By: Michael Singer
Edited by: Sigalle Barness
When you sit plaintiff and defense lawyers opposite each other at a table, you don’t often expect agreement, let alone camaraderie. Then again, not every legal roundtable is Lawline’s Industry presentation on Aviation. Specifically, Fredrick Alimonti (Alimonti Law Offices, P.C.) hosted aviation defense attorney Douglas H. Amster (LeClair Ryan), plaintiffs’ attorneys Brian J. Alexander (Kreindler & Kreindler LLP) and Douglas A. Latto (Speiser Krause), and forensic engineer Joseph R. Reynolds (RTI Group, LLC) to discuss Aviation Litigation: The View from 30,000 Feet. In the presentation, Amster observed that in aviation law, plaintiffs and defendants “are … aligned toward [the same end]: better safety.” Alexander followed quickly, confirming that everything occurring after an aviation incident, from the actions of the National Transportation Safety Board (NTSB) all the way through subsequent litigation, is “moving towards making aviation safer…and is designed to make sure [a particular situation] doesn’t recur.” This fundamental agreement informs the unique roundtable that has something for everyone—from the experienced practitioner to someone looking to get started.
In fact, the major takeaway from the presentation is distinguishing between commercial (or airline) aviation that we all know and, so-called, general aviation (GA). When an airline suffers a major loss, you read about it instantly and for weeks, months and years thereafter. Despite the high profile of these incidents, the commercial aviation trial (specifically those that follow in the wake of life-ending injury) is increasingly a thing of the past. As Amster points out, airlines don’t want the bad PR, so these cases tend to settle as long as the lawyers do their jobs and the plaintiffs don’t ask for something completely unreasonable. GA is a different story.
GA is everything commercial aviation is not—it’s the flight schools, crop dusters, home-built aircraft, tour airplanes, corporate jets, traffic helicopters, and emergency evacuation planes. GA involves mainly small companies and even individuals, which can make recovery difficult in the event of accident. Big airlines are insured; small operators may not be. This means that lawyers on GA cases have to litigate hard from start to finish.
Even if you were to assume that all parties to a GA case are solvent and insured, recovery can be complicated. Unless pilot error or air-traffic control error is the sole cause of an incident (and as Latto and Alexander point out, there is never just one cause in an aviation incident), the question of defective parts inevitably is on the table. That means product liability. But, in GA cases, such recovery is often foreclosed by the General Aviation Revitalization Act of 1994, 49 USC §40101, (GARA), which prohibits many product liability claims via an 18-year statute of repose.
After 18 years, an airplane part that has been certified as safe and has not malfunctioned cannot be assailed as unsafe unless an exception to the repose is established. As GA equipment is often on the older side, defense lawyers are often left looking for exceptions, such as fraud in certification of parts, inadequate documentation and faulty service bulletins that can potentially toll the 18 years, so they can recover when a plane malfunctions and crashes.
So the issues that arise in general aviation are every bit as complex as those in commercial aviation. For his part, Latto observes that in dealing with the general aviation cases presented to him, he has to think long and hard when taking on a case. You have to “assess and evaluate before you get involved” because there is “a tremendous amount of attorney time and expense” involved in a case. So it behooves the aviation lawyer to investigate before taking on a representation to determine if there is a winnable case. Just because there is an accident doesn’t mean the GA case is winnable.