Category Archives: Catastrophic Injury

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 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

Bird Strikes and Aviation: Facts and Fault

From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:

Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.

Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.

Data Sampling
According to Boeing, the relevant wildlife-strike facts include:

1. More than 219 people have been killed as a result of bird strikes since 1988.

2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.

3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.

4. About 5,000 bird strikes were reported by the Air Force in 2012.

5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.

6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.

Factors Contributing to the Rise in Bird Strikes

1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.

2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.

3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.

4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.

Prevention
In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight.  As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:

1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.

2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.

3. Discouraging nesting and grazing.

4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.

5. Firing pyrotechnics and propane cannons.

Conclusion
Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.

Is it still safe to travel by plane?

Apparently at least 150 people died in the French Alps when a German flight from Barcelona to Dusseldorf crashed this week.  According to Slate.com, this is the fifth crash in the last year to result in the death of more than 100 people.

Although it seems like it’s becoming less and less safe to fly, the Aviation Safety Network reports that last year was the safest year on record for the total number of airplane crashes.

screen_shot_20150324_at_11.43.04_am
Number of commercial crashes per year.
Courtesy of aviation-safety.net; Slate.com

Airplane crashes, particularly when they involve a large plane full of people, are high-profile and they are obviously scary.  However, airplane travel continues to be one of the safest modes of transportation.  According to Slate.com, “If you look at crashes per number of flights as estimated by the International Civil Aviation Organization, 0.0001 percent of flights have crashed in the past 10, years resulting in one death for every 38,549 flights.”

Olson Brooksby practices a wide variety of aviation law.  We have experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.  Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.  Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section.  Mr. Brooksby has also been featured as a speaker and a moderator at the American Bar Association’s Aviation Litigation National Institute in New York, New York.

Recommendations for reducing worker injuries for steel and metal manufacturers

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From Scott Brooksby’s article, “Secondary Processes Don’t Translate to Secondary Risks“, published in FF Journal, a metal fabricating and forming trade magazine, which includes recommendations for reducing worker injuries for steel and metal manufacturers:

Global demand for steel continues to increase, with mills and production facilities focused on production processes and ramping up output. With the urgency to increase production, however, risk of serious workplace injuries often is under-recognized in secondary processes—most notably, quality control testing operations.

Through our experience, we’ve identified simple and affordable steps mill management can take to reduce the incidence of major injuries and associated liabilities that occur at an inordinate rate in quality control testing processes of metals manufacturing.

A recent example took place at a steel mill that processes around 30,000 samples per year, operating a customized, decades-old conveyor system.

On the main production line at this mill, tail samples are cut from steel plate.  The samples, slabs about 1 1⁄2-in.-thick, 8-ft.-long and weighing more than a ton, are sidled to a conveyor system leading to the sample-burning room. There, the sample tail is cut into smaller pieces to be shipped to a lab for testing. Electronic and manual controls are in place to prevent slabs from posing a danger to workers. When the system operates as it should, samples are restrained by a series of gates, arriving at a final gate that secures the slab as a laser torch cuts the tail sample into pieces, each weighing about 500 lbs.

One day, the final metal gate remained shut as the penultimate gate opened, freeing the sample slab to collide with the sample still in the clutch of the final gate. The sample tail flipped into the air, striking a temporary employee before destroying the machinery’s electronic control system.

A co-worker prevented further injury and damage by deactivating the equipment with a retrofitted electronic emergency override. Claims against the mill were resolved at significant financial expense.

What lessons can heavy industry draw from this incident to prevent similar events from occurring?

Immediately examine equipment involved in secondary processes—such as QC test sampling—and put requisite safeguards into place. It’s common for management to concentrate on production line safety and operations. All the more reason to exhibit prudence by reviewing conditions in areas such as sample burning, and take steps such as safety engineering studies to identify issues and develop options to retrofit or augment existing safety devices.

For example, conveyor equipment in sample-burning lines often is customized, and can lack safety elements incorporated in standardized, production line equipment. In this case, an engineering study on the sample conveyor may have identified a safety retrofit as simple as horizontal spacers spanning across the conveyor to prevent a sample tail from careening off the conveyor.

Document safety or process improvements. Virtually every steel, metal or component manufacturing facility has old equipment in use. In most cases, it has been upgraded or retrofitted for operation with the safety of the worker and the workplace as priority concerns. We recognize that documentation on its own won’t prevent injury.

At the same time, we’ve seen how dramatically lack of production environment safety retrofit documentations can impact the size of settlements and verdicts in manufacturing workplace personal injury cases.  Safety retrofits have value in and of themselves. But strictly from a standpoint of managing financial risk, it’s crucial to document safety retrofits, retain these documents indefinitely and maintain them in strict compliance with formal document destruction policies.

Review workforce management and training practices in “first assignment” areas such as test-sample burning. As with the  case of our real-world example, secondary processes often are areas where less-experienced or temporary workers are first put to work in steel production facilities. Facility management is wise to recognize this as a potential risk, put in place precautions, staff these areas appropriately and sufficiently train inexperienced workers who may not be conscious of dangers inherent in quality control sampling.

Defending the Pediatric Burn Case: How Knowing the Medical Literature and New Treatment Modalities Can Help Control Damages

Surgeons discussing computed tomography (CT) scans in operating theatre

Introduction

Most seasoned defense attorneys are well aware of the three subjects that often tend to cause far higher-than-expected verdicts: burns, kids, and cancer.  In this article we will address the danger of situations where there is not only a child, but the child is severely burned.

In prior posts we addressed burn classification, conventional treatment modalities, and aspects of expected outcomes.  We will not repeat that information here but instead address some general mortality statistics and where children, specifically those age six and younger, fit in.  We will also address experimental and new therapies for children, as described in the recent literature, including the use of virtual reality, albuterol inhalants, and aerosolized Heparin/Acetylcystine therapies.  All of these therapies have been shown to lower mortality rates in children.

Regardless of the burn mechanism, defending a pediatric burn case, especially if it was fatal, can be extremely difficult.  Juries tend to be very sensitive to burn injuries, especially in cases involving children.  Therefore, the product liability or aviation defense lawyer must have an in-depth understanding of the mechanics of burn injuries and available treatment options, particularly in those cases where inhalation injury is a component.  Both an aircraft cabin and a home are confined spaces that can be filled with fatal levels of smoke, sometimes within seconds.  Given these considerations, it is essential that the defense attorney be thoroughly prepared, armed with both knowledge and empathy.

Statistical Overview of Burn Injuries

According to the National Burn Repository,[1] which gathers and analyzes statistical data from burn centers throughout the United States and Canada, there were 126,000 hospital admissions for burns from 1995 – 2005.  The mean burn size was 13.4 percent total body surface area (TBSA) with sixty-two percent of the full thickness burns covering less than ten percent TBSA.  Sixty-one percent of patients were transferred to another hospital for a higher level of care.  Six and one-half percent of admissions had inhalation injuries.  The data also show that the patients were seventy percent male with a mean age of 33 years.  Flame and scald burns accounted for seventy-eight percent of all burn injuries.

The prognostic burn index, a sum of the patient’s age and percentage of TBSA burn, was used as a gauge for patient mortality for many years.  This index suggested that by taking into consideration the patient’s age and the size of their full thickness TBSA burn, and adding twenty percent for inhalation, the patient’s mortality probability could be predicted.[2]  Advances in early excision of burn eschar,[3] skin grafting, early enteral feeding,[4] and wound closure with advanced techniques (skin substitutes) have altered the simple mathematical calculation.[5]  Patients with a prognostic burn index of 90 – 100 now have a mortality rate in the 50 – 70% range with poorer outcomes at both extremes of age.[6]

The Importance of Pediatric Treatment in Cases Involving Inhalation Burns 

As noted above, mortality rates are higher in pediatric patients.  Smoke inhalation injury continues to be implicated as the leading cause of death in persons with burn injuries.  Smoke inhalation injury has a reported mortality of 20 – 80%.[7]  This is also supported by the addition of 20% traditionally added to the prognostic burn index.

In smoke inhalation injury, there is a destruction of the ciliated epithelium[8] that lines the tracheobronchial tree.  Casts[9] from these cells cause upper-airway destruction, and this leads to obstruction, causing pulmonary failure.  In one recent study, the reduction in mortality in pediatric patients with inhalation injuries placed on a regimen of aerosolized heparin[10] and acetylcystine[11] was tested.[12]  Forty-seven children, acting against forty-three controls, received 5000 units of heparin and 3 ml of a 20% solution of acetylcystine aerosolized every four hours for the first seven days of injury.  All patients were extubated when they were able to maintain spontaneous oxygen levels.  The number of patients requiring re-intubation for successive pulmonary failure was recorded, as was mortality.

The results indicate a significant decrease in re-intubation rates, incidence of atelectasis,[13] and mortality for patients treated with the regimen of heparin and acetylcystine when compared with the controls.  Heparin/acetylcystine nebulization in children with massive burn and smoke inhalation injuries results in a significant decrease in incidence of re-intubation for progressive pulmonary failure and a reduction in mortality.

The Use of Virtual Reality For Acute Pain Management in Pediatric Burn Patients

In one experimental case, virtual reality was tested for pain management.[14]  Managing high pain levels associated with pediatric burns can result in a decreased reliance on opioid medications and can potentially minimize future risk of developing psychiatric problems.  During the study, hospitalized patients over the age of six and without facial burns were selected.  A lightweight helmet with binocular display provided patients with a Virtual Reality (VR) experience during acute pain procedures such as wound care or therapy.  Pain levels were assessed using the Faces Pain Scale (FPS).[15] Constitutional signs and symptoms, opioid medication usage, as well as nursing and family member assessments of pain were also recorded.  VR provided a three-dimensional computer-simulated environment where patients could see, hear, and interact with objects displayed in the virtual world.

Preliminary results suggested at least a 20% decrease on FPS during VR intervention.  Pediatric patients report an increased tolerance to exposed dressing sites during VR.  It remains unknown which patient factors (age, sex, characteristics of the burn, background pain level, etc.) are predictive of effective pain management with VR.

Conclusion

Olson Brooksby has defended many product liability and aviation cases where the resulting injury was a serious, sometimes fatal, burn.  From a defense perspective, such cases pose difficulties if defense counsel is not prepared to skillfully handle the cross examination of the treating burn physician.  The best way to do so is to be familiar with the prevailing treatment methods and the relevant literature.  Conversance with the literature will provide a working understanding of the techniques that were available to the treatment team to minimize the pediatric burn patient’s pain and increase the likelihood of survival.

 


[1] Miller, S.F.M., et al., National Burn Repository, 2005, American Burn Association: Chicago, IL. P. 1-51.

[2] Grunwald, T.B. and Garner, W.L. Acute Burns. University of Southern California; Los Angeles County + USC Burn Center, Los Angeles, California.

[3] Dead matter cast off the surface of the skin after a burn.

[4] Tubal feeding through the intestine.

[5] Rose, D.D. and E.B. Jordan, Perioperative management of burn patients.  Aorn J, 1999. 69(6): p. 1211-22; quiz 1223-30.

[6] N., K. Aoki, and M. Yamazaki, Recent advances in the management of severely burned patients.  Nippon Geka Gakkai Zasshi, 1999. 100(7): p. 424-9.

[7] Thompson PB, Herndon DN, Taber DL, et al.  Effects of mortality of inhalation injury. J. Trauma 1986; 26:163-5.

[8] Threadlike projections from the free surface of epithelial cells such as those lining the trachea, or bronchi.  The propel or sweep materials, such as mucus or dust across a surface such as the respiratory tract.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[9] Pliable or fibrous material shed in various  pathological conditions, the product of effusion.  It is molded to the shape of the part in which it has been accumulated, i.e., bronchial or tracheal casts.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[10] Heparin is an aparenteral anticoagulant drug with a faster effect than warfarin or its derivatives.  It is composed of polysaccharides that inhibit coagulation by forming an antithrombin. An antithrombin is anything that prevents action on the thrombin.  The Thrombin is an enzyme formed in coagulating blood which reacts with soluble fibrinogen to form a blood clot.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[11] Acetylcystine is a chemical substance that, when nebulized and inhaled, liquefies mucus and pus.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[12] M.H. Desai, MD, R. Micak, RRT, RCP, J. Richardson, RCP, RRT, R. Nichols, MD, and D.N. Herndon, MD.  Reduction in Mortality in Pediatric Patients with Inhalation Injury with Aerosolized Heparin/Acetylcystiine Therapy.  University of Texas Medical Branch and Shriners Burns Institute, Galveston.  American Burn Association, 1998.

[13] Collapse of part (or, less commonly, all) of a lung.

[14] Minassian, A PhD; Kotay, A MS; Perry, W PhD; Tenenhaus, M MD, FACS; Potenza, B M. MD, FACS.  The Use of Virtual Reality for Acute Pain Management in Pediatric Burn Patients.  University of California San Diego, The American Burn Association, 2006.

[15] The Faces Pain Scale, also known as the Wong-Baker FACES Pain Rating Scale, is intended for children over three years of age.  It provides a series of six drawn facial expressions with an associated numerical value from zero through 5 representing the associated pain.  Hockenberry MJ, Wilson D:  Wong’s Essentials of Pediatric Nursing, 8th Edition. St. Louis:  2009: Mosby.

 

Loss of Consortium Law in Oregon and Evaluating Catastrophic Aviation Cases

Loss of consortium is a recognized cause of action in Oregon.  It is critical to have a thorough understanding of the permutations in the marital status of a couple involved in a catastrophic injury such as an aviation disaster where both death and/or serious injury are distinct possibilities.  Historically, verdicts for loss of consortium in Oregon have been relatively low, but each case is fact specific.  Previously, a verdict awarding damages for loss of consortium exceeding $1,000,000 was rare in Oregon.  However, in the last decade verdicts have become less regional in the United States, and the availability of a loss of consortium claim to a spouse and a loss of services claim to a child (a relative of the loss of consortium claim) can have significant impact on the overall verdict.  Loss of consortium claims can range upward of $2,000,000.00.

Children’s Loss of Services Claims

If a couple is not married, the children of that deceased couple may still have loss of services claims as beneficiaries under Oregon’s wrongful death statute.  A claim for loss of services is a category of uncapped economic damages stemming from the death of either parent.  The value of a loss of services claim is usually somewhat higher in cases where the deceased parent was the higher earner.

Parental Claims for Loss of Services of a Minor Child

The right of a parent to sue for an injury to his or her child arises out of the common law right of a master to sue for deprivation of the services of a servant.  Oregon codified this cause of action in ORS 30.010(1), which provides that: “A parent having custody of his or her child may maintain an action for the injury of the child.”

A claim for loss of services of a minor child is different than a wrongful death claim brought by a parent due to the death of a child.  Pursuant to ORS 30.010(2), “[a] parent may recover damages for the death of his or her child only under ORS 30.020 [the wrongful death statute].”

A parent’s claim for loss of services also allows damages for loss of society and companionship.  Beerbower v. State ex rel Or. Health Sci., 85 Or App 330, rev den, 303 Or 699 (1987).

Regarding defenses to such loss of services claims, the contributory fault of the child may bar an action by the parent for loss of services of the child.  See Boyd v. Portland Electric Co., 40 Or 126 (1901), overruled in part on other grounds by Ritchie v. Thomas, 190 Or 95 (1950).

No Wrongful Death Damages or Loss of Consortium for Unmarried Cohabitants

Suppose that, during an aviation disaster, one parent, the father, is killed and the mother of a child they have together is also killed.  If the couple was not married, the surviving female is not a beneficiary under the wrongful death statute.  In Ore-Ida Foods v. Gonzalez, 43 Or App 393 (1979), rev den, 288 Or 335 (1980), the court held that there could be no wrongful death recovery under ORS 30.020(1) (Oregon’s wrongful death statute) for unmarried cohabitants.

Additionally, although not completely settled under Oregon law, an action for loss of consortium appears to be limited to the marital relationship and does not apply to extramarital living arrangements.  The general concept under Oregon law that unmarried cohabitants are not entitled to loss of consortium goes all the way back to the lack of common law marriage in Oregon under Huard v. McTeigh, 113 Or 279 (1925).

The theory underlying a claim for loss of consortium is that, by virtue of marriage, a spouse receives certain benefits both tangible, as in material services, and intangible, such as companionship and affection, from the other spouse.  Accordingly, when one spouse is injured, the uninjured spouse may lose those benefits and is entitled to compensation.  Axen v. Am. Home Prods. Corp., 158 Or App 292, modified on other grounds by 160 Or App 19 (1999).  Since 1941, the Oregon legislature has granted to wives the same right to sue for loss of consortium as husbands previously had at common law.  ORS 108.010.  Ross v. Cuthbert, 239 Or 429 (1965).

Furthermore, as Justice O’Connell suggested in his dissent nearly 50 years ago in Ross v. Cuthbert, the courts do not particularly favor loss of consortium actions.  Id. at 441.

No Loss of Consortium for a Surviving Spouse 

If we change the aviation disaster case scenario above so that the two parents are legally married, and the husband dies in the aviation crash, his wife is probably not entitled to loss of consortium because the noneconomic damages that the wife is entitled to under Oregon’s wrongful death statute are, under Oregon law, enough to compensate her. Under Oregon law, loss of consortium is only available if the injured spouse is still alive because, in a death case, the personal representative is entitled to seek benefits for loss of society and companionship under the wrongful death statute.

Additionally, if death is instantaneous, no cause of action for loss of consortium arises.  Harp v. Montgomery Ward & Co., 223 F Supp 780 (D Or 1963).

Damages can be recovered for any suffering between the time of injury and the time of death.  However, even if the court were to theoretically allow the surviving spouse to proceed with a loss of consortium claim, assuming she is able to satisfy all conditions precedent, defense lawyers can argue that the surviving spouse’s claim (and child’s loss of services claim) would be subsumed and provided for under the wrongful death statute. Oregon’s wrongful death statute compensates “for pecuniary loss to the decedent’s estate”.  ORS 30.020(c).  It also compensates “the decedent’s spouse [and] children * * * for pecuniary loss and for loss of the society, companionship and services of the decedent.”  ORS 30.020(d).

If, however, the husband survives, and he and his wife are injured, they both have the right to bring a cause of action for loss of consortium and allege loss of society and comfort.  These are not available in the above scenario where the spouse dies because the permanent deprivation of society and companionship is fundamentally unavailable, as opposed to the temporary deprivation of society and comfort in an injury case where the spouse survived.

Comparative Fault as a Defense to Loss of Consortium Actions

Oregon’s comparative fault statute, ORS 31.600, may bar a loss of consortium claim (and the lawsuit as a whole) if the injured person’s fault is greater than the combined fault of the defendants.  ORS 31.600 provides that:

“Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant.  This section is not intended to create or abolish any defense.”

Conclusion

Aviation claims often involve catastrophic injuries.  They also often involve accidents where unmarried couples and family members were together when the injuries occurred.   In such cases, loss of consortium claims should be carefully evaluated.