Defense Digest

The National

There are two oft-cited quips that come to mind when discussing aviation matters:

It is those episodes of sheer terror, brought about by some combination of carelessness and/or neglect, that often give rise to complex and protracted litigation. And it is the litigation of these matters that the new Aviation Practice Group at Marshall, Dennehey, Warner, Coleman & Goggin has been involved in for more than 30 years while located at other Philadelphia-based firms.

A major part of aviation litigation arises out of the crash of commercial (airline and charter), business (corporate), and private operated aircraft. Because of the flying speeds involved, crashes generally result with multiple deaths or serious injuries and extreme damage to, if not total destruction of, the involved aircraft. In handling these claims, the first challenge is to figure out why the crash occurred. While a governmental investigative team (National Transportation Safety Board/Federal Aviation Administration) is assigned to investigate the crash, those investigations, except in the crash of large commercial airliners, are at times superficial or incomplete. This invokes the need for a thorough supplemental investigation by the potential parties.

There are half dozen leading insurers of aviation risk, and those insurers are very astute at getting experienced investigators, experts, and counsel involved very soon after the crash as major litigation is almost sure to follow. Metallurgists, systems engineers, pilots, human factor specialists, meteorologists, air traffic control, and radar experts are just some of the disciplines brought in to assist in the determination of factors leading up to the crash. These experts are called upon not only to analyze various parts and components from the accident aircraft, the failure or malfunction of any one of which could cause or contribute to a crash, but also to recreate the flight path and the flight environment (thunderstorm cells, severe turbulence, icing, wake turbulence, etc.) to determine if that was a contributing factor to the crash. Or, was the crash solely the result of pilot error?

With it often being a situation where experts from opposing sides will vary substantially, it is important to employ the best available experts from the outset. Through the years we have had the opportunity to work with and have quick access to some of the best aviation and materials experts in the country, people who are not "professional testifiers" but who have established their reputations within the industry and have the "hands-on" job experience to back up their analyses.

Among the cases we have recently handled, as either primary counsel or on a co-counsel basis, are:

1   Representation of a commuter airliner in mediation of multiple death claims arising out of crash at Charlotte, North Carolina, airport;

2   Representation of a propeller manufacturer as sole the defendant in a multi-death claim after in-flight propeller separation (defense verdict);

3  Representation of a general aviation aircraft manufacturer in a multi-death case after an airplane crashed due to alleged design deficiencies - improper stall characteristics (defense verdict);

4  Representation of a major overhaul/engine conversion shop in a crash in Idaho where the two occupants died in post-crash fire (case pending); and

5  Representation of an aircraft maintenance facility after an in-flight break-up of the airplane while on approach to Kansas City Airport (case pending).

Aviation insurers underwrite a number of aviation-related risks, in addition to flight activities, including product and component manufacturers, ground handling equipment, and airport operations.

Airports are generally a hub of activity, and with those multiple types of activities come numerous opportunities for various types of premise liability claims. On the public side are the various sidewalks, escalators, elevators, traffic control, and people movement that can give rise to a wide variety of casualty claims. Generally, many of these people are in a heightened state of anxiety, rushing to meet flights or dealing with all of the challenges of airport activity, and when something negative befalls them, they are anxious to focus blame on some other party.

Likewise, on the operations side of the airport, there are numerous pieces of heavy and complicated equipment that routinely operate close to very expensive airplanes and workers who are under deadline to complete their operations on a prompt basis. These include catering and refueling trucks, cargo handlers, baggage conveyers, deicing facilities, etc., each of which not only can expose the insurer to substantial risk, both for injury to the associated personnel and damage to the multi-million dollar aircraft. We are currently involved in cases that include:

1  A fall from a catering truck in which the operator sustained a fatal injury;

2  The failure of a large deicing boom in which the operator suffered a broken back and the aircraft sustained multi-million dollar damage;

3  An alleged deficiently designed mobile baggage conveyor loader; and

4  Representation of a cargo handler in a multi-million dollar pharmaceutical cargo damage claim during operations at Philadelphia Airport.

The third major aspect of our aviation litigation work involves representing various manufacturers and suppliers of components or material that are used in aviation products. These involve not only cases for wrongful death and personal injury in which a component or material supplied by the insured allegedly caused or contributed to a crash, but also claims regarding responsibility for the recall and replacement of major and expensive components. In the last five years, the two major manufacturers of reciprocating aircraft engines were required to issue recalls for a large number of their high-performance engines after each manufacturer had experienced a series of crankshaft failures in those engines. These recalls, and the several third party liability claims that were settled by the engine manufacturers, involved damages in excess of $60 million for the first manufacturer and almost $100 million for the second manufacturer. In each instance we represented the target party that the respective manufacturers sought to blame for the defects in the crankshafts:

1  Recall 1 - The engine manufacturer claimed that the crankshafts were defective due to inherent defects in the steel ingots from which the crankshafts were eventually manufactured. We represented the steel manufacturer who created the steel ingots through a vacuum arc re-melt process. We were the sole defendant in that case, which was tried in the Philadelphia Court of Common Pleas Commerce Court (after two peripheral defendants who were involved in processing the ingots had settled), and after a month-long trial, a defense verdict was rendered for our client. Our defense was based primarily on the suggestion that problems in the forging of the crankshafts (by an entity that had joined as a co-plaintiff with the engine manufacturer) was the actual cause of the failures/defects.

2  Recall 2 - In this case we represented the forging company that had forged the crankshafts from ingots supplied by various third party steel manufacturers. It was the engine manufacturer's claim that overheating and other improper forging practices caused numerous defects to occur in the crankshafts. In collaboration with co-counsel in Texas, we prosecuted a preemptive claim against the engine manufacturer, claiming that the engine manufacturer was aware of potential defects in the crankshafts when it extended its requirements contract with our client and sought to have the contract rescinded and damages for fraud awarded. After a two-month trial, in which we presented extensive evidence that indicated both inherent defects in the steel supplied by the steel manufacturers and knowledge of this on the part of the engine manufacturer, the Texas jury awarded approximately $90 million in damages to our client and found that forging issues were not the cause of any defect in the crankshafts.

In each of these cases, we made extensive use of metallurgy analysis and testing, strain gauge and finite element analysis, and studies and video graphic presentations that portrayed various aspects of the manufacturing processes at issue. This work was done using some of the preeminent scientists and technicians from leading universities and aviation facilities around the country. Also in litigating these cases, our opponents were represented by a consortium of lawyers from some of the largest firms in the country.

The handling of these various types of cases is often an expensive undertaking, but one that underwriters have been willing to undertake because of the damages that are at stake, whether it is a multi-million dollar recall or multiple death claim. As many of the cases involve an extensive number of documents, we frequently use litigation management systems, such as Summation or Interlegis, to accumulate and access documents on a computer search basis. As each case generally has different issues and involves different technical disciplines, it is an exciting practice. It is also technology that can easily be applied to the handling of claims on behalf of other product manufacturers and other large commercial enterprises. We are looking forward to the continuation and expansion of this practice at our new home at Marshall Dennehey.

* Bruce is a shareholder who works in the firm's Philadelphia and Doylestown, Pennsylvania, offices. He can be reached at (215) 575-4553 or jbmckissock@mdwcg.com.