Families of Germanwings victims sue US flight school

[RIGHTSEATKC135]

Source: Families of Germanwings crash victims sue US flight school | Fox News (http://www.foxnews.com/world/2016/04/13/families-germanwings-crash-victims-sue-us-flight-school.html?intcmp=hplnws)

The families of victims killed last year when a suicidal pilot flew an airliner into a mountainside in the French Alps filed a lawsuit Wednesday against the U.S. flight school where the pilot was trained, alleging the school failed to properly screen his medical background.

The suit was filed in U.S. District Court in Phoenix against the Airline Training Center of Arizona. It's owned by Lufthansa, which is also the parent company of Germanwings, a regional Europe carrier that employed pilot Andreas Lubitz.

On March 24, 2015, Lubitz locked Germanwings Flight 9525's captain out of the cockpit and deliberately set the plane on a collision course with the mountainside. All 150 people aboard, including Lubitz, were killed.

While training in Europe with Lufthansa, Lubitz had been suspended from his academic course work for nearly 10 months while he sought treatment for depression. In 2010, after returning to Lufthansa with letters from his doctors that he was no longer depressed or taking medication, he was sent to the U.S. for flight training.

German authorities had twice turned down applications from Lubitz for a pilot medical certificate because of his history of depression before issuing him a medical certificate in July 2009 that included a restriction stating it would become invalid if he had a relapse, the suit said.

Had the Arizona school screened Lubitz, the restriction on his German medical certificate would have tipped officials that he'd been previously hospitalized for severe depression and treated with medications that would have prohibited him from flying, according to the suit, which was filed on behalf of more than 80 families.

Lubitz's behavior while at the flight school should also have caused officials to inquire further, the suit said, without providing details of that behavior.

The flight school's president, Matthias Kippenberg, and Lufthansa didn't immediately respond to requests for comment.

"Lubitz's particular history of depression and mental instability made him a suicide time bomb, triggered to go off under the ordinary stresses of life, particularly the kind of stresses a commercial pilot routinely faces," said attorney Marc S. Moller of the New York law firm Kreindler & Kreindler, which represents the families. It's well known that cases of depression frequently recur, although when they will recur is unpredictable, he said.

[Blohm]

"a German Flightschool based in the US being sued"...would be more precise.

[ATC Watcher]

Absolutely , ATCA is 100% owned by Lufthansa Flight training Gmbh , but what would be interesting to know is in which Pilot licencing system they operate , especially their solo flights since the aircraft they use are N registered. If the students are issued an FAA licence to do so, then the medical needs to be re-assessed , as German law does not allow transfer of medical files/ history to a third party. (one of the left over from consequences of WW II). Maybe it is what the lawyers are after .

[dusk2dawn]

Hmmm... the germans are rather restrictive with other peoples data. Recently both UK and Denmark refused to accept german EASA medicals as Germany restricted the information available to the NAAs.

If they had tried, would ATCA have been able to get the relevant information?

[Reverserbucket]

ATCA is 100% owned by Lufthansa Flight training Gmbh
But ATCA is also an Arizona corporation hence the suit in U.S. District Court in Phoenix.

[OldLurker]

Yes, because ATCA is an Arizona corporation the families' lawyers can bring a case in the US, where courts typically award higher damages than European courts. US lawyers cost more too ... so there'll be pressure on Lufthansa to settle (for big money) rather than pour money into lawyers' pockets.

[jvr]

I do not suppose there would be a way of putting mr. Moller and the other attorneys at Kreindler & Kreindler on a no-fly black list, is there?
Not that they would suffer very much from it, as vultures are perfectly capable of flight.

[ExXB]

The lawyers pockets will be filled whatever happens, except if it goes to court and LH wins case and all appeals.

I'm sure they are very nice bottom feeding, blood sucking sharks.

This was an international flight and the Montreal Convention 1999 (and the European Regulation that implements it in all EU Member states) is applicable and air carriers are strictly liable for proven damages up to 100,000 special drawing rights (SDR).

'Strictly liable means that the airline accepts liability (no need to go to court and prove their liability).

So these guys think they can get more. Assuming the lawyers will get 30% that means they need to secure more than 130,000 SDR per passenger in order for the plaintiffs to improve on what the Convention gives them. Oh, and if they get less than 130K they still will claim 30%, the difference coming out of the plaintiffs pockets.

[DirtyProp]

Ridiculous.
I sincerely hope they will be thrown out of court.

[noske]

"Lubitz's particular history of depression and mental instability made him a suicide time bomb, triggered to go off under the ordinary stresses of life, particularly the kind of stresses a commercial pilot routinely faces," said attorney Marc S. Moller of the New York law firm Kreindler & Kreindler, which represents the families. It's well known that cases of depression frequently recur, although when they will recur is unpredictable, he said. Would the FAA Aerospace Medical Certification Division agree to such radical point of view? Take a look at Lubitz's medical history, section 1.13.1 in the BEA report.

08/07/2010: Letter from the FAA to the co-pilot informing him that he was not eligible to hold an airman medical certificate at this time, due to his history of reactive depression. The FAA asked him to submit a report from his prescribing physician that should include diagnosis, prognosis without medication(s), follow-up plan and copies of treatment records.

And then, after submission of the requested paperwork:
28/07/2010: Issuance of a FAA third-class medical certificate without any limitation. The letter from the FAA accompanying the certificate indicates that because of the history of reactive depression, "operation of aircraft is prohibited at any time new symptoms or adverse changes occur or any time medication and/or treatment is required".

Like Lufthansa Aero-Medical Centre, the FAA obviously were aware that depression can recur, but did not expect it to do so without timely signs of warning.

In hindsight they were wrong. Well, not about the signs of warning (section 1.13.1 in the BEA report has no less than eleven entries for the final four months), but about the expectation that these signs would stop Lubitz from flying.

[chuks]

I think it was so that Lubitz only got a Third Class medical from the FAA so that he could fly solo during his training in the States. (The FAA medical form has a little beige sub-section that forms your Student Pilot License when it's validated by your AME. That is what you need to fly solo in the States, along with an appropriate sign-off in your logbook from your Flight Instructor.)

Most people in Lubitz' situation routinely would go for an FAA First Class medical, since that is usually a prerequisite for entering training for a professional license, a license that requires a First Class medical in order to exercise its privileges. In other words, there would be no point to training someone for an FAA Commercial license if he were not able to obtain that necessary First Class medical. If all you could get was a Third Class medical then you would be expected to train for a PPL, nothing more.

What the FAA signed off on there was only allowing Lubitz to fly as PIC under Part 91 (non-commercial flying) and Part 141 (flying on an approved curriculum in a flight school), both as a student pilot, subject to approval from an FAA-licensed CFI. (It would have been a very brave examiner who would pass an applicant for a PPL with Lubitz' history of depression, for fear of another version of what he did, using an aircraft to kill himself.)

Lubitz would have been barred from flying even under FAA Part 135 (commercial operation of light aircraft) with only a Third Class medical. Too, he most probably did not give full and honest answers to that question about how many visits he had made in the last year to health professionals and for what reasons. If he had, then his history of depression would probably have caused the FAA never to issue his medical.

The FAA is in the clear on this for two reasons:

The FAA has "sovereign immunity," meaning that they can not be sued for any oversights they have made.

The FAA stopped short itself of certifying Lubitz for anything more than non-commercial, student flying, as far as I know. Here's what the database at faa(dot)gov shows for him:

ANDREAS GUENTER LUBITZ

Medical Class: Third, Medical Date: 6/2010

STUDENT PILOT

PRIVATE PILOT (Foreign Based)
AIRPLANE SINGLE ENGINE LAND
GLIDER

Limits:
ENGLISH PROFICIENT.
ISSUED ON BASIS OF AND VALID ONLY WHEN ACCOMPANIED BY GERMANY PILOT LICENSE NUMBER(S) 27788 9460.
ALL LIMITATIONS AND RESTRICTIONS ON THE GERMANY PILOT LICENSE APPLY.

Lubitz' FAA Third Class medical lapsed on 6/2012, more than 2 1/2 years before he killed himself and everyone else aboard his aircraft. At the time of his act of murder-suicide he was not FAA-certified to act as a pilot, given that he did not then hold a valid FAA medical.

The Lufthansa flight school in Arizona, on the other hand ... they trained and passed a fellow who had already dropped out for ten months because of severe depression, and then unleashed him upon his fellow aviators and his passengers as someone who was safe to fly with.

Lufthansa has had a large surplus of highly-qualified applicants, so that it's very difficult to understand why they allowed this man with such an obvious, high-risk problem as severe depression to go through training and then get into the right seat of an airliner.

I wonder if there is some back-story to this, someone with "pull" who mistakenly befriended Lubitz by getting him back into the training program after he had already had to drop out.

I really hate to see people who tell about how "It's always been [their] dream to be a pilot," and so on. Yeah, well, dream on, Pal, but being a dreamer is not a sound basis for success in a demanding, highly technical field such as professional aviation, especially not when chasing that dream leads you to ignore some obvious personal short-coming such as wanting to kill yourself!

As to suing in the States, rather than just taking that hundred thousand euro per victim and buggering off .... If I had lost someone in that crash then I would want to see a team of the biggest, meanest, lowest, most bottom-feeding, ambulance-chasing lawyers who ever put on sharkskin suits and two-tone shoes turn that flight school upside down and shake it violently until every last bit of loose change fell out of their pockets.

What would you guess, five million per victim, including the Captain on that flight, when you factor in getting to watch your Captain hammering on the cockpit door while the view out the windows shows the Alps first slowly and then quickly getting bigger and bigger? What sort of "pain and suffering" that must have been, and pretty directly caused by passing on a guy who never should have been put through that school. Lubitz himself, had he survived, would probably have walked on an insanity defense, given that he would be unlikely to ever be allowed to do that again, but who allows an insane person to become an airline FO?

[Linktrained]

RED BULL

In 1949, before starting my CPL course at A.S.T., Hamble, it was suggested (or was it insisted?) that I ought to have a full Medical at the Central Medical Board in London. This seemed sensible. SO I DID... And passed. ( I was younger, then, too !)

MY medical records are available in the UK, and these may help Medical Research, for the benefit of others.

[Denti]

Most people in Lubitz' situation routinely would go for an FAA First Class medical, since that is usually a prerequisite for entering training for a professional license, a license that requires a First Class medical in order to exercise its privileges. In other words, there would be no point to training someone for an FAA Commercial license if he were not able to obtain that necessary First Class medical. If all you could get was a Third Class medical then you would be expected to train for a PPL, nothing more.

He wasn't training for a FAA license, he was training for an european one. Therefore there was no need for a higher class of medical and i doubt his peers did get anything higher than class 3 as well.

Even in the ATPL training system lufthansa used before EU regulations came around the students would only aquire a FAA class 3 medical, issued by the lufthansa medical center, which was enough to get their US PPL, a part of the training that was required to approve the "team flights" where two students would take a bonanza or baron out for a day of (usually cross country) flying without a flight instructor on board.

[Reverserbucket]

I think it was so that Lubitz only got a Third Class medical from the FAA so that he could fly solo during his training in the States.
Correct chucks - he already possessed a JAA Class 1 Medical issued in Germany - the FAA 3rd Class was for student pilot purposes to complete the solo element of the JAA Integrated CPL course in AZ. This has nothing to do with the FAA; it is the fact that a problem had been identified and the school allowed him to continue training following evaluation - the fact that a proportion of the training was conducted in the US and that if successful, a law suit would likely yield a greater award (as stated by the lawyers), this really should come as no surprise.

Oxford at the time, and now CTC operate from the same facility as ATCA - I wonder if other schools are concerned about potential liability issues in light of the possible outcome?

[chuks]

" ... two students would take a onanza or [B]aron out for a day of (usually cross country) flying without a flight instructor on board."

That is not possible under FAA rules for student pilots who hold only student licenses. Have a look at this:

"A review of the NTSB cases involving students who carry passengers indicate that there are really four categories of violations:

Students who, even though they did not possess a private pilot certificate, believed they had sufficient experience and qualifications to carry passengers and were observed either picking up or dropping off passengers at other airports.

Students who violated an FAR during a cross-country flight, such as improperly entering Class B or Class D airspace, and it was determined during an FAA investigation of this violation that a passenger was on board.

[B]Students who mistakenly believed that they could fly with another student pilot who was approved for solo in that aircraft. The FAA determined that the passenger was the other student pilot.

Students who flew with a private pilot and assumed that the private pilot was automatically PIC. In this situation, the burden of proof is on the student to show the FAA that the other pilot (private or higher) is PIC." (my emphasis)

(- Flight Training (http://flighttraining.aopa.org/students/crosscountry/articles/2878.html))

If Lubitz already held that FAA-issued PPL (issued on the basis of his German license) at the time that he was training in Arizona then he could have flown a Bonanza along with another student, using his FAA PPL/ASEL. That time would not have counted as "solo" however.

Lubitz would have needed to have a CFI who was sat in the right front seat if there was anyone else with him in that Baron, because he did not have a PPL/AMEL

Lubitz would only have been legal on a Baron (a multi-engine aircraft) for flying under instruction, and for solo flight with a sign-off from a CFI for that. There is no legal way to operate under FAA rules as the holder of only a student pilot license with anyone else aboard your aircraft unless you have a CFI in the right-hand seat who has access to the flight controls. He is then P1 and you are P3 (pilot under instruction). If you are on an approved solo flight, alone in the aircraft, then, and only then, are you legal as P1.

Lubitz might have been signed off for solo in the Baron, but that would have precluded having a fellow student along on that flight, because "solo" means exactly that.

In fact, even as a licensed pilot, having someone else along on a flight, even a non-pilot, means that it does not count as a solo flight. If you need X hours of "solo cross-country" then those hours must have been flown with you as the sole occupant of the aircraft, not just with you as the sole manipulator of the controls.

Do I know what I am talking about? I hope so:

FAA:

FLIGHT INSTRUCTOR (Gold Seal)
AIRPLANE SINGLE AND MULTIENGINE
INSTRUMENT AIRPLANE

GROUND INSTRUCTOR
ADVANCED
INSTRUMENT

[hampshireandy]

The families are understandably devastated for the loss of their relatives, oh but hang on, lets see if we can screw a few quid out of an innocent company and we may not feel quite as devastated. Damn this compensation generation.

[chuks]

Err, how do you see the school that trained Lubitz and then unleashed him upon aviation, overlooking his mental state, as an "innocent company?"

I am with you to some extent when it comes to our American compensation culture, along with all these predatory "no win-no fee" lawyers, but in this particular case I think that a lot more than just one hundred thousand euro compensation is called for, and if the school that trained Lubitz is the way to get money out of Lufthansa, then so be it.

There's another culture that comes into question here, the German one that puts following procedures above higher interests. It dictated that everyone who knew about Lubitz' problems, something like 40 (!) different medical professionals, all found it a good idea to keep quiet about that, so that none of them contacted Lufthansa or the LBA about having this pilot on the loose who was really unhinged, perhaps a risk to himself and others. That goes back to the school, who knew, or should have known, what they had on their hands there.

The FAA comes into this to some degree, but just for respecting the opinion of the German authorities when Lubitz did not pose such a great risk to America as such. Most of the remaining responsibility, past the fact that Lubitz did the deed, lies with Lufthansa, and that is a Lufthansa school there in Arizona that is subject to American law.

If Lufthansa had wanted a more benign environment then they should have picked some other place than the USA for their school, but I suppose that nobody foresaw passing on a candidate who had been mentally ill, and in fact still was mentally ill!

Looked at in a slightly different way, say you were a driving instructor who had some "emo" teen on your hands, one of those with the black fingernail polish and the self-harm scars, when you might guess that his strongest secret wish was to get his license and then drive his car into a crowd of people, just going by his demeanor and all. Should you respect his right to privacy, say nothing, and help him get his license as a matter of routine, and then not expect to be sued for that when mayhem ensues?

[Bronx]

chuks Err, how do you see the school that trained Lubitz and then unleashed him upon aviation, overlooking his mental state, as an "innocent company?"
No better no worse than your judge jury and executioner comments. We've only got the plaintiffs side for now.

jvr I do not suppose there would be a way of putting mr. Moller and the other attorneys at Kreindler & Kreindler on a no-fly black list, is there?If there was you'd have to put attorneys in Germany, Holland and the United Kingdom on the list. According to Kreindler's website their working together.
The compensation culture started here but it spread to Europe a long time ago. I know for a fact some law firms in London have agents around the world working on commission trying to get folk to make claims. Whenever there's a crash the vultures gather and try and get a slice of the action. The agents get paid a commission if they sign folk up.
Another thing ambulance chaser type of lawyers here do is get free publicity by making statements to the media when there's an accident and get their name mentioned. They usually say they are already "helping" clients from the accident to try to attract more trade. Helping!! They make it sound like they are just trying to help folk but it's a mega bucks business. The more clients they get the more money they make. The lawyers get 40% off every plaintiff + all their expenses back. Easy money in airplane crashes. I know some British law firms do the same thing because I've seen it mentioned in threads on this site. For example the helo crash in London a few years ago and the Shoreham crash. I bet there are lawyers doing the same thing in the rest of Europe.

[ATC Watcher]

Chuks,
you said : 40 (!) different medical professionals, all found it a good idea to keep quiet about that, so that none of them contacted Lufthansa or the LBA
Yes, but from your profile you say you live in Germany, then you might know about the regulatory changes passed today regarding Pilots mental health supervision , as a direct aftermath of this accident that are making headiness news this evening.

But that does not alter the medical secrecy and transfer of medical data to third parties, which is unlawful in Germany and an MD who does that will be prosecuted and will most probably end up in court.
These laws dates back from 1946-47 , mostly because MDs under the 3rd Reich were forced to hand over medical data of their patients to the police , and those proved to have disabilities (genetic or mental ) were send to the concentrations camps to be eliminated. Changing old rules like this one today is still a big issue in Germany. Maybe this case will unlock the situation, but it will take some more years I fear.

[Chronus]

On another forum ( The Rostov B738 crash ) fierce airline bashing and blood letting is taking place. On this one similar medicine seems to be meted out to lawyers.
So the question is, who is to sort out all these pilot exploiting, slave driving, unscrupulous airlines, who is to make sure that never, ever again an airline permit another nut case to sit in the sharp end of an aircraft.
Can you think of any one else but lawyers. Ask any victim of any tragedy and by that I don`t mean those who have perished, but those who are left behind as to what can be done for them. Most would ask for justice and that others should be spared from the suffering they will have to endure for the remainder of their lives.
In the Grand Scheme of things, just as dolphins and doves are needed, so are vultures and sharks.

[pax britanica]

Posters are certainly right about the compensation culture spreading to UK. In fact its probbably worse here than in the US because US judges have decades of expereince at spotting legal scams wheras the ambulance chasers area relatively new phenomenum here in Britain.

The problem is lawyers cost more than they are really worth and therefore joe publ;ic finds it prohibitivley expensive and a risk to use a 'reputable' firm because if he loses he can lose his house and go bankrupt , the no win no fee route avoids this but ribs clients blind on fees .

the other fix is to up the fixed compensation level to say 250K per pax becaus e 100k isnt really enough these days . If 250K isnt enough for you then you probably have the resources to hire layers yourself but at the moment the low compensation level puts victims between the deep blue sea of the risk of losing and the devil in the form of the sharks

[ExXB]

The MC liability limits are subject to inflation. In my previous post I mentioned 100,000 SDR. Actually that is now 113,100.

In Euros; 141,000
In dollars 158,794

And that's without spending a penny, or cent, on lawyers.

The lawyers will take 30% of any settlement. Even if they fail to get anything over the MC limits they will get their pound of flesh.

[chuks]

Well, guys, let's wait and see what happens next. It looks to me as if Lufthansa is exposed to serious liability under US law with this one, but what do I know? I am sure that a plaintiff could do a deal with even the greediest lawyer that guaranteed a minimum payout after the lawyer's cut that exceeded $160,000, freeing the lawyer to take a swing at one very large piñata.

Yes, ATC Watcher, I know about those secrecy laws. No way to do an end-run around them, none at all? There you have a guy who was very obviously hiding an extremely dangerous condition and thereby posing an unacceptable risk to innocent people. There was nobody sending him to a gas chamber or even a camp then.

He had multiple prescriptions for medications that were illegal to use while flying, didn't he? Some guy comes into your practice to get that kind of stuff and you don't bother to ask about his background, perhaps to check if Lubitz, Andreas Günter shows up on the LBA database as an airline pilot? There you get into a different sort of German mindset, that "This was not my job," that "I build the rockets to go up in the air; where they come down is not my affair."

You know about the German government itself buying stolen bank account data from Switzerland, data that violated strict Swiss banking secrecy laws, I assume. How odd that there was no "But, but, that's illegal!" in that case. Catching German tax evaders is different from keeping 149 people away from dying screaming, so that it's okay to bend some Swiss rules chasing German tax cheats.

[ATC Watcher]

Chuks : Oh yes , your point about the State breaking its own laws when it suit itself is very valid, the argument of course is it was for " the good cause "( here catching tax evasion to get some money back into the treasury.)

But the lone MD will receive a different treatment. If I read the French Judiciary report correctly, Mr Lubitz went to 41 different MDs , most did not know his real employment but some did . One wrote " Pilot with G. " on its records , and one in particular knew him very well : his Psychiatrist in his home town, following him since years and with whom he corresponded by e-mail until hours prior his act.
But whether any of those MD knew he would be still flying after their consultations is another mater.
Most of theses MD had issued work stoppage prescriptions ( yellow papers) most of them were found back unused in his apartment apparently. So those MDs will argue they did " their job"

The huge issue is that following an MD advice is still a voluntary issue, and an MD informing one's employer behind the back of the patient is (still) an illegal act in Germany. That I think need to be changed for some professions , not only pilots, but defining that list will also be a challenge.

The last issue is that some illnesses , especially mental ones are immediately disqualifying you from flying duties and imply a loss of licence. In addition almost all , if not all, Pilots Loss of licence insurance still excludes mental illnesses , so hiding it as long as you can is not going to go away, and if now MDs are forced to mention it to your employer , affected people are likely not to go to see or talk to MDs anymore, making perhaps the problem worse..

That said if it had been your kids ( lot of those in that aircraft) in that A320 you would probably try anything in your power to do something about this . If a US lawyer promised you a way , who can say you would not have done the same ?

[RatherBeFlying]

Worse comes to worse, Lufty can simply fold the tent of their US training facility and the plaintiffs can divvy up whatever assets are available. If the aircraft are subject to collateral mortgages as recommended by any competent aviation lawyer, there will be very little.

Their insurers will be defending with very capable lawyers, but likely the face amount of the liability coverage is $2 million.

Best case for the plaintiffs sees $3 million less 30% / 100+ ~= $20K per Pax.

That all depends on plaintiffs' lawyers establishing that every flight training establishment must have a psychiatrist on retainer:}

[Wageslave]

Moneygrubbibg bottomfeeders. Have they no shame?
There is no one alive to sue over this. What a sick way to try to get rich.

[RavenOne]

........................

[Flying Lawyer]

WageslaveThere is no one alive to sue over this. What a sick way to try to get rich.

I am not in any way defending the behaviour of the sort of lawyers who tout for business as soon as there's an accident (getting their names in the press in an attempt to attract potential clients, using agents on commission to track down more business etc) - far from it - but I wonder if you are overlooking the fact that many people killed in accidents have families who have lost their primary or only source of income?

eg If a parent's death is proved to have been caused by someone else's negligence, is it unreasonable that their children should be compensated? Or should they just lose the lifestyle they would have had, and perhaps their home, as well as their parent?

[chuks]

Assume that Lufthansa bought a widget from a small German supplier, a widget that was made in the USA, when the damned thing exploded and damaged one of their aircraft.

Would Lufthansa then sue the small German supplier, under German law that might strictly limit liability for widget suppliers, or would they sue the big American manufacturer of the exploding widget under American law? Answers on a postcard ....

[parkfell]

I suspect that the LIMIT OF LIABILITY amount was decided as reasonable for ACCIDENTS to give modest compensation, and protect the airline so that it continued to exist and keep on flying. An accident as simply defined.....

BUT this was no accident. It was a deliberate act of mass murder.

Perhaps the lawyers can say when the LIMIT OF LIABILITY is not valid, and if vicarious liability comes into play.

Enough to put the spin doctors into a flat spin as clearly his medical was now invalid (degrade in health since its issue) and therefore his licence was null and void. It follows therefore the aircraft insurance etc is seriously in jeopardy as well?

[1201alarm]

What seems hidden in the statements of these plaintiffs is the difference in "Schmerzensgeld" and "Schadenersatz".

"Schadenersatz" is paid for loss of income, and is oriented on what you have actually lost in income from your husband, father, etc. as a dependant person from the victim.

What is being sought in this process is however "Schmerzensgeld" which is a compensation for indured psychological pain. Such compensation is usually much higher in the US than in Europe. Europe has a tradition that such psychological pain is part of life, while in the US it can be your financial jackpot.

That is why the lawyers are desperately trying to construct a link to US soil in the crash. It will be interesting to see if Lufthansa will give in to the attempt to avoid bad publicity, or if they will fight it out as the case seems ridiculous.

In Europe, the case hasn't made such a big headline, guess this is actually based on the tradition that "Schmerzensgeld" should not be your financial jackpot.

[vonbag]

This , what precedes this post of mine, makes it for very interesting reading. I got deeply involved with the Germanwings air-crash. I could not believe it was a suicide mission. I strenuously tried to demonstrate the opposite, with all I had. I still find hard to digest the bold truth. On my end, off topic, I lost all of my licenses because I had an alcohol problem. There was a spy and I was caught. I spent time. I deserved it, I admit. But I always brought them all safe at home , passengers and crew. This would *really* be a matter of suicide if I had not. Others can, but my conscience does not forgive me (feel free to trash this thought of mine). Best, Aurora

[chuks]

The link is there. It's the Lufthansa-owned and -operated flight school in Arizona, USA that produced Andreas Lubitz. There it seems pretty clear to me that Lufthansa is exposed to possible action under American tort law.

Consider the plight of VW in the USA now.

Tellingly, in the States the opening ploy was "Here, have a thousand bucks walking-around money, just for starters, while we figure out what to do next." Here in Germany there was no question of handing out that sort of money to VW customers; many are simply stuck waiting to find out how VW should fix their cars.

Now the real legal troubles, the big ones, start for VW in the States, when it's not going to be "Oh, but that was Volkswagen Group of America, not VW AG of Wolfsburg, Germany!" The problem, as it also is for Lufthansa, is not a link to US soil, but a link between a US entity, VW Group of America in one case, the Lufthansa Arizona flight school in the other, and their respective parent companies in Germany, the big companies with the deep pockets.

[Flying Lawyer]

parkfellI suspect that the LIMIT OF LIABILITY amount was decided as reasonable for ACCIDENTS to give modest compensation, and protect the airline so that it continued to exist and keep on flying.No.

--

There are no limits upon the amount of compensation that can be obtained for passenger injury or death.

The Montreal Convention (international air carriage) - very brief summary:

Claims for damages up to 113,100 SDRs (currently £112,000/EUR141,000 approx)
A carrier cannot exclude or limit its liability for proved loss.
This is known as “strict liability”.

Claims for damages above 113,100 SDRs
Where the loss suffered by an injured party/the family of the deceased is greater than the 'strict liability' limit, a carrier is only able to avoid paying the greater amount if it can prove that it was not negligent or otherwise at fault. ie The carrier has to prove that it is not liable.

That is the opposite of the usual legal position where, in order to obtain damages (compensation), claimants/plaintiffs have to prove that individuals/corporations they sue are liable.


I make no comment about the Germanwings accident, not least because we don't yet know the defendants' response to the claimants' allegations.
I leave jumping to conclusions upon limited information to others who wish to do so.

[Jonty]

I think German law specifically limits the liability of Lufthansa. So the only way the families of the victims can get at Lufthansa is through the flying school based in the USA.

I don't think the families are after the flying school as such, they want to hold Lufthansa to account, but the only way they can do this is via this "back door" method.

[RAT 5]

Everyone s talking about this being an issue for the average AME's. IMHO it is a more complicated psychological issue. In the short time an AME examines the physical side of a pilot I wonder how likely it is they 'might' spot anything untoward about the 'between the ears' area.
In early 80's pilot airline pilot selection was via a chat with the Flt Ops guys and a check on licences etc. In mid-80's the psychiatrists had been busy empire building and the HR brigade hung onto their coat tails. The interview and selection process was now out of the hands of pilots and into the hands of the theorists. If the paperwork was all in order it became common to spend many hours filling in psycho-babble mumbo jumbo questionnaires. At BA, during a DEP selection process, there was a near riot by the classroom of candidates at the perceived idiocy of many of the questions. They seemed more trying to trick/trap you than discover anything pertinent.
If I understand LH has severe psycho analytical tests for candidates; or perhaps it is a general German system. Either way, if Lubitz was passed as suitable it doesn't say much for accuracy the system. Or am I missing something?

Having said that, in UK I know many guys who tripped up at BA's HR selection hurdle and met some who passed through. It was very difficult to fathom sometimes. The good guys failed and some muppets snuck under the radar. Scary. Not dangerous, just weird.

[chuks]

FL, could this be characterized as forum shopping?

I think that the UK has seen a lot of libel suits, even over publications originating elsewhere, supposedly because of the relative ease of winning a libel case in the UK compared to many other jurisdictions, what has been called forum shopping.

Is it so that it might seem to be both easier to win and easier to obtain higher compensation by bringing a case in the USA compared to doing that in Germany, hence this somewhat indirect approach? American juries are notorious for sometimes awarding amazing sums on somewhat tenuous grounds, which is why I ask.

[Denti]

If I understand LH has severe psycho analytical tests for candidates; or perhaps it is a general German system. Either way, if Lubitz was passed as suitable it doesn't say much for accuracy the system. Or am I missing something?

Yes. The system is designed to find an applicant with the right set of soft and hard skills as well as the right personality profile. And there are specially trained pilots in the process, it is not only the psychologists. However, the whole thing is not designed to test for mental illness.

[chuks]

Wouldn't part of "the right personality profile" have to include "not being mentally ill"?

We had this one company shrink back at base in Europe who put all applicants for West Africa through a full battery of tests. They finally stopped using him after a series of weirdos showed up on the job, all having been checked and approved by him!

Now that I think of it, he did find that I was perfectly sane ....

[RAT 5]

I wonder: we are tested for competence every 6 months. Can we do our job accurately and achieved the required standards. We are tested with non-normals in the sim and normals in line checks. Who checks these HR psycho people? If they let through some whacko are they competent? Has this type of selection process ever been reviewed? Have these empire building people taken over the farm?
Dent mentioned pilots are involved in the German process. Are they direct interviewers? Sense & gut feeling can be a small but relevant part of the process.

[Jonty]

Maybe a meeting with a psychologist every 2-3 years should be part of the class one medical. Also allowing full access to your medical records by the relevant CAA.

[parkfell]

In the UK, one of the items the AME assesses is your mental state, not that they are specialists in that discipline.
And as part of the UK process, you agree that your GP can be contacted if necessary.

The process mainly relies upon the pilot being honest when filling out the medical form at the AME examination.

As reported, the BA recruitment process is far from perfect and that is over a number of days. So just how the AME is meant to spot a mental health problem,well hidden, in an hour would be difficult.

A significant period of time is necessary to penetrate the mask and reveal their true colours. Probably the period of full time flying training would be ideal as any other.

So ATOs are, as we speak, now developing another item to report on monthly for the under pressure instructors to battle through. And of course appropriate training will be given to identify the signs:ugh:

[Phileas Fogg]

This was an international flight and the Montreal Convention 1999 (and the European Regulation that implements it in all EU Member states) is applicable and air carriers are strictly liable for proven damages up to 100,000 special drawing rights (SDR).

'Strictly liable means that the airline accepts liability (no need to go to court and prove their liability).

So these guys think they can get more. Assuming the lawyers will get 30% that means they need to secure more than 130,000 SDR per passenger in order for the plaintiffs to improve on what the Convention gives them.

And 70% (100% less 30%) of 130,000 is? ... Less than 100,000!!!

[chuks]

"Strictly liable" means, I think, that you are sure to get about $150,000 US in any case, no lawyer needed. That would imply that you would only involve a no-win, no-fee lawyer when looking for a payout in excess of about $215,000, since 70% of that would be about $150,000, putting you back where you started.

For 130,000 SDR the number would be about 186,000.

(You need to divide X by seven and then multiply the result by ten to get the amount needed to yield X when thirty percent is deducted from it; it's more than the $195,000 or 169,000 SDR that you might first guess at.)

[mikewil]

Also allowing full access to your medical records by the relevant CAA.

I can see where that will go. We will have a whole generation of pilots who choose to either suffer in silence or 'self medicate' for their condition because they don't want any record of it that could possibly cause them an issue in obtaining their medical certification.

Not the safest option IMHO.

[Jonty]

That may be true, but neither is the current situation. As has been proved by the accident that caused this discussion.

The problem is, how do you find out about a problem that someone is trying to hide?

Answers on a post card please!

[16024]

Jonty: The accident that caused this discussion doesn't really prove that the current situation is not the safest option.

[16024]

Looked at in a slightly different way, say you were a driving instructor who had some "emo" teen on your hands, one of those with the black fingernail polish and the self-harm scars, when you might guess that his strongest secret wish was to get his license and then drive his car into a crowd of people, just going by his demeanor and all. Should you respect his right to privacy, say nothing, and help him get his license as a matter of routine, and then not expect to be sued for that when mayhem ensues?

Yes! That is the whole point.

[Reverserbucket]

So ATOs are, as we speak, now developing another item to report on monthly for the under pressure instructors to battle through. And of course appropriate training will be given to identify the signs:ugh:
It should be - EASA and the FAA view initial training as distinct and separate from the rest of an airline pilot's career - for an integrated CPL or MPL candidate it should not be. As an instructor, you spend more time with a prospective pilot than any AME, Psychologist or Psychiatrist and frankly, if you need training to identify unusual personality traits or judgement calls that 'may' be indicators of mental health problems, then you're probably coaching not teaching.

EASA are currently consulting with EU States on the issuance of new Operational Directives concerning a number of the 4U Taskforce recommendations including Psychological and psychiatric evaluation of applicants for Class 1 medical certificates and the Psychological evaluation of flight crew by CAT operators for implementation in the very near future, but when are they going to recognise the part the ATO plays - pre-training and pre-employment evaluation are all well and good but if a proper reporting, review process and mechanism exists where a student flagged as having 'non-technical' issues can be chopped from training instead of simply moved to another instructor as happens too frequently for commercial reasons, and if instructors, particularly at those ATO's operating outside of EU Member States were properly supervised and came under greater oversight through either EASA or the appropriate NAA in addition to their own national requirements (e.g. FAA) from a standardisation perspective (i.e. during annual approval inspections, instructors were selected randomly for sampling by the NAA rather than being provided by the school management based on known ability), I for one would be more satisfied that appropriate checks and measures were in place to help identify another potential Andreas Lubitz.

[GlueBall]

Lubitz didn't come straight out of flight school to crash, he was flying the line with Germanwings for about 18 months before the crash. This time factor in itself would distance the flight school's implied responsibility for psychological snafus, if ever noticed & addressed, during his training. Ultimate medical fitness for flight rests with the German licensing authorities and the employer. Suggesting that this flight school was responsible for the crash 18 months after graduation, is like blaming a bartender for last week's hangover.

What's bizarre is the assumption by plaintiffs that a U.S. court would somehow embrace jurisdiction of this deliberate crash in a foreign country, by a foreign crew, operating a foreign manufactured & registered jet, by a foreign airline.

[fantom]

Glue:

Exactly. This is nothing but a case of ambulance chasing.

[chuks]

What's somewhat plausible is the assumption by plaintiffs that a U.S. court might somehow embrace jurisdiction of this deliberate crash in a foreign country, by a foreign crewmember trained by an American flight school, operating a foreign manufactured & registered jet, by a foreign airline.

Hey, it never hurts to ask!

[DirtyProp]

Hey, it never hurts to ask!
Especially if there's a large amount of $$$ involved....
Come on, now. They should be ashamed of this scheme.

[Yankee Whisky]

It is my experience as a flight instructor that the medical certificate is a requirement in addition to the license. It was not my responsibility to question the medical certificate.
If a student showed weird characteristics, it became a discussion between the CFI and instructors to determine how to treat this student. In some cases we refused to train him/her any further. So, this leads me to question the legality of going after a flight training center.

[kcockayne]

We are all very sorry for the families, but this is just "money grabbing" & hitting out in whichever direction is possibly going to result in a financial reward, l think.

[chuks]

That is what Liberace said about being picked on for his terrible style of performing. I am sure that the American lawyers working on this case will have to live with the shame of being called "ambulance-chasers" in somewhat the same way.

The thing is that in the case of Lubitz he had to take a ten-month break because of severe depression, so that his illness was well known to Lufthansa's school. Too, there was that problem getting him his FAA Student Pilot License, the one off the front of his FAA Form 8500, the medical form. I assume that the school passing him along as a fit candidate for work as an FO despite his illness will be the main issue, since the FAA can not be sued for having passed Lubitz as fit to train as a Student Pilot.

It's an impossible question to answer, but how would the FAA have reacted to the renewal of Lubitz' Third Class, and would they ever have agreed to him getting a First Class, given his medical history? As it was, he went through the American flight medical certification process just once, and at the lowest level possible.

[Denti]

I assume that the school passing him along as a fit candidate for work as an FO despite his illness will be the main issue,

Somethine ATCA didn't do, and couldn't do. The final part of the training, including the practical ME flying, is done in Germany with Lufthansa Flight Training, not ATCA in Arizona. ATCA is just a contractor (although wholly owned by lufthansa flight training), that is contracted to do some parts of the initial flight training.

It will be interesting to see if ATCA had any information about the medical status of Lubitz beyond him having an unrestricted FAA class 3 medical, or if it didn't. There should be a papertrail if they did, but it is not a sure thing at all.

It's an impossible question to answer, but how would the FAA have reacted to the renewal of Lubitz' Third Class, and would they ever have agreed to him getting a First Class, given his medical history? As it was, he went through the American flight medical certification process just once, and at the lowest level possible. And it is completely irrelevant in this case. He never applied for a higher medical class, he never needed to do that and why would he? Getting the FAA class 3 medical is the normal case for this type of flight training, and there is no reason to get more (and pay more) if one plans to work in europe as a pilot.

[chuks]

"[Lubitz] never applied for a higher medical class; he never needed to do that and why would he? Getting the FAA class 3 medical is the normal case for this type of flight training, and there is no reason to get more (and pay more) if one plans to work in Europe as a pilot."

It might be normal for that particular school, but I can assure you that anyone who is at all serious about a professional career in the States will start with an FAA Class One medical just to get that Student Pilot's license, as I did. Getting a Class One, not a Class Three " ... is the normal case for this type of flight training .... "

You only get a Student Pilot license out of the exercise, true, but you know then that you do not have some condition that will bar you from later exercising the privileges of a professional license requiring a Class One. The small difference in price is not a factor for someone who is going to be taking up a course of training that will take years, since it gives assurance that all that hard work and time spent should pay off in the end with a job as a pilot.

Looked at in a certain way, for the FAA to say "Okay, here's your Class Three to fly as a student pilot," and to leave it at that is "passing the buck," leaving it up to the LBA to have approved Lubitz for a Class One despite his history of severe depression. There the FAA was ignoring the obvious end goal, Lubitz holding a Class One to act as a professional pilot, to merely look at the presumably lower FAA requirements for a Class Three to act as a student pilot.

One prerequisite for doing the course for the ATPL writtens at London Met about ten years ago was holding a valid Class One medical, including a medical examination from the British CAA itself, not just from a normal medical examiner, if I remember that correctly. Why did they require me to hold a Class One medical, just to sit in a classroom to study for some writtens?

We might not be having this discussion if Lubitz had been required to get an FAA Class One before going solo in the States. Who knows?

[Denti]

It might be normal for that particular school, but I can assure you that anyone who is at all serious about a professional career in the States will start with an FAA Class One medical just to get that Student Pilot's license, as I did. Getting a Class One, not a Class Three " ... is the normal case for this type of flight training .... "

You miss the point. He wasn't doing flight training to work in the US, he had no chance to work there to begin with (no citizenship, no greencard), and he was, as many europeans do, just doing some flight training in the US to lateron work in europe, not the US.

What you say is most probably true for someone training in the US to work there. It is not for europeans doing some of their training in the US to work in Europe. The FAA didn't pass the buck, it was not FAA training to begin with, the FAA does not know MPL training for starters (which by the way, is only completed at the end of the LIFUS phase, in this case on A320). And he held a european class 1 medical after all.

The europeans just take advantage of the low costs in the US compared to europe, same as a lot of their other companies do as well.

[chuks]

My point is, why not require that your European student also get a Class One medical from the FAA? By that sort of logic, Lubitz, needing only a Class Three from the European authorities as a student ... why require him to have a Class One instead?

Come to that, why should the FAA require another medical of someone who holds a valid LBA medical? They accept the foreign license, so why not accept the foreign medical?

Requiring a student to have a Class One medical instead of the bare minimum Class Three would be taking a "belt and braces" approach, adding one more check for a candidate for a professional career as a pilot.

If this suit goes ahead in the States, I would expect this issue to come up. It will be interesting to see if it does.

If you have obtained a foreign license, then you may have noticed how you end up duplicating a lot of the checks and tests that you have already been put through by your home authority, when that higher class of medical would simply be one more of those.

It would be interesting to know if the school now requires an FAA Class One for its student pilots, as one more way of trying to catch the next Lubitz before he gets too far in the system.

[sk999]

I am lost. Lubitz had a German Class 1 medicate certificate, which means that, as far as LBA is concerned and in spite of all the caveats, he was considered to be medically fit to fly a commercial airliner. Do I have that right? Yet because he might not be medically fit at some indefinite time in the future, he should not be allowed to learn to fly now?

Yesterday the complaint was available online at the Kreindler website, but now they seem to have pulled it.

[chuks]

Two different jurisdictions, FAA and LBA, with very different standards. (I have dealt with both, as it happens.) Why not subject the student to the highest local standard rather than the lowest one, just in case?

It was a no-brainer to me that London Met wanted to see a JAR First Class medical before they let me do the course and sit the ATPL writtens. Did I need that to fly a desk? Of course not, but I would definitely need it for the end goal, so that there was no good reason for someone unable to hold a First Class medical to do the course and sit the writtens. I am simply applying the same logic to a student in the States there to train for an airline job.

That the LBA was happy to allow a fellow with a history of severe depression to obtain a First Class medical does not show that the FAA would have also been so understanding. It does not take a wild imagination to think that the LBA might have been doing Lubitz some sort of favor there, one that the FAA would not also have done. A second look at his history in terms of "Should this fellow be passed for an FAA First Class medical or not?" might have been a very good idea.

Never mind. Let's see how this attempt to sue the school goes.

[Airbubba]

Yesterday the complaint was available online at the Kreindler website, but now they seem to have pulled it.

An amended 54 page complaint has been recently posted on the Court's website.

Here's some of the legal boilerplate from the complaint. Many CFI's, including radio personality Harley Carnes, seem to be sure that this case will be thrown out. Still, if it goes the wrong way, like the $480 million Cessna 185 seat latch lawsuit (see: http://www.pprune.org/private-flying/42720-cessna-185-480-million-seat-rail-lawsuit.html), this case could stifle civilian U.S. flight training for years to come.

Lubitz committed suicide during the subject flight and killed all persons on board by flying the subject aircraft into mountainous terrain near Alpes-de-Haute Provence, France. At approximately 9:30 a.m. CET, Lubitz locked the other pilot out of the cockpit and programmed the subject aircraft to descend. Over the next approximately 11 minutes the subject aircraft continued to change airspeed and descend toward the ground as the pilot repeatedly shouted for Lubitz to let him into the cockpit and pounded on the door in an effort to gain entry to the cockpit. During this sequence of events until the moment of impact, the passengers experienced extreme fear of impending death, panic, pain, suffering and unimaginable mental anguish. At approximately 9:41 a.m. CET the subject aircraft impacted terrain, killing all on board.

ATCA knew, should have known, or could have determined that Lubitz, at the time he presented himself for admission to ATCA, had an extensively documented history of dangerous and debilitating psychotic and depressive conditions, including reactive depression, that his treatment for those disorders included doctor-prescribed medication that prevented Lubitz from pilot training, and that the disorders were “resurgent” and “recurrent.”

Upon information and belief, at no time did anyone in the employ of ATCA nor any designee or agent of ATCA ever make any inquiry of Lubitz or anyone else to determine the status of Lubitz’ mental health, his history of depression, his depression medication history and/or whether he was taking physician-prescribed or over-the counter medication for depression, anxiety or any other purpose.

[SeenItAll]

An answer and some comments. Strict liability under the MC means that you don't have to prove negligence on the part of the airline to win an award. All that matters is that the loss of life occurred.

But before we claim this is unjustified ambulance-chasing, we need to know a few facts. First, is Lufthansa trying to get by strictly via the MC liability of less than USD 150,000? Given the ease of showing that the monetary damages from the loss of a family bread-winner in a wealthy western country are often easily in the millions, 150,000 is a pittance. I would guess that any reader who had lost a loved one on that plane would not think that this is close to enough compensation.

But another unknown is whether Lufthansa is offering full compensation for loss of earnings, etc., and this argument is strictly over an additional award for pain and suffering. Until all of these facts are known, we should not be quick to pre-judge who is right and who is wrong in this matter.

[Flying Lawyer]

SeenItAll
we need to know a few facts ...........


Fact:

The Montreal Convention does not limit the amount of damages that can be obtained for passenger injury or death.

[Chronus]

Whilst the aftermath of this terrible tragedy now enters another stage, it would be appropriate reminder that it is not unique. Fortunately on that occasion the events on board the 767 Toronto - London on 28 January 2008 were no more than an incident.

The full report is at :http://www.aaiu.ie/sites/default/files/upload/general/11139-0.PDF
The report did not sustain any safety recommendations. Should it have done I wonder.

[pattern_is_full]

The europeans just take advantage of the low costs in the US compared to europe, same as a lot of their other companies do as well. And the weather - it's why the major flight schools are in sunny AZ or FL, same as the baseball pre-season camps.

Realistically, THIS flight school has been sued in THIS case because it is a wholly-owned subsidiary of Lufthansa, as is GW. Ultimately, it is all the same big bag of money.

And it happens to be in a more - generous - jurisdiction. (Maybe - it's of note that none of the U.S. flight schools that trained 9/11 terrorists was ever sued, although at least one failed, later, due to shunning by banks and customers.)

No flight school, in general, is responsible for anything other than making sure the applicant meets the minimum requirements (money and a Class 3 medical). It's not their job to do the FAA's (or LBA's or FBI's) job. Sorry, chuks, those are our rules.

But - this was a branch of DLH, and therein lies the difference. If DLH had been smart, and contracted with a U.S.-owned school, or simply told Lubitz "go find some Joe CFI with a Seminole in the U.S. - we'll pay for it." - no lawsuit. It would be tossed out after a 15-minute hearing, and the lawyers would know it was a money-losing proposition, and not bothered.

Instead, DLH tried to be "cute" and run their own school (because it saved them even more money) - and it has returned to bite them.

[Fly4Business]

I welcome they took it to an US court. There a doubts on the procedures followed during training, if they even followed them, and now they have to look at in detail, explain judge and jury as an independent.

I suspect they also had doubts whether this would lead to an appropriate discussion on improvements, if taken to an European court. A biased jurisdiction does no good for intelligence transparency.

So, I strongly belief this US lawsuit is aimed to make things better and not an ambulance chaser raid, not only for the fact that the German AOPA president is one of the lawyers filing.

[RatherBeFlying]

It seems ATCA owns real estate, purchased for $12 million in 1992. If they also own outright the 26 Bonanzas and some Grobs, there's $25 million in assets; so about $140K per victim after the lawyers' 30%.

However that magnitude of assets makes it worthwhile paying several top civil liability lawyers:E

[sk999]

Fly4,

This lawsuit has nothing to do about making things better. It is forum shopping at its finest. It's all about the $$$.

[ehwatezedoing]

We have government agencies which increasingly passes oversight to the aviation industry. An aviation industry who depends more and more on self-regulation.
Lawsuits seems to be the last barrier of enforcement.

They screw up big time by keeping lubitz flying. All the dots where there just nobody to be proactif enough to connect them.



He murder cold blood 149 people. Do not forget that.

[sk999]

From the Kreindler website:

"Lubitz's particular history of depression and mental instability made him a SUICIDE TIME BOMB ..."

Very emotive words. Are these words used in the Complaint?

Nope.

Purely for public consumption. Cowards.

[chuks]

"No flight school, in general, is responsible for anything other than making sure the applicant meets the minimum requirements (money and a Class 3 medical). It's not their job to do the [FAA]'s (or LBA's or FBI's) job. Sorry, chuks, those are our rules."

The last time I renewed my FAA CFI, using the AOPA/Jeppesen online course, there was one entire module about detecting people who posed a risk, teaching about the actions to be taken by the CFI and by his school.

Some guy with a history of severe depression might be just as big a risk as some clown named Abdul bin Talebani who shows up wearing a keffiyeh and who wants to pay for his flying lessons with crisp $100 bills. To take such people on regardless of whatever risk they might pose might mean that the CFI and his school are breaking the rules to some extent.

That module made it quite clear that "our rules" dictate that more be done than just looking for "money and a Class 3 medical." I assume that is part of what the complaint alleges.

By the way, it's DLH, not DHL: people, not packages!

[parkfell]

So a law suit is filed against the US training provider.

Their insurance company will provide cover up to a maximum amount?
Once that pot of gold is used up, then the company's assets are targeted?

There will be a finite and probably comparatively small amount (in US legal terms) available for any compensation.
CH 11 court protection?

And that will be it so far as the US is concerned.

Might there be richer pickings in Europe, and are the limited liability companies likely to provide the operator with protection?

[ATC Watcher]

This is a Capt Hindsight discussion .

For those who knew Andreas Lubitz , he was a very very clever , motivated kid with above average abilities as a pilot. He managed to hide his disease, and convinced a lot of people that stress was the reason he discontinued his training. He then managed to convince someone to be given a second chance, as as we understood, his " above average pilot abilities " were the decisive factor. I do not think the person(s) that gave him that second chance had the possibility to have a look at his medical file. That was, again as we understood it, until the accident a medical secret.

A lot of people sleep badly today because of this, but with hindsight, only with hindsight.

[pattern_is_full]

chuks - DLH corrected - I know at least one use was correct originally, but got messed up in rewriting. Sorry!

[1201alarm]

There is so much misinformation here. No surprise that pprune seems more and more avoided by real professional pilots.

I wonder who actually read the report the bureau d'enquêtes et d'analyses published about a month ago. :ugh:


It is all in there: when did the copilot take a break in his flight training, what kind of psychological problems did he seem to have at the time, what happened when he applied for an FAA medical, etc.

Everyone who has the slightest understanding about the case will see that the lawsuit is ridiculous. Which doesn't mean is could not succeed, law sometimes creates weird outcomes.

And yes, as mentioned earlier, my understanding is that the lawsuit is not about "Schadenersatz" (=compensation about loss of income) but about "Schmerzensgeld" (=compensation for endured physical or in this case psychological pain). In Europe "Schmerzensgeld" is traditionally rather low, as such happenings are considered a risk of being alive, while in the US it can mean a financial jackpot.

[Flying Lawyer]

Fly4Business

I suspect they also had doubts whether this would lead to an appropriate discussion on improvements, if taken to an European court. A biased jurisdiction does no good for intelligence transparency.I specialised in aviation accident cases for some decades. Given the international nature of aviation it was essential to be aware of the law and decisions in cases in other jurisdictions around the world. I also worked alongside lawyers in other jurisdictions from time to time.
I never experienced/read/heard anything that would support your uninformed suggestion of bias or lack of transparency.
The position might be different in jurisdictions with totalitarian regimes. I am not in a position to make an informed comment.

There are some differences in law between jurisdictions but by far the most significant difference is that awards of damages are typically considerably higher (sometimes astronomical) in some jurisdictions when compared with the rest of the world.

So, I strongly belief this US lawsuit is aimed to make things betterIf you believe that 'making things better'/making aviation safer is a consideration for lawyers when engaged in litigation, you are very naive - whatever some lawyers may claim in their PR spiel and statements to the media.

.

[West Coast]

Which side do you tend to represent?

[Flying Lawyer]

West Coast
Which side do you tend to represent?I advised/represented both.


I never had reason to count the cases but my aviation work was balanced between claimants (plaintiffs) and defendants. If not precisely the same number of cases, then I have no idea in which direction any slight imbalance lay.

[West Coast]

In the US at least there's a belief, right or wrong that lawyers were the downfall of GA aircraft manufacturing and would have been the death of the industry if not for tort reform in 1994. It's nice to hear an eminent lawyer admit that it wasn't a matter of promoting aviation safety as much as it was promoting their bottom line.

[Flying Lawyer]

It's not a matter of 'admitting'.
It's an indisputable fact that promoting aviation safety is not a lawyer's role.
Lawyers represent their clients' interests.

Lawyers' bottom line?
'No win no fee' arrangements in tort cases (still relatively new in the UK but almost SOP in America) can make an enormous difference to the lawyers' bottom line. In an aviation context, particularly so in multi-death accident cases.

[West Coast]

I'll defer to you regarding motivations. I'm just glad tort reform came to be before some lawyers promoted their clients interest's to the point of killing GA.

[sk999]

Here is a link to a presentation referred to in par. 100 of the complaint. This presentation was given by Kippenberg, CEO of ATCA, at a NTSB safety forum in 2010.

http://www.ntsb.gov/news/events/documents/aviation_pro-Kippenberg-NTSB-Professionalism-Forum.pdf

Par. 101 of the complaint then goes on to state:

"ATCA has acknowledged its duty to carefully select and screen its student pilot candidates ..."

Except that , from what I can tell from the presentation, ATCA does not select or screen student pilot candidates - it is done by Lufthansa. Page 6 of the presentation talks about "The Lufthansa Selection Process". There is a huge disconnect between the presentation and the complaint. Since the selection process and ATCA's alleged failures in that process are the core foundation of the lawsuit, the whole complaint makes no sense. The wrong defendant is in court.

[er340790]

I'm sure they are very nice bottom feeding, blood sucking sharks.

My biology may be a little sketchy, but I'm pretty sure sharks don't feed on the bottom.... Or suck blood, for that matter.

[Airbubba]

It's an indisputable fact that promoting aviation safety is not a lawyer's role.
Lawyers represent their clients' interests.


It may be an indisputable fact but these ambulance chasers in the U.S. sure try to convince you otherwise about their role in promoting aviation safety.

From the Kreindler and Kreindler website:

The firm's work has been instrumental in promoting aviation safety and we have repeatedly won precedent-setting cases and secured record damage recoveries for our clients.
Major Airline Cases | Kreindler & Kreindler, LLP | National (http://www.kreindler.com/Case-Examples-Aviation-Accidents/Major-Airline-Cases.shtml)

Promoting aviation safety in manufacturing, maintenance and operations is an important Kreindler objective.
National Aviation Accident Attorney | Nationwide Airplane Crash Lawyers | New York Aviation Accident Law Firm (http://www.kreindler.com/Aviation/Major-Airline-Accidents.shtml)

[Flying Lawyer]

West Coast
I'm just glad tort reform came to be before some lawyers promoted their clients interest's to the point of killing GA.

Tort reform is an ongoing and contentious issue in the US.
You mentioned a reform in 1994. What do you have in mind? Many states introduced some reforms in the mid/late 1980s and some have enacted more since then. You may well be correct but I can't at the moment remember a significant reform in 1994.
Did it apply to all states or some?
Did it relate to product liability or tort generally?



Airbubba
It may be an indisputable fact but these ambulance chasers in the U.S. sure try to convince you otherwise about their role in promoting aviation safety.

Some UK lawyers do the same.
Not all.
Some engage very actively in marketing/PR activities to try to attract more clients.
Others don't.

[aox]

I have no legal expertise, and I am struggling to understand what can be wrong with the behaviour of a flying school towards a prospective customer who presents valid medical certification.

There seems to be an odd proposition implied in the plaintiffs bringing the case, that it could or should be deemed to be negligent to fail to set one's own opinion on a medical matter above the opinion of the doctor(s) who signed the person as ok.

[Turbine D]

Flying Lawyer
There was a Congressional Tort Reform action in 1994, this from PBS's Frontline:
THE BATTLE OVER TORT REFORM

In the fall of 1994, the so-called "Gingrich Revolution" led to the takeover of the House of Representatives by pro-business Republicans. Tort-reform legislation to curb shareholder lawsuits against companies and accountants was at the top of the agenda. Silicon Valley high-tech firms again aligned with the accounting industry to lobby Congress to pass a tort-reform bill, which it did by large majorities in both houses.

Although President Clinton vetoed the bill, called the Private Securities and Litigation Reform Act of 1995, asserting that it would close the courthouse door on investors with legitimate claims, the Senate -- led by Sen. Christopher Dodd (D-Conn.), chairman of the Democratic National Committee -- overturned the president's veto in December 1995. Sen. Dodd received almost a quarter of a million dollars in political donations from the accounting industry in the 1995-96 election cycle, although he was not up for re-election.

"Chris Dodd, here he is chairman of the Democratic Party, but he's also the leading advocate in the U.S. Senate on behalf of the accounting industry," says Charles Lewis of the Center for Public Integrity. "And he helps overturn the veto of his own president, who installed him as Democratic chairman. Dodd might as well have been on the accounting industry's payroll. He couldn't have helped them any more than he did as a U.S. Senator."

But supporters of the legislation maintain that it was a much-needed break on runaway lawsuits, many of them frivolous, which threatened to damage the accounting business. "Tort reform was something that the [accounting] profession had talked about for years," says Joseph Berardino, the CEO of Andersen Worldwide who stepped down in March. "Tort reform was an attempt to at least reign in or limit damages so accounting firms wouldn't go out of business."

While this may have helped eliminate frivolous accounting suits, I don't think it had any relation to medical related tort in the USA. Most medical related tort reform came at the state level. I will show you that in a separate posting.

[Turbine D]

Flying Lawyer

Summary Table 1.
Selected Tort Reforms Enacted Since 1986
THE EFFECTS OF TORT REFORM: EVIDENCE FROM THE STATES ix

Number of States That Have Enacted Tort Reform
Type of Reform
Modify Joint-and- Several Liability
Modify the Collateral- Source Rule
Limit Noneconomic Damages
Limit Punitive Damages
38 States have based the amount for which a defendant can be held
liable on the proportion of fault attributed, but the formulas differ substantially from state to state. In addition, most of the reforms apply to specific types of torts or have other restrictions.
Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming
25 Typical reforms either permit evidence of collateral-source
payments to be admitted at trial, allow awards to plaintiffs to be offset by other payments, or both.
Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Georgia,* Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,* Kentucky, Maine, Michigan, Minnesota, Missouri, Montana, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon
23 The caps range from $250,000 to $750,000. More than half of the reforms apply to torts involving medical malpractice.
Alabama,* Alaska, Colorado, Florida, Hawaii, Idaho, Illinois,* Kansas, Maryland, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire,* North Dakota, Ohio, Oklahoma, Oregon,* Texas, Washington,* West Virginia, Wisconsin
34 Various types of limits include outright bans; fixed dollar caps
ranging from $250,000 to $10 million; and caps equal to a multiple of compensatory awards.
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois,* Indiana, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin

Source: American Tort Reform Association, Tort Reform Record (December 31, 2003), pp. 2-3, available at www.atra.org/files.cgi/ 7668_Record12-03.pdf.
Notes: The American Tort Reform Association (ATRA) does not list reforms enacted prior to 1986, when the association was founded. Although the ATRA lists Vermont as enacting reform of joint-and-several liability since 1986, Vermont actually enacted that reform in 1985.
See Box 1 for definitions of the tort terms used in this table.
* The only relevant law enacted since 1986 was found to violate the state's constitution.
Box 1.
Definitions of Some Common Tort Terms
Collateral-source payments: Amounts that a plaintiff recovers from sources other than the defendant, such as the plaintiff ’s own insurance. Under the collateral-source rule, that compensation from other sources may not be admitted as evidence at trial.
Contingent fee: A fee charged by an attorney for his or her services only if the lawsuit is successful or is favorably settled out of court. Usually, the contingent fee is calculated as a percentage of the amount the plaintiff recovers from the defendant.
Economic damages: Funds to compensate a plaintiff for the monetary costs of an injury, such as medical bills or loss of income.
Joint-and-several liability: Liability in which each liable party is individually responsible for the entire obligation. Under joint-and-several liability, a plaintiff may choose to seek full damages from all, some, or any one of the parties alleged to have committed the injury. In most cases, a defendant who pays damages may seek reimbursement from nonpaying parties.
Malpractice: “An instance of negligence or incompetence on the part of a professional.”
Negligence: A violation of a duty to meet an applicable standard of care.
Noneconomic damages: Damages payable for items other than monetary losses, such as pain and suffering. The term technically includes punitive damages, but those are typically discussed separately.
Punitive damages: Damages awarded in addition to compensatory (economic and noneconomic) damages to punish a defendant for willful and wanton conduct.
Statute of limitations: A statute specifying the period of time after the occurrence of an injury—or, in some cases, after the discovery of the injury or of its cause—during which any suit must be filed.
1. Bryan A. Garner, ed., Black’s Law Dictionary, 7th ed. (St. Paul, Minn.: West Group, 1999), p. 971.

What may be interesting is how this tort action against the flight school in Arizona relates to US HIPAA laws. Would the flight school have learned anything through a health examination of the pilot? In this instance, which health privacy laws apply, US, German or both?

[chuks]

If this suit goes forward it will be interesting to see what sort of questions are raised and then answered.

From what I had as training to renew my FAA CFI, from that module on security, it was pretty clear that simply having someone show up with a Student Pilot license/Third Class medical and money was not enough to pass him along as safe; we seem to be expected, as CFIs, and as schools too, to make some sort of independent threat assessment.

This module was aimed at terrorism, such things as seeming to be under the control of a third party, wanting to pay with cash, not seeming to have a sound reason for doing some particular sort of training, asking odd questions about sensitive locations ... but it's easy to stretch that a bit to think that we are supposed to be "heads up" about other sorts of threats too, such as someone possibly hiding mental problems.

"How far to take that" that might be one of the questions raised and answered.

Another one might be to ask if Lubitz was mentally ill at the time he received his training, along with asking if the FAA probably would have issued him a First Class as they did issue him a Third Class medical, given his history of depression.

[sk999]

In case anyone is interested, here is a link to the BEA Final Report on 9525. Certain parts of the complaint are cut-and-pasted from it. ATCA is barely mentioned.

https://www.bea.aero/uploads/tx_elyextendttnews/BEA2015-0125.en-LR_03.pdf

[Flying Lawyer]

Turbine D

I invite correction if my understanding is incorrect but didn't the Private Securities Litigation Reform Act 1995 relate, as the title suggests, to perceived abuses in the securities litigation process - not to tort actions generally?

[Turbine D]

Flying Lawyer

You are correct. However, it didn't start out that way in 1994. It started out as "Tort Reform", but ended as "Litigation Reform" and as applying only to security lawsuits. Beyond that, it had little if any effect on other non-security lawsuits, even if they were class action in nature.

DEFINITION of 'Private Securities Litigation Reform Act – PSLRA'
Legislation passed by Congress in 1995 to stem the filing of frivolous or unwarranted securities lawsuits. The PSLRA increased the amount of evidence plaintiffs were required to have before filing a securities fraud case with the federal courts. It also changed the way securities class action lawsuits were handled by giving judges the authority to determine plaintiffs and to take other actions to reduce legal system abuses. A shareholder may file a securities fraud claim in federal court to recover damages sustained as a result of the fraud. Before the PSLRA, plaintiffs could file a lawsuit simply because a stock price changed significantly and hope that the discovery process would reveal potential fraud. After the PSLRA, plaintiffs were required to bring forth particular fraudulent statements made by the defendant, to allege that the fraudulent statements were reckless or intentional and to prove that they suffered a financial loss as a result of the alleged fraud. It addresses the following provisions:

Safe Harbor for Forward-Looking Information
Limitations on Joint and Several Liability
Increased Pleading and Proof Requirements
Limitation on Damages
Class Action Procedural Reforms
Enhanced Attorney Sanction Provisions
RICO Amendment Eliminating Sanctions Claims
Auditor Duty Regarding Financial Fraud
Additional SEC Rulemaking Authority

[porterhouse]

I'm just glad tort reform came to be before some lawyers promoted their clients interest's to the point of killing GA.
Unfortunately tort reform still didn't preclude some obscene and frivolous lawsuits against Cirrus Aircraft where total amount of damages sought was close to $40 mln (death of 4 people), fortunately plaintiffs lost even though one of the lawsuits dragged for close to 6 years. I got a kick watching plaintiffs' lawyers ultimately collecting nothing.

[Sorry Dog]

There are 5 basic elements to a tort case (https://en.wikipedia.org/wiki/Negligence

1. Duty
2. Breach of Duty
3. Causation
4. Proximate Cause
5. Injury (Damages)


Without knowing specific facts of what the defendants knew and when we can only guess, however it appears the case will have significant hurdles to clear. There is the question of the extent of their duty, and how they breached that, but proximate causation sticks out to me as big issue. Just because the school had an opportunity to break the chain of events 2 years prior seems pretty far away from being directly responsible. There were many others who also had a chance to stop things.

The case will also no doubt have to survive quite a few summary judgements on jurisdiction. Lastly, if the hope is to get to the parent company's pockets, assuming the school corporation was setup as any one of several liability limiting forms available, the plaintiffs will have to prove fraud or willful negligence to pierce the corporate veil.


Now, considering this, it still might very well lead to a settlement within the limits of school's insurance policies... which will be a decent payday for the lawyers involved but split up 100 ways won't amount to a lot in the end.

BTW- 30% would be low contingency fee. 40 or 50% is more common especially as the odds of winning go down and the costs of all the experts involved is not trivial either...

I don't know squat about tort cases in the EU but why aren't talking more about the particulars of a case against Lufthansa in a European court?

[sk999]

Docket #50, posted yesterday: "The Motion to Dismiss on the Grounds of Forum Non Conveniens is granted as set forth in this Order." Basically the plaintiffs are being told that the US is too inconvenient a place to litigate this lawsuit, please refile someplace else. Like Germany. I don't yet have a copy of the actual order.