMKHbxGCdYQFggcMAA&url=https%3A%2F%2Fwww.asma.org%2Fasma%2Fmedia%2FAsMA%2Fpdf-policy%2F2015%2FMental-Health-Screening-in-Aviators.pdf&usg=AFQjCNGwTH690mwDtqz8ChLiqeFU8cKnGA&bvm=bv.126130881,d.cGc

IATA and ICAO have both expressed concern about the importance in stepped up coordinated approaches to monitoring pilot mental health.

http://airlines.iata.org/agenda/monitoring-the-mental-health-of-pilots

The BEA investigation into Germanwings 9525 and the ARC report both conclude that pilot perceptions about the potentially career-ending consequences of self-reporting a mental fitness problem and the financial repercussions are serious impediments to effective self-reporting.  The BEA report noted that in December, 2014, emails created by Lubitz reflect a financial anxiety associated with his inability to obtain additional loss-of-license insurance because of the waiver in his medical certificate.

Major Commercial Crashes Involving Mental Fitness

The BEA’s preliminary report on Germanwings 9505 noted that there were only six instances of commercial flight crews intentionally crashing planes since 1980 were found in a search of ICAO and BEA databases.  It is worth noting than in two of the instances, JAL 350 and Egypt Air 990, the pilot or co-pilot were not alone in the cockpits, but other flight crew members were not able to regain control of the plane.

  • February 9, 1982. Japan Air Lines Flight 350.  35-yer-old captain, who had just returned to work a few months earlier after a year-long medical leave for psychiatric reasons.  Despite history of psychosomatic disorder, doctors deemed him fit to fly.  McDonnel Douglas DC-8 from Fukuoka to Tokyo Haneda.  Either engaged thrust reverser or cancelled auto-pilot and threw throttles forward.  First officer and flight engineer tried to restrain him but could not.  Among 166 passengers and eight crew, 24 died.
  • August 21, 1994. Royal Air Maroc Flight 630.  Scheduled flight from Agadir, Morocco to Casablanca.  About ten minutes after takeoff, while climbing through 16,000 feet, plane (ATR-42) entered steep dive and crashed into Atlas Mountains, killing all 40 passengers and four crew members.  Investigation revealed the 32 year-old pilot intentionally turned off autopilot.  The Moroccan pilots’ union disputed any conclusion that the crash was intentional.
  • December 19, 1997. Silk Air Flight 185.  The 41 year-old captain was flying a ten month-old Boeing 737-300 with a crew of 97 passengers and a crew of seven from Jakarta to Singapore.  The captain was also a pilot in the Singaporean air force and a member of the Black Knights air force flight demonstration team.  He had 7,173 flight hours.  In July, 1997, the captain had been demoted as a line-instructor pilot after he pulled a CVR circuit-breaker for non-technical reasons to preserve a conversation.  The plane dove from an altitude of 35,000 feet in one minute, diving almost vertically into the Musi River.  The crash was independently investigated by the NTSB and the Indonesian National Transportation Committee (“NTSC”).  The NTSB concluded that the pilot deliberately caused the crash. The NTSC could not determine the cause of the crash.
  • October 11, 1999. Air Botswana.  A Botswanan pilot commandeered an ATR 42-320 and circled the airport at Gaborone, Botswana for two hours.  The pilot repeatedly threatened to crash into the Air Botswana Terminal and kill himself.  After the plane ran out of fuel, it crashed into two other ATR 42s on the tarmac, destroying all three planes and killing the pilot.   The pilot had been grounded after failing a medical exam.
  • October 31, 1999. Egypt Air Flight 990.  The scheduled passenger flight to Cairo, Egypt originated in Los Angeles and had a scheduled stopover at JFK.  The Boeing 767-300 crashed into the Atlantic Ocean about 60 miles south of Nantucket, killing all 203 passengers and 17 crew members.  At the request of the Egyptian government, the NTSB investigated the accident and concluded that the 59 year-old relief co-pilot, who had more than 12,500 flight hours, intentionally crashed the plane.  As the evidence of an intentional crash grew, the Egyptian government launched its own investigation, and attempted to revoke the request made to the NTSB to lead the investigation.  The co-pilot, a married father of five, was under stress because his youngest daughter, age 10, was undergoing medical treatment in Los Angeles.  Egypt Air had attempted to defray medical expenses on both a company and employee level.
  • November 29, 2013. LAM Mozambique Airlines Flight 470.  Embraer 190, which had just been delivered in November, 2012.  Scheduled passenger flight from Maputo, Mozambique, to Luanda, Angola.  Halfway through the route, plane crashed in Namibia.  The Republic of Namibia, Ministry of Works and Transport, Directorate of Aircraft Accident Investigation (“DAAI”) investigated.  They determined (as did the Mozambican Civil Aviation Institute) that the 49 year-old captain intentionally crashed the plane by repeatedly changing the intended altitude settings from 38,000 feet to 592 feet, deploying speed brakes and repeatedly slowing the manual speed settings.  27 passengers and six crew members were killed.  The investigation revealed that the captain’s son had been killed in a car accident, which was a suspected suicide one year earlier.  The captain was also in the process of a contentious divorce after ten years of separation, and his youngest daughter had gone through heart surgery in South Africa recently.

In addition to the six passenger flights, one incident in 1976 involved a single pilot crashing an empty plane into homes on the ground, killing 11 on the ground.

  • September 26, 1976. Aeroflot, Antonov 2. The pilot directed the plane into the block of flats in Novosibirsk, Western Siberia where his ex-wife lived, killing himself and 11 occupants.

http://news.aviation-safety.net/2015/03/26/list-of-aircraft-accidents-and-incidents-deliberately-caused-by-pilots/  http://www.nytimes.com/interactive/2015/03/26/world/history-plane-crashes-pilots.html?_r=0

Other Notable Non-Crash Events

On January 28, 2008. A London-bound Air Canada Boeing 767 was over the Atlantic when the co-pilot suffered a mental breakdown.  The experienced co-pilot became belligerent and uncooperative, “invoking God”, and refusing to fasten his seatbelt.  Other members of the crew forcibly removed the co-pilot and restrained him.  The plane diverted to Shannon, Ireland with 146 passengers and a crew of nine.  https://www.theguardian.com/uk/2008/jan/30/transport.world

http://www.cbc.ca/news/world/air-canada-flight-attendant-helped-land-plane-after-co-pilot-breakdown-report-1.734832

On March 27, 2012, Jet Blue captain Clayton Osbon, who was then 49 years-old, and who had been flying for Jet Blue for 12 years, was flying from New York’s John F. Kennedy Airport to Las Vegas’s McCarran airport.  During the flight, Osbon began making comments about “taking a leap of faith” and reportedly saying “things just don’t matter”.  Osbon also began complaining about noise and began randomly flipping cockpit controls.  He also starting ranting incoherently about Jesus, Iran, terrorists, Al Qaeda and a bomb on board.  The co-pilot had the foresight to lock Osbon out of the cabin, and he was tackled by law enforcement officers who happened to be on board and en route to a security conference in Las Vegas.  The flight was diverted to Amarillo, and an off-duty pilot who was on board assisted with the landing.  http://www.dailymail.co.uk/news/article-2121240/JetBlue-pilot-Clayton-Osbon-restrained-PASSENGERS-going-berserk-mid-flight.html

https://www.theguardian.com/world/2012/mar/28/jetblue-passengers-pilot-breakdown-osbon

Osbon was criminally charged with interfering with a flight crew in the U.S. District Court for the Northern District of Texas, and found not guilty by reason of insanity.  In a strange twist, three days after the Germanwings crash, Osbon sued Jet Blue for more than 14 million dollars, alleging the airline was negligent in permitting him to fly despite signs of mental illness.  http://www.pbs.org/newshour/rundown/former-jetblue-pilot-sues-16m-2012-midflight-meltdown/

Employment Considerations

The FARs and federal preemption generally provide the airlines with significant discretion regarding the development, implementation and enforcement of operational safety programs, including the mental fitness of flight crew members.  Federal law sets what are only minimum standards for airlines to use in the formation of safety policies.  Under the applicable statutes, “[t]he Administrator may prescribe minimum safety standards for…an air carrier to whom a certificate is issued under section 44705 of this title…”

Federal courts have generally given the airlines wide discretion to address safety.  In Johnson v American Airlines, Inc., 745 F.2d 988 (5th Cir. 1984), the court addressed American’s overhaul of the cockpit crew training, certification and promotional system following a large number of crashes in the early 1960s.  Part of the overhaul involved an “up or out” certification system requiring flight crew to train for the next highest cockpit position.  Plaintiffs sued, alleging violation of the Age Discrimination in Employment Act.  The Fifth Circuit affirmed, holding that “the airline industry must be accorded great leeway and discretion in determining the manner in which it may be operated most safely”.  Id. at 993, quoting Murnane v. American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981).

However, preemption is not without limits, even in the context of flight crew employment, and airlines are still subject to the laws of general applicability.  In the context of pilot mental health, this may include the implications of the Americans With Disabilities Act (“ADA” 42 U.S.C. § 12112).  Under the ADA, a person is considered disabled if he or she: (1) suffers from a mental or physical impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.  42 U.S.C. § 12102(2).

In Witter v Delta Airlines, 966 F. Supp. 1193, 1195-1197 (N.D. Ga. 1997), the court addressed pilot mental health in the context of an ADA claim.  Plaintiff had been employed by Delta as a pilot since 1967.  In February, 1992 plaintiff was involved in a domestic dispute with his wife, and threatened to commit suicide.  As a result, plaintiff was incarcerated, and sent for a psychiatric evaluation, after which he was transferred to another psychiatric facility at Delta’s request.  Plaintiff alleged that Delta told him that if he did not consent to psychiatric evaluation, he would be fired.  Plaintiff then voluntarily grounded himself because he believed that he was not medically fit to fly.

Plaintiff’s FAA Class I Medical Certification was set to expire in June, 1992.  Plaintiff found an AME who agreed to “help Plaintiff with this situation”.  Relying on the report of a psychiatrist to which the AME had referred plaintiff, the AME diagnosed plaintiff as suffering from bi-polar disorder, and found him unfit to fly.  Subsequently, plaintiff examined by an FAA psychiatrist who concluded that plaintiff had a “characterological problem that might be considered a personality disorder”.  The FAA psychiatrist also concluded that plaintiff should be issued a Class I Medical Certificate on the condition that he submit to semi-annual psychiatric reports.

Plaintiff was issued the Class I Medical Certification in February, 1993, and presented the certificate to Delta on March 1, 1993.  When plaintiff presented the Certificate to Delta’s chief pilot, Delta decided that plaintiff should be further evaluated by a senior AME who was also board certified in aerospace medicine.  Delta’s decision was made at least in part on the basis of the felony charge pending against plaintiff from the 1992 domestic dispute.  The senior AME concluded that plaintiff suffered from an Adjustment Disorder with Mixed Emotional Features but was qualified to fly.  The Senior AME noted in his report:

In returning Capt. Witter to the cockpit, the major concern is the possibility of a recurrence of this type of behavior reaction, especially while flying…. If it did occur again, even in the cockpit, I do not believe that it would be incapacitating from a safety point of view. Capt. Witter’s basic personality may make him a difficult person with whom to work. However, he does not have a psychiatric disorder at the present time. If any future unusual behavior indicates the occurrence of another adjustment disorder, Capt. Witter should be grounded permanently. Until then, he is qualified to fly.

Based on the report, Witter returned to line flying status in August, 2003.  In November, 1993, plaintiff flew a European rotation, during which he had a conflict with two other crew members which resulted in the crew refusing to follow his instructions.  After further evaluation, the Senior AME diagnosed plaintiff with Narcissistic Personality Disorder and possible Cyclothymia, and memorialized the findings in an April, 1994 report.  In response, Delta grounded plaintiff.  The FAA then convened a panel of six psychiatrists, who reviewed the case and concluded that plaintiff should not be returned to flight status.  The NTSB then overturned the FAA and restored plaintiff’s Class I Medical Certification.  Delta refused to reinstate plaintiff to flight status without further medical evaluation.

Plaintiff filed suit, alleging violation of the ADA.  In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) the Court ruled that for claims of discriminatory treatment in employment, a plaintiff must establish a prima facie case of discrimination by showing: (1) that he or she has a disability; (2) that he or she is a qualified individual; and (3) that he or she was subjected to unlawful discrimination because of the disability.  The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the employment action.

The court granted Delta’s motion for summary judgment, and, without ever shifting the burden under McDonnell Douglas, concluded that plaintiff was not disabled.  The court noted that the regulations under 29 C.F.R. § 1630.2(j) (2) provided guidance on the factors for determination of whether a condition is substantially limiting, which include the nature and severity of the impairment, the duration or expected duration of the impairment, and the long-term impact of the impairment. Witter, 966 F. Supp. 1198

The court found that since plaintiff’s psychological condition did not appear to be exceptionally severe, and only manifested itself while plaintiff was under stress, it did not substantially impair the life activity of working.  The court also noted that the impact of the emotional disturbance was not long-term, since the NTSB had concluded that the First Class Medical Certification should be returned.  The court also noted that plaintiff was a resident of the Atlanta area, a large metropolitan area with substantial job opportunities.  The court also reasoned that there were many other pilots in management, training and administration, and while plaintiff may not be able to fly commercially, he did not even argue that he was impaired from holding any other job.  Witter, 966 F. Supp. 1199.

As discussed above, McDonnell Douglas requires the establishment of three conditions to move forward with a case of discrimination.  If the plaintiff in Witter had established that his mental condition was a disability for purposes of the first element, he still would have had to establish that he was a qualified individual, and that he was subject to unlawful discrimination for purposes of establishing a prima facie case of discrimination under the ADA.  Although he was subjected to testing after the domestic incident and European rotation, it is unlike that those actions constitute unlawful discrimination.  Under the ADA, an employer is prohibited from conducting a medical examination after the commencement of employment unless such an examination is job-related and consistent with business necessity.  42 U.S.C.  § 12112(d)(4)(A).

Moreover, pursuant to 14 C.F.R. 67.113(c)(1), the FAA requires that in order to receive a first-class airman medical certificate, a person must not have any medical condition which renders that person “unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held”.

In Martin v Lennox Intern. Inc., a pilot suffered a heart attack and was grounded during the six-month recovery period, after which he sought re-certification from the FAA.  342 Fed. Appx. 15 (5th Cir. 2009).  After informing his employer that there would be a delay in the re-certification process while he awaited his medical certificate he was fired.  He then brought several claims, including discrimination under the ADA.  The court granted the defendant employer’s motion for summary judgment on the basis that plaintiff could not hold a medical certificate.  Therefore, it is highly unlikely that a pilot with a mental illness that would not allow him or her to hold a medical certificate would not be able to satisfy the qualification element of a prima facie case of discrimination under the ADA.

Courts have generally ruled that an employer’s request for a medical examination when the request is grounded in good faith, and where the specific facts show that an employee may not be able to perform the essential functions of his or her job.  Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 (6th Cir. 1999).

Plaintiff in Witter also brought state tort claims for intentional infliction of emotional distress and negligent hiring and retention, which were dismissed.  Plaintiff’s defamation claims against both the Sr. AME and Delta were also dismissed.  Plaintiff’s libel claims against Delta, and his claim against the Sr. AME for tortious interference with Witter’s contractual relationship with Delta were also dismissed.

Confidentiality Considerations

The BEA and ARC reports both recommend the development and implementation of a unified, coordinated system of national mental health reporting.  However, the confidentiality of medical records arises through a complicated morass of federal and state statute and common law.

Privacy Considerations Under Federal Law:

  • Although the ADA contains confidentiality provisions, the ADA generally insulates air carriers from liability in cases where pilots have a mental disability.
  • Family Medical Leave Act of 1993 (FMLA). Unique eligibility requirements apply to pilots, flight attendants and other crewmembers under the Airline Flight Crew Technical corrections Act of 2009.  Eligible if (1) worked at least 60% of the minimum number of hours scheduled to work in any given month during prior 12 month period and (2) at least 60% of the minimum number of hours that the employee was scheduled to work in any given month.
  • Aviation and Transportation Security Act (ATSA). Provides immunity for air carrier or any employee of an air carrier who makes a voluntary disclosure related to a threat to aircraft of passenger safety.  49 U.S.C.A. § 44941(b).  See, Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014).
  • Health Insurance and Portability Accountability Act (HIPAA). Contains an exception  for “uses and disclosure to avert a serious threat to health or safety.  45 C.F.R. § 164.512.

Privacy Considerations Under State Law:

  • State Constitutions
  • Common Law Actions
    • Invasion of privacy
    • Breach of Duty of Confidentiality
  • State Statutes
    • Mental Health Information Statutes
    • Medical records statutes
    • Right to privacy statutes
    • Duty to protect or warn statutes

Scott Brooksby to speak on pilot accidents and to serve on the Oregon Aviation Industries Board of Directors

The Oregon Aviation Industries Board of Directors voted unanimously on August 26, 2016, to approve Scott Brooksby’s nomination to serve on the Oregon Aviation Industries Board of Directors.

Scott’s aviation law knowledge includes pilot mental conditions that may lead to accidents.  He will be speaking on this subject at the Columbia Aviation Association, www.caapilots.com, on Thursday September 1, 2016, with a focus on Germanwings Flight 9525 that impacted a mountain in March 2015.

Scott’s many years of experience in aviation litigation, his industry connections and his wide range of talents will be a huge asset to ORAVI.

ORAVI is comprised of 400+ companies in aviation and related businesses.  These include aircraft and part manufacturers, flying services, heavy lift helicopter services, unmanned aerial vehicle systems, airports, maintenance and suppliers to these industries.

The Columbia Aviation Association, where Scott is speaking on September 1,  is located at the Aurora State, Oregon Airport (UAO).  CAA was founded in 1949 as a private organization devoted to flying.  After being located at the Portland International Airport (PDX) for forty five years, members completed the beautiful new Aurora clubhouse in 1996.  Membership is by invitation only and requirements include possession of a private pilots certificate.  Most of the club’s 260 members have advanced ratings and are aircraft owners who fly on a regular basis for business and pleasure.

Pilot mental fitness is a critical aspect of aviation safety.  As Jet Blue Founder and former CEO David Neeleman recently suggested, “nobody ever thought about having to protect the passengers from the pilots”.  In the wake of the tragic circumstances surrounding Germanwings 9525 and MH370, the FAA chartered the Pilot Mental Fitness Aviation Rulemaking Committee, which released its report in November, 2015.  But mental health issues are complex, and no system of detection, voluntary, or outside reporting is perfect.  Scott will discuss the circumstances in Germanwings 9525 and other notable incidents, which have spiked in the last two decades.  Scott will discuss the findings and recommendations in the FAA ARC final report.  He will also explore the issues surrounding the current system of pilot mental health from the perspective of the flying public, the airlines, the regulators, and pilots.