Tag Archives: aviation accidents

Scott Brooksby featured as speaker and moderator regarding birds, pets, lasers, and other hot topics in aviation

On June 1, 2016, Scott Brooksby was featured as a speaker and moderator on a panel entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”, at the American Bar Association’s 22nd Annual National Institute on Aviation Litigation, at the University Club of New York in New York, New York.

Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts.  The topics discussed included the following issues:

• Bird strikes are the second-leading cause of death in aviation, with more than 400 deaths globally. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks.
• Flight crews are increasingly targets of inexpensive, and increasingly powerful hand-held green lasers. More than 7,000 laser strikes were reported to the FAA in 2015. This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.
• Pigs, snakes and turkeys are just some of the pets, or emotional support animals, that airlines are confronting. The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines.
• The number of wheel well stowaway incidents are rising which poses security risks for airports and airlines, and it is not inconceivable that the stowaway with destructive intent could cause a catastrophic mass tort.

Multi-District Aviation Disaster Litigation after Air France 447

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

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

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

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

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

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

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

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

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

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

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

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

General Principles of Forum Non Conveniens

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

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

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

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

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

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

454 U.S. 235, 247.

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

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

454 U.S. 235, 254-55.

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

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

The Montreal Convention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Plaintiffs May Not Create An Unavailable Forum

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

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

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

Id. at 1097.

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

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

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

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

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

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

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

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

In response, plaintiffs argued:

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

359 Or. at 71-72.

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

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

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

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

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

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

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

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

359 Or. at 102.

Multidistrict Litigation

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

JPML may consider:

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

MDL Consolidation Distinguished from 1404(a) Transfer

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

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

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

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

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

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

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

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

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

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

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

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

Considerations for Aviation Disasters with parallel MDL and State Court Cases

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

Pretrial Choice of Law Issues

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

The Multiparty, Multiforum Trial Jurisdiction Act

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

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

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

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

28 U.S.C. §1369 (a)(1-3).

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

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

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

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

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

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

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

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

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


Scott Brooksby featured as moderator regarding helicopter accidents


Scott Brooksby recently moderated a panel at a prominent aviation conference concerning helicopter accidents.  Scott’s panel was featured at the American Bar Association’s Aviation Litigation National Institute in New York regarding “Helicopter Accidents: A Review of Recent Cases of Interest”.

At this prominent aviation conference, Scott was part of a distinguished faculty, which highlighted current developments in aviation law and insurance topics including:

• Safety in the cockpit issues and precedents that developed from the 9/11 litigation and how they relate to the Germanwings tragedy

• The unique challenges involved in emergency medical helicopter services both from a legal and safety perspective

• Choice of forum and other legal issues and precedents arising from several high profile international disasters

• London market claims leaders’ perspectives on handling aviation disasters spanning the globe

• Flying special missions for government and industry from explosives to ebola

• New developments in the law of aircraft financier liability in connection with the tortious actions of lessees and operators

• Common themes and issues faced by the trial teams in domestic cases such as the Colgan Air 3407 and Comair 5191

• Ethical considerations when selecting and preparing experts in aviation accident litigation

• The future of aviation, aerospace law, and litigation in connection with drones and commercial space/sub-orbital travel

 Scott Brooksby is an aviation lawyer in Portland, Oregon, with experience in a broad variety of aviation topics, including helicopter litigation and crashes.

Aviation Fatalities: Most are Caused by Human Error

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

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

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

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

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

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

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

Developing Effective SOPs

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

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

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

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

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

The reasons SOPs are typically not followed are:

(1) the organization lacks adequate SOPs;

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

(3) flight crews intentionally disregard SOPs.

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

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

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

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

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

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

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

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

Well-Coordinated CRM is a Crucial Part of Accident Prevention

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

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

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

The Difficulty of Precisely Executing CRM Procedures In a Multicultural Cockpit

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

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

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

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

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

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

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

SOPs and CRM Must be Properly Implemented and Adhered To

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

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

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

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

[4] Id.

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

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

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

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

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

[10] FAA Advisory Circular AC 120-71.

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

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

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

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

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

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

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

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

[19] Id.

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

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

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.

Why Are There So Many Helicopter-Related Air Medical Operations Accidents?

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.

To curb medical helicopter crashes, focus on pilot haste, experience

Modern healthcare capture
Helicopter Emergency Medical Services crashes

Here’s an opinion piece by shareholder Scott Brooksby,  published in the June 10 issue of Modern Healthcare:

To curb medical helicopter crashes, focus on pilot haste, experience

A dramatic national conversation erupted recently following a U.S. National Transportation Safety Board finding that smart phone texting was a contributing factor in the crash of a fatal medical-helicopter flight in 2011.

The discussion has concentrated on everything from connecting the event to the dangers of texting while driving to calls for a ban on texting by pilots in air medical operations.

Absent from the discussion, however, is a larger issue that’s well recognized by helicopter industry safety organizations, and what should be of great concern for hospital administration and other organizations that contract emergency helicopter services.  The issue has to do with the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

In comparison to virtually every other type of commercial aviation, there is an inordinate rate of accidents within medical helicopter aviation, with the 2010 NTSB data proof in point.

Essentially, NTSB segregates aviation operations into hundreds of categories, the largest being all U.S. major domestic air carrier flights.  In 2010, NTSB reported only 14 accidents among major air carrier aviation, none of which were fatal.  By contrast, in 2010 there were 13 HEMS accidents, including seven fatal crashes.

Medical helicopter pilots are heroic and driven individuals who are among the best-trained and highest-skilled pilots in the world and fly what arguably are the most dangerous missions outside of military aviation.  HEMS pilots possess the grit and courage to go forth in dangerous conditions any time of night or day, in icy conditions or great heat, in storms, in densely trafficked urban controlled airspace, and remote uncontrolled airspace.

The most dangerous occupation

Operating without the benefit of formal flight plans with takeoffs and landings in uncontrolled locations ranging from roads to ball fields to the tops of buildings, the challenge is incredible.  Speed is critical.  But it comes with great risk.  In fact, according to a University of Chicago report, crewing a medical helicopter is the most dangerous profession in America.

Clearly it takes a special individual to accept the challenge.  But according to the International Helicopter Safety Team, the same attributes of risk tolerance, confidence and dogged determinism required of a HEMS pilot commonly are the very factors that, when excessive, lead to helicopter pilot error.

But what complicates the issue of haste to meet critical needs is the fact that the majority of HEMS accidents occur not when pilots are ferrying a patient to emergency treatment, but instead take place when pilots are rushing to the scene to pick up a patient, or the transportation of organs.

NTSB data shows that fully 58 percent of the 31 medical flight accidents occurring from 2007 to 2009 took place when the HEMS aircraft were en route to pick up an injured patient, or involved organ transport organs. Only 42 percent of HEMS accidents occurred with patients on board.

Haste and pilot error under harrowing conditions is exacerbated in the case of less experienced HEMS pilots.  Although on the whole HEMS pilots rank among the most experienced and capable pilots in the world, NTSB records indicate that flight hours of HEMS pilots not involved in accidents have logged 19 times as much air time in a particular aircraft as those involved in accidents.

Managing contract helicopter risk

Since 2005, there has been an increasing call for greater safety requirements in HEMS aviation, focusing largely on navigation equipment and flight dispatch and monitoring systems.  We expect to see continued progress in that area.

In the meantime, to reduce the incidence of HEMS crashes as well as to exercise prudent risk management, here are some steps for hospital administrators to consider:

–        Review your HEMS contractor pilot training program, with a preference for programs that not only meet, but exceed, FAA compliance levels;

–        Request documentation of contractor aviation risk assessment programs, and review the specific crew checklist parameters to assess risk level of each flight;

–        Stipulate that pilots have a minimal level of flying hours on the specific type of aircraft to be used in life flight operations;

–        Stipulate that pilots have a certain level of military flying service, or equivalent civilian training;

–        Review pilot histories and encourage condition-specific training that corresponds to local conditions; and

–        To limit claims against your hospital or organization, ensure that your HEMS contracts contain solid indemnity provisions.

Although the tragic human consequences of a fatal medical helicopter crash are clear, there’s less recognition of the massive risk of litigation, which while principally focused on the flight service company easily can become a deep, years-long issue for the contracting hospital organization.

HEMS operators are the first line of defense in one of the greatest challenges of emergency care, operating under diligent training execution and best principles of safe flight as established by the FAA and contractor safety policies.  However, perfection is an aspiration, and recognizing the record of accidents, hospital organizations should look beyond smart phone bans to limit the occurrence and risk of medical helicopter accidents.