Aviation Litigation

Once an aviation lawyer agrees to accept your case, he or she will first focus on preserving the aircraft and related parts, and immediately hire the experts you will need to handle the case successfully.

Aviation litigation involves a broad range of expert witnesses. Your lawyer may need to enlist the help of an air traffic control expert one day, an airframe and power plant mechanic the next, then an engine-design expert and a metallurgist - all in the same case.

Crash Scene Investigation

Your aviation lawyer may hire a consultant who will assist you throughout the lawsuit but will not testify. Such behind-the-scenes experts may be former government or airplane industry employees. The most useful consultants understand the industry, know the companies, and are familiar with their key personnel. An industry consultant may keep your lawyer from chasing dead-end leads regarding factual theories and witness location.

Before focusing on the precise areas of expertise needed, your aviation lawyer will start with the potential cause of the crash. The checklist should include:

• Pilot error - insufficient training, a medical condition, alcohol or drug use, insufficient rest, or operational error
• Mechanical malfunction - power plant failure such as a fuel problem, oil leak, metal fatigue, or part breakage; flight instrumentation malfunction such as the primary attitude indicator, throttle control, rudder pedals, or other avionics; or aircraft control failure such as the fuel control, rudder cables, de-icer controls, landing gear, or flaps, possibly due to maintenance or repair errors
• Environmental or external factors - weather, radar, air traffic control, fuel quality, lift-off weight, or the condition of the runway

An aviation expert can help your lawyer assess the most probable cause and rule out alternative causes. As the investigation progresses, your lawyer will hire other experts as needed to help develop the case.

If your lawyer is lucky enough to have access to the aircraft, engine, and other critical components, he or she will have your experts examine them. Early inspection can yield several tangible benefits, including the identity of potential defendants. The sooner you identify defendants, the sooner you can draw up and file the lawsuit. Early inspection may also pinpoint areas where you need specialized expertise.

Many times, however, an aviation lawyer won't have the benefit of early access to the aircraft wreckage or components, because the items will be in the NTSB's custody. At present, the agency retains aircraft and critical components for 6 to 18 months. Because many states' statutes of limitations (the time deadline for filing a lawsuit) are as short as two years, you may need to pursue other avenues of investigation as you prepare the case.

If the aircraft or engine wreckage isn't available for your inspection, you may not be able to select and retain experts as early as you would like to. Your lawyer may simply have to make an educated guess about the types of experts that you will need, based on accident photos and reports from the media, responding police and fire departments, witnesses, and survivors or family members.

Coordinating With The NTSB

Your lawyer may ask the agency whether your experts may conduct a "hands off" visual inspection of the wreckage and parts. The NTSB has been sympathetic to plaintiffs' statute-of-limitations concerns and often grants such access because the aircraft manufacturer and insurance-industry representatives are probably parties to the NTSB investigation team and have access to the wreckage.

The NTSB has also recently permitted experts - but not attorneys - to witness the engine "teardown." This is done, under the agency's authority, at the engine manufacturer's facility whenever agency investigators suspect an in-flight loss of engine power. You have a better chance of having a representative attend if they, their family, or their employer owns the aircraft.

Visiting The Accident Scene

Your lawyer will hire an airplane crash reconstructionist as early as possible to carefully examine, diagram, and photograph the accident scene. Such an expert can assess the angle of descent based on tree damage or damage to brush on the ground. The scars of ground impact can reveal other details, such as the aircraft's speed at impact and rate of descent, as well as whether the aircraft was spinning or flat and whether its wings were level. Burn or scorch marks may indicate a postimpact fire, and their location may point to a particular engine or the fuel tank as the source.

Usually, the NTSB on-scene crew will have picked up and crated most of the crash wreckage. At some sites, however, private experts have discovered critical components embedded at the scene or dispersed some distance away - and that proved essential to determining the probable failure mechanism.

Mining Other Sources For Facts

Your lawyer may take the deposition of the investigator in charge of the NTSB investigation, which the agency must formally approve. This testimony may yield factual observations made during the investigation but not included in the agency's report.

For every aircraft accident, the local police and fire department will issue reports on the time and location of the crash, weather conditions, rescue efforts, and passenger injuries. While their quality varies, these reports often include photographs that may provide clues and detail wreckage dispersement. The reports may also include eyewitness interviews that may describe the flight path, unusual engine noises, the presence of smoke or fire, and the plane's descent and impact.

An expert's conclusion that there was no in-flight or postimpact fire and that the aircraft's angle and speed of descent suggest a survivable impact may indicate that the aircraft's crashworthiness should be questioned. Your lawyer may hire an expert on aircraft restraint systems to study the sufficiency of the seat belts and shoulder harnesses, seat-bracket attachments, seat and seat back design, and other crashworthiness factors.

In every aviation lawsuit, the pilot's qualifications, health, and actions will be scrutinized. This is true whether the pilot or his or her employer is a defendant or plaintiff. Medical examiners will usually test for alcohol or other performance-debilitating substances. The complete autopsy protocol normally includes a test for carbon monoxide poisoning as well.

Using A Team Of Experts

In most cases, the core team of experts will include a metallurgical-failure analyst, an accident reconstructionist, and a certified airframe and power plant mechanic. Your lawyer may also hire a pilot or flight-systems expert, depending on the case.

Other experts who can round out your team may include damages witnesses, such as experts on "pre-impact terror," conscious pain and suffering, burns and smoke inhalation, and economic losses.

Here are some additional areas of expertise you may need:

• aircraft certification and airworthiness of aircraft, engine, or component parts
• aircraft electrical and wiring systems or aircraft fuel and propulsion
• avionics (radio or global positioning system instrumentation), aeronautics (use of gyroscopes and other self-contained apparatus), and flight instrumentation (radar, altimeter, and digital gyroscope)
• manufacturing processes, material strength, and structural fatigue and integrity
• vibrational or torqueing issues or welding and metal properties
• weather and meteorological issues.

Preparing For Trial

Your lawyer will work with each expert to assemble a list of all the materials that he or she reviewed, including depositions, litigation-generated documents, other resource materials, notes, and results of any inspections or tests performed on the wreckage or parts. The expert can then have a list of opinions and index of supporting documents with him or her at deposition.

Before the deposition, your lawyer will talk with the expert about demonstrative aids that may enhance his or her testimony at trial. In some jurisdictions, the opposing party can challenge the admissibility of such aids if they are not disclosed at the expert's deposition.

Computer-generated animation is often useful in presenting the testimony of an accident reconstructionist or flight-path expert. This requires extensive advance planning, as the expert must review non-quantifiable assumptions that the animation team made in creating the presentation. Doing so allows you to clear any potential challenges to admissibility and firm up foundational prerequisites, such as flight path and altitude.

Working with aviation experts is a unique challenge. But when handling an aviation crash case, your lawyer must be prepared to deal with numerous subject matters and to coordinate these areas of expertise into one seamless presentation at trial.

Gary C. Robb has helped to educate practicing lawyers, students, judges, and the public on the topics of aviation law, trial practice, and complex personal injury. More information can be accessed at his firm's website.