Scott Brooksby will be a featured speaker at a prominent aviation conference in Baltimore, Maryland.
Scott Brooksby will be a featured speaker at the Aviation Insurance Claims Conference (AViCON) held in Baltimore, Maryland on September 14-15, 2017.
AViCON is an annual conference focused on aviation industry accident investigation, and conflict and claim resolution. This unique, two day format centers around a fictional case study and features discussions lead by legal and insurance experts. Together, the group will explore considerations and complexities of the case from accident investigation, legal discovery, multi-party litigation, and resolution. This conference is designed for professionals involved in aviation insurance, including underwriters, claims managers, lawyers, risk managers, insurance brokers, airline flight safety directors, airline board members with flight safety responsibility, claims investigators, and aircraft product manufacturers.
AViCON case studies are set within an environment that includes many possible choices of forum and law. The accident scenario is presented with state-of-the-art interactive animation prepared by RTI’s Imaging Sciences Studios, and highlights a fresh set of issues of current concern and debate within the aviation market. This event presents a unique opportunity to gain a fuller understanding of the entire range of complexities involved in aviation safety, in a concise and effective format.
“But nobody ever thought about having to protect the passengers from the pilots”
David Neeleman, founder and former CEO, Jet Blue
Introduction
The importance of pilot mental fitness is not a new concept. However, pilot mental health has been the subject of ferocious scrutiny in the wake of Germanwings 9525 and MH370. Perspectives on detecting, reporting, treating, and monitoring pilot mental health, and the associated regulatory framework may be different for various groups of interested parties including: (1) the flying public; (2) the airlines; (3) the regulators; and (4) pilots and crew. Some knowledgeable observers, including the first TSA Administrator John Magaw, have been quoted raising questions about whether or not reinforced cockpit doors are too secure, and should provide a way back in the cockpit. http://www.popularmechanics.com/flight/a10270/in-light-of-mh370-evidence-could-plane-cockpits-be-too-secure-16611747/
Overview of Germanwings 9525
On March 24, 2015, the A320 aircraft was on a scheduled flight en route from Barcelona to Dusseldorf, with 144 passengers and a crew of six.
The 27 year-old co-pilot, Andreas Lubitz, had been flying for Germanwings since June, 2014.
Lubitz’s First Class Medical Certificate was issued in April 2008, and had been renewed yearly.
Since July, 2009, the medical certificate had contained a waiver due to a prior major depressive episode without psychotic symptoms that lasted from 8/08-7/09.
The waiver in the medical certificate provided that the certificate would be revoked if there was a relapse into depression.
In December, 2014, Lubitz experienced symptoms consistent with the onset of a psychotic depressive episode.
Lubitz then consulted with several doctors, including a psychiatrist, who prescribed an anti-depressant.
None of the doctors notified the authorities or Germanwings.
Lubitz waited until he was alone in cockpit at cruise altitude, and then he changed the selected altitude from 38,000 feet to 100 feet, leading to a steady descent into terrain.
He also increased and decreased the airspeed inputs multiple times.
Lubitz ignored the PIC pounding on the cockpit door, and calls from civilian and military air traffic controllers and from other aircraft and kept cockpit door locked.
Lubitz had practiced similar inputs on a flight earlier that day.
The official BEA investigation concluded that the crash was intentional.
The crash in the French Alps was investigated by French Authorities, with assistance from their German counterpart, the Federal Bureau of Aircraft Accident Investigation (“BFU”), with assistance from the F.B.I. The Bureau d’Enquêtes et d’ Analyses (“BEA”) released its preliminary report on May 6, 2015 and its final report on March 13, 2016.
On March 27, 2015, just three days after the crash, the European Aviation Safety Agency (“EASA”) issued a temporary recommendation that air carriers insure that at least two flight crew members, including one pilot, occupy the flight deck at all times during a flight.
The Mental Health Landscape
It is not a secret that there is a mental health crisis in the United States. According to the CDC, a staggering 25% of the U.S. adult population has some form of mental illness. https://www.cdc.gov/mentalhealthsurveillance/
Despite an apparent recognition among their own ranks that pilot mental fitness is an important issue, the pilot unions in most of the commercial crashes of the last three decades reacted skeptically, or even disputed, at least initially, claims by investigators that the crashes were intentional.
A 2014 study examined aircraft-assisted suicides in the United States, United Kingdom, German and Finland between 1956 and 2012. The study concluded that in the United States, for the 20 year period 1993-2012, the aircraft assisted suicide rate was 0.33%.
FAA regulations require airline pilots to undergo a medical examination with an FAA-approved physician called an Aviation Medical Examiner (“AME”) every six to twelve months depending on the pilot’s age. http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=20455
According to the Guide for Aviation Medical Examiners, “The FAA does not expect the Examiner to perform a formal psychiatric examination. However, the Examiner should form a general impression of the emotional stability and mental state of the applicant.” FAA Guide for Aviation Medical Examiners, 137 (2015).
The Guide also explains how the Examiner may become informed about possible mental health concerns based on questions and answers an applicant provides about background, occupation, and reasons for seeking a certificate. Id. at 138-39. If the AME believes there may be mental health concerns, the Examiner is instructed to either deny the certificate or defer issuing the medical certificate and note the mental health issues on the examination report. If the medical certificate application is deferred, the Examiner is to report the findings to the FAA, which will then request further evaluation and information from the applicant. Id. at 139.
In the United States, there are three types of medical certificates. 14 C.F.R. Part 61. A first-class medical certificate, which is required for airline pilots, expires twelve months after the date of the medical examination for pilots under age 40, or six months after the date of the examination for pilots over age 40 at the time of the most recent medical examination.
According to 14 C.F.R. § 67.107,
Mental standards for a first-class airman medical certificate are:
(a) No established medical history or clinical diagnosis of any of the following:
(1) A personality disorder that is severe enough to have repeatedly manifested itself by overt acts.
(2) A psychosis. As used in this section, “psychosis” refers to a mental disorder in which:
(i) The individual has manifested delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition; or
(ii) The individual may reasonably be expected to manifest delusions, hallucinations, grossly bizarre or disorganized behavior, or other commonly accepted symptoms of this condition.
(3) A bipolar disorder.
(4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years. As used in this section –
(i) “Substance” includes: Alcohol; other sedatives and hypnotics; anxiolytics; opioids; central nervous system stimulants such as cocaine, amphetamines, and similarly acting sympathomimetics; hallucinogens; phencyclidine or similarly acting arylcyclohexylamines; cannabis; inhalants; and other psychoactive drugs and chemicals; and
(ii) “Substance dependence” means a condition in which a person is dependent on a substance, other than tobacco or ordinary xanthine-containing (e.g., caffeine) beverages, as evidenced by –
(A) Increased tolerance;
(B) Manifestation of withdrawal symptoms;
(C) Impaired control of use; or
(D) Continued use despite damage to physical health or impairment of social, personal, or occupational functioning.
(b) No substance abuse within the preceding 2 years defined as:
(1) Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time an instance of the use of a substance also in a situation in which that use was physically hazardous;
(2) A verified positive drug test result, an alcohol test result of 0.04 or greater alcohol concentration, or a refusal to submit to a drug or alcohol test required by the U.S. Department of Transportation or an agency of the U.S. Department of Transportation; or
(3) Misuse of a substance that the Federal Air Surgeon, based on case history and appropriate, qualified medical judgment relating to the substance involved, finds –
(i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
(ii) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.
(c) No other personality disorder, neurosis, or other mental condition that the Federal Air Surgeon, based on the case history and appropriate, qualified medical judgment relating to the condition involved, finds –
(1) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
(2) May reasonably be expected, for the maximum duration of the airman medical certificate applied for or held, to make the person unable to perform those duties or exercise those privileges.
The same standard applies to second-class and third-class airman medical certificates in 14 C.F.R. § 67.207 and 14 C.F.R. § 67.307, respectively.
Europe
Medical regulations associated with obtaining a medical certificate in Europe are arguably less specific than those in the United States. The European Aviation Safety Agency (“EASA”), headquartered in Cologne, Germany has oversight responsibility for aviation safety in the European Union. Commission Regulation (EU) 1178/2011 technical requirements pursuant to Regulation (EC) 216/2008, 2011 O.J. (L311) 175 (EASA Piloting Regulations), MED.A.015
The EASA regulations provide in part:
Applicants shall have no established medical history or clinical diagnosis of any psychiatric disease or disability, condition or disorder, acute or chronic, congenital or acquired, which is likely to interfere with the safe exercise of the privileges of the applicable licence(s).
Interestingly, the EASA regulations contain a specific provision addressing self-harm, and provide that “[a]pplicants with a history of a single or repeated acts of deliberate self-harm shall be assessed as unfit.” MED.B.055.
The European regulations related to alcohol and drug use are also much more abbreviated than those applicable in the United States, and provide that “[a]pplicants with a mental or behavioral disorder due to alcohol or other use or abuse of psychotropic substances shall be assessed as unfit pending recovery and freedom from substance use and subject to satisfactory psychiatric evaluation after successful treatment. Id.
The ARC released its report on November 18, 2015. The report generally concluded that the best strategy for minimizing the risk associated with pilot mental health is to create an environment that encourages and is supportive to voluntary self-disclosure. The report recognized, however, that even when symptoms are recognized, pilot mental fitness issue self-reporting may be perceived as a high risk situation, with financial, and even career-ending implications. The report contained eight recommendations:
Enhance AME Training. The FAA should ensure all Aviation Medical Examiners demonstrate knowledge in assessing basic mental health concerns, and enhance AME training on this topic.
Psychological Testing. The ARC does not recommend mandating formal psychological testing during the pilot hiring process nor as part of routine FAA aviation medical examination beyond those which already exist.
Pilot Assistance Programs. Air carriers should develop effective pilot assistance programs.
Air Carrier Education. Air carrier operators should be encouraged to implement mental health education programs…improve awareness and recognition of mental health issues, reduce stigmas, and promote available resources to assist with resolving mental health problems.
Informational Material on Pilot Support Programs. The FAA should assemble and disseminate information on benchmark pilot support programs…to serve as a resource for air carriers to develop new or improve existing programs.
Medical Professional Reporting. Encourage advocacy for a uniform national policy on mandatory reporting of medical issues that affect public safety.
Two Persons on Flightdeck and Flightdeck Access. The ARC recommends no changes to the guidance found in applicable FAA orders.
Aircraft Design Standards. The ARC believes existing aircraft and flightdeck door design standards are adequate and no changes are required by the FAA.
Many of the recommendations contained in the report tracked issues that the Aerospace Medical Association (“AsMA”) had been addressing just prior to the Germanwings crash. In fact, the AsMA Coordinating Chair had just discussed the issues at the 2014 European Society of Aerospace Medicine conference in Bucharest, Romania in September, 2014, a few months before the crash of Germanwings 9505.
The BEA investigation into Germanwings 9525 and the ARC report both conclude that pilot perceptions about the potentially career-ending consequences of self-reporting a mental fitness problem and the financial repercussions are serious impediments to effective self-reporting. The BEA report noted that in December, 2014, emails created by Lubitz reflect a financial anxiety associated with his inability to obtain additional loss-of-license insurance because of the waiver in his medical certificate.
Major Commercial Crashes Involving Mental Fitness
The BEA’s preliminary report on Germanwings 9505 noted that there were only six instances of commercial flight crews intentionally crashing planes since 1980 were found in a search of ICAO and BEA databases. It is worth noting than in two of the instances, JAL 350 and Egypt Air 990, the pilot or co-pilot were not alone in the cockpits, but other flight crew members were not able to regain control of the plane.
February 9, 1982. Japan Air Lines Flight 350. 35-yer-old captain, who had just returned to work a few months earlier after a year-long medical leave for psychiatric reasons. Despite history of psychosomatic disorder, doctors deemed him fit to fly. McDonnel Douglas DC-8 from Fukuoka to Tokyo Haneda. Either engaged thrust reverser or cancelled auto-pilot and threw throttles forward. First officer and flight engineer tried to restrain him but could not. Among 166 passengers and eight crew, 24 died.
August 21, 1994. Royal Air Maroc Flight 630. Scheduled flight from Agadir, Morocco to Casablanca. About ten minutes after takeoff, while climbing through 16,000 feet, plane (ATR-42) entered steep dive and crashed into Atlas Mountains, killing all 40 passengers and four crew members. Investigation revealed the 32 year-old pilot intentionally turned off autopilot. The Moroccan pilots’ union disputed any conclusion that the crash was intentional.
December 19, 1997. Silk Air Flight 185. The 41 year-old captain was flying a ten month-old Boeing 737-300 with a crew of 97 passengers and a crew of seven from Jakarta to Singapore. The captain was also a pilot in the Singaporean air force and a member of the Black Knights air force flight demonstration team. He had 7,173 flight hours. In July, 1997, the captain had been demoted as a line-instructor pilot after he pulled a CVR circuit-breaker for non-technical reasons to preserve a conversation. The plane dove from an altitude of 35,000 feet in one minute, diving almost vertically into the Musi River. The crash was independently investigated by the NTSB and the Indonesian National Transportation Committee (“NTSC”). The NTSB concluded that the pilot deliberately caused the crash. The NTSC could not determine the cause of the crash.
October 11, 1999. Air Botswana. A Botswanan pilot commandeered an ATR 42-320 and circled the airport at Gaborone, Botswana for two hours. The pilot repeatedly threatened to crash into the Air Botswana Terminal and kill himself. After the plane ran out of fuel, it crashed into two other ATR 42s on the tarmac, destroying all three planes and killing the pilot. The pilot had been grounded after failing a medical exam.
October 31, 1999. Egypt Air Flight 990. The scheduled passenger flight to Cairo, Egypt originated in Los Angeles and had a scheduled stopover at JFK. The Boeing 767-300 crashed into the Atlantic Ocean about 60 miles south of Nantucket, killing all 203 passengers and 17 crew members. At the request of the Egyptian government, the NTSB investigated the accident and concluded that the 59 year-old relief co-pilot, who had more than 12,500 flight hours, intentionally crashed the plane. As the evidence of an intentional crash grew, the Egyptian government launched its own investigation, and attempted to revoke the request made to the NTSB to lead the investigation. The co-pilot, a married father of five, was under stress because his youngest daughter, age 10, was undergoing medical treatment in Los Angeles. Egypt Air had attempted to defray medical expenses on both a company and employee level.
November 29, 2013. LAM Mozambique Airlines Flight 470. Embraer 190, which had just been delivered in November, 2012. Scheduled passenger flight from Maputo, Mozambique, to Luanda, Angola. Halfway through the route, plane crashed in Namibia. The Republic of Namibia, Ministry of Works and Transport, Directorate of Aircraft Accident Investigation (“DAAI”) investigated. They determined (as did the Mozambican Civil Aviation Institute) that the 49 year-old captain intentionally crashed the plane by repeatedly changing the intended altitude settings from 38,000 feet to 592 feet, deploying speed brakes and repeatedly slowing the manual speed settings. 27 passengers and six crew members were killed. The investigation revealed that the captain’s son had been killed in a car accident, which was a suspected suicide one year earlier. The captain was also in the process of a contentious divorce after ten years of separation, and his youngest daughter had gone through heart surgery in South Africa recently.
In addition to the six passenger flights, one incident in 1976 involved a single pilot crashing an empty plane into homes on the ground, killing 11 on the ground.
September 26, 1976. Aeroflot, Antonov 2. The pilot directed the plane into the block of flats in Novosibirsk, Western Siberia where his ex-wife lived, killing himself and 11 occupants.
On January 28, 2008. A London-bound Air Canada Boeing 767 was over the Atlantic when the co-pilot suffered a mental breakdown. The experienced co-pilot became belligerent and uncooperative, “invoking God”, and refusing to fasten his seatbelt. Other members of the crew forcibly removed the co-pilot and restrained him. The plane diverted to Shannon, Ireland with 146 passengers and a crew of nine. https://www.theguardian.com/uk/2008/jan/30/transport.world
On March 27, 2012, Jet Blue captain Clayton Osbon, who was then 49 years-old, and who had been flying for Jet Blue for 12 years, was flying from New York’s John F. Kennedy Airport to Las Vegas’s McCarran airport. During the flight, Osbon began making comments about “taking a leap of faith” and reportedly saying “things just don’t matter”. Osbon also began complaining about noise and began randomly flipping cockpit controls. He also starting ranting incoherently about Jesus, Iran, terrorists, Al Qaeda and a bomb on board. The co-pilot had the foresight to lock Osbon out of the cabin, and he was tackled by law enforcement officers who happened to be on board and en route to a security conference in Las Vegas. The flight was diverted to Amarillo, and an off-duty pilot who was on board assisted with the landing. http://www.dailymail.co.uk/news/article-2121240/JetBlue-pilot-Clayton-Osbon-restrained-PASSENGERS-going-berserk-mid-flight.html
Osbon was criminally charged with interfering with a flight crew in the U.S. District Court for the Northern District of Texas, and found not guilty by reason of insanity. In a strange twist, three days after the Germanwings crash, Osbon sued Jet Blue for more than 14 million dollars, alleging the airline was negligent in permitting him to fly despite signs of mental illness. http://www.pbs.org/newshour/rundown/former-jetblue-pilot-sues-16m-2012-midflight-meltdown/
Employment Considerations
The FARs and federal preemption generally provide the airlines with significant discretion regarding the development, implementation and enforcement of operational safety programs, including the mental fitness of flight crew members. Federal law sets what are only minimum standards for airlines to use in the formation of safety policies. Under the applicable statutes, “[t]he Administrator may prescribe minimum safety standards for…an air carrier to whom a certificate is issued under section 44705 of this title…”
Federal courts have generally given the airlines wide discretion to address safety. In Johnson v American Airlines, Inc., 745 F.2d 988 (5th Cir. 1984), the court addressed American’s overhaul of the cockpit crew training, certification and promotional system following a large number of crashes in the early 1960s. Part of the overhaul involved an “up or out” certification system requiring flight crew to train for the next highest cockpit position. Plaintiffs sued, alleging violation of the Age Discrimination in Employment Act. The Fifth Circuit affirmed, holding that “the airline industry must be accorded great leeway and discretion in determining the manner in which it may be operated most safely”. Id. at 993, quoting Murnane v. American Airlines, Inc., 667 F.2d 98, 101 (D.C. Cir. 1981).
However, preemption is not without limits, even in the context of flight crew employment, and airlines are still subject to the laws of general applicability. In the context of pilot mental health, this may include the implications of the Americans With Disabilities Act (“ADA” 42 U.S.C. § 12112). Under the ADA, a person is considered disabled if he or she: (1) suffers from a mental or physical impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2).
In Witter v Delta Airlines, 966 F. Supp. 1193, 1195-1197 (N.D. Ga. 1997), the court addressed pilot mental health in the context of an ADA claim. Plaintiff had been employed by Delta as a pilot since 1967. In February, 1992 plaintiff was involved in a domestic dispute with his wife, and threatened to commit suicide. As a result, plaintiff was incarcerated, and sent for a psychiatric evaluation, after which he was transferred to another psychiatric facility at Delta’s request. Plaintiff alleged that Delta told him that if he did not consent to psychiatric evaluation, he would be fired. Plaintiff then voluntarily grounded himself because he believed that he was not medically fit to fly.
Plaintiff’s FAA Class I Medical Certification was set to expire in June, 1992. Plaintiff found an AME who agreed to “help Plaintiff with this situation”. Relying on the report of a psychiatrist to which the AME had referred plaintiff, the AME diagnosed plaintiff as suffering from bi-polar disorder, and found him unfit to fly. Subsequently, plaintiff examined by an FAA psychiatrist who concluded that plaintiff had a “characterological problem that might be considered a personality disorder”. The FAA psychiatrist also concluded that plaintiff should be issued a Class I Medical Certificate on the condition that he submit to semi-annual psychiatric reports.
Plaintiff was issued the Class I Medical Certification in February, 1993, and presented the certificate to Delta on March 1, 1993. When plaintiff presented the Certificate to Delta’s chief pilot, Delta decided that plaintiff should be further evaluated by a senior AME who was also board certified in aerospace medicine. Delta’s decision was made at least in part on the basis of the felony charge pending against plaintiff from the 1992 domestic dispute. The senior AME concluded that plaintiff suffered from an Adjustment Disorder with Mixed Emotional Features but was qualified to fly. The Senior AME noted in his report:
In returning Capt. Witter to the cockpit, the major concern is the possibility of a recurrence of this type of behavior reaction, especially while flying…. If it did occur again, even in the cockpit, I do not believe that it would be incapacitating from a safety point of view. Capt. Witter’s basic personality may make him a difficult person with whom to work. However, he does not have a psychiatric disorder at the present time. If any future unusual behavior indicates the occurrence of another adjustment disorder, Capt. Witter should be grounded permanently. Until then, he is qualified to fly.
Based on the report, Witter returned to line flying status in August, 2003. In November, 1993, plaintiff flew a European rotation, during which he had a conflict with two other crew members which resulted in the crew refusing to follow his instructions. After further evaluation, the Senior AME diagnosed plaintiff with Narcissistic Personality Disorder and possible Cyclothymia, and memorialized the findings in an April, 1994 report. In response, Delta grounded plaintiff. The FAA then convened a panel of six psychiatrists, who reviewed the case and concluded that plaintiff should not be returned to flight status. The NTSB then overturned the FAA and restored plaintiff’s Class I Medical Certification. Delta refused to reinstate plaintiff to flight status without further medical evaluation.
Plaintiff filed suit, alleging violation of the ADA. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) the Court ruled that for claims of discriminatory treatment in employment, a plaintiff must establish a prima facie case of discrimination by showing: (1) that he or she has a disability; (2) that he or she is a qualified individual; and (3) that he or she was subjected to unlawful discrimination because of the disability. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the employment action.
The court granted Delta’s motion for summary judgment, and, without ever shifting the burden under McDonnell Douglas, concluded that plaintiff was not disabled. The court noted that the regulations under 29 C.F.R. § 1630.2(j) (2) provided guidance on the factors for determination of whether a condition is substantially limiting, which include the nature and severity of the impairment, the duration or expected duration of the impairment, and the long-term impact of the impairment. Witter, 966 F. Supp. 1198
The court found that since plaintiff’s psychological condition did not appear to be exceptionally severe, and only manifested itself while plaintiff was under stress, it did not substantially impair the life activity of working. The court also noted that the impact of the emotional disturbance was not long-term, since the NTSB had concluded that the First Class Medical Certification should be returned. The court also noted that plaintiff was a resident of the Atlanta area, a large metropolitan area with substantial job opportunities. The court also reasoned that there were many other pilots in management, training and administration, and while plaintiff may not be able to fly commercially, he did not even argue that he was impaired from holding any other job. Witter, 966 F. Supp. 1199.
As discussed above, McDonnell Douglas requires the establishment of three conditions to move forward with a case of discrimination. If the plaintiff in Witter had established that his mental condition was a disability for purposes of the first element, he still would have had to establish that he was a qualified individual, and that he was subject to unlawful discrimination for purposes of establishing a prima facie case of discrimination under the ADA. Although he was subjected to testing after the domestic incident and European rotation, it is unlike that those actions constitute unlawful discrimination. Under the ADA, an employer is prohibited from conducting a medical examination after the commencement of employment unless such an examination is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A).
Moreover, pursuant to 14 C.F.R. 67.113(c)(1), the FAA requires that in order to receive a first-class airman medical certificate, a person must not have any medical condition which renders that person “unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held”.
In Martin v Lennox Intern. Inc., a pilot suffered a heart attack and was grounded during the six-month recovery period, after which he sought re-certification from the FAA. 342 Fed. Appx. 15 (5th Cir. 2009). After informing his employer that there would be a delay in the re-certification process while he awaited his medical certificate he was fired. He then brought several claims, including discrimination under the ADA. The court granted the defendant employer’s motion for summary judgment on the basis that plaintiff could not hold a medical certificate. Therefore, it is highly unlikely that a pilot with a mental illness that would not allow him or her to hold a medical certificate would not be able to satisfy the qualification element of a prima facie case of discrimination under the ADA.
Courts have generally ruled that an employer’s request for a medical examination when the request is grounded in good faith, and where the specific facts show that an employee may not be able to perform the essential functions of his or her job. Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 (6th Cir. 1999).
Plaintiff in Witter also brought state tort claims for intentional infliction of emotional distress and negligent hiring and retention, which were dismissed. Plaintiff’s defamation claims against both the Sr. AME and Delta were also dismissed. Plaintiff’s libel claims against Delta, and his claim against the Sr. AME for tortious interference with Witter’s contractual relationship with Delta were also dismissed.
Confidentiality Considerations
The BEA and ARC reports both recommend the development and implementation of a unified, coordinated system of national mental health reporting. However, the confidentiality of medical records arises through a complicated morass of federal and state statute and common law.
Privacy Considerations Under Federal Law:
Although the ADA contains confidentiality provisions, the ADA generally insulates air carriers from liability in cases where pilots have a mental disability.
Family Medical Leave Act of 1993 (FMLA). Unique eligibility requirements apply to pilots, flight attendants and other crewmembers under the Airline Flight Crew Technical corrections Act of 2009. Eligible if (1) worked at least 60% of the minimum number of hours scheduled to work in any given month during prior 12 month period and (2) at least 60% of the minimum number of hours that the employee was scheduled to work in any given month.
Aviation and Transportation Security Act (ATSA). Provides immunity for air carrier or any employee of an air carrier who makes a voluntary disclosure related to a threat to aircraft of passenger safety. 49 U.S.C.A. § 44941(b). See, Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014).
Health Insurance and Portability Accountability Act (HIPAA). Contains an exception for “uses and disclosure to avert a serious threat to health or safety. 45 C.F.R. § 164.512.
Scott Brooksby spoke on a panel in New York, NY at the American Conference Institute’s 8th Annual Forum on Defending and Managing Aviation Claims and Litigation. His panel was entitled “SPOTLIGHT ON FLIGHT CREW MENTAL HEALTH ISSUES Post-Germanwings: An In Depth Discussion of the Legal, Regulatory, Public Safety and Ethical Considerations”. On June 27, 2016, Scott and other distinguished panelists spoke on the following topics:
• An in depth discussion of aeromedical
issues and developments following last year’s
Germanwings crash
• What procedures are currently in place
to identify mental health issues in pilots,
crew-members, air traffic controllers? —
Are they enough?
• Who should be in possession of a
crew-member’s mental health information?
• Who has what responsibilities to make reports
of other crew-members’ mental health info?
• Who regulates this?
• Assessing considerations of confidentiality
with considerations of public safety
• Under what circumstances can medical data
be shared and with whom?
• What strides is the FAA taking in response to
the Germanwings tragedy? (ARC and Amsis)
• Addressing current issues and challenges related to:
– Awareness and reporting of emotional
and mental health issues
– Methods used to evaluate pilot emotional
and mental health
– Barriers to reporting such issues
– Surveillance and oversight of designees and
aviation industry substance-abuse programs
• A discussion of the ethical challenges and
considerations, and how to best navigate them
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 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 ten passenger 2007 Bell 412EP crashed into remote mountainous terrain near Santa Cruz, Cajamarca, Peru. Impact forces and a post-crash fire killed the United States certificated airline transport pilot, the Peruvian co-pilot and eight Peruvian miners. 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.
In its motion to dismiss the 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 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 one aspect of 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.”
In ORS 20.080 cases, the plaintiff’s attorney fees can quickly outstrip damages. Kristin Olson’s article, “An Overlooked Attorney Fee Statute in Oregon”, published by Insurance Thought Leadership, explores ORS 20.080 cases and how to strategize appropriately so that you do not become liable for attorney fees in cases with small damages amounts. The following is from Kristin’s article:
Companies doing business in Oregon should be aware of ORS 20.080, which can provide for attorney fees in cases seeking damages of $10,000 or less. That statute provides that prevailing plaintiffs may be awarded attorney fees. It is important to be aware that, in ORS 20.080 cases seeking compensatory damages of $10,000 or less, the attorney fees can quickly approach or outstrip the compensatory damages.
This article will explore three key questions that clients generally have when defending against an ORS 20.080 case: 1) How does the plaintiff receive attorney fees?; 2) Do courts require plaintiffs to strictly comply with ORS 20.080?; and 3) How can defendants escape attorney fees in ORS 20.080 cases?
1. How Does the Plaintiff Receive Attorney Fees Under ORS 20.080?
Generally, a plaintiff has a claim for attorney fees under ORS 20.080 if the plaintiff: gives the defendant notice of a claim for $10,000 or less at least 30 days before the plaintiff files a lawsuit; provides enough documentation for the defendant to generally value the claim; and was awarded more at trial or arbitration than the defendant offered before the plaintiff filed the lawsuit.
ORS 20.080 provides that:
“(1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, and on the defendant’s insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 30 days after the transfer of the action under ORS 46.461. However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 30 days after the transfer of the action under ORS 46.461, an amount not less than the damages awarded to the plaintiff.
“(2) If the defendant pleads a counterclaim, not to exceed $10,000, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.
“(3) A written demand for the payment of damages under this section must include the following information, if the information is in the plaintiff’s possession or reasonably available to the plaintiff at the time the demand is made:
“(a) In an action for an injury or wrong to a person, a copy of medical records and bills for medical treatment adequate to reasonably inform the person receiving the written demand of the nature and scope of the injury claimed; or
“(b) In an action for damage to property, documentation of the repair of the property, a written estimate for the repair of the property or a written estimate of the difference in the value of the property before the damage and the value of the property after the damage.
“(4) If after making a demand under this section, and before commencing an action, a plaintiff acquires any additional information described in subsection (3) of this section that was not provided with the demand, the plaintiff must provide that information to the defendant, and to the defendant’s insurer, if known to the plaintiff, as soon as possible after the information becomes available to the plaintiff.
“(5) A plaintiff may not recover attorney fees under this section if the plaintiff does not comply with the requirements of subsections (3) and (4) of this section.
“(6) The provisions of this section do not apply to any action based on contract.”
2. Do Courts Require Plaintiffs to Strictly Comply With ORS 20.080?
The short answer is no. Although ORS 20.080 requires that plaintiffs make their demands in writing to the defendant AND the defendant’s insurer, if known, courts generally do not require plaintiffs to strictly comply with this portion of the statute. Under Schwartzkopf v. Shannon the Cannon’s Window & Other Works, Inc., 166 Or App 466, 471, 998 P2d 244 (2000), a person may act as an agent for the defendant (and therefore may be considered “the defendant”) for purposes of ORS 20.080 if that person has authority to defend or settle a claim for the defendant. Under Schwartzkopf, trial court judges have allowed plaintiff’s lawyers to provide notice to the defendant’s insurer without providing notice to the defendant, even though the plain language of ORS 20.080 requires that the plaintiff provide notice to both. In these kinds of cases, the insurer has usually already engaged in some kind of negotiations for the defendant or has gathered facts for and on behalf of the defendant, giving the plaintiff evidence of agency. Therefore, under ORS 20.080 and Schwartzkopf, if the insurer is the only person who receives a demand, practically and generally speaking, the insurer should treat that demand as sufficient notice as long as it was made at least 30 days before plaintiff filed the lawsuit.
Courts do generally require plaintiffs to send any additional written information that the demand would include, such as additional medical bills, to the defendant (or the defendant’s insurer) as soon as possible if the plaintiff obtains such information after the plaintiff has made her written 20.080 demand and before she has filed the lawsuit.
However, in the initial written demand, courts generally give plaintiffs leeway and, as long as the plaintiff has provided the defendant with enough documentation to generally value the claim, the plaintiff generally does not have to strictly comply with the statute and provide all of the documentation “reasonably available at to the plaintiff at the time.” For example, if you are provided with an ORS 20.080 notice from a plaintiff’s lawyer that includes most of the medical records and bills but does not include copies of the x-rays, a trial judge will generally hold that the plaintiff’s lawyer substantially complied with ORS 20.080 and that the claim may proceed.
3. How Can Defendants Escape Attorney Fees in ORS 20.080 Cases?
The only way the defendant can escape attorney fees in ORS 20.080 cases is if the defendant makes an offer to the plaintiff before the lawsuit is filed that is more than the damages ultimately awarded to the plaintiff. In other words, if the plaintiff recovers $5,000, but the defendant offered $3,000 before the lawsuit was filed, the plaintiff gets her attorney fees. If the plaintiff recovers $5,000, but the defendant offered $8,000 before the lawsuit was filed, the plaintiff does not receive her attorney fees.
If the lawsuit is filed and the defendant has a counterclaim of up to $10,000 and the defendant prevails in the lawsuit, the defendant gets its reasonable attorney fees. What is “reasonable” is decided by the court.
In Oregon, it is important to notify your attorney right away after receipt of an ORS 20.080 letter to ensure that you strategize appropriately. Although it may seem unpalatable, generally the best strategy is for defendant to make its best offer first, to minimize the risk of an award in excess of the offer and exposure to attorney fees. Many times, lawyers don’t receive cases until the lawsuit is filed and, in ORS 20.080 cases, that is usually too late; the plaintiff’s attorney fee claim is already in play.
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