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Pilot Mental Fitness in the Context of the International Mental Health Crisis

Aviation lawyer
Scott Brooksby, Portland product liability and aviation lawyer

Pilot Mental Fitness in the Context of the International Mental Health Crisis

by Scott Brooksby, Olson Brooksby PC

“But nobody ever thought about having to protect the passengers from the pilots”

David Neeleman, founder and former CEO, Jet Blue

Introduction

The importance of pilot mental fitness is not a new concept.  However, pilot mental health has been the subject of ferocious scrutiny in the wake of Germanwings 9525 and MH370.  Perspectives on detecting, reporting, treating, and monitoring pilot mental health, and the associated regulatory framework may be different for various groups of interested parties including:  (1) the flying public; (2) the airlines; (3) the regulators; and (4) pilots and crew.  Some knowledgeable observers, including the first TSA Administrator John Magaw, have been quoted raising questions about whether or not reinforced cockpit doors are too secure, and should provide a way back in the cockpit.  http://www.popularmechanics.com/flight/a10270/in-light-of-mh370-evidence-could-plane-cockpits-be-too-secure-16611747/

Overview of Germanwings 9525

  • On March 24, 2015, the A320 aircraft was on a scheduled flight en route from Barcelona to Dusseldorf, with 144 passengers and a crew of six.
  • The 27 year-old co-pilot, Andreas Lubitz, had been flying for Germanwings since June, 2014.
  • Lubitz’s First Class Medical Certificate was issued in April 2008, and had been renewed yearly.
  • Since July, 2009, the medical certificate had contained a waiver due to a prior major depressive episode without psychotic symptoms that lasted from 8/08-7/09.
  • The waiver in the medical certificate provided that the certificate would be revoked if there was a relapse into depression.
  • In December, 2014, Lubitz experienced symptoms consistent with the onset of a psychotic depressive episode.
  • Lubitz then consulted with several doctors, including a psychiatrist, who prescribed an anti-depressant.
  • None of the doctors notified the authorities or Germanwings.
  • Lubitz waited until he was alone in cockpit at cruise altitude, and then he changed the selected altitude from 38,000 feet to 100 feet, leading to a steady descent into terrain.
  • He also increased and decreased the airspeed inputs multiple times.
  • Lubitz ignored the PIC pounding on the cockpit door, and calls from civilian and military air traffic controllers and from other aircraft and kept cockpit door locked.
  • Lubitz had practiced similar inputs on a flight earlier that day.
  • The official BEA investigation concluded that the crash was intentional.

The crash in the French Alps was investigated by French Authorities, with assistance from their German counterpart, the Federal Bureau of Aircraft Accident Investigation (“BFU”), with assistance from the F.B.I.  The Bureau d’Enquêtes et d’ Analyses (“BEA”) released its preliminary report on May 6, 2015 and its final report on March 13, 2016.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiGgKbt7u7NAhUY_WMKHVF7ApUQFggcMAA&url=https%3A%2F%2Fwww.bea.aero%2Fuploads%2Ftx_elydbrapports%2FBEA2015-0125.en-LR.pdf&usg=AFQjCNE7DAUyu78jJpgHb8wZt8yKS9yjhw

On March 27, 2015, just three days after the crash, the European Aviation Safety Agency (“EASA”) issued a temporary recommendation that air carriers insure that at least two flight crew members, including one pilot, occupy the flight deck at all times during a flight.

The Mental Health Landscape

It is not a secret that there is a mental health crisis in the United States.  According to the CDC, a staggering 25% of the U.S. adult population has some form of mental illness. https://www.cdc.gov/mentalhealthsurveillance/

According to the CDC, suicide is the ninth leading cause of death, with more than 42,000 suicides in 2014.  http://www.cdc.gov/nchs/fastats/leading-causes-of-death.htm  Alarmingly, suicide is the second leading cause of death for the age group 25-34 and the fourth leading cause of death for those 35-54.  http://www.cdc.gov/violenceprevention/suicide/statistics/

An estimated 9.3 million adults in the U.S. reported having suicidal thoughts in 2013.  Females are more likely to have suicidal thoughts than males, but males take their own lives at nearly four times the rate of females, and account for 77.9% of all suicides.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwi7_pyX–vNAhXHLmMKHSVMDzQQFgglMAE&url=http%3A%2F%2Fwww.cdc.gov%2Fviolenceprevention%2Fpdf%2Fsuicide-datasheet-a.PDF&usg=AFQjCNGVGU8yBJOrXug-MxYn58gTllTr3Q

All of the commercial aviation disasters attributed to pilot mental health issues have involved male pilots. There have been no commercial disasters attributed to mental health involving U.S. Carriers.  A 2006 study by the FAA notes that between 1993 and 2002, there were 3648 fatal aviation accidents.  The NTSB concluded that there were 16 aircraft-assisted suicides, and one incident involving a flight student who intentionally exited a plane.  All 16 incidents involved general aviation.  The median age range for pilots in those incidents was 40 (15-67).  https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&cad=rja&uact=8&ved=0ahUKEwj8k5S-muzNAhUWS2MKHboVDHkQFghGMAY&url=https%3A%2F%2Fwww.faa.gov%2Fdata_research%2Fresearch%2Fmed_humanfacs%2Foamtechreports%2F2000s%2Fmedia%2F200605.pdf&usg=AFQjCNGjEu9KMnh2nG0vyiCuvYoRD1Dqbg

Another study examined statistics on aircraft assisted suicide in the context of general aviation, and concluded that there were 37 cases in which pilots either committed or attempted to commit suicide between 1983 and 2012.  38% of the pilots had psychiatric problems, 40% of the pilots in suicides or attempts had legal problems, and 46% of the pilots had domestic or social problems.  http://www.ingentaconnect.com/content/asma/asem/2005/00000076/00000008/art00001?crawler=true&mimetype=application/pdf http://time.com/3760132/germanwings-plane-crash-pilot-suicide-andreas-lubitz/

Pilot mental fitness did not emerge as an issue with the advent of Germanwings 9525.  In 2007, the Airline Pilots Association (“ALPA”) reported that 25% of the ALPA Aeromedical Office calls were mental health-related.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiMs5TrgP7NAhVO5mMKHU1xAY4QFggcMAA&url=http%3A%2F%2Fwww.alpa.org%2Fportals%2Falpa%2Fpresidentscorner%2FAug2007_MentalState.pdf&usg=AFQjCNFpDSzRrIDQBMx1wZT9rOY-OJmxeQ&bvm=bv.127178174,d.cGc

Despite an apparent recognition among their own ranks that pilot mental fitness is an important issue, the pilot unions in most of the commercial crashes of the last three decades reacted skeptically, or even disputed, at least initially, claims by investigators that the crashes were intentional.

A 2014 study examined aircraft-assisted suicides in the United States, United Kingdom, German and Finland between 1956 and 2012.  The study concluded that in the United States, for the 20 year period 1993-2012, the aircraft assisted suicide rate was 0.33%.

http://www.ingentaconnect.com/content/asma/asem/2014/00000085/00000008/art00010

Despite the horrifying circumstances surrounding flights such as Germanwings 9525, mental health issues arise with statistical irregularity in commercial aviation, and investigators do not always agree on the role played by mental health.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwicxab4nOzNAhVN4mMKHTdxCyAQFggcMAA&url=http%3A%2F%2Fflightsafety.org%2Ffiles%2FASWarticles%2FStatesofmind.pdf&usg=AFQjCNG567O-toF4PIsxFhGicPbpvDt3BQ&bvm=bv.126130881,d.cGc

Overview of Medical Certificate Requirements

FAA regulations require airline pilots to undergo a medical examination with an FAA-approved physician called an Aviation Medical Examiner (“AME”) every six to twelve months depending on the pilot’s age. http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=20455

According to the Guide for Aviation Medical Examiners, “The FAA does not expect the Examiner to perform a formal psychiatric examination.  However, the Examiner should form a general impression of the emotional stability and mental state of the applicant.”  FAA Guide for Aviation Medical Examiners, 137 (2015).

The Guide also explains how the Examiner may become informed about possible mental health concerns based on questions and answers an applicant provides about background, occupation, and reasons for seeking a certificate.  Id. at 138-39.  If the AME believes there may be mental health concerns, the Examiner is instructed to either deny the certificate or defer issuing the medical certificate and note the mental health issues on the examination report.  If the medical certificate application is deferred, the Examiner is to report the findings to the FAA, which will then request further evaluation and information from the applicant.  Id. at 139.

In the United States, there are three types of medical certificates.  14 C.F.R. Part 61.  A first-class medical certificate, which is required for airline pilots, expires twelve months after the date of the medical examination for pilots under age 40, or six months after the date of the examination for pilots over age 40 at the time of the most recent medical examination.

According to 14 C.F.R. § 67.107,

  • Mental standards for a first-class airman medical certificate are:
  • (a) No established medical history or clinical diagnosis of any of the following:
  • (1) A personality disorder that is severe enough to have repeatedly manifested itself by overt acts.
  • (2) A psychosis. As used in this section, “psychosis” refers to a mental disorder in which:
  • (i) The individual has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition; or
  • (ii) The individual may reasonably be expected to manifest delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition.
  • (3) A bipolar disorder.
  • (4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years. As used in this section –
  • (i) “Substance” includes: Alcohol; other sedatives and hypnotics; anxiolytics; opioids; central nervous system stimulants such as cocaine, amphetamines, and similarly acting sympathomimetics; hallucinogens; phencyclidine or similarly acting arylcyclohexylamines; cannabis; inhalants; and other psychoactive drugs and chemicals; and
  • (ii) “Substance dependence” means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by –
  • (A) Increased tolerance;
  • (B) Manifestation of withdrawal symptoms;
  • (C) Impaired control of use; or
  • (D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning.
  • (b) No substance abuse within the preceding 2 years defined as:
  • (1) Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
  • (2) A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
  • (3) Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds –
  • (i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
  • (ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.
  • (c) No other personality disorder, neurosis, or other mental condition that the Federal Air Surgeon, based on the case history and appropriate, qualified medical judgment relating to the condition involved, finds –
  • (1) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
  • (2) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.

The same standard applies to second-class and third-class airman medical certificates in 14 C.F.R. § 67.207 and 14 C.F.R. § 67.307, respectively.

Europe

Medical regulations associated with obtaining a medical certificate in Europe are arguably less specific than those in the United States.  The European Aviation Safety Agency (“EASA”), headquartered in Cologne, Germany has oversight responsibility for aviation safety in the European Union.  Commission Regulation (EU) 1178/2011 technical requirements pursuant to Regulation (EC) 216/2008, 2011 O.J. (L311) 175 (EASA Piloting Regulations), MED.A.015

The EASA regulations provide in part:

  • Applicants shall have no established medical history or clinical diagnosis of any psychiatric disease or disability, condition or disorder, acute or chronic, congenital or acquired, which is likely to interfere with the safe exercise of the privileges of the applicable licence(s).

Interestingly, the EASA regulations contain a specific provision addressing self-harm, and provide that “[a]pplicants with a history of a single or repeated acts of deliberate self-harm shall be assessed as unfit.”  MED.B.055.

The European regulations related to alcohol and drug use are also much more abbreviated than those applicable in the United States, and provide that “[a]pplicants with a mental or behavioral disorder due to alcohol or other use or abuse of psychotropic substances shall be assessed as unfit pending recovery and freedom from substance use and subject to satisfactory psychiatric evaluation after successful treatment.  Id.

Recent Regulatory Action

In response to Germanwings 9525 and MH 370, the FAA chartered the Pilot Fitness Aviation Rulemaking Committee (“ARC”) on May 11, 2015.  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjZta_TuOzNAhVmHGMKHamWAX0QFggcMAA&url=http%3A%2F%2Fwww.faa.gov%2Fregulations_policies%2Frulemaking%2Fcommittees%2Fdocuments%2Fmedia%2Fpfarc-51115.pdf&usg=AFQjCNEkKMDyQJHjWUO8XlKwQYbzihamQw&bvm=bv.126130881,d.cGc

The ARC released its report on November 18, 2015.  The report generally concluded that the best strategy for minimizing the risk associated with pilot mental health is to create an environment that encourages and is supportive to voluntary self-disclosure.  The report recognized, however, that even when symptoms are recognized, pilot mental fitness issue self-reporting may be perceived as a high risk situation, with financial, and even career-ending implications.  The report contained eight recommendations:

  1. Enhance AME Training. The FAA should ensure all Aviation Medical Examiners demonstrate knowledge in assessing basic mental health concerns, and enhance AME training on this topic.
  2. Psychological Testing. The ARC does not recommend mandating formal psychological testing during the pilot hiring process nor as part of routine FAA aviation medical examination beyond those which already exist.
  3. Pilot Assistance Programs. Air carriers should develop effective pilot assistance programs.
  4. Air Carrier Education. Air carrier operators should be encouraged to implement mental health education programs…improve awareness and recognition of mental health issues, reduce stigmas, and promote available resources to assist with resolving mental health problems.
  5. Informational Material on Pilot Support Programs. The FAA should assemble and disseminate information on benchmark pilot support programs…to serve as a resource for air carriers to develop new or improve existing programs.
  6. Medical Professional Reporting. Encourage advocacy for a uniform national policy on mandatory reporting of medical issues that affect public safety.
  7. Two Persons on Flightdeck and Flightdeck Access. The ARC recommends no changes to the guidance found in applicable FAA orders.
  8. Aircraft Design Standards. The ARC believes existing aircraft and flightdeck door design standards are adequate and no changes are required by the FAA.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwino7KiuOzNAhVjF2MKHebTBakQFggcMAA&url=https%3A%2F%2Fwww.eurocockpit.be%2Fsites%2Fdefault%2Ffiles%2Ffaa_pilot_fitness_arc_report_2016.pdf&usg=AFQjCNGsAkE7pif54krzJ9kCdngKa1dH5g&bvm=bv.126130881,d.cGc

Many of the recommendations contained in the report tracked issues that the  Aerospace Medical Association (“AsMA”) had been addressing just prior to the Germanwings crash.  In fact, the AsMA Coordinating Chair had just discussed the issues at the 2014 European Society of Aerospace Medicine conference in Bucharest, Romania in September, 2014, a few months before the crash of Germanwings 9505.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwigz6HGu-zNAhUD6mMKHbxGCdYQFggcMAA&url=https%3A%2F%2Fwww.asma.org%2Fasma%2Fmedia%2FAsMA%2Fpdf-policy%2F2015%2FMental-Health-Screening-in-Aviators.pdf&usg=AFQjCNGwTH690mwDtqz8ChLiqeFU8cKnGA&bvm=bv.126130881,d.cGc

IATA and ICAO have both expressed concern about the importance in stepped up coordinated approaches to monitoring pilot mental health.

http://airlines.iata.org/agenda/monitoring-the-mental-health-of-pilots

The BEA investigation into Germanwings 9525 and the ARC report both conclude that pilot perceptions about the potentially career-ending consequences of self-reporting a mental fitness problem and the financial repercussions are serious impediments to effective self-reporting.  The BEA report noted that in December, 2014, emails created by Lubitz reflect a financial anxiety associated with his inability to obtain additional loss-of-license insurance because of the waiver in his medical certificate.

Major Commercial Crashes Involving Mental Fitness

The BEA’s preliminary report on Germanwings 9505 noted that there were only six instances of commercial flight crews intentionally crashing planes since 1980 were found in a search of ICAO and BEA databases.  It is worth noting than in two of the instances, JAL 350 and Egypt Air 990, the pilot or co-pilot were not alone in the cockpits, but other flight crew members were not able to regain control of the plane.

  • February 9, 1982. Japan Air Lines Flight 350.  35-yer-old captain, who had just returned to work a few months earlier after a year-long medical leave for psychiatric reasons.  Despite history of psychosomatic disorder, doctors deemed him fit to fly.  McDonnel Douglas DC-8 from Fukuoka to Tokyo Haneda.  Either engaged thrust reverser or cancelled auto-pilot and threw throttles forward.  First officer and flight engineer tried to restrain him but could not.  Among 166 passengers and eight crew, 24 died.
  • August 21, 1994. Royal Air Maroc Flight 630.  Scheduled flight from Agadir, Morocco to Casablanca.  About ten minutes after takeoff, while climbing through 16,000 feet, plane (ATR-42) entered steep dive and crashed into Atlas Mountains, killing all 40 passengers and four crew members.  Investigation revealed the 32 year-old pilot intentionally turned off autopilot.  The Moroccan pilots’ union disputed any conclusion that the crash was intentional.
  • December 19, 1997. Silk Air Flight 185.  The 41 year-old captain was flying a ten month-old Boeing 737-300 with a crew of 97 passengers and a crew of seven from Jakarta to Singapore.  The captain was also a pilot in the Singaporean air force and a member of the Black Knights air force flight demonstration team.  He had 7,173 flight hours.  In July, 1997, the captain had been demoted as a line-instructor pilot after he pulled a CVR circuit-breaker for non-technical reasons to preserve a conversation.  The plane dove from an altitude of 35,000 feet in one minute, diving almost vertically into the Musi River.  The crash was independently investigated by the NTSB and the Indonesian National Transportation Committee (“NTSC”).  The NTSB concluded that the pilot deliberately caused the crash. The NTSC could not determine the cause of the crash.
  • October 11, 1999. Air Botswana.  A Botswanan pilot commandeered an ATR 42-320 and circled the airport at Gaborone, Botswana for two hours.  The pilot repeatedly threatened to crash into the Air Botswana Terminal and kill himself.  After the plane ran out of fuel, it crashed into two other ATR 42s on the tarmac, destroying all three planes and killing the pilot.   The pilot had been grounded after failing a medical exam.
  • October 31, 1999. Egypt Air Flight 990.  The scheduled passenger flight to Cairo, Egypt originated in Los Angeles and had a scheduled stopover at JFK.  The Boeing 767-300 crashed into the Atlantic Ocean about 60 miles south of Nantucket, killing all 203 passengers and 17 crew members.  At the request of the Egyptian government, the NTSB investigated the accident and concluded that the 59 year-old relief co-pilot, who had more than 12,500 flight hours, intentionally crashed the plane.  As the evidence of an intentional crash grew, the Egyptian government launched its own investigation, and attempted to revoke the request made to the NTSB to lead the investigation.  The co-pilot, a married father of five, was under stress because his youngest daughter, age 10, was undergoing medical treatment in Los Angeles.  Egypt Air had attempted to defray medical expenses on both a company and employee level.
  • November 29, 2013. LAM Mozambique Airlines Flight 470.  Embraer 190, which had just been delivered in November, 2012.  Scheduled passenger flight from Maputo, Mozambique, to Luanda, Angola.  Halfway through the route, plane crashed in Namibia.  The Republic of Namibia, Ministry of Works and Transport, Directorate of Aircraft Accident Investigation (“DAAI”) investigated.  They determined (as did the Mozambican Civil Aviation Institute) that the 49 year-old captain intentionally crashed the plane by repeatedly changing the intended altitude settings from 38,000 feet to 592 feet, deploying speed brakes and repeatedly slowing the manual speed settings.  27 passengers and six crew members were killed.  The investigation revealed that the captain’s son had been killed in a car accident, which was a suspected suicide one year earlier.  The captain was also in the process of a contentious divorce after ten years of separation, and his youngest daughter had gone through heart surgery in South Africa recently.

In addition to the six passenger flights, one incident in 1976 involved a single pilot crashing an empty plane into homes on the ground, killing 11 on the ground.

  • September 26, 1976. Aeroflot, Antonov 2. The pilot directed the plane into the block of flats in Novosibirsk, Western Siberia where his ex-wife lived, killing himself and 11 occupants.

http://news.aviation-safety.net/2015/03/26/list-of-aircraft-accidents-and-incidents-deliberately-caused-by-pilots/  http://www.nytimes.com/interactive/2015/03/26/world/history-plane-crashes-pilots.html?_r=0

Other Notable Non-Crash Events

On January 28, 2008. A London-bound Air Canada Boeing 767 was over the Atlantic when the co-pilot suffered a mental breakdown.  The experienced co-pilot became belligerent and uncooperative, “invoking God”, and refusing to fasten his seatbelt.  Other members of the crew forcibly removed the co-pilot and restrained him.  The plane diverted to Shannon, Ireland with 146 passengers and a crew of nine.  https://www.theguardian.com/uk/2008/jan/30/transport.world

http://www.cbc.ca/news/world/air-canada-flight-attendant-helped-land-plane-after-co-pilot-breakdown-report-1.734832

On March 27, 2012, Jet Blue captain Clayton Osbon, who was then 49 years-old, and who had been flying for Jet Blue for 12 years, was flying from New York’s John F. Kennedy Airport to Las Vegas’s McCarran airport.  During the flight, Osbon began making comments about “taking a leap of faith” and reportedly saying “things just don’t matter”.  Osbon also began complaining about noise and began randomly flipping cockpit controls.  He also starting ranting incoherently about Jesus, Iran, terrorists, Al Qaeda and a bomb on board.  The co-pilot had the foresight to lock Osbon out of the cabin, and he was tackled by law enforcement officers who happened to be on board and en route to a security conference in Las Vegas.  The flight was diverted to Amarillo, and an off-duty pilot who was on board assisted with the landing.  http://www.dailymail.co.uk/news/article-2121240/JetBlue-pilot-Clayton-Osbon-restrained-PASSENGERS-going-berserk-mid-flight.html

https://www.theguardian.com/world/2012/mar/28/jetblue-passengers-pilot-breakdown-osbon

Osbon was criminally charged with interfering with a flight crew in the U.S. District Court for the Northern District of Texas, and found not guilty by reason of insanity.  In a strange twist, three days after the Germanwings crash, Osbon sued Jet Blue for more than 14 million dollars, alleging the airline was negligent in permitting him to fly despite signs of mental illness.  http://www.pbs.org/newshour/rundown/former-jetblue-pilot-sues-16m-2012-midflight-meltdown/

Employment Considerations

The FARs and federal preemption generally provide the airlines with significant discretion regarding the development, implementation and enforcement of operational safety programs, including the mental fitness of flight crew members.  Federal law sets what are only minimum standards for airlines to use in the formation of safety policies.  Under the applicable statutes, “[t]he Administrator may prescribe minimum safety standards for…an air carrier to whom a certificate is issued under section 44705 of this title…”

Federal courts have generally given the airlines wide discretion to address safety.  In Johnson v American Airlines, Inc., 745 F.2d 988 (5th Cir. 1984), the court addressed American’s overhaul of the cockpit crew training, certification and promotional system following a large number of crashes in the early 1960s.  Part of the overhaul involved an “up or out” certification system requiring flight crew to train for the next highest cockpit position.  Plaintiffs sued, alleging violation of the Age Discrimination in Employment Act.  The Fifth Circuit affirmed, holding that “the airline industry must be accorded great leeway and discretion in determining the manner in which it may be operated most safely”.  Id. at 993, quoting Murnane v. American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981).

However, preemption is not without limits, even in the context of flight crew employment, and airlines are still subject to the laws of general applicability.  In the context of pilot mental health, this may include the implications of the Americans With Disabilities Act (“ADA” 42 U.S.C. § 12112).  Under the ADA, a person is considered disabled if he or she: (1) suffers from a mental or physical impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.  42 U.S.C. § 12102(2).

In Witter v Delta Airlines, 966 F. Supp. 1193, 1195-1197 (N.D. Ga. 1997), the court addressed pilot mental health in the context of an ADA claim.  Plaintiff had been employed by Delta as a pilot since 1967.  In February, 1992 plaintiff was involved in a domestic dispute with his wife, and threatened to commit suicide.  As a result, plaintiff was incarcerated, and sent for a psychiatric evaluation, after which he was transferred to another psychiatric facility at Delta’s request.  Plaintiff alleged that Delta told him that if he did not consent to psychiatric evaluation, he would be fired.  Plaintiff then voluntarily grounded himself because he believed that he was not medically fit to fly.

Plaintiff’s FAA Class I Medical Certification was set to expire in June, 1992.  Plaintiff found an AME who agreed to “help Plaintiff with this situation”.  Relying on the report of a psychiatrist to which the AME had referred plaintiff, the AME diagnosed plaintiff as suffering from bi-polar disorder, and found him unfit to fly.  Subsequently, plaintiff examined by an FAA psychiatrist who concluded that plaintiff had a “characterological problem that might be considered a personality disorder”.  The FAA psychiatrist also concluded that plaintiff should be issued a Class I Medical Certificate on the condition that he submit to semi-annual psychiatric reports.

Plaintiff was issued the Class I Medical Certification in February, 1993, and presented the certificate to Delta on March 1, 1993.  When plaintiff presented the Certificate to Delta’s chief pilot, Delta decided that plaintiff should be further evaluated by a senior AME who was also board certified in aerospace medicine.  Delta’s decision was made at least in part on the basis of the felony charge pending against plaintiff from the 1992 domestic dispute.  The senior AME concluded that plaintiff suffered from an Adjustment Disorder with Mixed Emotional Features but was qualified to fly.  The Senior AME noted in his report:

In returning Capt. Witter to the cockpit, the major concern is the possibility of a recurrence of this type of behavior reaction, especially while flying…. If it did occur again, even in the cockpit, I do not believe that it would be incapacitating from a safety point of view. Capt. Witter’s basic personality may make him a difficult person with whom to work. However, he does not have a psychiatric disorder at the present time. If any future unusual behavior indicates the occurrence of another adjustment disorder, Capt. Witter should be grounded permanently. Until then, he is qualified to fly.

Based on the report, Witter returned to line flying status in August, 2003.  In November, 1993, plaintiff flew a European rotation, during which he had a conflict with two other crew members which resulted in the crew refusing to follow his instructions.  After further evaluation, the Senior AME diagnosed plaintiff with Narcissistic Personality Disorder and possible Cyclothymia, and memorialized the findings in an April, 1994 report.  In response, Delta grounded plaintiff.  The FAA then convened a panel of six psychiatrists, who reviewed the case and concluded that plaintiff should not be returned to flight status.  The NTSB then overturned the FAA and restored plaintiff’s Class I Medical Certification.  Delta refused to reinstate plaintiff to flight status without further medical evaluation.

Plaintiff filed suit, alleging violation of the ADA.  In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) the Court ruled that for claims of discriminatory treatment in employment, a plaintiff must establish a prima facie case of discrimination by showing: (1) that he or she has a disability; (2) that he or she is a qualified individual; and (3) that he or she was subjected to unlawful discrimination because of the disability.  The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the employment action.

The court granted Delta’s motion for summary judgment, and, without ever shifting the burden under McDonnell Douglas, concluded that plaintiff was not disabled.  The court noted that the regulations under 29 C.F.R. § 1630.2(j) (2) provided guidance on the factors for determination of whether a condition is substantially limiting, which include the nature and severity of the impairment, the duration or expected duration of the impairment, and the long-term impact of the impairment. Witter, 966 F. Supp. 1198

The court found that since plaintiff’s psychological condition did not appear to be exceptionally severe, and only manifested itself while plaintiff was under stress, it did not substantially impair the life activity of working.  The court also noted that the impact of the emotional disturbance was not long-term, since the NTSB had concluded that the First Class Medical Certification should be returned.  The court also noted that plaintiff was a resident of the Atlanta area, a large metropolitan area with substantial job opportunities.  The court also reasoned that there were many other pilots in management, training and administration, and while plaintiff may not be able to fly commercially, he did not even argue that he was impaired from holding any other job.  Witter, 966 F. Supp. 1199.

As discussed above, McDonnell Douglas requires the establishment of three conditions to move forward with a case of discrimination.  If the plaintiff in Witter had established that his mental condition was a disability for purposes of the first element, he still would have had to establish that he was a qualified individual, and that he was subject to unlawful discrimination for purposes of establishing a prima facie case of discrimination under the ADA.  Although he was subjected to testing after the domestic incident and European rotation, it is unlike that those actions constitute unlawful discrimination.  Under the ADA, an employer is prohibited from conducting a medical examination after the commencement of employment unless such an examination is job-related and consistent with business necessity.  42 U.S.C.  § 12112(d)(4)(A).

Moreover, pursuant to 14 C.F.R. 67.113(c)(1), the FAA requires that in order to receive a first-class airman medical certificate, a person must not have any medical condition which renders that person “unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held”.

In Martin v Lennox Intern. Inc., a pilot suffered a heart attack and was grounded during the six-month recovery period, after which he sought re-certification from the FAA.  342 Fed. Appx. 15 (5th Cir. 2009).  After informing his employer that there would be a delay in the re-certification process while he awaited his medical certificate he was fired.  He then brought several claims, including discrimination under the ADA.  The court granted the defendant employer’s motion for summary judgment on the basis that plaintiff could not hold a medical certificate.  Therefore, it is highly unlikely that a pilot with a mental illness that would not allow him or her to hold a medical certificate would not be able to satisfy the qualification element of a prima facie case of discrimination under the ADA.

Courts have generally ruled that an employer’s request for a medical examination when the request is grounded in good faith, and where the specific facts show that an employee may not be able to perform the essential functions of his or her job.  Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 (6th Cir. 1999).

Plaintiff in Witter also brought state tort claims for intentional infliction of emotional distress and negligent hiring and retention, which were dismissed.  Plaintiff’s defamation claims against both the Sr. AME and Delta were also dismissed.  Plaintiff’s libel claims against Delta, and his claim against the Sr. AME for tortious interference with Witter’s contractual relationship with Delta were also dismissed.

Confidentiality Considerations

The BEA and ARC reports both recommend the development and implementation of a unified, coordinated system of national mental health reporting.  However, the confidentiality of medical records arises through a complicated morass of federal and state statute and common law.

Privacy Considerations Under Federal Law:

  • Although the ADA contains confidentiality provisions, the ADA generally insulates air carriers from liability in cases where pilots have a mental disability.
  • Family Medical Leave Act of 1993 (FMLA). Unique eligibility requirements apply to pilots, flight attendants and other crewmembers under the Airline Flight Crew Technical corrections Act of 2009.  Eligible if (1) worked at least 60% of the minimum number of hours scheduled to work in any given month during prior 12 month period and (2) at least 60% of the minimum number of hours that the employee was scheduled to work in any given month.
  • Aviation and Transportation Security Act (ATSA). Provides immunity for air carrier or any employee of an air carrier who makes a voluntary disclosure related to a threat to aircraft of passenger safety.  49 U.S.C.A. § 44941(b).  See, Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014).
  • Health Insurance and Portability Accountability Act (HIPAA). Contains an exception  for “uses and disclosure to avert a serious threat to health or safety.  45 C.F.R. § 164.512.

Privacy Considerations Under State Law:

  • State Constitutions
  • Common Law Actions
    • Invasion of privacy
    • Breach of Duty of Confidentiality
  • State Statutes
    • Mental Health Information Statutes
    • Medical records statutes
    • Right to privacy statutes
    • Duty to protect or warn statutes

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).

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.

 

Aircraft Wheel-Well Stowaways: Can Security Breaches Lead to Mass Torts?

Businesswoman standing in airplane engine

From Scott Brooksby’s article, “Aircraft Wheel-Well Stowaways: Can Security Breaches Lead to Mass Torts?”, published in the American Bar Association’s Mass Torts, Practice Points on October 9, 2015:

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.

Most of these incidents happen for refugee and humanitarian reasons. 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, and the force of the wind can easily make a stowaway fall to his or her death. The overwhelming majority of stowaways are young males. Because stowaways must stay within the landing-gear area, they face other risks too, such as being crushed in a confined space when the gear retracts, falling when the plane is landing, or dying from the heat produced by the engines of the aircraft.

The Data
The following introduction is based on FAA data.

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.

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.

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 Columbia to JFK International Airport was one of the 13 wheel-well stowaway flights documented in a report by the U.S. Federal Aviation Administration (FAA), Civil Aeromedical Institute (CAMI), and Flight Safety Foundation (FSF) as having frozen to death.

According to the FAA, from 1947 to 2014 there have been 94 flights involving 105 people who stowed away worldwide. Of those 105 people, 80 died and 25 survived. The 25 people who survived represent a 23.8 percent survival rate.

In 2014 as discussed above, a 16-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 five 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.

Similarly, a 21-year old Indonesian man hid in the wheel well of a Garuda Indonesia flight from Sumatra to Jakarta.

Some experts also believe that motivation for some (younger) stowaways to escape is prompted by politically dangerous homeland conditions that compel their departure under desperate circumstances. That can affect their brains by producing a “virtual hibernative state,” where their bodies become temporarily more adaptable to trauma.

Possible Outcomes
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:

  • widespread concern about security at public, airline, security provider, airport, and government levels
  • direct action by, influence on, payment for, or extortion by extremists determined to cause a catastrophe through the use of an explosive device or alteration of a plane’s existing safety features
  • government-levied fines for airlines, airports, private security companies, local police, and federal agents based on security breaches
  • increased security measures imposed by airport, airline, local, state, and federal authorities
  • lawsuits by agencies, airlines, or security companies against the indigent stowaways are unlikely, although deportation is possible

With the proliferation of wheel-well stowaways, it is likely only a matter of time until a serious mass-tort tragedy occurs.