Articles Posted in Aviation Claims

The Alaska Personal Injury Law Group recently successfully resolved the claims of a client who was injured in a 2010 crash of a Dehavilland Beaver float plane at a remote fishing lodge is Southwest Alaska.

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The crash occurred after the pilot failed to back-taxi an adequate distance on a lake before turning and attempting a takeoff run. Despite reaching his predetermined abort point without having achieved takeoff, the pilot continued toward the shoreline under full power and simply hoped for the best. The best did not occur and the plane slammed into the lake embankment under full power. Alaska Personal Injury Group attorney Neil O’Donnell successfully resolved the claim against the lodge and successfully negotiated resolution of the various lien claims by the client’s medical providers and health care insurers. This matter is one of the many aviation matters the Alaska Personal Injury law group has handed over the years. The practice group has extensive experience with aviation cases involving pilot error, inadequate pilot training, mechanical problems, and design defects.

One of the increasingly common arguments I see defense experts make in our automobile collision practice and our aircraft crash practice involves the misuse of statistical evidence. Defense experts have taken the prior odds of a particular type of injury occurring in a certain type of accident and then applied that same statistical probability (which is often low) to support the defense argument that it is unlikely that a particular plaintiff suffered the injury she claims she suffered as a result of the accident. The fallacy arises from the fact that the expert is applying a probability rate derived from a large population group (everyone who was involved in a particular type of accident) to a very different and much smaller population group (individuals who claim they were in fact injured in that type of accident, who received medical treatment for their claimed condition, and then subsequently hired legal counsel and filed a lawsuit to recover damages for their claimed injuries). For example, let’s assume an epidemiological study analyzes a large number of car crashes and concludes that less than 6% of vehicle occupants involved in rear impact collisions of less than 20 miles per hour had neck injuries that last more than six months. I have seen defense experts try to use this type of data to assert that it is extremely unlikely that a particular plaintiff really has the ongoing problems she claims to have because these types of symptoms usually resolve within six months. This is, however, complete statistical gibberish. The defense expert is applying the 6% statistical rate to a very different question, namely what percent of claimants who seek medical attention for their claimed continuing problems and subsequently file a lawsuit for their claimed continuing problems are really faking their injuries. The source study obviously never attempted to answer this question.

The “prior odds” statistical shell game only arises with injuries that are not objectively obvious and indisputable. A defense expert will not, for example, raise this argument where a car or aviation accident produces a compound fracture, paralysis or death. But these types of objective injuries do serve to illustrate the underlying illogic of the “prior odds” argument. Say, for example, that 6% of individuals who are involved in a vehicle rollover accident die. The forgoing defense experts are basically performing the equivalent of telling the deceased in a rollover accident that they cannot be dead because the vast majority of individuals survive rollover accidents.

Necessity is the mother of invention ā€“ in statistics as elsewhere. That is why it pays to think critically about what experts tell you, and do your research. An excellent article for further research on this subject is Forensic Epidemiology: A Systematic Approach to Probabilistic Determinations in Disputed Matters in the Journal of Forensic and Legal Medicine (2008) by Michael D. Freeman.

Most individuals who call our office recognize they can recover damages when they have been injured through the negligence of others. The wrongful conduct could be any number of things: drunk driving, running a stop sign, speeding, crashing a plane, marketing a defective product, creating a dangerous work environment. They understand the defendant will typically deny he was negligent. They are not surprised when the defendant next argues that even if he was negligent, the plaintiff’s problems don’t really exist, or were caused by something else, or were all pre-existing anyway. They understand that the defendant will finally argue that even if he was negligent, and even if he did cause the plaintiff’s injuries, the resulting damages are nowhere as significant as plaintiff claims. Clients expect that if they ultimately prevail over all these defenses, they have won the war. Unfortunately, this is not necessarily the case.

Over the last decade, insurers and government agencies have become much more assertive in claiming priority repayment (“subrogation”) rights from individuals who have received insurance or government benefits and subsequently recover damages in a personal injury or wrongful death lawsuit. This is a marked change from the traditional common law. Historically courts put the interests of the injured person ahead of the interests of insurance companies and government programs under what is called the “made whole” doctrine. Under the “made whole” doctrine, an injured person is entitled to be fully compensated for his loss before the health insurance company that paid plaintiff’s medical bills is entitled to be repaid those expenses out of the proceeds of a lawsuit. For example, if a jury awarded a plaintiff $50,000 for medical expenses, $50,000 in lost wages and $50,000 for impairment, pain and loss of function, but the defendant only had $100,000 in insurance and no other assets, the plaintiff would receive the entire available $100,000 under the principle that insurance is first supposed to protect the insured.

Greedy%20Business%20Man.jpgTimes have changed. Many health insurance policies and government programs have invested a great deal of effort over the past decade into re-writing policies and regulations in an attempt to abolish the “made whole” doctrine and limit other legal and equitable doctrines that place the interests of the injured person first. In general, they want to be paid first out of the funds you recover in your lawsuit, and they do not want to share any of the costs and attorney fees you incurred in producing that recovery. This has now become a very complicated area of the law. The rules that apply to one government program (Medicare) may not apply to other government programs (Medicaid, Veterans’ Benefits, Workers Compensation, etc.). The interpretation and enforcement of contractual terms in insurance policies is also subject to a set of specialized statutes, regulations and case authorities. Sometimes finding an attorney with expertise in these types of specialized “subrogation” issues is as important as finding an attorney who can handle the traditional part of your claim. Now obtaining adequate compensation in a personal injury or wrongful death lawsuit often requires fighting a “two front war.”

Individuals who are severely or catastrophically injured must assert a one-time claim for all the economic losses they will experience over their remaining life expectancy on account of their injury. An injured person only gets one trial. The injured individual cannot go back to court in 5, 10 or 15 years because the assumptions that were used in his or her economic loss analysis proved too optimistic. This is a particularly important issue given the present economic downturn. Many statistics which economists have traditionally relied on to calculate economic loss have limited or diminished relevance today. For example, historical statistics concerning the availability of alternative work, and prevailing wages for such work, now overstate the opportunities that are actually available to an injured person in today’s economy. In addition, just focusing on the most recent economic data does not necessarily solve this problem. The traditional measure of unemployment does not include discouraged workers who are no longer actively looking for work, thus substantially overstating the actual health of the labor market. A final example involves historical statistics concerning work-life expectancy. An economist will typically project a severely or catastrophically injured person’s earnings over their statistical work-life expectancy. However, for numerous reasons, the historical data now underestimates the likely work-life expectancy of current workers. Work-life expectancy is now likely to be significantly longer than historical averages because of factors including (1) reduced and/or depleted retirement savings, (2) declining percentages of individuals with fixed pensions, and (3) the cost or complete unavailability of non-employer-sponsored health care coverage which causes individuals to work longer. The bottom line is that severely or catastrophically injured individuals need to hire counsel who are familiar with recent economic trends and who regularly work with economists are knowledgeable and current on issues affecting serious personal injury claims. See Employee Benefit Research Institute, 2010 Retirement Confidence Survey http://www.ebri.org/pdf/briefspdf/EBRI_IB_03-2010_No340_2010_RCS.pdf

The Alaska Personal Injury Law Group recently obtained a favorable ruling on a matter of great importance for aviation law in Alaska. Apparently reversing a prior contrary decision, the Federal District Court ruled that aviation wrongful death and personal injury claims cannot normally be transferred (“removed”) from Alaska State Courts to the Federal District Court at the request of the defendant.

The Alaska Personal Injury Law Group (APILG) has extensive experience in the area of aviation accident litigation. APILG Attorney Neil O’Donnell, representing Port Heiden resident Ted Matson, filed a wrongful death action for the loss of Mr. Matson’s wife in the crash of a Peninsula Airways (“PenAir”) Piper Saratoga near Port Heiden. The wrongful death action was filed in the Alaska Superior Court in Naknek, the court closest to Port Heiden and closest to the aircraft crash site. PenAir, however, transferred (“removed”) the case to the Federal District Court in Anchorage arguing that a recent Ninth Circuit decision, Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), made all aviation-related wrongful death and personal injury claims removable to federal court. The Federal District Court in Alaska had previously agreed with this argument in another aviation personal injury case (not handled by the Alaska Personal Injury Law Group) that had been removed from the Alaska Superior Court in Bethel. Alexie v. Hageland Aviation, Case No. 4:07-cv-0031-RRB.

The effect of the Alexie case would have been to allow any defendant to transfer any aviation-related death or injury claim out of the Alaska State Courts and into the Federal District Court in Anchorage, Fairbanks or Juneau. Plaintiffs in rural Alaska often want their cases heard in local state courts for both practical and strategic reasons. For example, local rural jurors appreciate the importance of lost subsistence services, often a major portion of a rural plaintiff’s economic damages. Juries in federal court must also reach a unanimous verdict. Since the plaintiff has the burden of proof, one or two “holdout” jurors can derail what would otherwise have been a persuasive and successful claim. In contrast, juries in Alaska State Courts can return a verdict based on the vote of only 10 of the 12 jurors.

The NTSB has issued its findings as to the cause of the July 24, 2007 de Havilland Beaver airplane crash near Ketchikan. The crash killed the pilot and four passengers. The NTSB faulted the FAA’s supervision of tour operators and recommended a system of weather information to aid pilots in making in-flight decisions. While Taquan Air Service’s pilot had commerical aviation experience, he had only 7 hours of flight time in Alaska when he was hired. The NTSB found that the pilot improperly continued VFR flight in IFR conditions and did not adequately evaluate the deteriorating weather conditions.

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Anchorage Daily News:

An ERA Helicopters Eurocopter Arrow Star 350 B2 helicopter crashed in heavy weather conditions near Sheep Mountain on April 15, 2008, killing four people, and seriously injuring a 14-year-old boy. Killed in the crash were the pilot, Benoit Pin, and three employees of the Alaska Department of Administration, Michael D. Seward, Thomas E.Middleton, and Joseph C. O’Donnell. The flight was en route to a state telecommunications tower near Tahneta Pass when the crash occurred. The 14-year-old boy, Quinn Ellington, was found alive on Wednesday morning. Weather hampered the search for the craft, whose emergency locator transmitter went off on Tuesday at 1625 hours. An HC-130 and pararescue personnel on snow machines searched through the night until the crash site was located Wednesday morning approximately 120 miles northeast of Anchorage.

The NTSB is investigating the crash. The circumstances are similar to another crash of an ERA Aviation helicopter near Fire Island in October 2001, which occurred in heavy snow conditions. (Richard Vollertsen, of the Alaska Personal Injury Law Group, was lead counsel in that crash investigation: www.alaskainjurylawgroup.com/lawyer-attorney-1286823.html) The weather at the time of the Sheep Mountain crash included snow, rain and fog, and rescuers called it “blizzard conditions.” State of Alaska personnel have not yet explained why Ellington, Michael Seward’s stepson, was a passenger on a flight where state personnnel were performing maintenance on a transmission tower. The pilot, Benoit Pin, obtained his commercial helicopter license in 2001.

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On January 5, 2008, a Servant Air Piper Navajo Chieftain with 10 people aboard crashed shortly after take off from Kodiak, Alaska. The pilot and five passengers tragically died in the crash. Surviving passengers reported that a baggage door popped open shortly after takeoff and the pilot was attempting to return to the airport. The National Transportation Safety Bureau (NTSB) is investigating the crash. Based on recent NTSB investigations in Alaska, that may take awhile. I represented a family who lost a loved one in the crash of a PenAir Cessna Caravan 208 shortly after takeoff from the Dillingham airport on October 10, 2001. The pilot and nine passengers died in that crash. The NTSB did not release its probable cause determination until January 23, 2003 — 15 months after the crash. I am presently representing a family who lost a loved one in the crash of a PenAir Piper Saratoga PA-32 shortly after takeoff from the Pt. Heiden airport on December 14, 2006. The NTSB recently released its “factual report” on that accident just over one year after the crash. The NTSB has yet to make its probable cause determination. This illustrates why it is important for families to promptly hire counsel to independently investigate an accident and not to wait a year or more to see what the NTSB concludes about the accident. The families who have lost a loved one will typically not know what the NTSB has been up to for a year or more. In the meantime, important evidence may be lost and important witnesses may have disappeared.