From: novick@ogicse.ogi.edu (David G. Novick)
Newsgroups: rec.aviation
Subject: Re: Manufacturer being sued _for_no_reason_
Date: 22 Jul 92 20:09:31 GMT
Article-I.D.: ogicse.40399
Organization: Oregon Graduate Institute (formerly OGC), Beaverton, OR
In-reply-to: exumfs@exu.ericsson.se's message of 22 Jul 92 18:35:17 GMT

Some contributors to rec.aviation have been inquiring why a plaintiff
in a helicopter-crash case might sue, in addition to the company
operating the helicopter, the pilot and the manufacturer.  As a former
products liability defense attorney (my clients included Evergreen
Helicopters), I think I can provide some background information that
might be helpful.  Please note that I no longer practice law, mainly
because I didn't think I was doing much that was societally useful.
(I'm now a computer science researcher and teacher--that's a *lot*
more useful, eh?).

So why would the plaintiffs name all of these defendants in their
complaint?  A major reason is that plaintiffs' decedent (in this case
Mr. Vaughn) almost certainly did not contribute to his accident;
others likely did contribute to the accident, because the helicopter
did in fact crash.  Basically somebody screwed up, and the plaintiffs
will let the defendants fight over who was responsible.  The
plaintiffs can use the process of discovery in connection with their
suit to build the basis of their case.  This is not as awful as it
sounds, as most evidence of, say, a design defect in the helicopter,
would be in the control of the manufacturer and thus otherwise not
accessible to the plaintiffs (or anyone else, for that matter).

What might happen if the plaintiffs did *not* include the
manufacturer?  The danger is that evidence might turn up later (in
discovery or even at trial) that there had, in fact, been some fault
on the part of the manufacturer.  Maybe there was a human-factors
problem with the display (a la Airbus A320) that was really the major
cause of the crash, or maybe the fuel tanks were designed poorly so
that an otherwise survivable crash would be made fatal).  In such a
case, the plaintiffs will be out of luck, because (1) the operators
could be deemed to be less than 50 per cent at fault (and thus not
liable--it depends on the laws of the particular jurisdiction) and
(2) the statute of limitations will have long expired with respect to
claims on the manufacturer.  Thus, as the law stands, I think the
plaintiffs' lawyers would be flirting with malpractice had they not
included the manufacturer.  They run the risk of losing altogether
or at least of substantially diminishing the recovery of the damages
that the plaintiffs suffered.

With respect the (deceased) pilot, I'm sure the plaintiffs included
him (or his estate, probably) because (1) he was the operator's
agent and likely the main contributor to the accident, and (2) he
probably carried liability insurance; if the plaintiffs make no claim,
the carrier wouldn't have to pay off even if the pilot had been the
sole cause of the accident.

The upshot of all this is that as the law stands now, the plaintiffs
would be crazy not to include the pilot and manufacturer.  I'm sure
that there are cases of bad-faith lawsuits that are little more than
attempted extortion.  However, it's very hard to distinguish them
on the basis of the complaint alone from good-faith lawsuits.  There
are mechanisms for early dismissal of legal actions, so if it appears
that there's no issue of law or question of fact that would hold
Bell Helicopter in the case, they should be able to get a quick
summary judgment.  Given the complex nature of many aircraft cases,
however, I wouldn't hold my breath.

Here's an example to illustrate this point:  When I was a law clerk
(circa 1976), the firm I was then with represented a major helicopter
manufacturer in crash case.  As I recall, the plaintiffs were smoke
jumpers who were very seriously hurt when the helicopter they were in
had some sort of problem (more on this below) and fell 60 feet or so
to the forest floor.  The pilot survived and continued his aviation
career; unfortunately, he was subsequently involved in an accident
while crop dusting and suffered severe head injuries that left him
with the mental abilities of a five-year-old child.  The principal
account of the accident then available was an audio tape of a hypnosis
session in which the pilot, before his second crash, relived the
original crash.  The plaintiff's case was that the helicopter had
suffered a mechanical failure; the pilot's recall under hypnosis had
been that he was maneuvering near the trees when he lost all pressure
one of his pedals (it's been a long time, so I may not have details
right) and the helicopter spun and dove.  Our theory was that the
pilot had inadvertantly swung the tail of the helicopter into a tree,
and that this caused the loss of the control.  To this day, I believe
that this was in fact the cause; but with the pilot's account, such as
it was, the case was not clear.  I think the lawsuit was eventually
settled after I'd gone back to lawschool, but I don't know the amount.
My guess is that they had already settled with the aircraft operator.
Clearly the plaintiffs knew that *they* weren't at fault, they
couldn't sue their employer (due to the workers comp bar), so the
helicopter company was the only avenue that had left, and the
pilot had blamed the aircraft.

Anyway, I hope that this is interesting and helpful.

--David

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  David G. Novick   | Department of Computer Science and Engineering
 novick@cse.ogi.edu | Oregon Graduate Institute of Science and Technology 
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