Category Archives: Aviation

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Scott Brooksby Featured at Prominent Aviation Litigation Conference

SB Maverick

Scott Brooksby will be speaking at the 2014 American Bar Association’s Aviation Litigation Seminar on June 5, 2014, in New York.  Scott’s panel is entitled “Federal Rules of Evidence: New Treatment of NTSB Factual Reports and Underlying Findings.”

The American Bar Association’s Aviation Litigation Seminar enables aviation lawyers to stay up to date on current developments, ethical issues, and new trends in aviation litigation. Scott Brooksby will be featured as part of the distinguished faculty of seasoned litigators, who will address topics such as:

• Significant recent legal developments and case law
• The ethics of prepping and presenting witnesses for deposition or trial
• Impact of unmanned aerial vehicles in aviation litigation
• Effectively handling non-catastrophic aviation cases
• Pilot training issues and litigation
• Recent applications of the General Aviation
Revitalization Act
• Legal, regulatory, and insurance implications of space tourism
• New treatment of NTSB factual reports

Scott Brooksby practices aviation and product liability defense.  He is an experienced trial lawyer who has defended businesses, manufacturers, and organizations in many personal injury and and commercial cases. He has defended and counseled product manufacturers and distributors in a variety of industries including aviation, drugs and medical devices, toys and recreational products, paints and solvents, power tools, heavy equipment and machinery, retail, food, consumer products, and automobiles. He is the former co-chair of a large West Coast law firm’s product liability practice group.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts.

In cases that do not necessitate a trial, Scott is a skilled negotiator who has resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in the dismissal of claims, or outright dismissal of his client. He also has experience counseling product liability clients regarding the avoidance of litigation, handling product recalls, product modifications, and unwanted governmental intervention.

Scott has litigated everything from small defective product claims to catastrophic injury and wrongful death cases involving punitive damages.  He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.

As one of the few lawyers in Oregon with significant aviation experience, Scott has litigated helicopter and plane crash cases, as well as aviation component part product liability claims.  Scott was co-counsel on a team that defended a large aviation product manufacturer in a months-long trial.

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Aviation Fatalities: Most are Caused by Human Error

Developing and Following Good Standard Operating Procedures (“SOPs”) and Crew Resource Management (“CRM”) Procedures Are the Keys to Avoiding Aviation Fatalities

The National Transportation Safety Board (“NTSB”) recently released its statistical data calculating transportation fatalities across all modes of transportation in 2011.  There were 494 fatalities in aviation.  The breakdown was as follows: general aviation, 444; air taxi, 41; foreign/unregistered, 9; airlines, 0; commuter, 0.[1]

In comparing the 2011 data against the prior decade or so, there are certainly positive signs.  But, like all raw statistics, the numbers are most useful when integrated into a longitudinal data comparison from which conclusions are drawn.  The NTSB fatality statistics draw a conclusion that might not be obvious from the 2011 data alone: Human error absolutely dominates as the leading cause of aviation fatalities (and injuries).

There are two keys to avoiding aviation fatalities: developing and following good SOPs and CRM procedures.  This article will examine some of the persistent human causes of aviation accidents, many of which are merely outgrowths of the failure of aviation organizations to develop, adhere to, and not willfully disregard SOPs.  The second cause of aviation fatalities examined in this article is the failure of flight deck crews to follow CRM procedures.  Complications that lead to failure to follow CRM procedures include factors such as cockpit chaos; multi-lingual cockpits; failure to maintain cockpit discipline; surprise; and failure, during emergencies, to rely on the crew member with the most flight time, if appropriate given the constitution of the crew as a whole.

Accidents Can Be Avoided Through Proper Cockpit Procedures and Compliance With SOPs

On September 16, 2013, NTSB Member Robert Sumwalt (“Member Sumwalt”) gave a presentation to the Southern California Aviation Association[2] on the importance of SOPs.  Member Sumwalt, quoting from an NTSB accident report, noted that, “[w]ell-designed cockpit procedures are an effective countermeasure against operational errors, and disciplined compliance with SOPs, including strict cockpit discipline, provides the basis for effective crew coordination and performance.”[3]

Member Sumwalt then presented facts about what the accident data show regarding crew-caused accidents.  In an NTSB study of 37 crew-caused air carrier accidents between 1978 and 1990, procedural errors, such as not making required callouts or failing to use appropriate checklists, were found in 29 of the 37 (78%) reviewed accidents.  The accident data also show that, with respect to turbine-powered operations (2001-2010), the NTSB identified at least 86 accidents involving lack of adequate procedures, policies, or checklists, or lack of flight crew adherence to procedures, policies, or checklists.  These accidents resulted in 149 fatalities.[4]

Developing Effective SOPs

The development of SOPs in various industries has been accomplished through a variety of regulatory bodies, industry groups, and volunteerism.  One of the first groups to establish such guidelines was the International Conference on Harmonisation (ICH), which defines SOPs as “detailed written instructions to achieve uniformity of the performance of a specific function.”  The international quality standard (“ISO”) 9001 essentially requires the establishment of SOPs for any manufacturing process that could affect the quality of the product.  Although ICH’s implementation of the ISO 9001 SOPs was in the context of clinical drug trials, a substantially similar system has been expanded to other industries.[5]

In the context of aviation, the SOP provides a flight crew with a step-by-step guide to effectively and safely carry out operations.  A particular SOP must not only achieve the task at hand but also be understood by a crew of various backgrounds and experiences within the organization.  SOPs can also be developed over time to incorporate improvements based on experience, accidents, near misses, or innovations from other manufacturers or operators to suit the needs of a particular organization.  SOPs can also provide employees with a reference to common business practices, activities, or tasks.[6]  New employees use SOPs to answer questions without having to interrupt supervisors to ask how an operation is performed.[7]

Although reference is made to ISO 9001 in the context of clinical trials, the ISO 9000 family of standards is related to quality management systems and designed to help organizations follow consistent procedures to meet the needs of customers and other stakeholders.[8]  “AS 9000” is the Aerospace Basic Quality System Standard–an interpretation developed and adopted by virtually all the major aerospace manufacturers.  The current version is AS 9100C.  A new version of the standard will be published in September 2015 if the ISO members vote favorably in March 2015.[9]

The Failure of Flight Crews to Comply With SOPs and the Consequences

During his remarks on flight crew error, Member Sumwalt cited a Boeing study of accident prevention strategies where the data suggested that the single most important factor in prevention of hull loss accidents over a ten-year period was pilot flying (PF) adherence to SOPs.  Member Sumwalt noted that SOPs are typically not followed for three specific reasons.  He discussed each reason, and then used data from an NTSB investigation, or preliminary cause report, as support or illustration for each of the three reasons.

The reasons SOPs are typically not followed are:

(1) the organization lacks adequate SOPs;

(2) the organization doesn’t adhere to their SOPs; and

(3) flight crews intentionally disregard SOPs.

SOPs should be clear, comprehensive, and readily available in the manuals used by flight deck crew members.[10]  Member Sumwalt provided three real-life corollary examples:

  • The Organization Lacks Adequate SOPs – Crash of East Coast Jets, Hawker Beechcraft BAe 800, on July 31, 2008, Owatonna, Minnesota (8 fatalities)

The NTSB found that, although as a charter operator, East Coast Jets was not required to incorporate SOPs into its operations manual, if it had done so, it may have supported the accident pilots in establishing cockpit discipline and, therefore, a safer cockpit environment.  An example was provided where the SOP identifies the triggering event, designates which crewmember performs the action or callout, what the callout is, and what the action is.

  • The Organization Fails to Adhere to Its Established SOPs – Crash of Cessna 310, N501N, July 10, 2007, Sanford, Florida (5 fatalities)

In this case the organization did not adhere to SOPs.  The aviation director could not locate the SOP manual, which was viewed as merely a training tool.  The aircraft was to be used only for company business, but the accident flight was a personal flight.  The Pilot in Command (“PIC”) must possess an Airline Transport Pilot (“ATP”) Certificate/Rating, but the PIC did not possess the necessary ATP.  The last three maintenance discrepancies had not been addressed.  The NTSB noted that these lapses were contrary to industry guidelines directing that procedures should be written in accordance with the organization’s operating methods, and once the procedures are in place, the organization should make every effort to follow those procedures.  Having a strong commitment to standardization and discipline were among the key elements of safe operations observed in a Boeing study.  Cockpit procedural language is tightly controlled to maintain consistency and to avoid confusion from non-standard callouts.  Callouts and responses should be done verbatim.[11]

  • Flight Crews Intentionally Disregard Established SOPs – Hard Landing of US Airways Express, January 19, 2010, Charleston, West Virginia

The NTSB probable cause determination was “the flight crewmembers’ unprofessional behavior, including their non-adherence to sterile cockpit procedures by engaging in non-pertinent conversation, which distracted them from their primary flight-related duties and led to their failure to correctly set and verify the flaps.”  Intentional crew non-compliance was a factor in 40% of the worldwide accidents reviewed.[12]

NTSB Member Sumwalt concluded by noting that well-designed SOPs are essential for safety.  Making a strong commitment to procedural compliance should be a core value of the organization.  The SOPs must not merely exist, but they must be religiously followed as a way of doing business.

Well-Coordinated CRM is a Crucial Part of Accident Prevention

CRM[13] is a set of training procedures for use in environments where human error can have devastating effects.  Used primarily for improving air safety, CRM focuses on interpersonal communication, leadership, and decision making in the cockpit.

CRM grew out of an NTSB analysis of the crash of United Airlines flight 173 where the plane, a DC-8, ran out of fuel while troubleshooting a landing gear problem over Portland Oregon.[14]  The NTSB issued its landmark recommendation on June 7, 1979, to require CRM training for airline crews.  A few weeks later, NASA held a workshop on the topic, endorsing this innovative training.[15]  United Airlines was the first airline to provide CRM training for its cockpit crews in 1981.[16]

Since that time, CRM training concepts have been modified for application to a wide range of activities where people must make dangerous time-critical decisions.  These arenas include air traffic control, ship handling, firefighting, and medical operating rooms.[17]

The Difficulty of Precisely Executing CRM Procedures In a Multicultural Cockpit

Multiculturalism in the cockpit is a largely recent phenomenon.  Globalization and shrinking militaries around the world have led to a decrease in the availability of trained pilots, a lack of homogenous flight crews, and the emergence of multicultural cockpits.  In 2005, a Helios Airways Boeing 737-300, with its pilots incapacitated by hypoxia after they failed to recognize a cabin pressurization system malfunction, provides a good example of what can happen when communication and crew resource management break down in the multicultural cockpit.[18]  All 121 people on the airplane were killed when the 737 depressurized and ran out of fuel, the engines flamed out, and the airplane crashed, after what was to have been a flight from Larnaca, Cyprus, to Prague, Czech Republic, with a stop in Athens.

In its final report on the accident, the Hellenic Air Accident Investigation and Aviation Safety Board said the crew had failed to recognize that the cabin pressurization mode selector was in the wrong position.  The Helios crew exhibited poor CRM before takeoff and during climb, and the difference in their nationalities and primary languages–the captain was German, the first officer was Cyprian–contributed to poor communication during the event.  A blaring cabin altitude warning horn and the illumination of master caution lights degraded the crew’s cognitive abilities and processes.  Inter-cockpit communications were reduced, perhaps in part because English was a second or third language for the crew.[19]

The CRM Lessons Learned From Air France 447–“Crew Coordination Vanished”

On March 27, 1977, two Boeing 747s crashed on the single runway on the Spanish island of Tenerife, killing 583 people.  More than 35 years later, it is still measured by the number of casualties, and is by far the worst aviation disaster in history.  One aspect of the accident, unlike many tragic and significant disasters, is that the non-aviation community was fixated on the Tenerife crash, the individuals involved, and exactly what the sequence of events was.  Arguably the next time both the aviation community and the non-aviation community became as fixated on an aviation disaster was the 2009 crash of Air France 447.[20]

Within four and a half minutes in the early hours of June 1, 2009, an Airbus A330-200 operating as Air France Flight 447 from Rio de Janeiro to Paris, departed from cruise flight at 35,000 feet and descended into the Atlantic Ocean, killing all 216 passengers and 12 crewmembers.  Glimpses of what may have gone wrong emerged from the several interim reports issued by the French Bureau d’Enquetes et d’Analyses (BEA) during the long investigation.  In July, 2012, the BEA issues a nearly 300-page final report.

According to the report, the trouble began when the A330’s pitot tubes were obstructed by ice crystals, causing the various air data sources to produce unreliable airspeed information.  Reacting as designed, the autopilot and autothrottle disengaged, and reverted to a lower control law that provides fewer protections against flight-envelope deviations.  Startled, the pilot flying (“PF”) inadvertently commanded a steep nose-up pitch change while leveling the airplane’s wings.  The flight crew–a copilot and a relief pilot filling in for the resting captain–recognized the loss of reliable airspeed data but did not conduct the associated checklist procedure.  As a result, “[c]onfusion reigned on the flight deck, and crew coordination vanished.” [21]  Without automatic angle-of-attack protection, the airplane entered a stall.  The crew either believed that the stall warnings were spurious or mistook the airframe buffeting as a sign of an overspeed condition.  When the resting captain was called to return to the flight deck, he continued to apply nose-up flight inputs, when, at such a low altitude, the only possible chance to get the plane back into the flight envelope would have been nose-down inputs.  In addition, the PF almost immediately took back priority without any callout and continued piloting.  The priority takeover by the PF contributed to the de-structuring of the task-sharing between the pilots.  No recovery action was taken, and the A330 remained in a stall as it descended into the sea.

Additional sections of the BEA final report comment on the fragmented nature of the augmented crew, and the fact that some junior officers had far more flight hours in type than some of the more senior crew members, further eroding the opportunity for effective CRM in a surprise situation.

SOPs and CRM Must be Properly Implemented and Adhered To

Disciplined implementation of, and adherence to, SOPs is inseparable from the disciplined implementation of, and adherence to, CRM.  Although this article only scratches the surface on data supporting this conclusion, it is an irrebuttable presumption that if flight crews fully embrace SOPs and CRM, flying will be safer.

[1] Data and Statistics-NTSB-National Transportation Safety Board http://www.ntsb.gov/data/index.html (last visited, October 18, 2013).

[2] Member Robert L. Sumwalt, Standard Operating Procedures:  The Backbone of Professional Flight Operations,  http://www.ntsb.gov/news/speeches_sumwalt.html  September 16, 2013 (last visited October 18, 2013) (unpaginated).

[3] Id. (citing from National Transportation Safety Board Accident Report NTSB/AAR-11/01, PB2011-910401, Crash During Attempted Go-Around After Landing, East Coast Jets Flight 81, Hawker Beechcraft Corporation, 125-800A, N818MV, Owatonna, Minnesota, July 31, 2008).

[4] Id.

[5] ICH Harmonized Tripartite Guidelines For Good Clinical Practice. (1.55.)  May 1, 1996.

[6] Green, R. G., Muir, H., James, M., Gradwell, D., & Green, R. L. (1996) Human Factors for Pilots (2nd ed). Ashgate Publishing Ltd (Hants, England), 1996.

[7] Anderson, Chris.  How to Write Standard Operating Procedures.  Bizmanualz, June 4, 2012.

[8] Poksinska, Bozena; Dahlgaard, Jens Jörn; Antoni, Marc (2002). The State of ISO 9000 Certification: A Study of Swedish Organizations. The TQM Magazine 14 (5): 297.

[9] Nigel H. Croft (2012). “ISO 9001:2015 and Beyond – Preparing for the Next 25 Years of Quality Management Standards“. ISO.

[10] FAA Advisory Circular AC 120-71.

[11] Reference to Lautman-Gallimore Study.  Member Robert L. Sumwalt, Standard Operating Procedures:  The Backbone of Professional Flight Operations  http://www.ntsb.gov/news/speeches_sumwalt.html  September 16, 2013 (last visited October 18, 2013) (unpaginated).

[12] R. Khatwa & R. Helmreich, cited in Member Robert L. Sumwalt, Standard Operating Procedures:  The Backbone of Professional Flight Operations  http://www.ntsb.gov/news/speeches_sumwalt.html  September 16, 2013 (last visited October 18, 2013) (unpaginated).

[13] Diehl, Alan (2013) “Air Safety Investigators: Using Science to Save Lives-One Crash at a Time.” Xlibris Corporation. ISBN 9781479728930. http://www.prweb.com/releases/DrAlanDiehl/AirSafetyInvestigators/prweb10735591.htm.

[14] UNITED AIR LINES, INC. “McDONNELL-DOUGLAS DC-8-61, N8082U PORTLAND, OREGON : DECEMBER 28, 1978.” National Transportation Safety Board. December 28, 1978. 9 (15/64).

[15] Cooper, G.E., White, M.D., & Lauber, J.K. (Eds.) 1980. “Resource Management on the Flight Deck,” Proceedings of a NASA/Industry Workshop (NASA CP-2120).

[16] Helmreich, R. L.; Merritt, A. C.; Wilhelm, J. A. (1999).  “The Evolution of Crew Resource Management Training in Commercial Aviation.”  International Journal of Aviation Psychology.  9 (1): 19–32.

[17] Diehl, Alan (June, 1994). “Crew Resource Management… It’s Not Just for Fliers Anymore.” Flying Safety, USAF Safety Agency.

[18] Hellenic Air Accident Investigation and Aviation Safety Board.  Aircraft Accident Report 11/2006, Helios Airways Flight HCY522, Boeing 737-315, at Grammatiko, Hellas, 14 August 2005.

[19] Id.

[20] The following summary of the facts and conclusions associated with AF 447 is based on the English translation of the BEA’s “Final Report on the Accident on 1st June 2009 to the Airbus A330-203, Registered F-CZCP, operated by Air France, Flight AF 447, Rio de Janeiro-Paris”.  The report is available in English and the original French at www.bea.aero.

[21] Mark Lacagnina, Sustained Stall: Blocked Pitot Tubes, Excessive Control Inputs and Cockpit Confusion Doomed Air France 447, http://flightsafety.org/aerosafety-world-magazine/august-2012/sustained-stall (accessed October 22, 2013).

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Oregon Law Does Not Permit Experts to Testify in the Form of Legal Conclusions in Product Liability or Negligence Cases

Under Oregon law, witnesses are not allowed to testify as to legal conclusions.  See, e.g., Olson v. Coats, 78 Or App 368, 370 (1986) (excluding testimony by witness that certain road signs complied with statutory requirements).  “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Washington Metro. Area Transit Auth., 112 F3d 1207 (D.C. Cir. 1997).  Examples of inappropriate testimony in the form of legal conclusions include, but are not limited, to:

  • Defendants were clearly reckless, acted in a reckless manner, or acted in a grossly reckless manner;
  • Plaintiff was negligent; and
  • The helicopter/engine had a known and recognized defect.

Neither plaintiff nor defendant should be permitted to elicit such legal conclusions at trial.  An increasing number of products liability cases have excluded similar expert testimony.  A district court was held to have correctly excluded expert testimony that “the lack of adequate warnings and instructions constituted defects which made the products unreasonably dangerous.”  Strong v. E.I. DuPont de Nemours Co., 667 F2d 682, 685-86 (8th Cir. 1981).  Similarly, in Harris v. Pacific Floor Machine Mfg. Co., 856 F2d 64, 67 (8th Cir. 1988), a district court was held to have properly refused to permit the plaintiff’s expert to opine as to the adequacy of the particular warning on the product.

Likewise, expert testimony that a party was “willful” was excluded in United States v. Baskes, 649 F2d 471, 478 (7th Cir. 1980).  On similar grounds, a federal district court excluded expert testimony that the plaintiff was “negligent.”  The court’s ruling also encompassed “any testimony . . . that contains a variation of the term ‘negligent,’” or any opinions that certain conduct was the “direct, proximate and efficient cause” of an accident.  Hermitage Industries v. Schwerman Trucking Co., 814 F Supp 484, 487-88 (D. S.C. 1993).

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Evidence

The Restyled Federal Rules of Evidence and NTSB Fact Reports

The admissibility of NTSB fact reports depends at least in part on the judge’s interpretation of the Federal Rules of Evidence.  Many practitioners are not aware that the Federal Rules of Evidence were “restyled” and rewritten in plainer, easier-to-understand language in 2011.

Although the substance of the Rules largely did not change, the restyling meant that some subsections were deleted.  A formerly popular subsection that was deleted was FRE 803(8)(C) regarding the hearsay exception for public records that was used to admit NTSB fact reports.  Now, that exception is found under FRE 803(8)(A)(iii) and FRE 803(8)(B).

FRE 803(8)(C) used to provide, in part, that:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 

“* * * * *

“(8) Public records and reports.—Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

“* * * * *

“(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”

The new, restyled Rule 803(8) provides, in part, that:

“(8) Public Records. A record or statement of a public office if:

“(A) it sets out:

“* * * * * 

“(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

“(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.”

The Committee Note to the restyled Rule 803 provides that:

“The language of Rule 803 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules.  These changes are intended to be stylistic only.  There is no intent to change any result in any ruling on evidence admissibility.”

Therefore, the 2011 deletion of FRE 803(8)(C) does not change important cases regarding the NTSB admission of fact reports, such as Beech Aircraft Corp. v. Rainey, 488 US 153, 170 (1988).  In that case, the Supreme Court held that an investigative report into the cause of a naval aircraft crash was admissible under FRE 803(8)(C) despite the fact that it contained conclusions drawn from the facts investigated or expressed opinions concerning those facts.  488 US at 170.  At the outset, the Court noted that the term “factual findings” in the rule should not “be read to mean simply ‘facts.’”  Id. at 163-64.  Continuing, the Court stated that, “[a] common definition of ‘finding of fact’ is, for example, ‘a conclusion by way of reasonable inference from the evidence.”  Id.  It further noted that “the Rule does not state that ‘factual findings’ are admissible, but that ‘reports … setting forth * * * factual findings’ are admissible.”  Id. at 164 (emphasis in original).  “On this reading, the language of the Rule does not create a distinction between ‘fact’ and ‘opinion’ contained in such reports.”  Id.  The Court also looked to the legislative history of Rule 803 and found that it “contain[s] no mention of any dichotomy between statements of ‘fact’ and ‘opinion’ or ‘conclusions.’”  Id. at 166.  It thus concluded that, “unless the sources of information or other circumstances indicate lack of trustworthiness,” investigative reports are admissible regardless of whether they contain facts, opinion, or both.  Id. at 167.

Therefore, although practitioners can no longer cite to FRE 803(8)(C), the substance of the Rule is still good law under the restyled FRE 803(8) and seminal holdings such as Rainey continue to be good law as well.

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Titanium Aluminide and Its Use in Aviation Manufacturing

Companies are starting to manufacture turbine blades from titanium aluminide. This makes the blades more lightweight, resulting in less energy output.  A titanium aluminide blade weighs about half as much as a traditional blade made of nickel superalloy.

Three principal compounds are formed by titanium aluminides: TiAl, TiAl2 and TiAl3. Dixon Chandley, Use of Gamma Titanium Aluminide for Automotive Engine Valves, 18 (1) Metallurgical Sci. & Tech. 8 (2000).   “Gamma titanium aluminide-based alloys (y-TiAl) have become an important contender for high-temperature structural applications in the aircraft industry to replace current nickel-based superalloys as the material of choice for low-pressure turbine blades.”  L. Patriarca, Fatigue Crack Growth of a Gamma Titanium Aluminide Alloy, 9th Youth Symposium on Experimental Solid Mechanics, 2010, 36.  y-TiAl compounds have the highest melting point and therefore are most “useful for engineering purposes.”  Chandley, 18 (1) Metallurgical Sci. & Tech. at 8.

Ti-Al was not really used in manufacturing and production until the 2000s.  One reason is that it was brittle and therefore “difficult to form and to process”.  Daniel Hautmann, Titanium Aluminide–A Class All By Itself, 1 MTU Aero Engines Rept. 27 (2013).  Through decades of research work, it was found that brittleness could be tackled “by adjusting the material composition, and manufacturing processes and the design were tailored to suit the material properties.”  Id. at 28.

Ti-Al is now revolutionizing the field of aviation and more and more companies are working to incorporate it into their blade manufacturing technology.  For instance, the Boeing 787 Dreamliner uses GE engines that include “titanium aluminide (Ti-Al) blades in the last two stages of the seven-stage low-pressure turbine.”  Stephen F. Clark, 787 Propulsion System, 3 Aero Quarterly 10 (2012).

 

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

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

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

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

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

Section I:  The Hot Section

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

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

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

Hot Section Component Manufacturing

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

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

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

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

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

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

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

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

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

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

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

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

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

Skin Graft Classification

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

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

Remedies

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

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NTSB Factual Reports and the Hearsay Rule in Oregon Aviation Cases

Oregon books

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

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

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

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

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The Admissibility of NTSB Fact Reports at Trial

Businesswoman standing in airplane engine

Introduction

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

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

The NTSB Mandate

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

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

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

The NTSB Party System and Factual Report Process

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

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

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

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

Method For Determining Admissibility

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

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

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

Conclusion

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

 

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NTSB Releases Fatality Statistics for 2011

A helicopter releases fire-suppressant chemicals on a forest fire.

The National Transportation Safety Board (“NTSB”) has recently released aviation data and statistics for transportation fatalities in 2011.  According to the NTSB, there were 494 aviation fatalities in 2011.  The breakdown on these statistics includes:  General Aviation (444); Air Taxi (41) Foreign/Unregistered (9); Airlines (0) and Commuter (0).

Olson Brooksby practices a wide variety of aviation law.  We have experience representing commercial and local airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; UCC litigation; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; assistance with fuel contracts; and general aviation commercial litigation.  We also provide counseling regarding insurance, risk assessment, and best practices.

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

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

There are important advantages to hiring experienced aircraft accident defense attorneys who have investigated and successfully litigated numerous aircraft, helicopter, and commercial aircraft accidents and who have the technical knowledge to hire the right experts. Our aviation attorneys are familiar with allegations concerning: mechanical malfunctions due to airframe or component defects; improper repair or maintenance; improper weight and balance; weather; piloting and human factors; instruments and avionics; air traffic control; and even issues relating to bird strikes and lasers.  Our aviation attorneys have familiarity with the procedures of the NTSB and the FAA, and we have experience with document requests and evidence rules concerning NTSB reports.  Scott Brooksby has experience working with NTSB employees, both within the context of litigation as well as outside of the courtroom at aviation conferences.

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Independent Medical Examinations and Oregon Law

IME’s: Leveling the Playing Field

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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