AIN Blog: 'First Thing We Do, Let's Kill All the Lawyers'

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In 1986, a restored PBY Catalina flown by Texan Connie Edwards reenacted the first successful transatlantic flight by the Navy's NC-4 flying boat in 1919.
July 1, 2012 - 7:00am

Thank you, William Shakespeare, for that bit of all-too-tempting advice, as voiced by Dick the Butcher in the bard’s Henry VI: “First thing we do, let’s kill all the lawyers.”

These words came to mind immediately on reading reports on June 14 that 10 passengers from a Jet Blue flight are suing the airline following an incident in which one of its pilots broke down, began acting erratically and had to be subdued by passengers.

It happened on March 27 on a flight from New York to Las Vegas. Pilot Clayton Osbon, according to witnesses, began running down the aisle shouting and was subsequently locked out of the cockpit. The flight diverted to Amarillo, Texas, where it landed safely.

The “gross negligence” suit names JetBlue and Osbon. Steven B. Epstein and Jonathan C. Reiter, attorneys for the passengers, are asking for unspecified damages.

Which brings me to my own story. It was in the summer of 1986, a day before my birthday. I was a passenger in a restored Consolidated PBY Catalina, one of two flying boats involved in a reenactment of the first transatlantic flight by the U.S. Navy in 1919. I was the photojournalist assigned by the Navy to document the flight, which began in St. Johns, Newfoundland, and ended badly for one of the aircraft, the airplane to which I was assigned for that leg of the reenactment.

The Catalina was owned by the Bob Franks of Los Angeles and flown by Lou Petersen, an experienced pilot with thousands of hours in flying boats. Those of us in the back were expecting to first make low pass over the intended area in England’s Plymouth Harbor before coming back around for the landing, the standard procedure for the pilot of a flying boat. As we neared the water on the low pass, I heard someone up in the front of the airplane shout, “We’re landing!” The tone on his voice left no doubt that something was going wrong.

I immediately grabbed the naval historian and we dove for seats in the cabin, just forward of the observation blisters. I managed to fasten my seat belt as I felt the airplane hit the water, nose down. I reached across the table separating us, grabbed our historian by the arms and we hung on as the airplane began skidding, tail up, yawing across the harbor.

Within seconds we were out of the landing area, which was free from obstacles. The left wing tip hit a buoy. Then the right wing caught a channel marker, which ripped off about three feet of the wing and sent us into the water-equivalent of a ground loop. The Catalina came to an abrupt halt in a shower of spray.

The original impact had collapsed the nose gear door and the succeeding two bulkheads and we began to slowly sink. Within minutes rescue units from the Royal Marines were alongside and we offloaded two injured passengers. The rest of us were OK.

I spent a good part of that evening in a darkroom at the nearby naval base, Sometime around midnight I found my way to my hotel and collapsed into bed.

The next morning, shortly after sunrise, I had three phone calls from lawyers who insisted on representing me. I should sue for damages, they said, pointing out that the pilot and owner of the airplane were obviously negligent, and I deserved compensation for the trauma I had undergone.

Two of them accepted “no thanks” as an answer. The third required a more to-the-point, if inelegant, response. When I told him I had been neither traumatized nor injured, and in fact was planning to fly home the next day, he said bluntly that this didn’t matter, and that by retaining him, I might nevertheless win “a large settlement.” At that point my language became a bit more salty, in keeping with that of a senior chief petty officer, and the poor fellow hung up.

In short, the answer was still no. And my boss, who had been injured, told me later he must have had calls from the same lawyers. He told them the same thing, though his language, as an officer and gentleman, was less colorful than mine.

Which brings me back to the 10 passengers who are suing JetBlue. Based on story in the June 14 issue of the New York Post, they have all suffered trauma that only unspecified, but no doubt large, sums of money will assuage. JetBlue has “taken away my faith in flying,” Kathy Euler of Smithtown, Long Island was quoted as saying. “The airlines cannot always be trusted to get us home safely,” reporter Kieran Crowly wrote, quoting one of the attorneys.

The entire sad affair is one in which the airline gets sued and the pilot gets sued. And assuming their attorneys are successful, the 10 passengers, and their lawyers, get rich.

Hallelujah! Isn’t that what America’s about these days? We’re all just waiting to become victims of some injustice, perceived or real. Immediately thereafter we hire lawyers and climb aboard the gravy train. Which is a good way to travel for those passengers suing JetBlue, as they’re obviously way too traumatized to ever fly again.

It’s almost enough to make you think ol’ Dick the Butcher was right. And perhaps their greedy clients, as well.

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Rex Reese
on July 2, 2012 - 7:59pm

The attorneys claim they are suing primarily in order to obtain documents and information from the airline regarding the unhinged pilot, and to clean up the system. If this case goes anywhere, some good might actually come of if the current methods of flight crew psychological screening are inadequate and can be improved. But it is my guess/opinion (and I admit that I am an attorney -- don't shoot!) that this is a contingency case where the attorneys don't get paid unless damages can be proven and collected, which, if I am correct, means that the claimed altruisitic motives underlying the suit are window dressing, at least as far as the attorneys are concerned. But it probably won't matter.

New York recognizes the tort of "Negligent Infliction of Emotional Distress," ("NIED") but severly limits its application where the plaintiff suffers no physical injury. In Johnson v State of New York, 37 NY2d 378, 381 (1975), the New York Court of Appeals (the state's highest court) stated:

"The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so
trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking. Contemporaneous or consequential physical harm, coupled with the initial psychological trauma, was, however, thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences."

Twenty-five years later, in Lauer v City of New York, 95 NY2d 95, 114 (2000), the Court of Appeals reaffirmed New York's general reluctance to grant relief for purely emotional suffering:

"One to whom a duty of care is owed may recover for injuries sustained as a result of negligently caused psychological trauma so long as consequential physical manifestations of trauma exist. Requiring physical manifestations, rather than emotional symptoms alone, is thought to provide an index of reliability. This Court has recognized several exceptions to the rule requiring physical symptoms, however. One may recover for the emotional harm resulting from (1) the negligent transmission by a telegraph company of a message announcing death, (2) the negligent misinformation to a next of kin regarding the death of a relative, (3) the negligent mishandling of a corpse, and (4) the denial of access to control the body of a deceased relative. In those cases, this Court has recognized that there exists an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious".

If you watch the CNN interview of one of the plaintiffs --http://www.youtube.com/watch?v=KIAvBc_HtqE -- his complaints are: (1) flying will never be the same, (2) he used to look forward to flying but now doesn't think he'll enjoy it, (3) thinking that he would never see his loved ones again was one of the most horrible experiences he ever went through. In my opinion, these grounds are fatally thin for a NIED claim under New York law, and the claim likely won't make it past JetBlue's motion to dismiss for failure to state an actionable claim. This motion would precede any discovery.

Even though it's 99.9% safe, flight is a hazardous activity. Airplanes have to get to a lethal speed just to get airborne. Additionally, the risks associated with flying are not as intuitive as the risks we normally face. In fact, they are sneaky and insidious. Professional risk managers tell us that when the risks are nebulous and hard to quantify, people tend to underestimate them. In aviation, the probabilities and consequences of things going wrong are particularly hard to judge. Every passenger assumes some risk, which is the trade off for time savings.

Many passengers suffer fear of death every time they fly, even when the flight is perfectly smooth. Even the more seasoned flyer, if sober, suffers fear of death in certain situations -- high turbulence, long segments in clouds, departure and landing on runways surrounded by water (LGA, DCA), loss of an engine, etc. Although the unhinged pilot created an unusual set of circumstances, the fear and emotional distress experienced by these plaintiffs (i.e., fear of death, for which there are no degrees) was no worse than that experienced by millions of airline passengers every day. [It doesn't help the plaintffs' case if, like the one on CNN, all of them continued to Las Vegas and back to New York by air.] Given its stingy precedents, it is unlikely the New York courts will open what would surely be a flood gate of litigation against air carriers, and for the same reason, it is highly unlikely that Jet Blue will settle a NIED claim unless their motion to dismiss is denied.

New York also recognizes the tort of "Intentional Infliction of Emotional Distress" ("IIED"). In order to assert a valid claim for IIED pursuant to New York law, a plaintiff must demonstrate the following four (4) elements: (i) extreme and outrageous conduct, (ii) an intent to cause—or disregard of substantial probability of causing—severe emotional distress, (iii) a causal connection between the conduct and the injury, and (iv) the resultant severe emotional distress. IIED is a highly disfavored tort under New York law and such claims generally do not survive dispositive motions. This is because New York sets a high threshold for conduct that is ‘extreme and outrageous’ enough to constitute IIED. The conduct alleged must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Although it is probable that the pilot's deranged conduct met the test for IIED, the pilot's acts should not be imputed to Jet Blue under New York law. An employer is vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment. Factors relevant to a determination of whether an employee's acts fall within the scope of employment include (i) the connection between the time, place and occasion for the act, (ii) the history of the relationship between employer and employee as spelled out in actual practice, (iii) whether the act is one commonly done by such an employee, (iv) the extent of departure from normal methods of performance and (v) whether the specific act was one that the employer could reasonably have anticipated.

It appears obvious that the pilot's conduct is not commonly done by Jet Blue's flight crews and substantially departs from a pilot's normal methods of performance. Moreover, the pilot's actions arose not from any work-related motivation and not in the furtherance of any duty the pilot owed to Jet Blue.

From the CNN interview, it appears that plaintiff's counsel will argue that the pilot has past psychological issues of which Jet Blue was aware and, therefore, Jet Blue should have anticipated the pilot's actions. In my view, the problem with this position is that in proving that the the pilot's behavior was sufficiently outrageous and extreme for an IIED claim, plaintiff's counsel must effectively disprove the possibility that Jet Blue could have anticipated it. Given the absence of the other 4 elements, the vicarious IIED claim against Jet Blue is likely to be thrown out on a motion to dismiss.

Perhaps the most interesting part of this case will be whether the plaintiffs' counsel are found to have filed a frivolous law suit (i.e., one based on a claim that is unwarranted under existing law, subject to the lawyer's right to advance such claim if it can be supported by good faith argument for an extension, modification, or reversal of existing law), and what it will cost them and their clients. If Jet Blue gets out of the suit on motions to dismiss for failure to state an actionable claim, they surely will seek financial sanctions.

Rex E. Reese, Esq.
rreese@jetviser.com
www.jetviser.com
703.842.8000

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DickF
on July 3, 2012 - 5:42pm

Why experiment on animals when there are so many lawyers?

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jake
on July 4, 2012 - 3:31am

The US has become a nation of scared, spoiled entitled sissies, who wring their hands and faint on sofas at the slightest of discomforts or mistreatments.

Who would these pathetic losers in life have sued if they had lived in any other era in history where constant war and disease were rampant?

If I knew one of the men who are making this lawsuit, I would laugh in his face as a disgrace to men everywhere, a whining, simpering effeminate little twerp who should perhaps remain seat belted in his barcolounger at home, lest the big, scary world give him a tewwible fright.

That is the most disgusting thing - that grown men are willing to whine like little grannies.

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James Ham
on July 4, 2012 - 11:52am

I knew Rex was a lawyer from his first paragraph. Until these lawyers have some skin in the game, (other than their time), these frivolous suits will continue and only increase. Any meaningful Tort reform must include the lawyers liability (monetary or legally) for bringing frivolous suits to court. We the people essentially provide them a free forum to ply their trade.

Since lawyers make the laws, we know this will never happen. So it's back to the Dick the butcher's solution.

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Robert
on July 5, 2012 - 2:29am

I'm a lawyer. I was a pilot first, however. I'm an ATP with type ratings, including the G-IV, and with all airplane flight instructor ratings on my CFI. Actually, there already are provisions which impose monetary penalties/sanctions for the filing of frivolous lawsuits, and these can be quite stringent especially in federal court. The problem with the mass media and with many so called tort reform advocates is that they use the term "frivolous lawsuit" incorrectly. If a suit has substantial monetary value (whether in settlement or by award), it is by definition not frivolous. (Additional factors are also considered in determining whether a suit is legally "frivolous". Not all suits without value are frivolous, but all frivolous suits are without value - they certainly do not have substantial value.) Now, I am NOT offering any opinions or thoughts on the Jet Blue suits (only to say that my opinion might surprise you). However, with all due respect, people throwing the term "frivolous lawsuits" around without knowing the true legal definition is almost as disconcerting as people who have never read the Constitution (much less complete Supreme Court opinions) incorrecly labeling things as "unconstitutional" (and there seems to be plenty of that to go around, as well). Fly safe!

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rex reese
on July 5, 2012 - 10:11am

James Ham, if the lawyers are found to haev brought a frivolous lawsuit, they could not only have to shell out cash but are subject to professional sanction. That's not tort reform, but it give defendants like Jet Blue some tools to stem abuse. Being known nationally as an ambulance chaser is not necessarily good for an attorney with any self respect (there are a few, although I have no idea about heretofore nationally unknown Epstein and Rieter.)

Robert, I thought you were agreeing with me (that this could end up being frivolous) up to the point where you stated "people throwing the term 'frivolous lawsuits'". I'm not sure you whether you are talking about the media or me. Nevertheless, I did not say that the suit was frivolous, but I did quote the applicable "legal" standard in New York: "One based on a claim that is unwarranted under existing law, subject to the lawyer's right to advance such claim if it can be supported by good faith argument for an extension, modification, or reversal of existing law." Apparently, the attorneys have wagered that either that they can make a "good faith" claim for an "extention" in the law re NIED or vicarious liability under IIED, or that the the potential financial upside in fees is worth the risk of financial (and other) sanctions.

I think it's doubtful that they believe they'll get a quick settlement.

I do agree with you that the media generally, and often without any inquiry into applicable legal standards, finds every potential lawsuit meritorious because that enables them to keep hyping the story to sell ads. But, hey, nobody older than 20 and with an IQ north of 85 really believes the media anyway.

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