Your First Helicopter Crash Case
By Ladd Sanger, published in Trial Magazine, February 2010, Volume 46, No. 2
Federal regulations often give defense counsel the upper hand in helicopter crash litigation. But with careful preparation, you can overcome the unique challenges raised by these cases and make a winning argument for your client.
In recent years, a spate of high-profile-accidents has raised the public’s awareness of helicopter safety. Last April, the loss of a petroleum services helicopter in the North Sea resulted in 16 deaths. A heartbreaking air ambulance crash in Aurora, Illinois, claimed the lives of an infant patient on board and the entire flight crew. In fact, 2008 was the deadliest year on record for the helicopter emergency services industry (HEMS), with 7 accidents and 28 fatalities.1
These accidents have caught the attention of federal regulating bodies. The Federal Aviation Administration (FAA) and the National Transportation Safety Board (NTSB) have taken aggressive steps to increase helicopter safety. Both agencies are devoting significant resources to developing comprehensive and lasting solutions to safety concerns.
Helicopter cases present unique legal and factual issues that do not typically arise in negligence or products liability cases. Being prepared to deal with them early will make the case faster and less expensive to resolve. Thorough case investigation and a solid understanding of the laws and regulations that govern these cases are essential.
Unlike an automobile accident, where the vehicles are readily available for inspection by the attorney, nearly all aviation accidents in which a tort lawyer will be involved are investigated by the NTSB, which takes control of the wreckage. The NTSB will not permit other parties to inspect the wreckage until the agency releases it, which can take years in some cases.
The government’s control of physical evidence puts the plaintiff lawyer at a distinct disadvantage because both the helicopter operator and manufacturers of key components are typically invited to be a part of the official NTSB investigation. In contrast, the NTSB virtually never allows a representative of anyone injured or killed in a crash to be part of the investigation.
Furthermore, the parties whose interests are typically opposed to the plaintiffs’-manufacturers, for instance-get to write a report that is frequently adopted by the NTSB as the official report. Since the plaintiff lawyer is barred from the inspection process, it is important for him or her to gather as much information as possible from other sources during this time.
Eyewitness statements can be a good initial source of information, but because most eyewitnesses are not familiar with the aerodynamics and mechanical functions of helicopters, their observations must be carefully scrutinized. For example, an eyewitness may report having heard a popping noise, then having seen the helicopter spinning. This report is consistent with a mechanical failure in the anti-torque (tail rotor) system, but it could also describe one of several aerodynamic conditions induced by the pilot.
An eyewitness’s credibility must be considered with all the facts and evidence. For example, a witness may report hearing a sputtering sound from a helicopter powered by a turbine engine, which cannot sputter. While the combined recollections of eyewitnesses may assist in forming initial theories regarding what caused the accident, these theories must be confirmed by corroborating physical evidence. Some of this evidence includes air traffic control communications, radar data, scene photographs, data from nonvolatile memory chips, maintenance records, and the helicopter wreckage.
The Airmen Certificate and medical files, as well as the record of major alterations and repairs for the helicopter, should be requested from the FAA through a Freedom of Information Act request. Typically, the insurer for the helicopter’s hull will have copies of the log books and maintenance records after the crash. A written request for preservation and copies of the records and for access to inspect the wreckage should be sent promptly.
The maintenance records, FAA records of major alterations and repairs, log book entries, work orders, and a list of parts with the associated serial numbers from maintenance providers will be critical to assessing the economic and legal viability of the case. Many helicopter parts are time-limited and replaced at regular intervals. Knowing what parts have been replaced within the 18 years before the crash is critical to evaluating the viability of a products case, in light of the General Aviation Revitalization Act’s (GARA) statute of repose (discussed below).
Helicopter crashes usually are newsworthy events. Photographs, videos, and the identities of witnesses often may be obtained from the news media, archived news reports, and online sources.
The NTSB issues three reports in the course of a typical investigation. The first is a preliminary report, available on the NTSB Web site within a week or so of the crash. While this report can be helpful as an introduction to the accident and frequently gives some foreshadowing of the NTSB’s focus, it contains little hard information.
At the close of the investigation, the factual report is released. This is the most thorough and useful report. A certified copy of the factual report and the complete NTSB docket should be ordered from General Microfilm.2
Finally, the NTSB publishes a probable cause report, which is usually only a few sentences in length. It is inadmissible in civil litigation by statute.3
The NTSB investigator may be deposed once during a case, but only if the litigant can show that the investigator has factual information that is not otherwise available. A request for this deposition to the NTSB general counsel must specifically state what information the investigator possesses that cannot be obtained elsewhere, or the request will be denied.
I do not recommend spending the effort and expense to depose the NTSB investigator unless you need to elicit a specific piece of information. In a typical investigator’s deposition, he or she will merely read the factual report without providing additional information. It’s better to depose the manufacturer’s investigators, who do not enjoy the same protections of federal law.
Also be aware of the time frame in which NTSB reports are released. It has become increasingly common for the process to take years, leading to clear statute of limitations issues in many jurisdictions. Many courts have flatly refused to toll limitations statutes, even in cases where the cause of the crash or the involved parties’ identities are unknown.4 This is of particular concern, as it is not uncommon for potential plaintiffs to consider filing suit only after the NTSB determines the cause of the crash, which can be extremely difficult to do and can take a great deal of time and technical expertise.
A lawyer handling such a case must try to quickly transform the available evidence into a workable theory of recovery. For this reason, many aviation lawyers have backgrounds as pilots or engineers. Attorneys without this specialized experience must either retain an aviation lawyer as co-counsel or rely on specialized experts when evaluating a helicopter accident.
Carefully choosing appropriate experts is of the utmost importance. Pilots, mechanics, and operations -personnel are often experienced in only a few types of aircraft. Those with experience in the particular model or series of helicopter involved will contribute most to the case.
Likewise, engineering experts-crash reconstruction analysts, metallurgists, and aeronautical engineers-should be consulted with their specific helicopter background in mind. Those in the aviation field often dedicate their careers to a certain subset of the industry; a great expert in a case involving a fixed-wing aircraft may not be the best choice in a helicopter case.
In the United States, the aviation industry is heavily regulated by federal laws and regulations. One of these is GARA. Intended to invigorate a faltering general aviation industry in the United States, the statute provides a bar to claims against the manufacturers and designers of aircraft that are more than 18 years old.5
This can be a serious issue when one considers that helicopters are often in service for decades, in part because almost every component can be regularly overhauled or replaced by design. Appropriately, GARA contains a rolling provision that allows claims related to parts that are less than 18 years old.6 Determination of what components are not subject to GARA is a critical piece of research that must be accomplished early in any case involving a helicopter that was manufactured more than 18 years before the crash.
The exceptions to GARA are highly specific, and interpretations of some issues, such as whether a manual constitutes a part, vary by jurisdiction. If you are investigating a possible GARA issue, look closely at the volume of case law interpreting it.
A consideration unique to helicopter cases is the potential defendants’ adherence to the Federal Aviation Regulations (FARs), which govern aircraft operations, maintenance, and certification. The FARs are codified in Title 49 of the Code of Federal Regulations but are available from a variety of other sources published for the aviation industry. The most well-known, FAR/AIM (Federal Aviation Regulations/Aeronautical Information Manual ), is published annually by the FAA. Other publications-designed to train pilots, mechanics, and air traffic controllers-break down the regulations by specific area and offer more detailed explanation, which can be highly useful if your negligence theory involves lack of compliance.
Expect certain aviation-specific challenges from opposing counsel. Defense lawyers for manufacturers and aircraft maintainers are often experienced aviation lawyers, well versed in the areas of the law unique to aviation and well practiced at defending the products or services of their particular client. However, through careful pleading and preparation, you can avoid or at least minimize common defense traps and regular stumbling blocks.
Removal. Some of the usual defendants in helicopter cases monitor filings to see if they are named in a case. Once they see a filing, they immediately file an answer, before they are even served, and remove the case to federal court on diversity grounds. This is an exploitation of 28 U.S.C. §1441(b), which allows for removal before service on the nondiverse defendant. This procedural trickery can be avoided by either filing suit against the nondiverse defendant first, then adding the diverse defendants after the nondiverse defendant is served, or by ensuring that the nondiverse defendant is served the day the case is filed.
Federal preemption. Challenges based on federal preemption of state law are frequently employed in aviation cases. While express preemption is a concern, implied preemption is more typical in helicopter cases.
Because the aviation industry is heavily regulated, defendants sometimes successfully argue that federal law so thoroughly occupies the aviation field that “Congress left no room for the states to supplement it”7 and “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”8
The first federal regulation of note is the Federal Aviation Act of 1958, intended to centralize the rulemaking authority for safe and efficient use of the nation’s airspace and resulting in the creation of the FAA.9 The Third Circuit has interpreted the statute as preempting the entire field of aviation safety,10 but many courts have declined to follow that ruling.11
Defendants have also used the Airline Deregulation Act, which expressly preempts state law relating to the price, routes, and services of commercial air carriers,12 to suggest implied preemption over a host of aviation-related claims.13 While the Supreme Court has interpreted the statute broadly with respect to what constitutes airline “rates, routes, and services,”14 many lower courts have held the act “does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft.”15
The Warsaw and Montreal Conventions, treaties adopted by the United States that govern international flights, give rise to similar preemption arguments but are of less concern in helicopter cases than in those involving commercial airline flights because helicopters are not typically used to travel between countries given their limited range.
As the law regarding preemption in the aviation field is anything but settled or consistent, you must carefully research the state of preemption issues in your forum. Recently, in response to the large number of fatal air ambulance crashes, many state courts and agencies have begun attempts to clarify preemption in relation to the air ambulance industry, though these efforts are far from complete.16
The Supreme Court’s recent decision in Wyeth v. Levine addressed federal preemption of state law tort claims in the pharmaceutical context, finding that the minimum federal standards often relied on in preemption arguments are only a presumptive lowest standard of care.17 While this decision has not yet found its way into an aviation case, it will likely be a factor in future aviation preemption challenges.
Government contractor defense. The largest operator of helicopters in the United States is the federal government. Filing suit on behalf of a person injured or killed in the crash of a helicopter owned or operated by a branch of the armed forces or a government agency presents distinct challenges. One of these is the government contractor defense, an affirmative defense espoused by the Supreme Court in Boyle v. United Technologies Corp.18
Also known as the Boyle Doctrine, the defense is intended to insulate the government against financial liability when it contracts for the production of military equipment. To that end, liability for design defects in military equipment cannot be imposed if reasonably precise specifications were approved, the equipment conformed to those specifications, and the supplier warned of the dangers inherent in the equipment’s use. In the investigation phase of the case, it is important to attempt to identify a manufacturing defect or an off-the-shelf civilian component that is causally related to the crash.
At its most effective, this defense generally shields contractors from tort liability in actions alleging that plaintiffs sustained injuries as a result of a helicopter design defect. To further complicate matters, courts have been expanding the government contractor defense to apply to both services and products.19
Federal officer removal. In the heavily regulated aviation industry, certain actions taken by companies in the design and maintenance of helicopters constitute more than mere compliance with regulation-they are the direct result of a federal agency’s directive. In instances where the government had so much control over the defendant’s work or design that the defendant was essentially acting as a federal officer, defense counsel can seek removal to federal court through the “federal officer” removal statute.20 This is relatively common, especially in cases involving military or government helicopters.
For example, a maintenance facility that maintained a Customs and Border Patrol helicopter argued that the plaintiffs’ claims were barred because the federal government controlled the maintenance. The federal court found that the maintenance provider was required to use the off-the-shelf civilian manuals and that the defendant failed to meet the standard of the federal officer removal statute.21 Simply directing the maintenance contractor to comply with industry-wide standards does not constitute a reliance on specifications provided by a federal officer, the court said.22
Fortunately for the plaintiff, opportunities for federal removal under the statute are somewhat limited. The Supreme Court held in Watson v. Philip Morris Co. that “the fact that a federal regulatory agency directs, supervises, and monitors a company’s activities in considerable detail” does not mean the company was acting under the direction of a federal officer.23 In other words, adherence to federal regulation alone does not give rise to removal.
A 2007 decision out of the Eastern District of Louisiana, Joseph v. Fluor Corp., examines the degree to which an explicit federal direction has legal bearing on the design or manufacturing process. The court found that where the government’s procurement specifications did not establish control over the manufacturing process, the removal statute does not apply.24 In that case, a request from a government agency that the manufacturer produce units as rapidly as possible did not rise to the level of “direct and detailed control” as required.25
Taking a helicopter case to trial is, in most respects, similar to presenting any other matter involving complex products liability issues. The trial lawyer must act as the go-between, transforming technical data and expert testimony into clear issues that the jury can understand. Photos, charts, and graphics are extremely useful. Defective components, actual or exemplar, and demonstrative representations of those components can help convey to the jury the failure that caused the crash.
Where the presentation of a helicopter accident case departs from that of other civil tort cases is in the complexity inherent in helicopter operations and the relative lack of public understanding of the subject. While jurors in an auto accident case can easily apply the facts to their own experience, and any parent in the jury box can understand the trust a plaintiff placed in a product purchased for his or her young children, the same is not true in a case arising from a helicopter crash. Few jurors have flown in helicopters, and fewer still have any experience in the operation of a helicopter.
Opinions will be formed on the juror’s preconceived notions unless you work carefully to change them. For example, in many cases an official report or opposing counsel will accuse the pilot of contributing to the crash. Aside from any facts presented to support such a claim, jurors may harbor a belief that a professionally trained pilot should be capable of bringing a damaged helicopter down with minor injury.
The reality of an accident is likely very far from that belief-a pilot may have mere seconds from the first sign of trouble to guide the helicopter to the ground. In some situations, like a transmission or main rotor blade failure, there is nothing the pilot can do to prevent a terrible outcome. The very nature of helicopter flight dictates that most crashes take place quickly and are exceedingly violent. It is crucial that you effectively relate this information to the jury; expert testimony concerning helicopter operations may prove especially effective.
Helicopter crashes present unique factual and legal challenges. Thorough investigation, solid legal research, and careful planning will help any lawyer who is new to this practice area navigate the minefield of helicopter crash litigation.
Ladd Sanger is a managing partner with Slack & Davis in Dallas.
- NTSB, Federal Most Wanted List of Transportation Safety Improvements 12 (Oct. 28, 2008), www.NTSB.gov/Recs/Mostwanted/FedMWLPPTwebfinal.pdf.
- 49 U.S.C. §1441(e) (2006); Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
- See e.g.Hertz v. U.S., 560 F.3d 616 (6th Cir. 2009).
- Pub. L. No. 103-298, 108 Stat. 1552 (1994).
- 49 U.S.C. §40101 (2006).
- Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
- Gade v. Natl. Solid Waste Mgt. Assn., 505 U.S. 88, 98 (1992).
- Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731 (1958) (codified at 49 U.S.C. §40101).
- See Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999).
- See e.g. Sakellaridis v. Polar Air Cargo, Inc., 104 F. Supp. 2d 160 (E.D.N.Y. 2000).
- 49 U.S.C. §41713(b)(1) (2006).
- Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784 (6th Cir. 2005); Eagle Air Med Corp. v. Colo. Bd. Health, 570 F. Supp. 2d 1289 (D. Colo. 2008).
- Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992).
- Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995).
- R. Michael Scarano & Bill Bryant, Federal Preemption of State Regulation over Air Ambulances, 28 Air Med. J. 77 (2009).
- 129 S. Ct. 1187 (2009).
- 487 U.S. 500, 512 (1988).
- Saleh v. Titan Corp ., 2009 WL 290281 (D.C. Cir. Sept. 11, 2009).
- See 28 U.S.C. §1442(a) (2006).
- Takacs v. Am. Eurocopter, L.L.C., 2009 WL 3026824 (W.D. Tex. Sept. 23, 2009).
- 127 S. Ct. 2301, 2302-03 (2007).
- 513 F. Supp. 2d 664 (E.D. La. 2007).
- Id. at 671.