Gary C. Robb
It’s 2:30 on a Tuesday afternoon when your phone rings. The caller wants to retain you for an aviation crash case. Whether the collision involves a Cessna 206, a Bell helicopter, or a Boeing commercial airliner, once you agree to accept the case, your first thoughts should focus on preserving the aircraft and related parts and immediately hiring the aviation experts you will need to handle the case successfully.
Aviation litigation involves a broad range of expert witnesses. You may need to enlist the help of an air traffic control expert one day, an airframe and power plant mechanic the next, then an engine-design expert and a metallurgist – – all in the same case.
Carefully coordinating the various liability and causation experts will help you advance the plaintiff’s factual theory of the case and fend off the anticipated defense counterattacks.
At the outset of your investigation, consider retaining a non-identified consultant who will assist you throughout the suit but will not testify. Such behind-the-scenes experts may be former government or airplane industry employees. The most useful consultants understand the industry, know the companies, and are familiar with their key personnel.
There are many advantages to retaining an expert who can provide inside information. Given that you have finite time and money, an industry consultant may keep you from chasing dead-end leads regarding factual theories and witness location. Because an identified expert’s work product is not protected from discovery, bouncing ideas and theories off a consultant whose work is protected will be enormously valuable. Also, the consultant can serve as a background tutor and provide critical resource materials to help you understand factual theories.
Before focusing on the precise areas of expertise needed, start with the potential cause of the crash. Your checklist should include:
pilot error—insufficient training, a medical condition, alcohol or drug use, insufficient rest, or operational error;
mechanical malfunction—power plant failure such as a fuel problem, oil leak, metal fatigue, or part breakage; flight instrumentation malfunction such as the primary attitude indicator, throttle control, rudder pedals, or other avionics; or aircraft control failure such as the fuel control, rudder cables, deicer controls, landing gear, or flaps, possibly due to maintenance or repair errors;
environmental or external factors—weather, radar, air traffic control, fuel quality, lift-off weight, or the condition of the runway.
An aviation expert can help you assess the most probable cause and rule out alternative causes. As the investigation progresses, you should hire experts as needed to help develop the case.
Precisely when you do so depends largely on when you are retained. If you are hired early, while the National Transportation Safety Board (NTSB) is still analyzing the aircraft’s critical components, you should consider immediately hiring any experts who may be retained by the defense—because many well-known and highly qualified aviation experts testify for both plaintiffs and defendants.
If you have access to the aircraft, engine, and other critical components, have your experts examine them. Early inspection can yield several tangible benefits, including the identity of potential defendants. The sooner you identify defendants, the sooner you can draw up and file the lawsuit. Early inspection may also pinpoint areas where you need specialized expertise. And it can bring into focus areas to explore in interrogatories and document requests.
Experts should do no testing that could be potentially destructive to the aircraft or any parts without a testing protocol that has been reviewed by all counsel and approved by the court. The testing protocol should include, at minimum, the presence of all counsel of record with their own experts, as desired, and a list of the specific parts to be metallurgically cut or otherwise altered. The protocol should list all testing, such as scanning electron microscopy (SEM), pressure checks, and chemical analysis.
Federal Rule of Civil Procedure 26 requires experts to prepare a detailed report of their opinions and the grounds for them. Some district court judges require copies of the report well before trial. This is another reason to complete as much of the liability investigation as early as possible.
If the aircraft or engine wreckage is not available for your inspection, you may not be able to select and retain experts as early as you would like to. You may simply have to make an educated guess about the types of experts that you will need. Look to accident photos and reports from the media, responding police and fire departments, witnesses, and survivors or family members.
You and your liability experts will rarely have the benefit of early access to the aircraft wreckage or components, because the items will be in the NTSB’s custody. At present, the agency retains aircraft and critical components for 6 to 18 months. Because many states’ statutes of limitations are as short as two years, you may need to pursue other avenues of investigation as you prepare the case.
Coordinate with the NTSB. One such avenue is to ask the agency whether your experts may conduct a “hands off” visual inspection of the wreckage and parts. The NTSB has been sympathetic to plaintiffs’ statute-of-limitations concerns and often grants such access because the aircraft manufacturer and insurance-industry representatives are probably parties to the NTSB investigation team and have access to the wreckage.
The NTSB has also recently permitted plaintiff experts—but not counsel—to witness the engine “teardown.” This is done, under the agency’s authority, at the engine manufacturer’s facility whenever agency investigators suspect an in-flight loss of engine power. Plaintiffs have a better chance of having a representative attend if they, their family, or their employer owns the aircraft. The teardown is an invaluable opportunity for your expert to examine the engine for indications of internal failure and enhance his or her credibility as a witness.
Visit the accident scene. The crash site is also a fertile area for investigation. Retain an airplane crash reconstructionist as early as possible to carefully examine, diagram, and photograph the accident scene.
A seasoned crash investigator can learn a great deal at the scene. Such an expert can assess the angle of descent based on tree damage or damage to brush on the ground. The scars of ground impact can reveal other details, such as the aircraft’s speed at impact and rate of descent, as well as whether the aircraft was spinning or flat and whether its wings were level. Burn or scorch marks may indicate a postimpact fire, and their location may point to a particular engine or the fuel tank as the source.
Usually, the NTSB on-scene crew will have picked up and crated most of the crash wreckage. At some sites, however, private experts have discovered critical components embedded at the scene or dispersed some distance away—and that proved essential to determining the probable failure mechanism.
Mine other sources for facts. You may find it advantageous to depose the investigator in charge of the NTSB investigation, which the agency must formally approve. This testimony may yield factual observations made during the investigation but not included in the agency’s report.
It is important to depose the NTSB investigator before you produce your liability experts for testimony. Although the NTSB’s goal is to perform a thorough accident investigation, agency investigators have missed crucial evidence at some scenes and failed to inspect flight- control or engine components of some aircraft for signs of in-flight failure. Because the jury will perceive the NTSB team as neutral and objective, you must thoroughly explain and reconcile any discrepancies between its findings and those of your experts.
For every aircraft accident, the local police and fire departments will issue reports on the time and location of the crash, weather conditions, rescue efforts, and passenger injuries. While their quality varies, these reports often include photographs that may provide clues and detail wreckage dispersement. The reports may also include eyewitness interviews that may describe the flight path, unusual engine noises, the presence of smoke or fire, and the plane’s descent and impact.
An expert’s conclusion that there was no in-flight or postimpact fire and that the aircraft’s angle and speed of descent suggest a survivable impact may indicate that the aircraft’s crashworthiness should be questioned. Retain an expert on aircraft restraint systems to study the sufficiency of the seat belts and shoulder harnesses, seat-bracket attachments, seat and seat back design, and other crashworthiness factors.
In every aviation lawsuit, the pilot’s qualifications, health, and actions will be scrutinized. This is true whether the pilot or his or her employer is a defendant or plaintiff. Medical examiners will usually test for alcohol or other performance-debilitating substances. The complete autopsy protocol normally includes a test for carbon monoxide poisoning as well. Review the results as early as possible; the presence of any drug in the pilot’s system colors the entire case because it diverts attention from any other problem, such as a mechanical malfunction.
Before filing suit, be alert to federal and state statutes of repose. In addition to the applicable statute of limitations, you must also assess whether a statute of repose applies under the General Aviation Revitalization Act of 1994 (GARA). The act created a federal 18-year statute of repose that applies to all general aviation aircraft. If the aircraft, engine, or part at issue was manufactured 18 years or more before the accident, the GARA statute bars the action. On its face, this statute stands as an absolute bar to what may otherwise be a meritorious cause of action.
The GARA statute does have a few exceptions, however—including when:
Retaining experts early gives them ample time to fully digest all the materials inherent in aviation cases and to perform other investigative tasks before they finalize their opinions and give deposition testimony. It is unrealistic to provide an expert all the case materials and expect him or her to provide final opinions or deposition testimony in a few short weeks.
Materials that the experts should examine include all photographs of the crash site, aircraft, engine, and other components and any photographs of NTSB testing. The experts must study the maintenance manuals, the manufacturer’s or owner’s manuals, the operating handbook, the pilot’s log, and other pertinent written records.
Additional material for review includes service difficulty reports (SDRs), federal aviation regulations (FARs), and all NTSB reports. The liability expert will need to inspect the aircraft, engine, or component parts, and extensive follow-up testing may be necessary.
The expert must also have sufficient time to review the depositions of critical fact witnesses and the defendants’ representatives and engineers. Ideally, consulting with your expert before you depose defense witnesses can help you develop lines of inquiry and technical expertise.
In most cases, the core team of experts will include a metallurgical-failure analyst, an accident reconstructionist, and a certified airframe and power plant mechanic. You may also need a pilot or flight-systems expert, depending on the case.
Other experts who can round out your team may include damages witnesses, such as experts on “pre-impact terror,” conscious pain and suffering, burns and smoke inhalation, and economic losses.
When you select experts for an aviation case, keep in mind their education and background. For example, a metallurgist should have a doctorate degree in that subject or a comparable field, such as materials strength. Also consider the expert’s ability to communicate effectively with a jury, experience in the aviation industry, and familiarity with the particular aircraft, engine, or component at issue.
From plaintiff counsel’s standpoint, an expert is even more valuable if he or she has analyzed the same failed product in another case or handled a similar aircraft crash before. This not only enhances the expert’s credibility, but also saves time and money because you do not need to bring the expert “up to speed.”
Former NTSB and FAA officials can be excellent expert witnesses. They are familiar with the personnel, protocol, and jargon, and their government service gives them added credibility. Most express aviation concepts in understandable ways.
Here are some additional areas of expertise you may need:
aircraft certification and airworthiness of aircraft, engine, or component parts
aircraft electrical and wiring systems or aircraft fuel and propulsion
avionics (radio or global positioning system instrumentation), aeronautics (use of gyroscopes and other self-contained apparatus), and flight instrumentation (radar, altimeter, and digital gyroscope)
manufacturing processes, material strength, and structural fatigue and integrity
vibrational or torqueing issues or welding and metal properties
weather and meteorological issues.
The role these experts play should not end with their deposition or trial testimony. Your expert team should be part of the ongoing discovery process. Index all documents received from the defense and forward them to your expert team. The team can then pinpoint critical documents or point to documents that are needed or missing. The experts can also highlight documents that will help you depose the defendant’s engineers and executives.
Coordinate your experts’ opinions to identify and resolve any inconsistencies or irregularities before you permit the defense to depose them. Having all experts agree on a single failure mechanism and the timing and sequence of the failure is essential to plaintiffs’ success on liability.
Take care not to let defense counsel stretch an expert beyond his or her area of expertise. When preparing the expert for deposition testimony, clearly delineate the boundaries of his or her expertise— where one expert’s area ends, another’s begins. The experts must be comfortable with this and be prepared and willing to tell defense counsel that they cannot and will not testify outside of their area.
As with any complex products liability lawsuit, you should use the liability expert’s deposition as the “midterm examination” to help prepare for the final exam: trial.
Before offering up your experts for deposition, assemble all support documents and depositions of relevant fact witnesses, defendant engineers, and corporate representatives. Work with each expert to assemble a list of all the materials that he or she reviewed, including depositions, litigation-generated documents, other resource materials, notes, and results of any inspections or tests performed on the wreckage or parts. The expert can then have a list of opinions and index of supporting documents with him or her at deposition.
Before the deposition, confer with the expert about demonstrative aids that may enhance his or her testimony at trial. In some jurisdictions, the opposing party can challenge the admissibility of such aids if they are not disclosed at the expert’s deposition, so produce all exhibits at deposition.
Computer-generated animation is often useful in presenting the testimony of an accident reconstructionist or flight-path expert. This requires extensive advance planning, as the expert must review non-quantifiable assumptions that the animation team made in creating the presentation. Doing so allows you to clear any potential challenges to admissibility and firm up foundational prerequisites, such as flight path and altitude.
Time-tested techniques for presenting complex expert opinions to a jury apply to aviation cases. Educate the jury on the underlying field before you introduce defect and negligence theories. Explain how the engine or instrument should work before focusing on what went wrong.
After laying the factual foundation, you can “bring home the opinions” for which the expert was retained so early on and upon which the plaintiffs case ultimately is based. Be sure to make ample use of demonstrative evidence and explain all aviation nomenclature. For example, do not use industry acronyms such as SDRs and FARs. And always couch the aviation expert’s ultimate opinions in the same language as the jury instructions.
Working with aviation experts is a unique challenge. Complex disciplines and extensive materials must be understood, digested, reviewed, analyzed, and, finally, explained to a jury.
General principles for hiring and retaining experts apply. But when handling an aviation crash case, you must be prepared to deal with numerous subject matters and to coordinate these areas of expertise into one seamless presentation at trial.
FED.R.CIV.26(a)(2)(B); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
49 C.F.R. §835.6(a) (2002).
42 U.S.C.A. §40101 note (West 2002) (Notes of Decision – General Aviation Revitalization Act).
See id. §2(b)(1)-(4).