january fifteenth two thousand and eight honeywell's defective flight management system nearly killed over three hundred people on united flight nine zero one the flight management system is referred to as the brains of the airplane pilots are trained to fly by their instruments those instruments are controlled by the brain the flight management system honeywell contends they should be let off the hook despite the fact that they produced a defective flight management system and despite the fact that they agree that had a category three landing been done that day category three landing is simply an autopilot landing standard happens most of the time for most airline flights what would have happened in this case catastrophe that's not hyperbole that's fact when united went and tested this flight management system in their simulator every single time a category three landing was the plane crashed how many times did they tested it briefings every single time a lot i just wondered i don't know the specific number i know it was more than three times there's going to be uncontested in the briefing that that's the case that's correct honeywell mischaracterizes the facts of this case by saying somehow this is standard or routine what happened here i'd like to focus your attention on a concept that applies in this case to the pilots in this airplane at this time on this located at this location they have a map that map tells them how to get to safety the map depends on them knowing where they are starting at the point that the pilots recognize that the flight management system is in error that it is lying to them that what they see on their instruments turns out to not be what is outside the airplane they now know because of their training as pilots that their map of how to get out of there is also wrong because they don't know where their starting point is at what point did your client realize that at the moment when compton l'engle said go around for the first time he said it he said it in a quiet voice and there's a dispute about how unusual that is correct he said go around and i think and again there's we're not entirely sure i'm not even sure captain l'engle are would know for certain but i think part of it is the conditions of the time not unusual for us to follow foggy conditions where they can't see most of the way and again under those conditions a category three landing was perfectly appropriate so getting back to my question he said go around and he his deposition testimony is that he said in a quiet voice right and that your client responded by saying or something like that correct and then he said it in a urgent voice that's right the other witness uses the term and that there was urgency in his voice and it's quite a long bit of deposition testimony asking him i think to his frustration about why did he give that direction it's pretty clear in the testimony it's not because they got down to minimum he says that there was something wrong and he says two things that i want to focus on and he said there was something wrong it was his gut in part is very very experienced pilot but he said something was wrong the other planes were getting in and i couldn't see any light so from that i'm not sure monitoring radio traffic it seems that if other planes if there were fog across the runway that that would have been fog for everybody and the other planes would have gotten in i mean that's what i'm understanding the captain to be saying but he's got fog so it was there any testimony in the record anywhere over that that that the fog was over the bay and that's why the other planes were able to get in no so what's that mean can you help me with that part sure the other planes didn't have defective flight management systems so they were landing on instruments not visual they could have been landing on either but as they were coming in their flight management system was not lying to them so it's go ahead please i just say when it when the flight management system when they looked at their controls and they see that the plane is lined up with the runway and it turns out the plane is wind up with the runway and just like their train they rely on that these pilots had a flight management system that said you're lined up with the runway and it wasn't until the very last seconds that they realize when they saw the blue beaker light to the left which should have been on the right meant they were about to go into the water ok so here here's why i'm asking the question to be clear there's a suggestion in the briefing and not a subtle suggestion that this would have happened that mr taylor would have experienced this you know looking down and seeing the white caps whether the instruments had failed or not because there was fog that day if and i'm trying to make sense of the district court order that district court seems to have a problem with cars ation about whether this would have of the gold around would have been required anyway no no the plane had the plane then where the flight management said it was this plane would have landed this plane would have landed at s f o on instruments it well because it we can't tell from the record council what the conditions really were very tough we don't have that so this landing is a combination of instruments plus pilots so the instruments are working to tell you where you are and the pilots are actually physically landing the plane that's a category one in this particular case category three the machine does it all pilots sit there they literally aren't even touching the controls they're just sitting there looking at the instruments and the plane lands itself so in a category one the instruments are telling you where you're going you're relying on those you look to see the runway ahead of you when you see it you go ahead and continue and you land a typical go around where a problem occurs and the reason there's this requirement that you see the runway in front of you is because of really three main issues there's more but there's three main ones that come up for air flight the first is as you're coming in you realize that you're coming in at the very tip the very end of the runway you're too you're too shallow and there's some fear that you might clip you go around so you come up so you can land further into the runway the second is you're too deep on the runway and you've got a short runway where you don't think you're going to have enough room to stop and the third is when you look out at the runway you can see down the way there's a plane crossing there's a car that stopped some kind of problem on the runway and you do a go around in all of those cases when you pull up on the on the plane on the yoke the worst thing that happens is your wheels hit the runway you go for a while and you take back off that's not the circumstance here there's no runway to hit they're told they're lined up on the runway but they're not when did your client realize that when captain languor said go around well the first time he said it there a place in the record i'm missing where he testified to that where he testified to and sorry to recognizing that the reason why it was a thousand feet over there no i couldn't find it so the position of the airplane is taylor is on the right that's our client my client languor is on the left the runway turns out to be over to the left what is straight ahead of them is runway ten which is the perpendicular runway to runway twenty eight that they were supposed to be landing on so if you could see anything what he would have seen would be the gigantic united hangar on the far side of runway ten runway ten and the break wall which is those rocks if you've ever landed at s f o on twenty eight you've seen them that's what would have been ahead of him to his right would be white caps it would be white caps regardless but the question that's the point it would be right white caps regardless that didn't that didn't give the district court's attention and so i'm  realizes they are not where the brain of the airplane has told them they are and he now has to make a person he has to perform a procedure to get out of there not knowing if the brains of the plane are going to respond or not the machine wasn't working that way as opposed to work at the mine when certainly by the time captain lang lower said go around the second time because there was it's not because he could see anything it's because because of the urgency in the captain's voice or what was it well though he could see he could see i mean he could see the white caps he's like that would have been true even if it had been a quote unquote routine go around that's what i'm trying to get out on top fair enough and let me i'm running out of time let me just say this these all of these pilots were very experienced not just kept in line are same with with officer taylor once you've done something hundreds of times perhaps thousands of times you know generally speaking where things should be when you look out and you see white caps and you see runway ten which would be the those things to his right you have a sense of where you are or where you aren't and for captain taylor at that moment it would have been clear to him he was not over the runway clear the captain tailing clear t captain taylor that's correct first officer taylor technically but yes so i would like to reserve some time but i also want to make sure i've answered your why don't we have the other side and then you think if some time may please the cord benjamin fox for honeywell international there was no error below the district court correctly articulated applied the rule that emotional distress without a threat of physical trembling because there was there not there had not been any danger he just trembling just because i acknowledge that there was uncertainty and there was fright in the cockpit so in but very as an experienced pilot the captain captain wangari says go around because his gut tells him something wrong when they're about three hundred fifty feet captain taylor says hossa didn't respond immediately he then says in an urgent voice captain taylor does respond and by the time the plane has come to its lowest point it starts back up again these the white caps they see the hangar they see realizing they realize they were going to quote land a thousand feet to the right of the runway they get up five thousand feet and captain lang is trembling and you say there was no danger i agree that they were afraid but that does not make for an emotional distress claim i'm after on the question of danger you're saying there was no danger the reason there was no danger and the really saying there was no danger there was no threat of a crash no i asked i used the word danger was there no danger i believe there was no danger and the reason why there was no threat of a crash correct ok and the reason why is that the go around was required by f a a regulations and it was initiated above that the situation altitude so this is i met require it was required by something's wrong other planes are getting in and i can't see anything i don't i don't know and there's nothing in the record about that i think that the other pilots when they reached a decision altitude could see the runway so they were permitted a regulations to land it doesn't run well and that's what i was trying to get at from your brief you're arguing pretty hard that this is all about fog right that's where you think that this would have gone just the way to it would have gone whether your machine and failed or not  misreading that i'm arguing that it's a belt at altitude and my question was a yes or a no just to help me out is that while it is in part right ok there was fog but also there was a go around above two hundred feet and the reason was it was required because the pilot could not see the runway so it crashed into the bay is dictated by altitude the flight data base deals with alignment right so you would agree the cap and very clear in his deposition testimony he didn't get down to decision altitude he called it earlier correct and he called it because he said something was wrong in my gut the other planes are getting and i can't see like again just something else i think view they needed to go around and they never got that low he called in earlier right i believe so he's clear on that in his deposition testimony is there conflicting evidence on that point i don't think so so can you  something straight when you say you could not see the runway if you're good three hundred yards to the right of the runway you're not going to see the runway no matter how close you get to the surface of the earth yes that's correct that is what is falling had to do with it i thought that the captain's pretty close and i still don't see any lights that was what his gut was telling him that that's how i read the record my gut telling me that we are where we think we are i think i don't see anything out there eventually they saw the water i think so so do i have that right or wrong i think that is correct and let me take the hypothetical in a no fog situation in a no fog situation whether you are misaligned by five hundred or thousand feet you will see the whole area and you will see that the runway is to your right and you will redirect in a fog possibly causes that's perfectly sensible letter first year towards crash equipment yes and her lip and potter and the other case we have cited said that there is not a claim for emotional distress damages every time there is a claim for negligence of course but nobody's so it doesn't mean just because the plane turned around about the decision altitude so the hypotheticals that the plaintiff gives there could have been a mountain in the way there could have been some other obstacle didn't crash the question is whether he avoided the threat of harm in it and it seems very clear they didn't avoid the threat of harm the closer to fish fletcher's question right there was a threat that was at risk is a very dangerous situation council well my view is there was not a threat in the same way that in wilson the recent california of a court of appeal threat there was no threat of electrocution although there was stray voltage that is not something that permits an emotional distress claim and i think that me likening this to the cases where somebody is lucky enough that they can jump out of the way of a speeding car and they don't get hit and that's on one hand a really good thing because they don't get run over but are you saying and under this circumstance where they essentially jumped out of the way because the captain said my my gut tells me something's wrong here that there's no threat this is not like the cases where there was a car crash and the it is like those cases in that the plane didn't crash the pedestrian didn't get run over but the but the austrian had a very close call and that's compensable why isn't this why isn't this compensable in the same or at least at least potentially compensable why here there was a federal regulation that required a go around that if followed and there was testimony that uncontroverted that he trained for it he practiced at the captain would have performed it if you back to your p would have required them to do a go around had they gotten down to decision altitude they didn't get down to decision altitude here where you're losing me as you're repeatedly saying that there's a federally regulations required just go around that's different i what they did if you wait until after you know regulations are not written to have the it's called decision altitude because you're supposed to do it before that decision point not after it so i think that there was complete which the decision must be made isn't that why they call it that this is an altitude at or before because we're dealing with a descending aircraft are and people cannot make a decision right at that point i think that's made before and you agree that the testimony here from the pilot captain is that that's not what he ordered to go around i don't think that's right i think that there are so you know it's meant that the rules required a go around yes and he did say there was something that did not feel right to him he said first something expressing frustration along the lines of i've been asked this question about six hundred times i think right and then he said something wasn't right talked about his experience and he got as a very very experienced pilots that the other planes were giving and i couldn't see lights did he say anything else i don't remember but i think his justification doesn't matter as a matter of law they perform the go around when they were supposed to and required to let me ask you this about the regulation the goal of the decision point was apparently two hundred thirteen feet but adjusted for atmospheric conditions it was two hundred twenty feet so the decision point operates in the sense that if you're at two hundred twenty feet and you don't see the runway at that point you're supposed to that's the last point at which you're supposed to initiate to go around that right right and we know that and we got this i think out of captain languorous testimony  deposition that once you initiate the go around the plane continues to descend for a bit because it's coming down it takes a while for the engines to go faster and so on now if they had been off course to the right as they were and over that big hangar that's off to the right and they had made the decision point they had met actually exercised to go around more or less at the decision point at two hundred  twenty two hundred twenty five feet would they have hit the top of that hangar is pretty big hangar the answer is i don't know and i don't but i thought that i don't either but i'm trying to figure out what danger there was from them being off course to the right by a substantial amount there are obstacles and buildings over there off to the right i mean i'm trying to figure out the degree of danger that your defective system put them in yes and we look at their record  is that they were over the bay not that they were near any hangar or any other obstacle in a summary judgment we need evidence and there was no evidence of well any obstacle to the right of the runway of the runway they were coming in on  unless the court has other questions i'm happy to address any of the cases in my view the law we're dealing with throughout the court has asked whether there are some threat i've done my best to explain why i think there was not i'll  honeywell wants us to go look at what happened in the past with the benefit of knowing what we know now as opposed to looking at the circumstance that officer taylor captain at the time this accident happened they want us to have a retrospective perspective but that's not what the law says the law says you take folks in the condition they're in at the time that they're in it and figure out whether it's reasonable if they're that they perceive there to be a danger and if you look at the pool case which i think is instructive it's a supreme court case it says specifically the reasonableness of whether there was a danger is a jury question just like  foreseeability is but honeywell wants there to be a rule that says if you're a trained pilot and you do a go around regardless of the circumstances they get a free pass that's because if the pilots training that seems to be in a plane i think well certainly there are plenty of examples i don't know if there's cases necessarily we haven't look specifically for that as to whether there are pilots who have claimed post traumatic stress disorder as a result of incidents that happened on a plane we have cases that we've cited to first of all for me to say that mark taylor is an eggshell plaintiff i think mistakes of the bit where we know about post traumatic stress disorder from all of the literature that's out there including what we've learned most recently from our most recent war is that post traumatic stress disorder happens to people who we think of them as war heroes who are tough and so the eggshell plaintive doesn't quite capture it what is how it would have been screened  if there were there were screening process you know that is not going to put anybody in the knowing that there's a likelihood that they would subject they would be subject to this kind of u s marines the u s navy would be using that right now to screen out people who would be susceptible to p t s d there is no test because we don't know who's going to get it we don't know when they're going to get it and we know that you put two people in the exact same circumstance there is a high likelihood under certain circumstances particularly war where one person is going to get p t s d and another isn't is it in the record that united won't let him fly because of this because of his kind of psychological state i believe yes it's in i believe it's in first officer taylor's deposition testimony allegation in the complain taylor versus honeywill international now submitted for decision thank thank ounce of our both sides for their arguments