By Melissa C. Heelan
Law Reporter
10/1/2008

Scollard v. Eurocopter, S.A.S., Neb., Lancaster Co. Dist., Nos. CI-02-2621, CI-02-2622, and CI-02-2620, Apr. 1, 2008.

Medical helicopters play a vital role in quickly transporting patients from accident scenes to hospitals, where they can receive life-saving care sometimes hours before it would otherwise be possible. A defect in a medical helicopter, however, not only prevented it from carrying out such a mission, it also claimed the lives of three emergency responders.

After takeoff, the pilot, Philip Herring, radioed that he was having a binding problem with the pedal that controlled the pitch of the tail rotor. Shortly after, wit­nesses saw the LifeNet medical helicopter spin out of control and crash. Philip, 43, died on impact. Both flight paramedic Patrick Scollard, 40, and emergency room nurse Lori Schrempp, 41, survived the impact. Patrick, who was able to talk, was crying out in pain for about five to 10 minutes after the crash as he lay in the wreckage. Emergency providers at the scene were hesitant to approach the wreckage because the helicopter was spew­ing fuel, and they were afraid it would blow up. They eventually reached Patrick and Lori, but both died en route to the hospital.

The three responders were survived by their spouses. Patrick was also survived by three children, and Lori by two. All were minors at the time. Each of the responders had been earning approximately $60,000 annually.

After the crash, Philip’s wife, Pamela, contacted AAJ member Vincent M. Powers, of Lincoln, Nebraska, who asked AAJ member Gary Robb, of Kansas City, Missouri, to help with the case. Powers knew that Robb, a past chair of AAJ’s aviation law section, could bring vital expertise to a case involving very technical crash details.

Pamela and the other surviving spouses- Jeffrey Schrempp and Tammy Scollard-individually and on behalf of the estates, sued six companies that manufactured and maintained the helicopter and its parts. Suit against Eurocopter, the helicopter manufacturer , alleged that the crash was caused by a defective accumulator-a tail rotor component containing charged nitrogen gas that is designed to accumulate and reserve control power in the event of a loss of hydraulic power.

The spouses alleged that a rubber bladder in the accumulator developed a hole, permitting nitrogen gas to mix with and dilute the hydraulic fluid in the helicopter’s main hydraulic system, which in turn prevented the pilot from using the pedal control to maneuver the tail. Specifically, the spouses claimed that the hole in the bladder resulted from the interaction between the rubber bladder and the rough, untreated metal on the inside of the accumulator container. They asserted that the inside of the container should have been smoothed so that it did not contact the bladder’s rubber edges. A tail rotor ‘s function is to keep the helicopter straight, Robb says. When the witnesses observed the helicopter spinning out of control right before it crashed, this was a “classic sign” of a failed tail rotor.

Suit against the manufacturer also alleged negligence in specifying an inadequate maintenance schedule for the accumulator that called for its inspection every 500 hours. The spouses asserted that the protocol should have been to inspect the part every 100 hours.

They also sued the two manufacturers of servos in the helicopter ‘s hydraulic system, alleging they were overly sensitive to changes in hydraulic fluid pressure and therefore incapable of properly handing the pressure changes. They alleged the components’ failure to maintain adequate hydraulic pressure partially contributed to Philip’s inability to maintain control of the helicopter.

Suit against the company that leased the helicopter alleged it had provided the aircraft in a defective condition. Finally, the spouses sued a maintenance operator, asserting improper maintenance.

Tammy, Jeffrey, and Pamela were prepared to present expert testimony that their spouses suffered pre-impact terror or conscious apprehension of impeding death – an element of damages under Nebraska law – during the 30 to 45 seconds they knew that the helicopter was going to crash.

The parties settled before trial, however, for $18.4 million, which includes recovery for lost earnings; loss of love, affection, and companionship; and their loved ones’ loss of enjoyment of life. Defendants’ contributions to the settlement and the apportionment among the plaintiffs are confidential. Commenting on the settlement, Powers said that “For Nebraska law, it was a miracle recovery and has certainly raised the bar on what is a fair recovery for a wrongful death case.”

More significant than the monetary award is Eurocopter’s pledge to change its maintenance protocol to require that the accumulator be inspected every 100 hours. The company has kept its word, says Robb, and “all the families are much happier about this remedial action than they ever could be with the monetary award. They commend Eurocopter for its ethical and responsible action.”

The company also plans to evaluate the helicopter’s tail rotor system design to determine whether the accumulator assembly can be eliminated. This process is allegedly underway. Robb stressed how both sides worked together toward this resolution and commended Eurocopter. “If every company acted in this way and voluntarily corrected problems that caused deaths, it would be a better world.”