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New Jersey Law Journal
SUE NOW, FIND FAULT LATERAS TWA CRASH PROBE DRAGS ON, SUITS SEEK EARLY DISCOVERY Cheryl Winokur
After four months of investigating, federal authorities are still not sure if a bomb or a missile or mechanical failure brought down TWA Flight 800. That may be why there's been no rush of lawsuits by families of the 230 passengers and crew members killed in the crash. When you sue, you usually need to allege someone was at fault. But in Gerald Baker's view, the absence of a finding of cause is no reason to hold back on litigation: on the contrary, it's an even better reason to sue. "If the government can't reach a decision within three months, then I think it's time for the plaintiffs to be allowed to participate in the process," says Baker, who on Nov. 21 filed a wrongful death suit in behalf of a husband of one of the victims. Baker, of Hoboken's Baker, Pedersen & Robbins, is only the second lawyer to file suit since TWA 800, which was on its way from New York to Paris, exploded in midair on July 17 and crashed in the Atlantic Ocean off the shore of Long Island. He says he filed suit now, before the cause of the crash has been established, so that he can get a jump on discovery and -- just maybe -- find out what the National Transportation Safety Board has been unable to find. "Our experts have a different job to do, so they may reach different conclusions than those reached by the NTSB," he says. "That certainly wouldn't be the first time that happened." But lawyers who regularly handle airline litigation say that's wishful thinking. "We, the experienced aviation lawyers, will not be given a chance to get that information in the hands of the FBI and the NTSB until the investigation is concluded. To say differently is just incorrect," says Michel Baumeister, a partner at Baumeister & Samuels in Morristown and New York who represents the families of 15 victims of TWA 800. A defense attorney agrees. "If the U.S. government with all its resources has been unable to determine the cause, it would be a strange thing for a plaintiff's expert to solve the mystery," says Andrew Harakas, a partner at New York's Tompkins, Harakas, Elsasser & Tompkins. Baker is undeterred. In the complaint, filed in federal court in Manhattan, he alleges that the destruction of Flight 800 was caused by the "wilful misconduct, intentional acts and gross negligence" of the airline and the negligence of the plane's manufacturer, The Boeing Company of Seattle. He seeks $25 million in compensatory damages against TWA, another $25 million in compensatory damages against Boeing for negligence and strict product liability, and more than $50 million in punitive damages. Baker's client is David McPherson, the husband of Pamela McPherson, a TWA flight attendant who was "deadheading" -- i.e., traveling to connect to her next working flight -- on TWA 800. McPherson is a New York resident, and jurisdiction was based on diversity of citizenship. While the complaint is not specific about which law applies, it's clear that the Warsaw Convention of 1929 governs carriers' liability in international flights. As supplemented by the Montreal Agreement of 1966, it caps a plaintiff's recovery at $75,000 unless he or she proves the carrier acted with "wilful misconduct." That means proving TWA acted either with knowledge that its actions would probably result in injury or death or with conscious or reckless disregard for the fact that injury and death would be probable consequences. The Warsaw Convention only applies to air carriers. It does not apply to Baker's negligence or strict product liability claim against Boeing. Baker is the second attorney in the country to have filed suit since the crash. Lee Kreindler, a partner with Kreindler & Kreindler in New York, has filed 12 suits in federal court in Manhattan and Brooklyn. The first was filed on Oct. 21. The early filings of those suits, and Baker's, doesn't sit well with lawyers for families of crash victims who have not yet sued -- and who say Kreindler and Baker jumped the gun. "There is no need for anyone to file a lawsuit today," says Baumeister, an adjunct professor of aviation law at Seton Hall University School of Law. "Lawyers typically file lawsuits as a race to the courthouse as a veiled form of publicity in order to market themselves to the general public. That is irresponsible until more hard evidence is revealed and more facts are known." Baker admits that he is suing now just to begin the discovery process or, as he puts it, to do his own investigation into the cause of the crash. "It's premature only to the degree that the cause of the tragedy is not yet known," he says. "But it is not premature to the degree that we are entitled to participate in the investigation of the accident and the determination of its cause." Finding the Critical Starting Point Still, there's a downside to filing before the cause of the crash is known. "In TWA Flight 800 we need that critical starting point," says aviation attorney Baumeister. "It appears as though there is a compelling case for design failure on the part of Boeing. But all of that could be wiped away if in the next few months the boats pull up wreckage that establishes it was either a bomb or a missile." "But nobody knows that, so they'll just be speculating," adds Joseph Sweeney, who has taught international law at Fordham University School of Law for 31 years. "You have to make up your mind what you think was the cause and that the cause was something the airline could have known about, could have corrected it, but willfully refused to correct a known defect -- and hope the jury will believe you," if it even gets that far, he adds. That's why Baker is taking a buckshot approach, hoping one of his alternative theories of liability hits the mark. Under the mechanical failure theory, Baker claims that Boeing was negligent in its design, manufacture, service and repair of the aircraft. He also alleges the manufacturer is liable for design and manufacturing defects. On the date of the crash, the aircraft "was not in an airworthy condition and was not fit for its intended use due to defects in its design and manufacture and due to the failure to provide adequate warnings and instructions," he writes in his suit. The 25-year-old aircraft had been operated approximately 50,000 miles more than its useful service life as defined by Boeing, he says. According to Baumeister, if the cause turns out to be mechanical failure, plaintiffs will have to consider industrywide practices, federal aviation standards for designing and manufacturing aircraft and federal air worthiness directives to carriers which list what needs to be corrected on an aircraft. The Lockerbie Precedent Baker also addresses the bombing theory, alleging that TWA "wilfully, intentionally and with gross neglect, failed to provide adequate security to protect the safety of its passengers." The controlling case on such liability was that brought by the families of victims killed when Pan Am Flight 103 exploded over Lockerbie, Scotland in December of 1988, killing 259 passengers and crew members. In 1994, the Second U.S. Circuit Court of Appeals affirmed a jury verdict finding willful misconduct by Pan American World Airways Inc. -- specifically, failure to provide adequate training of security personnel and to act on a warning it had received a week before the accident. In re Air Disaster at Lockerbie Scotland on December 21, 1988, 37 F.3d 804 (2nd Cir. 1994). The TWA plaintiffs will have to show how the bomb got on board, where it was placed, how long it was there, who placed it, whether the aircraft was checked and whether the security was tight enough. They will then have to prove that TWA's actions amounted to "wilful misconduct." Consolidation Certain Like the Lockerbie case, the TWA crash suits -- filed or to-be-filed -- will likely be consolidated. That's why plaintiffs attorneys who are holding back say it makes sense to see what the NTSB comes up with. "I could go into court today with my 15-plus clients; however, it would not give me access to review the hard evidence at this time," Baumeister says. Once the NTSB releases its findings, he says, lawyers will be in a better position to gain access to evidence, take appropriate depositions and bring the case to trial. But with competition among plaintiffs' attorneys fierce, filing suit is a good way to insure one's piece of the action. "I think it's a bit premature, but I don't think we have a choice but to get involved," says Kenneth Nolan, a partner at Speiser, Krause, Madole & Nolan in New York who represents the families of five Flight 800 victims. He adds: "Once litigation starts, you have to be in it." The complaint in McPherson v. TWA et al. is on Counsel Connect in LIBRARY under "Briefs, Memos and Forms by Practice Area -- Torts." See page 22 for details. Reporter Cheryl Winokur can be reached by e-mail at cwinokur @counsel.com. |
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