The firm’s donation pushed the campaign over the $750,000 goal, helping it reach new heights in the history of the campaign. Mr. Sanger and Ms. Sweeney, representing Slack & Davis’ Dallas office, are “glad to help this important program and continue the firm’s tradition of serving the community.” Click to read full story about Slack & Davis’ donation.

This event falls into a genre of cases involving harm to spectators at events. While this is the first reported occurrence involving injuries to spectators at an air racing event, there have been prior occurrences and instances where multiple injuries and deaths have resulted at events such as air shows and auto racing. In most of those instances, the resulting allegations have been directed at the event sponsors and organizers for placing spectators in the foreseeable zone of danger.

This particular occurrence involves injuries and deaths to persons on the ground caused by the high speed crash of an aircraft in proximity to spectators. Our aviation expertise will matter and will become a significant factor benefitting our clients in these cases. Because we are pilots, because we have experience flying aircraft of the type flown in air races, and because we have years of experience with aviation activities and events like this, we understand the unique circumstances associated with air racing.

One common area of concern raised by our clients is whether the involvement of lawyers will cause the National Championship Air Races to end as a result of this occurrence. We do not know. There will be many other factors that influence the future of the air races besides the civil justice system. But we understand our clients’ concerns and we take them seriously. Our clients, as well as many others attending the event, are enthusiastic air racing fans. They are concerned about lawyers who are not familiar with the sport or with aviation getting involved, seeking publicity for themselves and pursuing unfounded and misguided allegations. This is a legitimate concern and one that we have had on our minds since this tragedy unfolded. We will seek a leadership role in this matter, as we have done in every major aviation catastrophe in which we have been involved, and will do everything within our power to prevent the inexperience of and opportunism by others from adversely influencing the proper course of this litigation and our clients’ cases.

Our first and only commitment to our clients is to secure optimum compensation for them and their families from the responsible parties as efficiently as we can. We will always maintain that goal as our highest priority. As with every aviation case we handle, we are thoroughly investigating the totality of circumstances. Only after we have investigated and assessed the factual information and legal options will we bring claims. Even then, claims will only be brought against those responsible parties whose negligence was a cause of the occurrence and harm to our clients.

During the course of our representation, we will formulate specific recommendations for improving air racing safety and eliminating manageable risks to spectators and racers.  Over the years, we have succeeded in prompting many changes to the aviation industry by proactively seeking affirmative safety measures in the aftermath of a tragedy. Besides our clients, we have friends and colleagues who are involved in air racing. They are at risk also. We are strongly committed to playing a constructive role in this tragedy to improve the margins of safety for both spectators and racers. As we have demonstrated in our lengthy history of representing families touched by air crash tragedy, aggressive and skilled representation will produce optimum compensation, but it can also produce tangible safety changes which reduce or eliminate the risk of a future tragedy.  – Michael L. Slack

Just months after announcing that Paula Fisette Sweeney has joined Slack & Davis, dramatically enhancing and expanding the firm’s major personal injury and wrongful death litigation practice, Slack & Davis announced today that John Jose, formerly of Jose, Henry, Brantley, MacLean & Alvarado, has joined the burgeoning legal powerhouse.

Jose, who started his firm in 1984, said that he leaves his fellow attorneys in Fort Worth on amicable grounds.

“This decision was really more about the opportunity to work with Mike (Slack) and Mike (Davis) as well as Paula, who is a rock star,” said Jose.

While many of Jose’s successes in key personal injury practice areas go unreported because of confidentiality agreements, others have been reported, illustrating his capability as a plaintiff’s attorney.

One example of this occurred recently when he secured a $24 million settlement against a trucking company, which was found liable in an accident that killed a Tarrant County mother. The settlement was one of the county’s largest in a wrongful death suit involving a single fatality.

“Time and time again, John has proven himself as a steward for those who have been harmed through the fault of others,” said Slack & Davis co-founder and partner Mike Davis. “His experience will be invaluable at our firm.”

Slack & Davis now has 10 attorneys, with offices in Austin, Dallas and Fort Worth. The new Fort Worth office is located at 100 Lexington Avenue, Suite 70, Fort Worth, Texas 76102; 817.288.8988; 817.288.8999 (FAX).

Note: The new Fort Worth office is currently under construction. Call the number above for updates and information.

Case details
Airplane mechanic Larry Hagerman, of Pflugerville, Texas, was killed on April 10, 2008, when the door of a pressurized airplane opened explosively and struck his head. Mr. Hagerman was opening the door from the outside after the plane had landed at Taylor Municipal Airport. The airplane, a Hawker Beechcraft Corporation King Air model B200, was operated by Defendant Pumpco, Inc. and piloted by Defendant Albert Sidaras.

Slack & Davis sued Hawker Beechcraft Corporation for negligence, claiming defective design of the aircraft’s depressurization system and other inadequate systems and procedures. They also sued operator Pumpco, Inc. and pilot Albert Sidaras for negligence in failing to depressurize the aircraft or warn Larry Hagerman that the aircraft was still pressurized.

The plaintiffs settled with Hawker Beechcraft Corporation before trial for $1,800,000.

The verdict
In handing down the $6.82 million verdict to Mr. Hagerman’s two teenagers, the Belton, Texas, jury placed 80% of the responsibility on the aircraft operator. The settling party, Hawker Beechcraft Corporation, was found to have only 20% of the responsibility for negligence and defective design causing Mr. Hagerman’s death.

The case was tried against a settlement offer of $900,000 from the pilot/operator.

“The jury’s finding that Larry Hagerman was not negligent – and that the damages resulting from his death were substantial – validated our belief that this jury would be fair when asked to hear the evidence and measure the loss to his family and to this community,” said Mark Pierce of Slack & Davis, L.L.P., lead trial counsel for the Hagerman family.

Pierce tried the case with Slack & Davis’ name partner Michael Slack, an Austin attorney who is highly regarded nationally and internationally in aviation law. “With this decision, the jury made a clear and courageous statement on behalf of aviation safety,” Slack said.

Attorney Fletcher Rhodes of Temple, Texas, served as local counsel for the plaintiffs. Attorneys Robert Ruckman and James Struble of Jackson Walker L.L.P. (Dallas) represented the defendants along with their local counsel, John Francis.

“Bringing Paula and her firm into Slack & Davis completes the circle,” said co-founder and managing partner Michael L. Slack. “John Howie was a friend and mentor. After his untimely passing, and in accordance with John’s wishes, we immediately brought in Ladd Sanger, who was a prominent aviation attorney at Howie & Sweeney. This helped our firm build a national and international reputation in aviation law. However, our other major, non-aviation litigation areas are just as vital. With Paula’s addition, the transition is complete. She has the skills and talent to handle any of our cases.”

Sweeney thoughtfully weighed her options before joining Slack & Davis.

“We have been friends for more than 30 years,” said Sweeney in explaining her decision. “They are not only tremendous lawyers, but spectacular people as well.”

She added that “the merger of the two firms represents an exciting blend of personalities and ideas. The cultures of the two firms are already so similar. We’re both very passionate and dedicated to representing people who have suffered because of the actions or negligence of others.”

Co-founder and partner Mike Davis agreed, noting that leveraging Paula’s expertise in several dynamic areas, particularly medical malpractice, medical device products liability and pharmaceuticals, will help the firm strengthen its diverse practice.

“We knew all along that Paula could be a tremendous addition to our firm,” said Davis. “Paula is a big-case, big-time trial lawyer. Since these are the types of cases we handle, there will be many clients who will benefit from Paula’s extraordinary skills.”

About Paula Sweeney
Sweeney is board certified in Personal Injury Trial Law. She is a past president of the Dallas Trial Lawyers Association (1991), past president of the Texas Trial Lawyers Association (1998), and past president of the Dallas Chapter of the American Board of Trial Advocates (2001). Sweeney has also been a Governor of the Association of Trial Lawyers of America and is a former member of the Board of Directors of the State Bar of Texas. She has been appointed to significant positions by the Supreme Court of Texas, including the Supreme Court Rules Advisory Committee, on which she served for 14 years; the Supreme Court Task Force on Medical Malpractice Discovery; the Supreme Court Task Force on The Jury Charge; and the Pattern Jury Charge Committee, on which she served for more than 10 years. Sweeney is a fellow in the American College of Trial Lawyers and the International Academy of Trial Lawyers and was recently admitted to the International Society of Barristers.

Southwest Airlines canceled two flights out of Austin-Bergstrom International Airport Monday. A spokesperson said they were both weather-related. This weekend, however, was a different story.

The airline’s inspection of cracks caused the cancellation of 14 flights. They included eight flights on Saturday and six flights on Sunday. It followed the opening of a gash on top of the fuselage of a Southwest 737 over the weekend.

By Monday, travelers at ABIA said that did not shake their confidence in the airline.

“I actually have no fear about it at all,” said Mark Escobedo, who was headed to Sacramento.

“I think they earned our loyalty,” said Nicole Starling, who was headed to Baltimore. “We will stick with them.”

There is certainly incentive for that in Austin. Southwest brings big business, with about 100 Southwest planes flying in and out of ABIA every day.

A local aviation expert, however, said the way Southwest maintains its planes could change.

Mike Slack said Southwest planes are in the air more often and in service longer than their competitors. He believes they are subject to more wear and tear.

“Southwest was probably doing what they were asked to do in terms of adhering to maintenance standards from Boeing and perhaps even federal regulations,” Slack said. “What we may learn is that they may not be enough.”

The 737 is considered the workhorse of the commercial aviation industry. Southwest had 548 in its fleet. Click to see full story, with video.

The plane was carrying volunteers on a humanitarian mission to build a school in a remote area of Guatemala. The engine failed during cruise flight and the aircraft was destroyed during the emergency landing and subsequently caught fire. Of the 12 passengers, nine of whom were fatally injured, Slack & Davis represents the families of seven deceased passengers and two surviving passengers.

A lawsuit filed by the passengers in the 68th District Court, Dallas County, Texas, was brought against the Guatemalan aircraft operator, Aereo Ruta Maya, as well as the engine manufacturer, Pratt & Whitney of Canada and Dallas Airmotive, which had performed major engine maintenance. In December 2010, Judge Martin Hoffman approved a settlement of all passenger claims with Aereo Ruta Maya. Some of the unique challenges related to this settlement were discussed in the November 29, 2010, issue of Texas Lawyer.

Litigation continued against Pratt & Whitney and Dallas Airmotive. At the time of the crash, the failed engine was part of a Pratt & Whitney overhaul escalation program in which Aereo Ruta Maya had been afforded four overhaul escalations between 2003 and 2007, based upon periodic examinations of three of its fleet of PT6A-114A engines. Because it was a part of the Aereo Ruta Maya engine fleet participating in the escalation program, the overhaul time on the failed engine had been increased from its basic design overhaul limit of 3,600 hours to 5,600 hours. The engine failed with slightly over 5,300 hours of total time. As a result of the escalation program, the failed engine had never been overhauled. Its last major inspection had been performed in July 2005 in Guatemala by Dallas Airmotive at a total time of around 3,800 hours.

Plaintiffs contended that the overhaul extension program offered by Pratt & Whitney was not based upon a sufficient technical foundation to warrant significant increases of time before overhaul, and thereby subjected fleet engines to an enhanced risk of failure by reducing the frequency and quality of major engine inspections. Also at issue was the commercial availability of an enhanced compressor turbine blade design which was much more robust and resistant to metallurgical degradation in extended overhaul operating environments. As to Dallas Airmotive, plaintiffs argued that it was aware of the problems with component failures in the “hot sections” of -114A engines and failed to properly advise, instruct and act on the information at its disposal. A copy of the Plaintiff’s Seventh Amended Original Petition is available for review.

Judge Hoffman has set a hearing on April 18, 2011, to review the settlement as to minor children who lost parents in the crash.

♦♦♦♦

Grief Counseling: Stories of Loss Inform Recommendations for Allocating Funds
by John Council, Texas Lawyer (11-29-2010)

For the past three weeks, Al Ellis has traveled to three different states on a heartbreaking journey, meeting individually with 40 plaintiffs who either survived or lost family members in a 2008 airplane crash in Guatemala that killed 11 people.

As a court-appointed “facilitator,” Ellis has been assigned the unusual task of recommending to a state district judge what each of those claimants should receive from a limited pool of insurance money, tendered as part of a defendant’s proposed settlement in a mass tort suit.

Last month, 68th District Court Judge Martin Hoffman appointed Ellis, a veteran plaintiff attorney and of counsel at Dallas’ Sommerman & Quesada, to assess what all of the claimants should receive as part of a proposed settlement with one defendant in Lee Odekirk, et al. v. Dallas Airmotive Inc., et al. According to the Oct. 8 order, Aereo Ruta Maya (ARM) the Guatemalan company that operated the small airplane that crashed, has tendered the limits of its insurance policy to the plaintiffs.

Ellis’ appointment solves a problem for the lawyers who represent the plaintiffs in the case, says Mike Slack, a partner in Austin’s Slack & Davis, who represents five of the plaintiff families in the case.

Normally, airlines carry a big enough insurance policy to cover the claims of plaintiffs in the event of a crash. But that’s not the case in Odekirk ,Slack says . He declines to discuss the amount of the policy, which is being withheld as part of an agreement between the parties in the case. “We knew after we got involved in this case, if there was a limited fund and a potential that the limited funds of the policy limits were not adequate to satisfy all of the claims and there would have to be some type of division or allocation of those claims . . . we could not be involved in that,” Slack says. “It’s a conflict of interest. We’d have a conflict taking sides between various claimants.”

So Slack requested that Hoffman appoint a facilitator to evaluate what each of the plaintiffs should receive.

“We looked around to see if anybody had tried this and couldn’t find any examples. So we just decided to innovate this,” Slack says of his request for a facilitator.

The parties did not recommend a facilitator but left that up to Hoffman, who chose Ellis for the task.

“He’s very experienced, he has knowledge of personal injury law, and he has the ability and temperament to build consensus. That’s what I was looking for,” Hoffman says of Ellis.

Life Stories

After his appointment, Ellis says he met with each of the claimants in hotel conference rooms and simply asked them about their lives.

Ellis asked one widower how he came to fall in love with his wife, who died on the plane. Ellis learned that the couple met at a party; although it was love at first sight, he forgot to get her telephone number, only to find her days later at a coffee shop, where she ran out to give it to him.

Ellis asked another woman about the relationship she had with her deceased father and found out they’d been estranged for years after her father and mother divorced. But the father and daughter had reconnected six months before the plane crash took his life, Ellis says.

“The thing I’ve emphasized to them is: I’m not deciding the value of their loved one. I’m deciding what’s fair compensation for each claim. And that’s entirely different,” Ellis says.

Ellis says all of the claimants have compelling stories of loss. They or their family members were on the flight to Guatemala, because they had all volunteered to help build a school in the country. Of the 14 people on that flight, three people survived, one of whom was severely burned, Ellis says.

Getting each of the claimants to talk about his or her relationship with the deceased is important in determining the value of each claim, especially when it comes to non-economic damages, such as loss of consortium, Ellis says.

“The reason it’s important is I’ve established a base of what I think the average wrongful death non-economic damages are,” says Ellis, who says he tried to view the plaintiffs’ stories exactly how a Dallas jury might view them.

“Does this story give their case more value than the base? Or does it go below it? One had a very estranged relationship with her father. And that relationship put it below the base. So that’s important,” says Ellis, who expects to make his recommendations to Hoffman by the end of the month.

While Slack did not attend any of the meetings between his clients and Ellis, Slack says he has received positive feedback from his clients about those meetings.

“All of our clients have felt they have had an opportunity to explain their losses. And they all realize that there is going to be a division of this money and they might not be happy with how much is allocated to them,” Slack says. “But Al has brought so much integrity and thoroughness to the process that it really has overshadowed any individual expression of concern that any of our clients have had.”

Greg Carboy, a shareholder in Dallas’ Cowles & Thompson who represents ARM in the litigation, calls the appointment of a facilitator an innovative approach that solves conflicts on the plaintiffs’ side of the case.

He also hopes that Ellis’ recommendations will bring more validity to a final settlement and judgment for his clients in the case. Alan Mortensen and Edward Havas, shareholders in Salt Lake City’s Dewsnup, King & Olson, who represent three families of plaintiffs in the case, did not return a call each for comment.

Linda Eads, a professor at Southern Methodist University’s Dedman School of Law who teaches professional responsibility, says the appointment of a facilitator to help determine how settlement is apportioned to claimants is a unique solution to a common problem in mass tort cases.

“This kind of stuff is being discussed right now, about how you handle settlements in mass torts or how you handle settlements with multiple plaintiffs. The American Law Institute did a study on this issue. For example, in class action settlements, all settlements go through the court. But mass torts are not class actions. It’s always been a problem about how the lawyers handle their individual duties,” Eads says.

“It’s a good attempt to try to figure this stuff out,” Eads says of the appointment of a facilitator in Odekirk . “I think this is wonderful, actually. Good for them.”

Ellis is authorized to be paid up to $300 per hour for his services — payment that will come out of the fees the plaintiff lawyers earn in the case, according to Hoffman’s order appointing him as a facilitator.

That will be money well spent, Slack says.

“It takes a very special person to start that conversation and explain to that person that is sitting across the table what his job is in a way that engenders confidence. The appointment was very important for us. We have a lot tied up in our relations with the clients. And the court has a lot at stake with the performance of the facilitator” in resolving the case, Slack says.

Ellis says he’s earning more that than just money in his role as a facilitator.

“It was a spiritual experience for me, because every single family involved here were just good people,” Ellis says. “It was emotional, and it was hard. But, on the other hand, it was an experience I wouldn’t trade for anything. It was worth it to me just to be touched by these people.”

This crash near Clinton, Arkansas, occurred pre-dawn in low or no-light conditions which has been an often-reported factor in other crashes. The operator of the medical helicopter was Air Evac, a very large company with extensive operations in the Midwest. Air Evac has been associated with a number of prior crashes, including a fatal crash in which Slack & Davis represented the patient’s family.

This crash is now under investigation by the National Transportation Safety Board (NTSB).  It will be months before the NTSB issues its findings as to the causes of the crash.

Until then, this crash is sure to raise many familiar questions:

1. What type of flight plan was being used?  If an instrument flight plan was not being used, why not?
2. Was the pilot adequately trained and the aircraft equipped for night flight?
3. What was the pilot’s actual night-flying experience in the Bell 206?
4. What was the medical justification for the flight?  Was this a flight where the medical outcome could have been enhanced only by use of a helicopter ambulance?  Or was this just a revenue flight for Air Evac, with a flight crew and potentially a patient being exposed to unnecessary risks?

Time and time again, we see air ambulance helicopters crashing in poor visibility conditions.  The vast majority of these crashes involve helicopters that are operating under visual flight rules. Studies and experience have demonstrated that operating on an instrument flight plan greatly enhances safety and reduces the risk of a crash.

The Canadian experience with air ambulances is dramatically superior to the free-wheeling and virtually self-regulated U.S. air ambulance industry. Yet, the Federal Aviation Administration (FAA) has done little to crack down on the air ambulance industry.

As a result, the workplace risks for an air ambulance flight nurse or paramedic rank at the top of the “most dangerous jobs” list in the United States. Today’s crash is a sad reminder of just how dangerous it is to be a patient, nurse or paramedic on one of these helicopters. – Michael Slack