First, it’s not clear to me that it should be. Are you saying that it’s more negligent to discuss it and not implement it than it is to not discuss it and not implement it?

Second, the point Brian was making is that “Comair” wouldn’t have discussed it. Some one or two of tens or hundreds or thousands of employees may have discussed it. But the fact that one of them made the mistake of committing his thoughts to paper (or not! See Ted’s earlier post on having to save voice mails!) somehow turns into the corporation having knowledge of, and ignoring, some idea or piece of information. Litigation shouldn’t be (but of course is) a fishing expedition for plaintiffs’ lawyers to find the one email written five years ago by some random employee where some tangentially related issue was discussed.

Do you really believe that their mer ownership of the plane would NOT have been nough? In fact, their PREEVIOUS ownership of the plane (if fairly recent) would likely be enough! But here are some other things that make this less-than-obvious: (from http://www.kentucky.com/mld/kentucky/news/special_packages/crash/15429895.htm)

“Some pilots have told the Herald-Leader that the layout of taxiways and runways at the airport can be confusing. There have been other cases in which pilots mistakenly lined up for takeoff on the smaller Runway 26, but they or air-traffic controllers caught the mistake and averted disaster.

Clay and Polehinke also hadn’t flown into the airport since the runway approach had been changed during a repaving project. It was dark, and the centerline lights on the longer runway were out because of the construction — eliminating a potential clue that Flight 5191 was on the wrong runway.”

“It could take a year for the NTSB to rule on the cause of the crash. Investigators will examine a wide range of issues, including whether pilot fatigue or inattention played a role; whether having a second controller in the tower — as the FAA had directed, but not enforced — would have helped; whether the plane had any mechanical or instrument problems; and signs and lighting at the airport.”

“The lone air traffic controller on duty cleared Flight 5191 to taxi to Runway 22 and, as Clay guided the plane past the tower, cleared the flight to take off. Then he turned around to catch up on paperwork.”

In short, any suit against the airline at this point is, at the very, very most charitable, extremely premature. Unless they are just seeking the deepest pocket.

Does anyone believe that a pilot is more likely to commit suicidal negligence if he knows his employer won’t be held liable for pain and suffering damages? What can employers do to incentivize their employees not to make a mistake that will kill them?

Were it up to me, passenger recovery after air crashes would be handled by way of contractual principles, and it is exceedingly unlikely that rational consumers before a crash would seek out coverage for pain-and-suffering damages (as distinct from other kinds). Individuals buying “first-party” insurance for themselves, for example, do not buy pain-and-suffering coverage, even as they do choose to purchase other sorts of coverage (lump sum, wage replacement, etc.)

I am surprised there has been so little comment on the original point of the post, namely the prospect of otherwise unnecessary second autopsies conducted for purposes of pecuniary gain. The linked article pretty clearly indicates that many folks are squeamish about the idea of re-cutting up their loved ones for that purpose. Should we be squeamish too?

Also IANAL, so please edumacate me: how is the entire corporation liable for the pilot’s unintentional bad act? Is there some sort of strict liability for employees of corporations?

Logic would dictate that the person that did something wrong gets sued, which in this case looks like the pilot, the FAA, and the airport. So again it begs the question: what, exactly, did the airline do wrong?

I really like the thought process that leans away from jury fact-finding to independent expert analysis with regard to scientific evidence, but cannot think of a better way to implement such as system. Daubert was supposed to do it, but failed miserably. Judges are empowered to toss junk science, but rarely do it. The ostensibly easy answer is to appoint knowledgeable “professional jurors,” but the rub is in promulgating a process by which such jurors can be found.

Fist you need to get through the initial hurdle of convincing the public (in each of the 50 states) that juries are simply not equipped to handle the duty of resolving fact issues in cases involving scientific issues. This hurdle has been enough—to date—to keep a legitimate debate over how to implement a new system in check. I can complain about juries and their shortcomings all day to friends at the bar, and they are generally fairly receptive to my rantings; but as a political issue limiting the power of juries is not something people are ready to embrace

Let’s presume, however, that such a debate took place in the public sphere (as it has quite frequently in my own mind). That first hurdle is nothing.

How do you implement a system that takes fact finding away from jurors?

Idea 1:
Identify cases involving scientific issues and send them to a special court whereby a jurist (or jury) with scientific experience finds facts?

Problem:
Who decides whether any particular case turns completely on the scientific evidence or whether there are other fact issues which a jury should resolve (i.e., conflicting testimony regarding exposure to a product in a toxic tort case or use of a drug in a pharmaceutical case)? An appointed or elected judge still has the responsibility to move such as case to a “scientific court”. Or the federal government implements a system in which a state court case can be removed to a scientific court—which is almost impossible. The federal courts may take jurisdiction over many patent issues and a few interstate commerce issues, but nothing in the Constitution allows federal intervention over state lawsuits based on the mere fact the decision might rest on a scientific finding of fact. What we’re left with, then, is a system in which state judges have complete discretion over whether to cede jurisdiction to a scientific court. It’s not gonna happen. Just like Daubert giving discretion to judges to exclude junk science didn’t cure the problem, neither will this.

Idea 2:
Appoint an “independent” court expert to give an analysis of scientific issues and give the boot to experts hired by both plaintiffs and defendants.

Problem: This is a decent idea, but, again, it comes down to the whims of the jurist in charge of the case. In my own jurisdiction judges are empowered to appoint mediators, who almost never are really “independent.” I can only presume that most state court judges make decisions that are, in some part, based on the wants of their appointers or constituents. So long as the system of appointed and elected judges remains status quo, the appointment of independent experts by those judges will remain equally flawed. Don’t think for a minute I have a better plan for installing judges; just understand that given our system, there is a serious flaw in allowing them to appoint “independent” scientific experts at their discretion.

Idea 3: Science rules

Problem: Let’s assume for a moment that there is an easy and publicly acceptable way to appoint a scientific court or scientific jury to resolve. Does a truly independent scientific expert offer the only true conclusion? Anyone with any background in scientific experimentation and statistics will admit that science is not an exact science. We draw conclusions base on experimental conclusions with a P value of less than .05, but for even this to be meaningful, there are numerous factors within the study that must be meticulously undertaken. In recent history, there are numerous examples of bias within so called “scientific” studies which render them worthless as a predictor. Because of such lackadaisical scientific research, there are many issues that come up in litigation that can be argued both ways. How does the appointment of a single independent expert resolve issues that are generally unresolved, even in the scientific community (think global warming)?

I would love to find a workable way to get rid of random jurors (and their random predisposed opinions) in civil cases whenever possible, but I must admit that every time I come up with an idea to do so, it simply will not work. Sometimes it’s for social and political reasons, sometimes it’s unconstitutional, and sometimes it’s just plain stupid . . . but always, it just won’t work. Ideas?

J.T. Wenting, Bombardier is the fourth largest aircraft manufacturer in the world and the owner of Learjet. The likelihood of it cutting ties to the United States seems remote.

Brian P., what “attack” are you talking about? And are you suggesting that if Comair discussed possible procedures to prevent an aircraft from taking off on the wrong runway but failed to implement those procedures, that information is not relevant?

Jim Collins, I suspect that the FAA would respond that its regulations had nothing to do with the fact that “the amount of runway [the plane] had on takeoff” was half as much as it was supposed to have. I also wonder how much professional training in aviation is necessary to understand the difference between one runway and a second runway half as long.