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.

The Commonwealth of Virginia, on behalf of Virginia Tech University, settled a 2009 wrongful death lawsuit brought by the parents of student Daniel Kim, in Fairfax County Circuit Court.

The gravamen of the case was the failure of the VTU "Care Team" counselors to take any action after an e-mail, warning of potential suicidal thoughts or tendencies, was sent to them by a friend of the decedent.

The university did not make any attempt to contact or speak with Kim, nor did not notify his parents of the potentially ominous e-mail warning concerning their son.

The commonwealth will pay the parents $250,000 and establish a scholorship in Kim's name. The university will change its policy on "parental notification" of students suspected of being suicidal.

Kim apparently became increasingly despondent as a result of the April 16, 2007 massacre at Virginia Tech. He felt that his looks closely resembled those of the notorious shooter, Seung-Hui Cho, and therefore, people connected him with that horror. He became self-conscious of his ethnicity, and "was ashamed of being Asian".

His suicide on December 8, 2007, was eight months after the massacre.

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.

If American Airlines was not troubled enough by financial woes, the family of a passenger who died after eating "airline food" on a flight between Barcelona and New York City is suing it and Sky Chefs for wrongful death.

They say that the food was contaminated with Clostridium perfringens bacteria.

According to the CDC, (C. perfringens) is a spore-forming gram-positive bacterium that is found in many environmental sources as well as in the intestines of humans and animals. It is commonly found on raw meat and poultry. It can survive in conditions with very little or no oxygen.

C. perfringens produces a toxin that causes illness, usually diarrhea, and is generally not dangerous except in the case of the very young or the elderly.

Unless other passengers on the same flight, or same day, reported similar symptoms of food poisoning, it may be problematical to prove that the bacterium was from the airline food. The man began to have physical problems after eating. Experts on food poisoning say that the onset of symptoms, was unusually fast.

It may also be difficult to prove that the bacterium caused, or contributed to decedent's death.

The passenger died of a heart attack, soon after arriving at his home in Miami.

A comment made about this case was: "It's rare to die of food poisoning; it's common to die of a heart attack".

In January, 2007 Marvin E. Schur, age 93, froze to death when the Bay City Electric Light & Power and Bay City, MI itself, limited his electric usage for non-payment.

An autopsy confirmed the cause of death.

Neither the power company nor the city paid sufficient attention to their customer/citizen when the power to his home was limited.

In August, 2011, the US District Court approved the $500,000 settlement. Members of the Schur family were granted $6,000 each. The family lawyers got $187,747.57 for their fees, and the Bay Regional Medical Center, received the balance: $323,182.29, pursuant to Mr. Schur's Last Will. How nice.

This case is factually similar to one I wrote about in June, 2010: Velma Arlene Fordham, age 58, who froze to death because her apartment's gas service had been cut off during a major lake-effect snowstorm in Buffalo, NY.

A 51 year-old man was crushed to death when he climbed in the back hopper of a Heil Formula 7000 garbage truck and attempted to clear debris which was jammed, preventing a "compactor blade" from moving.

He perished when the hydraulic system engaged, and a safety mechanism which would have saved him failed.

The City of Norfolk originally said that the man had "violated a city policy" by climbing in the back of the truck.

Later, state investigators confirmed that it was "city policy" for sanitation workers to do so; otherwise, any jamming issue would necessitate leaving the trash route and returning to the maintenance shed for loosening or repair.

The Virginia Department of Labor and Industry investigated this occurrence and found 8 "serious (life threatening) violations" related to this accident. For example: the safety system on the truck was supposed to be checked daily. That did not happen.

A well-spoken Norfolk councilman stated "Some heads should roll on this..."

[As reported by Harry Minium in The Virginian-Post, October 12, 2011]