Aviation Week & Space Technology
March 26, 2001
V-22 Legal Strategy Targets Bell And Boeing
By Robert Wall, Washington
Regulations that make it virtually impossible for families of soldiers killed in accidents to hold the military accountable mean that Bell Helicopter Textron and Boeing will shoulder the brunt of the legal attacks from last year's V-22 crashes.
The strategy to hold the contractor, rather than the military, accountable became clear when attorneys representing some families of last April's crash of a V-22 laid out their case during a public hearing.
The statements were made as part of a fact-finding session by a blue-ribbon commission investigating the program. It is being headed by Marine Gen. (ret.) John R. Dailey, and includes USAF Gen. (ret.) James B. Davis, Norman R. Augustine and Eugene E. Covert, and is to be completed in late April. The presentations, which the four members sat through silently, also raised new concerns about the tiltrotor.
Despite strong attacks, Bell and Boeing are far from having to pay hefty fines. In fact, according to legal experts the chances of the families prevailing are slim. A 1988 U.S. Supreme Court ruling granted military contractors immunity for liability if the government issued a ''reasonably precise'' specification for the equipment, the gear conformed to it, and the contractor warned the government about any dangers. Furthermore, the close ties between Marines and contractors on this program during development could further complicate legal efforts.
The Supreme Court ruling has provided considerable protection to defense contractors. About 80-90% of cases against military contractors are dismissed in pretrial motions, estimates Phillip K. Kolczynski, a Santa Ana, Calif.-based aviation and product liability attorney. Moreover, he noted, some courts will extend immunity when a continuous dialogue between the contractor and the government is evident, even if it was not concerning the precise problem that may have caused the accident.
''There are circumstances where one can beat [the immunity clause],'' Kolczynski said. However, it would require a sympathetic court and vast knowledge about the equipment problem and how much the government knew about it.
MOST OF THE LEGAL ACTIVITY, so far, has focused on the Apr. 8 crash in which 19 Marines died. Investigators determined the crash was caused by pilot error, with the aircraft descending too fast and encountering vortex ring state, a condition where lift on the rotor is lost. The findings of the Dec. 11 Osprey crash in which four Marines were killed haven't been released. However, service officials have pointed to a hydraulics failure in combination with faulty software as the culprit, raising the specter of more lawsuits.
Given the existing legal challenges, attorneys in the Osprey case have tried to fashion their arguments to exploit the few openings in the law they are afforded. For instance, since government knowledge of problems can lead to immunity for the contractor, Brian J. Alexander, who represents several of the families, lays blame squarely on Bell and Boeing.
''The Marine Corps was unaware of the danger of an asymmetric loss of lift and uncommanded departure from controlled flight due to asymmetric vortex ring state or power settling,'' he maintains. Furthermore, he says that ''contractors are required by law and contract to identify dangers and limitations and propose warnings, cautions and notes for inclusion in the pilot manual. It is clear the contractors have failed to meet these obligations and as a result Marine lives have been lost.''
To support his arguments, Alexander draws mainly on three Pentagon reports: the operational evaluation of the aircraft, the Judge Advocate General's (JAG) findings on the April crash, and a test report from the Pentagon's director of operational test and evaluation issued last year. For instance, he cited the operational evaluation report that says ''the content of the [flight manual] was not suitable for operational use,'' the test community's determination that the V-22's ''unusual attitude following entry into [asymmetric vortex ring state] was not expected,'' and the JAG's assertion that ''the MV-22 appears less forgiving than conventional helicopters.''
Jim Furman, the legal representative for the families of the pilot, Lt. Col. John Brow, and co-pilot, Maj. Brooks Gruber, attacked the assertion that pilot error caused the crash. That determination was made in the JAG report and could curtail any damages Bell and Boeing face even if they are found partially responsible. Furman argued that ''the pilots had no reason to believe that the aircraft would enter this uncontrolled state.'' The reason, he added, was that ''the flight envelope was never thoroughly tested by the contractor or explored during developmental flight tests.''
The first suit was brought on Mar. 9 on behalf of the father of Lcpl. Jason T. Duke. The filing accuses Bell and Boeing of being ''negligent in the design, manufacture, testing, inspection, assembly, certification, regulation, distribution, sale, maintenance, operation and/or repair'' of the V-22 and of failing to warn of problems that ''caused design-induced pilot error and the crash.''
THE BLUE-RIBBON PANEL also heard from a rotorcraft expert. Daniel P. Schrage, director of the Georgia Institute of Technology's rotorcraft center, spoke in support of the tiltrotor saying it was the best technical approach to the operational problem the Marines are trying to solve. However, he also noted that when the Marines finalized a design to take it aboard the ship it ''resulted in substantial constraints on safety.''
Most prominently, the V-22's rotor size had to be reduced to allow shipboard operations. But that adjustment also meant the tiltrotor could no longer autorotate -- a rotorcraft emergency procedure that allows aircraft to be landed despite engine failure. The disk loading went from about 15 lb. per sq. ft. on the XV-15 tiltrotor prototype that could autorotate to about 25 lb. per sq. ft. on the V-22, he said. Although increasing rotor size isn't an option, Schrage said there may be other engineering choices. One would be to add weight to the rotor tips to increase their inertia and give them more energy to offset the downforce caused by the aircraft's weight.
Schrage also speculated that there may be technical solutions to address the V-22 from experiencing asymmetric vortex ring state. He suggested adaptive flight control systems could be devised to sense the flight condition and essentially prevent the pilot from being caught in a flight profile where the aerodynamic instability is experienced.
The safety of the aircraft issue was also raised by U.S. Rep. Robert Filner (D-Calif.), whose district includes Marine Corps Air Station Miramar where MV-22s are supposed to be based. ''My concern is for my community,'' he said, noting that about half the flight paths for the tiltrotor would cut over large parts of heavily populated San Diego county.
Despite the technical questions raised by several of the presentations, none of the critics called for cancellation of the program. Instead, most argued that the Marines, Bell and Boeing should continue working on it to resolve technical problems. Filner, for instance, said the V-22 should undergo ''at least a one-year suspension to thoroughly examine the program.''
V-22 SUPPORTERS ALSO SPOKE out, although neither the contractors nor the Marine Corps provided public testimony. One of the backers was Aerospace Industries Assn. President John Douglass. ''The development of aerospace products can not be done without risk,'' he noted.
Additionally, Douglass maintained that abandoning tiltrotor technology would be a ''huge mistake,'' citing the potential benefits of civil versions of the aircraft. But program critics objected to that statement in particular. Furman argued that it isn't the military's job to ''be testers, evaluators, promoters and sacrificial lambs on the altar of for-profit commercial activities or to enhance a positive balance of trade.''