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Families of Germanwings victims sue US flight school

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Families of Germanwings victims sue US flight school

Old 17th Apr 2016, 21:24
  #81 (permalink)  
 
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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.
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Old 17th Apr 2016, 23:35
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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.
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Old 18th Apr 2016, 00:02
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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.
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Old 18th Apr 2016, 01:41
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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/docu...lism-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.
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Old 18th Apr 2016, 02:02
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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.
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Old 18th Apr 2016, 03:14
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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

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
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Old 18th Apr 2016, 06:29
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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.
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Old 18th Apr 2016, 15:31
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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.
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Old 18th Apr 2016, 15:51
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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.
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Old 18th Apr 2016, 16:38
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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?
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Old 18th Apr 2016, 17:24
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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.
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Old 18th Apr 2016, 22:50
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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_elye...5.en-LR_03.pdf
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Old 18th Apr 2016, 23:25
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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?
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Old 19th Apr 2016, 01:30
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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
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Old 19th Apr 2016, 06:55
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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.
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Old 1st May 2016, 16:36
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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?
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Old 28th Mar 2017, 21:55
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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.
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