The End of ASAP?

[Shore Guy]

Greedy Plaintiff attorneys may put an end to one of the most valuable safety programs ever created.....:(:(:(


Thursday, March 13, 2008

Comair to release safety reports
Documents detail errors, violations

Comair has agreed to produce for the courts confidential reports that
describe safety violations and at least four runway errors by its pilots.

The airline had contended that the reports need to be kept secret to
encourage pilots and mechanics to report safety problems voluntarily.

But in the face of a request for sanctions from lawyers for the families of
victims of Comair Flight 5191, the airline has surrendered the documents,
known as ASAP reports, for the Aviation Safety Action Program.

The documents were produced under a protective order that bars the
plaintiffs from making them public. Comair also maintains that they are
unrelated to the crash, and it is continuing to litigate whether ASAP
reports should be subject to disclosure, said Comair spokeswoman Kate Marx.

Comair has resisted orders to turn over the reports, and plaintiffs' lawyers
had asked Judge Karl S. Forester to punish the airline by forcing it to
acknowledge that its failure to take reasonable steps to correct serious
safety problems was a substantial factor leading to the crash of Flight 5191
at Lexington's Blue Grass Airport on Aug. 27, 2006.

The commuter jet crashed on takeoff from the wrong runway, which was too
short for the aircraft. Of the 50 people aboard, only the copilot survived.
The National Transportation Safety Board ruled that pilot error was the
principal cause of the crash.

Forester last week said the request for sanctions was moot because Comair
had turned over the first batch of ASAP reports on March 3, the day the
sanctions were requested. The plaintiffs' liaison counsel, David Royce, said
production of additional reports is ongoing.

Marx said yesterday that Comair decided to comply with the court's order to
surrender the reports but still believes they should remain confidential.

The Air Line Pilots Association, the Regional Airline Association and the
Air Transportation Association, which represents major carriers, all filed
briefs saying that using the reports in litigation would inhibit
self-reporting.

The trial of the lawsuits against the airline is set for Aug. 4, and lawyers
have said the ASAP reports could be important in proving punitive damages.

[Milt]

Confused?
Most of us decode ASAP = As Soon As Possible

[OzExpat]

Well, okay mate, but please feel free to tell me why a "Aviation Safety Action Program" shouldn't be identified with "as soon as possible"? I figure you're only trying to hijack the issue so, to get this topic back ON TOPIC, I reckon that the initiating post has implications for safety reporting programs all over the world.

Gee, thanks to those American lawyers to whom we owe every other bit of idiotic litigation in the last 20 years! If it wasn't for Boeing aircraft, I'm sure that someone would've nuked all the American lawyers years ago. :E

[carholme]

The frightening thing about this type of action is when it comes to our SMS systems. They will no longer be of much of a worry to the regulator, other than glaring deficiencies but the scrutiny an operator will face from the lawyers, eliminates any thought of the system being open to promote safety.

That is, under SMS, being open and honest about our safety reviews or rationale for certain actions, leaves us, potentially at the mercy of the courts and the interrogation by lawyers.

Why don't we just have the courts take over the regulation of aviation and dispense with the regulators?

The more I see about SMS, the more I feel that the regulators are using it as a form of "self regulation", the same as many governments are doing, downloading the total responsibility onto the operator, be it a major airline or a local mom and pop shop. Maybe the airlines can absorb the cost of a system to protect themselves but where does that leave the smaller operators?

carholme

[Pugilistic Animus]

This can't be good for safety---it will simply degenerate to an US v Them and safety reporting will suffer---we should just go back to the good old days when they Postal service told you when to fly:}

[Che Guevara]

Maybe the time has come to take action against the lawyers who are about to endanger the travelling public by for their own selfish needs...

[alf5071h]

I agree with carholme’s view of SMS and of the regulators role in safety; they have become auditors of paperwork and fail to inspect the safety aspects. In addition the regulators contribute to the problem as most of the safety data appears to be used for statistical purposes and not for new safety initiatives.

Is there a legal view on whether reports can be marked ‘In Confidence’ in a similar manner to client / lawyer correspondence which need not be disclosed?

[john_tullamarine]

Is there a legal view on whether

.. or whether, in appropriate jurisdictions, either the source data is destroyed after the stats are extracted .. or the source data is provided for archive to the company's (consultant's) lawyers so that the data ends up being covered by legal privilege ?

[zalt]

The only way to get client/lawyer privilege is if you safety dept were actually your lawyers!

On SMS - the regulator still needs to agree the operator is fit to operate. Some of the smarter regulators have realised that they need to change. CASA now say they don't want former pilots and mechanics as such in their ranks, they want former managers who can recognise what a safe operation looks like.

alf507h Could you expand on your comment: In addition the regulators contribute to the problem as most of the safety data appears to be used for statistical purposes and not for new safety initiatives.

[carholme]

Zalt;

Would you have reference to a CASA document which describes their new thinking concerning pilots and mechanics in their ranks?

Regards

carholme

[zalt]

See here - http://www.casa.gov.au/fsa/2008/apr/10-14.pdf
I'm sure the preference is still for ex-managers who had been at the sharp end first.

[carholme]

Zalt;

Many thanks for your quick response. A good read indeed and I shall be watching for the full report.

Regards

carholme

[Evileyes]

As unbelievable as it sounds, some major airlines are contributing to the death of the ASAP program by using the products of it for internal disciplinary action. Handing the products over to the court system will put the final nail in the coffin.

Should this trend continue, self reporting in the interest of safety via lessons learned will become a thing of the past. It's just not worth the career risk for a crew.

[wileydog3]

As unbelievable as it sounds, some major airlines are contributing to the death of the ASAP program by using the products of it for internal disciplinary action.

Please explain the 'disciplinary actions' which you are familiar with.

[wileydog3]

alf5071h, the data requested by the lawyers is for 'punitive damages'. It does not appear to be central to the suit against Comair. Data reportedly requested includes information showing that Comair pilots had made approaches to the wrong runways or wrong airports thus 'the airline knew there was a problem but failed to correct it as evidenced by the crash of 5191. Not exactly logic but it should work in front of a jury.

In previous requests for ASAP data, no data was disclosed from the American 757 crash in Cali, only some data was provided to the judge in the USAir 427 crash at KPIT and now this is underway on Comair 5191. Also, there are hearings scheduled in DC next month where an former FAA inspector is charging the handling of the accident in KELP with the Continental 737 is a 'cover-up'. This comes at a time when Congressman Oberstar is charging the FAA is too chummy with the airlines as evidenced by Southwest's recent problem with 737 inspections.

It should be a real show... and no doubt ASAPs are going to get a real hard look, especially in a society that knows nothing about Jame's Reason's well explained concept of a "Just Culture".

[Evileyes]

The incidents are under investigation/arbitration and may end up in court so unfortunately no, I can not explain them any more than I have at this time.

[Shore Guy]

Editorial

Don’t Let Lawsuits Lessen ASAP Effectiveness
Aviation Week & Space Technology
03/24/2008 , page 58

Printed headline: Don’t Let Courts Trump Safety

Fiat justitia, ruat coelum. “Let justice be done though the heavens fall.” The nobility of this maxim, dating from imperial Rome, conceals a troubling tilt toward zealotry that is controlling events in lawsuits on behalf of victims of the Comair 5191 crash in August 2006. In this case, the heavens threaten to fall on the FAA’s Aviation Safety Action Program (ASAP), because a federal judge has ordered Comair to turn over to plaintiffs various reports that the airline submitted to ASAP. This isn’t supposed to happen. The ASAP system relies on confidentiality for such documents.

ASAP analyzes operational mistakes and anomalies voluntarily reported by pilots, flight attendants, maintenance workers and others. These analyses seek to avoid aviation accidents by discovering dangerous trends and devising corrective action, which is why ASAP reports are treated anonymously.

But this confidentiality is being eroded by the Comair 5191 lawsuits, which are before the U.S. District Court serving eastern Kentucky. The accident was devastating in its severity and noteworthy for its complex circumstances. Forty-nine people were killed when a Comair Bombardier CRJ100 regional jet on a predawn flight to Atlanta took off from the wrong runway at Blue Grass Airport in Lexington, Ky. The National Transportation Safety Board (NTSB) determined last summer that the most probable cause was the cockpit crew’s failure to realize they were taking off from 3,500-ft., VFR-only, general aviation Runway 26—a 40-deg. difference in magnetic heading from the assigned departure Runway 22.

Attorneys for the plaintiffs have a less-than-straightforward job. Comair has filed actions against the FAA and the airport authority, arguing that each is partly responsible for the crash and should share in the liability. The carrier contends taxiway markings and holding position signs were deficient. More important, the FAA staffed the airport tower with one controller during the midnight shift, and this person didn’t monitor the takeoff because he was engaged in what the NTSB called “a lower-priority administrative task that could have waited.”

That explains the plaintiffs’ bid to get around ASAP confidentiality. The lawyers are trying to show that the Comair 5191 crew didn’t just get it wrong on Aug. 27, 2006, but also that Comair failed to act on previous incidents brought to the carrier’s attention by its own personnel as part of the ASAP process. They are basing claims for punitive damages on the argument that a diligent response by Comair to these reports would have prevented the accident. But to do this, they need to see the reports.

The judge ordered the plaintiffs’ attorneys to keep the records from the public, and Comair has begun turning them over. Aviation professionals, notably the Air Transport Assn. and the Air Line Pilots Assn. (ALPA), say airlines and their employees are unlikely to self-report on operational problems if these reports can wind up in court proceedings.

The plaintiffs’ winning argument was that flight crews and other employees still will have an incentive to submit ASAP reports as a way of improving aviation safety. This naïve view shows a profound ignorance of human nature and recent history. In the total of the roughly 20 years of that particular program and NASA’s Aviation Safety Reporting System, which preceded ASAP, the single most difficult accomplishment was coming up with a system of immunity that self-reporting airline employees could buy into with confidence.

Sadly, ASAP is being put at risk not for the sake of bringing out the facts of this case, which are abundantly clear from the NTSB record, but to bolster a bargaining position in negotiations toward the likely outcome of the lawsuits: a settlement. If the plaintiffs can raise the issue of negligence as well as fault, and thus the possibility of a punitive-damages bonanza from a jury, they will get more from the settlement. As a final irony, such a settlement almost certainly would be sealed under court order, making it confidential—oh, let’s call it what it is: secret—even as ASAP reports are made public.

ALPA has the right approach to this mess: press Congress for greater protection of ASAP’s anonymity. Courts can make the reports available now in lawsuits; Congress should put them off limits, period. The public interest is far better served by encouraging proactive, no-fault safety analysis through ASAP and other programs like it, than by turning ASAP into a bargaining chip for artful litigants. Let the legal combatants make do with the NTSB’s ample record.