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Transportation Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

In 2021, a Record Setting $1 Billion Dollar Verdict was Rendered Against a Trucking Company - Demonstrating that Nuclear Verdicts in Trucking Cases Continue to Rise

January 11, 2022 | James Jarrow and Joanna Orscheln

The trucking industry has experienced a continuous rise in “nuclear verdicts” since 2011. The American Transportation Research Institute (“ATRI”) defines a “nuclear verdict” as a verdict in excess of $10 million dollars.

In 2011, a $40 million dollar verdict was awarded to victims of a trucking accident in Georgia, where a semi-truck driver failed to stop, striking a passenger vehicle, killing two people and severely injuring a third. In 2012, a $281.6 million dollar verdict was initially handed down (reduced to $105.2 million), in a case where a drive shaft off a commercial truck went through the windshield of a passenger vehicle, killing the driver. The Court determined that the semi-truck driver was not negligent, but that the company was.

In 2014, a $90 million dollar verdict was awarded in Texas, where a semi-truck was driving under the speed limit in inclement weather conditions, and a passenger vehicle traveling in the opposite direction lost control and veered into the truck’s path. The trucking company denied all fault, arguing that the cause of the accident was the pickup truck that had lost control, nonetheless, the jury found the trucking company liable for the crash. The collision resulted in the death of a 7-year-old, and a paralyzed 12-year-old. In 2016, a semi-truck driver in Georgia fell asleep at the wheel, crossed over the centerline of a two-lane highway, causing a crash that killed five individuals including two young children, resulting in a $280 million verdict.

The 2021 Landmark $1 Billion Dollar Verdict

In 2021, a Florida jury awarded a landmark $1 billion dollar verdict in a wrongful death trucking case. The jury placed blame on two trucking companies, Kahkashan Transportation Inc. (“Kahkashan”) and AJD Business Services Inc. (“AJD”), for the death of the 18-year-old decedent, and awarded $100 million to the parents for the decedent’s pain and suffering, and $900 million in punitive damages for negligent hiring and retention of the AJD semi-truck driver.

The driver for AJD, was on his cell phone, driving over the legal limit of hours, and without a Commercial Driver’s License, when he caused an accident, flipping his semi-truck, and creating a massive back up on the interstate. An hour later a driver for Kahkashan was traveling the speed limit on cruise control, and collided into the line of stopped traffic killing the decedent. Further, his truck’s data recorder showed he did not attempt to break until one second before the impact.

The $100 million dollar verdict to the parents was split by the jury, 90% against Kahkashan and its driver, and 10% against AJD and its driver. The $900 million in punitive damages verdict was solely awarded against AJD. However, AJD is no longer in existence, and had not participated in the court proceedings for the previous 2 years. Additionally, AJD’s insurance was canceled in 2019.

Even if no money is collected from AJD, this case still has a great deal of impact on the trucking industry. It shows that juries believe these high awards are acceptable, and warranted in certain cases. Further, verdicts like this continue to tarnish the public image of trucking companies, and their safety procedures and policies. Nuclear verdicts like the ones mentioned above, have resulted in skyrocketing insurance premiums, which in some instances have put trucking companies out of business. Additionally, these nuclear verdicts motivate Plaintiff’s lawyers to take on trucking cases, and seek punitive damages against trucking companies.

What Factors Impact the Size of Jury Awarded Verdicts in Trucking Cases?

The ATRI analyzed data obtained from 600 cases to determine the variables that impacted verdicts in the trucking industry. See Dan Murray, “Understanding the Impact of Nuclear Verdicts on the Trucking Industry,” American Transportation Research Institute. Some of the variables include unfortunate outcomes that are outside of a trucking company’s control. For example, research showed that an increase in overall verdict amounts was witnessed in cases involving the death of a minor, spinal injuries, and roll-over accidents.

However, the research also shows that there are numerous factors which increase the value of verdicts that are within a trucking company’s control, either in the way company is run, or the manner in which the case is litigated.

Cases involving the following factors yielded verdicts in favor of the Plaintiff 100% of the time: a semi-truck driver being over hours of service or having logbook violations, lacking a clean driving history, driving under the influence of controlled substances, a semi-truck fleeing the scene of a crash, and/or an accident being caused by a driver’s health-related issues. In cases that involved cell phone use, only one case yielded a defense verdict, which was the result of Plaintiff being unable prove that the phone was actually in use at the time of the crash.

The ATRI’s research showed that successful implementation of post-crash and pre-trial tasks such as case evaluation, mediation, and pre-trial preparation played a critical role in successful litigation results.

During the stages of an accident investigation, and case evaluation, it is critical that attorneys and insurance professionals work together to determine the verifiable facts, and assess the potential problems in the case. A thorough examination must be conducted as it relates to factors that may have contributed to the incident.

Next, assessing the reasonableness of an early settlement, based on the facts known at the time, generally helps promote a more reasonable settlement. Finally, pre-trial preparation is paramount. Having an attorney who is experienced, and familiar with the trucking industry will ensure that the necessary actions are being taken to combat arguments Plaintiff attorneys will raise, especially reptilian theory arguments, which lead to nuclear verdicts in trucking cases.

Despite Nuclear Verdicts Being on the Rise, Great Outcomes in Trucking Cases are Obtainable

In 2021 Baker Sterchi member, James R. Jarrow, secured a defense verdict in a week-long wrongful death trucking case that was tried in Missouri state court. Plaintiff alleged that the driver could have avoided the interstate accident, which resulted in the death of her husband. After significant pre-trial motion practice, and multiple experts testifying on both sides, the Plaintiff asked the jury for $3 million dollars in damages. But the jury agreed with the defense’s position, and rendered a verdict in favor of the trucking company.

Additionally, Baker Sterchi member, Joseph Swift also received a favorable outcome in 2021 in a challenging jury tried trucking case where liability was admitted, and the case was tried solely on the extent of damages. This case was initially filed in Cook County, Illinois state court, but was successfully removed to the federal District Court for the Southern District of Illinois. The truck’s dash camera (capturing both inward and outward views) showed 9 seconds of driver inattention, and a violent crash. Plaintiff sought to recover over $1.65 million in general and special damages. However, the jury awarded $145,000 in overall damages for cervical and lumbar surgeries, a very favorable verdict given the circumstances of the case.

Conclusion

Despite the upward trend of nuclear verdicts in the trucking industry, 2021 has proven that when cases are properly investigated, prepared, and tried, trucking companies can still obtain favorable jury verdicts.

Federal Aviation Administration Certifies UPS to Become First-ever Drone Airline.

November 7, 2019 | Elizabeth Miller

The Federal Aviation Administration (FAA) issued the first-of-its-kind Part 135 certification to UPS subsidiary, UPS Flight Forward, Inc. (UPS).

The Part 135 certificate declares two core matters: (1) UPS is exempt from certain federal rules and regulations governing flight operations, and (2) UPS is explicitly authorized to perform certain flight operations otherwise prohibited by the FAA.

Specifically, the Part 135 certificate issued to the UPS subsidiary waives the following federal regulations:

14 CFR § 107.31, Visual line of sight aircraft operation, is waived to allow operation of the small unmanned aircraft (sUA) beyond the direct visual line of sight of the remote pilot in command (PIC) and any visual observer (VO) who is participating in the operation.

14 CFR § 107.33(b) and (c)(2), Visual observer, is waived to the extent necessary to allow operation of the small unmanned aircraft (sUA) when any VO who is participating in the operation may not be able see the unmanned aircraft in the manner specified in §107.31.

14 CFR § 107.39, Operations over people, is waived to allow sUA operations over people who are not direct participants, necessary for the safe operation of the small unmanned aircraft.

The certificate provides as authorized operations:

Small unmanned aircraft system (sUAS) operations for the purpose of 135 certification, beyond the visual line of sight of the remote pilot in command (PIC) and Visual Observer (VO), in lieu of visual line of sight (VLOS) and sUAS operations over human beings.

Notably, Amazon Air and Uber Eats have yet to secure Part 135 certification status. Until now, one or all of the above UPS exemptions limited Part 135 operators, including Google’s Wing Aviation LLC, which received only a waiver for a single pilot. 

While Part 135 certifications were already used for drone deliveries, UPS is using its certificate to go one step further to build out the first drone airline thanks to the far-reaching parameters of the waiver. UPS’s Part 135 certificate removes limits on the size and scope of the company’s potential drone operations. The company is now also exempt from the FAA rule that mandates that drones fly within the sight of the drone operator. In other words, the certificate allows UPS to fly an unlimited number of drones with an unlimited number of remote operators. The certificate also lifts previous restrictions on drone flights, permitting a drone and its cargo to exceed 55 pounds and to fly at night. This allows the company to develop new technology to create and use different drones.

In recent press statements, UPS CEO David Abney stated UPS worked closely with the Department of Transportation and the FAA to achieve this goal. Mr. Abney stated the certification will be used to accomplish multiple unmanned aircraft deliveries to multiple locations. UPS’s first focus will be a strategic healthcare initiative to expand its drone delivery service to further support hospital campuses throughout the United States. Abney stated the company has contemplated numerous campus-like settings for drone delivery and he believes the drone expansion will serve 20 or more locations during the rollout phase of the newly authorized drone deliveries. When regulations are complete, Abney expects expansion to residential delivery. 

In anticipation of Part 135 approval, but before receipt of the certificate, UPS began to develop a ground-based fleet of drones that help detect and avoid technology. UPS has also already begun to organize and develop technologies to create a consolidated control center that will allow the company to dispatch and operate drones from one consolidated area, thereby minimizing costs associated with infrastructure. 

The immediate concern of economists is that of American jobs while yet another industry inches closer towards automated functionality. The certificate and control center allow the company to facilitate its drone program with a fraction of the number of drone operators otherwise required by the FAA, and to avoid a need for jobs that would support additional drone operation locations. Economists speculate that as drone deliveries increase, reliance on UPS truck deliveries will decrease thereby eliminating at least some of the need for UPS drivers. 

As with all developments in this ever-evolving field, only time will tell what and how the legal and regulatory environment mesh with the actual uses that UPS finds for its drones.

It's not a bird or a plane... So what do we do with it? Concerns and regulations increase as drone usage skyrockets.

December 20, 2017

Reports of incidents involving unmanned aircraft systems (UASs), or drones, are on the rise. In October, for example, a drone crashed into a small passenger airplane as it was approaching the runway at the Jean Lesage International Airport in Quebec City, Canada.  Although the airplane was landed safely and there were no reported injuries, the post-collision aircraft inspection revealed damage to one of the plane’s wings.  This is the first time a drone has collided with a commercial aircraft in Canada, though pilot sightings of UASs has increased dramatically, at home and abroad, in the recent years.

Drone popularity has risen steeply as commercial users, not only individuals, are finding new and creative ways to incorporate drone usage into their business models.  Drones are now used to provide video footage for major news stories.  They hover over football players during NFL games.  They’re used to film promotional videos for luxury resorts and hotels.  They may, someday, be used to ensure same-day delivery of online orders. 

The Federal Aviation Administration (FAA), through authority conferred by 49 U.S.C. § 106, implemented regulations known as Part 107 to apply specifically to small unmanned aircraft systems used for purposes other than solely hobby or recreational.  These regulations, effective in 2016, provide relevant definitions (small UASs are those weighing less than 55 lbs) and guidelines for operation of UASs.  For example, 14 C.F.R. Part 107 requires registration of UASs with the FAA and calls for voluntary reporting of accidents or damage caused by a drone.  Similarly, Part 107 requires commercial “flyers” to obtain FAA certificates and prohibits drone usage in certain airspace (e.g., around airports) without the permission of Air Traffic Controllers.

This month, President Trump signed the 2018 National Defense Authorization Act into law, which extends certain requirements to those using model UASs.  Although previously exempted from the registration requirement of Part 107, drone hobbyists (those that purchase and use drones for personal, non-commercial use) will be required to provide their name and contact information to the FAA, as well as pay a small fee, to be legally compliant when operating their drones.

While drones offer many benefits across multiple industries, there are still numerous issues to be addressed.  There are safety considerations (as evidenced by the airfield collision in Canada), legal considerations (e.g., inability to identify owners of drones involved in accidents or collisions), as well as privacy considerations (e.g., drones used for unknown surveillance of an individual), to name a few.  Additionally, the nature and scope of insurance related to drones remains in its early phase.

As drone usage continues to increase, it’s only a matter of time before the common law will develop to address some of these lingering concerns.  Insurance coverage, terms and conditions also will impact the nature and extent of protection for those using drones.

The ultimate impact drones will have on our national airspace, and those involved in its regulation, is unknown.  We’ll keep our eyes to the sky and provide relevant updates when they become available.

Related Services: Aerospace

Careful with those gifts, Santa. The FAA is coming to town!

August 29, 2016

The Holidays will be here before we know it. Santa may have to team up with the FAA when gifting to “big kids” if their wish list includes something more substantial than a model airplane.  In all seriousness, however, Part 107 is the FAA’s continued effort to maintain the safety of the National Airspace System and must be strictly adhered to. 

The new Small Unmanned Aircraft Systems (UAS) Rule, Part 107, takes effect today. The Rule governs unmanned aircraft weighing less than 55 pounds and does not apply to UAS’s flown strictly for hobby or recreational purposes, so long as they are flown in accordance with the Special Rule for Model Aircraft. 

The newly-titled “Remote Pilot in Command” must hold either a Remote Pilot Airman Certificate with a Small UAS rating or be under the direct supervision of one who holds such a Certificate. To qualify, the Certificate candidate must (1) demonstrate aeronautical knowledge by either passing an aeronautical test at one of the FAA-approved knowledge testing centers; or hold a Part-61 Pilot Certificate, have completed a flight review within the last 24 months, and complete a small UAS online FAA training course; (2) be vetted by the Transportation Security Administration; and (3) be at least 16 years old.  An FAA airworthiness certification is not required, but the Remote Pilot in Command must complete a preflight check of the small UAS to ensure that it is in a condition safe for operation.

Among other things, Part 107 dictates that the Remote Pilot in Command not operate the Small UAS during daylight and civil twilight (30 minutes before official sunrise and 30 minutes after official sunset, local time) and that the Small UAS be operated with appropriate anti-collision lighting. The Small UAS may not operate over any persons not directly participating in its operation, and may not be operated under a covered structure, nor inside a stationary vehicle. Other requirements include yielding the right of way to other aircraft and not exceeding the maximum groundspeed of 100 mph (87 knots) or maximum altitude of 400 feet. The Rule permits a Small UAS to carry an external load so long as it does not adversely affect the aircraft’s characteristics or controllability. Most of the operational restrictions are waivable if the Remote Pilot in Command demonstrates that the proposed operation can be conducted safely under the waiver. 

Click here for the complete text of the Small UAS Rule. 

Related Services: Aerospace

Sikkelee v. Precision Airmotive Corporation: Another Nail in the Coffin of Field Preemption for Aviation Product Liability Claims

May 3, 2016 | John Patterson

The doctrine of implied federal preemption, which is rooted in the Supremacy Clause of the United States Constitution, comes in two general forms – conflict preemption and field preemption.  Conflict preemption, the less potent of the two, arises when a particular state law makes compliance with a particular federal law impossible.  Field preemption is of a more sweeping variety.  If Congress intended to preempt the entire field of a particular subject matter, then state law must give way, regardless of whether a conflict exists.  Field preemption can be one of the most potent tools in a defense attorney’s arsenal.

Recently, the United States Court of Appeals for the Third Circuit took a decisive step in removing this arrow from the quiver those who practice in the field of aviation products liability defense.  In Sikkelee v. Precision Airmotive Corporation, No. 14-4913, 2016 U.S. App. LEXIS 7015 (3rd Cir. April 19, 2016), the court comprehensively ruled that issuance of a type certificate by the Federal Aviation Administration (‘FAA”), which essentially provides federal governmental confirmation that an aviation product meets FAA design standards, does not preempt the field when a plaintiff asserts a state law products liability claim alleging that the aviation product was defectively designed or manufactured.

Plaintiff/appellant in Sikkelee was the widow of a man who died in an airplane crash.  Her wrongful death petition alleged that there was a defect in the aircraft’s carburetor which allowed for fuel leaks, and further asserted state law product liability claims premised upon the alleged defects in design and/or manufacture of the carburetor.  The carburetor had been type-certificated by the FAA prior to its installation in 2004.  Defendant/appellee, the manufacturer of the engine to which the carburetor was attached, moved for summary judgment on the grounds that issuance of the type certificate preempted plaintiff’s state law product liability claims.  According to defendant, the fact that Congress provided the FAA with broad and sweeping powers to regulate all aspects of air safety meant that the entire field of air safety had been preempted by federal law.  The District Court granted summary judgment in defendant’s favor, apparently based upon the Third Circuit’s decision in Abdullah v. American Airlines, 181 F.3d 363 (3rd Cir. 1999).

As should be apparent already, the Third Circuit reversed the District Court’s summary judgment and remanded the action.  In reaching its conclusion that field preemption was not applicable, the Third Circuit considered and rejected a whole host of bases on which field preemption could be premised.

First, the court scuppered appellee’s argument that Abdullah, supra, provided a platform for field preemption.  The court held that the broad pronouncement in Abdullah that the Federal Aviation Act “preempted the field of aviation safety” actually referred only to “in-air operations,” and did not apply to the manufacture and design of aircraft.  Sikkelee, 2016 U.S. App. Lexis 7015, at *16-20.

Next, the court looked to indicia of congressional intent, specifically the Federal Aviation Act, the Federal Aviation Regulations (“FARs”) and the statute of repose found in the General Aviation Revitalization Act of 1994 (“GARA”).  In rather cursory fashion, the court found that the Federal Aviation Act provided no support for field preemption, because it sets forth only “minimum standards” and provides that its remedies are “in addition to any other remedies provided by law.”  Id. at *25-27 (citing 49 U.S.C. § 44701 and 49 U.S.C. § 40120).  Likewise, the court found that the FARs do not support field preemption because they are not sufficiently comprehensive with respect to the design and manufacture of aircraft.  Id. at *28-36.  The court went on to note the minute detail with which some aspects of aircraft manufacture and design are regulated, which may on first blush seem inconsistent with its position regarding the non-comprehensiveness of the FARs, but logically can be reconciled.  Id. at *32 (citing 14 CFR 33.69).  The court’s view of GARA was more straightforward and thus more compelling.  If Congress had intended to preempt the field of aircraft design and manufacture, asked the court, why would it have enacted a statute of repose for state law causes of action, thereby implicitly recognizing that state law causes of action based upon state law standards of care are viable?  According to the Third Circuit, Congress would not have done so, as it would have rendered GARA superfluous.  Id. at *37-43.

Next, the court examined United States Supreme Court preemption jurisprudence generally, in addition to various other Circuit Court decisions specifically addressing the issue of whether state law causes of action for defective manufacture/design of aviation products are subject to field preemption.  Regarding the former, the Third Circuit noted that the Supreme Court has been reluctant to extend the doctrine of field preemption in the transportation context.  Id. at *50-51.  As to the latter, the court noted that various other federal circuits have either wholly refused to find that the entire field of aviation safety is preempted, have carved product liability claims out from preemption as applied to other aspects of aviation safety, or, at the very least, have indicated a willingness to approach preemption of aviation safety issues on an area by area basis.  Id. at *61-67.

Finally, the court considered the appellee’s argument that aircraft manufacturers would be exposed to tremendous potential liability and unpredictable, non-uniform standards without the protection afforded by field preemption.  The court dismissed these concerns, expressing that the federal statutory and regulatory regime had struck an adequate balance between protecting air commerce and promoting safety.  Id. at *67-71.

While the defeat of appellant’s field preemption argument was thorough and complete by any measure, the court did note that the doctrine of conflict preemption is alive and well with respect to product liability claims.  Id. at *56-57.  Thus, where “a manufacturer’s compliance with both the type certificate and a state law standard of care is a physical impossibility,” state law product liability claims may be conflict preempted.  Id., citing Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).  The court did not provide any examples of the requisite “physical impossibility” that would invoke conflict preemption, however.

From an absolute standpoint, the Sikkelee decision does not wholly foreclose field preemption arguments in aviation products liability cases, at least in circuits that have not yet considered the issue.  However, Sikkelee presents a huge practical hurdle to any such argument, given the thoroughness with which the Third Circuit put it to the sword.  Going forward, aviation product manufacturers should continue to expect exposure to state law products liability claims, save for those elusive cases where conflict preemption arises when a “physical impossibility” prevents compliance with both the type certificate and state law standards of care.

Article 29 of the Montreal Convention: How Important is Location?

April 18, 2016 | John Patterson

The Montreal Convention, a treaty which became effective in the United States on November 4, 2003, governs the rights and liabilities of international air carriers and passengers.  Among its more important provisions, Article 29 of the Montreal Convention states that “[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention.”  Many courts have held that Article 29 completely preempts state law claims by passengers, although there is a split of authority on the topic.  See, e.g. Hoffman v. Alitalia-Compagnia Aerea Italiano, S.P.A., No. Civ. A. 14-5201, 2015 U.S. Dist. LEXIS 55790, 21015 WL 1954461 (D.N.J. April 28, 2015).

Obviously, the language of Article 29 is broad, as it applies to “any action for damages, however founded.”  However, Article 29 has some limitations.  Specifically, it applies only to “carriage” of passengers.  One question that arises is the definition of “carriage.” Need a passenger be in transit and on the aircraft for Article 29 to apply, or is “carriage” construed more loosely than this?  Just how important is location under Article 29?

Not very, according to the relatively recent case of Lee v. AMR Corp., No. 15-2666, 2015 U.S. Dist. LEXIS 78930, 2015 WL 3797330 (E.D. Pa. June 18, 2015).  In Lee, Plaintiff purchased a ticket to fly from New York to Belize, with multiple stops along the way.  During one stop-over in Miami, Plaintiff approached the carrier’s ticket counter to obtain a boarding pass for the next leg of her flight.  The ticketing agent determined that Plaintiff did not have the required visa to board the onward flight to Belize (although it appears the agent may have been mistaken in this belief).  Consequently Plaintiff missed her flight, and brought suit in state court to recover for the damages caused by the delay.  Carrier removed her claim to federal court on the basis of federal question jurisdiction, asserting that the claim was preempted by Article 29. 

Plaintiff sought remand to state court on the grounds that the Montreal Convention was inapplicable.  Specifically, she argued that her claim did not involve “carriage” as required by the Convention, as she was never actually allowed to board the flight to Belize, but instead remained on the ground during the events that formed the basis for her lawsuit.

Finding no cases which interpreted this issue under the Montreal Convention, the court explored a number of cases decided under Montreal’s predecessor, the Warsaw Convention.  These cases held that “carriage” extends beyond “actual travel” and into the realm of pre-boarding activities, including activities at the ticketing stage.  Having noted that that the Montreal Convention is generally interpreted using case law construing the Warsaw Convention, the court followed the logic of these earlier cases and held that Plaintiff’s interaction with the ticketing agent constituted “carriage” under the Montreal Convention.  Thus, plaintiff’s claim was covered by the Montreal Convention, and her motion to remand was denied.

This case is interesting for a number of reasons.  First, it clearly affirms that the boundaries of a delay claim under the Montreal Convention are the same as those under the Warsaw Convention.  Specifically, a plaintiff need not literally be on the aircraft in order for the Montreal Convention to apply to a delay claim

Additionally, the scope of the holding is just ambiguous enough that it may be ammunition for a Montreal Convention preemption argument beyond the area of delay claims.  While this is far from a sure bet, as the plaintiff in Lee was only asserting a delay claim, this case warrants a review from anyone considering such an argument.

FAA's New On-Line Registration Process to Streamline the Registration of Unmanned Aircraft Being Operated for Non-Recreational Process

January 14, 2016 | Jonathan Benevides

Much of the attention of the FAA’s recently promulgated Interim Federal Rule (“IFR”) 80 FR 78593, has focused on the FAA’s requirement that all unmanned aircraft (commonly referred to as “drones”) be registered with the federal government.  Lost amongst the media’s coverage on the effect the new rule will have on recreational unmanned aircraft users, are the benefits that the new rule may offer operators utilizing unmanned aircraft for non-recreational purposes pursuant to exemption under Section 333 of Public Law 112-95.

Consistent with the FAA’s recent affirmation that all unmanned aircraft, including model aircraft, are “aircraft’ as defined in title 49 of the United States Code, all unmanned aircraft must be registered prior to operation in accordance with 49 U.S.C 44101(a) and 14 CFR part 47.  See 80 FR 63912, 63913 (October 22, 2015). Currently, the only registration and aircraft identification process available to comply with the statutory aircraft registration requirement is the paper-based registration system set forth in 14 CFR parts 45 and 47.  The FAA’s recently promulgated provision, which took effect on December 21, 2015, seeks to provide an alternative streamlined and simple, web-based aircraft registration process for the registration of small unmanned aircraft, to facilitate compliance with the statutory requirement that all aircraft register prior to operation.  The web-based registration option is available only to small unmanned aircraft owners.  To qualify as a small unmanned aircraft, the unmanned aircraft must weigh less than 55 pounds.  Unmanned aircraft weighing 55 pounds or more must continue to use the current paper based registration system provided for in CFR part 47. 

Pursuant to the new rule, any small unmanned aircraft operated exclusively as a model aircraft (i.e., for hobby and recreational purposes in accordance with the requirements of section 336 of Pub. L. 112-95) prior to December 21, 2015, must be registered no later than February 19, 2016.  All other small unmanned aircraft intended to be used exclusively as model aircraft must be registered prior to the first operation outdoors. Thus, any small unmanned aircraft purchased, received as a gift, or otherwise acquired on or after December 21, 2015, and intended to be used exclusively as a model aircraft must be registered prior to operation.

Significantly, in the new rule, the FAA acknowledges the growing number of petitions for exemption to operate unmanned aircraft for non-hobby and/or non-recreational purposes under Section 333 of Public Law 112-95.  (For a more detailed discussion of the exemption for operation of unmanned aircraft for commercial purposes, please see our prior aviation blog post.)To accommodate the expected increase in unmanned aircraft being operated for non-recreational purposes under Section 333, the web-based registration system established by the final rule will be capable of receiving Certificates of Aircraft Registration for small unmanned aircraft operating pursuant to an exemption for non-hobby or non-recreational use issued under Section 333 of Public Law 112-95.  Therefore, beginning on March 31, 2016, small unmanned aircraft operating pursuant to an exemption may use the web-based registration process established in new part 48 as opposed to the paper based registration requirements in part 47.  If the new web-based registration system operates as advertised, this should alleviate the fairly onerous registration requirements of part 47, thus saving operators of unmanned aircraft for non-recreational purposes significant time and expense.

Related Services: Aerospace

Attorneys: Jonathan Benevides

Aviation Safety: Public Protection vs. Patient Confidentiality

August 31, 2015

Since Germanwings pilot Andreas Lubitz deliberately crashed Flight 4U9525 into the French Alps on March 24, 2015, killing himself and all 149 others on board, a spotlight has been cast on the world of mental health screening for pilots, triggering debate over whether privacy laws regarding medical records should be less strict when it comes to professions that carry special responsibilities. Prior to the tragic accident, Mr. Lubitz had been treated for psychiatric illness. Regulatory agencies around the world require pilots to undergo regular physical testing, but they often expect pilots to self-report mental illnesses such as depression. No global consistency exists across the aviation industry for dealing with pilot health certification.

In light of the recent airline catastrophes involving Germanwings Flight 4U9525 and Malaysian Airline Flight MH370, many experts are now criticizing aviation regulators’ screening processes, arguing that they fall short for a profession burdened with the paramount responsibility of so many lives. Some lawmakers are even calling for airlines to have access to the medical records of all pilots, causing many to question whether the risk of a repeat of the Germanwings crash is high enough to justify a change in medical confidentiality for airline transport pilots.

Medical confidentiality in the United States is largely controlled by federal law: the Health Insurance Portability and Accountability Act (HIPAA).  HIPAA prohibits healthcare providers from disclosing a patient’s personal health information without the individual’s written authorization, or under limited circumstances expressly permitted or required by HIPAA. However, even HIPAA’s protections are outweighed by healthcare providers’ ethical obligations to disclose information when the provider has a credible basis for believing the patient poses a serious and imminent threat of harm to the public. Absent such “red flags,” a patient’s medical history remains confidential.

The American Federal Aviation Administration (FAA) requires every airline transport pilot to obtain a first-class medical certificate, which must be renewed every year if the pilot is under 40 years old, and every six months if the pilot is 40 or older. Issuance of this certificate involves a physical examination and self-reporting in an online medical questionnaire, but it does not require specific psychological testing. Concerned doctors can order pilots to undergo testing for “emotional stability and mental state.”  Yet, only when pilots are found to have mental health problems are they sent to psychiatrists or psychologists for evaluation or treatment. Current FAA regulations do not create a general exception to HIPAA’s confidentiality protections of a pilot’s medical history, but they do require a pilot to provide authorization for access to his or her records in circumstances where the Aeromedical Administrator deems them necessary in determining whether the medical standards required to hold a medical certificate are met.

The 2013 National Survey on Drug Use and Health (NSDUH) estimates that approximately one in five Americans meets the diagnosis for mental disorders as defined in DSM-IV. The current FAA medical certification system largely relies on pilots to self-declare their conditions, trusting pilots to volunteer information about mental illnesses that the illnesses themselves can cause the pilots to hide. The FAA attaches fines up to $250,000 for omitting or providing false information concealing health issues that could affect fitness to fly.  Yet, in order to disclose concerns of mental illness, a pilot may need to overcome symptoms of a disease that cause him not to disclose it, the stigma that still clings to mental illness, and the prospects of losing his job as a pilot.  Stigma led the FAA to revise its policies in 2010. Now, the FAA considers special issuance of medical certificates for pilots taking certain medications for mild to moderate depression.  Prior to the 2010 revision, disclosed use of medications prescribed to treat these conditions by law grounded pilots altogether. Such prohibitions, in turn, meant requiring pilots not to take medications to treat a mental condition that could affect public safety; or, alternatively, unlawfully to fail to disclose the consumption of a prohibited medication.

The authorization of a special issuance of medical certificate is evaluated on a case-by-case basis, and is only available to pilots taking one of four specific selective serotonin reuptake inhibitors (SSRIs): Fluoxetine (Prozac); Sertraline (Zoloft); Citalopram (Celexa); and Escialopram (Lexapro). Eligible applicants must have been clinically stable as well as on a stable dose of medication for a period of more than six (6) months, without any aeromedically significant side effects and/or an increase in symptoms. Aeromedical decision-making includes an analysis of the underlying condition and the treatment prescribed.

The 2010 policy move by the FAA attempts to change the culture and stigma attached to mental illness, and urge pilots to seek necessary treatment, thereby making the skies safer. In the aftermath of the Germanwings tragedy, questions loom large: Would the recent call for relaxed legal restrictions on disclosing mental health conditions actually prevent deaths caused by mentally ill pilots via mandated disclosure of medical information? Or would it encourage pilots to conceal information from their doctors and employers, leaving the world with some pilots determined never to seek treatment for a potential mental illness for fear of disclosure and resulting circumstances, such as losing a job?  According to some commentators, such a system would give pilots an incentive to cheat themselves out of quality healthcare, which in turn could pose danger to the flying public. These issues likely will be debated for quite some time.

Related Services: Aerospace

Montreal Convention Developments: Accident While Walking to Customs Does Not Satisfy Requirement of Occurrence During "Operations of Disembarking"

August 28, 2015 | Robert Chandler

On June 3, 2015, the U.S. District Court for the Eastern District of Louisiana granted summary judgment to defendant Lufthansa on plaintiff Boyd’s tort claim for personal injuries brought under the Montreal Convention. The Court ruled that plaintiff failed to provide any evidence that her injuries occurred while she was “in the course of any of the operations of … disembarking,” the aircraft, a crucial element of the cause of action.

Facts

Plaintiff Fay Boyd, after stepping off a Lufthansa flight and while walking in a wide corridor of the airport terminal heading towards Customs, alleged that she was knocked to the ground by another passenger, causing her to fall and break her hip.  Boyd sued the airline pursuant to the Montreal Convention for her injuries.[1]  Plaintiff alleged that, while she was walking toward Customs, another passenger collided with plaintiff, knocking her to the ground and causing her injury. 

Plaintiff Failed to Show She Was in the Process of Disembarking.

Article 17(1) of the Montreal Convention provides that a carrier “is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  (Emphasis added.) Courts have looked at three factors when considering whether a passenger is in the course of disembarking:  1) the passenger’s activity at the time of the injury, 2) the passenger’s location, and 3) the extent to which the carrier exercising control over the passenger at the time of the injury.

Ultimately, the Court ruled that plaintiff failed to provide any evidence that the carrier was exercising any control over plaintiff at the time of the injury.  The Court dismissed plaintiff’s claims, noting that the Montreal Convention ordinarily does not provide relief for an incident occurring in a terminal unless the plaintiff is “clearly under the direction of the airlines.”  Ms. Boyd’s incident occurred in the terminal, and there was no evidence that she was directed by a Lufthansa employee, nor that the other passenger involved was from a Lufthansa flight or that she was in any way acting under the direction of the carrier.

Guidance for What Constitutes an “Accident” Under the Montreal Convention

Although the case was not decided upon the following grounds, the Court in dicta discussed what constitutes an “accident” under the Montreal Convention.  .  The Court noted that, when determining whether a claim may be made against a carrier as a qualifying “accident,” some courts have looked at whether the evidence demonstrates:  1) an unusual or unexpected event external to the plaintiff, and 2) that the event involved an abnormality in the aircraft’s operations.  As has long been the law, under the first prong, plaintiffs must show that the accident was the cause of the injury, versus an injury unto itself.  See Air France v. Saks, 470 U.S. 392, 398 (1985).  Of interest, the second prong noted by the Louisiana court is not applicable in all jurisdictions.  The Louisiana Court, however, noted that, “it appears to reasonably probe a link between the passenger’s injury and the defendant airline …”   Factors for consideration include failures or omissions of crew.    

[1] The Montreal Convention is a multilateral treaty governing the rights and liabilities of passengers and carriers in international air transportation.

Related Services: Aerospace

Attorneys: Robert Chandler

Proposed Bill Would Eliminate Third-Class Medical Requirement for Some Private and Recreational Flights

August 10, 2015 | Robert Chandler

The General Aviation Pilot Protection Act of 2015 (the “Pilots Bill of Rights” in the Senate), if passed, would promote change to FAA medical certification regulations to allow some individuals to operate as pilots of “covered aircraft” without regard to any medical certification or proof of health requirement otherwise applicable under federal law. Understandably, this proposal has started some debate regarding the affect that passage of the Act would have upon safety for the American aerospace community when weighed against the burdens that the current regulation imposes upon some private and recreational pilots.

Currently, pilots with private or recreational pilot certificates must hold at least a third-class medical certificate. 14 CFR Part 61, §23(a)(3). The regulation for the third-class medical certificate requires pilots to obtain examinations to ensure sufficient vision, equilibrium, mental, neurological, cardiovascular and other physiological functioning in order to operate aircraft. 14 CFR Part 67, Subpart D. This examination must be performed by an aviation medical examiner certified by the FAA. 14 CFR Part 183. The proposed Act would eliminate these requirements in limited situations for flights in the United States.

It is important to note initially that the proposed legislation (H.R. 1086/S.571) does not change any of the medical certifications or health requirements for commercial pilots or airline transport pilots. It is intended to apply to private pilots and flights under Part 91 only, not to any flights for compensation. The bill, in its current form, contemplates changes to FAA Regulations “to ensure that an individual may operate as pilot in command of a covered aircraft without regarding to any medical certification or proof of health requirement …” provided certain thresholds are met.

Initially, to qualify for an elimination of the medical requirements on some flights, an individual must possess a valid State driver’s license and comply with any medical requirement associated with the driver’s license. As most will recognize, this is a substantial departure from the third-class medical certificate requirement. Most states have limited medical requirements and a basic eye examination for obtaining a driver’s license, and many depend only upon self-reporting of medical issues. This is a significant departure from the requirement of an examination by a certified medical examiner.

A pilot looking to fly without a third-class medical certification may do so only under limited conditions. No more than five passengers are allowed on qualifying flights. The individual may operate under either visual flight rules or instrument flight rules, but may not exceed an altitude of 14,000 feet above mean sea level and may not exceed an indicated airspeed of 250 knots. “Covered aircraft” under the proposed Act are defined as aircraft that are not authorized under Federal law to carry more than 6 occupants, and, have a maximum certified takeoff weight of not more than 6000 pounds.

The elimination of the third-class medical requirement in limited situations has been a subject of some debate. On one side, elimination of the medical requirements will allow some pilots that would not have previously qualified for the third-class medical certification to operate “covered aircraft” as discussed above, reducing barriers for many private pilots.. On the other hand, some question the elimination of the medical requirement, voicing safety concerns. For example, the Airline Pilots Association (ALPA) opposes the Act, stating concern for private and recreational pilots sharing airspace with Part 121 flights.   Drafters of the Act, apparently aware of these concerns, propose tracking and reporting of statistics with respect to small aircraft activity and safety incidents within five years if the Act is passed.

If passed, the Act will take effect 180 days after passage. The Act is currently pending consideration in the Subcommittee on Aviation for the House Transportation and Infrastructure Committee. A full text of the bill and the course of its passage in the House of Representatives may be tracked here and in the Senate, as the “Pilot’s Bill of Rights” (“S.571”), here.

Related Services: Aerospace

Attorneys: Robert Chandler

Glass Panel Regs to Get Smaller? FAR 25 Design Standards Trending to Part 23?

June 1, 2015

Ripples through the aerospace community suggest that recent revisions to FAR Part 25 regarding “glass panel” designs soon may be made applicable to FAR Part 23. Whereas Part 25 provides the airworthiness standards for transport airplanes (those with 10 or more seats or a maximum takeoff weight of greater than 12,500 pounds and propeller-driven airplanes with more than 19 seats or a maximum takeoff weight greater than 19,000 pounds), Part 23 sets forth the airworthiness standards for planes with a maximum takeoff weight of less than 12,500 pounds (e.g., most utility, aerobatic, and commuter airplanes).  

Effective as of July 2013, Section 25.1302 requires the following:

(a) Flight deck controls must be installed to allow accomplishment of all the tasks required to safely perform the equipment’s intended function, and information must be provided to the flightcrew that is necessary to accomplish the defined tasks.

(b) Flight deck controls and information intended for the flightcrew’s use must:

(1) Be provided in a clear and unambiguous manner at a resolution and precision appropriate to the task;

(2) Be accessible and usable by the flightcrew in a manner consistent with the urgency, frequency, and duration of their tasks; and

(3) Enable flightcrew awareness, if awareness is required for safe operation, of the effects on the airplane or systems resulting from flightcrew actions.

(c) Operationally-relevant behavior of the installed equipment must be:

(1) Predictable and unambiguous; and

(2) Designed to enable the flightcrew to intervene in a manner appropriate to the task.

(d) To the extent practicable, installed equipment must incorporate means to enable the flightcrew to manage errors resulting from the kinds of flightcrew interactions with the equipment that can be reasonably expected in service . . .

This provision reportedly is intended to enhance safety for operation of modern “glass panel” systems, including during the transition from traditional instruments. Importantly, it contemplates the design of systems to manage reasonably-expected flight crew error, to the extent practicable.   Questions of such reasonability and practicability may in turn raise issues of interpretation and debate as the cutting edge develops.

While the provisions of Part 25.1302 have yet to be incorporated within Part 23, the modern trend seems to point in this direction.  

Related Services: Aerospace

FAA's proposed rules for small commercial drones

May 15, 2015 | Jonathan Benevides

The FAA announced its proposed rules for small commercial drones (small unmanned aircraft/aerial systems “UAS”) in February 2015. See Small UAS NPRM (available at www.faa.gov). While the proposed rules are more lenient than many in the industry had anticipated, they are still stringent enough to prevent the use of UAS in many of the ways envisioned by some commercial entities.

Much of the proposed rule is dedicated to addressing the FAA’s concern that the UAS operator has the ability to see and avoid other aircraft.  As the FAA reiterates in the proposed rule, the most basic responsibility of any aircraft operator is to avoid collisions with other aircraft.  In fulfilling this fundamental responsibility, the FAA emphasizes the need for operators to exercise the basic flying technique of “see and avoid.”  Due to a pilot’s ability to utilize peripheral vision while in the cockpit of a manned aircraft, the FAA believes that pilots of manned aircrafts are in a far better position to exercise see-and-avoid techniques than operators of unmanned aircraft using First Person View (FPV) or cameras.  For this reason, the FAA’s proposed rule contains a Visual Line of Sight (“VLOS”) requirement, which requires UAS operators to maintain visual contact with the UAS at all times (though permitting the operator to use a second operator as a forward observer).  The VLOS requirement presents a formidable obstacle to those wishing to utilize UAS’s commercially, and at least in the near future likely will restrict commercial UAS usage to activities such as photography, power line inspections, search and rescue, and crop monitoring.

As to those wishing to use commercial drones in a manner that will require their operation beyond the operator’s line of sight, such as delivering most products, the FAA clearly has recognized that the proposed rule is just the initial step on what it anticipates to be a long journey to complete UAS integration.  Indeed, the FAA’s Notice of Proposed Rule Making leaves open the possibility for developing standards for operations beyond visual line-of-sight activities. 

Recent comments from the leader of FAA’s Integration Office, Jim Williams, also provide a reason for optimism regarding the potential for beyond line of sight operations in the future. Speaking at the Drones, Data X Conference in Santa Cruz, California on May 1, 2015, Williams acknowledged that “we [the FAA] understand there is a lot of value in flying out of line of sight and that is one of the areas we are looking to get ahead rapidly in the next few years.”  Williams did not provide a timeline on when such regulations may be changed but noted that, as sensor technology continues to evolve, drones will become safer and the need for a nearby pilot less necessary.  Though he provided no timeline for the implementation of new regulations easing the VLOS requirement, Williams pointed out that as sensor technology continues to improve, and UAS become safer, the need for an operator to be nearby will be diminished.  Williams explained his belief that sensor technology eventually will be able to permit an operator to see and avoid other aircraft, thus enabling beyond line of sight operation.

Stay tuned to this blog for updates regarding potentially industry-shifting developments, including the scaling back of the VLOS requirement.

Related Services: Aerospace

Attorneys: Jonathan Benevides

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