Category Archives: American Bar Association

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

Scott Brooksby wrote the following article, which was published in the American Bar Association’s Mass Torts Summer newsletter:

The MMTJA and the Battle to Establish General Personal Jurisdiction in Foreign Aviation Disasters

By Scott Brooksby – June 21, 2016

Foreign aviation disasters very often result in litigation in the United States. Many cases arising from foreign crashes brought by foreign plaintiffs against foreign defendants are dismissed based on forum non conveniens. However, a recent case decided under the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), 28 U.S.C. § 1369, illustrates the exacting standard for establishing general personal jurisdiction in foreign aviation disasters when plaintiffs seek to litigate in the United States, even when national service of process is permitted. Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015).

The Montreal Convention
Before considering the MMTJA in the context of an aviation disaster, it is important to recall that claims against air carriers, in contrast to claims against manufacturers, are governed by the Montreal Convention. The Montreal Convention of 1999 was ratified by the United States in September 2003 and went into effect in November 2003. It limits the forums in which foreign plaintiffs can file lawsuits against air carriers. The Montreal Convention is a successor to the Warsaw Convention of 1929 and, in addition to important new provisions, consolidates and clarifies prior provisions of the Warsaw Convention. Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on 28 May 1999, ICAO Doc. No. 4698 [hereinafter Montreal Convention].

The Montreal Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.” Montreal Convention, supra, art. 1 § 1. When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier. In El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999), the Court held that personal injury claims arising from aircraft operations within the scope of the convention are not allowed unless permitted under the terms of the convention. Id. at 176. In light of the holding in Tseng, other federal courts have held that the damages available under the convention are the sole cause of action. See, e.g., Ugaz v. Am. Airlines, 576 F. Supp. 2d 1354 (S.D. Fla. 2008).

For purposes of forum non conveniens motions, Article 33 of the Montreal Convention provides that there are five forums in which a plaintiff may bring claims against a carrier:

1. the domicile of the carrier;

2. the principal place of business of the carrier;

3. the place where the airline ticket was purchased;

4. the place of destination; and,

5. in personal injury cases, the principal and permanent place of residence of the plaintiff

The so-called fifth jurisdiction, the plaintiff’s principal and permanent place of residence, was added by the Montreal Convention and expanded on the Warsaw Convention provisions governing proper forums. Under the Montreal Convention, the principal and permanent residence is the “one fixed and permanent abode of the passenger at the time of the accident.” Montreal Convention, supra, art. 33 § 3(b).

Under the fifth jurisdiction principle, a plaintiff may bring the lawsuit for personal injuries in the forum in which he or she has his or her principal and permanent place of residence, and to or from which the carrier operates flights, and in which the carrier leases or owns commercial premises by itself or by another carrier with which it has a commercial agreement. A “commercial agreement” means an agreement made between carriers and related to joint service of passengers by air. Montreal Convention, supra, art. 33 § 3(a).

The MMTJA and Foreign Aviation Disasters
Although the Warsaw and Montreal Conventions addressed many aspect of air crash litigation, they did not specifically address U.S. federal court handling of mass disaster litigation, and they addressed only aviation-related cases against carriers. In 2002, the MMTJA was enacted to create greater efficiency in disaster cases in the federal system. The MMTJA grants district courts original jurisdiction where minimal jurisdictional requirements are met and where the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location[.]” 28 U.S.C. § 1369(a). The permissible lawsuits include both wrongful death and personal injury.

The first case arising under the MMTJA was the Station nightclub fire in West Warwick, Rhode Island, on November 20, 2003, in which 100 people were killed and 230 injured. Lawsuits were filed throughout New England in state and federal courts. Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004).

The MMTJA widely broadens federal jurisdiction in mass disaster cases and provides that the district courts will have original jurisdiction wher

(1) a defendant resides in a State and a substantial part of the accident took place in another State or other location, regardless of whether that defendant is also a resident of the State where a substantial part of the accident took place;

(2) any two defendants reside in different States, regardless of whether such defendants are also residents of the same State or States; or

(3) substantial parts of the accident took place in different States.

28 U.S.C. § 1369(a)(1)–(3).

Under the MMTJA, “minimal diversity” exists between adverse parties if any party is a citizen of a state and any adverse party is a citizen of another state or a foreign state. Corporations are deemed to be a citizen of any state in which it is incorporated, or has its principal place of business, and is deemed to be a resident of any state in which it is licensed to do business or is doing business. 28 U.S.C. § 1369(c)(1)–(2). The district courts must abstain from hearing any action in which the “substantial majority” of all plaintiffs are citizens of a single state in which the primary defendants are also citizens, and from hearing any claims that are governed primarily by state law. 28 U.S.C. § 1369 (b)(1)–(2). Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U.S.C. § 1332.

Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015), arose from the December 28, 2014, crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore. During flight, a rudder system malfunctioned. Subsequent miscommunication between the pilots and a crew member’s removal of a circuit breaker disengaged the autopilot and caused the plane to roll and enter a prolonged stall before crashing into the Java Sea. All 155 passengers and 7 crewmembers were killed. The investigation was handled by the Indonesia National Transportation Safety Committee, which released its final report on December 1, 2015. Komite Nasional Keselamatan Transportasi, Republic of Indonesia, Final Aircraft Accident Investigative Report (2015).

The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus. Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause. The plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’s extensive contacts with the United States as a whole.

The court reasoned that because the case was brought under the MMTJA, Federal Rule of Civil Procedure 4(k)(l)(C) and the MMTJA enabled the court to consider Airbus’s contacts with the United States as a whole, and not just with the state of Illinois. However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the court’s exercise of personal jurisdiction. Siswanto, 2015 WL 9489952, at *1.

Early in its jurisdictional analysis, the court noted that despite the geographic expansion of service and, in turn, the initial scope of personal jurisdiction, Rule 4(k)(1)(C) and section 1697 do not override the controlling constitutional limitations of the court’s exercise of general or specific personal jurisdiction imposed by the Fifth Amendment’s Due Process Clause. Siswanto, 2015 WL 9489952, at *2 (citing KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730–31 (7th Cir. 2013)). The court noted that the traditional “minimum contacts” test from International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945),still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process. Siswanto, 2015 WL 9489952, at *2.

Judge Blakey reasoned that when defendants are domiciled in the United States, the due process analysis under a nationwide service of process is straightforward. Because domestic companies and individuals “almost by definition” have minimum contacts with the United States, there may be general personal jurisdiction in any federal court in the country.Id. at *3.

The court noted that because Airbus is not a domestic company, the plaintiffs must show its contacts with the United States are sufficient to support either general or specific jurisdiction, and that general personal jurisdiction required “continuous and systematic general business contacts” such that Airbus is “essentially at home in the forum,” here, the United States as a whole, and not just the state of Illinois. Id. at *4 (citing Abelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012)). The court concluded that, under Abelesz, the court’s inquiry is not whether Airbus’s contacts with the forum are simply “extensive in the aggregate.” Id. at *3 (internal citations omitted).

There was no dispute that Airbus was incorporated and had its principal place of business in France. For at least the five previous years, Airbus had not maintained any offices or employees or owned or rented property in the United States. All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the United States undertook this work. The A320-216 had been issued a type certificate by the European Safety Agency but not by the Federal Aviation Administration (FAA). The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the United States, and the aircraft had never been flown in the United States. Id. at *2.

The plaintiffs argued that four categories of contacts between Airbus and the United States warranted the court’s exercise of general personal jurisdiction. First, the plaintiffs pointed to aircraft sales in the United States, which amounted to 811 aircraft, or 6.73 percent of Airbus’s sales. The court rejected this argument, ruling that none of the sales gave rise to the crash, and noted that the Supreme Court has instructed that imputing general personal jurisdiction from a defendant’s sales in the forum, even if sizable, would stretch general personal jurisdiction beyond its reach. Id. at *4 (citing Daimler AG v. Bauman, 134 S. Ct. 746, 760–62 (2014)).

Second, the plaintiffs argued that Airbus spends 42 percent of its aircraft-related procurement in the United States. The court also rejected this argument, stating that mere purchases, “even if occurring at regular intervals,” do not establish general personal jurisdiction when the underlying cause of action is not related to those purchases. Id. (citingHelicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984)); accordDaimler, 134 S. Ct. at 757.

Third, the plaintiffs argued that contacts from Airbus’s “separately incorporated” subsidiaries should be imputed to Airbus because they maintained a physical presence in the United States. The court rejected this argument on the basis that the general rule is that jurisdiction contacts of a subsidiary are not imputed to the parent. Id. (citing Abelesz, 692 F.3d at 658–59 (internal citations omitted)).

Fourth, the plaintiffs cited a 2006 article showing that the FAA certified another aircraft model, the Airbus A380. The court also rejected this argument, finding that the isolated fact of the certification of another model aircraft had no special significance as far as personal jurisdiction is concerned. Id.

Having rejected the plaintiffs’ jurisdictional arguments, Judge Blakey turned to the plaintiffs’ alternative argument that venue in the Northern District of Illinois was proper because at least one other defendant, Motorola, resided in that district. The court rejected that argument, noting that establishing venue does not establish jurisdiction and that there was no legal basis for the court to conflate jurisdiction and venue. Id. at *6.

Thus, on December 30, 2015, the court granted Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. In doing so, the court rejected the plaintiffs’ argument that dismissing Airbus would set the dangerous precedent of effectively exempting Airbus from the MMTJA. The court reasoned that “[a]lthough Airbus’ contacts with the United States may have been extensive, plaintiffs have fallen far short of showing the de factorelocation that the Supreme Court has required for a foreign corporate defendant to satisfy general personal jurisdiction.” Id. at *5 (emphasis in original).

Conclusion
The significance of Siswanto and the MMTJA is that jurisdiction is analyzed on a nationwide basis, and not merely on a state-by-state basis or by looking at any particular state. Airbus’s contacts with Illinois or any other individual state are not discussed. Therefore, under the MMTJA, the court could have found that if Airbus was subject to jurisdiction in any state, jurisdiction would have been proper in Illinois as the state where the MMTJA case against Airbus was pending. Even under the statute’s broad jurisdictional sweep, encompassing the United States as a whole, a major non-American aircraft manufacturer was not in Siswanto, and may well not be in future cases, subject to personal jurisdiction anywhere in the country

Scott Brooksby featured as speaker and moderator regarding birds, pets, lasers, and other hot topics in aviation

On June 1, 2016, Scott Brooksby was featured as a speaker and moderator on a panel entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”, at the American Bar Association’s 22nd Annual National Institute on Aviation Litigation, at the University Club of New York in New York, New York.

Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts.  The topics discussed included the following issues:

• Bird strikes are the second-leading cause of death in aviation, with more than 400 deaths globally. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks.
• Flight crews are increasingly targets of inexpensive, and increasingly powerful hand-held green lasers. More than 7,000 laser strikes were reported to the FAA in 2015. This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.
• Pigs, snakes and turkeys are just some of the pets, or emotional support animals, that airlines are confronting. The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines.
• The number of wheel well stowaway incidents are rising which poses security risks for airports and airlines, and it is not inconceivable that the stowaway with destructive intent could cause a catastrophic mass tort.

Scott Brooksby featured as a speaker regarding Air France 447

Scott Brooksby was a featured speaker on a panel discussing District Litigation after Air France 447.   Scott was invited to speak at the 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts for the Bar Association of San Francisco.  The conference took place in San Francisco, California on May 27, 2016.

Scott and other distinguished panelists discussed the interesting substantive, procedural, and strategic considerations for airlines and other types of manufacturers seeking dismissal in forum non conveniens motions, and for passengers and other plaintiffs seeking to defeat FNC motions in multi-district litigation. Using examples from aviation-related MDLs, and specifically after the groundbreaking MDL involving Air France 447, the panel discussed key aspects of establishing personal jurisdiction over foreign corporate defendants. The panel discussed the complex issues associated with international treaties, choice-of-law, the meaning of an “unavailable forum” and challenging jurisdiction and venue considerations that arise when both U.S. and foreign individuals
are involved.

Moderator: Ann C. Taylor, Locke Lord LLP, Chicago, IL
Panelists: Scott Brooksby, Olson Brooksby, Portland, OR              Thad Dameris, Arnold & Porter, Houston, TX
Steve Koh, Perkins Coie LLP, Seattle, WA
Steve Marks, Podhurst Orseck, P.A., Miami, FL

Issues, Tips and New Technologies for the Emergency Medical Helicopter Case

The following was presented by Scott Brooksby at the ABA National Institute on Aviation Litigation in New York, New York, on June 4, 2015, concerning “Issues, Tips and New Technologies for the Emergency Medical Helicopter Case”:

Introduction

Why Are There So Many Helicopter Air Medical Crashes Causing Serious Injury or Death?

Prosecuting and defending helicopter crash cases is complicated and difficult.  This is particularly true in the cases involving helicopter emergency services flights (“HEMS”).  Pilot stress, fatigue, motivation to accept and accomplish a mission, weather conditions, including inadvertent encounters with Instrument Meteorological Conditions (IMC), varying unit technology, wide-ranging pilot training and flight time, differing qualities of dispatch decision making programs, all contribute to the complexity of HEMS flights, and the relative frequency of crashes related to HEMS flight.

According to the NTSB, which is charged with investigating every aviation accident in the United States, and many abroad, there were no fatalities in any 14 C.F.R.§ 121 accidents in 2010.  This despite some 17.5 million flight hours.  In 2011, there were 31 Part 121 accidents with no fatalities and 54 Part 135 accidents consisting of 16 fatal accidents and 41 fatalities.  (Review of U.S. Civil Aviation Accidents, Calendar Year 2011, Review of Aircraft Accident Data NTSB/ARA014/01, PB2014-101453).  This data excludes air medical operations conducted as part of general aviation.

Air medical operations are conducted under Parts 91 or 135 of Title 14 of the Code of Federal Regulations, depending on whether patients are being carried on board the aircraft.  Helicopter Emergency Medical Services (“HEMS”) missions en route to collect patients, or to collect organs, or to reposition aircraft after accomplishing patient transport operations, are generally conducted under Part 91.  Trips conducted to transport patients or organs on board are conducted under Part 135.  Some air medical helicopter operations, particularly for emergency medical services, are conducted by state or local government entities as public use flights, whether patients are on board or not.

A Statistical Overview of HEMS Accident Frequency and Type

Six air medical accidents occurred in 2011, two of which were fatal.  Id.  From 2002 through 2011, 41 percent of air medical accidents involving fixed-wing airplanes and 36 percent of air medical accidents involving helicopters were fatal.  Id.

HEMS accounted for about 80 percent of all air medical accidents during the ten-year period 2001-2011.  Id.  Against this backdrop, we examine medical accidents, specifically those involving helicopters, where in 2010 alone, there were 13 HEMS accidents, 7 of which were fatal.  From 2002-2011, 42 of the 118 HEMS accidents (36%) were fatal.  Id.

In 2011, there were three helicopters involved in air medical accidents in 2011.  The first accident involved a helicopter operating under Part 91, which encountered abnormal runway contact during a power-off landing resulting in substantial damage to the aircraft, but no injuries.  The second accident involved a helicopter operating under Part 135.  Substantial damages occurred when it impacted terrain during an autorotation following loss of power and all four occupants were fatally injured.  In the third accident, also operated under Part 135, a main rotor blade contacted the vertical stabilizer during engine shutdown, resulting in substantial damage but no injuries.

The pilots of these helicopters had an average total flight time of 11,935 hours, with an average of 1,355 hours in the type of accident aircraft.  The accident pilots were an average of 53 years old.  Id.

Six of the Seven HEMS fatalities in 2010 involved operations under Part 91.  From 2000 through 2010, 33 percent of HEMS accidents were fatal.  Most HEMS accidents occurred during airborne phases of flight and during 2010, all HEMS fatalities occurred during airborne phases of flight.

Between 2007 and 2009, air medical accidents were dominated by helicopters flying emergency medical service operations, rather than transfers of patients.  EMS flights in helicopters, under Part 91 regulations without patients on board had substantially higher accident rates than any other category of air medical flying.

While fixed-wing airplanes are more often used for interfacility transportation using established airport facilities, there are few accidents.  Between 2000 and 2009 there were few accidents and only 10 of them were fatal over the course of the decade.  (Review of U.S. Civil Aviation Accidents, Review of Accident Data, 2007-2009, NTSB/ARA-11/01, PB2011-113050)

It may be useful to breakdown the 31 accidents involving 32 helicopters in air medical operations between 2007-2009.  Eighteen were being operated under Part 91, thirteen under Part 135 and one as a public use flight.  Eleven of the accidents, involving 12 helicopters were fatal.  There was one public use fatal accident in 2008.  Collision with objects on takeoff or landing accounted for 7 of the 31 accidents but no fatalities.

Four of the five controlled flight into terrain accidents were fatal, including the crash of the Maryland State Police public use flight carrying accident victims on approach to Andrews Air Force Base.  Two of the three loss of control in-flight accidents were fatal, as were two of the three unintended flights into instrument meteorological conditions accidents.  The midair collision between two Part 135 helicopters in Flagstaff, AZ in June 2008 was also fatal to all on board.  All of the fatal accidents occurred during airborne phases, including en route, approach, maneuvering and emergency descent.  Id.

What Are The Typical Causes? 

In any aviation operation, pilot training and experience, and pilot judgment are some of the most important factors in safe flight.  With helicopter operations generally, and especially HEMS operations, pilot experience, training and judgment are even more critical because of the conditions they fly in, and the unparalleled need for speed.  Review of individual NTSB probably cause reports, NTSB factual data and other aviation industry data would tend to suggest that fatal and serious injury helicopter accidents are most often the result of a number of factors including loss of control, visibility issues, wire strikes, system component failure or post-impact fire.

Although some of these issues pose dangers during Part 121 operations, an argument could be made that they simply do not pose the same risks, largely due to obvious differences in the nature of the aviation operation, the equipment, altitude, avionics, take-off and landings from tightly controlled air-space and the use of aerodromes.  Another significant factor may be that Part 91 operations have no duty time restrictions.   (Special Investigation Report on Emergency Medical Services Operations, Aviation Special Investigation Report NTSB/SIR-06/01. PB 2006-917001, Notation 4402E, National Transportation Safety Board, January 25, 2006).  Fatigue has been shown to impair performance and diminish alertness.  (National Transportation Safety Board, Evaluation of U.S. Department of Transportation Efforts in the 1990s to Address Fatigue, Safety Report NTSB/SR-99/01  (Washington, DC:  NTSB, 1999).

There is also wide variation in the nature and quantity of helicopter air medical pilot training.  From 2007-2009, for example, NTSB data suggest that the accident helicopter pilots’ median age was 54, ranging from 35 to 69.  Median total flight hours were 7,125 with a range from 2,685 to 18,000.  The median time in the type of accident helicopter was 375 hours, ranging from 11 to 4,241.  Id.

Review of any significant sample size from the NTSB aviation accident database shows that weather, particularly unanticipated entry into IMC, or pilot election to accept a mission with known adverse or deteriorating weather conditions is a major factor.  (See, e.g, case studies in Special Investigation Report on Emergency Medical Services Operations, Aviation Special Investigation Report NTSB/SIR-06/01. PB 2006-917001, Notation 4402E, National Transportation Safety Board, January 25, 2006)(Stanislaw P.A. Stawicki, MD, Hoey, Brian A, MD, Portner, Marc, MD, Evidence Table:  Summary of Aeromedical Incidents (2003-2012) OPUS 12 Scientist, 2013 Vol. 7, No. 1.

For example, on March 25, 2011, a Eurocopter AS350B3, registered to Memphis Medical Air Center crashed while heading directly into a weather cell, killing the pilot and two flight nurses.  The NTSB ruled that attempting to fly into adverse weather, with localized adverse night IMC, was the likely cause of the crash.  The shift pilot suggested parking the helicopter, but the active duty pilot insisted there was enough time to make it, believing he had about 18 minutes to beat the storm and return to base.  The shift pilot later learned the flight was about 30 seconds from arrival when the helicopter crashed.  Similar scenarios involving poor judgment, adverse weather conditions, and lack of outside, objective input on whether a mission should proceed are frequent NTSB probable cause factors.  Id.

Statistics suggest that such variations in flight time and the corollary impact on experience and judgment may be significant factors in the number of crashes.  Id.  HEMS operations often make use of helicopters, and they use unimproved landing sites at accident scenes and helipads and hospitals or medical facilities.

Loss of control in flight was the most common event for both fatal and non-fatal helicopter crashes, followed by collisions on takeoff or landing and system component failure of the power plant.  Even though HEMS pilots may have thousands of flight hours, and be some of the best helicopter pilots in the world, owners and operators should continuously emphasize the consistent causes of HEMS crashes and adapt training programs to focus on those causes.

Possible Improvements

One of the NTSB’s “Most Wanted” Transportation Safety Improvements in 2015 is the enhancement of public helicopter safety.  However, many of these suggestions could apply to non-public use helicopter activities under Part 135 or Part 91.  http://www.ntsb.gov/safety/mwl/Pages/default.aspx   (Last visited April 2, 2015).

Since 2004, the NTSB has investigated more than 130 accidents involving federal, state, and local public helicopter operations, including the 4 mentioned above.  Fifty people were fatally injured and 40 seriously injured.  Id.  What can be done:

  1. Operational factors including the development and implementation of safety management systems hold great promise. In particular, flight risk evaluation programs and formalized dispatch and flight-following procedures which relieve pilots of decision making under stressful or fatiguing conditions.  Also promising, are scenario-based training which exposes pilots to inadvertent flight into IMC.
  1. Investment can be made in advanced technologies. The NTSB has recommended that helicopter operators install radio altimeters, night vision imaging systems and terrain awareness warning systems.
  1. Finally, the NTSB advocates for crash-resistant flight recorder systems for all aircraft.

Although these items are on the NTSB’s Wish List for 2015, at least as to the enhancement of safety involving public use helicopters, a 2006 NTSB report discusses what are essentially the same improvements as recommended for air medical services.  (Special Investigation Report on Emergency Medical Services Operations, Aviation Special Investigation Report NTSB/SIR-06/01. PB 2006-917001, Notation 4402E, National Transportation Safety Board, January 25, 2006).  While valuable safety improvements have been recognized for some time, they may not be as actively implemented as necessary.

Case Notes

In what may be one of the first cases of texting and flying, a helicopter emergency medical services flight case involving pilot texting was settled in April, 2013.  The NTSB conducted a public hearing and concluded the pilot sent and received 240 text messages during his shift, including three sent and five received while the helicopter was in flight.  The distracted pilot failed to realize that he had inadequate fuel to complete the flight, which crashed near Mosby, Missouri on August 26, 2011 due to fuel starvation.  The case is Bever, et al. v. Estate of Freudenberg, Clay County, 11Cy-10505, Tacoronte, et al. v. Estate of Freudenberg, Clay County, 11CY-CV10179.  The case was settled for a reputed $8,000,000.

On September 27, 2008, “Trooper 2,” a HEMS flight operated by the Maryland State Police, crashed several miles short of the runway at Andrews Air Force Base while executing an ILS approach with two motor vehicle accident victims on board. The accident killed the pilot, the Maryland State Police paramedic, a borrowed paramedic from the landing site, and one of the two MVA victims. The other MVA victim—the sole survivor—was thrown from the wreckage at impact and suffered severe injuries. Despite the fact that the helicopter had received radar vectors onto the final approach course and was equipped with ADS-B (which provides position data every second), the survivor languished in a pond of Jet-A at night for two hours before being found. The United States was joined in the subsequent litigation, and all cases ultimately were settled by Maryland and the United States for approximately $15,000,000.

The NTSB recently published its report on an accident near Talkeetna, Alaska, on March 30, 2013, in which a Eurocopter AS350 B3 helicopter,1 N911AA, impacted terrain while maneuvering during a search and rescue (SAR) flight. See NTSB/AAR-14/03 (November 14, 2014). The airline transport pilot, an Alaska state trooper serving as a flight observer for the pilot, and a stranded snowmobiler who had requested rescue were killed, and the helicopter was destroyed by impact and postcrash fire. The helicopter was registered to and operated by the Alaska Department of Public Safety (DPS) as a public aircraft operations flight under 14 Code of Federal Regulations (CFR) Part 91. Instrument meteorological conditions (IMC) prevailed in the area at the time of the accident. The flight originated at 2313 from a frozen pond near the snowmobiler’s rescue location and was destined for an off-airport location about 16 mi south.  The NTSB determined the probable cause of the accident was the pilot’s decision to continue flight under visual flight rules into deteriorating weather conditions, which resulted in the pilot’s spatial disorientation and loss of control. Also causal was the Alaska Department of Public Safety’s punitive culture and inadequate safety management, which prevented the organization from identifying and correcting latent deficiencies in risk management and pilot training. Contributing to the accident was the pilot’s exceptionally high motivation to complete search and rescue missions, which increased his risk tolerance and adversely affected his decision-making.

 

Scott Brooksby will be featured as a speaker at the American Bar Association’s 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts in San Francisco, California

Scott Brooksby will be featured as a speaker at the American Bar Association’s 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts in San Francisco, California.   The conference explores hot topics in class action and mass tort litigation.  Scott will join federal judges, plaintiffs’ and defense lawyers, academics, and experts to speak on these issues.

Scott’s panel will discuss the interesting substantive, procedural, and strategic considerations for airlines and other types of manufacturers seeking dismissal in forum non conveniens motions, and for passengers and other plaintiffs seeking to defeat FNC motions in multi-district litigation. Using examples from aviation-related MDLs, and specifically after the groundbreaking MDL involving Air France 447, the panel will discuss key aspects of establishing personal jurisdiction over foreign corporate defendants. The panel will discuss the complex issues associated with international treaties, choiceof-law, the meaning of an “unavailable forum” and challenging jurisdiction and venue considerations that arise when both U.S. and foreign individuals
are involved.

Scott Brooksby practices aviation and product liability defense.  He is an experienced trial lawyer who has defended businesses, manufacturers, and organizations in many personal injury and and commercial cases. He has defended and counseled product manufacturers and distributors in a variety of industries including aviation, drugs and medical devices, toys and recreational products, paints and solvents, power tools, heavy equipment and machinery, retail, food, consumer products, and automobiles. He is the former co-chair of a large West Coast law firm’s product liability practice group.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts.

In cases that do not necessitate a trial, Scott is a skilled negotiator who has resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in the dismissal of claims, or outright dismissal of his client. He also has experience counseling product liability clients regarding the avoidance of litigation, handling product recalls, product modifications, and unwanted governmental intervention.

Scott has litigated everything from small defective product claims to catastrophic injury and wrongful death cases involving punitive damages.  He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.

As one of the few lawyers in Oregon with significant aviation experience, Scott has litigated helicopter and plane crash cases, as well as aviation component part product liability claims.  Scott was co-counsel on a team that defended a large aviation product manufacturer in a months-long trial.