Brian Abraham
2nd Apr 2008, 03:45
Editorial
Aviation Week & Space Technology
03/24/2008 , page 58
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.
Aviation Week & Space Technology
03/24/2008 , page 58
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.