A question for aviation consumers (passengers)

Submitted by Spartacvs on Sat, 02/23/2008 - 7:12pm. Tags:

Books and Film

Continuing fallout from the August 2006 crash of Comair Flight 191 has resulted in a recent decision by a Kentucky judge which sets up an interesting dilemma, one with the potential for a conflict of interests between air accident victims seeking redress and aviation consumers (passengers) who presumably would like to avoid the prospect of becoming future accident victims themselves.

In shortened summary, the judge's decision may have put at risk the Aviation Safety Action Program which elicits voluntary incident reports from air carriers, by allowing plaintiffs attorneys access to the confidential reports in order to impeach witness testimony in lawsuits seeking to recover damages for the accident victims. Pilot unions and air carriers have expressed displeasure with the judge's decision and may consider withdrawing from the program all together.

I would be interested to hear the views of Forvmites on balancing the competing interests of accident victims and the public at large, or maybe you don't think there is a competing interest?

I covered the Comair Flight 191 accident in my earlier diary here, since when the NTSB has issued the following probable cause which as expected basically amounts to pilot error:

The National Transportation Safety Board determines that the probable cause of this accident was the flight crewmembers’ failure to use available cues and aids to identify the airplane’s location on the airport surface during taxi and their failure to cross-check and verify that the airplane was on the correct runway before takeoff. Contributing to the accident were the flight crew’s nonpertinent conversations during taxi, which resulted in a loss of positional awareness and the Federal Aviation Administration’s failure to require that all runway crossings be authorized only by specific air traffic control clearances.

GW Bush, leading contender for worst President ever.

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Devil's Advocate (#81505)

by Punditus Maximus on Mon, 02/25/2008 - 2:11pm

I can see where it might be worth having an exception -- that the information could be used exclusively for the purpose of refuting false testimony, but otherwise could not be introduced into evidence.

I'm not sure how it could be contained, though, and I am concerned about slippery slope issues.

It's impossible to debate if people simply hold beliefs that have no grounding in reality.

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Tomsyl's point (#81609)

by Spartacvs on Tue, 02/26/2008 - 10:34am

about how airline lawyers would likely react to any perceived increase in liability exposure is the one to take home for me. I don't see how any mechanism could contain the natural inclination and behavior of lawyers operating in the best interests of their client on both sides of the liability question.

Given the already high level of aviation safety in the US it is difficult to imagine how the industry can continue to make significant inroads on the issue of safety without taking a more pro-active approach such as envisioned by the ASAP. Regulations written in blood in the aftermath of accidents, once the NTSB and FAA have pored over the specific details, are not sufficient. Crews and air traffic controllers make mistakes all the time, but not all mistakes lead to accidents. In fact very few of them do and learning from mistakes is how the inexperienced become experienced. The ASAP was developed as a tool to take some control over the learning process thereby increasing aviation safety and should not be sacrificed for a one time gain for the plaintiffs involved in litigation over Comair Flight 191.

GW Bush, leading contender for worst President ever.

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"Crews and air traffic controllers make mistakes all the time" (#81741)

by mmghosh on Tue, 02/26/2008 - 10:40pm

I didn't know that. Is that in the sense of minor errors that are detected by automatic correction systems, or genuine errors that get through the system and don't have measurable consequences?

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Depends what you call minor (#81765)

by Spartacvs on Wed, 02/27/2008 - 8:50am

Missing an assigned altitude is minor if no other traffic is involved, but if it causes a loss of separation between aircraft then it becomes a major infraction that can result in enforcement action against those involved, to include license suspensions/revocation, fines and of course an unwanted history of enforcement actions on your employment record.

Have a look for yourself in the ASRS online database, select a sample period under Date of Incident, select Air Carrier under Operator and Air Carrier again under Operator Affiliation then run a search. I suggest you modify the report display by unchecking all but the narrative and synopsis boxes. Substitute FAA for Air Carrier under Operator Affiliation on the search page to get reports from air traffic controllers, an OPERROR is FAA speak for an operational error ie. mistake.

Pilots will often self report using the ASRS as a confessional to secure certain concessions and avoid enforcement action by the FAA. Air traffic controllers do the same thing.

I would classify most of the incidents and mistakes reported as minor and further I think it's unreasonable to expect that aviation professionals will not make minor mistakes. The trick is not to keep repeating those errors or allow minor errors to accumulate and become major incidents. It's also a mistake to believe that automation systems have all but eliminated the capacity for human error to ruin your day, they haven't.

GW Bush, leading contender for worst President ever.

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Not currently being a party to any such lawsuit..... (#81503)

by Bernard Guerrero on Mon, 02/25/2008 - 1:59pm

....I'd say that the costs of allowing such access are greatly outwieghed by the necessarily transitory benefits that would accrue to Flight 191 plantiffs. This would tend to kill or damage the program, so it wouldn't even allow much benefit to future plantiffs; I think it would difficult to be in favor unless you happen to be in a very small group of people.

That said, I can see why said very small group would be interested in it and might very well feel entitled to it. It's germane and similar info has been provided in the past.

The ultimate result of shielding man from the effects of folly is to people the world with fools. -Herbert Spencer

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On the rare occasions I've handled one of these, (#81314)

by tomsyl on Sun, 02/24/2008 - 1:11am

I've represented the aircraft manufacturer, so take this with a grain of salt. Making the frank statements by pilots, ground crew, AT controllers and the like will IMO essentially destroy the usefulness of any voluntary program aimed at safety. A lawyer for the airline would be involved directly in the process from beginning to end if the statements were admissible; every pilot's comment would be vetted as a potential admission of fault/liability, and the contents of the reports that resulted would be so watered down that they would be useless.

A loose analogy would be most states' rule that evidence of subsequent remedial measures is inadmissible to prove fault. If someone falls on stairs, the property owner is free to put in no-slip strips on the stairs to make them safer, without the risk that the slip-ee will argue that improving the stairs is an admission that they were dangerous in the first place.

So if the voluntary investigation reports are allowed into evidence, no one will benefit. The public won't get a reduced likelihood of future accidents that might result from an honest, detailed description of what happened; the injured airline passengers won't get helpful admissions from pilots and ground crew because their statements will be so vague, neutral and pro forma as to be useless.

I'd consider taking this one up on appeal if I were the airline. There's a good chance of winning a reversal on the public policy argument.

In the land of the blind, the one-eyed man is king.

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NASA (#81369)

by Spartacvs on Sun, 02/24/2008 - 1:32pm

has administered a similar program known as ASRS for over 30 years now, achieving confidentiality by stripping reports of all identifying information before entering them into its incident database. As I understand it, the FAA's ASAP program is an attempt to improve on the functionality of the NASA system by retaining identifying information, allowing the FAA to follow up on specific incidents and achieves confidentiality by its own rulemaking authority to maintain a close hold over the information generated. It would appear that the judge's decision challenges this rulemaking authority and may require an intervention by Congress to establish the public policy priorities.

I agree that if the judge's decision isn't reversed on appeal it will likely spell the end of the ASAP program and its added functionality, in favor of a one time advantage for the plaintiffs attorneys in this particular case.

GW Bush, leading contender for worst President ever.

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"a one time advantage for the plaintiffs attorneys" (#81371)

by HankP on Sun, 02/24/2008 - 1:35pm

what else do plaintiff's attorneys look for?

I blame it all on the Internet

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Exactly (#81374)

by Spartacvs on Sun, 02/24/2008 - 1:56pm

which is why such motivations and the adversarial approach of the legal profession in resolving disputes are not my preferred method of establishing public policy?

GW Bush, leading contender for worst President ever.

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I hate to tell you (#81380)

by HankP on Sun, 02/24/2008 - 2:17pm

but most of our society is based on an adversarial approach. Besides, I can't really see any alternative for resolving legal claims.

I blame it all on the Internet

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The process of resolving legal claims (#81422)

by Spartacvs on Sun, 02/24/2008 - 7:22pm

related to one specific accident shouldn't be allowed to trump efforts at improving aviation safety as a whole, is all I'm saying. There are simply too many incidents and not enough inspectors on the ground to have any hope of making significant inroads in improving aviation safety if the current free flow of information dries up. Under this scenario everybody loses, except for the likely one time gain for the plaintiffs in this case.

For the record I don't particularly like the fact that the airline's executives appear willing to mislead the court in depositions. But the greater good is served by not allowing plaintiffs attorneys to impeach them with information gleaned from confidential safety reports, when doing so seems likely to jeopardize the program.

GW Bush, leading contender for worst President ever.

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You hit the nail squarely on the head (#81634)

by HankP on Tue, 02/26/2008 - 12:24pm

"I don't particularly like the fact that the airline's executives appear willing to mislead the court in depositions"

Given that, escalation is a foregone conclusion. That's the source of this particular problem.

I blame it all on the Internet

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In my opinion (#81648)

by Spartacvs on Tue, 02/26/2008 - 2:05pm

something like Tomsyl's example on remedial measures needs to apply here in respect to the ASAP.

A loose analogy would be most states' rule that evidence of subsequent remedial measures is inadmissible to prove fault. If someone falls on stairs, the property owner is free to put in no-slip strips on the stairs to make them safer, without the risk that the slip-ee will argue that improving the stairs is an admission that they were dangerous in the first place

Of course airline executives are going to fudge their testimony and give misleading answers to pointed questions, given that the only alternative is to open themselves up to liability.

GW Bush, leading contender for worst President ever.

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Misleading answers = ever increasing discovery (#81746)

by HankP on Tue, 02/26/2008 - 10:57pm

that's just the way things work, and my guess is that if any of us were the plaintiffs we'd want it that way.

I blame it all on the Internet

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It's the discovery ruling that's the problem (#81794)

by Spartacvs on Wed, 02/27/2008 - 9:32am

specifically the revealing of the reports. I have no problem with plaintiffs attorneys obtaining the information by other means, whistle blowers or conscientious executives who do not mislead etc. But I don't believe they should be granted access to the reports. From the article:

But last month, an executive recalled four such events: a flight that took off from the wrong runway in 2003 at the Corpus Christi, Texas, airport; an incursion at Blue Grass; a flight crew that lined up to land on the wrong runway at the Dallas-Forth Worth airport; and a flight that began its initial descent into the wrong airport in Knoxville, Tenn.

The FAA's ASAP depends entirely on the submission of voluntary information if it's to be of any use and that information is unlikely to be forthcoming if the judge's ruling stands and plaintiffs lawyers are allowed access to such privileged information.

I would suggest that a judge overseeing specific litigation is not in the best position to establish policy on aviation safety for an industry as a whole. As a matter of establishing public policy, clearly the flying public are far more are exposed to the potential for an aviation accident which the ASAP may help prevent than they are likely to benefit from this judicial decision as plaintiffs in an actual accident. Especially since the benefit to plaintiffs in this case is unlikely to be passed to future plaintiffs once the voluntary information stream dries up.

GW Bush, leading contender for worst President ever.

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I have no aviation experience... (#81340)

by JKC on Sun, 02/24/2008 - 9:29am

but I agree with tomsyl on this one. We have similar error reporting systems in medicine: if making an error report were to increase one's chance of legal vulnerability, I guarantee the system would grind to an immediate halt.

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