Tag Archives: Oregon aviation law

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

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

 

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

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

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

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

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

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

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

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

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

By Scott Brooksby – June 21, 2016

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

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

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

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

1. the domicile of the carrier;

2. the principal place of business of the carrier;

3. the place where the airline ticket was purchased;

4. the place of destination; and,

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

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

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

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

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

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

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

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

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

28 U.S.C. § 1369(a)(1)–(3).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Multi-District Aviation Disaster Litigation after Air France 447

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

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

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

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

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

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

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

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

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

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

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

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

General Principles of Forum Non Conveniens

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

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

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

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

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

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

454 U.S. 235, 247.

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

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

454 U.S. 235, 254-55.

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

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

The Montreal Convention

The Montreal Convention of 1999 is critical to any consideration of FNC in an aviation disaster.  The Convention was ratified by the United States in September, 2003, and went into effect in November 2003.  The Convention is a successor to the Warsaw Convention of 1929 and, in addition to important new provisions, consolidates and clarifies prior provisions of The Warsaw Convention.  Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on 28 May 1999 (ICAO Doc No 4698).

The Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.”  Id. at Article 1 § 1.

When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier.  In El Al Israel Airlines v Tseng, 525 U.S. 155 (1999), the Court held that personal injury claims arising from aircraft operations within the scope of the Convention are not allowed unless permitted under the terms of the Convention.  In light of the holding in Tseng, federal courts have held that the damages available under the Convention are the sole cause of action.  See, e.g., Ugaz v. Am. Airlines, 576 F. Supp. 2d 1354 (S.D. Fla. 2008).

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

  1. The domicile of the carrier;
  2. The principle place of business of the carrier;
  3. The place where the airline ticket was purchased;
  4. The place of destination; and,
  5. In personal injury cases, the principal and permanent place of residence of the plaintiff.

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

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

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

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

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

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

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

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

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

Plaintiffs May Not Create An Unavailable Forum

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

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

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

Id. at 1097.

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

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

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

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

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

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

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

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

In response, plaintiffs argued:

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

359 Or. at 71-72.

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

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

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

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

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

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

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

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

359 Or. at 102.

Multidistrict Litigation

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

JPML may consider:

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

MDL Consolidation Distinguished from 1404(a) Transfer

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

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

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

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

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

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

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

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

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

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

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

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

Considerations for Aviation Disasters with parallel MDL and State Court Cases

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

Pretrial Choice of Law Issues

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

The Multiparty, Multiforum Trial Jurisdiction Act

Although the Warsaw and Montreal Conventions addressed many aspect of air crash litigation, they did not specifically address U.S. Federal Court handling of mass disaster litigation, and addressed only aviation related cases.  In 2002, the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA) was enacted to create greater efficiency in the federal system.  The MMTJA grants district courts original jurisdiction where minimal jurisdiction requirements are met, and in which the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location”.  The permissible lawsuits include both wrongful death and personal injury.

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

The  MTJA statute, 28 U.S.C. § 1369, widely broadens federal jurisdiction in mass disaster cases, and provides that the district courts will have original jurisdiction where:

  1. A defendant resides in a State and a substantial part of the accident took place in another State or other location, regardless of whether that defendant is also a resident of the State where a substantial part of the accident took place;
  2. Any two defendants reside in different States, regardless of whether such defendants are also residents of the same State or States; or
  3. Substantial parts of the accident took place in different states.

28 U.S.C. §1369 (a)(1-3).

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

Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U.S.C. §1332.

A recent case addressed the MMTJA in the context of an aviation disaster.  On December 30, 2015, the U.S. District Court for the Northern District of Illinois granted the French company Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.  Siswanto, et. al. v. Airbus S.A.S., 2015 WL 9489952.  The case was brought under the Multiparty Multiforum Trial Jurisdiction Act of 2002 (“MMTJA”).  The court reasoned that since the case was brought under the MMTJA, Fed. R. Civ. P. 4(k)(l)(C) and the MMTJA enabled the Court to consider Airbus’s contacts with the United States as a whole, and not just the state of Illinois.  However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the Court’s exercise of personal jurisdiction.

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

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

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

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

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

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

 

Aviation Law Update: Oregon Supreme Court Rules Doctrine of Forum Non Conveniens is Available in Oregon

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

On March 11, 2008, a ten passenger 2007 Bell 412EP crashed into remote mountainous terrain near Santa Cruz, Cajamarca, Peru.  Impact forces and a post-crash fire killed the United States certificated airline transport pilot, the Peruvian co-pilot and eight Peruvian miners.  The helicopter was owned by Evergreen Helicopters, Inc., and leased to Helinka S.A.C., a Peruvian commercial aviation services provider.  Evergreen provided the helicopter, pilots, mechanics, parts, and an on-site contract administrator.

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

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

In response, plaintiffs argued:

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

359 Or. at 71-72.

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

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

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

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

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

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

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

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

359 Or. at 102.

 

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

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

Introduction

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

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

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

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

A Statistical Overview of HEMS Accident Frequency and Type

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

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

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

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

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

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

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

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

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

What Are The Typical Causes? 

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

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

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

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

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

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

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

Possible Improvements

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

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

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

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

Case Notes

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

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

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

 

Scott Brooksby featured as moderator at prominent aviation conference

Oregon aviation lawyer Scott Brooksby will be featured as a moderator at the 2016 American Bar Association Aviation Litigation National Institute in New York, New York, entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”.  The conference will take place at the University Club of New York.

Scott Brooksby will join other distinguished faculty at this prominent aviation conference, which will highlight current developments in aviation law including:

• Birds, pets, lasers, stowaways, and other hot topics
• Recent developments in case law in aviation and space law
• Defenses available in war zone tort actions
• Ethics—The preparation and testimony of witnesses during an aviation trial
• Improving aviation safety
• Defining the boundaries of federal preemption in aviation litigation
• Handling Air Traffic Control issues and aviation mishaps in air crash cases
• Carrier liability surrounding the failure to divert due to medical circumstances
• Liability issues surrounding foreign maintenance of American aircraft

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

Lasers on the ground pose a threat to aviation safety

Airplane wing

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

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

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

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

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

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

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

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

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

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

Scott Brooksby is co-planning the 2016 ABA Aviation Litigation National Institute

Scott Brooksby will be involved in planning the American Bar Association’s 2016 22nd Annual National Institute on Aviation Litigation in New York, New York.

This prominent, annual conference features seasoned aviation lawyers who present and educate on a variety of aviation litigation topics.  Scott is on the aviation subcommittee of the American Bar Association’s Mass Torts section.

Scott Brooksby has experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Scott has handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of Scott’s practice is devoted to aviation law, and Olson Brooksby is one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads the firm’s aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.

Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.

While Olson Brooksby’s specialized aviation practice is headquartered in Portland, Oregon, the nature of the firm’s practice often takes its attorneys to various other geographical locations, particularly for investigations, witness interviews, and depositions.

Scott is experienced with a broad range of aviation law topics, and is familiar with allegations concerning: mechanical malfunctions due to airframe or component defects; improper repair or maintenance; improper weight and balance; weather; piloting and human factors; instruments and avionics; air traffic control; and even issues relating to bird strikes and lasers.