Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.
You can download that paper here:
Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.
You can download that paper here:
Scott Brooksby will be speaking at the 2016 International Air and Transportation Safety Bar Association Conference April 28 – April 30, 2016, in Washington, DC. He will be speaking with other distinguished panelists, including James Rodriguez from the national Transportation Safety Board (NTSB) regarding “Obtaining Testimony from the NTSB”.
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.
This article will discuss statistical and philosophical rail safety. While rail accidents generally do not garner a great deal of media attention unless, say, a school bus is involved, the NTSB’s role in the investigation rail accidents allows for the compilation of valuable information for those in the rail industry and can assist them with developing solutions for accident avoidance.
The National Transportation Safety Board (NTSB)’s Unique Role In Rail Accident Investigation
The practical reality is that most media attention as it relates to the NTSB is focused on plane crashes. Plane crashes are unique in their ability to capture the average person’s attention. While we will not delve into every statutory or regulatory provision or procedure employed by the NTSB, some key elements are worth noting here. The NTSB is a completely unique federal agency, consisting of five members, one of whom serves as the chair. The NTSB is congressionally chartered and has subpoena and prosecutorial powers, but it is not an agency supervised by the Executive branch of the U.S. Government. Its sole and unique mission is to investigate every transportation disaster in the United States, make a probable cause determination, and, if appropriate, issue safety regulations. It is the only government agency authorized to investigate the causes of transportation accidents and make safety recommendations. The NTSB’s authority is set out at 49 U.S.C. §§ 1101-1155.
The origin of the NTSB was the Air Commerce Act of 1926. (NTSB, History of The National Transportation Safety Board, http://www.ntsb.gov/about/history.html (accessed 5/10/13)). The NTSB was established in 1967 as the federal government’s primary accident investigation agency for all modes of transportation. The core of the new agency was the Civil Aeronautics Board’s Bureau of Safety (closed due to the Airline Deregulation Act of 1978). (Id.) Originally established with strong ties to the Department of Transportation, these ties were later severed under the Independent Safety Board Act 1974 when the provisions of 49 U.S.C. §§ 1101-1155 enabled the agency. (Id.)
The NTSB division that handles rail accident investigations is the Office of Railroad, Pipeline and Hazardous Materials Investigations (“the Office”). (NTSB, Office of Railroad, Pipeline and Hazardous Materials Investigations, http://www.ntsb.gov/about/office_rph.html (accessed 11/15/13)). The NTSB makes safety recommendations based on the rail accident investigations it conducts. (Id.) The Railroad Division of the Office conducts investigations “involving passenger railroads, freight railroads, commuter rail transit systems and other transportation systems operating on a fixed guideway. These accidents typically involve collisions or derailments; some of these accidents lead to the release of hazardous materials.” (Id.)
Rail Fatality Statistics
In 2011, the most recent year for which NTSB statistics for fatal accidents are available, there were 759 rail accidents. The accident data for 2011 was comprised of trespassers and nontrespassers (499); light, heavy, and commuter rail (230); employees and contractors (24); and passengers (6). (NTSB, Data & Statistics: 34,434 Transportation Fatalities In 2011, http://www.ntsb.gov/data/index.html (accessed 10/27/13)).
Information regarding NTSB reports concerning rail accidents going back to the 1970s can be found on the NTSB website at http://www.ntsb.gov/investigations/reports_rail.html.
Causes of Rail Accidents
In September of this year, NTSB Board Member Dr. Mark Rosekind made a presentation to a workshop of locomotive engineers and trainmen. Mark Rosekind, The NTSB Safety Mission: From Investigation to Recommendation, https://www.ntsb.gov/doclib/speeches/rosekind/rosekind_09232013.pdf (last accessed Nov. 15, 2013). One of the causes of rail accidents that Dr. Rosekind identified is fatigue, about which the NTSB feels strongly and almost constantly designates as a cause of accidents. As Dr. Rosekind stated in his remarks, “fatigue can degrade the very aspect of human capability”. (Id.)
On April 17, 2011, there was a collision between two BNSF railway freight trains in Red Oak, Iowa. (Id.) The cause of the accident was found to be fatigue. (Id.) Specifically, the crew of the striking train was so fatigued that they failed to comply with the signal indication requiring them to stop before colliding with the standing train. (Id.) The crew had fallen asleep “‘due to fatigue resulting from their irregular work schedules and their medical conditions.'” (Id.)
Based on some of the NTSB investigations pinpointing fatigue as the cause of rail accidents, Dr. Rosekind recommends that “fatigue management systems” be developed for operators and that such systems be monitored and continually improved upon in order to reduce fatigue-related accidents. (Id.)
Another cause of rail accidents is distraction. (Id.) In Chatsworth, California, on September 12, 2008, a Metrolink train collided with a Union Pacific train due to an engineer’s texting. (Id.) Metrolink’s engineer’s phone records on the day of the accident showed that 95 text messages were sent or received. (Id.) During the time the engineer was responsible for operating the train, he sent 21 texts, received 21 texts and made four telephone calls. (Id.) Upon investigation it was found that the engineer’s phone usage on the day of the accident was consistent with his previous use, so this accident was simply waiting to happen. (Id.) The cause of the crash was found to be the failure of the Metrolink engineer to observe and respond to the red signal. (Id.) Although the Metrolink engineer was prohibited from using his phone while operating the train, he did so anyway, causing the accident. (Id.)
NTSB Investigations as a Useful Tool for Avoiding Future Rail Accidents
NTSB investigations into rail accidents can serve as useful tools for avoiding accidents in the future. Because valuable information is compiled and because the NTSB makes a causation determination for each accident, future rail accidents can be avoided by looking at the causal mechanisms of the accident and implementing systems to avoid such accidents in the future.
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.
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.
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.
Helicopter Air Medical Operations Accidents are relatively high when compared to 14 C.F.R.§ 121 (Part 121) accidents. According to the NTSB, which is charged with investigating every aviation accident in the United States and many abroad, there were no fatalities in any Part 121 accidents in 2010. This despite some 17.5 million flight hours. Of those Part 121 accidents, the most common defining event, accounting for 26% of such accidents in 2010, was a turbulence encounter. The remaining defining events for Part 121 accidents in 2010, just as they generally have been for the last 10 years, involved ground collisions, ground handling, runway incursion, cabin safety, system failure, and bird strikes etc., many or most of which are ground events. Less than half of Part 121 accidents happened en route, although a significant number occurred during takeoff or landing.
Part 121 flights, as opposed to HEMS flights under Part 135 or Part 91, have distinctly different flight altitudes, flight durations, weather events, cruise speeds, air frame, and power plant configurations and thrust capacities. No one, including the NTSB, suggests that the high number of turbulence-related incidents involved in Part 121 operations should also characterize helicopter flight generally, particularly Helicopter Emergency Services (“HEMS”) flight. There is no evidence that turbulence, as understood in the context of Part 121 statistical treatment of accidents, has played any significant causal role in the relatively high number of HEMS mishaps, whether they resulted in injuries/fatalities or not. Given the incredibly low statistical number of injury/fatality mishaps in Part 121 operations compared to the high incidences of injury/fatality HEMS mishaps, what, if any, conclusions can be drawn?
Air medical operations are conducted under both Part 135 and Part 91, depending on whether patients are being carried on board the aircraft. HEMS missions en route to pick up patients or organs, or to reposition aircraft after accomplishing patient transport operations, are generally conducted under Part 91. Trips transporting patients or organs to medical facilities are conducted under Part 135. Some air medical helicopter operations, particularly for emergency medical services, are conducted by state or local government entities as public use flights, whether patients are on board or not.
Although fixed-wing aircraft are also used for Part 91 and Part 135 medical missions, there were only 10 fixed wing fatalities in air medical operations during the entire decade between 2000 and 2009.
A Statistical Overview of HEMS Accident Frequency and Type
HEMS accounted for about 80 percent of all air medical accidents during the ten-year period 2001-2010. Against this backdrop, we examine HEMS accidents, of which there were 13 in 2010 alone, seven of them fatal, according to a 2012 NTSB report. Six of the seven HEMS fatalities in 2010 involved operations under Part 91. From 2000 through 2010 (the most recent year NTSB statistics are available), 33 percent of HEMS accidents were fatal. Most HEMS accidents occurred during airborne phases of flight, and during 2010, all HEMS fatalities occurred during airborne phases of flight.
Obviously, this is explained in part by the fact that unlike fixed-wing air medical operations, HEMS flights generally do not operate out of established aerodromes. Instead, they operate out of off-airport locations where patients are in need of timely, critical care. According to a 2011 NTSB report, in every year except 2007, the number of Part 91 air medical helicopter accidents without patients aboard have been significantly higher than in any other category of air medical flying.
It may be useful to break down the 31 accidents involving thirty-two helicopters in air medical operations between 2007-2009. Eighteen were being operated under Part 91, thirteen were conducted under Part 135, and one was conducted as a public use flight. Eleven of the accidents, involving twelve helicopters, were fatal. Collision with objects on takeoff or landing accounted for 7 of the 31 accidents, but no fatalities.
On the other hand, four of the five controlled flight into terrain accidents were fatal, including the crash of the Maryland State Police public use flight carrying accident victims on approach to Andrews Air Force Base. Two of the three loss of control in-flight accidents were fatal, as were two of the three unintended flights into instrument meteorological conditions accidents. The midair collision between two HEMS helicopters conducting Part 135 operations in Flagstaff, Arizona, in June 2008 was also fatal to everyone on board. The other two fatalities involving a non-power plant system were coded as “other”, according to a 2011 NTSB report.
What Are The Typical Causes
In any aviation operation, pilot training, experience, and judgment are some of the most important factors in safe flight. With helicopter operations generally, and particularly HEMS operations, those factors are even more critical because of the conditions they fly in, such as bad weather, night flying, or flying in rural areas where wires or other low strike points may not be lighted or marked, and air-traffic may be uncontrolled. HEMS operations also face an unparalleled need for speed to save lives. Review of individual NTSB probable cause reports, NTSB factual data, and other aviation industry data would tend to suggest that helicopter accidents and resulting serious injuries and fatalities are most often the consequence of a number of factors, including loss of control, visibility issues, wire strikes, system component failure, or post-impact fire.
Although some of these issues pose dangers during Part 121 operations, they simply do not pose the same risks, largely due to obvious differences in the nature of the aviation operation, the equipment, altitude, avionics, take-off and landings from tightly controlled air-space, and the use of aerodromes. In addition, HEMS operations often involve situations in which minutes may literally save life and limb, prompting hurried behavior. While that is not to suggest that HEMS pilots are not some of the best helicopter pilots flying, they do face particular challenges, to which Part 121 pilots or even fixed-wing air medical operations pilots are less exposed.
There are also tremendous variations in helicopter air medical pilot training. From 2007-2009, for example, NTSB data suggest that the accident helicopter pilots’ median age was 54, ranging from 35 to 69. Median total flight hours were 7,125 with a range from 2,685 to 18,000. The median time in the type of accident helicopter was 375 hours, ranging from 11 to 4,241. NTSB statistics from 2011 suggest that such variations in flight time and the corollary impact on experience and judgment may be significant factors in the number of crashes. HEMS operations more often than not must use unimproved landing sites at accident scenes and helipads and hospitals or medical facilities. Loss of control in flight was the most common event for both fatal and non-fatal helicopter crashes, followed by collisions on takeoff or landing and system component failure of the power plant.
Even though HEMS pilots may have thousands of flight hours and are unquestionably some of the best helicopter pilots in the world, owners and operators of HEMS facilities should continuously examine and emphasize the consistent causes of HEMS crashes and adapt training programs to focus on those causes.
Olson Brooksby has an active aviation accident and aviation component product liability defense practice. For more information, please contact our office.
The National Transportation Safety Board is a unique federal agency. It is not a federal executive branch agency. Rather, it is congressionally chartered with a single aviation mandate: to investigate every aviation accident in the Unites States, determine the probable cause of the accident, and make recommendations to help protect against future accidents. See 49 U.S.C. §§ 1131, 1132, 1135 (Lexis Nexis 2006 and Supp. 2011). Although the full extent of the operational and investigative methods of the NTSB are beyond the scope of this article, 49 U.S.C. § 1154(b) prohibits litigants from using the final probable cause report prepared by the Board in any manner. However, the NTSB has a team of investigators in different specialty areas who prepare factual reports that do not involve conclusions regarding the cause of the crash. Use of these reports depends on the particular judge’s rulings on the rules of evidence, particularly Rule 803(8).
The NTSB recently released aviation data and statistics for transportation fatalities in 2011, including aviation. According to the NTSB, there were 494 aviation fatalities in 2011. Those fatalities are broken down by area as follows: General Aviation (444); Air Taxi (41); Foreign/Unregistered (9); Airlines (0); and Commuter (0).
Olson Brooksby PC maintains an active aviation accident and aviation component part product liability defense practice. For further information, please contact our office.
The NTSB held a hearing on a fatal medical helicopter crash that took place in 2011. After finding that smart phone texting was a contributing factor in the fatal crash, the NTSB recently considered a ban on pilot texting. It is surprising that such a regulation is not already in place or under more serious consideration. Because there was evidence that the pilot had not been texting during the 19 minutes before the crash, however, the NTSB did not take any formal action on such a ban.
This is part of a larger issue that demands attention — the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.
Olson Brooksby practices a wide variety of aviation law. We have experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners. Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.
Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience. Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters. Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court. The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths. Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section. Mr. Brooksby has also been featured as a speaker and a moderator at the American Bar Association’s Aviation Litigation National Institute in New York, New York.