Protecting aircraft manufacturers from lawsuits, good or bad?

Great Debates
1

Inspired by the gun thread…

As I understand it, U.S. aircraft manufacturers were until fairly recently (the last 10 or 15 years or so) liable for ‘defects’ in every aircraft they’d ever built. Making up an example off the top of my head: Suppose a certain anti-corrosion substance is used on all aircraft made since 1980, and that this anti-corrosion substance was not available before that time. Suppose Cessna or Piper or whoever originally sold an airplane in 1940 that was either not treated with an anti-corrsion compound (because nobody considered it necessary) or with a compound inferior to the ‘newest and best’. In 1985 someone flies this 45-year-old airplane and corrosion that had gone completely undetected in 35 Annual Inspections (or who-knows-how-many 100-hour inspections) causes a structural failure that results in fatal injuries to the occupants. IIRC, the manufacturer could be held liable for selling a ‘defective’ product even though the corrsion protection that would have prevented the crash was not available when the aircraft was built.

I have heard it said (sorry, no cite) that half the cost of a new aircraft was the insurance premium. With the increase in lawsuits in the early-1980s, and the large awards given to survivors, ‘The Big Three’ simply stopped building airplanes. (Or rather, they curtailed production significantly.) At the end of the '70s there were 15,000 new General Aviation airplanes being made every year. In the '80s 2,000 new airplanes was considered ‘good’. Cessna stopped building single-engine piston airplanes for a while.

If I am incorrect in my premise, I stand ready to be corrected and drop the question.

Ten or fifteen years ago (I don’t remember when) Congress finally put limits to the amount of time an aircraft manufacturer could be held liable for ‘manufacturing defects’. Now the manufacturers are only liable for 18 years. Cessna started building light aircraft again, and now we have new manufacturers coming out with designs that rival the dinosaurs that are still being made. I think this legislation was a good thing.

But does it go far enough? How many car makers are liable for their products for 18 years? My father was critically injured in a car without airbags, even though airbags were available when the car was made. (Though not available on that car.) I’d have been laughed out of court if I brought a lawsuit against a car company for not providing airbags when they were not yet required equipment. Why should an airplane company be responsible for 18 years? Heck, the Cessna 172 is 50 years old. The engine designs are very similar to how they were in the 1930s.

If Congress were to consider a law that limits liability to 2,500 flying hours (Lycoming engines typically have 2,000 hour TBO, and many aircraft would have had 25 100-hour inspections) or five years (which would mean that the aircraft would have had five annuals), whichever comes first, would you support the law? If not, then why not?

2

The General Aviation Revitalization Act of 1994 is what you’re thinking of. Your comparison to cars should be normalized to their expected lives. This seems apt:

Look in Trade-A-Plane and you’ll find airplanes made in the 1920’s for sale occasionally, but you won’t find any cars that age at a dealership.

I’m sorry to hear about your father, but airbags were not required when his car was made, and it doesn’t sound like he sued the manufacturer for negligence for not installing them anyway. Plane manufacturers would never succeed in defending themselves against such a claim, though. Perhaps the difference is from a general feeling among drivers that they’re in control of a car at all times, and that they either understand or could understand everything that’s in it and every decision made about designing or making it, or at least that information about those things are accessible to the average person. That is as general a sentiment about aircraft - there is less a feeling of responsibility by occupants, even pilots, and more a sense of trusting the people who design and build them to do their jobs conscientiously, so that anything that happens is identifiably their fault.

You commented about the age of designs as well as products in the field today - that is partly the result of fear of lawsuits as well as partly the result of extreme certification costs for new designs under FAR 23. Any change opens up the possibility of being sued if something goes wrong, and may be interpreted as restarting the 18-year clock. If car manufacturers had the same environment, we’d be driving new Nash Ambassadors today.

FWIW, we are starting to see real innovation re-enter GA, but from startup manufacturers with few aircraft in service to provide a liability issue, and from those following the new Light Sport Aircraft rule which does not require the full FAR 23 treatment. Sure, it would be nice to have Cessna and Piper still innovating, but it’s okay with me to have Eclipse and Cirrus provide it instead.

3

Heck, it would be nice if you could buy a 172 at a reasonable price. New ones are close to 200 kilobucks. ($175K, last time I checked.)

Your comment about people ‘understanding cars’ got me thinking about lawsuits themselves. Plaintiff’s lawyers try to make sure there are no pilots on the jury. Why? Because pilots understand airplanes, and they are probably less likely to award a large settlement. They may even convince the other jurors that the plaintiff’s case doesn’t hold water. Non-pilots seem to think airplane manufacturers have ‘deep pockets’. A pilot would point out how many of them were or are on the verge of bankruptcy, or have actually gone bankrupt. (Piper – or New Piper, now – comes to mind.)

Our legal system is supposed to be ‘fair’. But it seems to me that often Truth is less important than Money. Is it fair to exclude pilots from juries, just because they can interpret aviation-related evidence better than non-pilots?

4

The test for exclusion from juries is constitutional; and “pilots” aren’t a suspect classification, so there’s nothing wrong with excluding someone simply because he is a pilot. The fear is that someone with specialized knowledge on a jury will rely on that knowledge, rather than the evidence, in reaching his decision. For example, your suggestion is that the aviation industry operates close to the line financially, and a pilot would be aware of that and may suggest a lower award so as not to break the defendant company. That would be wrong of the pilot to do; juries should not consider the relative wealth of the parties in reaching their decision. If you get into a car accident, the damage to your bumper is the same whether the person who hit your car is a penniless college student or a billionaire. I can understand why a lawyer might want to keep a pilot off the jury; they also work hard to keep other lawyers off the jury in some cases.

There have been several lawsuits brought in situations like your father’s accident. The argument is that airbags were available, and that it was a defect in the design of the car that airbags were not put in that car. In legal terms, the risk of the design without airbags outweighed the cost of putting airbags in. The plaintiff’s lawyer would then have to show how much it would have cost to put airbags in the vehicle line, and how many injuries that would have prevented.

5

It’s true that a pilot (or someone else) should not lower an award to keep a company in business. But I believe it is also wrong for a jury to award damages well in excess of what is appropriate. Consider this hypothetical case (hypothetical, although I know there have been similar cases):

A pilot takes off in poor weather in a Beechcraft Bonanza. Many Bonanzas have been lost when the pilot flew them into severe turbulence (for example, into a thunderstorm), causing structural failure. A) The Bonanza is a design that’s nearing 60 years old. B) Structural failures in thunderstorms have occured in the past and are well-documented, and structural failure may occur in virtually any aircraft flown into one. (Note: I’ve heard there has never been an in-flight break-up of a Cessna 172. Of course, they are not the type of aircraft usually flown by pilots who would fly in such weather. I’d be interested in hearing if a 172 has had an in-flight break-up.) C) Every pilot knows the dangers of thunderstorms. So this pilot flies his Bonanza into an area of T-storms, attempting to thread his way between cells. He guesses wrong and the aircraft breaks apart.

His family sues Raytheon Beechcraft claiming the design is faulty. They sue Continental because they suspect the engine may have been at fault somehow. They sue the A&P who last worked on the aircraft believing that he may have overlooked something or may have done something wrong. The jury awards the family $40 million.

A non-pilot jury would say, ‘The airplane broke. Thus, the companies are liable. A large award will teach them a lesson.’ A pilot on the jury would say, ‘Look. Everyone knows you’re not supposed to fly into a thunderstorm. Everyone knows that Bonanzas have a reputation for breaking up in a T-storm. Aviation publications warn pilots not to fly into thunderstorms. The pilot knew this, but he flew into a storm anyway. Is it the fault of Raytheon Beechcraft that the pilot ignored his training and common knowledge? Is it the fault of Continental because the airplane happened to have their engine? Or is it the fault of the pilot for knowingly flying into a hazardous area of his own volition in an aircraft known to have suffered structural failure in the same conditions in the past? I find the defendants not liable.’

Given the scenario, I think it’s clear that the pilot himself is at fault. And yet, juries have awarded plaintiffs large settlements in similar cases. So the award – if not the verdict – is unfair. IMO plaintiffs’ lawyers exclude pilots from juries because a pilot can evaluate aviation evidence better than non-pilots. Juries are supposed to evaluate evidence, but many jury members are unable to evaluate the evidence fairly because they lack knowledge of what it means.

But a pilot, assuming he was on a jury, would not be allowed to use ‘expert knowledge’. Where is the line drawn? Are all pilots aviation experts? I don’t think so. But they do tend know the hows and whys of basic aeronautics. This basic knowledge allows them to view the evidence objectively without the ‘OMYGOD! Airplanes fall out of the sky! I saw it in a movie!’ emotions that many people seem to have.

It strikes me that stacking a jury with people who either do not understand basic physics or who will make decisions based on emotions or who are unequipped to interpret evidence objectively is as unfair as, or more unfair than, excluding people who do know enough to separate a design flaw from pilot error.

And there are design flaws. The Piper Tomahawk (‘Traumahawk’) comes to mind. IIRC some things were changed after the design was approved, in order to cut costs. Some aircraft have had no problems, and others have. It’s almost the ‘luck of the draw’. But even with some ‘perfectly-good’ Tomahawks, they have a poor reputation. Were I on a jury I would definitely look at the evidence to determine if the crash was caused by pilot error or the design flaw. And I would do for any aircraft were I on a jury. (Incidentally, Beechcraft’s Skipper is a near-clone of the Tomahawk, but it does not have the poor reputation. IIRC the aircraft was built as designed.)

Back to the 18-year thing.

A Cessna 172, as I said, is 50 years old. The new ones are very much like the old ones. Sure, they have better sound insulation, thicker windows, 30° flaps instead of the original 40° flaps, better engines, etc. But structurally they’re pretty much the same. (Other changes include a rear window and swept tail added in the 1960s, tubular landing gear struts replacing the spring steel struts in the 1970s, longer extension on the vertical stabiliser in the 1970s… But again, it’s the same basic design.) With such a robust design, proven over half a century, should Cessna be liable for ‘design flaws’ back to 1987 when the design actually goes back much farther? Should Piper be responsible for their PA-28 design, which is only slightly younger than the 172? Or should the 18-year rule only apply to designs that are significantly different from the original design? Or should there be, as I proposed earlier, a five-year/2,500 hour limit? (I believe that any design flaws on a new design can be discovered within that timeframe, and that flaws on older designs have already been discovered.)

6

Your comments about high awards ruled upon by juries is not unique to aircraft manufacturers. What you describe is commonplace - a person who has been injured will look around for somebody to sue, and will settle upon a defendant who looks able to pay the most. That’s usually a big company, assumed to have a lot of insurance available, and furthermore they naturally get less sympathy from the average juror.

I don’t have a problem with thinking that, if a product really did have an inherent design or manufacturing defect, it would be likely to manifest itself in 18 years, especially on an item that’s subjected to thorough annual inspections. As to your other questions, the link I provided seems to cover most of them - basically, a design change to a feature apparently restarts the 18-year clock with respect to that feature. The 172’s basic structure is now clear, but, for an example of a detail, the optional glass panels on the new ones apparently wouldn’t be. Does that seem less reasonable to you than it does to me?

7

ElvisL1ves: I didn’t read the link before, because I assumed it was an official document. I opened it a minute ago and found it was written by an aviation lawyer. I haven’t had coffee yet, so I have not finished the article. I think I detect an anti-GARA slant to it. If I am wrong, I stand to be corrected. I’ll read it later after I wake up a bit.

I too, think that any design or manufacturing defects will manifest themselves within 18 years. But why 18 years? Lots of people drive cars approaching that age, and I doubt that they’d stand a chance in court of winning a case based on a design or manufacturing defect. (Not to say they wouldn’t, but I’ve never heard of such a case.) How long did it take for the Traumahawks’s problems to become evident? (I don’t know.)

I’ll post later when I can be more coherent.

8

In your hypothetical, you seem to be arguing that it is a failure of the judicial system that it does not require a pilot to be on the jury. Your hypo says that the verdict is unfair or wrong because there wasn’t someone on the jury with (a) the personal expertise to guide the jury’s decision and (b) the personality sufficiently strong to sway the other 11 (or 8 or 5, depending on where you are) to his perspective. If that’s true, we ought to require every jury to have a member like that.

We don’t require “specialist” juries for a variety of reasons, including the difficulty in assembling one. One could argue that there are a variety of contexts in which a specialist on the jury could contribute his expertise. But ultimately, and absent special circumstances, it is a failure of the lawyers if the jury comes out the wrong way. Why didn’t the defense team put up a good expert witness who could explain the physics?

I will agree with you that a jury that does not interpret evidence objectively is a bad jury. But emotions are a part of our make-up; a good lawyer recognizes that, and should be able to present evidence in a way that is both factually correct and emotionally appealing. No one wants to side with the bad guy.

I think we’re going to end up disagreeing on this one; I think the onus ought to be on the lawyers to present competent, compelling evidence, not on the individual members of the jury to fill in the gaps.

9

If it is common knowledge, shouldn’t this be what the defense attorney’s case is?

I think the point behind not having a pilot on the jury would be that he might know that the Bonanza is hazardous in the conditions stated, but that another pilot (the victim) might not. I would think that if the defense proved: “Aviation publications warn pilots not to fly into thunderstorms. The pilot knew this” it would not matter one bit if you had a pilot or not on the jury.