Category Archives: Trials

Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation

Hot topics in aviation litigation include birds, pets, lasers, and stowaways.  Each pose the danger of catastrophic mass torts.

Bird and animal strikes pose an increasing danger to commercial, military and general aviation.  Strikes result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.  Bird strikes are the second leading cause of death in aviation accidents.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905.  The greatest loss of life directly linked to a bird strike occurred on October 4, 1960, when a Lockheed L-188 flying as Eastern Air Lines Flight 375, flew through a flock of common starlings during take-off from Logan Airport, damaging all four engines. The plane crashed into Boston harbor killing 62 of the 72 passengers on board. http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/.  (Last visited 4/19/16).

Other major bird strike incidents include:

  • United Airlines Flight 297. On November 23, 1962, a Vickers Viscount 745D crashed near Columbia, Maryland after striking a flock of whistling swans while cruising at 6,000 feet.  The impact caused the horizontal stabilizer to separate, leading to loss of control.  All seventeen people on board were killed.
  • Ethiopian Airlines Flight 604. On September 15, 1988, a Boeing 737-200 ingested a flock of speckled pigeons as it took off from Bahir Dar, Ethiopia.  Both engines failed immediately, and the ensuing belly landing caused a fire that killed 35 passengers.
  • Leadair UniJet. On January 20, 1995, a Dassault Falcon 20 sucked lapwings into the No. 1 engine on takeoff, which caused an uncontrolled engine failure and a fire in the airplane’s fuselage; all 10 people on board were killed.
  • S. Air Force Boeing E-3. On September 22, 1995 the AWACS aircraft crashed shortly after takeoff from Elmendorf AFB. The aircraft lost power in both port side engines after the engines ingested several Canada geese during takeoff.  The geese had been disturbed during the takeoff of a Hercules transport moments earlier.  After reaching 250 feet, the plane crashed about two miles from the runway, killing all 24 crew members on board.
  • Ryanair Flight 4102. On November 10, 2008 a Boeing 737-8AS on final approach to Rome Ciampino Airport sustained 90 bird strikes, all from starlings.  After one engine was damaged, and the other engine ingested birds, the crew managed an emergency landing.  There were 10 injuries.  The plane, which was only eight months old, was a total loss.
  • US Airways Flight 1549. On January 15, 2009 an Airbus A320-214 lost power in both engines after multiple strikes with Canada geese shortly after takeoff from LaGuardia Airport.  About three minutes after the loss of all power, the flight crew conducted a water landing on the Hudson River.  150 passengers and five crew members sustained a total of 95 minor and five serious injuries.
  • PHI Inc., Charter. On January 4, 2009, a Sikorsky S-76C crashed into marshland about seven minutes after takeoff near Amelie, Louisiana, killing two pilots and six of the seven passengers. The helicopter’s impact with a red-tailed hawk jarred the fire suppression handles loose, which pushed the engine controls to idle, depriving the engines of fuel.

Boeing has compiled extensive data on bird strikes:

  • More than 219 people have been killed as a result of bird strikes since 1988.
  • Between 1990 and 2009, bird and mammal strikes cost the U.S. civil aviation complex $650 million per year.
  • The U.S. Air Force sustains approximately $333 million dollars in damage per year due to bird strikes.
  • About 5,000 bird strikes were reported by the Air Force in 2012.
  • About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.
  • The FAA has identified 482 species of birds involved in strikes from 1990-2012.
  • Between 2001 and 2011, 4066 engines were damaged in 3,935 bird strikes. This resulted in a wide range of outcomes including aborted takeoffs, engine shutdowns, and crashes.

http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/.  (Last visited 4/19/16).  http://news.nationalgeographic.com/news/2013/10/131108-aircraft-bird-strikes-faa-radar.  (Last visited 4/19/16).

Factors Contributing to the Rise in Bird Strikes

  • The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.
  • A twelve pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.
  • Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported.  The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.
  • Finally, the population of European starlings is now the second most prevalent bird species in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls. http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4.  (Last visited 4/19/16).

Population Management Techniques

In January, 2009, U.S. Airways Flight 1549 landed on the Hudson River after both engines ingested Canada geese.  New York City Mayor Michael Bloomberg declared war on geese.  Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009) http://www.theguardian.com/environment/2009/jun/12/new-york-geese-cull.  (Last visited 4/19/16). A mayoral steering committee gave approval to the USDA to cull geese in a 450 mile area encompassing JFK, LaGuardia and Newark airports.  Principal methods of population control include:

  • Each summer teams of USDA goose catchers capture geese which, in the molting condition cannot fly, including offspring which are then take to slaughterhouses and killed. Between 2009 and 2010, 2911 geese were killed.
  • The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.
  • Discouraging nesting and grazing.
  • Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.
  • Firing pyrotechnics and propane cannons.
  • Use of chemical repellants.
  • Population exclusion.
  • Use of visual repellants.
  • Tactile repellants.

http://www.boeing.com/commercial/aeromagazine/articles/2011_q3/4/.  (Last visited 4/19/16).

Potential Liability for Airport Operators

Airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues.  The U.S. Code of Federal Regulations requires Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. Section 139.337 to conduct formal Wildlife Hazard Assessments.  The certificated airports must develop Wildlife Hazard Management Plans as part of the certification standards.  Airports are required to employ professional biologists trained in wildlife hazard management. 14 C.F.R. Section 139.337 and FAA Advisory Circular 150/5200-36.  Failure to comply with the regulations can give rise to liability for airport operators. https://www.aphis.usda.gov/wildlife_damage/airline_safety/pdfs/Summary%20Report%20WS%20Airport%20Wildlife%20Hazards%20Program%20FY%2008.pdf.  (Comprehensive overview of applicable regulations and methods, last visited 4/19/16).

The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of wildlife strikes with aircraft.  Wildlife challenges are by no means limited to birds.  Airports across the country are struggling with wildlife management.  http://www.post-gazette.com/sports/hunting-fishing/2016/01/17/Keeping-wildlife-off-tarmac-is-big-job-at-Pittsburgh-International-Airport/stories/201601170140.  (Last visited 4/19/16).

In addition to reports of aircraft strikes involving nearly 500 bird species, other wildlife strikes reported during the last decade involved nearly 100 terrestrial animals including mongoose, bears, badgers, moose, pigs, burros, horses, and even camels, in addition to 137 reptile strikes.

For additional background information, see “Wildlife Strikes to Civil Aircraft in the United States, 1990-2001”, United States Department of Agriculture, Federal Aviation Administration, United States Department of Agriculture, July, 2012.  Report published for the Federal Aviation Administration Office of Airport Safety and Standards.    https://www.faa.gov/airports/airport_safety/wildlife/resources/media/bash90-11.pdf.  (Last visited 4/19/16).  http://www.fws.gov/migratorybirds/pdf/bird-enthusiasts/birdstrikes.pdf.  (Alternate link, last visited 4/19/16).

Regulations for Aircraft and Engine Manufacturers

In response to the Eastern Airlines crash in Boston in 1960 mentioned above, The FAA issued Advisory Circular 33-1 “Turbine Engine Foreign Object Ingestion and Rotor Blade Containment Type Certification Procedures,” which provided guidance for compliance with FAA regulations §3313 and §3319 requiring that engine design minimize unsafe condition.  For additional information on the scope of required fan and engine construction, see Christopher Demers, “Large Air Transport Jet Engine Design Considerations for Large and for Flocking Bird Encounters”, DigitalCommons@University of Nebraska-Lincoln (2009). http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=birdstrike2009.  (Last visited 4/19/16).

Aircraft Wheel Well Stowaways and Potential Mass Torts

In recent years, wheel well stowaways have received increasing media attention and public interest.  Statistics on the manner of death and the factors that keep stowaways alive are not precise, and there are differing standards for investigation internationally.

Many, if not most, of these incidents arise from the unfortunate political, social, economic or family circumstance of the stowaway.  However, assuming the physiological obstacles of hypothermia and hypoxia are overcome, one major question remains: What legal implications are raised if a stowaway with destructive intent caused a major tragedy?

Usually a stowaway jumps into an aircraft by hanging on to the airliner’s landing gear as the plane takes off, or climbs into the gear compartment before takeoff.  The force of the wind can easily make a stowaway fall to his or her death.  Alternatively, many stowaways are crushed in the confined space of the compartment when the gear is retracted.  Others appear to have died from the heat produced by the engines of the aircraft, or fallen while unconscious when the gear is extended.  The overwhelming majority of stowaways are young males.

According to the FAA, the first recorded case of an aircraft stowaway occurred on June 13, 1929. The Bernard monoplane Oiseau Canari, piloted by Frenchmen Assollant Lefevre, had trouble taking off in spite of its powerful Hispano Suiza engine. The crew later discovered the cause of the problem: a stowaway on board. Despite the overload, the plane landed in Spain after 22 hours of flight. http://www.faa.gov/about/office_org/headquarters_offices/ang/offices/tc/about/campus/faa_host/rdm/media/pdf/fy2011rdannualreview.pdf.  (Last visited 4/19/16).

Physiological threats for a stowaway are minimal at altitudes up to 8,000 feet, but at higher altitudes reduced atmospheric pressure and partial pressure of oxygen may have deleterious effects.  At all cruising altitudes, the partial pressure of oxygen in a wheel well cannot sustain consciousness.  Additionally, at altitudes of about 20,000 feet, stowaways may develop decompression sickness.  Id.

All of the scientific research suggests that, after takeoff, a stowaway faces two life-threatening conditions during flight: hypoxia and hypothermia.  In 1993, the fatality of a 19-year old who stowed away in the wheel-well of a plane bound from Colombia to JFK was one of the 13 wheel-well stowaway flights documented in a report by the U.S. FAA, Civil Aeromedical Institute (CAMI), and Flight Safety Foundation as having frozen to death. (FSF). https://www.faa.gov/data_research/research/med_humanfacs/oamtechreports/1990s/media/AM96-25.pdfhttp://flightsafety.org/hf/hf_may-jun97.pdf .  (Last visited 4/19/16).

Some experts suggest that survival rates in young people may be higher because their brains more readily approach to a “virtual hibernative state,” where their bodies become temporarily more adaptable to trauma.  http://time.com/70441/how-the-teen-stowaway-survived-his-trans-pacific-flight-in-a-wheel-well/.  (Last visited 4/19/16).

According to the FAA, from 1947-2014 there have been 94 flights involving 105 people who stowed away worldwide.  Of those 105 people, 80 died and twenty-five survived.  The twenty-five people who survived represent a 23.8 percent survival rate.

In 2014 a sixteen-year-old California boy jumped a fence at San Jose International Airport and squeezed into the wheel-well of a flight bound for Maui, where he emerged 5 hours later, in good health.  Experts surmised that the teen’s youth could be an advantage, as the brains of young people adapt more easily to hypothermia and hypoxia, for reasons that are not completely understood.  http://khon2.com/2014/04/20/fbi-investigating-stowaway-of-hawaiian-airlines-flight/.  (Last visited 4/19/16).

Similarly, in June, 2015, a 21-year old Indonesian man hid in the wheel well of a Garuda Indonesia flight from Sumatra to Jakarta. http://www.huffingtonpost.com/2015/04/08/stowaway-survives-flight-indonesia_n_7023396.html(Last visited 4/19/16).

Possible Liability

There may be a number of consequences of security breaches by aircraft wheel well stowaways and their on-board actions, despite the present physiological obstacles.  Among these include:

  • In the event of a crash, mass tort litigation by innocent passengers against airlines, airports, governments and contractors arising from security breaches.
  • Widespread concern about security at public, airline, security provider, airport, and government levels which leads to additional legislation, regulation, or policy.
  • Other terrorist acts such as ransom demands or extortion of other conditions by extremists determined to cause a catastrophe through a stowaway with destructive or disruptive capability.
  • Government levied fines for airlines, airports, private security companies, local police, and federal agents based on security breaches.
  • Increased security measures imposed on airport, airline, local, state and federal authorities.
  • Lawsuits by agencies, airlines or security agents against the indigent stowaways are unlikely, although deportation is possible.

Wheel well stowaway events appear to be on the rise, and each event is highly publicized.  However, these events have not resulted in widespread litigation.  The only litigated case brought by the family of a stowaway involved sixteen-year-old Delvonte Tisdale.  Tisdale ran away from home on November 14th, 2010.  A day later his body was found mangled in a Boston suburb.  Authorities determined that Tisdale likely sneaked onto the tarmac of Charlotte-Douglas International Airport and climbed into the wheel well of US Airways Flight 1176, bound for Boston.

Tisdale’s family sued US Airways, The airport, and the City of Charlotte alleging that the defendants negligently failed to ensure people could not access restricted areas.  Among the failure to warn claims was an allegation that the defendants failed to warn of the dangers of entering an aircraft as a passenger through the wheel well.

http://www.greensboro.com/news/local_news/family-of-teen-stowaway-who-fell-from-plane-s-wheel/article_3e969954-8528-5211-99c8-88cc77529794.html.  (Last visited 4/19/16).

The judge ultimately disagreed with Tisdale’s family and dismissed the case.  Siding with Charlotte City Attorney Robert Hagemann, the judge ruled in July, 2013 that Tisdale was negligent in his actions and that the city is not responsible for people who breach security.  http://boston.cbslocal.com/2013/03/07/judge-dismisses-suit-filed-by-family-of-airplane-stowaway-delvonte-tisdale/.  (Last visited 4/19/16).

The breach of security in the Tisdale case raised questions about airport security.  If a 16-year-old, who had never flown before could evade airport security measures, then why not a terrorist?  With the proliferation of wheel well stowaways, it is likely only a matter of time until a tragic mass tort occurs.

Aircraft Laser Strikes

Reports of aircraft targeting with handheld ground lasers have been rising sharply.  In 2006, there were 384 reported incidents.  By 2014, there were 3,894 reported incidents.  In 2015, there were 7,702 reported incidents.  The FAA has recorded approximately 22 aircraft laser strikes per day in 2016.  https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=15774  (Last visited 4/19/16).  https://www.faa.gov/about/initiatives/lasers/laws/.  (Last visited 4/19/16).  https://www.justice.gov/usao-edca/pr/bakersfield-man-sentenced-striking-sheriff-s-helicopter-laser   (Last visited 4/19/16).  https://www.justice.gov/usao-edca/pr/bakersfield-resident-sentenced-pointing-laser-kern-county-sheriff-helicopter.  (Last visited 4/19/16).

In a widely publicized recent incident, a Virgin Atlantic flight originating at Heathrow bound for New York with 252 passengers on board was forced to turn back after a flight crew “medical issue” was caused by a laser strike shortly after takeoff.  http://.bbc.com/news/uk-35575861.  (Last visited 4/19/16).

Exposure to laser illumination may cause hazardous effects such as pain, watery eyes, headaches, flash-blindness, distraction or disorientation, loss of depth perception, and aborted takeoffs or landings, in addition to danger during lower level flight.

In the United States, an area with high numbers of laser strikes is the 34 counties encompassed within the United States Judicial District for the Eastern District of California, a judicial district which has been vigorously prosecuting laser strike offenders and securing a large number of convictions resulting in prison sentences and fines. (Albuquerque, Chicago, Cleveland, Houston, Los Angeles, New York City, Philadelphia, Phoenix, Sacramento, San Antonio, and San Juan all have high incidence of laser strikes.)  As recently as March 7, 2016, that office secured a guilty plea from a thirty-five year-old man with a powerful green laser, about the size of a flashlight in his pocket.  The man pleaded guilty to multiple strikes on a California State Highway Patrol airplane.  https://www.justice.gov/usao-edca/pr/clovis-man-pleads-guilty-laser-strikes-chp-plane (Last visited 4/19/16).

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 which 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 involve green lasers rather than red.  This is significant because green lasers 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. http://www.faa.gov/pilots/safety/pilotsafetybrochures/media/laser_hazards_web.pdf.  (Last visited 4/19/16).

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).  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, including the parents of juveniles, who point a laser into the cockpit of an aircraft.  http://www.faa.gov/news/press_releases/news_story.cfm?newsId=12765.  (Last visited 4/19/16).  The maximum administrative penalty is a fine of $11,000.

The FAA released a legal interpretation which 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.  http://www.faa.gov/news/media/Laser%20Memorandum%20Final%20060111.pdf.  (Last visited 4/19/16).  The FAA conducted an analysis of 14 C.F.R. § 91.11 which provides 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.”  However, the FAA standard for liability is higher than the standard for criminal liability under 18 U.S.C. §§ 32 and 39A.

Federal regulations prohibiting interference with a crewmember in the performance of their duties 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.  http://www.faa.gov/news/press_releases/news_story.cfm?newsId=13555.  (Last visited 4/19/16).

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 § 39A, which makes it a federal crime to aim a laser pointer at an aircraft.  http://www.faa.gov/about/initiatives/lasers/laws/.  (Last visited 4/19/16).  Prior to 2012, federal prosecutions of laser illuminations of aircraft were initiated pursuant to 18 U.S.C. § 32(a)(5), which prohibits interference with the safe operation of an aircraft.  Aiming a laser at an aircraft is also prohibited by many state laws.

Between 2005 and 2013, there were 17,725 reported laser strikes in the United States, resulting in 134 arrests.  This data suggests that even when limiting the calculation to reported incidents, there is only a 0.75 percent chance of getting caught; a percentage that would decrease if unreported incidents were also considered.  There were 80 convictions among the 134 arrests. One reason for the conviction rate of 60 percent is that some who were arrested were minors who were never formally charged.  http://arstechnica.com/tech-policy/2014/05/blinding-light-the-us-crackdown-on-not-so-harmless-laser-strikes/3/.  (Last visited 4/19/16).

One high-profile case involved Sergio Rodriguez, who received a 14-year prison sentence after he was convicted of lasing police and medical helicopters in August, 2012.  Karen Escobar, the Assistant United States Attorney for the Eastern District of California who prosecuted the Escobar case, has pursued more cases against laser perpetrators than any other federal prosecutor.  Escobar was quoted as saying:

“At sentencing, [Rodriguez] did not accept responsibility for his actions; he blamed his 2- and 3- year-old children. I believe the evidence showed the laser was a dangerous weapon, and there was intention, supporting a guideline sentence of 168 months. I would not call it harsh. I would say it is a penalty that fits the crime, but I believe that it will have a deterrent effect, and I hope it will.”  Id.

The Ninth Circuit has since reversed Rodriguez’ conviction for violation of 18 U.S.C. § 32 and remanded for resentencing for the Section 39A violation.  The Ninth Circuit found that the evidence did not support proof of the willfulness requirement for a Section 32 violation, noting that Section 32 was intended to apply to the bin Ladens of the world, not knuckleheads like Rodriguez.  On remand, the district court imposed the maximum penalty of five years for the Section 32 violation.

Much of the current focus on laser strikes focuses on interdiction and criminal prosecution.  The potential for a laser beam disabling a flight crew, and resulting in a mass tort, creates civil liability questions which have yet to be resolved.

Animal Passengers: Is it a Pet, a Service Animal, an Emotional Support Animal, Or Something Else, and Does It Get a Ride?

Walking through any large airport in 2016, it is likely that departing and arriving passengers will see any number of animals and a wide variety of species, shapes, and sizes.  Dogs, cats, birds, rodents, reptiles, pigs and even miniature horses are all found in airports waiting to board.  The distinction between service animals, companion animals, emotional support animals, and pets may not always be clear.

Transport of service animals, including emotional support animals is governed by the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705 (1986), which incorporates provisions consistent with the Americans With Disabilities Act, 42 USC § 126 (1990).  In contrast to service animals, transport of pets is generally done for an additional fee, which can be significant.  Transportation of pets is generally governed by airline and airport policy, so long as policy is consistent with FAA, TSA, USDA and DOT rules and regulations.  This can lead to arguably conflicting policies and practices by airports and carriers.

Animals and the Air Carrier Access Act

The ACAA prohibits discrimination by U.S. and foreign air carriers on the basis of physical or mental disability.  In 1990, the U.S. Department of Transportation promulgated the official regulations implementing the ACAA.  Those rules mandate nondiscrimination on the basis of disability in air travel.  14 CFR Part 382.

The implementation regulations in Part 832, and guidance publications prepared by DOT provide guidance for airline employees and people with disabilities in understanding and applying the ACAA and the provisions of Part 382 with respect to service animals in determining:

(1) whether an animal is a service animal and its user a qualified individual with a disability;

(2) how to accommodate a qualified person with a disability with a service animal in the aircraft cabin; and

(3) when a service animal legally can be refused carriage in the cabin.

The 1996 DOT ACAA guidance manual defines a service animal as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.” “Guidance Concerning Service Animals in Air Transportation,” (61 FR 56420-56422, (November 1, 1996)).

In 2003, DOT clarified the previous definition of service animal by making it clear that animals that assist persons with disabilities by providing emotional or psychiatric support qualify as service animals.  The definition of service animal was modified to clarify that airlines had authority to require that passengers provide documentation of the individual’s disability and the medical necessity of the passenger’s travel with the animal in cases involving emotional support animals and psychiatric service animals

The DOT has continued to update the guidance materials.  Nondiscrimination on the Basis of Disability in Air Travel, 73 FR 27614, May 13, 2008 as modified by: Correction Notice of 74 FR 11469, March 18, 2009, Correction Notice of 75 FR 44885, July 30, 20010.  http://airconsumer.ost.dot.gov/rules/Part%20382-2008.pdf.  (Last visited 4/19/16).

Also of note in the DOT guidance materials:

  • Pets are not service animals.
  • Some unusual service animals, including snakes, other reptiles, ferrets, rodents and spiders pose unavoidable safety and/or public health concerns and airlines are not required to transport them in the cabin.
  • Other unusual service animals such as miniature horses, pigs and donkeys should be evaluated on a case by case basis.
  • When Part 382 was first promulgated, most service animals were guide or hearing dogs. Since then, a wider variety of animal (g., cats, monkeys, etc.) have been individually trained to assist people with disabilities. Service animals also perform a wider variety of functions than ever before (e.g., alerting a person with epilepsy of imminent seizure onset, pulling a wheelchair, assisting persons with mobility impairments with balance) which can make it difficult for airline employees to distinguish service animals from pets, especially when a passenger does not appear to be disabled, or the animal has no obvious indicators that it is a service animal.
  • People with disabilities use many different terms to identify animals that can meet the legal definition of “service animal.” These range from umbrella terms such as “assistance animal” to specific labels such as “hearing,” “signal,” “seizure alert,” “psychiatric service,” “emotional support” animal, etc. that describe how the animal assists a person with a disability.
  • In a nutshell, the main requirements of Part 382 regarding service animals are:
    • Carriers shall permit dogs and other service animals used by persons with disabilities to accompany the persons on a flight. § 382.117(a).
    • Carriers shall accept as evidence that an animal is a service animal identifiers such as identification cards, other written documentation, presence of harnesses, tags or the credible verbal assurances of a qualified individual with a disability using the animal.
    • Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation or to comply with FAA regulations.
  • If a service animal cannot be accommodated at the seat location of the qualified individual with a disability whom the animal is accompanying, the carrier shall offer the passenger the opportunity to move with the animal to a seat location in the same class of service, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel in the cargo hold § 382.117(c).
  • Carriers shall not impose charges for providing facilities, equipment, or services that are required by this Part to be provided to qualified individuals with a disability § 382.31.

In one recent case, a Washington State trial court analyzed the requirements of the ACAA as applied to an injury to a passenger caused by a Rottweiler service dog.  Sullivan v. Alaska Air Group, Inc., et al., Spokane County Case No. 15-02-00227-3, February 29, 2016.  Defendant owner of the Rottweiler was initially seated in back of the plane, but moved to row one to accommodate the size of the dog.  Plaintiff was seated in row two.  On arrival in Spokane, the dog allegedly bit plaintiff’s hand as she disembarked.

Plaintiff contended the airline had a duty to protect her and that the animal posed a foreseeable risk.  The airline argued that the ACAA preempted, either through conflict or field preemption, the plaintiff’s claims.  In conducting a preemption analysis, the court noted that airline passenger safety in regards to service animal is pervasively regulated by the ACAA sufficient to find that federal law expressly preempts and state standards of care.

The court granted the airline’s motion for summary judgement based on ACAA preemption.  The court noted that the requirements of 14 C.F.R. § 382.117 did not preclude the Rottweiler from riding on the plane.  The airline established, in satisfaction of the statutory requirements that the animal was, in fact, a service animal and they also determined that the animal did not present either a direct threat to the health and safety of others or a significant threat to the disruption of airline service.  Evidence was presented that the dog flew on the carrier or its partners twelve times previously without incident. Finally, there were harness markings or other credible assurances provided to establish that the dog was a service animal.

Animals present airlines and airports with a minefield of compliance, liability, public relations and customer service issues which range from fundamental flight safety, to combating abuses of the ACAA in order to obtain free plane tickets for pets.  In many cases, it may come down to a judgment call about whether the animal can safely be accommodated, or whether it will disrupt, or even endanger the flight.  Airlines also face very high fines for failing to accommodate legitimate service animal accommodation requests.

In January, 2016, a passenger brought a live turkey onto a Delta Airlines flight, claiming the animal was needed for emotional support.  Delta noted that the passenger had complied with the rigorous requirements of the ACAA which included providing documentation from a mental health professional that the animal’s companionship was necessary for travel.

Delta’s spokesperson noted that any therapist can sign off on any kind of animal, however, snakes, spiders and farm poultry are not acceptable.  Animals allowed to board as service or emotional support animals under the ACAA are accommodated free of charge, and are not allowed to block emergency exits or occupy seats designed for passengers. https://www.washingtonpost.com/news/morning-mix/wp/2016/01/15/someone-just-used-a-federal-law-to-bring-a-live-turkey-on-a-delta-flight/.  (Last visited 4/19/16).  http://www.nydailynews.com/news/national/turkeys-sitting-planes-emotional-support-animals-article-1.2496248.  (Last visited 4/19/16).

NTSB Factual Reports and the Hearsay Rule in Oregon Aviation Cases

Oregon books

Oregon Evidence Code Rule 803(8) Provides the Necessary Exception to the Hearsay Rule for NTSB Fact Reports

Although the statements made in the Group Chairman’s reports (“the fact reports”) are arguably hearsay, the reports fall within an exception to the hearsay rule provided under the Oregon Evidence Code (“OEC”).  First, the fact reports are admissible as hearsay exceptions under OEC 803(8)(b).  That rule provides, in part, that reports “of public offices or agencies” that set forth “[m]atters observed pursuant to duty imposed by law as to which matters there was a duty to report” are admissible as exceptions to the hearsay rule.

Second, fact reports are admissible as hearsay exceptions under OEC Rule 803(8)(c), which provides, in part, that reports in civil actions “of public offices or agencies” that contain “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible as exceptions to the hearsay rule “unless the sources of information or other circumstances indicate lack of trustworthiness[.]”

A factual NTSB report falls within the exception for hearsay provided by 803(8)(b)-(c) because it contains “factual findings” resulting from an investigation made by the NTSB, a government agency, pursuant to the authority granted to the NTSB investigators by law.  The NTSB “shall investigate…each accident involving civil aircraft:”  49 USC § 1132(a)(1)(A).  Moreover, by law, the investigation is required to result in a report.  49 USC § 1131(e) (“The Board shall report on the facts and circumstances of each accident investigated by it under subsection (a) or (b) of this section.  The Board shall make each report available to the public * * *.”).  The report and its attachments thus satisfy the foundational elements of OEC 803(8)(b)-(c).

The Admissibility of NTSB Fact Reports at Trial

Businesswoman standing in airplane engine

Introduction

The admissibility of NTSB fact reports at trial is a key issue for aviation lawyers.  The aviation accident defense lawyer must know how the NTSB works and what the relevant authorities are related to the admissibility of the various reports that the NTSB creates.  Aviation defense lawyers must also know what arguments plaintiffs are likely to make in a case where the factual reports prepared by the NTSB under the party system it employs, are unfavorable.  The aviation defense lawyer must be properly schooled on NTSB agency procedure, the party system, the enabling legislation, and the federal statutes that outline the NTSB mandate and system.

Finally, the aviation defense lawyer must know the local rules of evidence typically implicated in what is usually a hard fought battle to admit one or more of what may be the many NTSB group fact reports. This is extremely important for the aviation defense lawyer to understand in jurisdiction like Portland, Oregon, where state court is generally very plaintiff-friendly. Most state court judges do not have experience presiding over cases where a federal agency, let alone a federal agency as unique and specialized such as the NTSB, plays such a central role.

The NTSB Mandate

The NTSB s a unique federal agency.  It is not a federal executive branch agency, but rather is a congressionally chartered, completely independent agency.  The NTSB has a single aviation mandate: to investigate every aviation (and other forms of transportation such as rail, ferry, bus, subway) accident in the Unites States; to determine the probable cause of the accident; and to make recommendations to help protect against future accidents.  49 U.S.C. §§ 1131, 1132, 1135.  See also Chiron Corp. v. NTSB, 198 F.3d 935, 938 (D.C. Cir. 1999).   An NTSB investigation is “not conducted for the purpose of determining the rights or liabilities of any person.  Board regulations and policies are explicit in providing that parties participating in an investigation are involved in NTSB processes only to assist the safety mission and not to prepare for litigation.”  Id. (quotation marks and alterations omitted).

Under the NTSB investigative system discussed below, the operational and investigative methods of the NTSB result in the production of numerous so-called group chairman’s reports, which are intended to be factual in nature.  These are typically referred to as the NTSB “fact reports”.  At the end of the investigation, the NTSB board members may conduct a hearing during which the NTSB group chairs who lead the groups who authored the factual reports may testify.

When the investigation is complete, the Investigator In Charge (“IIC”) of the investigation issues a final report that contains conclusions and a finding of probable cause, which is then released to the public after adoption by the NTSB board members.  Although discussed in further detail below, 49 U.S.C. § 1154(b) prohibits the use of the final probable cause report prepared by the Board itself, as distinguished from it staff’s factual accident reports.

The NTSB Party System and Factual Report Process

For major aviation accidents, the NTSB typically sends a “Go Team”, one of several that the NTSB maintains in readiness so that they can typically leave within hours to go to the site of an accident and immediately begin investigating.  Rachel G. Clingman, LITIGTING THE AVIATION CASE FROM PRE-TRIAL TO CLOSIING ARUMENT 385 (Andrew J. Harakas ed., 3rd ed. 2008).  The NTSB then designates an IIC to oversee the full investigation.  Id. The NTSB and the IIC then nominate parties to participate in the investigation, and organizes themselves and the participating parties into different investigatory groups.  Id.

Each group investigates specific factors related to the accident, including operations, survival factors, meteorology, airworthiness, and aircraft performance.  Id.  Each group is headed by a chairperson who drafts a factual accident report regarding his or her subject matter that is submitted to the IIC.  Id.  The IIC submits the various chairperson factual accident reports to the NTSB, which then uses these reports to prepare the final Board accident report  Id. at 385-86.  Typically, but not always, the Board issues its final report very shortly after the final public hearing, if one is held.

Since aviation crashes can lead to incredibly complicated investigations and require countless individuals with extremely deep experience in sometimes unusual and unique skills including sound spectrum, meteorology, survival factors, CVR and FDR data recovery, aviation operations, metallurgy, airworthiness, crashworthiness, and a host of other factors, the NTSB investigation and reporting process is essential for the aviation defense lawyer to understand.  As noted above, the depth of this investigatory process is typically something most state court judges are not very familiar with.  The parties who are nominated to participate by the NTSB sign declarations attesting that they will not use or shape the information obtained during the investigation as advocates for their employers, who are often stakeholders in the investigation.  The parties agree to use their skill and knowledge and bring what they contribute to the party system investigation only for the purpose of finding the cause of the accident and making recommendations to improve safety.

The investigations conducted by some groups are incredibly broad.  For example, often the operations group will interview pilots and witnesses; travel to the scene, however remote; obtain records; travel to pilot bases; obtain and review pilot records; interview co-workers; and obtain records associated with the maintenance and flight house of the helicopter.

Method For Determining Admissibility

A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”.  Luce v. United States, 469 U.S. 38, 40 n.2 (1984).  The court has inherent authority to decide such motions in order to manage the course of trials. Id at 41.  The court also has broad discretion to decide preliminary questions concerning the qualifications of a witness or the admissibility of evidence.  O.E.C. 104.  In State v. Busby, 315 Or. 292, 844 P.2d 897 (1993), the Oregon Supreme Court noted that it had “expressly approved the use of a pretrial motion in limine to obtain a ruling on evidence before the evidence is sought to be introduced.”  315 Or. n.16 at 305.

Other courts have permitted motions in limine to be filed by a party seeking pretrial rulings that NTSB group chairman’s factual reports were admissible, In re Air Crash at Charlotte, N.C. on July 2, 1994, 982 F. Supp. 1071, 1075 (D. S.C. 1996), or inadmissible, Brown v. Teledyne Continental Motors, Inc., No. 1:06-CV-00026 (N.D. Ohio March 15, 2007).

It is particularly appropriate to file a motion in limine well before the start of any aviation trial.  The NTSB investigation will likely be extensive, and by statute and regulation the NTSB is the only authorized investigatior into the facts and circumstances of the subject accident.  By the time the final report is released in a major NTSB investigation, thousands of hours may have been spent to produce an extensive body of evidence, all of which would be contained on the NTSB’s own public docketing system, and which would be virtually impossible to reproduce absent significant additional time and at incredible cost.

Conclusion

Aviation defense counsel should begin studying the NTSB fact reports, as well as what is virtually always a massive amount of attachments (exhibits) to the reports, as soon as possible.  The reports are virtually always primarily new information since during the pendancy of the NTSB investigation, the NTSB will use its powers as the exclusive investigating agency to voluntarily obtain or subpoena documents related to the investigation which, pursuant to the regulations, are not discoverable until released by the NTSB.  In many cases this is not until after the factual group chairman’s reports are posted to the NTSB docket, or even until after the Board’s report is due, although, as noted above, the report containing the Board’s causal conclusions and safety recommendations is inadmissible pursuant to statute.  The skilled aviation defense attorney will assess the judge’s familiarity with the NTSB and the NTSB process, if any, as soon as possible and begin educating the judge appropriately so that the proper rulings are obtained.

 

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.

Effective Cross-Examination of Plaintiff’s Psychological Expert Can Reduce or Eliminate Damages for Misdiagnosed Claims of PTSD

Jurors in the jury box

Post-Traumatic Stress Disorder (“PTSD”) is a mental disorder within the trauma and stressor-related disorders included in The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or DSM-5.  It was previously categorized in the anxiety classification of disorders in the “DSM-IV”.

Personal injury, product liability, and aviation defense lawyers should be well prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs that they suffer from PTSD.  Reasons for thorough preparation include the frequent lack of critical information regarding a plaintiff’s background, inadequate psychological testing, improper reading of validity scales, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of plaintiff.  If defense counsel is thoroughly familiar with the DSM-5 (and its criteria and commentary on PTSD) and is prepared for an effective cross-examination of plaintiff’s treating or forensic psychologist, damages for emotional distress in PTSD claims can be significantly reduced or eliminated.

Olson Brooksby primarily defends product liability, higher exposure personal injury, and aviation cases.  Over the past few years, we have seen a trend developing whereby almost every plaintiff filing a personal injury lawsuit in such cases claims they suffer from PTSD as a consequence of the alleged injury, without regard for any other potential causes or their own overall life experience.  As a result, most plaintiffs seek emotional distress damages for PTSD as an element of damages in their personal injury lawsuits.

This being the case, there is no substitute for thorough preparation, in-depth knowledge of the material, and the ability to translate “psycho-speak” into plain language in order to mount an effective cross examination.  This preparation should start with a rigorous study of the DSM-5.

Effectively Challenging Plaintiff’s Allegation of PTSD Can Significantly Reduce or Eliminate Plaintiff’s Claim For Emotional Distress Damages

Most plaintiff and defense attorneys would likely admit that handling PTSD claims on behalf of their respective clients, and in particular, dealing effectively with forensic psychological experts, is difficult.  In defending a personal injury action where PTSD is claimed, it is essential that defense counsel have a thorough understanding of the interaction between the DSM-5, standardized testing, how the testing was scored, whether the tests administered had validity scales, and what other personal historical factors and information the plaintiff’s examining physician had available to him or her.

It is also important to determine whether the plaintiff’s experts considered any other mental disease or defect, and, if so, how they reached their differential diagnosis of PTSD.  All of this is necessary for thoroughly cross-examining plaintiff’s experts and challenging misdiagnosed claims of PTSD.

There is no single test that will clinically establish the presence of PTSD.  Typically, tests such as the MMPI, the TSI, or other standardized tests are administered.  Defense counsel should know whether there are validity scales and what they show, and they should be prepared to cross-examine plaintiff’s expert on these issues.  Defense counsel should cross-examine plaintiff’s expert on his or her knowledge of recent longitudinal studies done on PTSD, many of which are authored or co-authored by members of the DSM-IV or DSM-IV-TR PTSD Work Group or other Task Force or advisors.

Other fertile strategies for cross-examination include probing the extent of the expert’s clinical experience, how they applied clinical judgment to reach the diagnosis, how they accounted for malingering, and extensive questioning regarding key diagnostic criteria such as “life-threatening” and “persistence.”

Essential Diagnostic Features of Post-Traumatic Stress Disorder (“PTSD”) 

“The essential feature of post-traumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events.  Emotional reactions to the traumatic event (e.g., fear, helplessness, horror) are no longer a part of Criterion A.  The clinical presentation of PTSD varies.  In some individuals, fear-based re-experiencing, emotional, and behavioral symptoms may predominate.  In others, anhedonic or dysphoric mood states and negative cognitions may be most distressing.  In other individuals, arousal and reactive-externalizing symptoms are prominent, while in others, dissociative symptoms predominate.  Finally, some individuals exhibit combinations of these symptom patterns.”  DSM-5 at p. 274.

The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (e.g., physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (e.g., forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents.

For children, sexually violent events may include developmentally inappropriate sexual experiences without violence or injury.  A life-threatening illness or debilitating medical condition is not necessarily considered a traumatic event.  Medical incidents that qualify as traumatic events involve sudden, catastrophic events (e.g., waking during surgery, anaphylactic shock).  Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse of another person due to violent assault, domestic violence, accident, war or disaster, or a medical catastrophe in one’s child (e.g., a life-threatening hemorrhage).  Indirect exposure through learning about an event is limited to experiences affecting close relatives or friends and experiences that are violent or accidental (e.g., death due to natural causes does not qualify).  Such events include violent personal assault, suicide, serious accident, and serious injury.  The disorder may be especially severe or long-lasting when the stressor is interpersonal and intentional (e.g., torture, sexual violence).

The response to the event must involve intense fear, helplessness, or horror.  In children, the response must involve disorganized or agitated behavior.  Characteristic symptoms include persistent re-experiencing of the traumatic event, persistence of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal.  The full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

An individual will have persistent symptoms of anxiety or increased arousal not present before the trauma.  These symptoms can include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived.  Other symptoms can include hyper-vigilance and exaggerated startle response.  Some individuals report irritability, outbursts of anger, or difficulty concentrating or completing tasks.

Associated Descriptive Features and Mental Disorders 

Developmental regression, such as loss of language in young children, may occur.  Auditory pseudo-hallucinations, such as having the sensory experience of hearing one’s thoughts spoken in one or more different voices, as well as paranoid ideation, can be present.  Following prolonged repeated and severe traumatic events (e.g., childhood abuse or torture), the individual may additionally experience dissociative symptoms, difficulties in regulating emotions, and/or difficulties maintaining stable relationships.

When the traumatic event produces violent death, symptoms of both problematic bereavement and PTSD may be present.  Part of the difficulty in accurately diagnosing PTSD is that it is associated with many other anxiety and mental disorders.  For example, PTSD is also associated with increased rates of Major Depressive Disorder, Substance-Related Disorders, Panic disorder, Agoraphobia, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder, Social Phobia, Specific Phobia, and Bipolar Disorder.  These disorders can precede, follow, or emerge concurrently with the onset of PTSD.

PTSD Prevalence Rates

In the United States, projected lifetime risk for PTSD using DSM-IV criteria at age 75 years is 8.7%.  Twelve-month prevalence among U.S. adults is about 3.5%.  Lower estimates of 0.5%-1.0% are seen in Europe, Africa, and Latin America.  The DSM-IV discusses community-based studies that reveal a lifetime prevalence for PTSD of approximately 8% of the adult population in the United States.  Information about general prevalence rates in other countries is not available.   Studies of at-risk individuals yield variable findings, with the highest rates (ranging between one-third and more than half of those exposed) found among survivors of rape, military combat and captivity, and ethnically or politically motivated internment and genocide.

Differential Diagnosis

PTSD can occur at any age, beginning after the first year of life.  Symptoms usually begin within the first three months following the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met.  There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting the full criteria.

The DSM-5 emphasizes that with PTSD, the stressor must be of an extreme, (i.e., “life-threatening) nature.  In contrast, other mental disorders often mistakenly diagnosed as PTSD include Adjustment Disorder, where the stressor can be of any severity.  The test also points out that not all psychopathology that occurs in individuals exposed to an extreme stressor should necessarily be attributed to PTSD and may be the result of many other mental disorders.  Mentioned are Acute Stress Disorder, Obsessive Compulsive Disorder, Schizophrenia, and other psychotic disorders or mood disorders with psychotic features.  Although a discussion of all diagnostic criteria is beyond the scope of this article, virtually each of the diagnostic criteria for PTSD emphasize that persistence of the symptoms, the re-experiencing of the event, and the avoidance of associated stimuli is essential.

Conclusion

Scott Brooksby recently cross examined a plaintiff’s forensic psychologist in a high-exposure personal injury case he was defending.  Plaintiff’s expert typically diagnosed more than half of those he evaluated with PTSD.  On cross-examination, this expert was not familiar with the prevalence rates, the specific criteria, or the comorbidity issues associated with PTSD and published in the DSM.  Most significantly, he could not describe the single most important feature for a diagnosis of PTSD: a “characteristic set of symptoms following exposure to one or more traumatic events.”  Instead, the expert merely opined that, in so many words, plaintiff was unhappy, withdrawn, and appeared to be troubled by a series of events.  The expert could not describe the relative significance of the plaintiff’s life events or link them to the specific criteria needed to achieve an accurate PTSD diagnosis.

It is important that the cross-examination specifically pin down the basis for the expert’s diagnosis, especially now with the much more detailed DSM-5, and the breaking up of many of the negative cognition clusters and a much more specific list of negative experience categories.

Even a comprehensive summary of the methodology for most effectively questioning or challenging a plaintiff’s claim of PTSD is beyond the scope of this blog post.  However, when cross-examining plaintiff’s expert witness regarding a PTSD diagnosis, defense counsel should always keep in mind that the plain text of the DSM-5, and examples of the trauma and criteria typically associated with PTSD, can often be easily contrasted with the data to disprove or cast doubt on the PTSD diagnosis.

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.

Discovery and Admissiblity of Evidence of Prior Claims in Oregon Product Liability Cases

Olson Brooksby handles a wide variety of product liability cases involving products such as helicopter engines, heavy equipment, steel, toys, tools, household appliances and chemicals, paints, and solvents.  We frequently work with clients who have had prior claims involving allegedly defective products.  In product liability litigation, plaintiffs’ lawyers almost always ask for documentation involving prior claims.  Usually, plaintiffs issue a broad request for documents regarding all prior incidents of any kind related to the model of product at issue or any version of that model.

The Standard for Discovery of Prior Claims

In Oregon, evidence regarding prior claims is generally discoverable.  ORCP 36 B(1).  In order for an opposing or other party to obtain discovery, the evidence should simply be relevant and reasonably likely to lead the discovery of admissible evidence.  Therefore, on a motion to compel, product liability defense counsel should expect that documentation concerning prior claims will be discoverable, particularly in cases concerning home appliances and other mechanical products.

An objection to a discovery request on the basis that the evidence may not be admissible at trial is not proper.  Oregon trial courts will allow discovery of evidence of prior claims if the products, conditions, or uses are merely “similar” as opposed to “identical.”

By way of a hypothetical example, suppose Large Bike Manufacturing Company manufactured a number of bikes during the past few months or years and the front rim of the tire was bending when bumps were hit that similar bikes were able to withstand.  Also suppose that a bicyclist was injured when the front rim on one of the bike models struck a speed bump even though the bicyclist was riding cautiously and reasonably.  On a motion to compel, most Oregon state court trial judges would order the production of all prior incidents of injury regarding other bike models with the same wheel, not just the model of bike that the bicyclist was riding.  The court would also likely order production of other claims of injury on all bikes, even if such injuries were caused by other mechanical failures.

The Standard for Admissibility of Prior Claims

The admissibility of evidence of other claims is governed by Oregon Evidence Code (“OEC”) 401, which defines relevant evidence; OEC 402, which provides that relevant evidence is generally admissible; and OEC 403, which provides for the exclusion of relevant evidence in the event prejudice, confusion, or undue delay associated with the admission of the disputed evidence, in this case of prior claims, outweighs the probative value or helpfulness to the trier of fact.  Whether evidence of prior claims is discoverable and whether such evidence is admissible are two distinct issues.

With respect to the admissibility of evidence of prior claims, as opposed to the mere discovery of prior claims, OEC 401 generally provides that evidence of similar prior conduct, events, accidents, or even negligence, is generally held to be inadmissible to prove negligence or lack of negligence in the case being litigated.

However, evidence of prior similar acts, conduct, or events, which Oregon courts universally have ruled includes prior claims, is often held admissible to prove causation, danger, knowledge, intent, or the existence of a particular defect.  One of the seminal cases on this issue is Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444 (2002), rev den, 335 Or 479 (2003).  Admissibility of the allegedly similar act will depend on whether prior conduct or events occurred under “similar conditions and circumstances,” although identical circumstances are not required.  Lakin v. Senco Products, Inc., 144 Or App 52, (1996), aff’d, 325 Or 438 (1997).

Whether the conditions and circumstances are substantially similar enough to allow admission of the evidence of prior claims is a decision for the court and will be reviewed on appeal under an abuse of discretion standard, which is a high standard.  As noted above, identical circumstances or an identical product is not necessary for admission of such evidence. Generally, unless there is clear prejudice, evidence of prior claims will be admissible.  The judge will usually comment that defense counsel is free to engage in cross-examination on the differences in the claims and argue that they go to the weight of the evidence.

In a product liability case, regardless of what the product may be, defense counsel should be prepared for a ruling that evidence of prior claims is discoverable.  Counsel should also be prepared for a ruling that evidence of prior claims is admissible.  Therefore, it may be advantageous to file a motion in limine to exclude evidence of prior claims on the grounds that they are either dissimilar, or that there is insufficient information to even determine whether they are dissimilar.  The motion in limine should be filed before trial, so that even if the court admits evidence of prior claims, experts and witnesses can be prepared to address the prior claims in a way that minimizes any perceived wrongdoing.  Counsel should also consider the possibility that any product design changes may be considered “subsequent remedial measures” and should plan any motions in limine accordingly.

 

The Newly-Released DSM-5 and Its Use in Personal Injury Cases

Olson Brooksby primarily defends high-exposure product liability and personal injury cases.  Over the past few years, it seems as though many of these cases involve personal injury claims for mental disorders, particularly Post-Traumatic Stress Disorder (“PTSD”), as a result of the alleged accident at issue in the lawsuit.

PTSD is a mental disorder within the anxiety classification of disorders in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or “DSM”.  It is important to be familiar with the most recent version of the DSM when defending against a personal injury claim filed by a plaintiff who alleges a mental disorder.

In order to assist companies defending against personal injury claims requesting damages for various mental disorders, this article discusses the DSM and the recently-released DSM-5, and explains why it is important for personal injury defense lawyers to be familiar with the DSM-5 when defending against personal injury claims.

The DSM: The Single Most Authoritative Manual Regarding the Diagnosis of Mental Disorders

The DSM is universally recognized as the single most authoritative manual regarding the diagnosis of mental disorders.  The current version of the DSM, the DSM-5,was just released this week.  The previous version, the DSM-IV, was published in 1994 and the text was revised (DSM-IV-(TR)) in 2000.

The usefulness and credibility of the DSM for education, research, clinical, or forensic work depends upon the support of an extensive empirical foundation.  The DSM was created by the  American Psychiatric Association (APA) in order to provide a helpful guide to clinical practice with a uniform nomenclature that spans disciplines and purposes.  While a complete history of the development of the DSM-5 and earlier editions is far beyond the scope of this article, a short synopsis is crucial to the understanding of the universal acceptance of the text as authoritative.

The Principal Purpose of the DSM

The undisputed principal purpose of the DSM is to aid clinicians in the diagnosis of mental disorders, not for forensic purposes.  In fact, the DSM-IV and 5 both include disclaimers that spell out the significant risks that are present within the DSM categories, criteria, and textual descriptions when they are employed for forensic purposes.  The primary danger is that the diagnostic criteria will be misused or misunderstood.  This is because of the imperfect fit between the questions of ultimate concern to the law and the information used by clinicians to render a clinical diagnosis.

Additionally, in a forensic setting, nonclinicians should be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or impairments.  The clinical diagnosis of a DSM mental disorder is not sufficient to establish the existence for legal purposes of a “mental disorder”.  In determining whether an individual meets a particular legal standard (e.g., a particular disability), additional information is usually required beyond the DSM diagnosis.

The DSM provides categorical classifications that divide mental disorders into types based on criteria sets with defining features.  It is a classification of mental disorders that was developed for use in clinical, educational and research settings.  The DSM is meant to serve as a guideline to be informed by clinical judgment and is not meant to be used in a cookbook fashion.  It is essential that the DSM not be applied by untrained individuals, since clinical training, judgment and experience are essential to proper diagnosis

The Development of the DSM-5

A Task Force and Work Groups made up of more than 160 world-renowned clinicians and researchers proposed the draft criteria for the DSM-5.  Those clinicians and researchers, all volunteers, consisted of experts in neuroscience, biology, genetics, statistics, epidemiology, social and behavioral sciences, nosology, and public health.

Applying Knowledge of the DSM-5 to Claims in Personal Injury Cases

Personal injury defense lawyers should be prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs who allegedly suffer from any kind of mental disorder.  There are a number of reasons that extensive preparation is required when defending against personal injury claims for mental disorders, particularly claims for PTSD.  These include the nomenclature involved in the diagnosis, the relative complexity and universal acceptance of the DSM-5 as the authoritative source for the PTSD diagnostic criteria, and the dangers of malingering when financial remuneration is at issue.  Other reasons include what is typically a lack of the critical additional information regarding a plaintiff’s background, inadequate testing, improper reading of (or absence of) validity scales in a given standardized test, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of the plaintiff.

If defense counsel is thoroughly familiar with the DSM-5, the DSM-5 criteria and commentary on the particular mental disorder at issue, and is prepared for an effective cross-examination of the plaintiff’s treating or forensic psychologist, the damages in cases involving personal injury claims for mental disorders can be significantly reduced or eliminated.

Variables that can affect burn injury cases

Most experienced defense lawyers know that the variables in burn injury cases prevent anything resembling a guarantee of a good result.  The following variables can affect the outcome of a case, including the potential financial exposure that a defendant or its insurer or worker’s compensation carrier may face:

– the different types of skin grafts and skin graft surgical procedures commonly involved in burn cases;

– whether, in high total body surface area (tbsa) burns, complete excision and grafting can be completed in a single principal procedure;

– the treatment technique, surgical technique and treatment philosophy of the physician; and

– the relative size of the burn center, as larger centers tend to be able to perform certain procedures–not because of greater skill, but because of the size and number of  surgical teams necessary.

Skin Graft Classification and Skin Graft Surgical Procedures

In burn injury cases, surgical removal (excision or debridement) of the damaged skin is followed by grafting.  The grafting is designed to reduce the course of hospital treatment and improve function and cosmetic appearance.  There are typically two types of skin grafts–mesh grafts and sheet grafts.  A less-common, third type of graft is a composite graft.

Mesh Grafts

Mesh grafting is known as partial-thickness grafting, or split-thickness grafting.  With mesh grafting, a thin layer of skin is removed from a healthy part of the body, known as the donor site.  It is processed through a mesher, which makes apertures into the graft. The graft then becomes mesh-like, allowing it to expand approximately nine times its original size.  Such grafts are used to cover large areas and the rate of auto-rejection is lower.  Harvesting of these grafts from the same site can occur again after as little as six weeks.  The surrounding skin requires dressings and the donor site heals by reepithelialization.

Using a dermatome, the surgeon usually produces a split-thickness graft which is carefully spread on the bare area to be covered.   It is held in place by a few small stiches or surgical staples.   The graft is initially nourished by a process called plasmatic imbibition in which the graft drinks plasma.  New blood vessels begin growing from the recipient area and into the transplanted skin within 36 hours in what is called capillary inosculation.  To prevent accumulation of fluid, the graft is frequently meshed by making lengthwise rows of short interrupted cuts, each a few millimeters long, with each row offset to prevent tearing.  This allows the graft to stretch and more closely approximate the contours of the affected area.

Sheet Grafts

In the alternative, a sheet graft, which is a full-thickness graft, involves pitching and cutting away skin from the donor section.  Sheet grafts consist of the epidermis and entire thickness of the dermis.  Sheet grafts must be used for the face, head and hands because contraction must be minimized.  If sheet grafting is necessary but the donor sites are insufficient, the outcome is likely to be less satisfactory, and the financial exposure in such cases will be higher.

With sheet grafting, the donor site is either sutured closed directly or covered by a split-thickness graft.  Sheet grafts are more risky in terms of rejection, yet counter-intuitively leave a scar only on the donor section.  Sheet grafts also heal more quickly and are less painful than partial-thickness grafting.

Sheet grafting is usually difficult in severe aviation or manufacturing burns because those involve high-percentage tbsa burns and donor sites are therefore limited.

Composite Grafts

The third type of graft, a composite graft, is a small graft containing skin and underlying cartilage or other tissue.  Donor sites would include the ears and other cartilage to reconstruct, e.g., nasal rim burns.

In High TBSA Burns, When Immediate, Complete Excision and Grafting is Completed in a Single Procedure, Damages Amounts May Be Lower.

In cases involving clearly severe, high tbsa burns, whether full or partial thickness, immediate, complete excision and grafting is usually indicated.  If immediate excision and grafting is complete–that is, done in a single procedure–a much larger surface area surgery can be completed with less blood loss.  This minimizes transfusion needs and dangers and also speeds physiological restoration.

Furthermore, an immediate, complete excision and grafting procedure can often allow use of good skin for grafting that would otherwise need to be excised.  If the procedure is not done immediately, less skin may be available for grafting.  In other words, skin that otherwise may have been healthy and usable when the plaintiff was first admitted to the hospital may die if the procedure is not done immediately, particularly if that skin is close to the burn site.

Immediate, complete excision and grafting also cuts down on the number of procedures and allows important vascular redevelopment to begin occurring sooner and supplying the graft locations with blood flow, which is essential to healing.

 The Treatment Technique, Surgical Technique and Treatment Philosophy of the Physician Can Be Outcome-Determinative

The simple fact is that some surgeons are more skilled than others, so the outcome may be better or worse depending on the skill of the physician.

There are also some advances in burn surgery that particular physicians are able to employ.  For example, in the most serious burn cases, grafts may be taken from other animals.  Such grafts are known as heterografts and, by design, they serve as temporary dressings that the body will unquestionably reject within days to a few weeks.  They are used in severe cases to reduce bacterial concentration of an open wound and reduce fluid loss.

Additionally, some surgeons are able to use cell cultured epithelial autograft (CEA) procedures, which involve removal of skin cells from a patient and the growth of new skin cell sheets in a lab.  Although the new sheets will not be rejected, they are typically only a few cells thick and do not stand up to trauma.  As a result, many such grafts do not take and the procedure must be repeated or an alternate procedure employed.

Furthermore, some physicians prefer to do more sheet grafting versus mesh grafting.  The physicians who prefer mesh grafting like it because they can cover much larger areas in a shorter period of time.  Conversely however, mesh grafting requires more revision surgeries, more of a risk that the grafts don’t take, and more contraction, which is disfiguring and requires further surgery.

Different groups of surgeons have their own philosophies and cultural preferences.  In Portland, Oregon, for example, there is one group of approximately five, highly-skilled burn surgeons who staff the Oregon Burn Center at Emanuel Hospital.  Due to the relatively small size of the burn center, they tend to wait four to seven days before conducting major graft procedures so that they can have a better assessment of the full extent of the injury.

The Relative Size of the Burn Center Can Be Outcome-Determinative

Larger burn centers, such as the ones at UC Davis or Harborview in Seattle, do not necessarily provide better treatment, but they are typically capable of complete excision and grafting at admission when there is a high percentage of the total body that sustains full-thickness burns or a combination of full-thickness and lesser degree burns.  This is a function of burn center size, not the skill of the physicians.  A full excision and grafting procedure is lengthy and generally requires two full surgical teams and at least two attending physicians and two assistant surgeons.  This type of procedure is generally not possible at relatively smaller burn centers such as the Oregon Burn Center.

Using Variables in Burn Cases to Assess Case Value and Adequately Prepare

The variables discussed above vary from case to case.  It is important to assess each one when valuing a burn injury case in order to determine the defendant’s likely exposure and prepare adequately for productive settlement discussions and, if absolutely necessary, trial.

 

An Introduction to Burn Injury Significance and Burn Centers

Burns Are Significant Injuries and Can Lead to Some of the Highest Jury Verdicts

Olson Brooksby appreciates the potential high-exposure value of burn injury cases.  Scott Brooksby has significant experience in serious, total body surface area (tbsa) burn injury and wrongful death cases.  Our lawyers understand the delicate nature of large burn injury cases and work to minimize exposure to our clients.

Defendants potentially subject to burn injuries should employ best safety practices and make every attempt to avoid such injuries.  Burns are one of the most serious injuries in personal injury cases.  They may be the result of chemical fire or exposure, explosions, paints, solvents, or conventional fire.  Sometimes burns are the result of contact with hot equipment or other product liability related events.  The defense of serious burn injuries, including those related to aviation, product liability and heavy manufacturing is a large part of the defense practice of Olson Brooksby.  A bad burn case in an aviation or heavy manufacturing accident, or as the result of a product liability defect can easily present high financial exposure to manufacturers and/or insurers.  Settlement exposure can climb into the millions or tens of millions, with verdicts at least as high.

Even when there appears to be a strong defense, defendants should not underestimate the overwhelming sympathy a jury will feel when it sees a burn victim, particularly with serious facial burns or burns to the extremities.  A good plaintiff’s lawyer will ask the jury to consider things like the profoundly disfiguring effects of a bad facial burn and the pain that everyday exposure to sunshine will cause its victim for life, or the lifelong gawking stares it will draw.

Similarly tragic are severe burns to the hands, which cannot be restored to even near full function or pre-burn aesthetics and result in pain every time the victim is touched.  When liability is clear, burn cases should be settled because, unlike other personal injury cases, deformities caused by burns can incense juries to the point where they cannot put their emotions aside.  The result can be verdicts in the millions or tens of millions, including punitive damages (particularly if children are involved or there is perceived recklessness).  Although the amount of burn verdicts used to depend on the region of the country where the case originated, such verdicts are now generally high in every jurisdiction.

If the burn injury case must be tried, it must be done with great sympathy for the victim  and careful attention to the medical aspects of the case, including future treatment, which may last decades and cost into the six or seven figures.

When trying a burn injury case, it is important to know where the injury occurred.  If a plaintiff has to be air lifted to a burn center, that can radically change the extent of the injury.  Similarly, it is important to know the details of the burn center where the plaintiff was treated because that can also change the extent of the injury and thus affect the jury verdict amount.

The Location of the Accident Can Change the Extent of the Injury and the Jury Verdict

In those industries where serious conventional burns are common, such as aviation disasters or steel or metal manufacturing, “serious” can arbitrarily be defined as full-thickness burns over 20% or more of the tbsa.  The location of a burn center and the length of time to transport the victim to the burn center can be outcome-determinative.  This is also particularly true where babies and children or those over sixty-five are the victims, or where there are serious burns to the face, head, extremities, or internal organs.

Manufacturers and insurers obviously do not choose where burn centers are located.  After an accident, first responders will obviously make needed decisions about transport.  Most heavy manufacturing, including that of aviation hot section components, is done near large metropolitan areas that typically have at least one burn center.  Perhaps some of the greatest danger lies in cases in remote areas where individuals are subject to burns from allegedly defective products.  For example, a person camping in a remote area of the Western United States who is badly burned by kerosene at a remote campsite may not be able to reach a burn center for hours.  There may be no cellular phone service and a helicopter ambulance may have to be dispatched from hundreds of miles away.

Depending on the severity and tbsa burned, the size and related capabilities of the burn center will have a direct impact on the plaintiff’s recovery, and consequently, the ultimate exposure to the manufacturer and/or insurer in any settlement or verdict.

All Burn Centers are Not the Same–They May Have Varying Treatment Philosophies, Training and Capabilities

The size of the burn center can also be outcome-determinative because smaller centers, such as the Oregon Burn Center at Emanuel Hospital, are generally not large enough to perform a full excision and grafting in high tbsa burn cases.  A full excision and grafting is where they do all of the procedures at once instead of one at a time.  Some burn physicians believe that, depending on the case, better outcomes are achieved through full excision and grafting in high tbsa burn cases.

There are approximately 45 regional burn centers in the United States.  Verification of burn centers is a joint program administered in the form of a rigorous review of the applicant centers by the American Burn Association (ABA) and the American College of Surgeons (ACS).  Many states do not have a regional burn center and most states have only one or two.  California has the most, with seven.  Most burn centers are run by a single group or an extremely limited number of groups of burn surgeons who practice at the facility.

Unlike hospitals, burn centers do not typically extend general privileges to physicians.  Most burn surgeons have been trained as general surgeons, and then have gone on to receive additional specialized training in burns.   Along the population corridor running down I-5 between Seattle and Davis, California there are three verified regional burn centers, one each in Seattle (Harborview), Portland (The Oregon Burn Center at Emanuel Hospital), and The UC Davis Regional Burn Center.

Training and available resources vary from center to center.  Burn centers also tend to have more pronounced treatment philosophies and cultures because they are staffed by relatively few surgeons who generally practice in the same group or just a few groups.  However, although burn center practice varies, it is imperative that those who are seriously burned reach a regional burn center as soon as possible because specialized treatment is inarguably outcome-determinative

The mechanics of injury, lots of fire, accelerant, and contact with temperatures in excess of 1,000 degrees are factors that are considered when determining whether burns are graftable from point of admission.  In any serious burn case, most intermediate facilities such as a conventional hospitals will seek to transfer a seriously burned patient, almost always by air, to a regional burn center as soon as stabilization occurs.