Law Firm of Motley Rice LLC - Aviation Safety Litigation: Is the NTSB Deck Stacked Against Pilots?

By Mary Schiavo

While taking a recent series of aviation depositions of an aircraft manufacturer, a well-known but hard to prove government practice was displayed in a series of drafts in a manufacturing representative's files. One of the manufacturer's employees walked into the deposition room with two large accordion files. In the files was a draft-by-draft track record of not only the manufacturer's efforts in shaping the NTSB's position in blaming the pilots, but also a draft of the FAA's post-accident emergency airworthiness directive.

Manufacturer to NTSB: It's the Pilot's Fault
The FAA sent its draft airworthiness directive to the manufacturer for the manufacturer's edits. The manufacturer critically changed the FAA's draft, revising the categorization of the airworthiness directive from a certification problem (manufacturer) to a maintenance problem.

The NTSB also afforded the airline opportunities to comment. Missing from both the FAA's and the NTSB's analyses were any inputs by the pilots' union or the pilots' attorneys or representatives. They were not afforded the opportunity to write, edit, or even object to the FAA or NTSB wording of directives, bulletins, reports, conclusions, or causal factors. They died in the accident for which they were blamed. Their alleged error was failing to discover in their preflight the airline's and manufacturer's errors.

The lack of opportunity for the representatives of the accident pilots to participate as a party in the post-accident investigation and remedial measures was an omission which inherently biases this and many NTSB opinions. The practice also subjects the FAA to constant criticism that it is little more than an industry flak.

The manufacturer's extensive efforts with the NTSB to blame the pilots were documented in at least four different drafts. The procedures that the manufacturer claimed the pilots failed to follow were not even in the pilot's manuals, but only in the manufacturer's manuals. Of course, the pilots' families had no idea such efforts were ongoing and were not given any opportunity to respond, object or clear their loved ones' names and records.

Pilot Burden to "Discover and Recover"
Of course, the previous example is just one among many where pilots shared the blame in crashes with catastrophic mechanical and/or maintenance failures. Even more difficult to understand is the manufacturers' insistence on two seemingly mutually exclusive arguments:

The mechanical event was rare, never happened before, or was only a remote possibility, and therefore it was not necessary to warn, it was not a certification issue, and it was not a product defect.
Nonetheless, the pilot should have discovered the cause and executed procedures to recover.

Of course, training, procedures, checklists, or warnings were never given to the pilots because the manufacturer insisted the event was rare and unlikely to be encountered. Therefore, the risks of such an event, and procedures to recover from such an event, received minor notation and even more dismissive training, if any.

Perhaps one of the most egregious examples is American Airlines flight 587 which crashed just outside New York City, on Nov. 12, 2001. The aircraft's vertical stabilizer and rudder were found a mile from the main wreckage site. The engines also separated from the aircraft seconds before the ground impact and were also several blocks from the main wreckage. The investigation highlighted the fact that Airbus aircraft have a tail assembly which is affixed to the fuselage in a design that is very different from Boeing and most other aircraft.

The vertical fin is affixed to the aircraft through a series of loops and pins, and succinctly speaking, it is much like a hasp-lock. Boeing, McDonnell Douglas, Lockheed Martin, and others affixed the vertical fin with a design procedure - welded on or affixed to the aircraft as part of the solid structure, rather than through a hardware-fastening system. Also at issue in the course of the investigation was the fact that the aircraft's tail assembly was made out of composite materials, meaning that the material in the tail consists of a layered honeycomb-like material which is literally baked into a tail assembly.

By blaming the pilots and the pilot training, the NTSB overlooked some looming safety issues and missed the chance to address the problems before another Airbus crash occurs. It failed to fully explore issues such as long term deterioration of composite structure material, aging aircraft concerns for the design, fabrication and maintenance of the composite tail assembly, and developing aging aircraft protocols for composite aircraft, and particularly composite aircraft tail assemblies with the Airbus method of affixing the tail structures.

Instead, the NTSB concluded that because the tail failed beyond its certificated design limits, it was not necessary to make findings relative to that issue. Instead, they cited the pilots for the fact that the tail fell off while they were flying within the certificated flight envelope and while deflecting the rudder in a matter permitted by the aircraft in normal flight.

Even a cursory look at the NTSB conclusion brings several incomprehensible NTSB statements to light. For example: "[t]raining already exists that encourages pilots to use full flight control authority (including rudder), if necessary." Obviously, pilots may reasonably assume that they may use a full flight control authority on their aircraft. If using the full extent of any flight control surface, including the rudder, is potentially catastrophic, then clearly a limiting system or a limiter system should have been installed on the aircraft.

Perhaps the most outrageous example of improperly attempting to blame the pilots is with US Airways flight 427, on a flight from Chicago to Pittsburgh on Sept. 8, 1994. That accident, in conjunction with the crash of United flight 585 on March 3, 1991 near Colorado Springs, Colorado, remained one of the NTSB's longest unsolved crashes, taking five and eight years respectively (and six years after a similar case, the South American crash of Copa flight 201). Attempts by the manufacturer, Boeing, to blame the pilots in that case, most clearly delayed finding the cause of the crash and the resolution of the investigation. In those tragedies, it took longer to discern the cause of the crash, than it did for Boeing to design, test, certify, and manufacture the aircraft.

In the US Airways flight 427 case, the Boeing Company actively promoted the untenable theory that the flight crew was responsible for the crash. In a series of Pulitzer Prize-winning articles published in a series during the end of October 1996, the Seattle Times chronicled the unsupportable efforts of Boeing to blame the flight crew.

The Seattle Times documented that in March 1995 at a NTSB hearing, Boeing presented a thick packet of documents loosely linking cases of pilot error over several decades up to the Pittsburgh crash. At Boeing's request, the safety board created a human performance committee to focus on the possibility that the pilots caused the crash. While the committee was chaired by the NTSB's psychologist, the board included a Boeing test pilot and a Boeing psychologist. Boeing made the argument that one of the pilots must have stepped on the left rudder and kept it depressed until it was too late to recover.

But why? Boeing argued that while under stress the pilots reverted to childhood memories of snow sledding and as a boy the pilot probably steered his snow sled by pushing his left leg forward to veer to the right. Further outrageous and unproved theories promoted by Boeing, included that one of the pilots depressed the rudder as a result of a seizure. There was no evidence presented that the pilots had any history of either seizures or snow sledding. Nonetheless, in January 1996, Boeing distributed a 25-page paper to the panel members laying out Boeing's argument supporting why the pilot, and not the airplane, should be blamed. They wanted to attach it to the NTSB's human factors group report, but it was so outrageous they eventually withdrew it, but asked the NTSB to return or destroy all copies, contrary to the usual practice of making the party submissions available to the public as part of the NTSB record. The NTSB refused to release the report despite a Seattle Times Freedom of Information Act Request.

The FAA also concurred with Boeing's analysis. When the final NTSB report was published five, six, and eight years after the rudder hardover crashes, the pilots were not blamed, but by then more people had died and the litigation had ended. To this day, the 737, including the new models 600, 700, and 800, are certified with a single rudder actuator in each of the aircraft. Curiously, the FAA claims that the pilots can handle the run away rudder problem which results in a full deflection of the rudder. The training and pilot techniques developed as a result of the crashes included counter-acting uncommanded deflection of the rudder with further use of the rudder.

A more recent and open NTSB investigation includes the crash of a Bombardier Canadair Regional Jet. The pilots took the aircraft to its certified operational ceiling and both engines promptly failed. The pilots were unable to start the engines. To date, the investigation points to faulty restart instructions and a problem known to the engine manufacturers well in advance of the crash, called "core-lock." To put it very simply, the turbines cannot turn making a restart impossible. Despite such obvious manufacturer shortcomings, pilot error discussion consumed much of the NTSB hearing.

Verdicts at Variance with NTSB
Perhaps the best test of NTSB's conclusions is litigation. In recent cases, the jury's conclusions were dissimilar to the NTSB's. For example, in the trial of the pilot's case in the crash of American Airlines flight 1420 in Little Rock, Arkansas on June 1, 1999, the jury did not blame the pilots to the same degree as did the NTSB and awarded damages to the pilot's estate. (NTSB Report DCA 99MA067)

General aviation pilots have also won verdicts or settlements conflicting with NTSB conclusions. A single engine "Tampico" aircraft with a certified flight instructor and student pilot on board crashed in Illinois while shooting "touch and goes." The Tampico pilots were not alerted to the possibility of a wake vortex from an Army Chinook helicopter.

The NTSB investigated the case and determined the probable cause of this accident was the in-flight loss of control by the student pilot due to wind turbulence. Additional causes were the flight instructor's inadequate supervision of the flight and the flight instructor's decision to continue the touch and go after encountering turbulence on the VFR final approach that had required the flight instructor's intervention to correct. (NTSB Report, CHI99LA110).

The flight instructor filed a lawsuit against the federal government, alleging that the crash occurred as a result of the combined negligence of the Army Chinook pilot and an air traffic controller. The evidence proved the Army Chinook pilot, while cleared for an off-runway approach and landing, did not fly the approach as cleared. Instead, the pilot encroached on the flow of landing traffic which nearly caused a midair collision with another general aviation aircraft before knocking down the Tampico with its wake. Convinced the judge was likely to find against the government, the U.S. Justice Department settled the case, despite the fact that the NTSB's probable cause finding blamed the instructor.

In another case, two pilots in a King Air began a take-off roll while a United Express Beech 1900 was on final approach, about to land on an intersecting runway. The two aircrafts met at the intersection. No one survived.

The NTSB determined that the probable cause of the crash was the failure of the pilots in the King Air A90 to effectively monitor the common traffic advisory frequency or to properly scan for traffic, resulting in their commencing a takeoff roll when the Beech 1900C (United Express flight 5925) was landing on an intersecting runway. Contributing to the cause of the accident was the yet another pilot's interrupted radio transmission, which led to the Beech 1900C pilot's misunderstanding of the transmission as an indication from the King Air that it would not take off until after they had cleared the runway. (NTSB Report AAR-97/04)

The mother of one of the pilots filed a wrongful death action against Great Lakes (the United Express operator) and the pilot in command of the King Air. Winkelmann v. Great Lakes Aviation, Ltd., et al, 98 L 858A (Circuit Court of St. Clair County, Illinois). On April 23, 2003, after a three-week jury trial, the jury returned a $3 million verdict in favor of the estate of one of the King Air pilots and allocated only 20 percent fault to that pilot.

Legal pundits have offered a plethora of less-than-plausible explanations for verdicts at variance with the NTSB, from juror sympathy to improper instructions. But as the cases were conducted by our colleagues whose skills are well-known to us, and challenged by adversaries who have frequently and vigorously opposed us, a more likely explanation is the NTSB's heavy reliance on manufacturers to supply investigative input and draft finding and recommendations leading to biased results.

I am collecting poignant examples of cases where pilots were unfairly blamed, to conduct a more complete and statistically significant review of the problem, and to determine if the trend has changed in recent years. If you have example(s) which you can share, please e-mail them to me at mschiavo@motleyrice.com, and I will share the results with you. If indeed the NTSB is unfairly blaming pilots, while overlooking other problems, the ATLA Aviation by shedding light on this unfortunate bias, just might be able to help right this dangerous injustice.

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Please contact Mary Schiavo with any questions or if you'd like to explore your legal rights.