ATC Watcher:
"The primary cause of this collision is airspace design and normalization of deviance over the years. I hope the judges will see that when the trial comes. We should leave the military crew and their grieving families out of this."
Which takes the pertinent legal case right back to the question whether the federal government will be protected by sovereign immunity. Sitting in, say, a conference room discussing in the abstract "airspace design" I don't think a single competent aviation attorney would not reply that design of airspace is a discretionary function (so sovereign immunity applies), and perhaps is a classic illustration of such discretion exercised functionally. Normalization of deviance is likely a closer question on the premise that it occurred through numerous small (or perceived as small at the time) changes and revisions of procedures and airspace design. But operation of the airspace when viewed in such a macro frame of reference looks pretty discretionary as a function, too.
But abstractions lost their meaning as 67 entirely blameless people lost their lives in this catastrophe. I'm not in this matter - not representing or advising anyone - but my mind can't get off outlining the attack on the discretionary function exception (to avoid doubt, I'm saying the exception needs to be argued against and shown not to apply on these facts). It is with hindsight, true, but the situation which existed in the airspace in question on the night of Wednesday 29 January broke, stomped upon, and otherwise disregarded so many basic rules of the aviation safety mindset that ....
like they say, you can take the lawyer out of litigating, but you can't take litigating out of the lawyer.
Here's a new thought. In lawsuits (another poster helpfully noted upthread) under the Federal Tort Claims Act - the statute which takes sovereign immunity away but subject to exceptions - claims for punitive damages are not allowed.
Think about that for half a minute. Just on the facts, forget the legal technicality under the FTCA, would this not FREAKING be a case warranting punitive damages against the federal government for setting the stage of this accident and then putting the players in motion? So, you're an attorney, part of the team representing any one of the families of victims of this CATASTROPHE in the middle of the air ... or some or even all, of the victims' families. What do you do?
I will be neither surprised nor shocked if the lawsuits also name American Airlines, which has no protection obviously under the FTCA. It didn't do anything wrong..... but naming the airline as a defendant gets their insurers involved, and then establishment of a fund and a process to compensate the representatives of the victims can be brought forward and conducted. Skip the courthouse except to get things started, but this matter needs a creative approach. Oh, did I mention, part of the approval for such a fund and compensation process would have to be pretty sweeping reform of how FAA does business and what business it does, and the reform plan had better be down to chapter and verse?
WR 6-3