Tag Archives: Aviation

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.

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.

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.

Component Part Manufacturer Liability in Oregon

Oregon Did Not Adopt Caveat (3) In Its Adoption of The Restatement (Second) of Torts, § 402A (1965)

Component part liability is important in products liability cases and especially in aviation cases, where the aircraft may have a long air-frame life but require service or replacements of hundreds of parts over its years of service.  Although Oregon adopted the Restatement (Second) of Torts, § 402A contains a caveat (Caveat 3 (1965)) regarding whether strict liability should be extended to component part manufacturers.  The Oregon Legislature, however, did not adopt this caveat as an interpretive guide for the courts.  Therefore, both pre-codification and post-codification Oregon Supreme Court rulings hold that strict liability can extend to component part manufacturers for the sale of defective components.  See State ex rel Hydraulic Servocontrols v. Dale, 294 Or 381 (1982); Smith v. J.C. Penney Co., 269 Or 643 (1974) (fabric manufacturer held liable because of flammable character of fabric, even though fabric was sold to the coat manufacturer before reaching consumer).  If the component part is dangerously defective and it causes injury, the component part manufacturer (or seller or distributor) is subject to liability.

Oregon law also follows the Restatement (Third) of Torts: Products Liability, which takes the position that if the component part is defective and causes injury, the component part manufacturer (or seller or distributor) is subject to liability.  Additionally, if the component part manufacturer “substantially participates in the integration of the component into the design of the product,” the component manufacturer is subject to liability. Restatement (Third) Of Torts: Products Liability § 5 (1998).

Oregon Law Involving Alleged Misapplication of a Raw Material:  Misapplication of a Raw Material Does Not Give Rise To Liability As To the Supplier

The manufacturer of a component part, however, is not subject to strict liability if the component was misapplied rather than defectively designed.  In Hoyt v. Vitek, Inc., 134 Or App 271 (1995), after experiencing problems with her temporomandibular joint (TMJ), the joint that connects the jaw bone to the skull, the plaintiff, Hoyt, had a prosthetic device implanted in her jaw.  The device gradually fragmented and released particles of Teflon, which caused a serious adverse reaction.  Du Pont Company manufactured Teflon and sold it to Vitek, Inc., which used the Teflon as a component part in its TMJ device.

Vitek designed, manufactured and marketed the device.  In 1977 DuPont informed Vitek that it manufactured Teflon for industrial purposes only and had sought no FDA rulings on the safety or effectiveness of surgical uses, and that Vitek would have to rely on its own medical and legal judgment.  Du Pont was aware of studies that warned of abrasion and fragmentation with medical Teflon implants and passed along this information to Vitek.  In 1983, Vitek received permission from the FDA to market the device pending “specific performance standards.”  Hoyt, supra, 134 Or App at 277.

Hoyt sued Du Pont, contending that Teflon was unreasonably dangerous because it was defectively designed and because of Du Pont’s failure to warn the medical community.  The court of appeals found that the component part was not defective.  The court of appeals also relied on the “raw material supplier” doctrine in deciding not to apply strict liability.  When a multiuse raw material is not unreasonably dangerous in itself, but becomes unreasonably dangerous when incorporated into certain uses, the supplier cannot be sued based on strict liability.  Hoyt, supra, 134 Or App at 284-286.  See Crossfield v. Quality Control Equip. Co., 1 F3d 701 (8th Cir 1993); Childress v. Gresen Mfg. Co., 888 F2d 45 (6th Cir 1989).

Cases in Which Component Parts Are the Allegedly Defective Product

Plaintiffs did allege that defective replacement parts were supplied after the first sale of a helicopter in Evans v. Bell Helicopter Textron, 1998 WL 1297138 (D Or 1998), but the service bulletins proffered by plaintiffs were insufficient to establish that the defective component parts were installed in the engine after the first sale.  The helicopter was manufactured in 1979, and crashed seventeen years later.  Defendants’ motion for summary judgment was granted on the basis of ORS 30.905 because plaintiffs could not support their allegation that an affirmative misrepresentation occurred after the first sale of the helicopter by defendants.

In Allstate Indem. Co. v. Go Appliances LLC, 2006 WL 2045860 (D Or 2006), plaintiff alleged that a defective compressor installed on a used refrigerator caused a fire in its subrogor’s house.  The opinion does not state when the refrigerator was originally first sold and does not discuss product liability time limitations.  However, the court held that plaintiff could assert a products liability action against the defendant, who sold the used appliance and installed the allegedly defective new compressor.

The statute of ultimate repose in both strict product liability cases and negligence cases is beyond the scope of this article.  However, one of the controlling Oregon cases relevant to a replacement component part is Erickson Air-Crane Co. v. United Technologies Corp., 303 Or 281 (1987), mod. on recons. 303 Or 452.  Although Erickson discussed the application of the products liability statute of ultimate repose in the context of post-sale negligent misrepresentation, the case is relevant to a discussion regarding application of the statute of ultimate repose to a post- sale installation of a defective component part.

In Erickson, plaintiff purchased a helicopter in 1971.  Defendant allegedly made misrepresentations regarding the useful safe life of a compressor disc in 1977.  After the helicopter crashed in 1981 due to exhaustion of the compressor disc, plaintiff filed suit in 1983.  The plaintiff’s complaint alleged that defendant was negligent in providing erroneous information, failing to warn plaintiff as to the erroneous information, and failing to warn that the helicopter was dangerous after expiration of the true safe life of the compressor disc.  Erickson, 303 Or at 284-85.

The Oregon Court of Appeals found that plaintiff’s action against the manufacturer was a product liability action, and that because the action was commenced more than eight years after the first purchase of the helicopter, the statute of ultimate repose barred the action.  Id. at 285-86.  The Supreme Court reversed, holding that:  “ORS 30.905 applies only to acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption.’  Acts or omissions occurring after that date are governed by the statute of ultimate repose contained in ORS 12.115.”[1]  Id. at 286.  Because the defendant relayed the false information about the useful safe life of the compressor after the helicopter was first purchased, ORS 30.905 did not apply.  Id. at 289. (“The difference between the present case and the type of case that the legislature meant to cover under ORS 30.905(1) is that, in this negligence case, the reasonableness of certain of defendant’s actions after plaintiff’s purchase are in question while, in a product liability case governed by ORS 30.905, it is the condition of the article at the date of purchase that is in question.”) (emphasis in original).

The Erickson holding, when viewed in the context of installations of new components, supports the argument that such alterations cannot “restart” the statute of ultimate repose on the original product.  Erickson holds that ORS 30.905 only applies to “acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption,’” and a post-sale negligent misrepresentation leading to the installation of a new product necessarily occurs after the date the product was first purchased.  A manufacturer can argue that under Erickson, the statute of ultimate repose should run on the original product from the date it entered the stream of commerce, regardless of whether component parts were installed post sale.

 

 


[1] ORS 12.115 is the generic statute of ultimate repose for negligence actions, and provides that “any action for negligent injury to person or property of another” must be commenced within “10 years from the date of the act or omission complained of.”

Effective Cross-Examination of Plaintiff’s Psychological Expert Can Reduce or Eliminate Damages for Misdiagnosed Claims of PTSD

Jurors in the jury box

Post-Traumatic Stress Disorder (“PTSD”) is a mental disorder within the trauma and stressor-related disorders included in The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or DSM-5.  It was previously categorized in the anxiety classification of disorders in the “DSM-IV”.

Personal injury, product liability, and aviation defense lawyers should be well prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs that they suffer from PTSD.  Reasons for thorough preparation include the frequent lack of critical information regarding a plaintiff’s background, inadequate psychological testing, improper reading of validity scales, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of plaintiff.  If defense counsel is thoroughly familiar with the DSM-5 (and its criteria and commentary on PTSD) and is prepared for an effective cross-examination of plaintiff’s treating or forensic psychologist, damages for emotional distress in PTSD claims can be significantly reduced or eliminated.

Olson Brooksby primarily defends product liability, higher exposure personal injury, and aviation cases.  Over the past few years, we have seen a trend developing whereby almost every plaintiff filing a personal injury lawsuit in such cases claims they suffer from PTSD as a consequence of the alleged injury, without regard for any other potential causes or their own overall life experience.  As a result, most plaintiffs seek emotional distress damages for PTSD as an element of damages in their personal injury lawsuits.

This being the case, there is no substitute for thorough preparation, in-depth knowledge of the material, and the ability to translate “psycho-speak” into plain language in order to mount an effective cross examination.  This preparation should start with a rigorous study of the DSM-5.

Effectively Challenging Plaintiff’s Allegation of PTSD Can Significantly Reduce or Eliminate Plaintiff’s Claim For Emotional Distress Damages

Most plaintiff and defense attorneys would likely admit that handling PTSD claims on behalf of their respective clients, and in particular, dealing effectively with forensic psychological experts, is difficult.  In defending a personal injury action where PTSD is claimed, it is essential that defense counsel have a thorough understanding of the interaction between the DSM-5, standardized testing, how the testing was scored, whether the tests administered had validity scales, and what other personal historical factors and information the plaintiff’s examining physician had available to him or her.

It is also important to determine whether the plaintiff’s experts considered any other mental disease or defect, and, if so, how they reached their differential diagnosis of PTSD.  All of this is necessary for thoroughly cross-examining plaintiff’s experts and challenging misdiagnosed claims of PTSD.

There is no single test that will clinically establish the presence of PTSD.  Typically, tests such as the MMPI, the TSI, or other standardized tests are administered.  Defense counsel should know whether there are validity scales and what they show, and they should be prepared to cross-examine plaintiff’s expert on these issues.  Defense counsel should cross-examine plaintiff’s expert on his or her knowledge of recent longitudinal studies done on PTSD, many of which are authored or co-authored by members of the DSM-IV or DSM-IV-TR PTSD Work Group or other Task Force or advisors.

Other fertile strategies for cross-examination include probing the extent of the expert’s clinical experience, how they applied clinical judgment to reach the diagnosis, how they accounted for malingering, and extensive questioning regarding key diagnostic criteria such as “life-threatening” and “persistence.”

Essential Diagnostic Features of Post-Traumatic Stress Disorder (“PTSD”) 

“The essential feature of post-traumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events.  Emotional reactions to the traumatic event (e.g., fear, helplessness, horror) are no longer a part of Criterion A.  The clinical presentation of PTSD varies.  In some individuals, fear-based re-experiencing, emotional, and behavioral symptoms may predominate.  In others, anhedonic or dysphoric mood states and negative cognitions may be most distressing.  In other individuals, arousal and reactive-externalizing symptoms are prominent, while in others, dissociative symptoms predominate.  Finally, some individuals exhibit combinations of these symptom patterns.”  DSM-5 at p. 274.

The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (e.g., physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (e.g., forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents.

For children, sexually violent events may include developmentally inappropriate sexual experiences without violence or injury.  A life-threatening illness or debilitating medical condition is not necessarily considered a traumatic event.  Medical incidents that qualify as traumatic events involve sudden, catastrophic events (e.g., waking during surgery, anaphylactic shock).  Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse of another person due to violent assault, domestic violence, accident, war or disaster, or a medical catastrophe in one’s child (e.g., a life-threatening hemorrhage).  Indirect exposure through learning about an event is limited to experiences affecting close relatives or friends and experiences that are violent or accidental (e.g., death due to natural causes does not qualify).  Such events include violent personal assault, suicide, serious accident, and serious injury.  The disorder may be especially severe or long-lasting when the stressor is interpersonal and intentional (e.g., torture, sexual violence).

The response to the event must involve intense fear, helplessness, or horror.  In children, the response must involve disorganized or agitated behavior.  Characteristic symptoms include persistent re-experiencing of the traumatic event, persistence of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal.  The full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

An individual will have persistent symptoms of anxiety or increased arousal not present before the trauma.  These symptoms can include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived.  Other symptoms can include hyper-vigilance and exaggerated startle response.  Some individuals report irritability, outbursts of anger, or difficulty concentrating or completing tasks.

Associated Descriptive Features and Mental Disorders 

Developmental regression, such as loss of language in young children, may occur.  Auditory pseudo-hallucinations, such as having the sensory experience of hearing one’s thoughts spoken in one or more different voices, as well as paranoid ideation, can be present.  Following prolonged repeated and severe traumatic events (e.g., childhood abuse or torture), the individual may additionally experience dissociative symptoms, difficulties in regulating emotions, and/or difficulties maintaining stable relationships.

When the traumatic event produces violent death, symptoms of both problematic bereavement and PTSD may be present.  Part of the difficulty in accurately diagnosing PTSD is that it is associated with many other anxiety and mental disorders.  For example, PTSD is also associated with increased rates of Major Depressive Disorder, Substance-Related Disorders, Panic disorder, Agoraphobia, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder, Social Phobia, Specific Phobia, and Bipolar Disorder.  These disorders can precede, follow, or emerge concurrently with the onset of PTSD.

PTSD Prevalence Rates

In the United States, projected lifetime risk for PTSD using DSM-IV criteria at age 75 years is 8.7%.  Twelve-month prevalence among U.S. adults is about 3.5%.  Lower estimates of 0.5%-1.0% are seen in Europe, Africa, and Latin America.  The DSM-IV discusses community-based studies that reveal a lifetime prevalence for PTSD of approximately 8% of the adult population in the United States.  Information about general prevalence rates in other countries is not available.   Studies of at-risk individuals yield variable findings, with the highest rates (ranging between one-third and more than half of those exposed) found among survivors of rape, military combat and captivity, and ethnically or politically motivated internment and genocide.

Differential Diagnosis

PTSD can occur at any age, beginning after the first year of life.  Symptoms usually begin within the first three months following the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met.  There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting the full criteria.

The DSM-5 emphasizes that with PTSD, the stressor must be of an extreme, (i.e., “life-threatening) nature.  In contrast, other mental disorders often mistakenly diagnosed as PTSD include Adjustment Disorder, where the stressor can be of any severity.  The test also points out that not all psychopathology that occurs in individuals exposed to an extreme stressor should necessarily be attributed to PTSD and may be the result of many other mental disorders.  Mentioned are Acute Stress Disorder, Obsessive Compulsive Disorder, Schizophrenia, and other psychotic disorders or mood disorders with psychotic features.  Although a discussion of all diagnostic criteria is beyond the scope of this article, virtually each of the diagnostic criteria for PTSD emphasize that persistence of the symptoms, the re-experiencing of the event, and the avoidance of associated stimuli is essential.

Conclusion

Scott Brooksby recently cross examined a plaintiff’s forensic psychologist in a high-exposure personal injury case he was defending.  Plaintiff’s expert typically diagnosed more than half of those he evaluated with PTSD.  On cross-examination, this expert was not familiar with the prevalence rates, the specific criteria, or the comorbidity issues associated with PTSD and published in the DSM.  Most significantly, he could not describe the single most important feature for a diagnosis of PTSD: a “characteristic set of symptoms following exposure to one or more traumatic events.”  Instead, the expert merely opined that, in so many words, plaintiff was unhappy, withdrawn, and appeared to be troubled by a series of events.  The expert could not describe the relative significance of the plaintiff’s life events or link them to the specific criteria needed to achieve an accurate PTSD diagnosis.

It is important that the cross-examination specifically pin down the basis for the expert’s diagnosis, especially now with the much more detailed DSM-5, and the breaking up of many of the negative cognition clusters and a much more specific list of negative experience categories.

Even a comprehensive summary of the methodology for most effectively questioning or challenging a plaintiff’s claim of PTSD is beyond the scope of this blog post.  However, when cross-examining plaintiff’s expert witness regarding a PTSD diagnosis, defense counsel should always keep in mind that the plain text of the DSM-5, and examples of the trauma and criteria typically associated with PTSD, can often be easily contrasted with the data to disprove or cast doubt on the PTSD diagnosis.

Evaluation of Potential Claims: Direct Negligence and Vicarious Liability

Oregon Negligence Law Changed Significantly in 1987

Oregon is a state that recognizes a cause of action for direct negligence and vicarious liability.  The lawyers at OlsonBrooksby frequently defend catastrophic personal injury, product liability, and aviation claims which contain causes of action based on direct negligence and vicarious liability.

First, we will discuss potential claims for direct negligence.  An understanding of negligence law in Oregon requires a brief discussion of pre- and post-1987 common law decisions.  Prior to 1987, Oregon generally held to a conventional approach to negligence cases, requiring the existence of a duty, a breach of that duty, causation, and damages.  However, as a result of cases decided in the period around 1987, common law negligence in Oregon now depends on whether the defendant’s conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

A Direct Claim For Negligence Can  Exist With Or Without The Fazzolari Special Relationship

The change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate court’s perceived overuse of the cliché “duty” or “no duty.”  Oregon courts, therefore, began to encourage juries and judges to decide each case on its own facts.  Duty continues to play an affirmative role when the parties invoke a particular status, relationship, or standard of conduct beyond the standards generated by common law.  This was the result of the so-called Fazzolari principle, which now governs negligence law in Oregon.  See Fazzolari v. Portland School District 1J, 303 Or 1 (1987).

A special relationship is usually defined in the form of a fiduciary, contractual, or legal relationship such as guardianship.  Typically, the school–student relationship has been deemed a special relationship as contemplated by Fazzolari.

Fazzolari typically requires a three-part test:

  1. Determine whether a particular status, relationship, or standard exists;
  2. If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists;
  3. If such a standard, relationship, or status is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.

For example, suppose an employee of a sports club is involved in an accident in which a club member is injured.  Although there are no Oregon cases exactly on point, given the nature of the relationship between the employee and the club member, we do not believe that the member has a strong argument that a “special relationship” existed between himself and the sports club.

Let’s suppose further that the paperwork which was executed by the member consisted of the membership application and the general waiver of liability for use of the sports center facilities.  Suppose there were no detailed contractual provisions denoting certain services, obligations, or protections provided to, or expected of, the member.  Therefore, there was no fiduciary relationship.  Under these facts, a special relationship did not exist between the member and the sports club that typically would have invoked a duty of care to the member beyond that of the ordinary care extended to a business invitee.

Although courts have often found that schools are in a special relationship with their students, we do not believe that type of relationship is comparable to the sports club and its member.  This is because of the fundamentally voluntary nature of the sports club membership (without regard to the statutory abolition of assumption of the risk discussed below).  Moreover, we should assume that the sports club member was not a third-party beneficiary of any contract that existed between the sports club and a government agency or other third party.

For these reasons, we see nothing that would clearly take this hypothetical case out of the conventional principles of negligence and create a special relationship requiring examination on its own facts.

Although a special relationship may take a case out of the typical “duty” or “no duty” scenario, the harm to the protected interest of the putative plaintiff must still be reasonably foreseeable.  Therefore, given that, in this hypothetical “sports club / member” relationship scenario, we are operating under the principles of ordinary negligence, the appropriate standard in this case is that an organization’s conduct must not unreasonably create a foreseeable risk of harm to others.

Direct negligence claims are sometimes referred to as causes of action based on negligent hiring, negligent training, negligent supervision, or negligent retention.  The organization may be directly liable for negligence claims based on hiring, retention, supervision, or training if (1) it places a dangerous person in a position that poses an unreasonable risk of harm to others, and if (2) the organization knew of the danger or could have discovered the danger through reasonable investigation.

In the event there were other facts such as the following, it may support one or more of the sports club member’s claims for direct negligence:

  • Sports club failed to screen employees, including those that may have needed specialized training, i.e., lifeguards.
  • There is no documentation that sports club ever trained its employees, let alone the employee or employees who were involved with member’s hypothetical accident.
  • Employees displayed an attitude of disinterest, which may have affected their performance of safety related duties.
  • Sports club failed to maintain adequate documentation of employee performance in employee personnel files.
  • Employees had ambiguous or uncertain understanding of the proper safety protocol.
  • Sports club has a history of failing to comply with its own club procedures, resulting in similar prior injuries.
  • Sports club employee(s) admitted they were lazy, did not like their jobs, or were apathetic toward proper performance.
  • Sports club failed to develop adequate safety procedures, i.e., requiring employees or members to obtain and renew any type of skill or safety certification.
  • Sports club employee was not properly supervised, lacked familiarity with sports clubs rules and procedures, and was less experienced at a given task, i.e., weight training safety spotting, than many of the members.

In summary, if sufficient evidence exists of the sports club’s failure to properly hire, train, or supervise, or retain, the club would have an uphill battle defending against a direct negligence claim. 

Vicarious Liability 

Oregon is a vicarious liability state.  If, as in the example above, the sports club member made a claim that the sports club is vicariously liable for his alleged injury, he would argue that sports club, as the “master” of its employee or “servant,” is liable for its employee’s negligence in failing to protect what was a foreseeable interest in the kind of harm that befell the member.  Specifically, the member would allege that, due to the employee’s negligence in failing to supervise, the member was not properly protected from the injury of the type that befell him, and that the accident was foreseeable and preventable.  The employee must have been acting within the course and scope of his employment and have been motivated, in part, to serve the interests of the “master,” i.e., the sports club.

In a claim for vicarious liability, as discussed in more detail below, the sports club need not have played any role in the negligence itself, so long as it controls the actions of the negligent employee and the employee’s actions were performed within the course and scope of employment and performed, at least in part, to benefit the employer.

Regarding course and scope, an employee is acting within the course and scope of employment if three factors are present:

  1. The employee’s actions at the time of the accident substantially occurred within the time and space limits authorized by the employment;
  2. The employee was motivated, at least in part, by a purpose to serve the employer;
  3. The act is of a kind that the employee was hired to perform.

Chesterman v. Barmon, 305 Or 439, 442 (1988).

All three factors must be present for vicariously liability to withstand a challenge.

In vicarious liability cases, the best defense is that the employee committed an intentional act that fell outside the course and scope of his employment.  Nearly all the published cases where courts have held that the employee was acting outside the course and scope involve intentional acts of force committed by security guards, bouncers, bodyguards, etc.

Foreseeability Issues

Reasonable foreseeability is still a necessary aspect of negligence, in any form.  In the example above, where a sports club member is injured, depending on the nature of the injury, the sports club would need to consider the specific facts that gave rise to the claim and whether or not a jury would conclude that the injury was reasonably foreseeable.  From a defense perspective, arguing that reasonable foreseeability does not exist is an uphill battle in most cases.  Oregon law generally finds that an intervening act negates fault only in extreme cases, such as those involving criminals.  For example, in one of the seminal Oregon foreseeability cases, Buchler v. Oregon Corrections Division, 316 Or 499 (1993), an en banc decision, a prisoner on a work crew stole the prison van in which the guard had left the keys, drove to his mother’s home, stole a firearm, and later used it to kill someone in the van.  316 Or at 502.

The court noted that, while the defendant had a history of temper problems, there was nothing in his background that would ever suggest he would commit such a crime.  Id. at 507.  The court ultimately held that an intervening criminal instrumentality caused the harm and created the risk Id. at 510-11.  The court explained that, although “it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity.”  Id. at 511.

Conclusion

Product liability, catastrophic personal injury, and aviation claims, all of which Olson Brooksby frequently defend, require a clear understanding of which claims contain causes of action based on direct negligence and vicarious liability, and more importantly, what the elements are, so that proper defenses can be raised, and an investigation and discovery plan can be drafted, to attempt to defeat the claims.

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.

 

 

Managing burn risks in the manufuacturing industry

Scott_0844

Lawyers for the manufacturing industry should pay particular attention to assisting their clients with managing burn risks.  One of the under-recognized aspects of workplace injury risk has to do with the relationship between the level of technology and the potential for risk.  The following is from Scott Brooksby’s article published in a manufacturing trade online magazine,  Manufacturing.net, which delivers to a global community the most up-to-date news, trends and opinions shaping the manufacturing landscape–

The Manufacturing Industry Should Assess Its Technology Ladders When Addressing Burn Risk

There are few more sophisticated and complex high-heat metallurgy manufacturing industry processes — and few with less tolerance for error — than the processes involved in manufacturing components of the hot-section of an aviation gas turbine engine. This precision minimizes the risk of catastrophic aviation disasters such as uncontrolled engine failure.

Involving super-heated, liquefied metals and extremely hot smelters, furnaces, crucibles or molds, it might be assumed that hot-section manufacturing constitutes a high-risk burn environment.  Actually, the danger of serious burns in any manufacturing environment often are misunderstood or underappreciated — as are the staggering human and economic costs. With a single bad burn, a worker can be scarred for life, and manufacturers or insurers may be exposed to tens of millions of dollars in worker’s compensation payments, settlements or verdicts. And no class of burns creates greater tragedy or higher financial costs than 4thdegree, full-thickness burns to the hands and face associated with super-hot metal production.

Just to illustrate, burn-center treatment of a 4th degree burn covering 20 percent of a victim’s body — a “serious large burn” — easily can exceed $750,000 for the first few months of intensive treatment at a burn center. Reconstructive surgery can continue for decades, and pain and the humiliation of disfigurement can be a life-long burden for the victim.

Precision not the only benefit of sophisticated automation

But burns in aviation hot-section parts production are relatively rare for three basic reasons. First, and principally, automated technology that delivers micron-level tolerances minimizes human error — systems that utilize computerized ovens and robots so complex that molten metals are measured to the microgram are unlikely locations for human error that leads to a burn injury.

Second, largely due to the complexity of the process and technology, the hot-section manufacturing workforce frequently is uncommonly long-tenured, highly skilled and well-educated. Last, workers are subject to disciplined safety training, and benefit from high-tech personal protective equipment — principally to reduce the risk of burns. Phenomenal technology, great training and a superior workforce all combine to mitigate the hazards of super-heated metals production.

With turbine fan blade manufacturing as a case in point, let’s review the correlation between technology sophistication, training and burn risk.

Moving down the technology ladder moves you up the burn-risk ladder

At the height of technology and its attendant safety halo are compressor, turbine disc and turbine blade manufacturing stages, with computer-controlled processes delivering incredible product quality while keeping workers safe from burns.

Highly trained technical workers oversee the automated process of powder metallurgy, in which titanium is heated to its melting point of 3,000°F and spun onto a rapidly rotating turntable, transforming the molten metal into microscopic droplets that quickly cool and form a fine metal powder. In enclosed ovens, the powder is reheated to more than 1,000°F, and pressed at 25,000 psi into a disc. All of this takes place in a sealed environment.

Turbine discs and blades, also formed through powder metallurgy, are subject to even greater stresses because of the intense heat of the nearby engine combustors.

Here we begin stepping down the technology ladder and up the risk ladder, as molten metal often is hand-poured into molds. First, copies of the blades are formed by pouring wax into metal molds. Once set, the wax shape is removed and immersed in a super-heated ceramic slurry bath, forming a ceramic coating. Each cluster of shapes is heated to harden the ceramic and melt the wax, and molten metal is poured into the hollow left by the melted wax.

Depending on the material being formed, turbine blades are subject to temperatures of from 1,000 to 2,500°F, so they are coated in ceramic thermal barrier coatings. The ceramic must be melted, and the blades dipped by workers into the molten ceramic, again at temperatures far exceeding 1,000°F.

While major portions of the fan blade stages take place in compartments, production of parts such as combustion chambers and compressor blades revert back to traditional casting methods, with workers directly exposed to liquefied titanium and metal alloys being poured into molds, which often are manually handled.

Burn risk skyrockets in secondary processes

It’s axiomatic to say that burn risk escalates as a production line transitions from fully automated to a blend of automated and manual processes, to strictly manual processes. Less well-recognized is the reality that for virtually all metals manufacturers, the least automated, dirtiest and most dangerous aspects of production are secondary processes — such as mold cleaning in aviation engine hot-section manufacturing. Unfortunately, the combination of “first assignment” areas for new, contract or temporary workers and lack of automation can lead to tragic result.

In hot-section cleaning departments, parts are dipped in large, open tanks of high-temperature caustic chemicals such as sodium hydroxide and potassium hydroxide to remove most of the casting shell.  The chemicals themselves pose a potential danger, and the threat of burns escalates due to combination of heat and the mechanical nature of the work — which industry to date hasn’t yet found a way to automate.

Further, in this setting, workers periodically climb into empty tanks to undertake a potentially perilous task known as “tank digging.” It’s been documented that in some cases, workers with less than 90 days on the job have been assigned a supervisory role in this processes.

A caution regarding temporary workers where burns may occur

Although as noted, aviation component manufacturing generally employs a highly skilled workforce, but even here, the intersection of low technology and temporary or less skilled workers is a dangerous one. First, new or inexperienced workers frequently aren’t fully aware of risks and dangers involved in a job, and secondly, because of legal and financial ramifications in the event of a burn injury to a contract worker.

This is especially critical since, in most states, worker’s compensation is the worker’s sole remedy against the employer. Worker’s compensation does not typically provide for non-economic damages (pain and suffering), which dramatically spike the value of litigated settlements or verdicts in burn cases. However, other classes of workers — notably temporary and other contract workers — may be able to sue for non-economic damages resulting in verdicts or settlements that can cripple a company.

Therefore, burned workers will look for employer targets who do not ensure protections typically afforded through worker’s compensation or indemnity across all classes of workers.

Decrease risk to the business as well as to workers

In addition to investing deeply in training and the safest manufacturing equipment, every manufacturer first needs to be aware of legal and financial ramifications in the event of a burn injury to a contract worker. Employers should exercise caution in the placement of temporary workers, and closely review contracts with temporary worker service providers to ensure that iron-clad provisions are in place to contractually obligate service providers to provide worker’s compensation for the temporary employee. Also, manufacturers also should insist on indemnity provisions that protect against any claims brought by the temporary worker for injury.

In many areas, the aviation hot section component manufacturing industry represents a pinnacle of safety training and manufacturing technology.  But a lesson can be learned in recognizing the increased threat of burn risk at stages where the technology footprint is light, and the workers are less trained and less invested.

 

NTSB Hearing on Medical Helicopter Crash Considers Pilot Texting Ban

Close up of judge raising gavel in courtroom

The NTSB held a hearing on a fatal medical helicopter crash that took place in 2011.  After finding that smart phone texting was a contributing factor in the fatal crash, the NTSB recently considered a ban on pilot texting.  It is surprising that such a regulation is not already in place or under more serious consideration.  Because there was evidence that the pilot had not been texting during the 19 minutes before the crash, however, the NTSB did not take any formal action on such a ban.

This is part of a larger issue that demands attention — the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

Olson Brooksby practices a wide variety of aviation law.  We have experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

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