GARY C. ROBB
Product Safety & Liability Reporter
Helicopter crashes within the United States are occurring with alarming frequency. Since 2001, the accident rate for civil helicopter use per 100,000 flight hours has been 40 percent higher than that for general aviation fixed wing aircraft.1 One-half of the entire worldwide civil helicopter fleet operates in the United States and 36 percent of all accidents occur here.2 A plaintiff’s lawyer may have experience in litigating an airplane crash case, but sooner or later that lawyer will be called upon to handle a helicopter crash lawsuit.
The unique flight capabilities of a helicopter permit it to engage in missions that are virtually impossible for any fixed-wing aircraft. Primary among these is the helicopter’s ability to hover as well as its capacity to land on any flat terrain without a runway, fly ultra-slowly, or even into reverse, and vertically climb or descend quickly.
The unique flight missions of helicopters tend to stretch both the aircraft performance as well as the pilot’s operational capability. These challenging and potentially hazardous flight regimes include urban law enforcement, border patrol, air ambulance, news-gathering, logging, fire-fighting, and sightseeing operations.
Helicopters are very difficult to fly. They are inherently unstable aircraft with a significant delay in the response time from the pilot control inputs. Helicopter pilots must learn to anticipate wind effect and gust load conditions and compensate for them in advance.
The typical helicopter flight mission places an already difficult-to-fly aircraft into an even more difficult and hazardous environment. The causes of helicopter crashes are markedly different from the causes of airplane crashes because of their unique and even peculiar design, flight, and handling features combined with their commonly high-risk mission profiles.
Given the unique flight and performance characteristics, failure modes, and crash scenarios of helicopters, the following comprise 10 indispensable steps toward maximizing the prospects of success in helicopter crash litigation.
1. Learn the Basics of Helicopter Flight and Operation
Attorneys who have never before handled a helicopter case would be wise to spend a day at the local flight center talking to helicopter pilots and learning the basics of helicopter flight and operation. It is especially useful to ask a local mechanic to explain the various control systems of the helicopter.3
The most common type of helicopter is a single main rotor/tail rotor design. The main rotor is affixed to the top of the aircraft and produces lift and thrust. The tail rotor operates to counteract the torque or circular force of the main rotor. The most common helicopter models of this type are Bell Jet Rangers, Eurocopter AS-350’s, and the Sikorsky S-76.
Pilot operation of a helicopter is by means of a collective control and a cyclic control. The collective control “collectively” raises and lowers the pitch of the main rotor blades. When the pitch for all of the main rotor blades is adjusted equally, this is known as collective pitch. The collective is used to control lift produced by the main rotor system.
The cyclic control is literally “cyclical” in that it will raise and lower the main rotor blades independently of one another. The cyclic controls the direction of flight by tilting the main rotor system in the desired direction. The cyclic also allows the pilot to hover, which is simply maintaining the helicopter over a single spot. One way to think of the main rotors is that “the helicopter is just going along for the ride.”
Finally, in addition to these main rotor pitch controls (collective and cyclic), most helicopters have rudder pedals similar to a fixed-wing airplane. However, instead of actually moving a control surface on an airplane’s wing or vertical stabilizer, the movement of pedals in a helicopter alters the pitch of the tail rotor blades only. This serves to counteract the torque produced by the main rotor, which permits the pilot to determine the forward direction of the helicopter.
2. Interview All Eye and Ear Witnesses to the Helicopter Crash
In so many instances involving an airplane crash, the ground witnesses report “the plane sounded like it was running out of gas,” or the very common “the plane’s engine was sputtering.” As important as this testimony, comparable recollection in a helicopter case may reveal both how and what caused the helicopter to crash. These on-scene fact witnesses should be interviewed and statementized promptly after counsel’s retention. This aspect of the factual investigation can – – and should – – be accomplished before filing suit.
Two recent case examples demonstrate this point. A helicopter crash in the Grand Canyon killed six and left a horribly injured survivor. The cause of the crash was a mystery. No ground eye or ear witnesses could be located.
The NTSB investigator interviewed the only survivor, a young woman. She described how the helicopter “just dropped” and the “the quiet was deafening.” Utilizing this information, plaintiff’s experts were able to pinpoint a potential flaw in the main rotor drive system by reason of a simple truth: while inside a helicopter in-flight, the predominant noise is not that of the engine, it is the whirling of the main rotor blades.
The crash of a LifeNet helicopter in Nebraska also would be a mystery but for the carefully recorded observations of ground eye and ear witnesses to the crash. The experienced pilot reported to air traffic control a “binding in the right pedal,” and moments later the helicopter crashed on the tarmac.
Numerous eyewitnesses reported that the helicopter, prior to impact, was circulating “in a clockwise fashion.” That observation clearly implicated a classic LTE (loss of tail rotor effectiveness) and the subsequent NTSB Report and plaintiff’s experts confirmed a manufacturing defect in the tail rotor system.
3. Determine the Most Likely Cause(s) of the Helicopter Crash
Counsel’s initial objective upon retention in any helicopter crash case must be to assess the most likely cause or causes of the helicopter crash and the resultant injuries or deaths. Sometimes this is self evident from eyewitness reports; many times it is not. Only by identifying the potential causes can counsel properly identify the potential defendants responsible for the helicopter crash and frame initial discovery to ferret out the claims.
The most common causes of helicopter crashes are as follows:
(a) Loss of Main Rotor Control. As the main rotor is the only source of lift, an inability to control either its rotation or pitch will result in a loss of control and subsequent crash.
Loss of main rotor control is most commonly due to either a swashplate (linkage control) malfunction or a hydraulic system failure. If the swashplate cracks or becomes separated from any of its pitch change rods, the pilot will be unable to provide the required input to the main rotors. Such a malfunction also prevents any autorotation maneuver which is an emergency procedure designed to take advantage of the inertia of the main rotors in reaching a survivable landing.
(b) Loss of Tail Rotor Effectiveness (LTE). Numerous helicopter crashes are due to LTE. A loss of tail rotor effectiveness means that the pilot is unable to control the tail or “anti-torque” rotor, which would normally cause the helicopter to spin in the opposite direction of the main rotor blade. At low altitudes, that loss of control is dangerous because the pilot is unable to maneuver the aircraft into a “run-on” landing.
The tail rotator malfunction may come about because of a loss of hydraulic pressure, a kink or fracture in the control cable, or a leak in the hydraulic servo or accumulator.
Loss of tail rotor effectiveness is not necessarily caused by equipment malfunction and may occur in a heavy or fully loaded helicopter traveling at low airspeed which encounters certain weather or wind conditions. The effects of the wind may counteract the force of the tail rotor and result in that rotor’s failing to provide enough thrust to counteract the opposite rotation of the main rotor.
(c) Main Rotor Strike to Fixed Obstacle. While the hovering capability of a helicopter is a unique advantage, it is also a unique hazard. Whether a police chopper is hovering next to a building in observation of criminal activity or a scenic helicopter hovers next to a glacier in Alaska or a waterfall in Hawaii, the danger of an inadvertent main rotor strike to a fixed object is ever present.
The slightest imbalance between the collective and cyclic controls by the pilot or an unexpected gust of wind or downwash from the main rotor can cause a lateral movement of the helicopter with no warning and no time to recover. A recent helicopter crash in the Grand Canyon was caused by precisely such a scenario. The pilot hovered perilously close to the canyon wall and the tip of a main rotor blade struck a rock. The helicopter plummeted several hundred feet and crashed, killing all aboard.
(d) Helicopter Component Part Failure. It is said that everything in a helicopter vibrates excessively including the passengers. That excessive vibration is not without safety consequences.
The excess vibratory stresses inherent in the design and structure of a helicopter lead to increased metal fatigue and cracking of safety-critical components. The added fatigue and stresses on critical components led the FAA to designate shorter retirement lives for certain helicopter component parts. Excessive vibration often has led to catastrophic component failure with no prior warning, involving, for example, a cracked gear tooth, a cracked rotor blade, a crack within the internal combustion engine, or failed bearings.4
(e) Helicopter Engine Failure. Just as for fixed-wing aircraft, engine failure is a potentially cataclysmic malfunction. If the engine failure occurs over an area where the pilot may utilize the autorotation maneuver, then it need not result in a fatal crash.
All too often, however, the operating mission of the helicopter and the location and altitude of the engine failure renders autorotation all but impossible. This can occur if the helicopter is traveling over water or a dense forest or even in the middle of a large city with a highly dense downtown building structure.
The causes of helicopter engine failure run the gamut from poorly designed nozzle guide vanes (NGV) to faulty fuel control or fuel pumps, and component metal fatigue/cracking.
(f) Wire Strike Incidents. The various usages of helicopters often mean that they tend to fly at much lower altitudes than fixed-wing aircraft. Low altitude flights include local traffic and news reporting operations, air ambulance services, film production, and law enforcement. It is for this reason that helicopters are much more frequently involved in wire strikes or contact with utility power lines which may be all but invisible to the helicopter pilot.
Helicopters performing at low altitude environments will typically be equipped with wire strike protection systems (WSPS). These systems are wire cutters affixed above and below the fuselage to keep a wire from catching the main rotor mast or the skids.
Utility lines in a moderate to heavy air traffic vicinity should be marked by the utility company. The use of bright red or orange-colored spheres placed on utility lines will alert helicopter pilots as to the location of the line and serve to prevent such wire strike incidents. Indeed, utility companies are often named in such wire strike cases for failing to adequately mark their power lines where the visibility is suspect. For example, if the utility is aware of aircraft flying in the vicinity of its power lines, it should mark those lines.
(g) Pilot Error. Even with strong evidence pointing to a pre-impact mechanical malfunction, the pilot’s qualifications, medical condition, and piloting actions will be meticulously scrutinized in every helicopter crash lawsuit. This is so whether that pilot or his or her employer is a defendant or plaintiff. Common errors committed by helicopter pilots in addition to those referenced earlier (main rotor strike, wire strike) include loss of situational awareness, loss of visibility, unintended ground impact, exceeding gross weight limits, and flying in hazardous weather conditions.
Medical examiners will perform toxicological testing upon the body of a deceased pilot for alcohol or any other performance-reducing drugs. Such tests must be done early on so that counsel may assess the legal ramifications of positive test results. Positive and significant drugs or alcohol in the pilot’s system affects the entire case because that drug/alcohol usage distracts the jury’s attention from any other mechanical problem such as rotor or engine failure or linkage malfunction.
4. Assess Survivability and Crashworthiness Issues in Every Helicopter Crash
Plaintiff’s counsel must assess the level of occupant safety protection in a helicopter crash for any contributing cause to the injuries or death. In any helicopter crash sequence, there are four such criteria for survivability:
(a) Occupant Protection. Counsel must assess whether any aspect of the interior passenger compartment contributed to cause any of the occupant injuries such as an unwarranted protrusion, an unpadded interior cabin wall, inadequately cushioned seat, or even a broken seat bracket. For example, in air ambulance helicopters the interior is substantially modified with the installation of medical equipment and patient beds which can be a source of injury to the occupants on impact. Counsel also must examine whether any design deficiency or poor construction of a helicopter helmet contributed to an occupant’s head trauma.
(b) Restraint Systems. Evaluation of the entire restraint system includes examination of the seatbelts and shoulder harnesses for proper function and for utilization. The same crashworthiness principles apply to improper or inadequate safety restraint systems in helicopters as in any motor vehicle but specialized experts with experience in the aviation arena are critical.
(c) Structural Integrity. The helicopter crash load as experienced by each occupant must be analyzed as to whether the impact was within human tolerance levels. The structural integrity of the helicopter should permit crash survival on “hard landing” or moderate impact forces. As always, there is a critical trade-off as between the structural integrity of a helicopter and the permissible payload or weight certified for a particular helicopter.
(d) Post-Impact Fire. Many helicopter crashes result in a fire which may engulf the cabin. In that many helicopters utilize a fuel tank location directly beneath the helicopter passenger compartment, counsel must assess whether the fuel tank met minimal crashworthiness specifications. The fuel tank and fuel pump design also must be examined as contributing to cause any helicopter post-crash fire or explosion. The ability of the fuel tank to withstand puncture or tear forces on impact can dramatically improve the prospects of avoiding any post-crash fire.5
5. Given the French Domination of the U.S. Helicopter Market, Be Prepared to Conduct Extensive Discovery in France
The U.S. helicopter market is dominated by Eurocopter, SAS of Marignane Cedex, France with almost 50 percent of the market share.6 In that almost all Eurocopter aircraft utilize French-made Turbomeca engines, any engine-related malfunction will have its genesis in France as well. That history largely dates back to the early years of the helicopter and its development which was largely due to French invention and research efforts.7
Many courts will require that depositions of a foreign defendant’s agents or officers take place at the location of the defendant’s foreign headquarters.8 Some courts have gone so far as to require that document productions also take place at the foreign manufacturer’s facility.9 The upshot is that plaintiff’s counsel must have a current passport because travel to France will be necessary in the handling of a great many helicopter crash cases.
In most instances, critical engineering documents are in French. Where these documents already have been translated for defense counsel or its insurer, Plaintiff’s counsel should ask for and receive those translations and should, in fairness, pay a reasonable portion of the translation fee. Otherwise, translation of those documents should be assessed as costs as these are expensive and time-consuming translations which are very technical in nature.
It is the author’s experience that most of these French executives speak fluent English. How else could they so easily confer with their American, English-only speaking defense counsel? Counsel may offer to have a French translator present at the deposition if the witness requires any assistance. If the witness is truly not fluent in English, then it will be necessary to have the deposition questions and answers translated by an experienced English-French translator.
6. Utilize Freedom of Information Act (FOIA) Requests to Conduct Discovery in U.S. Military Helicopter Crashes
The U.S. military is the largest user of helicopters in the world with approximately 6,000 units in its fleet.10 Different considerations apply when the helicopter involved in a crash was utilized by the military. In such cases, the accident investigation is performed by the particular military branch involved and is governed by the rules and regulations of that service branch.11 The NTSB will not routinely involve itself in a military aircrash investigation.
Pre-trial discovery in these cases necessitates the acquisition of the military aviation accident report and other military-related information by use of the Freedom of Information Act.12 Moreover, U.S. military information on helicopter specifications and similar accidents is usually delivered (if at all) only in connection with very stringent protective and confidentiality agreements.
In cases asserting any design defect or failure to warn against the manufacturer of military helicopters or components thereof, the manufacturer will seek protection under the “government contractor defense.”13 That defense immunizes the provider of military equipment which conformed to the government’s specifications.14 Combat-related helicopter crash cases are non-recoverable. If a helicopter crash occurs while under enemy fire, the “combatant activities” and “risk of war” defenses are insurmountable.15
7. Retain Experts with Specific Training and Experience in Helicopter Accident Investigation and Failure Analysis
The often-used airplane mechanic or pilot will not work in helicopter crash cases. Maintenance of helicopter systems and engines and piloting of rotorcraft are highly specialized and generic flight experience is inadequate. In most helicopter actions, the primary team of liability experts will include a metallurgical failure analysts, an aircrash accident reconstructionist, and a certified airframe and power plant mechanic who has vast experience with helicopters. Counsel almost always will need a helicopter pilot as well if there is any potential issue concerning the proper operation of the helicopter.
At a minimum, helicopter maintenance experts should possess several years of A & P (airframe & power plant) experience in dealing with the most common helicopter models. Helicopter piloting experience should be in the specific type of helicopter as the crash aircraft or as close as possible, and should include extensive flight training and operation as well.
The final flight path, impact angle, and impact speed of the helicopter can be reconstructed by analyzing the impact position of the helicopter wreckage, ground markings, and rotor blade strikes on trees or other objects. The rotor blades will yield much useful information based on the depth and direction of scratches or gouges, including whether the engine was supplying full power at impact. Plaintiff’s team of experts should be well versed in this analysis based on training and experience in the field of helicopter accident investigation and reconstruction with either a solid military or civil helicopter background. No greater damage to plaintiff’s expert could be inflicted than a positive response to the question “And, sir, this is your first experience whatsoever with any helicopter or helicopter crash, correct?”
8. Arrange for Purchase of Exemplar Helicopter Components and Systems for Comparative Testing
Once plaintiff’s experts have isolated a particular theory of malfunction or defect, it is imperative to obtain sample components or a system for comparative testing. Although this type of comparative testing is important for establishing a mechanical malfunction in fixed-wing aircraft as well, it is critical in helicopter litigation in order to rule out certain types of pilot error as well as to confirm the specific failure mechanism.
Counsel must always be prepared to explain why the pilot did not safely land the aircraft by use of an “autorotation” maneuver. Autorotation is the use of the inertia of the main rotor blades to bring the helicopter to a controlled landing. Wherever the main rotor blades are intact during helicopter engine failure, defendants will invariably claim that the pilot should have been able to safely land the helicopter by autorotation.
9. Use Actual Components from Helicopter Wreckage to Demonstrate Product Defect
Where a helicopter crash is a direct result of a component or system malfunction, no better evidence can be brought to court than the actual component or particular control system that failed. In that regard, it is useful to obtain an exemplar component to literally lay side-by-side with the actual failed component for maximum visual impact to the jury.
To that extent, plaintiff’s counsel may point out that the best witness in the courtroom is the failed component. Whereas each side has their own expert witness on a number of issues, the objective finding of defect visible in the subject component or system carries the persuasive day. Morever, counsel’s bringing actual components from the helicopter wreckage to trial imparts to the jury a sense of the realism and extent of the crash and also forces the jury to hone in on the specific mechanism of failure.
At trial, counsel should have a scale model of the accident helicopter in its pre-crash condition. That model should be used to depict the basic aerodynamics of helicopter flight as well as to illustrate the crash scenario. Photos alone cannot bring home the sensation and perception of having been a passenger in the aircraft during the crash sequence. For these reasons, counsel should strongly consider requesting a jury view of the helicopter wreckage. Nothing imparts to a layperson the force and devastation of impact more than a view of the actual accident aircraft.
10. Teach the Jury about Helicopter Flight and Operation in Opening Statement and Throughout Trial
During trial, counsel should make every effort to explain and simplify the unique aspect of helicopter flight. Few jurors will have any conception of the flight characteristics of a helicopter and may look askance at anyone who would pilot or voluntarily fly in a helicopter.
Counsel cannot assume that jury has any understanding or experience at all as to the flight characteristics of a helicopter or its manner of operation. For this reason, plaintiff’s counsel must devote a significant portion of the opening statement to teaching the jury the very basic elements about helicopter flight and de-mystify helicopter flight and operation.
In this respect, we have come full circle from the first indispensable step which is counsel’s own education into helicopter flight and control. Just as counsel must acquire the basic knowledge to handle the case, the jury (and court) must have a basic understanding of helicopter flight to decide the case.
Depending on the circumstances of the case, it may be useful to establish the potential advantages for that particular use of the subject helicopter. Counsel must combat any tendency of the jury to find that the injured or deceased occupant “simply assumed the risk” by climbing into that helicopter in the first place.
This brief introduction about helicopter flight should specifically address the operating characteristics of the target component or system with a careful overview of how that component or system should have operated. Only then should counsel proceed to a discussion of what went wrong and how that malfunction resulted in the helicopter crash.
By following these 10 steps in the handling of any helicopter crash case, plaintiff’s counsel can maximize the prospects of success. By focusing on and addressing those aspects of helicopter flight and operation which render it unique from fixed-wing aircraft, counsel will overcome much of the anti-helicopter bias and resistance held by most jurors as they walk into the courtroom. In so doing, counsel may expect to hear the five most beautiful words in the English language: “We find for the plaintiff.”
Mr. Robb is a partner with Robb & Robb LLC in Kansas City, Mo. He is the current chair of the ATLA Aviation Law Section and past co-chair of the Aviation Committee of the ABA Section of Litigation. He can be reached at firstname.lastname@example.org