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.

Burn injuries, Catastrophic Injury, Experts

Defending the Pediatric Burn Case: How Knowing the Medical Literature and New Treatment Modalities Can Help Control Damages

Surgeons discussing computed tomography (CT) scans in operating theatre

Introduction

Most seasoned defense attorneys are well aware of the three subjects that often tend to cause far higher-than-expected verdicts: burns, kids, and cancer.  In this article we will address the danger of situations where there is not only a child, but the child is severely burned.

In prior posts we addressed burn classification, conventional treatment modalities, and aspects of expected outcomes.  We will not repeat that information here but instead address some general mortality statistics and where children, specifically those age six and younger, fit in.  We will also address experimental and new therapies for children, as described in the recent literature, including the use of virtual reality, albuterol inhalants, and aerosolized Heparin/Acetylcystine therapies.  All of these therapies have been shown to lower mortality rates in children.

Regardless of the burn mechanism, defending a pediatric burn case, especially if it was fatal, can be extremely difficult.  Juries tend to be very sensitive to burn injuries, especially in cases involving children.  Therefore, the product liability or aviation defense lawyer must have an in-depth understanding of the mechanics of burn injuries and available treatment options, particularly in those cases where inhalation injury is a component.  Both an aircraft cabin and a home are confined spaces that can be filled with fatal levels of smoke, sometimes within seconds.  Given these considerations, it is essential that the defense attorney be thoroughly prepared, armed with both knowledge and empathy.

Statistical Overview of Burn Injuries

According to the National Burn Repository,[1] which gathers and analyzes statistical data from burn centers throughout the United States and Canada, there were 126,000 hospital admissions for burns from 1995 – 2005.  The mean burn size was 13.4 percent total body surface area (TBSA) with sixty-two percent of the full thickness burns covering less than ten percent TBSA.  Sixty-one percent of patients were transferred to another hospital for a higher level of care.  Six and one-half percent of admissions had inhalation injuries.  The data also show that the patients were seventy percent male with a mean age of 33 years.  Flame and scald burns accounted for seventy-eight percent of all burn injuries.

The prognostic burn index, a sum of the patient’s age and percentage of TBSA burn, was used as a gauge for patient mortality for many years.  This index suggested that by taking into consideration the patient’s age and the size of their full thickness TBSA burn, and adding twenty percent for inhalation, the patient’s mortality probability could be predicted.[2]  Advances in early excision of burn eschar,[3] skin grafting, early enteral feeding,[4] and wound closure with advanced techniques (skin substitutes) have altered the simple mathematical calculation.[5]  Patients with a prognostic burn index of 90 – 100 now have a mortality rate in the 50 – 70% range with poorer outcomes at both extremes of age.[6]

The Importance of Pediatric Treatment in Cases Involving Inhalation Burns 

As noted above, mortality rates are higher in pediatric patients.  Smoke inhalation injury continues to be implicated as the leading cause of death in persons with burn injuries.  Smoke inhalation injury has a reported mortality of 20 – 80%.[7]  This is also supported by the addition of 20% traditionally added to the prognostic burn index.

In smoke inhalation injury, there is a destruction of the ciliated epithelium[8] that lines the tracheobronchial tree.  Casts[9] from these cells cause upper-airway destruction, and this leads to obstruction, causing pulmonary failure.  In one recent study, the reduction in mortality in pediatric patients with inhalation injuries placed on a regimen of aerosolized heparin[10] and acetylcystine[11] was tested.[12]  Forty-seven children, acting against forty-three controls, received 5000 units of heparin and 3 ml of a 20% solution of acetylcystine aerosolized every four hours for the first seven days of injury.  All patients were extubated when they were able to maintain spontaneous oxygen levels.  The number of patients requiring re-intubation for successive pulmonary failure was recorded, as was mortality.

The results indicate a significant decrease in re-intubation rates, incidence of atelectasis,[13] and mortality for patients treated with the regimen of heparin and acetylcystine when compared with the controls.  Heparin/acetylcystine nebulization in children with massive burn and smoke inhalation injuries results in a significant decrease in incidence of re-intubation for progressive pulmonary failure and a reduction in mortality.

The Use of Virtual Reality For Acute Pain Management in Pediatric Burn Patients

In one experimental case, virtual reality was tested for pain management.[14]  Managing high pain levels associated with pediatric burns can result in a decreased reliance on opioid medications and can potentially minimize future risk of developing psychiatric problems.  During the study, hospitalized patients over the age of six and without facial burns were selected.  A lightweight helmet with binocular display provided patients with a Virtual Reality (VR) experience during acute pain procedures such as wound care or therapy.  Pain levels were assessed using the Faces Pain Scale (FPS).[15] Constitutional signs and symptoms, opioid medication usage, as well as nursing and family member assessments of pain were also recorded.  VR provided a three-dimensional computer-simulated environment where patients could see, hear, and interact with objects displayed in the virtual world.

Preliminary results suggested at least a 20% decrease on FPS during VR intervention.  Pediatric patients report an increased tolerance to exposed dressing sites during VR.  It remains unknown which patient factors (age, sex, characteristics of the burn, background pain level, etc.) are predictive of effective pain management with VR.

Conclusion

Olson Brooksby has defended many product liability and aviation cases where the resulting injury was a serious, sometimes fatal, burn.  From a defense perspective, such cases pose difficulties if defense counsel is not prepared to skillfully handle the cross examination of the treating burn physician.  The best way to do so is to be familiar with the prevailing treatment methods and the relevant literature.  Conversance with the literature will provide a working understanding of the techniques that were available to the treatment team to minimize the pediatric burn patient’s pain and increase the likelihood of survival.

 

[1] Miller, S.F.M., et al., National Burn Repository, 2005, American Burn Association: Chicago, IL. P. 1-51.

[2] Grunwald, T.B. and Garner, W.L. Acute Burns. University of Southern California; Los Angeles County + USC Burn Center, Los Angeles, California.

[3] Dead matter cast off the surface of the skin after a burn.

[4] Tubal feeding through the intestine.

[5] Rose, D.D. and E.B. Jordan, Perioperative management of burn patients.  Aorn J, 1999. 69(6): p. 1211-22; quiz 1223-30.

[6] N., K. Aoki, and M. Yamazaki, Recent advances in the management of severely burned patients.  Nippon Geka Gakkai Zasshi, 1999. 100(7): p. 424-9.

[7] Thompson PB, Herndon DN, Taber DL, et al.  Effects of mortality of inhalation injury. J. Trauma 1986; 26:163-5.

[8] Threadlike projections from the free surface of epithelial cells such as those lining the trachea, or bronchi.  The propel or sweep materials, such as mucus or dust across a surface such as the respiratory tract.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[9] Pliable or fibrous material shed in various  pathological conditions, the product of effusion.  It is molded to the shape of the part in which it has been accumulated, i.e., bronchial or tracheal casts.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[10] Heparin is an aparenteral anticoagulant drug with a faster effect than warfarin or its derivatives.  It is composed of polysaccharides that inhibit coagulation by forming an antithrombin. An antithrombin is anything that prevents action on the thrombin.  The Thrombin is an enzyme formed in coagulating blood which reacts with soluble fibrinogen to form a blood clot.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[11] Acetylcystine is a chemical substance that, when nebulized and inhaled, liquefies mucus and pus.  Taber’s Cyclopedic Medical Dictionary, 19th Ed.. 2001. Venes. D., Ed., F.A. Davis Co., Philadelphia.

[12] M.H. Desai, MD, R. Micak, RRT, RCP, J. Richardson, RCP, RRT, R. Nichols, MD, and D.N. Herndon, MD.  Reduction in Mortality in Pediatric Patients with Inhalation Injury with Aerosolized Heparin/Acetylcystiine Therapy.  University of Texas Medical Branch and Shriners Burns Institute, Galveston.  American Burn Association, 1998.

[13] Collapse of part (or, less commonly, all) of a lung.

[14] Minassian, A PhD; Kotay, A MS; Perry, W PhD; Tenenhaus, M MD, FACS; Potenza, B M. MD, FACS.  The Use of Virtual Reality for Acute Pain Management in Pediatric Burn Patients.  University of California San Diego, The American Burn Association, 2006.

[15] The Faces Pain Scale, also known as the Wong-Baker FACES Pain Rating Scale, is intended for children over three years of age.  It provides a series of six drawn facial expressions with an associated numerical value from zero through 5 representing the associated pain.  Hockenberry MJ, Wilson D:  Wong’s Essentials of Pediatric Nursing, 8th Edition. St. Louis:  2009: Mosby.

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Manufacturing, Metals, Titanium Aluminide

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).

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Manufacturing, Metals, Personal Injury

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.

Manufacturing, Steel

Steelmaking In The 21st Century: An Ancient Art, A Complex Modern Science, A Danger At Every Stage

Metal briefcase

Product liability lawyers should be familiar with both the dangers and the science of steel manufacturing.  Steel is one of the most indispensable products in the modern world.  Its uses, forms, and composition are limitless.  Like any other product, steel in its final form and use is a “product” subject to the same consumer expectation test in Oregon that applies to household appliances.  However, unlike most other product manufacturing, steel production, which creates the base material for pipe, rails, aviation, and innumerable transportation, mining, oil and gas, and other products, is incredibly dangerous.  Although serious burns might be the most obvious risk, there are also crush, amputation, and a host of other potential injuries which justify the most careful training, exacting safety processes, and best PPE.  This is especially true given the danger posed by the typical 24-hour-a-day production schedules and the undisputed fact that nighttime workers are in more danger than day workers.

Steelmaking Is An Ancient Art

In the ancient world, steelmaking was considered an art, and as the centuries passed, the process became more and more complex.  Steel was known in antiquity and may have been produced by managing bloomeries, or iron-smelting facilities, in which the bloom contained carbon.  Blooms are steel formed into large blocks to which further tempering or chemical procedures can be applied.  The use of blooms persists into the steelmaking of today.

The earliest known example of steel production, thought to be about 4000 years old, is a piece of ironware excavated from an archaeological site in Anatolia (the Asian part of Turkey).  “Ironware piece unearthed from Turkey found to be oldest steel.”  The Hindu (Chennai, India).  The Haya people of East Africa invented a type of furnace that they used to make carbon steel at 3,276 degrees Fahrenheit nearly 2000 years ago.  Africa’s Ancient Steelmakers (http://www.time.com/time/magazine/article/0,9171,912179,00.html?promoid=googlep).  Time Magazine September 25, 1978.

What Is Steel?

Steel is an alloy of iron and carbon.  Steelmaking is the process of producing steel from iron and ferrous scrap.  In steelmaking today, impurities such as silicon, phosphorus, and excess carbon are removed from the raw iron, and alloying elements such as manganese, nickel, chromium, and vanadium are added to produce different grades of steel.  Limiting dissolved gasses such as nitrogen and oxygen, and entrained impurities or “inclusions,” in the steel is also important to ensure the quality of the products cast from the liquid steel.  B. Deo and R. Boom, Fundamentals of Steelmaking Metallurgy, Prentice and Hall (1993).

Carbon is the primary alloying element, and its content in steel is between 0.002% and 2.1% by weight.  Additional elements are also present in steel, including manganese, phosphorous, sulfur, silicon, and traces of oxygen, nitrogen, and aluminum.  Carbon and other elements act as hardening agents, preventing dislocations in the iron atom crystal lattice from sliding past one another.

Varying the amount of alloying elements and the form of their presence in the steel (solute elements precipitated phase) controls qualities such as the hardness, ductility, and tensile strength of the resulting steel.  Steel with increased carbon content can be made harder and stronger than iron, but such steel is also less ductile than iron.  Ashby, Michael F. and Jones, David R.H.  Engineering Materials 2 (with corrections ed.) Oxford:  Pergamom Press.  ISBN 0-08-032532-7 (1992 [1986]).

Alloys with a higher than 2.1% carbon content are categorized as cast iron.  Because cast iron is not malleable even when hot, it can be worked only by casting, where it has a lower melting point.  Steel is also distinguishable from wrought iron, which may contain a small amount of carbon.

Even in the narrow range of concentrations that make up steel, mixtures of carbon and iron can form a number of different structures with very different properties.  One of the most important polymorphic forms of steel is martensite, a metastable phase that is significantly stronger than other steel phases.  When the steel is in an austenitic phase and then quenched rapidly, it forms into martensite, as the atoms “freeze” in place when the cell structure changes from FCC to BCC.  Depending on the carbon content, the martensitic phase takes different forms.  Below approximately 2% carbon, it takes a ferrite BCC crystal form, but at a higher carbon content, it takes a body-centered tetragonal (BCT) structure.  There is no thermal activation energy for the transformation from austenite to martensite.  Moreover, there is no compositional change to the atoms, which generally retain their same neighbors.  Smith, William F., Hashemi, Jared, Foundations of Materials Science and Engineering (4th ed 2006) McGraw Hill ISBN 0-07-295358-6.

Special Modern High Performance Alloys

There are a number of extremely complex super-alloys and other metals available today for high performance aviation and other uses, including Transformation Induced Plasticity (TRIP) steel and Twinning Induced Plasticity (TWIP) steel.  A complete discussion of these super-alloys merits a separate article, and one will be forthcoming shortly.

Introduction To The Modern Process

In the modern era, there are two major processes for making steel.  The first is basic oxygen steelmaking, which uses liquid pig iron from the blast furnace and scrap steel for the main feed materials.  Alternatively, iron ore is reduced or smelted with coke and limestone in the blast furnace, producing molten iron that is either cast into pic iron or carried to the next stage as molten iron.  In the second stage, impurities such as sulfur, phosphorus, and excess carbon are removed, and the alloying elements such as manganese, nickel, chromium, and vanadium are added to produce the steel required.  The vast majority of steel in the world is produced using the basic oxygen furnace.  In 2011, approximately 70% of the world’s steel was produced in this way.  R. Fruehan, The Making, Shaping and Treating of Steel (11th ed. AIST 1999).

The second major modern process is electric arc furnace (EAF) steelmaking, which either uses scrap steel or direct reduced iron (DRI) as the main feed material.  Oxygen steelmaking is fuelled predominantly by the exothermic nature of the reactions inside the vessel, whereas in EAF steelmaking, electrical energy is used to melt the solid scrap and/or DRI materials.

In recent times, EAF steelmaking technology has moved closer to Oxygen steelmaking as more chemical energy is introduced into the process.  E.T. Turkdogan, Fundamentals of Steelmaking, IOM (1996).  EAF steelmaking is predominantly used for producing steel from scrap and involves melting scrap, and combining it with iron ore.

Alternatively, the oxygen method can involve melting DRI using electric arcs (either AC or DC).  It is common to start the melt with a “hot heel” (molten steel from a previous heat) and use gas burners to assist with the meltdown of the pile of scrap.  EAF furnaces typically have capacities of around 100 tons every 40 to 50 minutes.

Regardless of the process used, through casting, hot rolling and cold rolling, the steel mill then turns the molten steel into blooms, ingots, slabs, and sheet.

At the typical steel mill, the raw materials are batched into a blast furnace where the iron compounds in the ore give up excess oxygen and become liquid iron.  At intervals of a few hours, the accumulated liquid iron is tapped from the blast furnace and either cast into pig iron or directed to other vessels for further steelmaking operations.  During the casting process, various methods are used, such as the addition of aluminum so that impurities in the steel float to the surface where they can be cut off the finished bloom.

Conclusion

The steelmaking process involves exposure to hundreds of tons of molten metals, often poured manually into ceramic, wax, or other casting forms or hot rolled into shapes.  The potential for catastrophic injury or death is everywhere in the steelmaking process, and it is essential that workers be trained and supervised to avoid lapses in safety that could result in such unfortunate occurrences.  Although automation continuously decreases the exposure of workers to significant injury or death as a result of virtually every phase of the process, the utmost care should still be exercised by all who enter a steel mill.

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Evidence, Hearsay, Oregon Law, Trials

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).

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Evidence, NTSB, Oregon Law, Trials

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.

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Multi-Defendant Product Liability and Aviation Cases Under the Lasley Case

Close up of judge raising gavel in courtroom

Lasley: A road map for pleading claims related to the fault of other defendants

Olson Brooksby PC often represents one or more defendants In multi-defendant product liability actions and aviation cases.  The Oregon Supreme Court case of Lasley v Combined Transport, Inc., 351 Or 1 (2011), addressed the issue of causation in Oregon as it relates to negligence cases with multiple tortfeasors.  Lasley also contains a detailed analysis regarding allocation of fault.  It is instructive for defendants who have affirmative defenses relating to the fault of other parties, as well as cross-claims and indemnity and contribution claims against each other.

For example, in multi-party product liability and aviation cases, more often than not, there will be a two or more co-defendants who intend to present a unified, or at least not inconsistent, defense against the target defendant.

Lasley contains a road map for defendants in such cases and sets out how to properly plead claims concerning the fault of other defendants so that those claims may be appropriately considered by the jury.

 What happened in Lasley?

In the Lasley case, a truck owned by defendant Combined Transport lost part of its load of panes of glass on the I-5 freeway.  Id. at 4.  The plaintiff in the case was among those stopped in traffic on the freeway while the glass dropped by defendant Combined Transport was being cleaned up.  Id.  While the plaintiff was stopped, Clemmer, the other defendant in the case, hit plaintiff’s pickup truck.  Id.  Defendant Clemmer was allegedly driving while intoxicated.  The collision caused a gas leak from the plaintiff’s pickup which, in turn, caused a fire, killing the plaintiff.  Id.  The lawsuit against Clemmer and Combined Transport alleged “that Clemmer was negligent in driving at an excessive speed and in failing to keep a proper lookout and control of her car.”  Id. at 13.  Clemmer admitted fault.  Id.  Critically, “Plaintiff did not allege that Clemmer was negligent in driving while intoxicated.”  Id.

Based on these pleadings, the trial court granted the plaintiff’s motion in limine to exclude evidence that Clemmer was intoxicated at the time of the collision, and the jury ultimately returned a verdict against both defendants, finding Combined Transport 22% at fault and Clemmer 78% at fault for plaintiff’s damages.  Id. at 4.

On appeal, Combined Transport argued that the court should have allowed evidence of Clemmer’s negligence due to her intoxication because Combined Transport filed an answer including a general denial and filed a cross-claim against Clemmer for contribution based on negligence due to intoxication.   Id. at 13-14.  Specifically, Combined Transport alleged that Clemmer should “contribute such amount as is proportionate to her share.”  Id. at 23.  (Internal quotation marks omitted.)   However, “Combined Transport did not allege in its cross-claim that it had paid more than its proportional share of liability or seek a money judgment against Clemmer.”  Id.  (Bolding added.)    The plaintiff argued that evidence of Clemmer’s intoxication was properly excluded because the plaintiff did not allege that Clemmer was negligent in driving while intoxicated, and, therefore, Clemmer’s intoxication was not relevant to apportionment as framed by the pleadings.  Id. at 13.

The court explained that Combined Transport should have included allegations of Clemmer’s negligence due to intoxication and Clemmer’s responsibility for contribution in Combined Transport’s answer as an affirmative defense.  Id. at 23.  The court held that:

“[A] defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  

Id. at 22-23.

As explained below, however, the court treated the Lasley case in a special way and allowed the cross-claim to be treated as an affirmative defense. Id. at 26. Most defendants in other multi-party cases, however, probably will not be so lucky.

Also, as explained below, the court went through a lengthy analysis of causation and negligence law in Oregon, and it also set out some critical Oregon-specific pleading rules in multi-defendant cases.

Causation in negligence cases involving multiple defendants under Lasley

The Lasley court stated that, in Oregon, “when the negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose negligence was a cause of the harm may be held liable.”  Id. at 6. Oregon law focuses on factual cause.  Id. at 7.  The Oregon Supreme Court “has abolished not only the terms but also the concepts of ‘proximate’ and ‘legal’ cause.”  Id. at 6.   Factually, if the defendant’s negligence harmed the plaintiff, the defendant is liable to the plaintiff as long as the injuries that the plaintiff suffered were reasonably foreseeable as a result of the defendant’s negligence.  Id. at 7.  Therefore, causation is “a purely factual matter” and is separate from the concept of liability (which is determined by whether the harm was reasonably foreseeable–not by ‘proximate’ or ‘legal’ cause).  Id.

Under Oregon law, causation is determined based on the “substantial factor” test and is evaluated by looking at “causation in fact.”  Id. (internal citation and quotation marks omitted).  If the defendant’s conduct was a substantial factor in producing the harm that befell the plaintiff, the causation element is met.  Id.  The question is “whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence.”  Id. (internal citation and quotation marks omitted).

In Lasley, Combined Transport argued that its conduct was so minimal when compared to Clemmer’s that its conduct could not have been a substantial factor in causing the plaintiff’s death.  Id. at 8.  Specifically, Combined Transport argued that the trial court should have admitted evidence that Clemmer was intoxicated at the time of the accident and that, when compared to Clemmer’s egregious conduct, Combined Transport’s conduct was so minimal that it should not be held liable.

The court admitted that a case might exist where the causation element is met as to the first defendant such that the plaintiff’s injury would not have occurred absent that first defendant’s negligence.  However, that first defendant’s act was so insignificant when compared to the act of the second defendant that the first defendant should not be held liable.  Id. at 10.  But the court declined to address such a circumstance, finding that those facts were not at issue in Lasley.  Id.

Rather, the court held that, “both the conduct of Clemmer and the conduct of Combined Transport were substantial factors in contributing to decedent’s death.”  Id.  Clemmer admitted fault and the jury found that Combined Transport’s act of spilling the glass on I-5 caused the plaintiff to stop.  Id. at 11.  There was expert testimony that, had the decedent’s pickup been moving at the time of the impact, the pickup would not have ignited and the plaintiff would not have died.  Id.

The court found that, even if the trial court had admitted evidence of Clemmer’s intoxication, Combined Transport’s conduct would not have been any less significant based on the evidence at trial.  Id. at 11.  The court reasoned that, “In deciding whether a defendant’s act is a factual cause of a plaintiff’s harm, the effect of the defendant’s conduct, and not whether that conduct fell below the expected standard of care, is the relevant consideration.”  Id.  Therefore, even if Clemmer was not intoxicated and did not engage in any negligent conduct, but still hit the decedent’s pickup while it was stopped, Clemmer’s conduct would have been a factual cause of the decedent’s harm.  Id.  The court explained that Combined Transport’s argument confused “causation” and “negligence.”  Id.  In other words, even if the trial court had introduced evidence regarding Clemmer’s intoxication, that would simply show “an additional way in which Clemmer deviated from the standard of care, it could not prove an additional way in which Clemmer contributed to the chain of events that caused decedent’s death.”  Id.  The focus is on “the effect of the defendant’s conduct, and not whether that conduct fell below the expected standard of care * * *.”  Id.  The court conceded that its analysis may have been different had Combined Transport proffered “evidence that showed that, because Clemmer was intoxicated, she inevitably would have killed decedent, even if his pickup had not been stationary.”  Id. at 12.  However, that argument was not made by Combined Transport at trial.

Apportionment of fault in multi-defendant cases under Lasley

Under Oregon law, when the fact finder determines that multiple defendants were at fault, the fact finder must apportion fault, based on percentages that equal 100, between those defendants.  Id. at 13.  The fact finder “is required to compare the degree to which each defendant deviated from the standard of care and is therefore ‘blameworthy.'”  Id.

The plaintiff in Lasley argued that Clemmer’s intoxication was not relevant to the fault of the parties “as framed by the pleadings” because the plaintiff did not make such an allegation in his Complaint.  Id.

Combined Transport argued that evidence of Clemmer’s intoxication should have been allowed because Combined Transport’s Answer included a general denial and it also cross-claimed against Clemmer for contribution on the basis of Clemmer’s intoxication.  Id. at 13-14.

The court held that:

“in a comparative negligence case, a defendant that seeks to rely on a specification of negligence not alleged by the plaintiff to establish a codefendant’s proportional share of fault must affirmatively plead that specification of negligence and do so in its answer as an affirmative defense and not in a cross-claim for contribution.”

Id. at 14.

The court found that, under the unique facts of Lasley, Combined Transport’s cross-claim could be construed as an affirmative defense alleging that Clemmer was negligent by driving under the influence.  Id.  The court therefore held that the trial court erred in excluding evidence of Clemmer’s intoxication.  Id.  It is important to note that the court stressed that Lasley was a very unique case and was almost a “one-off” exception to the holding that specific facts underlying a negligence claim not pleaded by a plaintiff must be pleaded by a defendant as an affirmative defense if the defendant wants to rely on those facts at trial.  As a rule, such facts should not be pled as a cross-claim for contribution.  In other words, “a defendant that intends to rely on a specification of negligence not pleaded by a plaintiff must affirmatively plead those facts to make them admissible.”  Id. at 15.  (Bolding added.)

The court explained that Combined Transport’s general denial was not sufficient to put into issue facts that the plaintiff had not pleaded in his Complaint.  Id. at 17.  A general denial only allows for evidence that contradicts “facts necessary to be proved by plaintiff * * *.”  Id (internal quotation marks and citation omitted).  In contrast, an affirmative defense pleads “a new matter” that “does not directly controvert a fact necessary to be established by plaintiff * * *.”   Id (internal quotation marks and citation omitted).

A “new matter” consists of facts “different from those averred by the plaintiff and not embraced within the judicial inquiry into their truth.”  Id (internal quotation marks and citation omitted).  In other words, “When a defendant seeks to avoid liability for the damages that a plaintiff claims by asserting that a codefendant engaged in more blameworthy negligent conduct not pleaded by the plaintiff, the defendant relies for that defensive posture on facts different from those averred by the plaintiff.”  Id.  

The court held that:

“a defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  

Id. at 22-23.

Under the facts of Lasley, “Combined Transport did not allege in its cross-claim that it had paid more than its proportional share of liability or seek a money judgment against Clemmer.”  Id. at 23.  Rather, Combined Transport alleged that Clemmer was driving while intoxicated and that Clemmer should “‘contribute such amount as is proportionate to her share.'”  Id.  The court found that Combined Transport should have made those allegations as an affirmative defense.  Id.

However, the court noted that:

“Combined Transport did allege, in its cross-claim, the fact of Clemmer’s intoxication and its theory that Clemmer’s intoxication should be considered in determining Clemmer’s proportional share of liability.  Combined Transport was incorrect in selecting the pleading that it was required to use, but was correct in recognizing that it must plead those allegations to make Clemmer’s intoxication relevant to the jury’s determination of comparative fault.  The trial court was correct that a cross-claim for contribution was premature, but it was incorrect that there was no role for Combined Transport’s pleading alleging negligence by Clemmer that was not pleaded by plaintiff.  A pleading was necessary to make Clemmer’s intoxication material and to allow the jury to consider that conduct in comparing the fault of Clemmer and Combined Transport.”

Id. at 26.  

Therefore, the court held that, “in the unique circumstances of this case, the cross-claim that Combined Transport proffered fulfilled the function of an affirmative defense, viz., to put the plaintiff on notice of the theory and facts comprising the defendant’s defense.”  Id. (bolding added).  The court found it significant that, at the time of trial, it was unclear (due to the trial court’s rulings) which pleading Combined Transport was required to use and Combined Transport’s cross-claim did apprise the plaintiff “of the facts on which it intended to rely and the purpose of those facts.  In that narrow circumstance, the defect in designating the pleading as a cross-claim rather than as an affirmative defense did not affect the substantial rights of plaintiff.”  Id. at 27 (bolding added).

The court added that, “However, for the reasons we have stated, the evidence of Clemmer’s intoxication was not relevant on the issues of causation, liability, or damages.  Therefore, we remand the case for a new trial limited to the degree of fault of each defendant ‘expressed as a percentage of the total fault’ attributable to each defendant.”  Id. at 27.

Pleading requirements and rules for defendants who want to ensure that fault is allocated to another party

The court also spelled out additional pleading requirements under Oregon law when a defendant wants to ensure that fault is allocated to another party:

– “When a defendant seeks to avoid liability to the plaintiff by asserting that the plaintiff or another tortfeasor should be held responsible for the plaintiff’s damages, Oregon law also anticipates that the defendant will alternatively plead the facts on which it relies.”  Id. at 16.

– “When a defendant contends that the plaintiff was at fault, the defendant must affirmatively plead ‘comparative or contributory negligence’ in its answer as an affirmative defense.  ORCP 19 B.”  Lasley, 351 Or at 16.

– “When a defendant contends that a tortfeasor who has not been joined in the action or with whom the plaintiff has settled was at fault, the defendant must file a third-party complaint against the tortfeasor or otherwise affirmatively allege the fault of that tortfeasor. ORS 31.600(3).”  Lasley, 351 Or at 16.

– “When a defendant contends that a codefendant was at fault, the defendant also must affirmatively allege the unpleaded fault of the codefendant.  * * *  ORCP 19 B requires that a party set forth affirmatively allegations of ‘comparative negligence.’  That requirement is not limited to allegations of the comparative negligence of a plaintiff.  Lasley, 351 Or at 16-17.

– “ORCP 19 B requires a defendant to set forth affirmatively ‘any other matter constituting an avoidance or affirmative defense.'”  Lasley, 351 Or at 17.

– “A general denial is required to ‘fairly meet the substance of the allegations denied.’  ORCP 19 A.  Therefore, a general denial does not put at issue facts that a plaintiff has not pleaded.”  Lasley, 351 Or at 17.

– Under ORS 31.600(3) and ORCP 19 B, “a defendant must, in some way, affirmatively plead a specification of negligence on which it intends to rely, and that has not been pleaded by the plaintiff, to establish the fault of a codefendant.  A general denial wil not permit a defendant to adduce evidence of a codefendant’s unpleaded negligence to avoid liability to the plaintiff.”  Lasley, 351 Or at 17.

– “[T]he proportional share of fault of each tortfeasor will be determined in the negligence action brought by the plaintiff.”  Id. at 18.

– Oregon no longer has joint and several liability.  “Now, under ORS 31.610, liability is several only; a tortfeasor is responsible only for its percentage of fault as determined in the action brought by the plaintiff.”   Lasley, 351 Or at 19.

– Under Oregon’s comparative negligence law, “no tortfeasor is liable for more than its percentage of fault, and that percentage of fault is determined in the original negligence action brought by the plaintiff.  ORS 31.610(2); ORS 31.805.”  Lasley, 351 Or at 21.

– “A defendant cannot bring a contribution action to seek a different determination of its percentage of fault.  A contribution action serves only to permit a defendant who has ‘paid more’ than its ‘proportional share of the common liability’ to obtain contribution from another person who is also liable for the same injury or death.  ORS 31.800(2).”  Lasley, 351 Or at 21.

– Although Oregon law allows for contribution claims under ORS 31.800(2), “Because a defendant’s liability is several only and the defendant is not obligated to pay more than its proportional share of liability, it seems that the circumstances in which a defendant will pay more than its proportional share and, therefore, have a reason to seek contribution from a codefendant will be quite limited.”   Lasley, 351 Or at 21.

– If a defendant does pay more than its proportional share and has a reason to seek contribution from a codefendant, that defendant “could use a cross-claim to assert a claim for contribution against a codefendant.  ORCP 22 B defines a cross-claim as a claim ‘existing in favor of the defendant asserting the cross-claim and against another defendant, between whom a separate judgment might be had in the action [.]’  A defendant who ‘has paid’ its proportional share could seek a separate judgment against a codefendant for the excess amount of its payment and do so by means of a cross-claim.”   Lasley, 351 Or at 21.

– A cross-clam for contribution should not be used “by a defendant to allege that a co-defendant is at fault for the plaintiff’s damages and should be held liable, not to the defendant, but to the plaintiff.  In that instance, the defendant does not seek a separate judgment against the codefendant as required by ORCP 22 B.  Even so, the comparative negligence statutes indicate that such a pleading may be permitted.”  Lasley, 351 Or at 21.

– “[W]hen a plaintiff does not join a tortfeasor as a defendant, the comparative negligence statutes permit the named defendant to file a third-party complaint against the tortfeasor.  ORS 31.600(3).  In that instance, the third-party defendant will not be liable to the defendant but, potentially, will be liable to the plaintiff.”  Lasley, 351 Or at 22.

– “ORCP 22 C(1) restricts third-party claims to circumstances in which a third party ‘is or may be liable to the third party plaintiff.'”  Lasley, 351 Or at 22.

– Even though ORCP 22 C(1) “indicates that a third-party claim is designed for the circumstance in which the third-party defendant is or may be liable to the third-party plaintiff, ORS 31.600(3) permits a defendant to file a third-party complaint to allege that a third-party defendant is at fault and potentially liable to the plaintiff.”  Lasley, 351 Or at 22.

– “ORS 31.600(2) specifically provides that the fact that a plaintiff is not a party to the third-party claim does not pervent the trier of fact from comparing the fault of the third-party defendant in the action brought by the plaintiff.”  Lasley, 351 Or at 22.

– “[T]he legislature anticipated that a defendant could file a third-party complaint against a tortfeasor who would not be liable to the defendant but who could, instead, be liable to the plaintiff.  Whether the legislature intended to permit a defendant to make a cross-claim against a codefendant who would not be liable to the defendant but, instead, would be liable to the plaintiff, is unclear.”  Id.  

– “Neither an affirmative defense nor a cross-claim for contribution is ideally designed as a mechanism for a defendant to plead the negligence of a codefendant that is not pleaded by the plaintiff and thereby to avoid or reduce the defendant’s liability to the plaintiff.  An affirmative defense is directed at a plaintiff, not at a codefendant.”  That said, “an affirmative defense is the pleading mechanism that a defendant should use.  The use of an affirmative defense is consistent with the terms of ORCP 19 B, whereas the use of a cross-claim for contribution would require modification of the terms of ORCP 22 B(1) and ORS 31.800.”  Lasley, 351 Or at 22.

– “We hold that a defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seek to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  Id. at 22-23.

– A cross-claim for contribution is directed at a codefendant and is not designed to avoid liability to a plaintiff.  Id. at 22.

– “[A] defendant who wishes to have the jury consider the unpleaded negligence of a codefendant in making” the comparison of fault of the parties “is required to plead the facts establishing that negligence.  The fact that the codefendant has accepted liability based on the facts alleged by the plaintiff does not eliminate that requirement.  Thus, in this case, to have the jury consider evidence of Clemmer’s intoxication in comparing the fault of the parties, either plaintiff or Combined Transport had to allege those facts.  Plaintiff did not do so, and the pleading burden fell on Combined Transport.”  Id. at 26.

 

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