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"Worst Air Crash Disaster in a Decade Resolved"

An hour before sunrise Aug. 27, 2006, Comair Flight 5191 was cleared for takeoff on Runway 22 and taxied into position at Bluegrass Airport in Lexington, Ky., with 47 passengers on board. The crew in the cockpit, however, made a series of mistakes and turned onto the airport's secondary runway, Runway 26. Runway 26 was only half as long as Runway 22, had no edge or centerline lights, and was not suitable for commercial aircraft operations. The pilots failed to cross-check their actual heading with the assigned runway heading before advancing the throttles for takeoff. Flight 5191 ran out of runway, crashed, and exploded in a field just outside the airport, killing all passengers. The question that haunted everybody was how could an experienced crew, with numerous and redundant instruments, compasses, charts, checklists, computerized navigation units, cross-checks, and airport signage/lighting, have missed so many clues and made such a mistake?

An hour before sunrise Aug. 27, 2006, Comair Flight 5191 was cleared for takeoff on Runway 22 and taxied into position at Bluegrass Airport in Lexington, Ky., with 47 passengers on board. The crew in the cockpit, however, made a series of mistakes and turned onto the airport's secondary runway, Runway 26. Runway 26 was only half as long as Runway 22, had no edge or centerline lights, and was not suitable for commercial aircraft operations. The pilots failed to cross-check their actual heading with the assigned runway heading before advancing the throttles for takeoff. Flight 5191 ran out of runway, crashed, and exploded in a field just outside the airport, killing all passengers. The question that haunted everybody was how could an experienced crew, with numerous and redundant instruments, compasses, charts, checklists, computerized navigation units, cross-checks, and airport signage/lighting, have missed so many clues and made such a mistake?

This type of case was a natural fit for me and I was asked to represent the families of some of the victims. I'm a former naval aviator, aviation safety officer, and a trained crash investigator for the military. I also worked as a law clerk and investigator for the late Harry A. Wilson Jr., who was a pioneer and leader in the field of aviation tort law.

Things moved quickly after the accident. The next day, I was among others who were on the scene taking photographs and measurements, interviewing witnesses, and retracing the final moments of Flight 5191. A day later the first plaintiff filed suit. With more than 150 attorneys appearing on behalf of the victims, it quickly became clear that the plaintiffs needed some type of organized and centralized effort to conduct the lawsuit.

At a meeting of all plaintiffs' attorneys, it was determined that a steering committee representing all victims was the best approach. Everybody agreed that the members of the steering committee would not receive any fee or compensation from the other lawyers. A set of guidelines establishing the rules of the committee were developed and circulated among all plaintiffs' lawyers for approval. Lawyers were asked to consider their background, experience, and ability to conduct this litigation, including whether they were able to make a sufficient time commitment before asking to be considered for the steering committee. A vote was later conducted and seven lawyers, including myself, were chosen to oversee the litigation on behalf of all victims.

What happened over the next several months was a virtual law school examination on federal jurisdiction, federal practice and procedure, federal statutory law, including all aspects of the Federal Aviation Regulations and the Federal Tort Claims Act, litigation over the Montreal and Warsaw Convention international treaties, choice of law and conflict of laws analysis, a thorough examination of Kentucky tort and damages law, along with appearances before the 6th Circuit Court of Appeals and the Judicial Panel on Multidistrict Litigation. For example, many of the cases were filed for jurisdictional purposes in state court in Kentucky. The airline defendants removed those cases to federal court under a federal question jurisdiction theory arguing that the entire field of aviation safety was preempted by the Federal Aviation Regulations. The federal District Court rejected that argument and remanded the cases to state court. The airline defendants then named the Federal Aviation Administration as a third-party defendant, and the FAA removed the cases back to federal court under the Federal Tort Claims Act. This is just one small example of the complex maneuvering that occurred throughout the case. Fortunately for the plaintiffs, we had assembled a dedicated and highly skilled group of nationally prominent aviation lawyers along with the very best Kentucky trial lawyers. What we ended up with was a team that was greater than the sum of its parts.

During the course of the investigation the cockpit voice recorder (CVR) and flight data recorder were recovered from the wreckage. We quickly determined that there was not a mechanical or design flaw, or maintenance error, and that we were in the briar patch of human behavior, referred to in the aviation business as "crew resource management."

The National Transportation Safety Board identified numerous failures and omissions by the flight crew that included failure to perform certain checklists and repeated violations of a federal aviation regulation called the "sterile cockpit rule." The sterile cockpit rule essentially says that once the aircraft pushes back from the gate, there shall not be any discussion in the cockpit about any matters other than the conduct of the flight. This is a very important rule that this crew ignored, which contributed to their loss of situational awareness.

As a member of the trial team, I helped prepare the plaintiffs' case and trial strategy. We had a huge task figuring out how to make a highly technical aviation case - with hundreds of depositions, thousands of exhibits, and more than three dozen disclosed expert witnesses - understandable to a jury. I believe we made good use of technology with extensive work on the creation of a realistic (and admissible) animation of the crash, along with the development of effective demonstrative exhibits. We also spent quite a bit of effort working with our consultants conducting focus groups and mock presentations to understand where any confusion may exist and streamlining our message.

On Aug. 4, 2008, less than two years after the crash and just hours before jury selection was to begin, the last plaintiffs' case was settled.

It is incredible that we were able to go through the entire process and prepare such a complex case for trial in such a short period of time. One of my Kentucky colleagues described the process "like taking a drink of water out of a fire hydrant."

  • Partner

    John McCauley maintains a diverse commercial litigation and trial practice in state and federal courts throughout the United States. He has represented regional and national clients, as well as clients in Europe and Asia. John has ...

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