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Multi-District Aviation Disaster Litigation after Air France 447

Multi-District Aviation Litigation (MDL) after Air France 447

Air France 447 was operated as a scheduled passenger flight from Rio de Janeiro, Brazil to Paris, France, when it crashed on June 1, 2009.  About three and one-half hours into the flight, the plane entered a high-altitude aerodynamic stall, from which it never recovered, and crashed into the Atlantic, killing all 228 passengers, cabin crew and aircrew.  The Airbus A330-203 was Air France’s newest A330 at the time of the crash, and had undergone a major overhaul on April 16, 2009.  It was the second and deadliest crash of an Airbus A330, causing a fair amount of aviation litigation activity.

The crash was investigated by France’s Bureau d’Enquêtes et d’Analyses pour la Sécurité de l’Aviation Civile (BEA), which released its final report on June 5, 2012.  The report concluded that the aircraft’s pitot tubes were obstructed by ice crystals.  The icing of the pitot tubes created inconsistent airspeed readings which automatically disconnected the autopilot.  The crew reacted improperly, placing the aircraft into an overly aggressive angle of attack, causing it to climb at such a steep angle that air passing over the wings failed to provide lift.  The aircraft remained at varying degrees of excessive pitch, and remained stalled during its entire three minute and thirty second descent from 38,000 feet despite the fact that engines ran at full power and were not defective.  It crashed into the Atlantic Ocean killing everyone on board.

For general information, see Interim and Final reports on the accident on 1 June 2009 to the Airbus A330-203 registered F-GZCP operated by Air France flight AF 447 Rio de Janeiro-Paris.  Paris: Bureau d’Enquêtes et d’Analyses pour la Sécurité de l’Aviation Civile (BEA), July 2, 2009, and July 5, 2012.

Fact Issues Framing Forum, Removal, MDL, The Montreal Convention, MMTJA, and FNC Considerations

In the typical aviation mass disaster where FNC and other considerations arise, the airline will be a foreign carrier.  The accident will have occurred outside the United States or its airspace.  The crash may involve a U.S. or foreign-manufactured aircraft.  The passengers may be from the U.S. or they may be foreign citizens, but the majority of plaintiffs will be foreign.  Component part manufacturers may be numerous and may be foreign or domestic.

The litigation arising from the AF 447 crash, which would become the multidistrict litigation known as In re:  Air Crash Over the Mid-Atlantic on June 1, 2009, Multidistrict Litigation No.3:10-MD 02144, involved all of these situational considerations.

The aircraft was manufactured by the French Company Airbus S.A.S., which sourced components using numerous suppliers from Europe and the United States.  The plane was equipped with two General Electric CF6-80E1A3 engines manufactured in the United States.

Among the 216 passengers were 126 men, 82 women and eight children, including 1 infant.  There were twelve crew members on board.  Due to the thirteen hour length of the flight, there were three pilots on board taking staggered rest periods.  At the time the plane entered the stall, the pilot in command was on a rest period in a cabin behind the cockpit.  Of the twelve crew members, eleven were French and one was Brazilian.  There were passengers and crew representing thirty-three nationalities, including two Americans.  The vast majority were French, Brazilian and German.

In March, 2010 the first twenty-three wrongful death lawsuits were filed against Airbus, the French manufacturer of the pitot tubes and several U.S. component- part suppliers in the United States District Court for the Southern District of Florida.  The component part suppliers included Thales, the French manufacturer of the pitot tubes, as well as U.S.-based component part manufacturers including Intel, G.E., Rockwell, Motorola, Honeywell, du Pont and others.

Other wrongful death lawsuits were filed in U.S. District Courts in Texas, Illinois and California.

Wrongful death lawsuits filed by relatives of the Americans were filed in Houston.  Due to the provisions of the Montreal Convention, which prevented the foreign plaintiffs from suing Air France in the United States, these were the only two lawsuits directly naming Air France as a defendant.

General Principles of Forum Non Conveniens

Principles for application of the FNC doctrine of a supervening venue provision which provides for dismissal to an adequate alternative forum are well established in the United States.  In Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), the Supreme Court made clear that defendant has the burden of proving both that an adequate alternative forum is available to plaintiffs and that the balance of private- and public-interest factors weigh in favor of litigation in the alternative foreign forum.

The Piper litigation arose from the crash of a Piper Aztec in the Scottish Highlands in July, 1975.  The crash killed the pilot and five passengers.  The twin-engine light utility plane was manufactured by Piper Aircraft in Pennsylvania, and fitted with Hartzell propellers manufactured in Ohio.  The plane was operated by a British sky taxi service.  The investigation by the British government after the crash found no evidence of any product defects.

Reyno, a legal secretary for the attorney filing lawsuits on behalf of the deceased passengers, was appointed administratrix of the estates.  After Reyno filed negligence and strict product liability lawsuits in a California state court, Piper removed based on diversity jurisdiction and obtained a 28 U.S.C. § 1404(a) transfer to the Middle District of Pennsylvania based on Piper’s substantial business in that district.  Hartzell moved to dismiss, or for transfer under 28 U.S.C. §1631 based on the conduct of business between Piper and Hartzell.

Both defendants then sought dismissal based on forum non conveniens.  The district court, relying on the test in Gulf Oil v Gilbert, 330 U.S. 501 (1947), granted the motions, but the Third Circuit reversed, holding that FNC dismissals are not proper when the law of the alternative forum is less favorable to the plaintiff.  The Supreme Court reversed, upholding the district court’s dismissal to Scotland based on FNC.

The Court noted that strict liability was not available as a cause of action in Scotland.

The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.

454 U.S. 235, 247.

Factors in the Supreme Court’s decision about the adequacy of an alternative forum include whether the forum has jurisdiction over all of the parties to the action, and, a different, or even lesser remedy is sufficient.

We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice.  In these cases, however, the remedies that would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly.

454 U.S. 235, 254-55.

After analysis of an adequate alternative forum, the analysis requires balancing of the parties’ private interests and the public interests of the forum.  Private interests generally include relative access to the proof, availability of compulsory process to obtain witness testimony, cost, and the typically numerous practical considerations to make trial easy, efficient and less costly.  Public interests include the resolution of local controversies on a local level, familiarity with governing law, and avoiding choice of law and conflicts.  454 U.S. 235, 242-43.

For FNC cases of general interest, see also Faat v. Honeywell Int’l, Inc., 2005 WL 2475701 (D.N.J. 2005) (example of foreign air disaster case with fact elements typical of case ripe for FNC dismissal); Blanco v Banco Indus. De Venezuela, S.A., 997 F.2d 974 (2d Cir. 1993) (forum adequate when procedures dissimilar); De Melo v. Lederle Labs., 801 F.2d 1058 (8th Cir. 1986) (alternative forum suitable if no punitive damages); Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764 (9th Cir. 1991) (FNC may still be suitable forum if no right to jury trial); Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) (factors in FNC); Piere-Louis v Newvac Corp., 584 F.3d 102 (11th Cir. 2009) (holding FNC is procedural); Chubb Ins. Co. of Europe v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023 (9th Cir. 2011) (discussing third-party actions in FNC cases); King v Cessna Aircraft Co., 2008 WL 276015 (S.D. Fla. 2008) (dismissal of foreign v U.S. passengers); Clerides v. Boeing Co., 534 F.3d 623 (7th Cir. 2008) (dismissal of foreign v U.S. passengers); Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983) (dismissal of foreign v U.S. passengers).

The Montreal Convention

The Montreal Convention of 1999 is critical to any consideration of FNC in an aviation disaster.  The Convention was ratified by the United States in September, 2003, and went into effect in November 2003.  The 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).

The Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.”  Id. at Article 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.  In light of the holding in Tseng, 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 FNC motions, Article 33 of the 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 principle 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.  The principal and permanent residence is the “one fixed and permanent abode of the passenger at the time of the accident”.  Article 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 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 of 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.  Article 33 § 3(a).

Defendants’ Motion To Dismiss on the Basis of FNC in AF 447

After the AF 447 actions were consolidated in the Northern District of California, Judge Charles Breyer dismissed all cases to France based on FNC.  Judge Breyer performed a detailed FNC analysis and concluded that France was an adequate alternative forum, whatever its pacing may be, and that the balancing of private litigant and public interests dictated dismissal was proper.  In re Air Crash Over Mid-Atlantic, 760 F. Supp. 2d 832 (N.D. Cal. 2010).

Judge Breyer noted at the outset, that nothing in the Montreal Convention suggests that the doctrine of forum non conveniens should not apply, and noted that the Montreal Convention is the “exclusive basis for a lawsuit against an air carrier for injuries arising out of international transportation.”  Id., at 835, citing, Kruger v United Airlines, Inc., 481 F. Supp. 2d 1005, 1008 (N.D. Cal. 2007).  Judge Breyer then noted that the party moving to dismiss based on FNC bears the burden of showing that there is an adequate alternative forum and that the balance of private and public interest factors favors dismissal.  Id. at 839 (citing Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142-43 (9th Cir. 2001)).

In Hosaka v. United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 1992), the court ruled that the Warsaw Convention was a constructive override to a court’s discretionary authority to consider a motion to dismiss based on FNC.  Judge Breyer rejected the Hosaka court conclusion that the Warsaw Convention was a constructive override to a court’s discretionary authority to consider a motion to dismiss based on forum non conveniens.  760 F. Supp. 2d 832 at 839-840 (citing Hosaka v. United Airlines, Inc., 305 F.3d 989, 993 (9th Cir. 2002)).  Noting the Montreal Convention’s more recent ratification and the position taken by the United States during treaty negotiations supporting forum non conveniens dismissal, Judge Breyer followed the rationale of the courts that have applied the forum non conveniens doctrine in the context of a Montreal Convention case.  See Pierre-Louis v. Newvac, 584 F.3d 1052 (11th Cir. 2009), aff’g sub nom. In re West Caribbean Airways, S.A., 619 F. Supp. 2d 1299 (S.D. Fla. 2007).

As to the elements of FNC, the court found that plaintiffs did “not really contend” that France was an alternative forum, but focused on the assertion that France’s court system is slower and could take several years to conclude complex matters.  760 F. Supp. 2d. at 842.  Therefore, France was an adequate alternative forum.

The Court noted that the private interest factors weighed heavily in favor of dismissal.  The official accident investigation and a criminal investigation were being conducted in France, the physical evidence was in France, defendants had agreed to produce discovery in France, there was no dispute that Air France could be sued in France, and there was “the ability to bring parties together in France in a procedurally sensible fashion “ which would make the trial easier, more expeditious and less expensive.  Id. at 844.

Public interest factors also weighed heavily toward dismissal.  Judge Breyer, citing the public interest factors outlined in Piper and Leuck, reasoned that France was more interested in the litigation than the U.S.  There was a plurality of French citizens on a French flight with a French destination.  Although the rights of the two Americans were legitimate, they were less significant than French interests.  Air France could also be sued directly in France, avoiding “tension” with the Montreal Convention created by the manufacturing defendants attempts to sue Air France as a third-party.  A French forum would also avoid the prospect of U.S. courts having to apply French law.  Judge Breyer also noted that the cases could create unnecessary burdens on the federal judiciary.  Finally, the court stated that the deference to be afforded the U.S. plaintiffs’ choice of forum “does not and cannot” prevent the court from dismissing the case to the adequate alternate forum of France.  Id. at 846-47.

Plaintiffs May Not Create An Unavailable Forum

After Judge Breyer denied plaintiffs’ motion for reconsideration, some of the plaintiffs dismissed the French defendants and refiled, without any substantial change in the facts.  Eight of the U.S. component part manufacturers moved to dismiss two refiled lawsuits.  Judge Breyer agreed with defendants that plaintiffs had created the forum uncertainty, and could not make France an unavailable forum simply by dismissing the French defendants.  Judge Breyer also found that the mere fact that precisely the same lawsuit could not be heard in France did not make France an unavailable forum.  He again dismissed based on the basis of FNC.  In re Air Crash Over Mid-Atlantic, 792 F. Supp. 2d 1090 (N.D. Cal. 2011).

Judge Breyer reasoned that although plaintiffs had freedom to craft their own complaints as they wish, that did not prevent dismissal based on the prior FNC Order, when plaintiffs engaged in pleading practices designed to defeat jurisdiction in the foreign forum and circumvent the order.  Plaintiffs’ good faith and transparency with the court and opposing parties about their desire not to litigate in France was not the test for whether dismissal was appropriate.  Id. at 1096-97.

“Plaintiffs’ argument that, as a general matter, they are free to frame their complaints as they wish ignores entirely the fact that forum non conveniens is by its nature a doctrine that limits plaintiffs’ choices,” Judge Breyer ruled. “Indeed, plaintiffs cite no forum non conveniens cases condoning a post-dismissal refiling designed to make the foreign forum unavailable by omitting the parties necessary to establish jurisdiction abroad. Nor is the court aware of any such authority.”

Id. at 1097.

Judge Breyer also noted that the plaintiffs’ concern that since an FNC dismissal would conditionally obligate them to agree to French jurisdiction, plaintiffs could be without a remedy if the case was dismissed in France.  Judge Breyer ruled that dismissal sua sponte by a French court was not supported by sufficient authority, and denied plaintiffs’ request to return to the United States if the case was dismissed in France.

State Courts May Have Varying Standards for Dismissal Based on Forum Non Conveniens

While most states recognize the doctrine of forum non conveniens, some states may have only incorporated the doctrine into common law recently.  States may also have differing standards for analyzing whether there is an adequate alternative forum and whether the balancing of the private- and public-interest considerations dictates stay or dismissal based on forum non conveniens.

The state most recently incorporating the doctrine of forum non conveniens into state law is Oregon.  On April 16, 2016, the Oregon Supreme Court ruled for the first time that Oregon law included the doctrine of forum non conveniens.  Espinoza v Evergreen Helicopters, Inc., 359 Or. 63 (2016).  The opinion illustrates how state standards for dismissal based on forum non conveniens vary, even though most state courts generally adhere to the framework generally set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) and discussed in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) and cases since.

On March 11, 2008, a 2007 Bell 412EP (N417EV) crashed into remote mountainous terrain near Santa Cruz, Cajamarca, Peru.  The United States certificated airline transport pilot, the Peruvian provisional co-pilot and eight Peruvian miners were killed by impact forces and a post-crash fire.   The helicopter was owned by Evergreen Helicopters, Inc., and leased to Helinka S.A.C., a Peruvian commercial aviation services provider.  Evergreen provided the helicopter, pilots, mechanics, parts, and an on-site contract administrator.  The helicopter was operating on a company visual flight rules flight plan under Peruvian flight regulations.

The accident was investigated by the Peruvian government.  See Informe Final, CIAA-ACCID-005-2008 “Accidente del helicoptero Bell 412EP, de matricula N417EV, operado por la compañía HELINKA SAC, ocurrido el 11 de marzo de 2008, en el Cerro La Cárcel, Distrito de Catache, Provincia de Santa Cruz, Departamento de Cajamarca”, Ministerio de Transportes y Communicaciónes, Comisión de Investigación de Accidentes de Aviación.  http://www.mtc.gob.pe/transportes/aeronautica_civil/ciaa/ciaa.html.  (Last visited 4/27/16).

In its motion to dismiss wrongful death lawsuits filed by relatives of the deceased Peruvian miners, Evergreen argued:

  • The majority of evidence was in Peru.
  • Third-party witnesses were in Peru.
  • A crash site view would only be possible in Peru.
  • There were practical difficulties in Oregon such as a need for interpreters.
  • Evergreen would be unable to implead Helinka as a third-party defendant in Oregon.
  • The crash occurred in Peru, plaintiffs were Peruvian nationals, and Peru had the strongest interest in the controversy.

In response, plaintiffs argued:

  • The doctrine of forum non conveniens had never been expressly recognized in Oregon.
  • Oregon courts are barred from dismissing an action based on forum non conveniens whenever there is jurisdiction and venue in Oregon.
  • Evergreen was headquartered and had its principal place of business in Oregon and substantial evidence was located in Oregon.
  • A factor in the cause of the crash may have been defects in avionics installed by Evergreen in Oregon.

359 Or. at 71-72.

The trial judge granted Evergreen’s motion to dismiss based on forum non conveniens.  The Oregon Court of Appeals reversed, based in part on the trial court’s failure to make sufficient findings on the availability of evidence in Peru.

The Oregon Supreme Court granted Evergreen’s petition for review and considered two issues: (1) whether the doctrine of forum non conveniens is available under Oregon law, and (2) what standards guide its application.

Plaintiffs argued that the doctrine of forum non conveniens should be rejected entirely, contending its origin was “dubious” and that it “is a parochial, xenophobic and outcome-determinative doctrine that permits reverse forum shopping by powerful corporations seeking to altogether avoid accountability in their home forum for transnational torts.”  359 Or. at 76.

Evergreen argued (in part) that the Oregon Court of Appeals gave too much deference to plaintiffs’ choice of Oregon as their chosen forum.  In support of its argument, Evergreen relied on the holding in Piper Aircraft Co., that the ordinary presumption in favor of the plaintiff’s forum choice applies with less force where the plaintiff is not a resident of that forum.  359 Or. at 75 (citations omitted).

The Oregon Supreme Court rejected Evergreen’s argument and agreed with the Washington Supreme Court that there “is no principled reason to vary the degree of deference afforded to the plaintiff’s choice of forum…we defer to a plaintiff’s choice…because it is the plaintiff’s right to choose from those forums that are available to it.”  359 Or. at 105.

The court ruled that the trial judge did not err when it found that Peru was an adequate alternative forum.  However, the court was critical of the trial judge for ruling that a trial in Peru would “best serve” the convenience of the parties.  The court concluded that the trial judge applied the “wrong substantive standard” and abused its discretion when it ruled that a trial in Peru would be “more convenient” rather than “so inconvenient as to be contrary to the ends of justice”.  359 Or. at 119-120.

The Oregon Supreme Court adopted a strict standard, ruling that a trial court may dismiss an action based on forum non conveniens only when

“…the relevant private-and public-interest considerations weigh so heavily in favor of litigating in that alternative form that it would be contrary to the ends of justice to allow the action to proceed in the plaintiff’s chosen forum.”

359 Or. at 102.

Multidistrict Litigation

  • MDL statute, 28 U.S.C. § 1407 enacted in 1968
  • Statute provides in part that “[w]hen civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated proceedings”
  • Transfers made by JPML for “convenience of parties and witnesses and will promote the just and efficient conduct of such actions”
  • Each action transferred remanded to transferor court for trial
  • Transferee forum governs procedural issues
  • Transferor court governs substantive issues
  • JPML consists of seven circuit and district judges, no two from same circuit.
  • Concurrence of four JPML members needed for any action
  • JPML may separate any claim, cross-claim, counter-claim, or third-party claim and remand any claims before remainder of the action is remanded.
  • No discretion to transferee court to remand for trial. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998)
  • No authorities for identification of transferee court in aviation disaster or other mass torts

JPML may consider:

  • Convenience of parties and witnesses
  • Accident location
  • Experience, suitability and caseload of transferee district
  • Location of evidence
  • Existence of related cases in transferee court
  • Location and convenience of counsel
  • Potential number of tag-along cases.

MDL Consolidation Distinguished from 1404(a) Transfer

Transfer pursuant to 28 U.S.C. § 1407 must be distinguished from transfer under 28 U.S.C. § 1404(a), which provides:

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”

Section 1404(a), enacted in 1948, provides no standard for measuring convenience in mass tort cases, but the statute was enacted to allow the most convenience to the greatest number of parties, and was drafted and enacted in accordance with the principles of forum non-convenience.  Yale M. Lyman, Factors of Choice for Venue Transfer under 28 U.S.C. 1404(a), 41 Cal. L. Rev. 507 (1953).

  • Parties more likely to obtain 1404(a) transfer if negotiated
  • Remand to transferor district for trial not required
  • Parties may seek 1404(a) transfer if formation of MDL appears imminent for trial in transferee court
  • Provides for transfer to different division in same district court

Considerations in Parallel State and Federal Cases and When the Government is a Party

Aviation accidents which give rise to parallel state and federal court cases present special challenges.  These include a danger of inconsistent rulings, difficulty coordinating discovery in forums with different procedures and scope of discovery, different experience with federal agencies, and addressing ambiguities over whether a particular issue is substantive or procedural.  See In re Helicopter Crash Near Weaverville, California, 8/5/08  MDL Case No. 3:09-md-2053(Mo) D. Or.; William Henry Coultas, individually, and his wife, Christina Coultas, individually, v. General Electric Company, Multnomah County Circuit Court Case No. 1002-02743; Estate of Roark Schwanenberg v General Electric Company, Multnomah County Circuit Court Case No. 1002-02742.

On August 5, 2008, a Sikorsky S-61N model helicopter crashed in the Trinity Alps National Forest in northern California while transporting firefighters pursuant to a contract between Carson Helicopters and the U.S. Forest Service.  The pilot, a USFS inspector-pilot, and seven contractor-employed firefighters were killed.  The copilot and three firefighters were seriously injured.    The helicopter was designed and manufactured by Sikorsky Aircraft Corporation.  It was nearly 40 years old and had flown well over 30,000 hours.  It was powered by two CT58-140-1 model engines designed and manufactured by GE.  A third-party manufactured the fuel control units on the engines.  The crux of plaintiffs’ complaints was that the pressure regulating valve in the fuel control unit was defectively designed and manufactured, causing a loss of power on the takeoff ascent and a crash seconds later.

NTSB investigators produced over 3,500 pages of data, including more than a dozen factual reports. The NTSB staff investigation found that Carson (1) intentionally understated the helicopter’s empty weight, (2) altered the power available chart to exaggerate the helicopter’s lift capability, and (3) used unapproved above-minimum specification torque in performance calculations.  It also found that the helicopter had been topping on its two prior flights, and it had just refueled before the crash flight, taking on additional weight.  NTSB staff investigation found that the flight crew failed to appreciate and address the prior approaches to the helicopter’s maximum performance capability.  NTSB staff investigators also found that the helicopter was at least 1,000 pounds overweight.

Lawsuits were filed by the injured firefighters and families of the deceased in federal courts in Connecticut, California and Oregon.  In June 2009, the cases were consolidated into an MDL in the District of Oregon.  Carson filed third-party complaints against the United States.  Lawsuits filed on behalf of the pilots in Oregon state court were removed by defendants pursuant to 28 U.S.C. §1331 on the basis that federal questions arose regarding the USFS’ effective status as operator of the flight pursuant to an exclusive use contract and the federal Interagency Helicopter Operations Guide.  Defendants also argued that additional federal questions arose pursuant to FAA rules and regulations and NTSB operations.   The court rejected defendants’ arguments that the federal agencies actions were necessarily at the center of a federal question as required by Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005).  The pilot cases were then remanded to state court.

The MDL included lawsuits filed by and on behalf of the ten injured and deceased firefighters, Carson’s workers’ compensation carrier, and the Estate of the deceased inspector pilot.  In addition, Estate of the deceased PIC and co-pilot obtained permission to intervene into the federal actions although their state court actions were also pending.

Defendants denied Plaintiffs’ allegations and contended that the engines received ample fuel flow during the takeoff on the final flight.  Consistent with the findings of NTSB staff investigators, defendants argued that the helicopter crashed because Carson gave the pilots and the USFS erroneous weight and takeoff power available charts that significantly understated the helicopter’s weight and overstated its load carrying capacity.  Defendants also argued, consistent with NTSB staff factual reports, that the flight crew failed to appreciate and address the helicopter’s arrival at maximum performance capability on the two prior flights.  The state court judge excluded the entire NTSB fact record except for two short laboratory reports.

Two years after the lengthy civil trial in state court, two former Carson employees pleaded guilty to federal conspiracy and other charges arising from the intentional falsification of the weight and takeoff power available charts and were each sentenced to lengthy prison terms.

Considerations for Aviation Disasters with parallel MDL and State Court Cases

  • Coordination of separate discovery procedure and scope in separate forums
  • Binding authority/ conflicting rulings
  • Differing interpretations of substantive and procedural law
  • Relative familiarity of state court judges with federal agencies and aviation, FAA, DOT, NTSB
  • Relative familiarity of state court judges with federal statutes, e. GARA
  • Vastly differing jury selection methods and scope
  • Experts
  • Certification of questions of law
  • Claims or defenses available to the government

Pretrial Choice of Law Issues

  • Choice of law statutes in multiple states
  • Cafeteria plan approach to COL on each issue
  • Availability of punitive damages
  • Wrongful death statutes
  • Statutes of limitation and repose
  • Noneconomic damages caps
  • Comparative fault
  • Allocation of fault to settled parties

The Multiparty, Multiforum Trial Jurisdiction Act

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 addressed only aviation related cases.  In 2002, the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA) was enacted to create greater efficiency in the federal system.  The MMTJA grants district courts original jurisdiction where minimal jurisdiction requirements are met, and in which the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location”.  The permissible lawsuits include both wrongful death and personal injury.

The first case arising under the MMTJA was the Rhode Island Station nightclub fire 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  MTJA statute, 28 U.S.C. § 1369, widely broadens federal jurisdiction in mass disaster cases, and provides that the district courts will have original jurisdiction where:

  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 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.

A recent case addressed the MMTJA in the context of an aviation disaster.  On December 30, 2015, the U.S. District Court for the Northern District of Illinois granted the French company Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.  Siswanto, et. al. v. Airbus S.A.S., 2015 WL 9489952.  The case was brought under the Multiparty Multiforum Trial Jurisdiction Act of 2002 (“MMTJA”).  The court reasoned that since the case was brought under the MMTJA, Fed. R. Civ. P. 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 the state of Illinois.  However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the Court’s exercise of personal jurisdiction.

The case arose from a December 28, 2014 crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore.  The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus.

There was no dispute that Airbus was incorporated and had its principal place of business in France.  For at least the past five years, Airbus had not maintained any offices or employees in the U.S. or owned or rented property in the U.S.  All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the U.S. undertook this work.  The A320-216 had been issued a Type Certificate by the European Safety Agency but not the FAA.  The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the U.S. and the aircraft had never been flown in the U.S.

Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause.  Plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’ extensive contacts with the United States as a whole.  The court noted that the traditional “minimum contacts” test from International Shoe still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process.  KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730-31 (7th Cir. 2013) (citations omitted).

In KM Enterprises, the court reasoned that when a federal statute authorizes nationwide service of process, the scope of the minimum contacts test exceeds the forum state’s long-arm statute, and requires “continuous and systematic general business contact” such that Airbus is “essentially at home in the forum, the U.S., not just the State of Illinois.”  See also, Abelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012) (citations omitted).

Strategic Considerations Framing Forum, Removal, MDL, The Montreal Convention, MMTJA, and FNC Considerations

  • State or federal forum.
  • JPML may or may not consider wishes of transferor court in retaining case for pre-trial purposes.
  • May require transferee court to sort through multiple choice-of-law conflicts.
  • Impact on FNC motions.
  • Removal under 28 U.S.C. § 1369 or 28 U.S.C. § 1332.
  • Are related actions removable.
  • Government contracts.
  • Governments as parties, particular government agency considerations.
  • Parallel state court actions may complicate discovery, allow multiple bites at the apple.
  • In aviation cases, if no statute of limitations issues, some actions such as hull cases may be filed after all other cases resolved or tried. JPML may or may not transfer.  See, e.g., In re Helicopter Crash Near Wendell Creek, British Columbia, on August 8, 2002, Multidistrict Litigation No. 3:04MD 1694 (SRU) (D.CT.).
  • Choice of law.
  • S. code-share carrier and defendants.
  • Federal court judges much more familiar with relevant federal agencies, NTSB, FAA, and DOT which may have significant impact of discovery.
  • Plaintiff-friendly jurisdictions/likelihood of removal.
  • Relative objective strength of liability arguments.
  • Personal jurisdiction.
  • Montreal Convention specified remedies and potential impact on FNC motions.
  • Third-party actions, and whether governed by Montreal Convention see, e.g., In re Air Crash Near Nantucket Island, Mass, 340 F. Supp. 2d 240 (E.D.N.Y. 2004).
  • Whether a foreign air carrier is a target defendant.

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Dog bites, Personal Injury, Scott Brooksby, Service animals

Service animal dog bites passenger on commercial flight

Service animal dog bites are becoming more common.  Recently, a trial court in Spokane dealt with a service dog bite on a commercial flight.  The following is from Scott Brooksby’s article in the American Bar Association’s Mass Torts Practice Points, March 31, 2016:

Court Holds ACAA Preempts Passenger Claim Arising From Service Dog Bite

A recent Washington state trial court opinion held that federal field preemption under the Air Carrier Access Act (ACAA) preempts state-law tort claims arising from a service-dog bite that caused injuries to another passenger on a commercial flight. Sullivan v Alaska Air Group Inc., No. 15-02-00227 (Spokane Cnty. Feb. 29, 2016).

In Sullivan, the plaintiff was a passenger on a Horizon Air flight from Seattle to Spokane. On the same flight, defendant Wenzel was accompanied by his Rottweiler service animal. Wenzel and the dog were initially seated in the rear of the plane, but were moved to the front to better accommodate the size of the animal. On arrival, the service animal allegedly bit the palm of the plaintiff as she disembarked.

The plaintiff brought state-law negligence claims and contended that the airline had a duty to protect her from the harm caused by the service animal, and that the animal posed a foreseeable risk. Horizon Air argued that the ACAA preempts the plaintiff’s claims, either through conflict or field preemption. Horizon argued that the FAA has been empowered by Congress to promulgate rules and regulations in regard to airline safety and rules that should be afforded to passengers who may have need of a service animal. The airline argued that the rules and regulations establish a national standard that completely covers the issue of service animals on airplanes, and, therefore, the national standard preempts any state-law tort claim that would undermine the ACAA.

Washington state courts previously held that Congress may preempt local law where the federal government intended to exclusively occupy a field. Campbell v. Dep’t of Soc. & Health Servs., 83 P.3d 999, 1009 (Wash. 2004). The court also relied on a Ninth Circuit holding that under the ACAA, the secretary of transportation is authorized to promulgate rules governing air commerce and safety, and, pursuant to that authorization, the Department of Transportation has issued “detailed requirements that airlines must meet to comply with the ACAA.” Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1000 (9th Cir. 2013).

The regulations state in part that a carrier must permit a service animal to accompany a passenger with a disability to any seat as long as the animal is not precluded (too large, poses a direct threat to health and safety of others, or would cause a significant disruption of service by doing so). 14 C.F.R. § 382.117. If the animal is not precluded, the carrier must permit the animal to ride in the cabin. Therefore, the airline had a duty to do two things: (1) establish that the animal is in fact a service animal; (2) determine if the animal presents either a direct threat to the health and safety of others or a significant threat to the disruption of airline service. Thus the ACAA establishes the standard of care that Horizon Air owed the plaintiff and preempts any different or higher standard of care that may exist under Washington law. See Gilstrap, 709 F.3d at 1007.

The defendant dog owner assured Horizon that he was aware of the airline’s rules regarding service animals, which stated in part, that the owner must show evidence, either through a type of harness or markings on the harness or other credible assurances that the animal is a service animal. The dog was wearing a harness indicating that it was a service animal. The owner also established that the animal had flown on Horizon or its partners 12 times since 2009 without any incident. The court held that taken together, these facts established that Horizon fulfilled its duty to determine that the animal was a service animal and based on past experience would not disrupt the flight.

The court found that airline passenger safety as it relates to service animals was pervasively regulated by the ACAA, and concluded that the federal statutes and regulation preempt any applicable state standards of care. See 14 C.F.R. § 382.117. The court concluded that because Horizon Air had fulfilled its duties through compliance with the pervasive regulations of the ACAA, it was entitled to summary judgment.

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Personal Injury, Product Liability, Scott Brooksby

Lasers on the ground pose a threat to aviation safety

Airplane wing

Laser beams on the ground pose a danger to aircraft — this is a serious issue that is well-known to commercial airline pilots.  The following is from Scott Brooksby’s article,  “Aircraft Laser Incidents: A Clear and Present Danger to Aviation Safety” published in the American Bar Association’s Mass Torts Practice Points on June 22, 2015:

Reports of aircraft targeting with handheld ground lasers have been rising sharply. In 2005, there were 300 reported incidents. By 2014, there were 3,894 reported incidents. Exposure to laser illumination may cause hazardous effects to pilots, such as pain, distraction or disorientation, loss of depth perception, and aborted landings.

The increase in reports of ground-based lasers targeting flying aircraft may be due to a number of factors, including the increased availability of inexpensive laser devices on the Internet, higher-power lasers that can strike aircraft at higher altitudes, and increased reporting by flight crews. Regulatory power for laser-light products is delegated to the FDA, and its regulations are found at 21 C.F.R. § 1010.

While some jurisdictions have made interdiction efforts using helicopters and other improved tracking methods, catching laser offenders is difficult. The devices are small, and when extinguished can be easily concealed and the location of the user can be in sparsely populated areas. To respond to the increasing attacks, the FAA launched the Laser Safety Initiative, which provides education on laser hazards and events, news, law, and civil penalties, and encourages reporting.

The latest reports indicate that aircraft illuminations by handheld lasers are overwhelmingly green, as opposed to the previously common red. This is significant because they are 35 times brighter than red, and the wavelength of green lasers is close to the eye’s peak sensitivity when they are dark-adapted. FAA flight simulation studies have shown that the adverse visual effects from laser exposure are especially debilitating when the eyes are adapted to the low-light level of a cockpit at night.

Restricted airspace surrounding commercial airports, in particular, can provide federal, state and/or local criminal penalties for violation with a laser, even if the operator is not operating the laser within the space, but merely causes the beam to intersect the controlled airspace to target an aircraft. In the United States, laser-airspace guidelines can be found in FAA Order JO 7400.2 (Revision “G” as of April 2008). Although it is far beyond the scope of this note, Chapter 29 of the order provides a comprehensive overview of the FAA’s laser guidelines.

In 2011, the FAA announced plans to impose civil penalties against people who point a laser into the cockpit of an aircraft. The FAA released a legal interpretation that concluded that directing a laser bean into an aircraft cockpit could interfere with a flight crew performing its duties while operating an aircraft, a violation of FAA regulations. The legal interpretation includes an analysis of 14 C.F.R. § 91.11, which establishes that “[n]o person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.”

14 C.F.R. § 91.11 had initially been adopted in response to hijackings. However, the FAA legal interpretation concluded that nothing in the regulation specified that the person interfering must be on the airplane. Previously, the FAA had taken enforcement action only against passengers on board the aircraft that interfere with crewmembers. The maximum civil penalty is $11,000. By June 2012, the FAA had initiated 28 enforcement actions.

On February 14, 2012, President Obama signed Public Law 112-95. The FAA Modernization and Reform Act of 2012, section 311, amended Title 18 of the United States Code (U.S.C) Chapter 2 § 39, by adding section 39A, which makes it a federal crime to aim a laser pointer at an aircraft.

The unprecedented escalation in the number of recent aviation laser incidents, coupled with more powerful lasers, wide and easy availability of lasers, the increasingly bold use and difficulties with interdiction, all pose problems. The undisputed evidence that lasers pose a danger to flight crews suggests that a tragic accident may only be a matter of time.

Damages, Defective Products, Litigation, Loss of Consortium, Personal Injury, Product Liability

Economic Losses and Loss of Consortium Claims in Oregon Product Liability Cases

Economic Loss is Not Available in Oregon in Strict Product Liability Cases

The recovery of economic loss such as lost profits or lost sales is not recoverable in Oregon in product liability actions where strict liability is alleged.  In Brown v. Western Farmers Assoc., 268 Or 470, 480 (1974), the Oregon Supreme Court held that strict product liability was not designed or intended to offer a remedy for such commercial aspirations as sales and profits.  Oregon is a physical injury state and the Oregon appellate courts have uniformly held that strict liability is not a remedy for purely economic loss in the absence of a physical injury to persons or property.  Russell v. Deere & Co., 186 Or App 78, 84-85 (2003).

Lost Income to a Spouse Who Cares for an Injured Spouse is Not Recoverable as Part of a Loss of Consortium Claim in a Product Liability Action

It should also be noted that a spouse is not entitled to recover for lost income sustained as a result of having to care for her injured spouse as part of a claim for loss of consortium.  Axen v. American Home Products Corp., 158 Or App 292, 309-311, adh’d to on recons, 160 Or App 19 (1999).  In Axen, a husband and wife brought a strict product liability claim for injuries to the husband allegedly caused by a prescription drug.  The husband and wife alleged that the husband’s use of the drug Cordarone caused a loss of vision.  The wife argued that she was forced to take an early retirement in order to care for her husband and as a result, lost retirement benefits of $436,392.00.  The jury awarded the wife nearly one million dollars for loss of consortium.  The Oregon Court of Appeals reversed the wife’s award of economic damages.  The court stated it would adhere to the “traditional rule” that lost income is not a proper subject of a damage award for loss of consortium.  Id. at 311.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Manufacturing, Metals, Personal Injury

Turbine Engine Hot Section Manufacturing: Complex Metallurgy and Dangerous Work Environments

Turbine engine hot section manufacturing is a complex industry that involves risk of serious injury and an adherence to safety rules and best practices.

There is a common maxim that two technologies liberated the modern world: the automatic washing machine and the jet engine.  When RAF Lieutenant Frank Whittle received an English patent on the basic design for the modern jet engine in 1930 (the first flight was not until 1941), he probably could not have imagined the changes that would occur, in materials, complexity, and performance capability.

Today’s commercial jet engines have as many as 25,000 parts.  They are up to eleven feet in diameter and twelve feet long.  The engines can weigh more than 10,000 pounds and produce 100,000 pounds of thrust.  Even the engine on a fully tested and approved design may take two years to assemble.  A super-jumbo jet can carry 500-800 passengers, depending on configuration, and have a take-off weight of 1.2 million pounds.

Section I will provide a basic overview of the production and metallurgical complexities associated with the manufacture of some hot section components.  Section II will address a unique aspect of jet hot section manufacturing.  Specifically, the complex and exacting standards required to avoid catastrophic in-flight aviation accidents also require the most disciplined adherence to best practices for safety to avoid catastrophic occupational injury, particularly burns, in high temperature work environments.  Section III will briefly discuss the catastrophic burn injuries that result from failure to follow exacting safety precautions.

Section I:  The Hot Section

At the front of the engine, a fan drives air into the engine’s first compartment, the compressor, a space approximately 20 times smaller than the first stage of the compressor.   As the air leaves the high-pressure compressor and enters the combustor, it mixes with fuel and is burned.  As the gas is combusted and expands, some gas passes through the exhaust and some is rerouted to the engine’s turbine (a set of fans that rotate compressor blades).  The turbine extracts energy from the ultra-hot gases to power the compressor shaft and generate power.

Because the turbine is subject to such incredible heat, labyrinthine airways in the turbine blades allow cool air to pass through them to cool the turbine.  With the cooling mechanism of the airstream, the turbine can function in gas streams where the temperature is higher than the melting point of the alloy from which the turbine is made.

Titanium, purified to aviation specifications in the 1950s, is used for the most critical components of the “hot section” such as the combustion chamber and turbine.  The hardness of titanium is difficult to work with, but it is resistant to extreme heat.  It is often alloyed with other metals such as nickel and aluminum for high strength/weight ratios.

Hot Section Component Manufacturing

The intake fan.  The fan must be strong so it does not fracture if large birds or debris are sucked in.  It is made of a titanium alloy.  Each fan blade consists of two skins produced by shaping molten titanium in a hot press.  Each blade skin is welded to a mate, with a hollow cavity in the center being filled with titanium honeycomb.

The compressor disc. This is a solid core, resembling a notched wheel, to which the compressor blades are attached.  It must be free of even minute imperfections, since these could cause creeping or develop into fractures under the tremendous stress of engine operation.  Historically machined, compressor discs are now manufactured through a process called powder metallurgy, which consists of pouring molten metal onto a rapidly rotating turntable that breaks the molten metal into millions of microscopic droplets that are flung back up almost immediately, due to the table’s spinning.  As they leave the turntable, the droplets’ temperature plummets by 2120 degrees Fahrenheit (1000 degrees Celsius) in half a second, causing them to solidify and form a very fine metal powder, which solidifies too quickly to absorb impurities.  The powder is packed into a forming case and vibrated in a vacuum to remove air.  The case is then sealed and heated, under 25,000 pounds of pressure per square, inch into a disc.

Compressor blades.  These blades are still formed by traditional methods of casting.  Alloy is poured into a ceramic mold, heated in a furnace, and cooled.  The mold is broken and blades are machined to final shape, often to exacting tolerances on the order of 7 microns.

Combustion chambers.  Combustion chambers blend air and fuel in small spaces for long periods of time at incredible temperatures.  Titanium is alloyed (to increase ductility) and then heated to liquid before being poured into several complex segment molds.  The segments are welded together after cooling and removal.

The turbine disc and blades.  The turbine disc is formed by the same powder metallurgy used to create the compressor disc.  However, turbine blades are subjected to even greater stress due to the intense heat of the combustor.  Copies of the blades are formed by pouring wax into metal molds.  Once set, the wax shape is removed and immersed in a ceramic slurry bath, forming a ceramic coating.  Each cluster of shapes is heated to harden the ceramic and melt the wax.  Molten metal is then poured into the hollow left by the melted wax.

The metal grains of the blades are then aligned parallel to the blade by directional solidifying, which is important due to the blade stresses.  If the grains are aligned correctly, the blade is much less likely to fracture.  The solidifying process takes place in computer-controlled ovens to precise specifications.  Parallel lines of tiny holes are formed to supplement internal cooling passageways, either by a small laser beam or by spark erosion, where sparks are carefully allowed to eat holes in the blade.

Turbine blades are subject to temperatures of around 2,500 degrees Fahrenheit (1,370 Celsius.  At such temperatures, creep, corrosion, and fatigue failures are all possible.  Thermal barrier coatings, such as aluminide coatings developed during the 1970s, facilitated cooling.  Ceramic coatings developed during the 1980s improved blade capability by about 200 degrees F. and nearly doubled blade life.

Modern turbine blades often use nickel-based superalloys that incorporate chromium, cobalt, and rhenium.  Some superalloys incorporate crystal technology.  Nimonic is another super low-creep superalloy used in turbine blades.  Titanium aluminide, a chemical compound with excellent mechanical properties at elevated temperatures, may replace Ni based superalloys in turbine blades.  GE uses titanium aluminide on low pressure turbine blades on the GEnx engine powering Boeing 787s.  The blades are cast by Precision Castparts Corp.

Exhaust system.  The inner duct and afterburners are molded from titanium, while the outer duct and nacelle are formed from Kevlar, with all components welded into a subassembly.

Section II.  Defects in Both Hot Section Components and Safety Procedures Can Result in Catastrophic Injuries

An imperfection in the hot section, which results, for example, in a blade fracture during flight, or excessive creep, may result in an uncontrolled engine failure, among other catastrophic inflight mishaps, putting lives at risk.  In an interesting corollary, unique to very few manufacturing settings, adherence to the safest manufacturing processes will minimize both product defects and worker injuries, primarily serious burns.

Few Things Drive Higher Verdicts, Workers Compensation Costs, or Settlements, Than Burns

In those industries where “serious large burns” can arbitrarily be defined as full-thickness burns over 20% or more of the total body surface area (TBSA), the location of the burns and the relative availability of certain types of grafts can be outcome determinative and correlate directly with litigation risk, settlements, and verdicts. Most problematic are 4th degree burns to the hands or face, which can never, ever, be fully repaired with current surgical technology or therapeutic treatments.

Skin Graft Classification

There are two common types of skin grafts.  A split-thickness graft (STSG), or mesh graft, includes the epidermis and part of the dermis.  A mesher makes apertures in the graft, allowing it to expand approximately 9 times its original size.

Alternatively, a full thickness skin graft, or sheet graft, which involves pitching and cutting away skin from the donor section, is more risky in terms of rejection.  Yet counter-intuitively, this method leaves a scar only on the donor section, heals more quickly, and is less painful than split-thickness grafting.  This type of grafting, sheet grafting, must be used for hands and faces/heads where graft contraction must be minimized, and it is therefore extremely difficult to achieve in large TBSA burns.

Remedies

Although workers compensation laws will generally bar litigation by workers against their employers, in cases where the exclusive remedy provision of workers compensation does not apply, it is not uncommon in the United States to see burn verdicts or settlements in the millions or even tens of millions of dollars.  Mandatory PPE and best safety practices for dealing with ultra-high temperature work environments can minimize injuries, although the practical reality is that elimination of such injuries remains an aspirational goal.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, IMEs, Oregon Law, Personal Injury, Trials

Independent Medical Examinations and Oregon Law

IME’s: Leveling the Playing Field

With few exceptions, Oregon has no expert discovery.  While Independent Medical Examinations (“IME’s”) are available, the Oregon Plaintiff’s Bar has resisted them consistently and for years has sought conditions such as the presence of “supporters” or plaintiff’s counsel, someone from their office, or audio and/or video recording, etc.  In large personal injury, product liability, or aviation cases where the defense has needed IME’s in a number of medical disciplines, plaintiffs routinely sought to, and successfully blocked multiple specialty IME’s.

Until recently, the plaintiff could retain one or more medical experts, who could then examine the plaintiff without the defendant ever knowing of the examination(s), or at best, only learning as the plaintiff’s surprise medical expert took the stand.  Obviously, it did not work the other way around and any defense IME, which usually required court intervention, would be discoverable to the plaintiff immediately.  Even if the defendant did not request a written report, the defendant’s expert was obligated to provide the report at the plaintiff’s expense.

Plaintiff Must Now Disclose IME’s and Reports, Or Have Plaintiff’s IME Provider Prepare a Report at Reasonable Expense to the Defense

Pursuant to ORCP 36, ORCP 44 and the Oregon Supreme Court’s recent decision in A.G. v. Guitron, 351 Or 465, 268 P3d 589 (2011),  the plaintiff is now required to produce a written report from any and all examining physicians and psychologists who have examined the plaintiff and not yet made a written report.  This includes the obligation to request that any examining physicians and psychologists who have been retained as  experts by the plaintiff, and who have not yet made a written report, prepare a written report of the examination at the defendant’s reasonable cost and produce it to the defendant.

Defendant May Obtain Attorney Fees If a Motion To Compel Is Required

Pursuant to ORCP 46 A(4), the defendant may also move the court for an Order requiring the plaintiff to pay the defendant’s reasonable attorney fees and costs in filing such a motion to compel, given the express language of ORCP 36, ORCP 44 and Guitron.  Unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust, it may order the plaintiff and/or the plaintiff’s attorney to pay the defendant’s reasonable expenses incurred in obtaining the Order, including attorney’s fees.

The Oregon Evidence Code Contains an Exception to the Psychotherapist-Patient Privilege in Cases Where Emotional Condition Is At Issue

A plaintiff may argue that the attorney-client privilege protects psychotherapist reports until the plaintiff or the plaintiff’s testifying doctor/therapist takes the stand, thereby waiving the privilege.  However, the Oregon Evidence Code (“OEC”) provides an exception to the psychotherapist-patient privilege asserted by plaintiff.  OEC 504(4)(b) provides that,

“There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient[.]”

Defense counsel should also be aware and prepared to argue that, by definition, the work-product privilege codified in ORCP 36 B(3) does not apply to medical records.  Also, while pretrial discovery of non-medical experts is generally not permitted in Oregon, Oregon does not recognize a general “expert” privilege that would relieve plaintiff of all obligations to produce medical records.

ORCP 36 B(1) and ORCP 44 D Make Clear that Plaintiff Does Not Have the Right to Ambush Defendant With a Secret Medical Witness

A plaintiff’s medical records in a personal injury case are relevant and discoverable pursuant to ORCP 36 B(1), which is broad and allows parties discovery “regarding any matter, not privileged, which is relevant” to any claim or defense in the case.  ORCP 36 B(1) further provides that, “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Under ORCP 44 C, “the claimant shall deliver to the requesting party a copy of all written reports and existing notations of any examinations relating to injuries for which recovery is sought * * *.”  Under ORCP 44 D(1), a party may request the report of an “examining physician or psychologist” who has examined the other party for purposes of litigation.   Under the Guitron case, when requested, under the proper predicate circumstances, a plaintiff is required to provide the defense with reports from that plaintiff’s IME physician.  Specifically, the Guitron court held that ORCP 44 C requires plaintiffs “to deliver to defendants, at defendants’ request, a copy of all written reports of examinations related to the psychological injuries for which plaintiff sought recovery, including, specifically, the report of an examination by a psychologist retained by plaintiff’s counsel for the purpose of the litigation.”  351 Or 465, 467.

The court in Guitron affirmed the trial court and the Oregon Court of Appeals’ decision to bar the plaintiff’s psychologist from testifying at trial pursuant to ORCP 44 D because his required written report was not produced to the defendants.  351 Or 465.  The court held that, under ORCP 44 C, plaintiffs are required to produce on request “the reports of the experts who examined them for purposes of litigation as well as for treatment.”  Id. at 485.  As the Guitron court noted, in adopting ORCP 44, the Oregon Legislature limited the reach of the protections of the physician-patient, psychotherapist-patient, and attorney-client privileges, and ordered plaintiff to produce a report that might otherwise have been protected.  351 Or at 484-85.

Plaintiffs Are No Longer Entitled to the Presence of a Supporter During IMEs Unless Extraordinary Circumstances Are Present

On March 7, 2013, The Oregon Supreme Court published an opinion which was a welcome further leveling of the playing field for the defense as it relates to defense-requested IME’s.  The issue of plaintiffs having their counsel or a “supporter” present during defense IME’s has plagued Oregon state civil defense lawyers for decades.

In Lindell v Kalugin, 353 Or 338, 297 P 3d 1266 (2013), the Oregon Supreme Court issued an important en banc opinion for the defense.  The court ruled that a plaintiff is not automatically entitled to be accompanied by counsel or a supporter at an IME requested by the defense.

An ongoing dispute for many years in Oregon is whether a plaintiff’s counsel, family member, or friend can attend a defense-requested IME.  After performing a balancing test, the court ruled that the defense was entitled to have the plaintiff examined without having a family member, friend, or their counsel in attendance.  Id. at 358.  The court noted that this was in part so that the IME examiner, and by extension the defense, could evaluate the true responses of the plaintiff and get a true sense of plaintiff’s condition, unaltered by the presence of the third person.  Id. at 357-58.

The court did not, however, rule that a third party would be prohibited to attend a plaintiff’s IME under any circumstances, but it did rule that the proper showing of need had not been made in the Lindell case.  We do not expect this opinion to alter the customary Oregon practice whereby trial court judges allow the presence of a third person such as a parent in cases involving children or vulnerable adults.

This will likely have particular importance in serious negligence, product liability, and aviation cases where serious injuries are possible and multiple-discipline IME’s are necessary.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Evidence, Litigation, Multiple Defendants, Negligence, Oregon Law, Personal Injury, Pleadings, Product Liability, Uncategorized

Multi-Defendant Product Liability and Aviation Cases Under the Lasley Case

Close up of judge raising gavel in courtroom

Lasley: A road map for pleading claims related to the fault of other defendants

Olson Brooksby PC often represents one or more defendants In multi-defendant product liability actions and aviation cases.  The Oregon Supreme Court case of Lasley v Combined Transport, Inc., 351 Or 1 (2011), addressed the issue of causation in Oregon as it relates to negligence cases with multiple tortfeasors.  Lasley also contains a detailed analysis regarding allocation of fault.  It is instructive for defendants who have affirmative defenses relating to the fault of other parties, as well as cross-claims and indemnity and contribution claims against each other.

For example, in multi-party product liability and aviation cases, more often than not, there will be a two or more co-defendants who intend to present a unified, or at least not inconsistent, defense against the target defendant.

Lasley contains a road map for defendants in such cases and sets out how to properly plead claims concerning the fault of other defendants so that those claims may be appropriately considered by the jury.

 What happened in Lasley?

In the Lasley case, a truck owned by defendant Combined Transport lost part of its load of panes of glass on the I-5 freeway.  Id. at 4.  The plaintiff in the case was among those stopped in traffic on the freeway while the glass dropped by defendant Combined Transport was being cleaned up.  Id.  While the plaintiff was stopped, Clemmer, the other defendant in the case, hit plaintiff’s pickup truck.  Id.  Defendant Clemmer was allegedly driving while intoxicated.  The collision caused a gas leak from the plaintiff’s pickup which, in turn, caused a fire, killing the plaintiff.  Id.  The lawsuit against Clemmer and Combined Transport alleged “that Clemmer was negligent in driving at an excessive speed and in failing to keep a proper lookout and control of her car.”  Id. at 13.  Clemmer admitted fault.  Id.  Critically, “Plaintiff did not allege that Clemmer was negligent in driving while intoxicated.”  Id.

Based on these pleadings, the trial court granted the plaintiff’s motion in limine to exclude evidence that Clemmer was intoxicated at the time of the collision, and the jury ultimately returned a verdict against both defendants, finding Combined Transport 22% at fault and Clemmer 78% at fault for plaintiff’s damages.  Id. at 4.

On appeal, Combined Transport argued that the court should have allowed evidence of Clemmer’s negligence due to her intoxication because Combined Transport filed an answer including a general denial and filed a cross-claim against Clemmer for contribution based on negligence due to intoxication.   Id. at 13-14.  Specifically, Combined Transport alleged that Clemmer should “contribute such amount as is proportionate to her share.”  Id. at 23.  (Internal quotation marks omitted.)   However, “Combined Transport did not allege in its cross-claim that it had paid more than its proportional share of liability or seek a money judgment against Clemmer.”  Id.  (Bolding added.)    The plaintiff argued that evidence of Clemmer’s intoxication was properly excluded because the plaintiff did not allege that Clemmer was negligent in driving while intoxicated, and, therefore, Clemmer’s intoxication was not relevant to apportionment as framed by the pleadings.  Id. at 13.

The court explained that Combined Transport should have included allegations of Clemmer’s negligence due to intoxication and Clemmer’s responsibility for contribution in Combined Transport’s answer as an affirmative defense.  Id. at 23.  The court held that:

“[A] defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  

Id. at 22-23.

As explained below, however, the court treated the Lasley case in a special way and allowed the cross-claim to be treated as an affirmative defense. Id. at 26. Most defendants in other multi-party cases, however, probably will not be so lucky.

Also, as explained below, the court went through a lengthy analysis of causation and negligence law in Oregon, and it also set out some critical Oregon-specific pleading rules in multi-defendant cases.

Causation in negligence cases involving multiple defendants under Lasley

The Lasley court stated that, in Oregon, “when the negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose negligence was a cause of the harm may be held liable.”  Id. at 6. Oregon law focuses on factual cause.  Id. at 7.  The Oregon Supreme Court “has abolished not only the terms but also the concepts of ‘proximate’ and ‘legal’ cause.”  Id. at 6.   Factually, if the defendant’s negligence harmed the plaintiff, the defendant is liable to the plaintiff as long as the injuries that the plaintiff suffered were reasonably foreseeable as a result of the defendant’s negligence.  Id. at 7.  Therefore, causation is “a purely factual matter” and is separate from the concept of liability (which is determined by whether the harm was reasonably foreseeable–not by ‘proximate’ or ‘legal’ cause).  Id.

Under Oregon law, causation is determined based on the “substantial factor” test and is evaluated by looking at “causation in fact.”  Id. (internal citation and quotation marks omitted).  If the defendant’s conduct was a substantial factor in producing the harm that befell the plaintiff, the causation element is met.  Id.  The question is “whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence.”  Id. (internal citation and quotation marks omitted).

In Lasley, Combined Transport argued that its conduct was so minimal when compared to Clemmer’s that its conduct could not have been a substantial factor in causing the plaintiff’s death.  Id. at 8.  Specifically, Combined Transport argued that the trial court should have admitted evidence that Clemmer was intoxicated at the time of the accident and that, when compared to Clemmer’s egregious conduct, Combined Transport’s conduct was so minimal that it should not be held liable.

The court admitted that a case might exist where the causation element is met as to the first defendant such that the plaintiff’s injury would not have occurred absent that first defendant’s negligence.  However, that first defendant’s act was so insignificant when compared to the act of the second defendant that the first defendant should not be held liable.  Id. at 10.  But the court declined to address such a circumstance, finding that those facts were not at issue in Lasley.  Id.

Rather, the court held that, “both the conduct of Clemmer and the conduct of Combined Transport were substantial factors in contributing to decedent’s death.”  Id.  Clemmer admitted fault and the jury found that Combined Transport’s act of spilling the glass on I-5 caused the plaintiff to stop.  Id. at 11.  There was expert testimony that, had the decedent’s pickup been moving at the time of the impact, the pickup would not have ignited and the plaintiff would not have died.  Id.

The court found that, even if the trial court had admitted evidence of Clemmer’s intoxication, Combined Transport’s conduct would not have been any less significant based on the evidence at trial.  Id. at 11.  The court reasoned that, “In deciding whether a defendant’s act is a factual cause of a plaintiff’s harm, the effect of the defendant’s conduct, and not whether that conduct fell below the expected standard of care, is the relevant consideration.”  Id.  Therefore, even if Clemmer was not intoxicated and did not engage in any negligent conduct, but still hit the decedent’s pickup while it was stopped, Clemmer’s conduct would have been a factual cause of the decedent’s harm.  Id.  The court explained that Combined Transport’s argument confused “causation” and “negligence.”  Id.  In other words, even if the trial court had introduced evidence regarding Clemmer’s intoxication, that would simply show “an additional way in which Clemmer deviated from the standard of care, it could not prove an additional way in which Clemmer contributed to the chain of events that caused decedent’s death.”  Id.  The focus is on “the effect of the defendant’s conduct, and not whether that conduct fell below the expected standard of care * * *.”  Id.  The court conceded that its analysis may have been different had Combined Transport proffered “evidence that showed that, because Clemmer was intoxicated, she inevitably would have killed decedent, even if his pickup had not been stationary.”  Id. at 12.  However, that argument was not made by Combined Transport at trial.

Apportionment of fault in multi-defendant cases under Lasley

Under Oregon law, when the fact finder determines that multiple defendants were at fault, the fact finder must apportion fault, based on percentages that equal 100, between those defendants.  Id. at 13.  The fact finder “is required to compare the degree to which each defendant deviated from the standard of care and is therefore ‘blameworthy.'”  Id.

The plaintiff in Lasley argued that Clemmer’s intoxication was not relevant to the fault of the parties “as framed by the pleadings” because the plaintiff did not make such an allegation in his Complaint.  Id.

Combined Transport argued that evidence of Clemmer’s intoxication should have been allowed because Combined Transport’s Answer included a general denial and it also cross-claimed against Clemmer for contribution on the basis of Clemmer’s intoxication.  Id. at 13-14.

The court held that:

“in a comparative negligence case, a defendant that seeks to rely on a specification of negligence not alleged by the plaintiff to establish a codefendant’s proportional share of fault must affirmatively plead that specification of negligence and do so in its answer as an affirmative defense and not in a cross-claim for contribution.”

Id. at 14.

The court found that, under the unique facts of Lasley, Combined Transport’s cross-claim could be construed as an affirmative defense alleging that Clemmer was negligent by driving under the influence.  Id.  The court therefore held that the trial court erred in excluding evidence of Clemmer’s intoxication.  Id.  It is important to note that the court stressed that Lasley was a very unique case and was almost a “one-off” exception to the holding that specific facts underlying a negligence claim not pleaded by a plaintiff must be pleaded by a defendant as an affirmative defense if the defendant wants to rely on those facts at trial.  As a rule, such facts should not be pled as a cross-claim for contribution.  In other words, “a defendant that intends to rely on a specification of negligence not pleaded by a plaintiff must affirmatively plead those facts to make them admissible.”  Id. at 15.  (Bolding added.)

The court explained that Combined Transport’s general denial was not sufficient to put into issue facts that the plaintiff had not pleaded in his Complaint.  Id. at 17.  A general denial only allows for evidence that contradicts “facts necessary to be proved by plaintiff * * *.”  Id (internal quotation marks and citation omitted).  In contrast, an affirmative defense pleads “a new matter” that “does not directly controvert a fact necessary to be established by plaintiff * * *.”   Id (internal quotation marks and citation omitted).

A “new matter” consists of facts “different from those averred by the plaintiff and not embraced within the judicial inquiry into their truth.”  Id (internal quotation marks and citation omitted).  In other words, “When a defendant seeks to avoid liability for the damages that a plaintiff claims by asserting that a codefendant engaged in more blameworthy negligent conduct not pleaded by the plaintiff, the defendant relies for that defensive posture on facts different from those averred by the plaintiff.”  Id.  

The court held that:

“a defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  

Id. at 22-23.

Under the facts of Lasley, “Combined Transport did not allege in its cross-claim that it had paid more than its proportional share of liability or seek a money judgment against Clemmer.”  Id. at 23.  Rather, Combined Transport alleged that Clemmer was driving while intoxicated and that Clemmer should “‘contribute such amount as is proportionate to her share.'”  Id.  The court found that Combined Transport should have made those allegations as an affirmative defense.  Id.

However, the court noted that:

“Combined Transport did allege, in its cross-claim, the fact of Clemmer’s intoxication and its theory that Clemmer’s intoxication should be considered in determining Clemmer’s proportional share of liability.  Combined Transport was incorrect in selecting the pleading that it was required to use, but was correct in recognizing that it must plead those allegations to make Clemmer’s intoxication relevant to the jury’s determination of comparative fault.  The trial court was correct that a cross-claim for contribution was premature, but it was incorrect that there was no role for Combined Transport’s pleading alleging negligence by Clemmer that was not pleaded by plaintiff.  A pleading was necessary to make Clemmer’s intoxication material and to allow the jury to consider that conduct in comparing the fault of Clemmer and Combined Transport.”

Id. at 26.  

Therefore, the court held that, “in the unique circumstances of this case, the cross-claim that Combined Transport proffered fulfilled the function of an affirmative defense, viz., to put the plaintiff on notice of the theory and facts comprising the defendant’s defense.”  Id. (bolding added).  The court found it significant that, at the time of trial, it was unclear (due to the trial court’s rulings) which pleading Combined Transport was required to use and Combined Transport’s cross-claim did apprise the plaintiff “of the facts on which it intended to rely and the purpose of those facts.  In that narrow circumstance, the defect in designating the pleading as a cross-claim rather than as an affirmative defense did not affect the substantial rights of plaintiff.”  Id. at 27 (bolding added).

The court added that, “However, for the reasons we have stated, the evidence of Clemmer’s intoxication was not relevant on the issues of causation, liability, or damages.  Therefore, we remand the case for a new trial limited to the degree of fault of each defendant ‘expressed as a percentage of the total fault’ attributable to each defendant.”  Id. at 27.

Pleading requirements and rules for defendants who want to ensure that fault is allocated to another party

The court also spelled out additional pleading requirements under Oregon law when a defendant wants to ensure that fault is allocated to another party:

– “When a defendant seeks to avoid liability to the plaintiff by asserting that the plaintiff or another tortfeasor should be held responsible for the plaintiff’s damages, Oregon law also anticipates that the defendant will alternatively plead the facts on which it relies.”  Id. at 16.

– “When a defendant contends that the plaintiff was at fault, the defendant must affirmatively plead ‘comparative or contributory negligence’ in its answer as an affirmative defense.  ORCP 19 B.”  Lasley, 351 Or at 16.

– “When a defendant contends that a tortfeasor who has not been joined in the action or with whom the plaintiff has settled was at fault, the defendant must file a third-party complaint against the tortfeasor or otherwise affirmatively allege the fault of that tortfeasor. ORS 31.600(3).”  Lasley, 351 Or at 16.

– “When a defendant contends that a codefendant was at fault, the defendant also must affirmatively allege the unpleaded fault of the codefendant.  * * *  ORCP 19 B requires that a party set forth affirmatively allegations of ‘comparative negligence.’  That requirement is not limited to allegations of the comparative negligence of a plaintiff.  Lasley, 351 Or at 16-17.

– “ORCP 19 B requires a defendant to set forth affirmatively ‘any other matter constituting an avoidance or affirmative defense.'”  Lasley, 351 Or at 17.

– “A general denial is required to ‘fairly meet the substance of the allegations denied.’  ORCP 19 A.  Therefore, a general denial does not put at issue facts that a plaintiff has not pleaded.”  Lasley, 351 Or at 17.

– Under ORS 31.600(3) and ORCP 19 B, “a defendant must, in some way, affirmatively plead a specification of negligence on which it intends to rely, and that has not been pleaded by the plaintiff, to establish the fault of a codefendant.  A general denial wil not permit a defendant to adduce evidence of a codefendant’s unpleaded negligence to avoid liability to the plaintiff.”  Lasley, 351 Or at 17.

– “[T]he proportional share of fault of each tortfeasor will be determined in the negligence action brought by the plaintiff.”  Id. at 18.

– Oregon no longer has joint and several liability.  “Now, under ORS 31.610, liability is several only; a tortfeasor is responsible only for its percentage of fault as determined in the action brought by the plaintiff.”   Lasley, 351 Or at 19.

– Under Oregon’s comparative negligence law, “no tortfeasor is liable for more than its percentage of fault, and that percentage of fault is determined in the original negligence action brought by the plaintiff.  ORS 31.610(2); ORS 31.805.”  Lasley, 351 Or at 21.

– “A defendant cannot bring a contribution action to seek a different determination of its percentage of fault.  A contribution action serves only to permit a defendant who has ‘paid more’ than its ‘proportional share of the common liability’ to obtain contribution from another person who is also liable for the same injury or death.  ORS 31.800(2).”  Lasley, 351 Or at 21.

– Although Oregon law allows for contribution claims under ORS 31.800(2), “Because a defendant’s liability is several only and the defendant is not obligated to pay more than its proportional share of liability, it seems that the circumstances in which a defendant will pay more than its proportional share and, therefore, have a reason to seek contribution from a codefendant will be quite limited.”   Lasley, 351 Or at 21.

– If a defendant does pay more than its proportional share and has a reason to seek contribution from a codefendant, that defendant “could use a cross-claim to assert a claim for contribution against a codefendant.  ORCP 22 B defines a cross-claim as a claim ‘existing in favor of the defendant asserting the cross-claim and against another defendant, between whom a separate judgment might be had in the action [.]’  A defendant who ‘has paid’ its proportional share could seek a separate judgment against a codefendant for the excess amount of its payment and do so by means of a cross-claim.”   Lasley, 351 Or at 21.

– A cross-clam for contribution should not be used “by a defendant to allege that a co-defendant is at fault for the plaintiff’s damages and should be held liable, not to the defendant, but to the plaintiff.  In that instance, the defendant does not seek a separate judgment against the codefendant as required by ORCP 22 B.  Even so, the comparative negligence statutes indicate that such a pleading may be permitted.”  Lasley, 351 Or at 21.

– “[W]hen a plaintiff does not join a tortfeasor as a defendant, the comparative negligence statutes permit the named defendant to file a third-party complaint against the tortfeasor.  ORS 31.600(3).  In that instance, the third-party defendant will not be liable to the defendant but, potentially, will be liable to the plaintiff.”  Lasley, 351 Or at 22.

– “ORCP 22 C(1) restricts third-party claims to circumstances in which a third party ‘is or may be liable to the third party plaintiff.'”  Lasley, 351 Or at 22.

– Even though ORCP 22 C(1) “indicates that a third-party claim is designed for the circumstance in which the third-party defendant is or may be liable to the third-party plaintiff, ORS 31.600(3) permits a defendant to file a third-party complaint to allege that a third-party defendant is at fault and potentially liable to the plaintiff.”  Lasley, 351 Or at 22.

– “ORS 31.600(2) specifically provides that the fact that a plaintiff is not a party to the third-party claim does not pervent the trier of fact from comparing the fault of the third-party defendant in the action brought by the plaintiff.”  Lasley, 351 Or at 22.

– “[T]he legislature anticipated that a defendant could file a third-party complaint against a tortfeasor who would not be liable to the defendant but who could, instead, be liable to the plaintiff.  Whether the legislature intended to permit a defendant to make a cross-claim against a codefendant who would not be liable to the defendant but, instead, would be liable to the plaintiff, is unclear.”  Id.  

– “Neither an affirmative defense nor a cross-claim for contribution is ideally designed as a mechanism for a defendant to plead the negligence of a codefendant that is not pleaded by the plaintiff and thereby to avoid or reduce the defendant’s liability to the plaintiff.  An affirmative defense is directed at a plaintiff, not at a codefendant.”  That said, “an affirmative defense is the pleading mechanism that a defendant should use.  The use of an affirmative defense is consistent with the terms of ORCP 19 B, whereas the use of a cross-claim for contribution would require modification of the terms of ORCP 22 B(1) and ORS 31.800.”  Lasley, 351 Or at 22.

– “We hold that a defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seek to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  Id. at 22-23.

– A cross-claim for contribution is directed at a codefendant and is not designed to avoid liability to a plaintiff.  Id. at 22.

– “[A] defendant who wishes to have the jury consider the unpleaded negligence of a codefendant in making” the comparison of fault of the parties “is required to plead the facts establishing that negligence.  The fact that the codefendant has accepted liability based on the facts alleged by the plaintiff does not eliminate that requirement.  Thus, in this case, to have the jury consider evidence of Clemmer’s intoxication in comparing the fault of the parties, either plaintiff or Combined Transport had to allege those facts.  Plaintiff did not do so, and the pleading burden fell on Combined Transport.”  Id. at 26.

 

Manufacturing, Oregon Law, Personal Injury, Product Liability, Uncategorized

Component Part Manufacturer Liability in Oregon

Oregon Did Not Adopt Caveat (3) In Its Adoption of The Restatement (Second) of Torts, § 402A (1965)

Component part liability is important in products liability cases and especially in aviation cases, where the aircraft may have a long air-frame life but require service or replacements of hundreds of parts over its years of service.  Although Oregon adopted the Restatement (Second) of Torts, § 402A contains a caveat (Caveat 3 (1965)) regarding whether strict liability should be extended to component part manufacturers.  The Oregon Legislature, however, did not adopt this caveat as an interpretive guide for the courts.  Therefore, both pre-codification and post-codification Oregon Supreme Court rulings hold that strict liability can extend to component part manufacturers for the sale of defective components.  See State ex rel Hydraulic Servocontrols v. Dale, 294 Or 381 (1982); Smith v. J.C. Penney Co., 269 Or 643 (1974) (fabric manufacturer held liable because of flammable character of fabric, even though fabric was sold to the coat manufacturer before reaching consumer).  If the component part is dangerously defective and it causes injury, the component part manufacturer (or seller or distributor) is subject to liability.

Oregon law also follows the Restatement (Third) of Torts: Products Liability, which takes the position that if the component part is defective and causes injury, the component part manufacturer (or seller or distributor) is subject to liability.  Additionally, if the component part manufacturer “substantially participates in the integration of the component into the design of the product,” the component manufacturer is subject to liability. Restatement (Third) Of Torts: Products Liability § 5 (1998).

Oregon Law Involving Alleged Misapplication of a Raw Material:  Misapplication of a Raw Material Does Not Give Rise To Liability As To the Supplier

The manufacturer of a component part, however, is not subject to strict liability if the component was misapplied rather than defectively designed.  In Hoyt v. Vitek, Inc., 134 Or App 271 (1995), after experiencing problems with her temporomandibular joint (TMJ), the joint that connects the jaw bone to the skull, the plaintiff, Hoyt, had a prosthetic device implanted in her jaw.  The device gradually fragmented and released particles of Teflon, which caused a serious adverse reaction.  Du Pont Company manufactured Teflon and sold it to Vitek, Inc., which used the Teflon as a component part in its TMJ device.

Vitek designed, manufactured and marketed the device.  In 1977 DuPont informed Vitek that it manufactured Teflon for industrial purposes only and had sought no FDA rulings on the safety or effectiveness of surgical uses, and that Vitek would have to rely on its own medical and legal judgment.  Du Pont was aware of studies that warned of abrasion and fragmentation with medical Teflon implants and passed along this information to Vitek.  In 1983, Vitek received permission from the FDA to market the device pending “specific performance standards.”  Hoyt, supra, 134 Or App at 277.

Hoyt sued Du Pont, contending that Teflon was unreasonably dangerous because it was defectively designed and because of Du Pont’s failure to warn the medical community.  The court of appeals found that the component part was not defective.  The court of appeals also relied on the “raw material supplier” doctrine in deciding not to apply strict liability.  When a multiuse raw material is not unreasonably dangerous in itself, but becomes unreasonably dangerous when incorporated into certain uses, the supplier cannot be sued based on strict liability.  Hoyt, supra, 134 Or App at 284-286.  See Crossfield v. Quality Control Equip. Co., 1 F3d 701 (8th Cir 1993); Childress v. Gresen Mfg. Co., 888 F2d 45 (6th Cir 1989).

Cases in Which Component Parts Are the Allegedly Defective Product

Plaintiffs did allege that defective replacement parts were supplied after the first sale of a helicopter in Evans v. Bell Helicopter Textron, 1998 WL 1297138 (D Or 1998), but the service bulletins proffered by plaintiffs were insufficient to establish that the defective component parts were installed in the engine after the first sale.  The helicopter was manufactured in 1979, and crashed seventeen years later.  Defendants’ motion for summary judgment was granted on the basis of ORS 30.905 because plaintiffs could not support their allegation that an affirmative misrepresentation occurred after the first sale of the helicopter by defendants.

In Allstate Indem. Co. v. Go Appliances LLC, 2006 WL 2045860 (D Or 2006), plaintiff alleged that a defective compressor installed on a used refrigerator caused a fire in its subrogor’s house.  The opinion does not state when the refrigerator was originally first sold and does not discuss product liability time limitations.  However, the court held that plaintiff could assert a products liability action against the defendant, who sold the used appliance and installed the allegedly defective new compressor.

The statute of ultimate repose in both strict product liability cases and negligence cases is beyond the scope of this article.  However, one of the controlling Oregon cases relevant to a replacement component part is Erickson Air-Crane Co. v. United Technologies Corp., 303 Or 281 (1987), mod. on recons. 303 Or 452.  Although Erickson discussed the application of the products liability statute of ultimate repose in the context of post-sale negligent misrepresentation, the case is relevant to a discussion regarding application of the statute of ultimate repose to a post- sale installation of a defective component part.

In Erickson, plaintiff purchased a helicopter in 1971.  Defendant allegedly made misrepresentations regarding the useful safe life of a compressor disc in 1977.  After the helicopter crashed in 1981 due to exhaustion of the compressor disc, plaintiff filed suit in 1983.  The plaintiff’s complaint alleged that defendant was negligent in providing erroneous information, failing to warn plaintiff as to the erroneous information, and failing to warn that the helicopter was dangerous after expiration of the true safe life of the compressor disc.  Erickson, 303 Or at 284-85.

The Oregon Court of Appeals found that plaintiff’s action against the manufacturer was a product liability action, and that because the action was commenced more than eight years after the first purchase of the helicopter, the statute of ultimate repose barred the action.  Id. at 285-86.  The Supreme Court reversed, holding that:  “ORS 30.905 applies only to acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption.’  Acts or omissions occurring after that date are governed by the statute of ultimate repose contained in ORS 12.115.”[1]  Id. at 286.  Because the defendant relayed the false information about the useful safe life of the compressor after the helicopter was first purchased, ORS 30.905 did not apply.  Id. at 289. (“The difference between the present case and the type of case that the legislature meant to cover under ORS 30.905(1) is that, in this negligence case, the reasonableness of certain of defendant’s actions after plaintiff’s purchase are in question while, in a product liability case governed by ORS 30.905, it is the condition of the article at the date of purchase that is in question.”) (emphasis in original).

The Erickson holding, when viewed in the context of installations of new components, supports the argument that such alterations cannot “restart” the statute of ultimate repose on the original product.  Erickson holds that ORS 30.905 only applies to “acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption,’” and a post-sale negligent misrepresentation leading to the installation of a new product necessarily occurs after the date the product was first purchased.  A manufacturer can argue that under Erickson, the statute of ultimate repose should run on the original product from the date it entered the stream of commerce, regardless of whether component parts were installed post sale.

 

 

[1] ORS 12.115 is the generic statute of ultimate repose for negligence actions, and provides that “any action for negligent injury to person or property of another” must be commenced within “10 years from the date of the act or omission complained of.”

Aviation, DSM-5, Evidence, Personal Injury, Product Liability, Trials, Uncategorized

Key Changes to the DSM-5 for the Product Liability, Personal Injury, and Aviation Defense Lawyer

DSM-5 book

The creation of the fifth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) was a massive undertaking that involved hundreds of psychiatrists, psychologists, physicians, and other medical professionals working together over a 12-year period.  The DSM-5, which replaced the 2000 DSM-IV (TR), is the foundation for reliable diagnosis and treatment of psychological and mental disorders.  As with prior DSM publications, which now date back decades, it is not intended to be a substitute for sound, objective clinical judgment, training, and skill.

Reflecting and prompted by the many new longitudinal studies, research papers, and experimental treatment modalities that have appeared since 2000, this new DSM edition contains significant changes in the classification of some disorders, and the removal or addition of other disorders.  This discussion will provide a brief overview of some of the key changes to the DSM-V and will touch on issues of interest to legal professionals working in the areas of product liability, personal injury, and aviation defense.

In a trial setting, familiarity with the DSM-5 and the underlying literature will be critical to an effective cross-examination of plaintiff’s expert.  Often, with forensic psychologists, the defense can make significant inroads on the basis that plaintiff’s expert is not sufficiently familiar with the DSM or associated literature.  For example, a significant new body of literature related to “resiliency and benefit realization” after a traumatic experience is largely unknown to most plaintiffs’ forensic psychologists.

A substantial percentage of high exposure cases in those categories involve a diagnosis of PTSD by plaintiff’s expert and a Global Assessment of Functioning (GAF) score based on the five-level multiaxial system, with Axis 5 providing the GAF score.  This brief post will focus on the changes to ­– or more accurately, the elimination of – the multiaxial system, as well as the changes to the criteria, symptoms, and diagnosis of PTSD.

A subsequent post will deal specifically with the criteria for PTSD and will include suggestions for cross-examination of plaintiff’s diagnosing mental health professional.

Changes to the Multiaxial System in DSM-5

Despite its widespread use, particularly among some insurance agencies and the government, the multiaxial system in DSM-IV was not required to make a mental disorder diagnosis.  DSM-5 has moved to a nonaxial diagnostic model (formerly AXES I, II, and III), with separate notations for important psychosocial and contextual factors (formerly Axis IV) and disability (formerly Axis V).  The approach of distinguishing diagnosis from psychosocial and contextual factors is also consistent with established WHO and ICD guidelines, which consider the individual’s functional status separately from his or her diagnosis or symptom status.

DSM-IV Axis V consisted of the Global Assessment of Functioning (GAF) scale, representing the clinician’s judgment of the individual’s overall level of “functioning on a hypothetical continuum of mental health-illness.”  It was recommended that the GAF be dropped from DSM-5 for a number of reasons, including its conceptual lack of clarity (e.g., including symptoms, suicide risk, and disabilities in the descriptors) and questionable psychometrics in routine practice.  In order to provide a global measure of disability, the WHO Disability Assessment Schedule (WHODAS) is included in DSM-5 for further study.

Changes to PTSD in DSM-5

Post-Traumatic Stress Disorder (“PTSD”) is a Trauma- and Stressor-Related Disorder.  DSM-5 criteria for PTSD differ significantly from the DSM-IV.  The stressor criterion (Criterion A) is more explicit with regard to events that qualify as “traumatic” experiences.  Also, DSM-IV Criterion A2 (subjective reaction) has been eliminated.

Whereas there were three major symptom clusters in DSM-IV – re-experiencing, avoidance/numbing, and arousal – there are now four symptom clusters in DSM-5 because the avoidance/numbing cluster is divided into two distinct clusters: avoidance and persistent negative alterations in cognitions and mood.  The latter category, which retains most of the DSM-IV numbing symptoms, also includes new or re-conceptualized symptoms such as persistent negative emotional states.  The final cluster – alterations in arousal and reactivity – retains most of the DSM-IV arousal symptoms.  It also includes angry outbursts and reckless or self-destructive behavior.

PTSD is now developmentally sensitive in that diagnostic thresholds have been lowered for children and adolescents.  Furthermore, separate criteria have been added for children age 6 years or younger with this disorder.

The DSM-IV childhood diagnosis of reactive attachment disorder had two subtypes: emotionally withdrawn/inhibited and indiscriminately social/disinhibited.  In DSM-5, these subtypes are defined as distinct disorders: “reactive attachment disorder” and “disinhibited social engagement disorder.”

Olson Brooksby is a product liability, personal injury, and aviation defense firm.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, NTSB, Personal Injury

Why Are There So Many Helicopter-Related Air Medical Operations Accidents?

Helicopter Air Medical Operations Accidents are relatively high when compared to 14 C.F.R.§ 121 (Part 121) accidents.  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 Part 121 accidents in 2010.  This despite some 17.5 million flight hours.  Of those Part 121 accidents, the most common defining event, accounting for 26% of such accidents in 2010, was a turbulence encounter.  The remaining defining events for Part 121 accidents in 2010, just as they generally have been for the last 10 years, involved ground collisions, ground handling, runway incursion, cabin safety, system failure, and bird strikes etc., many or most of which are ground events.  Less than half of Part 121 accidents happened en route, although a significant number occurred during takeoff or landing.

Part 121 flights, as opposed to HEMS flights under Part 135 or Part 91, have distinctly different flight altitudes, flight durations, weather events, cruise speeds, air frame, and power plant configurations and thrust capacities.  No one, including the NTSB, suggests that the high number of turbulence-related incidents involved in Part 121 operations should also characterize helicopter flight generally, particularly Helicopter Emergency Services (“HEMS”) flight.  There is no evidence that turbulence, as understood in the context of Part 121 statistical treatment of accidents, has played any significant causal role in the relatively high number of HEMS mishaps, whether they resulted in injuries/fatalities or not.  Given the incredibly low statistical number of injury/fatality mishaps in Part 121 operations compared to the high incidences of injury/fatality HEMS mishaps, what, if any, conclusions can be drawn?

Air medical operations are conducted under both Part 135 and Part 91, depending on whether patients are being carried on board the aircraft.  HEMS missions en route to pick up patients or organs, or to reposition aircraft after accomplishing patient transport operations, are generally conducted under Part 91.  Trips transporting patients or organs to medical facilities 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.

Although fixed-wing aircraft are also used for Part 91 and Part 135 medical missions, there were only 10 fixed wing fatalities in air medical operations during the entire decade between 2000 and 2009.

A Statistical Overview of HEMS Accident Frequency and Type

HEMS accounted for about 80 percent of all air medical accidents during the ten-year period 2001-2010.  Against this backdrop, we examine HEMS accidents, of which there were 13 in 2010 alone, seven of them fatal, according to a 2012 NTSB report. Six of the seven HEMS fatalities in 2010 involved operations under Part 91.  From 2000 through 2010 (the most recent year NTSB statistics are available), 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.

Obviously, this is explained in part by the fact that unlike fixed-wing air medical operations, HEMS flights generally do not operate out of established aerodromes.  Instead, they operate out of off-airport locations where patients are in need of timely, critical care.  According to a 2011 NTSB report, in every year except 2007, the number of Part 91 air medical helicopter accidents without patients aboard have been significantly higher than in any other category of air medical flying.

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

On the other hand, 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 HEMS helicopters conducting Part 135 operations in Flagstaff, Arizona, in June 2008 was also fatal to everyone on board.  The other two fatalities involving a non-power plant system were coded as “other”, according to a 2011 NTSB report.  

What Are The Typical Causes 

In any aviation operation, pilot training, experience, and judgment are some of the most important factors in safe flight.  With helicopter operations generally, and particularly HEMS operations, those factors are even more critical because of the conditions they fly in, such as bad weather, night flying, or flying in rural areas where wires or other low strike points may not be lighted or marked, and air-traffic may be uncontrolled.  HEMS operations also face an unparalleled need for speed to save lives.  Review of individual NTSB probable cause reports, NTSB factual data, and other aviation industry data would tend to suggest that helicopter accidents and resulting serious injuries and fatalities are most often the consequence 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, 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.  In addition, HEMS operations often involve situations in which minutes may literally save life and limb, prompting hurried behavior.  While that is not to suggest that HEMS pilots are not some of the best helicopter pilots flying, they do face particular challenges, to which Part 121 pilots or even fixed-wing air medical operations pilots are less exposed.

There are also tremendous variations in 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.  NTSB statistics from 2011 suggest that such variations in flight time and the corollary impact on experience and judgment may be significant factors in the number of crashes. HEMS operations more often than not must 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 are unquestionably some of the best helicopter pilots in the world, owners and operators of HEMS facilities should continuously examine and emphasize the consistent causes of HEMS crashes and adapt training programs to focus on those causes.

Olson Brooksby has an active aviation accident and aviation component product liability defense practice.  For more information, please contact our office.