[Update, September 2014: I wrote the below post in February 2012, when a prominent economist and blogger seriously claimed “The most plausible route to the death of football starts with liability suits.” In a mere two-and-a-half years, the tide has turned considerably, and it had nothing to do with liability suits. Jason Kottke recently collected multiple articles by die-hard football fans explaining why they won’t watch the sport any more. More and more people can’t handle the greed, the violence, and the damage — just today, Esquire had a piece on the league’s disgraceful handling of Ray Rice’s domestic abuse. Professional football is dying, and it has nothing to do with lawsuits.]

Tyler Cowen, an economist at George Mason University, has made a name for himself explaining how important it is that things stay just the way they are. (Cf. David Hume) Earlier this week, for example, he was in the New York Times opining that our banking oligarchy can’t be broken up because smaller banks “could make mistakes or take on bad risks without being punished very much in terms of capitalization revenue,” as if we didn’t just loan $1.2 trillion and directly pay $182 billion to bail out these same big banks precisely because they “made mistakes or took on bad risks.” As Paul Krugman aptly summed up one of Tyler’s critiques of a model of macroeconomics,

There’s something about macro that seems to invite this sort of thing: more even than the rest of economics, macro seems afflicted with people who mistake confusion for insight, who think their own failure to understand basic ideas reflects a failure of those ideas rather than their own limitations.

“Mistaking confusion for insight” is one of the hallmarks of attacks on our legal system, with nary a day going by without a prominent politician or the like making a hopelessly ignorant comment about the law, like Rick Santorum’s passionate argument in favor of scrapping the Constitution and replacing it with the Articles of Confederation.

Grantland, launched last year, was premised on the crazy idea that there existed a sizable market of readers who appreciated both long-form journalism and the world of sports. I haven’t a clue if the website is doing well financially, but they’ve been a journalistic success, with fascinating articles like this article on a boxing match in 1810 that set the stage for almost every fighting trope you see today. Just when I think the site is the go-to resource for sports reporting, I see Tyler Cowen (along with Kevin Grier, another economist) bring his ipse dixit style to the subject of tort lawyers and football:

The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away. More and more modern parents will keep their kids out of playing football, and there tends to be a “contagion effect” with such decisions; once some parents have second thoughts, many others follow suit. We have seen such domino effects with the risks of smoking or driving without seatbelts, two unsafe practices that were common in the 1960s but are much rarer today. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

In other words, the old trial lawyers are taking the fun out of everything argument. It’s often trotted out to claim that lawyers are responsible for taking the fun out of playgrounds, so it was only inevitable before someone claimed that trial lawyers posed the greatest threat to our nation: as Cowen and Grier claim, because of lawyers, “American people … might actually start calling ‘soccer’ by the moniker of ‘football.’”

The horror!


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One of my main purposes of writing this blog is to dispel the myths that surround trial lawyers and personal injury law.  There’s a myth, for example, that every time some sort of chemical exposure or defective product might be more dangerous than suspected, trial lawyers and work injury lawyers fabricate tens of thousands of fraudulent claims and then extract millions of dollars from poor, helpless corporations that somehow cannot defend themselves.

Consider this silliness from a law professor invited to speak before Congress:

When in the distant future, we look back at asbestos litigation, we will surely include it among the great scandals in our history along with the Yazoo land frauds, Credit Mobilier, Teapot Dome, the Savings and Loan debacles, WorldCom, Enron and the vast Ponzi schemes that have recently unfolded. In nine published articles on asbestos litigation, I have documented the existence of a massively fraudulent enterprise involving the creation of literally hundreds of thousands of bogus medical reports. These reports have been used to extract billions of dollars in settlements from defendants in the tort system and from asbestos bankruptcy trusts which have been created with the assets of the companies that were bankrupted by asbestos litigation.

It doesn’t work that way.  Consider the recent developments in the Asbestos Multi-District Litigation (MDL) — including, by the way, the summary dismissal, without trial, of every case where plaintiffs’ didn’t promptly produce a detailed medical report along with authenticated x-rays.

Asbestos exposure is “a tale of danger known about in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s.” Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)(quoting United States Judicial Conference Ad Hoc Committee on Asbestos Litigation). From an engineering standpoint, asbestos is an astonishingly useful product; it’s flame-resistant, provides exceptional insulation, and can mined in quarries throughout North America. It’s not surprising that it was used in virtually everything made from the 1940s to the early 1980s, from the Navy ships that fought World War II to the limited-print first-edition of Fahrenheit 451.

That, unfortunately, meant that three full generations of workers in the construction or heavy machinery industries were heavily exposed to asbestos, particularly if they were in the industry before the mid-1980s, when asbestos use declined in advance of the EPA’s ban in most products in 1989.  As I wrote about a couple months ago, even if you never worked in any of those industries, there is so much asbestos floating around in our world that a biopsy of your lungs would already show millions of asbestos fibers and tens of thousands of asbestos bodies. If you were directly exposed, the numbers are far higher. There’s only so much a person’s lungs can take before the odds start shifting in favor of cancer.

But mesothelioma isn’t like an ordinary injury: no one develops mesothelioma overnight. Indeed, people rarely develop it within the first decade after being exposed to asbestos, and the average patient develops it an astonishing 32 years after their initial exposure. It’s no surprise that exposure in the 1940s and 1950s created a wave of symptoms and initial cancer diagnoses in the 1960s, then deaths and lawsuits beginning only in the 1970s.

Given the magnitude of the exposure and damages, the litigation grew to proportions never before seen by the federal courts, prompting the judicial panel on multi-district litigation to consolidate as many cases as possible into the Eastern District of Pennsylvania (EDPA) in 1991, where, over time, an astounding 191,822 asbestos cases have been filed.  And that’s where we pick up the story.
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Norm Pattis’ latest blog post raises an issue near and dear to me: the ethics of personal injury lawyers. I certainly don’t think personal injury lawyers are above reproach, and I’ve commented before on some of the stupid things they can do, but I’m not going to sit quietly and nod politely when a lawyer in another field claims its unethical for an alleged victim’s lawyer to zealously represent their client.

Norm is a criminal defense lawyer; as he posted a few days ago, the next year brings for him “trials involving child sex abuse, child pornography, drugs.” I’m going to go out on a limb and speculate that at least one of those defendants is in fact guilty of at least one crime with which they’re charged, and yet I wish Norm the very best in his defense: that’s his job, and he is required to zealously represent his clients and use every appropriate tactic available to further their defense. That’s how our adversarial system works. That’s how constitutional rights are protected.

Norm, however, apparently doesn’t have the same respect for what the civil lawyers for sexual abuse victims do.
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My post on the potential civil lawsuits arising from the Jerry Sandusky molestation scandal at PSU still generates a fair amount of traffic, mostly from people looking for updates on the latest legal developments. If the internet asks, it shall receive.

There have been four major developments relating to the case:

  1. A preliminary hearing for the criminal charges against Tim Curley and Gary Schultz;
  2. The filing of another civil lawsuit against Sandusky, Penn State, and The Second Mile;
  3. The filing of a declaratory judgment action by Federal Insurance Company of New Jersey, the insurance company for The Second Mile, to obtain a court order relieving it of any duty to defend or to indemnify Sandusky for the sexual abuse claims against him; and,
  4. The disclosure of multiple allegations of child molestation against longtime Philadelphia Daily News sportswriter Bill Conlin, allegations involving conduct from decades ago, apparently spurned in part by the Sandusky indictment. (This development is legally connected to the Sandusky indictment because of the statute of limitations, as explained below).

Let’s consider them bit by bit.


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One of the most common situations I see as a personal injury lawyer involves people injured at work because their employer blatantly disregarded OSHA safety regulations. Most everyone knows that workers’ compensation laws provide employers with legal immunity from negligence claims, but common sense suggests that employers remain accountable for reckless or intentional wrongdoing. The law, however, doesn’t always line up with our common sense of ethicals and morals. We’ve been successful in the past holding employers and other companies fully accountable despite the workers’ compensation laws, but unfortunately employers sometimes can get away with manslaughter.

Over at reddit yesterday, a user posted a question under the title My mother was brutally killed at work, is there no chance for justice?

My mother was crushed to death at work, the OSHA report indicates 3 SERIOUS violations on the part of her company and a dozen minor violations. Total Fine: ~$15,000. She was alone when it happened, it wasn’t her duty to be anywhere near the storage area, the guy whose job it was to move the product quit a few days prior and she was essentially told to do his job (without ANY training) or else. Wtf? Its been 7 months now, I’ve spoken to 11 different lawyers with my step father, all of whom said that it wasn’t possible to file a case against them because of labor laws… We just found out today that as of last year the KY legislature passed a bill that stopped any death benefit payments because in a few months my step dad will be 62(age of retirement). My mom was only 50. So not only can we not pursue legal action against the company, but the government death benefit is out the window too.

Am I … insane? Is this some third world Chinese factory? Wtf… Why is this allowable in the US? So this multi-million dollar company pays just 15k in fines and that’s it. No other punitive damages. We cannot pursue any legal action?

It’s a depressingly common situation that we see all the time: some industrial plant or construction site flagrantly violates OSHA safety rules, kills or maims a dedicated employee, and then pays a fine somewhere around the price of a compact car.

Recall the Notre Dame football practice tragedy. Indiana’s Department of Labor, Occupational Safety and Health Administration found that Notre Dame had committed multiple safety violations in the training and use of its scissor lifts to videotape football practice, including:

Knowing violation – By directing its untrained student employee videographers to use the scissor lifts during a period of time when the National Weather Service had issued an active Wind Advisory with sustained winds and gusts in excess of the scissor lift’ s manufacturer’s specifications and warnings, the university knowingly exposed its employees to unsafe conditions.

Serious violation – Notre Dame did not properly train the student employees in the operation and use of the scissor lifts used during football practice.

Serious violation – The scissor lift noted in this incident – owned by Notre Dame – had not been given an annual, monthly, or weekly inspection for more than one year.

Serious violation – Notre Dame did not have the scissor lift it owned serviced as required by the preventive maintenance schedule in the operator’s manual.

Serious violation – Notre Dame did not have an operator’s manual kept on the unit it owned in the weather proof box.

Serious violation –The scissor lift noted in this incident – owned by Notre Dame – was missing some of its warning labels and some labels were faded and weathered.

Total fine? $77,500. And that’s in an egregious, high-profile case that killed a 20-year-old. It was one of the highest fines the Indiana OSHA had levied in years.

It’s thus no surprise to me that the company that killed the reddit poster’s mother was fined only $15,000 for three serious violations. As the federal OSHA website explains:

Serious Violation – A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.

Up to $7,000 for a serious violation that could — and did — kill someone. In this case it seemed the company ordered an untrained employee to handle, alone, some hazardous chemical or equipment, and the penalty is less than the cost of a new Mazda 3.

Which brings us to the core of the redditor’s complaint: that there’s nothing at all they can do to hold the employer accountable. 
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Between our catastrophic injury and birth injury practices, we spend a lot of time at the firm immersed in the science and medicine of brain damage. Just as consciousness and dualism have vexed philosophers for ages (* see my comment), the real causes and treatment of brain injury have remained elusive for generations. There’s a reason for the phrase ‘not exactly brain surgery‘ — brain surgery is notoriously unpredictable.

After reading Jane Rosett’s compelling article in The New York Times about ‘starting again’ after injuring her right temporal lobe in a car accident (sample: “traumatic brain injuries destroy connections between and within people — so how are we to build a self-empowering community?”), and Diane Wyzga’s post about the Going the Distance documentary, I thought I’d write about some of the latest developments in the field. Rosett’s article (and David L. Brown’s documentary) seems to be part of a larger trend in the diagnosing, treatment, and public perception of brain injuries.

Traumatic brain injuries (TBI) are particularly difficult to treat in a meaningful way. Even treatments that seem obvious, like reducing intracranial pressure, don’t work the way we think they should. In April this year, the New England Journal of Medicine published a study that randomly assigned 155 diffuse traumatic brain injury patients to either undergo decompressive craniectomy or standard treatment. The results were surprising: the patients’ intracranial pressure went down and they left the intensive care unit faster, but six months later they scored lower on the Extended Glasgow Outcomes Scale. Sometimes it seems we haven’t progressed much since ancient trepanation: cut a hole in the patient’s head and hope that makes them feel better.

Three months after that study, the Harvard Gazette reported on two studies which may have identified some of the reasons why TBI doesn’t respond to the sorts of mechanical treatments (like surgery to reduce pressure, placing a shunt, etc.) we assume would fix the problem. In short, TBI doesn’t just damage the structures of the brain, it damages the cells on a cellular level:

Bioengineers at Harvard have, for the first time, explained how the blast of an exploding bomb can translate into subtly disastrous injuries in the nerve cells and blood vessels of the brain. …

Papers published in the journals Proceedings of the National Academy of Sciences (PNAS) and the Public Library of Science’s PLoS One provide the most comprehensive explanation to date of how abrupt mechanical forces cause catastrophic physiological changes within the brain’s neurons and vasculature. …

When the brain encounters a jarring force, such as an exploding roadside bomb, its delicate tissue slams against the skull. The result, if the patient survives, can be a temporary concussion, a more dangerous hemorrhage, or long-term TBI, which can lead to the early onset of Parkinson’s or Alzheimer’s diseases. …

Parker’s research has demonstrated that the forces unleashed by an explosion physically disrupt the structure of the focal adhesion complex, setting off a chain reaction of destructive molecular signals within the nerve cells of the brain.

The papers themselves are available online: A Possible Role for Integrin Signaling in Diffuse Axonal Injury and Blast-induced phenotypic switching in cerebral vasospasm.

It’s more than a little surprising to see that an explosion could, in some instances, not injure the structures of the brain, and not even break up the cell, but nonetheless cause changes in the way the cell operates, but that seems to be the case:

The blast from an explosion creates a surge in blood pressure, which stretches the walls of the blood vessels in the brain. To study this, Parker’s team of bioengineers built artificial arteries, made of living vascular cells, and used a specialized machine to rapidly stretch them, simulating an explosion. While this stretching did not overtly damage the cellular structure, it did cause an immediate hypersensitivity to the protein endothelin-1.

That might also explain why war veterans have a higher rate of dementia: not only have they suffered TBI, but they’ve suffered blast-induced TBI, which causes a cerebral vasospasm that induces the protein hypersensitivity. Even better, the researchers identified potential treatments, at least for the integrin disruption, in the form of an enzyme inhibitor administered soon after the blast. 
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[Update, December 2012: Daniel Fisher at Forbes links to this post in his article about a new bill pending in Ohio that would require asbestos trust claimants to disclose payments made by other trust. I give him credit for linking to my criticism (and, correspondingly, I’m linking back to his), though I continue to believe claims of widespread asbestos trust fraud are overblown, for the same reasons argued below.]

Asbestos use in a wide variety of products, and all new products, has been banned for more twenty years, and yet asbestos litigation continues to be a multi-billion dollar business because asbestos was used everywhere and remains all around us. Even if you were never exposed to asbestos as part of your work, you still have “millions of [asbestos] fibers and tens of thousands of asbestos bodies” in your lungs. The difference between an average person and an asbestos plaintiff is often just one thing: a diagnosis of mesothelioma. (For any die-hard tort reformers out there who doubt that link, consider this 2011 study identifying the specific way asbestos alters proteins in mesothelial cells. If someone has mesothelioma, it’s virtually guaranteed it was caused by asbestos exposure.)

By coincidence, two separate articles yesterday touched upon a subject that has kept injury lawyers (both plaintiffs’ and defense) interested for more than a generation: figuring out which asbestos exposure caused a particular person’s mesothelioma and thus who, if anyone, is responsible.

At Corporate Counsel:

The Government Accountability Office released a new report on Wednesday analyzing asbestos injury trusts, shining some light on a multi-billion-dollar system of plaintiff claims and payouts that operates largely in secret.

The report, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts [PDF], reviewed 52 asbestos-related bankruptcy trusts that “have paid about 3.3 million claims valued at about $17.5 billion.”

The GAO found that while the majority of the trusts made general data available, very few provide detailed information about their activities without being directed to by a court of law: “Most asbestos trusts we reviewed publish for public review annual financial reports and generally include total number of claims received and paid.  Other information in the possession of a trust, such as an individual’s exposure to asbestos, is generally not available to outside parties but may be obtained, for example, in the course of litigation pursuant to a court-ordered subpoena.”

More on that in a moment. The Legal Intelligencer reported on arguments before the Pennsylvania Supreme Court in Betz v. Pneumo Abex:

The [appeal] follows an Allegheny County judge’s decision to grant a global Frye motion on behalf of several friction-based product defendants, subsequently granting summary judgment in their favor. …

According to the defense, one expert’s testimony was a “bad science” assertion that summed up to this: If a lot of asbestos can cause harm, so too can a little.

The expert under scrutiny, Dr. John C. Maddox, had relied upon an analysis the defense said gave unsupported weight to “each and every breath” one takes of asbestos. Under such an approach, they said, Maddox opined every breath one takes of friction-based products can contribute to developing mesothelioma.

Let’s start by going back to that GAO report. As if on cue, Daniel Fisher at Forbes and the U.S. Chamber of Commerce both chimed in to hurl unfounded attacks at trial lawyers, like:

“It is becoming clear that rather than acting to prevent abusive claims, the asbestos trusts are effectively encouraging fraud by inhibiting claims information sharing between the trusts and the tort system. We hope that Congress’s growing attention to this important issue will ensure that the trusts operate in a manner fair to asbestos victims and job-creating businesses, not plaintiffs’ lawyers and fraudulent claimants.”

It’s part of an attack on trial lawyers in general, who asbestos defendants have started suing to intimidate them out of taking asbestos cases. Fisher helped get this “asbestos claim fraud” ball rolling years ago, with assertions like:

Even as states crack down on frivolous lawsuits by people with no symptoms at all, trusts established by bankrupt asbestos manufacturers are paying tens of thousands of claims each year based on inflated or downright false stories of how people were exposed to their products.

Shocking. Tens of thousands of inflated or false claims?

There’s just one problem with this theory, as Corporate Counsel pointed out:
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It’s an old story, but one that bears repeating again and again, this time by Discover Magazine. People don’t make decisions the way computers do. They don’t calculate risks and rewards and weigh them against each other.  They routinely think with their guts (the “affect heuristic”) and, even if they do some basic probabilities in their heads, they’ll still get them wrong:

Our hardwired gut reactions developed in a world full of hungry beasts and warring clans, where they served important functions. Letting the amygdala (part of the brain’s emotional core) take over at the first sign of danger, milliseconds before the neocortex (the thinking part of the brain) was aware a spear was headed for our chest, was probably a very useful adaptation. Even today those nano-pauses and gut responses save us from getting flattened by buses or dropping a brick on our toes. But in a world where risks are presented in parts-per-billion statistics or as clicks on a Geiger counter, our amygdala is out of its depth.

A risk-perception apparatus permanently tuned for avoiding mountain lions makes it unlikely that we will ever run screaming from a plate of fatty mac ’n’ cheese. “People are likely to react with little fear to certain types of objectively dangerous risk that evolution has not prepared them for, such as guns, hamburgers, automobiles, smoking, and unsafe sex, even when they recognize the threat at a cognitive level,” says Carnegie Mellon University researcher George Loewenstein, whose seminal 2001 paper, “Risk as Feelings,” debunked theories that decision making in the face of risk or uncertainty relies largely on reason. “Types of stimuli that people are evolutionarily prepared to fear, such as caged spiders, snakes, or heights, evoke a visceral response even when, at a cognitive level, they are recognized to be harmless,” he says. Even Charles Darwin failed to break the amygdala’s iron grip on risk perception. As an experiment, he placed his face up against the puff adder enclosure at the London Zoo and tried to keep himself from flinching when the snake struck the plate glass. He failed.

This blog gets a couple hundred hits a day, and odds are good that a couple dozen of you will die from heart disease, cancer, stroke, or a car accident, while the odds of any of you dying from a shark attack or a terrorist bombing are tiny, even lower than your odds of winning the lottery.

And yet more of you probably worry about sharks and terrorists than you do smoking or too many cheesesteaks. It’s human nature.

That’s probably not news for many of you, and it’s certainly not news for the legal community that people can be irrational. Judge Richard Posner wrote a book about risk perception and political planning for catastrophes. (Because we’re talking about Discover Magazine and catastrophes, I’d be remiss if I didn’t mention Phil Plait’s excellent Death From The Skies.)

But there’s an aspect of risk perception that doesn’t get enough attention: risk perception is part of why we need robust tort laws. I’ve mentioned the Coase Theorem several times before on this blog (e.g., discussing “tort costs”) because it’s one of the more important intellectual tools we have in the legal-economic policy toolbox. Tort liability does not, on its own, impose any cost on society, it merely determines who has to pay for damages when they occur. When we talk about what our tort laws should be like, then, we should consider which party – the injured plaintiff or the allegedly wrongdoing defendant – was in a better position to more efficiently avoid the risk of harm in the first place.

Consider a concrete example: power saws.
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Last week The Times Leader in Wilkes-Barre reported:

A federal jury on Tuesday ruled against an area woman who was seeking more than $20 million from Toys R Us for injuries she allegedly suffered when an oversized candy dispenser fell and struck her in the head.

The jury, which heard from several dozen medical and other experts over a six-week trial, deliberated for about two hours before finding the national toy store chain was not negligent in connection with the Oct. 26, 2008, incident involving Dr. Mary Elizabeth Jordan Flickinger of Clarks Summit.

Flickinger alleged she suffered debilitating injuries, including several herniated discs, when a large M&M candy dispenser at the chain’s flagship store in New York City dislodged as she attempted to dispense candy. The dispenser struck her in the head and snapped her neck back, according to the lawsuit filed in 2010.

It’s always jarring to hear personal injury lawsuits referred to as claims for specific amounts of money (here, that “more than $20 million”) because many states, including Pennsylvania, don’t allow trial lawyers (whether plaintiffs’ or defendants’) to recommend specific sums of money to the jury. You’re allowed to introduce as evidence bills the plaintiff incurred (medical bills, funeral expenses, etc). You can have doctors, nurses, and life care planners talk about the cost of future medical care. You can even have an economist get up on the stand and give ranges for lost wages and the impact of inflation, but you can’t just tell the jury how much you think all of that adds up to.

I don’t have the slightest doubt that jurors are completely confused why the lawyers keep throwing around monetary figures and yet, when it comes to the case as a whole, the lawyers skirt around the issue of money (because they’re not allowed to) and start talking about justice and fairness and other off-putting banalities. The jury never hears how much the plaintiff believes their “pain and suffering” is really worth, they just have to figure it out on their own.

The court filings that only the judge sees, though, are filled with monetary figures, like the pretrial memoranda filed by plaintiff (a copy here), the source of that “$20 million” number claiming economic damages of $7,000,000 to $12,000,000 and pain and suffering of $5,000,000. The jury never saw that, it’s just for the judge to understand what the parties thought of the case.

An interesting point from those pre-trial memoranda (defendant’s is here) relates to the length of the trial. Plaintiffs punted on predicting the length of the trial until Daubert motions were decided; Defendant thought the case would last 12 to 15 days, or somewhere in the neighborhood of three weeks, not the six that it actually took.

Which is where I think the case went wrong for the plaintiff.
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In the blink of an eye, Jimmy Leeward’s P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of spectators. Strange as it is to say, there are reasons to be grateful — had his airplane hit the grandstands, there would have been hundreds, not dozens, of injuries.

Air shows are a big deal in America — attendance is around 17 million visitors to the 400 or so air shows each year, roughly around the same attendance as the NFL — and, apart from the causal attendees, there’s a sense of community around types of planes, types of shows, and locations. They know the history of the sport; the Ramstein disaster, for one, still lingers in the minds of many in the air show community, and the frequency of fatal and near-fatal crashes is not lost on anyone. The casualty numbers are lower, but they still look more like a major air disaster than a simple crash; Reno will likely take a similar place to Ramstein in the minds of the air show community, and may end the National Championship Air Races, at least in their current form.

As always, when a crash happens, the media attention shifts quickly to the National Transportation Safety Board’s “Go Team” investigation. Maybe it’s something about the allure of governmental rapid response teams, or maybe it’s the idea that, with an investigation and findings will come some sort of closure. The NTSB is a good organization with talented and dedicated personnel, and it’s no stretch to say that NTSB Aviation Accident Reports and other recommendations have saved countless lives, but one thing needs to be understood about the NTSB.

Coincidentally, a few hours before the crash I conducted the deposition of the former fleet operations manager for a company involved in a fatal maritime accident. The NTSB Marine Accident Report recommended that her company “review existing safety management program and develop improved means to ensure that your company’s safety and emergency procedures are understood and adhered to by employees in safety-critical positions.” The fleet operations manager argued that the NTSB’s finding that her company had at all contributed to the accident was merely “political.”

In one sense, she’s right: the NTSB’s findings are “political,” in that they are made by the government for the benefit of everyone, rather than made for accountability among those involved in the crash. The NTSB reviews accidents primarily for the purpose of making recommendations for the future and secondarily for determining fault. In contrast, civil litigation exists to determine who should pay for the losses arising from an injury, and thus cases are reviewed by the judicial system primarily for determining fault.

This difference in focus isn’t just a matter of word choice. There’s an entire field of ‘root cause analysis’ that assesses the way in which accidents and other failures are investigated. Its lessons have been applied to aircraft safety as well, including in the federal regulations governing military aircraft safety, which direct audits towards the cause, not just the symptom, of safety deficiencies.

That’s not to say the NTSB’s process is flawed or that their conclusions are wrong (although it’s always disturbing to me how the “party system” always gives the likely culpable parties a seat at the table but never gives any voice to the victims). It’s just important to understand that they answer a different question — what can we, as a government agency, recommend to prevent this in the future? — from the question asked in a lawsuit: who, if anyone, was responsible?

Tim OBrien Photo - P51 Loss Of Trim TabInitial reports have focused on the trim tab of the Galloping Ghost. A remarkable photo just before the crash taken by Tim O’Brien, himself an air show organizer, shows the plane missing one of its left side trim tab entirely. Still images from video taken of the crash show the trim tab in the process of falling off.

It wouldn’t be surprising if the flutter caused the trim tab to break off. (For those unfamiliar with flutter, Mike Danko dug up an old NASA video of trim tab flutter). That’s a known problem with P-51s; consider this report regarding the P-51 Voodoo Chile at the Reno National Championship Air Races just a couple years ago:

… Voodoo very abruptly pulled up; however, Hannah didn’t radio a distress call. … Steve Hinton flew over to take a look Voodoo. “You OK Bob?” called Hinton. “Yea, this thing just popped big time,” replied Hannah. What Hannah didn’t mention is that the g-load from the quick pull-up had caused him to black out. He finally managed to reach the throttle and reduced Voodoo’s power. At that point Hannah radioed that he “(wasn’t) out of it yet,” but he wasn’t thinking clearly. Later, he declared a mayday and made a perfect landing. … On the ground one could see what cause Voodoo’s problems during the race. The left elevator torque tube failed when the elevator trim fluttered and departed the plane. Fortunately, Bob Hannah’s skill and coolness in the cockpit saved day.

When the trim tab fell off Voodoo, the plane shot upwards and the 10G deceleration force caused Bob Hannah to black out entirely. That’s just as you would expect: the faster you go, the more the plane points upwards on its own, and the more you need to point the nose down to trim the airplane. Thus, at speed and level, the trim tab points up relative to the airflow over the elevator, causing the elevator to be deflected slightly down to maintain level flight.

At over 500 miles per hour, there are enormous airloads on the elevator trim tab to keep the elevator in a position that allows the pilot to maintain control, making damage to the trim tab more likely. Remove the trim tab and the non-trimmed elevator settings immediately deflect up, just like when pulling the stick back hard. That’s what causes the abrupt climb (and corresponding loss of consciousness) when the trim tab falls off.

Hannah regained consciousness at 9,000 feet and, as you can tell from the above, took some time to come back to his senses. You can see pictures of the damage here. It was even the same trim tab. The difference between Voodoo’s close call and Galloping Ghost’s tragedy may have been pure, dumb luck: Voodoo didn’t roll after losing the trim tab while Galloping Ghost did.

But that doesn’t necessarily mean flutter caused the trim tab to dislodge, or that the trim tab was the cause of the accident, or that the trim tab was the only cause of the accident. It’s quite possible something else caused the Galloping Ghost to climb rapidly, and in that process the flutter developed or the trim tab was damaged. As has been reported, some members of the crowd noticed “a strange gurgling engine noise” before Galloping Ghost pitched upwards. Further, as discussed below, it’s possible the trim tab failure could have been avoided, and more could have been done — such as ensuring the pilot was harnessed properly and plotting the race further from the stands — to prevent this tragedy.

So, where might liability fall?
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