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.