New York Wrongful Death Lawyer Blog

Pre-trial discovery by plaintiff lawyers for some of the families of the victims of the air crash near Buffalo, resulted in the public release, in October, of "internal" Colgan Air e-mails that questioned the pilot's qualifications to fly the type of plane that crashed.

Colgan Air attorneys have moved in Federal Court for a "protective order", claiming the plaintiff attorneys were using them to its prejudice, swaying public opinion and making it less possible to have a fair trial, by tainting the jury pool. Trial is scheduled for March, 2012.

The release of those materials caused a stir because the National Transportation Safety Board, which investigated the crash had not seen them while it was determining the cause of the crash.

Plaintiff attorneys responded that there was a lot of information that was "incredibly damaging" to the defendants, and by moving for "protection" the defendants were seeking to keep it from public disclosure.

The federal courts usually follow state law with respect to "Trial Publicity", and conduct by attorneys. Rule 3.6 of the Model Rules says, in part, "A lawyer who is participating in a civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

"Likelihood of materially prejudicing an adjudicative proceeding" is defined, in a civil proceeding before a jury as "information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial..."

Attorneys are allowed to disseminate by means of public communication information contained in a public record.

One plaintiff attorney said that confidentiality should only be allowed to protect trade secrets or the privacy rights of individuals.

I would be surprised if a protective order was granted by the court, as I believe that the internal e-mails would be admissible as evidence at trial.

It is too soon to tell what caused the sightseeing tour helicopter to crash into a remote, rugged area near the Colorado River last night.

National Safety Transportation Board investigators will arrive on scene to determine what caused the crash.

Sundance Helicopters, the operator of the tour, runs 23 copters, and flies over 160,000 persons annually from McCarron International Airport (Las Vegas). With three other helo tour companies, about 469,000 persons per year fly over the Las Vegas Strip, the Hoover Dam and the Grand Canyon. These tours start at over $200. Sundance has about a third of the business, grossing about $32 million per year.

Sundance had a prior fatal tour crash in 2003; the NTSB blamed "unsafe flying procedures" for seven deaths.

Unlike my November entry Hawaiian Helicopter Tour Crash Fatal for Five, it does not appear that bad weather contributed to the cause of the crash. A news report indicated that Sundance had received at least two customer written complaints about the crash pilot flying "close to canyon walls, and at bank angles, pitch altitudes and airspeed".

It is no surprise that Sundance's website says that their equipment is maintained with exacting precision, and that their pilots are trained and retrained.

The NTSB may have the last word on this tragedy.

Two couples on a Hawaiian helicopter sight-seeing tour perished with their pilot in a fiery mountainside crash that witnesses attributed to a sudden storm front that blew across the island of Molokai.

One couple, from the Philadelphia area, was on their honeymoon. The other vacationing couple was from Toronto, Canada. The 30 year-old pilot was also newlywed.

The tour helicopter, a Eurocopter EC-130, was less than a year old.

Investigators from the National Transportation Safety Board have arrived on scene to determine what caused the crash. There is no official word yet.

Blue Hawaiian Helicopters, the operator of the tour, flies about 160,000 tours annually in the islands. It had a crash in July, 2000, which was fatal to seven people. That crash was determined, by the NTSB, to have been caused by pilot error in not maintaining sufficient altitude over terrain in low flying clouds.

Other tour helicopter crashes, including ones in Manhattan and Majorca, Spain, have raised concerns over safety in recent years.

The NTSB report may help grieving families determine if there is a viable cause of action for wrongful death, or if "accidents happen" without any wrongful act, neglect or default of those involved.

Thirty-four year old, former NY Yankee star pitcher Cory Lidle, and his flight instructor, lost their lives in October, 2006, when the small plane they flew crashed into a Manhattan high-rise.

Lidle's wife blamed the aircraft's manufacturer, and sued for wrongful death in US District Court.

From news reports, the case turned on whether there was a defect in the plane's flight control system.

This case was a courtroom battle between expert witnesses. Ms. Lidle's said that there was a defect. The defense said that the crash was not due to equipment failure, one attorney declaring "As pilots, they made some mistakes"...

The statutory definition of wrongful death is a death caused by "a wrongful act, neglect or default". In this trial, which began in late April, the jury did not find proof of neglect or default by the airplane manufacturer.

What if your husband, a pilot, crashed in his single-engine plane, crawled from the wreckage, and though badly injured, activated an emergency signal that worked for six hours, giving US air traffic controllers an idea of where the crash site was.

What if rescuers did not arrive on site until two days later, finding your spouse dead, a final note to you scrawled on an envelope found near his body.

What if the National Transportation Safety Board [NTSB] wrote the Federal Aviation Administration [FAA] a letter requesting that it tighten its procedures for reporting lost aircraft and quickly getting radar data to the Air Force, as reported in the New York Times article "F.A.A. Hears Distress Calls. How Well It Responds Is Another Matter..."? This case was one of five lost plane cases contained in the letter.

The failure of timely response to the plane crash was caused by miscommunication, a lack of trained personnel, old equipment, and other problems, mostly bureaucratic. In this case, the NTSB blamed the FAA, who pointed a finger at the Air Force Rescue Coordination Center in Florida, then back again.

The pilot's daughter admitted that it was unclear whether her father could have been saved by a quicker rescue response, however, she did want it known that mistakes were made in his case, and it should have been handled differently.

Under these circumstances, could a successful wrongful death case be waged against the US government for the slow rescue response?

Very unlikely. Michael Barr, an expert cited in the NYT article opined: "What the FAA has done is they've accepted the current risk that people won't be found." I believe that their governmental function or duty in cases such as these is "discretionary", and therefore exempt from claims.

On March 17, 2010, while enroute from Orlando, FL to Virginia, an Experimental Lancair IV-P airplane made an emergency landing on a Hilton Head, SC, beach striking and killing a pharmaceutical salesman who was jogging on the shore.

The plane, a single engine kit-built model had lost its propeller, and was descending, gliding quietly. The pilot's vision was impaired by engine oil on the plane's windshield.

The decedent was listening to his iPod while exercising, and likely was not facing in the direction of the landing plane. He was 38 years old, an employee of GlaxoSmithKline, lived near Atlanta, GA, and was the father of two children.

Hypothetically, would the decedent's distributees have a valid cause of action if an action for wrongful death was brought under our New York statute, although it would be more likely be venued in Georgia or South Carolina?

As mentioned in a previous entry, Necessary Elements of Pleading in New York Wrongful Death Action, New York Estates Practice and Trust Law, Section 5-4.1 allows a personal representative to bring an action on behalf of surviving distributees, to recover damages for "a wrongful act, neglect or default" which caused the decedent's death.

As reported, there are at least two surviving distributees, the man's children. As minors, they would suffer "pecuniary damages" by their father's death.

There is no question that the aircraft striking the man caused his death.

Was there "a wrongful act, neglect or default" that caused the plane to land on the beach? It is too soon to tell. The Federal Aviation Agency and the National Transportation Safety Board will launch investigations into the cause of the plane's engine failure.

It may be that everything was properly done to this kit-built plane to make it as airworthy as it could possibly be. If that becomes the case, hopefully the jogging dad had plenty of life insurance.

A US District Court Judge in Manhattan is soon to rule on 9/11 settlements for 2 of 3 remaining plaintiffs who did not opt to participate in the special no-fault fund as detailed in my entry World Trade Center: What Is A Life Worth? of January 11, 2010.

Thus far, 93 of 96 non-participating plaintiffs have settled their cases against airline companies, aviation security companies and others.

Strangely, money amounts are not disclosed, either for the 93 cases so far, nor for the two now pending settlement. (It is thought that the 93 cases have received a total of $500 million.)

The District Court Judge is going to cap legal fees at 15%. The attorneys say that they have earned their fees, and their clients the large settlements, given the unique factors of each case, the applicable laws, the years of work in representation and the risks of litigating the case.

According to The Buffalo News article, Mediators Aim to Settle Lawsuits Over Flight 3407, the U.S. District Court Judge handling the nearly three dozen lawsuits filed in the Western District of New York for the 50 deaths due to the recent crash appointed four attorneys to attempt mediation of the claims in an effort to avoid the time and expense that trial would entail.

Reactions to this development differed. Since discovery between parties has not begun, some plaintiffs complain that they cannot settle a matter without knowing exactly what happened. Others maintain that due to the carelessness of the Defendants, punitive damages are appropriate. Punitive damages are monies awarded to punish the negligent party or wrongdoer, and deter others from similar behaviors. Some of the defendants in this case are alleged to have allowed poorly trained, fatigued pilots fly their planes, contributing to the crash.

One of the primary defendants, Colgan Air, welcomed the direction that the judge took. Through a spokesman, Colgan said that it looked forward to engaging in mediation with plaintiffs, so that each family could receive fair and just compensation for their loss.

Other victims' families have filed suit in New York State court against the flight simulator training company which trained the pilots of Flight 3407. So far, they remain separate from the mediation process ordered by the judge.

The Judge's mediation order sets a schedule that requires mediation of the cases to be initiated by June 17. If this effort at mediation fails, the parties are not foreclosed from trying again at a later date, after discovery is complete and the parties have a better idea of who was careless or negligent and which defendants are more culpable than others.

The air crash that occurred last February 12, 2009, in Clarence, NY, killed 50 people: 45 of them passengers, 4 crew members and 1 person on the ground.

Often people are killed as a result of the negligence of another, without any contribution to the final outcome by the decedent. This is true of passengers in todays airliners, since a plane does not fall from the sky unless someone did not do their job.

In the case of Flight 3407 there is no shortage of potential defendants who may not have properly done their job, which contributed to the cause of the crash. Both the National Transportation Safety Board and the Federal Air Administration have initiated studies into what went wrong with that flight.

"In aviation crashes, we rarely see a single event that leads to tragedy", said lawyer Ronald L. M. Goldman, a plaintiffs attorney.

A large number of plaintiffs' families have sued a multitude of defendants for wrongful death due to the crash, in both U.S. Federal District Court and New York State Court, because any or several of these defendants may have contributed to the cause of the crash by failing to properly do their job.

If all 50 deceased persons had distributees at the time of the crash, any of the defendants found culpable may be required to pay the reasonable funeral expenses of each decedent, as well as "pecuniary damages", which may include loss of future earnings [depending on past earnings performance and remainder of work life lost], and an amount to compensate for the pain and suffering experienced by each decedent as he/she realized the abrupt end of his/her life.

This type of civil lawsuit is a complex one. There are many plaintiffs, suing many defendants in separate jurisdictions. The potential money damages are staggering in a case such as this. Therefore, each defendant is working hard to point its finger at another party defendant as having greater responsibility for the disaster, and thus, a greater share of the damages to be paid.