Aviation Expert Witness: A Litigation Guide


aviation expert witnessCo-authored with Katelyn Crawford

Aviation law governs issues relating to aircraft, air travel and transport, and aviation facilities. With the variety of international treatises, federal and state statues, and regulatory agencies to abide by, aviation law is an extremely complex and specialized area of law. Particularly now in our post-9/11 world. As a result, an aviation expert witness can bring important and valuable expertise and specialized knowledge to aviation-related matters.

WHAT IS AN AVIATION EXPERT WITNESS?

An aviation expert witness is a trained and experienced aviation professional. They testify in aviation-related cases, including negligence, wrongful death, products liability, and intellectual property disputes. Generally, they have extensive education and experience in science, piloting, and aircraft maintenance. Aviation experts include pilots, flight attendants, engineers, air traffic controllers, aircraft mechanics, and aircraft instructors and professors.

WHO IS QUALIFIED TO BE AN AVIATION EXPERT WITNESS?

The testimony of an expert witness in federal court is governed by Federal Rule of Evidence 702.

FRE 702 provides that a “witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  • the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  • the testimony is based on sufficient facts or data;
  • the expert has reliably applied the principles and methods to the facts of the case;
  • the testimony is based on sufficient facts or data;and
  • the testimony is the product of reliable principles and methods.

As explained in article shared by the American Bar Association , an aviation expert witness is generally qualified to testify in court when the expert in question has “specialized knowledge” that will “assist the trier of fact in understanding or determining a fact in issue.”

In determining admissibility of testimony by an aviation expert witness, the court will review an expert’s qualification, reliability, helpfulness, and foundation.

Examples of issues that an aviation expert witness may be asked to opine on:

  • Aerospace medicine and pathology
  • Accident investigation and reconstruction
  • Aircraft accident reconstruction
  • Aircraft design
  • Airline labor relations
  • Airline maintenance and operations
  • Air traffic control procedures
  • Appraisal & valuation
  • Aviation training
  • Digital and mechanical flight controls
  • Employment law
  • Federal Aviation Administration (FAA) regulations
  • Flight crew training
  • Flight path reconstruction
  • Ground and flight operations
  • Insurance
  • Metallurgy
  • Meteorology
  • Military aircraft accidents
  • Pilot performance
  • Product liability
  • Risk management
  • Safety standards
  • Security
  • TurboMachinery

CASES INVOLVING AVIATION EXPERT WITNESSES

Aviation expert witness may testify on a wide variety of liability, causation, or damages issues. Thus it is important to hire an expert based on the particular facts of your case. One whose background and opinions qualify under the rules governing expert witness testimony. It is helpful to have the expertise of an aviation expert witness during litigation arising out of mass disaster commercial airliner crashes, National Transportation Safety Board (NTSB) crash scene investigations, trials and appeals, arbitration and mediation of disputes, and in regulatory proceedings before the FAA.

Below are examples of how an aviation expert witness benefits the litigation process.

Case Example: 2013 Asiana Airlines Crash

Aviation expert witnesses provide critical insight in the investigation of the tragic accident that occurred when a South Korean-owned Asiana Airlines jumbo jet crash-landed at San Francisco International Airport on July 6, 2013. Three passengers were killed and more than 180 were injured.

The New York Times reports aviation experts discovered the crash occurred because Asiana pilots “were deeply confused about the plane’s automated control systems…a common problem among airline pilots.”. One expert noted that Asiana pilots don’t know how to act when the automation systems fail. They are “taught to rely on the system” at all times.

Testifying in a National Transportation Safety Board (NTSB) hearing, aviation experts cited “mode error” as the main problem. This situation that occurs when “pilots become confused about what automated cockpit controls will do in a certain situation. The problem is akin to having trouble with the buttons on a remote control unit for a home entertainment system, but with greater consequences.”

In addition to issues involving the training and experience of Asiana pilots, lawyers also questioning whether the design of cockpit equipment on Boeing 77 plane met industry standards. In a report by The Korean Times,  Ha Jong-sun, the lawyer representing the Korean passengers who are suing the airline, is considering bringing a products liability claim to court after the FAA, “raised questions about the proper function of the auto-throttle on the plane made by Boeing.”. He stated that “[u]nder U.S. Product Liability law, manufacturers cannot be excused even if they met basic safety requirements set by the law if they are aware of problems with the product they make.”

However, Reuters report that a retired Boeing 777 test pilot testifying at the NTSB hearing stated that the auto-throttle, “design is consistent with Boeing’s philosophy of leaving the pilot in charge of the controls,”. Stressing that the company doesn’t “put in design elements that override the pilot” because they believe pilots should “be the decider.”

aviation expert witnessAircraft Accident

An aviation expert witness is exceptionally valuable in litigation involving aircraft accidents. Claims may involve aircrafts, airline companies, and landing facilities and may center on such issues as aircraft maintenance, airport land use, piloting, and air traffic control. Plaintiffs will usually attempt to recover money damages from those responsible for causing the accident and asset a claim of negligence, strict liability, and/or breach of warranty. Defendants must prepare a thorough argument establishing their lack of fault.

Key players in an aircraft accident can include the pilot and airline crew, government contractors the aircraft maintenance provider, the aircraft manufacturer, the aircraft owner, air traffic controllers, airport operators, cargo handling companies, aircraft maintenance facilities, and domestic and international airlines. Plaintiffs may include not just the injured party, but their parents, spouse, and children. They may also be entitled to compensation in certain situations, such as in a wrongful death dispute. Recoverable damages may include pain and suffering, sexual dysfunction, loss of consortium, loss of past and future earning, medical expenses, loss of parental advice and guidance, and mental anguish and grief of survivors.

An aviation expert witness can effectively aide either a plaintiff or defendant in analyzing and reconstructing aviation-related incidents and effectively conveying to the judge and jury if and how failure and the resulting injuries occurred. Based on their testimony, a judge or jury will be able to rule on whether the plaintiff proved their claim.

To prove a negligence claim, the aircraft user must prove the five elements required to establish a prima facie case of negligence: (1) the existence of a legal duty to exercise reasonable care; (2) a failure to exercise reasonable care; (3) cause in fact of physical harm by the negligent conduct; (4) physical harm in the form of actual damages; and proximate cause; and (5) a showing that the harm is within the scope of liability. The testimony of an aviation expert witness can help to prove these elements by the preponderance of the evidence.

According to John D. Goetz’s article “Transportation and Aviation Accident Litigation: Key Elements and Strategies,” in certain situations, a plaintiff may recover economic and non-economic damages even without proving that the defendant was at fault. Such strict liability claims are established if the aircraft user establishes, “that the manufacturer placed a defective aircraft (or component part) into the stream of commerce, that the aircraft was then in a defective condition unreasonably dangerous to consumers, and that the defective condition was the actual and proximate cause of the injury.”

Where the issue is a defective part or aircraft system, a plaintiff will generally recover under a breach of warranty claim. To do so, the plaintiff must demonstrate that a design or manufacturing defect caused the issue.

An aviation expert witness can help to establish the elements of a claim. Their testimony often focuses on aircraft design and operation, aircraft appraisal, defective machinery, and pilot negligence or error. They also testify for failure analysis, aircraft damage, airline cargo claims, faulty maintenance, and air traffic control mistakes. As aviation expert witnesses opine on what went wrong, how the aircraft crashed, and the subsequent crash conditions on the ground, their testimony is extremely valuable in litigation. Their analysis enables an attorney to develop a strong case theory, argument, and defense at trial.

Wreckage Reconstruction

An important way aviation experts can bolster a trial team’s case is by performing wreckage reconstruction during pre-trial preparations. The aviation expert witness has the knowledge to analyze factors causing crashes and reconstruct how and why the aircraft failed. Whether it be environment, human error, or aircraft maintenance. Aircraft accident investigation requires a highly specialized and knowledgeable aviation expert witness. One who can analyze and determine what happened in an accident, and effectively communicate the technical elements to a judge or jury. An aviation expert witness benefits a legal team by analyzing aircraft design, operation, and performance before and during a crash. Various factors are considered, such as the standard of craftsmanship, ground equipment and jet way areas, and environmental elements.

Failure & Human Error Analysis

An aviation expert witness also aids an attorney by providing failure analysis and human error analysis. Failure analysis involves providing tests on the durability and strength of the chemicals, metals, coatings, and other materials in the aircraft. Human error analysis consists of reviewing limitations of the pilot, airline crew, maintenance technician, and air traffic controller that generally encompass issues with memory, judgment, dexterity, reaction time and visual ability.

As an example, an aviation expert witness may testify on human error analysis is during a lawsuit against a pilot. If the aircraft landed in foggy weather, resulting injury to a passenger, an aviation expert would assess the pilot’s human error. Analyzing the various limitations of the pilot compared to the outside environment and the ground conditions.

Determining Crashworthiness of Aircraft

In addition to analyzing why an aircraft accident occurred, an aviation expert witness will also assess the crashworthiness of the aircraft. “Crashworthiness” is an industry term referring to how likely passengers are to survive in the carrier if the carrier failed. An aviation expert witness will examine such factors as the size and livability of the aircraft cabin. In addition, they evaluate if airline passengers were safely buckled and if seats were properly bolted. Familiarity with safety mechanisms enables an aviation expert to review the safety features’ deployment. They will then decide whether they complied with industry standards. Moreover, most aircraft deaths occur during the fire following an aircraft hitting the ground, rather than during the crash landing. The aviation expert witness will examine the emergency exits, the fire safety features, and the conduct of the airline crew in following safety procedures and assisting passengers get to safety.

Intellectual Property Lawsuits

aviation expert witnessPatent infringement and other intellectual property suits are common among aviation manufacturers and technology pioneers in the field. Aviation experts are important in an intellectual property lawsuits at all stages of the litigation. Issues may involve disputes over intellectual assets, trademarks, patent, copyright licensing, trade secrets, branding, or information technology. An aviation expert witness benefit an attorney because of their knowledge of the inner-workings of machines and the various engineering components involved. In addition, they know the science behind common aviation products. This information is necessary to verify an inventor’s claim and bridge a technology gap.

Case Example: Patent Infringement Dispute

In one patent infringement case, a company developed a drone which could carry small loads. The company marketed the product to a larger corporation, which decided not to buy the drone. Sometime later, the larger corporation released a very similar drone model, and the smaller company filed suit for patent infringement. In such cases, an aviation expert witness lends their specialized knowledge of aviation technology, mechanics and engineering to compare the two products and comment on whether an infringement occurred.

Verifying Patent Ownership

If an inventor of a product believes his product was copied before he could patent it, the inventor must bring suit to determine who owns the patent. Aviation expert witnesses are called to review documents, product designs, and product features. They also explain the highly complex technical jargon involved in the details of product development and manufacture to a judge or jury.

Bridging a Technology Gap

Bridging a technology gap is another service an aviation expert witness can provide. When an inventor hires an attorney to help them successfully file a patent, the attorney will frequently need the help of an aviation expert. The expert may have to review documents to determine if a similar patent exists. As well as assisting the attorney in differentiating the patent applications from other patented technologies and including new elements to ensure a favorable patent review.

aviation expert witnessProducts Liability

Aviation expert witnesses are utilized in products liability involving product design, safety, failure, testing, and products defect. These cases can involve chair malfunction, electrical failures, oxygen mask systems, or emergency lights. Like in accident cases and intellectual property suits, an aviation expert witness assists a plaintiff or defendant with their expertise and specialized knowledge. Aviation experts have education and expertise to discuss industry standards, best practices, and whether or not the standard was upheld.

QUESTIONS TO ASK AN AVIATION EXPERT WITNESS

After determining what type of aviation expert will best suits your needs, The Expert Institute encourages the attorney to properly and thoroughly vet their experts. An aviation expert witness should meet certain education and expertise standards. Aviation law cases generally involve highly specialized issues that not every engineer or pilot may be familiar with. Working with a specialist if the case calls for it, rather than a jack of all trades or someone with generalized experience is generally recommended.

An aviation expert should also have a relevant background and work experience. Hiring a pilot to evaluate human error is a great trial tactic; however, employing a pilot who has little experience actually flying will probably lead to some devastating cross-examination. Another important to consider is to chat with a potential aviation expert before deciding to hire them. The Expert Institute provides an opportunity for our clients to discuss the case with a potential expert. We offer this service because we understand it’s a critical element for an attorney requesting an expert witness. The expert must be able to thoroughly and effectively communicate a very detailed and scientific matter in plain understandable language.

About The Author

Inna Kraner, J.D., is a Senior Business Proposals Specialist and writer with experience litigating corporate, industrial, financial, regulatory, and controversy matters.