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Judge rules on Comair reports, interesting read for all pilots.

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Judge rules on Comair reports, interesting read for all pilots.

Old 02-21-2008, 09:23 AM
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Default Judge rules on Comair reports, interesting read for all pilots.

Judge rules on Comair reports
Orders confidential records turned over
By Brandon Ortiz
[email protected]

A federal judge has ordered Comair to turn over confidential safety reports that detail safety violations and at least four wrong-runway incidents by its pilots.

The ruling, which came in the dozens of lawsuits over the Flight 5191 crash, could prove crucial for punitive damage claims made by families of the victims.

Comair, pilots and the aviation industry were united in their opposition to the ruling, saying it could undermine a federal air safety program. Safety experts say pilots and airlines won't voluntarily report safety violations if they could be used against them in litigation.

Attorneys for the families have argued in court briefs that the safety reports will show "what Comair knew or should have known about safety issues within its own corporation prior to the tragedy of August 27, 2006."

All U.S. airlines voluntarily participate in the Aviation Safety Action Program, which was created by the Federal Aviation Administration in 1996. It allows flight crews to self-report safety violations -- such as nearly falling asleep during a flight, for example -- without fear of FAA sanctions or punishment by employers.

The reports are not available to the public and are exempt from open-records laws.

Comair filed lengthy briefs asking the U.S. District Court in Lexington to quash subpoenas for the safety reports. But the company was overruled twice, first by U.S. Magistrate Judge James Todd on Jan. 17 and by U.S. District Judge Karl Forester on Tuesday.

Two courts have ruled that the reports may be produced in limited circumstances. But Forester's ruling is the broadest yet.

Southwest Airlines, Regional Airlines Association, Air Transport Association of America and the Air Line Pilots Association, a labor union, filed friend-of-the-court briefs supporting confidentiality.

But Forester wrote that the arguments "bring to mind cymbals banging together very loudly." He said the rulings do not amount to allowing unfettered access by the public. Forester noted that the documents will be disclosed under a protective order, meaning that plaintiff attorneys cannot release them to the public.

Attorneys for the families have argued in court briefs that the industry's safety arguments are hyperbole. They said pilots and flight crews will always have an inherent incentive to report safety problems to make their jobs safer.

Forester ruled that the law expressly allows for the reports to be produced in litigation if ordered by a judge. He said the reports are particularly relevant to the lawsuits because, according to plaintiffs' attorneys, Comair employees during depositions "have either denied knowledge or recollection" of runway errors by its pilots.

A Comair spokeswoman said the Northern Kentucky-based airline is weighing its legal options.

"ASAP (Aviation Safety Action Program) is an important safety program for Comair, and we will continue to participate in the program voluntarily because we believe it helps enhance the safety of our customers and our employees," spokeswoman Kate Marx said. "We also believe that confidentiality is an integral part of ASAP."

A spokesman for the Air Line Pilots Association, which is not a party in the lawsuit, said the union is "disgusted and outraged" by the ruling.

"What kind of organization would purposely gather negative information about itself if it was ever going to be sued and had to provide that information?" spokesman Pete Janhunen said. "It would have a chilling effect on a proven, powerful safety program. We're very concerned about that."

He said the union will lobby the U.S. Congress to exempt the reports from discovery rules in civil litigation. "We can't let one judge in Kentucky shut down this safety program," Janhunen said.

The pilots association will continue to encourage pilots to participate in the program. But the union does not rule out pulling out of the program if the ruling stands and the law is not changed.

"This is a canary in the coal mine decision, so we're going to pay attention," Janhunen said.

An attorney on the plaintiffs' steering committee, which is leading the litigation for the families, declined to comment Wednesday.

The ruling involves two competing values: the right of plaintiffs to information and the protection of the flying public, said Phillip Kolczynski, an aviation attorney and pilot who teaches an air safety management course at the University of Southern California.

"It is very difficult to expect any business to reveal its dirty laundry, its mistakes, with the realization it could be exposed to million of dollars in damages and public relations mistakes," he said.

The industry and its unions participated in the program under the presumption that reports were protected from discovery in lawsuits. The ruling is likely to get national attention, he said.

Plaintiffs' lawyers are basing their punitive damages claims on the argument that Comair was aware of runway incidents at Blue Grass and across the country, yet failed to implement procedures that could have prevented the accident.

Comair Flight 5191 took off from the wrong runway, one far too short for a regional jet, and crashed at a nearby farm. Forty-nine of 50 people on board died.

The plaintiffs asked for safety reports regarding runway incursions, wrong-runway lineups and other wrong-runway events that happened before the crash. According to court briefs, Comair employees had been unable to recall specific runway errors involving Comair during depositions.

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.

"Absent the production (of the reports), plaintiffs will continue to be left in the dark and will have to rely on Comair to determine what it really knew and what it really did not address prior to the senseless and wholly avoidable crash of Comair 5191," plaintiffs attorney David Royse wrote in a brief submitted last month.
Reach Brandon Ortiz at (859) 231-1443, 1-800-950-6397, Ext. 1443.
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Old 02-21-2008, 09:27 AM
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