Comair 5191 Lawsuit

[KennyFlys]

This gets more and more bazaar with a lawsuit filed showing a strong demonstration of stupidity. The item which caught my eye was naming Jeppesen because they didn't publish new charts until the following month. So, what about that NOTAM process? Is there a way to go back and look for existing NOTAMs during that time? If it had been published, perhaps someone can scan the text and post here. I'm curious what was issued.

From Avweb Flash:

[FONT=arial,helvetica,geneva]Fallout from Comair Crash Continues[/FONT]

It's been a year since a Comair crew tried to take off from the wrong runway in Lexington, Ky., and the co-pilot, who was the sole survivor, and the captain's widow have filed suits against the FAA, the airport, and Jeppesen. Also, the NTSB, which in its final report on the crash last month faulted the pilots for failing to check their position before takeoff, this week issued safety recommendations (PDF) asking the FAA to revise procedures for pilots and controllers. The FAA should require flight crews to positively confirm and cross-check the airplane's location at the assigned departure runway before crossing the hold-short line, the NTSB said. Also, controllers should not issue a takeoff clearance until after the airplane has crossed all intersecting runways, and controllers should refrain from performing administrative tasks, such as the traffic count, when moving aircraft are in the controller's area of responsibility, the board said.

First Officer James Polehinke suffered extensive injuries in the crash. The lawsuits allege that the FAA should have had two controllers on duty instead of just one, that the airport didn't do enough to clearly notify pilots of changes to taxiways during airport construction, and that Jeppesen was informed of the taxiway changes in June but didn't issue new maps until late in August, after the accident.

 

[wbarnhill]

This gets more and more bazaar with a lawsuit filed showing a strong demonstration of stupidity. The item which caught my eye was naming Jeppesen because they didn't publish new charts until the following month. So, what about that NOTAM process? Is there a way to go back and look for existing NOTAMs during that time? If it had been published, perhaps someone can scan the text and post here. I'm curious what was issued.

From Avweb Flash:

Oh geez. I can only hope they don't succeed in their suit. Bah.

 

[Missa]

Yea but then the pilot's family and co-pilot are facing a pethra of wrongfull death suits from the passengers. This is probally a tatact to spread the burdan around. It just shows how sue happy our socity has become.

Pathetic.

 

[AWACSEng]

Crap! i got a paper cut! I'm suing the manufacturer for making thier paper so thin and sharp like!

 

[ScottM]

Crap! i got a paper cut! I'm suing the manufacturer for making thier paper so thin and sharp like!

You should consider suing G-d, after all he/she made the trees that paper is made from.

 

[wbarnhill]

Crap! i got a paper cut! I'm suing the manufacturer for making thier paper so thin and sharp like!

Don't forget to sue the store that sold you the paper for not warning you of the possibility of injuring yourself.

 

[AWACSEng]

You should consider suing G-d, after all he/she made the trees that paper is made from.

And the distributor for bringing me such a dangerous product. In all seriousness, it seems to be fact the crew screwed up. Enough said. Is monitary compensation going to bring 47 pax and 2 crew back to life? Nope. Let it go. If something legal must be done, propose a change to how bussiness is done. Putting the company out of bussines because one wants to "teach them a lesson" is way out of hand.

 

[KennyFlys]

The pilot shop at PDK was once sued along with Vertex Standard. Why? The battery in the radio was dead when he went to use it during aircraft electrical failure.

Does anyone besides me periodically pull, check and recharge their handheld radio?

 

[Bill]

Does anyone besides me periodically pull, check and recharge their handheld radio?

My radio uses 6 AA batteries. I pull those, put in new, and put the 6 in a different pocket and run them through the 30-3G. When those 6 are done, pull the ones from the radio, and load the radio with fresh. Rinse, repeat.

 

[Missa]

The pilot shop at PDK was once sued along with Vertex Standard. Why? The battery in the radio was dead when he went to use it during aircraft electrical failure.

Does anyone besides me periodically pull, check and recharge their handheld radio?

That's just because it's everyone elses fault, but not mine!

 

[Obi Heed Kenobi]

I tried to explain what is going on on the AOPA board and have apparently been designated as a sue-happy lawyer. I'll try to explain here, as well, but if people could keep from questioning my motives, I'd appreciate it.

The idea of the civil suit is not punishment, but instead is to provide compensation to the victims. It doesn't particularly matter where the compensation comes from, so long as it is provided. If you're looking for punishment or retribution, that's what the criminal system is for.

With that being said, our civil system is designed so that all of the contributing parties actually do contribute to whatever judgment is imposed. The idea is to provide incentive not to screw up, to be careful, not to be negligent.

Thus, we have a lawsuit in which there are several possible contributing parties. Here, we've got the pilots, Comair, the FAA, the runway lighting designers, chartmakers - the list is really endless. In this case, everybody is going to be suing everyone else. Thus, we will have:

1) Comair v. anyone who could have contributed;
2) FAA v. anyone who could have contributed;
3) Pilots v. anyone who could have contributed;
4) & c.

The motives of the individual tortfeasors (those at fault) is not altruistic - it is to reduce the amount they will have to pay. They will accomplish this by suing/countersuing one another.

While not pretty, the ultimate effect is that everyone who contributed to this accident will share in the liability. And, in my opinion, the end result should come out as well as can be in this situation. This system works for two reasons.

First, all of the supposed redundancies designed to prevent human error failed in this situation - the pilots screwed up, the tower didn't catch it, apparently the signage was wrong. Suppose any single one of those had been right. The accident most likely would not have happenned. Would it be fair, or just, to heap all of the blame on the shoulders of the pilots when there were other contributors (keep in mind that it's not about spreading blame, but about providing compensation and an incentive not to screw up)?

Second, what happens if 100% of the liability is heaped on the pilots's (and therefore on Comair)? We would be sending the message to the airport, to the FAA, and whoever else, that it doesn't matter that they might have contributed, as the pilots are always 100% responsible. That's certainly not going to provide much of an incentive to change behavior in the future.

Thus, what we're going to see is a massive number of lawsuits, crossclaims, and counterclaims. And the liability will probably come back something like 80% pilot error, 10% signage problems, 10% FAA fault.

Only time will tell.

I'll also say that the copilot's lawyer was my aviation law professor. He's a professional and private pilot, and a good attorney (in terms of ethics and skills). Quite frankly, he made me realize that flying is within my reach as well (had I not taken his class, I would not have started lessons, despite a lifelong obsession with flying). If he pulls any shennanigans in this affair, I'll have sorely underestimated his character and will be disappointed.

 

[tonycondon]

yea the pilots estate and the copilot are gonna get hosed with wrongul death suits. they are just trying to minimize that, but I doubt it will work.

frankly if i was horribly negligent, killed a bunch of people but managed to live myself, and my lawyer said to do this to try to minimize my losses and spread the blame, id probably go for it. these people will probably get sued for more than their projected lifetime income.

 

[Teller1900]

yea the pilots estate and the copilot are gonna get hosed with wrongul death suits. they are just trying to minimize that, but I doubt it will work.

frankly if i was horribly negligent, killed a bunch of people but managed to live myself, and my lawyer said to do this to try to minimize my losses and spread the blame, id probably go for it. these people will probably get sued for more than their projected lifetime income.

Amen to that. Not to mention he is massivly handicaped now and has no means of livlihood anymore AND has this on his concience from now until eternity...Sure the FO screwed up, but taking what little money he'll have left from him after his massive medical bills isn't going to bring their loved ones back...he knows he screwed up...

 

[gismo]

The pilot shop at PDK was once sued along with Vertex Standard. Why? The battery in the radio was dead when he went to use it during aircraft electrical failure.

If I were an attorney, I think I'd start a class action suit against some lawyers that have generated nuisance lawsuits like the one you quoted and the typical post aviation accident feeding frenzy. I'd claim that their blatent misuse of our legal system is costing the rest of us a lot of money.

Does anyone besides me periodically pull, check and recharge their handheld radio?

I do, plus I have an alkaline pack I keep in the plane for the handheld.

 

[Obi Heed Kenobi]

If I were an attorney, I think I'd start a class action suit against some lawyers that have generated nuisance lawsuits like the one you quoted and the typical post aviation accident feeding frenzy. I'd claim that their blatent misuse of our legal system is costing the rest of us a lot of money.



I do, plus I have an alkaline pack I keep in the plane for the handheld.

I've written before that if you abuse something for too long, it will sooner or later be taken away.

Eventually, who knows when, we'll see that happen with lawsuits. Unfortunately, it will mean that some people that actually do have valid claims will not be able to recover for them, due to the abuses of others.

The lawyer, while not the person suing, is nonetheless the gateway to the courthouse. It's my opinion that the lawyer needs to exercise that privilege and responsibility, well, more responsibly.

I do think the current Comair suits are justified.

Many others, however, are not - think Wendy's and Burger King.

 

[AWACSEng]

Mr. Taylor,
I understand the reasoning you provided, but my argument is what good does it do? If there must be some sort of incentive not to screw up, let it be in the form of fines where the money goes to system improvements and the like to ensure this sort of thing does not happen to someone else. I honestly feel if I were in the unfortunate situation the families are in, that no amount of money would ease the pain of the loss. I would however, fell my loved one did not die for a lost cause if the responible party paid a fine of sorts to a fund that was used to make sure this did not happen again. Like I said, I understand the whole lawsuit deal, but I just think it is rediculous that families seek financial reparations and try to capitalize off of such an event. Again, no disrespect to you intended, it's just my point of view.

 

[ScottM]

but I just think it is rediculous that families seek financial reparations and try to capitalize off of such an event. Again, no disrespect to you intended, it's just my point of view.

Are they really capitalizing or trying to reacquire part of the financial security that they had before they lost their loved one?

 

[Obi Heed Kenobi]

Mr. Taylor,
I understand the reasoning you provided, but my argument is what good does it do? If there must be some sort of incentive not to screw up, let it be in the form of fines where the money goes to system improvements and the like to ensure this sort of thing does not happen to someone else. I honestly feel if I were in the unfortunate situation the families are in, that no amount of money would ease the pain of the loss. I would however, fell my loved one did not die for a lost cause if the responible party paid a fine of sorts to a fund that was used to make sure this did not happen again. Like I said, I understand the whole lawsuit deal, but I just think it is rediculous that families seek financial reparations and try to capitalize off of such an event. Again, no disrespect to you intended, it's just my point of view.

I agree. It's why I don't do personal injury law, and won't ever do personal injury prosecution. In fact, I work for the judiciary, and it's my job to sort messes like this out - civil, criminal, family, you name it.

Money can't take the place of a loved one, and quite frankly, the idea of earning a living off of someone else's pain has always disgusted me. I have a theory of lawyers as "social garbagemen" that I'll be happy to share if anyone's interested.

I'm not taking a position on this lawsuit, whether it's justified, etc. I'm just trying to give some insight into what might happen, and why it might happen.

So believe me when I say that I share your views.

 

[Obi Heed Kenobi]

Are they really capitalizing or trying to reacquire part of the financial security that they had before they lost their loved one?

That's a big part of it.

When you get into punitives, however, that's when you get into the lottery. Don't know if punitives are involved here. Probably not, unless there's malice, gross gross gross gross gross negligence (very possible), etc.

 

[KennyFlys]

Thus, what we're going to see is a massive number of lawsuits, crossclaims, and counterclaims. And the liability will probably come back something like 80% pilot error, 10% signage problems, 10% FAA fault.

I'm fine with those. But, Jepp? Not even close!

 

[Obi Heed Kenobi]

I'm fine with those. But, Jepp? Not even close!

I'm not familiar enough with the situation to be able to comment. But believe me when I say that every possible party will be pursued.

In our system, litigation is also investigation. You don't get to "discover" information until after suit is filed, and there is only a limited time in which to file suits. Until that system, we'll always see what we're seeing now.

I'm not defending the current system or the current lawsuits (although I do think some are justified). I'm merely trying to explain them.

 

[docmirror]

I agree. It's why I don't do personal injury law, and won't ever do personal injury prosecution.

I have a theory of lawyers as "social garbagemen" that I'll be happy to share if anyone's interested.

I'd like to hear some about the theory, although I think I have a good general idea by the name provided. Having said that, who cleans up after the guys that clean up for us? In short, why can't the bar do a better job of policing it's own? I sometimes think that 2% of the lawyers in the US give the other 98% a horrible black eye. If it were my profession, I'd see to it that the minority doing all the damage were taken out back for a nice drubbing.

 

[Obi Heed Kenobi]

I'd like to hear some about the theory, although I think I have a good general idea by the name provided. Having said that, who cleans up after the guys that clean up for us? In short, why can't the bar do a better job of policing it's own? I sometimes think that 2% of the lawyers in the US give the other 98% a horrible black eye. If it were my profession, I'd see to it that the minority doing all the damage were taken out back for a nice drubbing.

Let me get done with the workday first - I've never put it in writing before, so it might take me some time to formulate. It's generally for reserved for *itching in person.

As for your last sentence - I do my best to see that it's done when it's within my control.

 

[KennyFlys]

I'm not familiar enough with the situation to be able to comment. But believe me when I say that every possible party will be pursued.

In our system, litigation is also investigation. You don't get to "discover" information until after suit is filed, and there is only a limited time in which to file suits. Until that system, we'll always see what we're seeing now.

I'm not defending the current system or the current lawsuits (although I do think some are justified). I'm merely trying to explain them.

I understand your reasoning. I don't disagree with the tactic to an extent. But, reasonable and definitely available data will indicate Jepp cannot publish information they do not have. It's up to the airport and the FAA to provide it. That's why I question what was released in NOTAMs.

Regarding your former professor and his representation, he's doing what he's hired to do, protect his client with every means possible. It's plaintiff's attorny I take exception to on Jepp.

 

[Missa]

I understand your reasoning. I don't disagree with the tactic to an extent. But, reasonable and definitely available data will indicate Jepp cannot publish information they do not have. It's up to the airport and the FAA to provide it. That's why I question what was released in NOTAMs.

Regarding your former professor and his representation, he's doing what he's hired to do, protect his client with every means possible. It's plaintiff's attorny I take exception to on Jepp.

Uh... according to the artical the co-pilot is the plaintiff. So doesn't that make his former professor, the plaintiff's attorny.

 

[Obi Heed Kenobi]

Uh... according to the artical the co-pilot is the plaintiff. So doesn't that make his former professor, the plaintiff's attorny.

From what I understand, the co-pilot's only sued the lighting company at this point? I haven't had a chance to review the latest stuff, but I think it's the pilot's widow as the plaintiff? There might have been one or two other plaintiffs in the newest one, but I'm not sure whether it's the co-pilot.

Regardless, everyone will sue everyone else. Such is the monster we've created.

 

[Missa]

From what I understand, the co-pilot's only sued the lighting company at this point? I haven't had a chance to review the latest stuff, but I think it's the pilot's widow as the plaintiff? There might have been one or two other plaintiffs in the newest one, but I'm not sure whether it's the co-pilot.

Regardless, everyone will sue everyone else. Such is the monster we've created.

And a monster it is! Yuck. Untill more people stand up and refuse to play like that it will not stop. I don't blame the co-pilot or the pilots wife as they are really just trying to protect themselves from all the passengers families. But it was an accedent and they happen, deal with it or get off the planet!

 

[KennyFlys]

Uh... according to the artical the co-pilot is the plaintiff. So doesn't that make his former professor, the plaintiff's attorny.

The lawsuits allege...

It doesn't specify which party is the plaintiff going after Jepp. But, as far as the F/O, I can't honestly see a reasonable stance for anything but a defense. He was part of the aircrew. Both should have verified the correct runway and heading, accordingly. I'm sorry if that is placing blame but it's certainly what I'd expect thrown at me were I in that place. With wet compass and HSIs on both sides, that's a lot to miss.

 

[Obi Heed Kenobi]

So...lawyers as social garbagemen. This, in no way, is intended as disparaging garbagemen.

When do you call a lawyer? When you have a mess that needs to be cleaned up. You've been arrested, you're getting divorced, you've been in a car accident.

You don't call a lawyer for something positive. You don't call a lawyer to get married (except to get a prenup, which in itself deals with negatives), you don't call a lawyer when you buy a house (except to do a title search, to make sure someone's not cheating you), you don't call a lawyer when you write a book (except to get a copyright, which is to prevent intellectual theft). Granted, helping people not get cheated is a worthy cause, but it is still based on negativity.

It's a necessary service - people, by their very nature, will always be up to no good. And the people who aren't up to no good need to be protected - and doing so is a worthwhile cause.

Regardless, as a lawyer, you're still making a living off of the negatives of society - crimes, boundary disputes, adultery, & c. Heck, even though I work for the judiciary, badness is what my provides my income - the courts wouldn't exist without human knavery. It's a profession based on the very worst that people have to offer - negligence, murder, reneging on contracts, thievery, cheating, lying, pillaging, plundering, and the rest.

This doesn't necessarily reflect on the characters of those practicing law. Nevertheless, it doesn't change the fact that we make our money from other peoples' misery, weaknesses, foibles, and flaws. Somebody has to do it - mankind has always tried to make a dollar off of fifty cents' effort, and always will. Thus, the law will always have a place - it's what makes us different from the animals.

I suppose a shred of nobility in the practice of law is that, instead of resolving our disputes via street fights and clan feuds, we've developed a more peaceful way of doing it. The law contributes to an organized society - without it, we'd be living in squalor.

The real nobility, in my mind, rests not in the pursuit of money, but in the pursuit of justice. Justice is one of those abstract terms that is thrown around a lot, but nobody really knows what it means. To me, at least, it means that each man receives his desserts based upon the deeds he commits and accomplishes - and I think a system that enforces that is important. And I do think that serving that end, in an honest and upright way, can be noble. That's what I'm trying to accomplish in my career - help people further their interests in an honest fashion, while making an honest living off of it (note honest, as opposed to extravagant).

Regardless, that doesn't change that fact that if it weren't for mankind's nature as a dishonest creature, I would not have such a career.

Thus, my "social garbageman" theory - a lawyer's job is to clean up the messes created by society.

Feel free to provide whatever feedback you'd like on my theory. Quite frankly, I'd love it if someone would prove me wrong.

 

[KennyFlys]

Feel free to provide whatever feedback you'd like on my theory. Quite frankly, I'd love it if someone would prove me wrong.

My brain is fried from even considering it.

 

[Obi Heed Kenobi]

My brain is fried from even considering it.

Yeah...I put a lot of dashes in it.

 

[silver-eagle]

Dave;
As always, you provide an excellent explanation for both the Comair issues and for "Garbagemen". There are jobs we all do we're not to happy about, but we still do them. With lawyers, one has to remember there is the presumption of innocence prior to any conviction or plea.
All I can say is here's hoping none of you ever need a lawyer for the dark side of it all.

 

[Obi Heed Kenobi]

...There are jobs we all do we're not to happy about, but we still do them....

And that's the thing - as long as there are humans, there will always be people who cheat, lie, steal, and kill. Unless we want to resort to vigilantism and anarchy, we've got to have some kind of system to provide an orderly means to deal with those problems.

All told, we have a good system, at least in that it keeps us from beating each other up over money. And lawyers are a necessary part of that system.

I guess you take the good with the bad.

As far as the present lawsuit goes, we'll see what happens. It's my personal and professional opinion that the lawsuits we've seen thus far are justified - justified not meaning that victory for the plaintiffs is ensured, but rather that there is sufficient dispute to warrant the filing of a lawsuit. There's a BIG difference between the two.

Basically, not frivolous means you have legitimate cause to think you might win. It's not a tough standard to meet.

One modification I would definitely like to see in the arena of "technical lawsuits," such as medical malpractice, aviation, and other highly complex areas - require the plaintiff to get the approval of a board of impartial experts before filing suit. There are several states that are starting to lean that way - I think it would be a fantastic addition.

[edit:] Thanks for the compliment, by the way. As this this and other aviation-related cases progress, I'll be more than happy to provide my opinions. I may not be an expert in the facts, but I can certainly explain issues such as why it wasn't dismissed, or why certain things are and are not relevant, etc.

 

[silver-eagle]

Obi/Dave;
I do call a few lawyers friends. However, my recent experience with the judicial systems, and specifically family court (ie divorce) has jaded me. I'd like to think i could remain impartial but know I'd be about the worst to have on a jury.
Like I said, may you never need the services but if you ever do, may you find yourself a F LEE or Johnnie C.
You're not missing anything on the red side. They're still beating up on lawyers. Some people just don't get it.

 

[flyersfan31]

Hey folks, don't shoot the messenger!! Thanks for the explanation, Dave. It's not your system, you just work for it. I understand.

The scattershot, sue everyone in sight, approach is just so distasteful to most of us "civilians." I guess one can argue a reason for doing just about anything. Like that silly lawsuit suing Jepp for providing charts used in those terrorist "renditions" -- come on, let's use at least a LITTLE discretion in these lawsuits. I don't know, is Corey Lydle's wife suing Bernoulli for his principle???? These days I wouldn't be surprised.

 

[Obi Heed Kenobi]

Hey folks, don't shoot the messenger!! Thanks for the explanation, Dave. It's not your system, you just work for it. I understand.

The scattershot, sue everyone in sight, approach is just so distasteful to most of us "civilians." I guess one can argue a reason for doing just about anything. Like that silly lawsuit suing Jepp for providing charts used in those terrorist "renditions" -- come on, let's use at least a LITTLE discretion in these lawsuits. I don't know, is Corey Lydle's wife suing Bernoulli for his principle???? These days I wouldn't be surprised.

I don't like the shotgun approach either. I've seen a lot of it, and it's incredibly frustrating from my perspective to have to deal with it - a lot of times, people/companies that had practically nothing to do with anything are sued because their name is on a piece of paper somewhere.

Unfortunately, we use litigation as the investigatory process for most torts. It's not like the criminal system where you've got the police to investigate before the case is ever filed - and, if there's no case, in theory it won't be filed.

In civil matters, the other side doesn't have to cooperate with you until after the lawsuit is filed. So if the other side's not willing to cooperate with you, you're left with no choice but to file a suit - in order to find out whether a suit is even justified! Talk about something that makes no sense!

I wish I had the answers to the problems....

 

[michael Killacky]

Dave,
Thanks a lot for the Comair explanation and a pretty good overview of the system. It's appreciated.

As far as the Social Garbageman Theory, I think your spot on. It's always annoyed me a bit when folks are so quick to rag on lawyers. Especially when there are so many of you on the board. Yet, when these same folks need a lawyer, they want the toughest they can get.

I've been sued several times. My lawyers were always the most decent, professional people in the courtroom. Even opposing counsel always treated me fairly. They have a job to do, too.

I've been a witness in probably 10 criminal cases and was never treated badly by either side.

When my mom passed, the lawyer that settled the estate was one of the nicest people I'd ever met. My only negative experience with a lawyer was the first one that I spoke to concerning the estate. He actually tried to get me to hide money from my brother and sister.

My point is that out of the 25+- lawyers that I have dealt with professionally, i had only one bad experience. Wish I could say that for auto mechanics.

 

[AWACSEng]

It's not the council, it's the clients that seek them.

 

[flyingcheesehead]

It's not the council, it's the clients that seek them.

Peeve of mine...

coun•cil |ˈkounsəl|
noun
an advisory, deliberative, or legislative body of people formally constituted and meeting regularly.

coun•sel |ˈkounsəl|
noun
1 advice, esp. that given formally.
• consultation, esp. to seek or give advice.
2 ( pl. same) the lawyer or lawyers conducting a case

Not pickin' on you AWACS, a lot of people here make this mistake. They'll talk about an FAA "Regional Council" which doesn't exist... It's "Regional Counsel" which is a lawyer working for the FAA.

Anyway... Dave, thanks for the excellent explanation. Now, if only we could create an investigative process that wasn't such a pain and wasn't so damned expensive. I was sitting here thinking that when the legal costs rise to the level that they could buy a new CRJ that maybe the whole thing should get tossed.

 

[AWACSEng]

No sweat, that's why I CLEP'd the english class for my degree. I might have actually learned something if I sat through the class.