Aviation Litigation Graphics Take Flight
November 29, 1999
By Christa Zevitas
A New York City jury awarded $2.2 million to 13 plaintiffs who were thrown around an American Airlines jet during severe turbulence - even though no one was seriously injured. The award was based almost entirely on allegations that the passengers suffered post traumatic stress syndrome stemming from a 28-second ordeal during which they believed they were going to die.
Although the airline admitted liability, the defense downplayed the plaintiffs' emotional damages, arguing that all of the plaintiffs had flown since the incident - some even with the same frequency as before the incident. They argued that several of the plaintiffs never sought psychological counseling and therefore that the alleged emotional damages amounted to little more than a bad memory.
But the jury disagreed, awarding each plaintiff anywhere from $150,000 to $215,000, the nation's largest-ever awards for emotional damages associated with in-flight turbulence.
Manhattan attorneys James Kreindler and Dan Rose, who specialize in aviation litigation, say the key to victory lay in establishing that the turbulence experienced by their clients was far more extreme than that experienced by most airline passengers. To do this, they used a 2-D animation that showed the path of the plane, which rose and fell 200 feet in less than two seconds. To put those altitude changes into a familiar context, they included a superimposed image of the Statue of Liberty with its corresponding dimensions next to the plane's flight path.
Once they established the severity of the turbulence, the plaintiffs' lawyers had to convince the jury that the plaintiffs' invisible emotional injuries were both real and lasting. This was especially difficult because only eight of the plaintiffs had been treated by psychologists and diagnosed with post-traumatic stress disorder, while the remaining five were alleging emotional distress but hadn't sought psychological help.
According to Kreindler, having multiple plaintiffs proved critical in clearing that hurdle.
" That's because if you have only one passenger out of the 100 or 200 who were on the plane, then the jury thinks, 'This is just one nutty person looking for money.' That's why, when they go to trial, there are a lot of defense verdicts [in these cases]," he says. "Trying a group of cases together is the key to success in these lawsuits."
Rose adds that live testimony from eight of the plaintiffs bolstered their emotional damages argument.hought they were going to die on that flight," he says. "These people were from all different walks of life and the fact that you had these different people telling stories with a unified theme was a powerful element of the case."
On June 25, 1995, American Airlines Flight 58 was over Minnesota on its way from Los Angeles to New York when severe turbulence from thunderstorms caused the plane to rise and fall abruptly for 28 seconds. At one point, the plane rose and fell 200 feet in less than two seconds, throwing passengers out of their seats. Several of the 13 plaintiffs slammed into overhead compartments, while others were thrown onto the backs of the seats in front of them or into the aisles. None of the passengers suffered serious injury. One woman suffered a herniated disc. The rest suffered an assortment of scrapes, bruises, sprains, whiplash and two suffered concussions.
The flight made an emergency landing in Chicago, where 13 of the 101 passengers - including four of the plaintiffs - were hospitalized.
The plaintiffs alleged that fear of death during the 28 seconds of turbulence caused severe emotional distress. Kreindler and Rose established liability against American Airlines by demonstrating that:
"Its dispatch crew - responsible for relaying National Weather Service storm warnings to flight crews - failed to alert the pilot and co-pilot of two thunderstorm warnings which said that the storms were increasing in severity and approaching the route of Flight 58.
"The flight crew did receive an initial warning about an hour before take-off, but never got the National Weather Service's two updates, which were issued after the plane took off," says Rose.
The pilot and co-pilot failed to detect the thunderstorms themselves, which they could have done by properly using the plane's on-board equipment, such as the weather radar.
The flight crew also failed to illuminate the "fasten seatbelts" signs.
Faced with these facts, the company admitted liability, but contested the severity of the plaintiffs' emotional damages.
Defense attorney Randal Craft of Manhattan refused to comment on the case, but the plaintiffs' attorneys say he argued that the eight plaintiffs who weren't wearing their seatbelts were partially responsible for their own injuries because they failed to mitigate their physical damages.
The plaintiffs used a two-fold strategy to diffuse the defense argument that the emotional damages were minor.
The first part of that strategy was to "show" rather than just "tell" the jurors how the turbulence experienced by the plaintiffs was different from "normal" turbulence.
"Instead of having an expert read the black box parameters [of altitude over time] and hoping the jury would listen and understand how violent the altitude [changes] were, we wanted to use an animation to grab their attention," says Rose.
The 2-D video animation began with the plane moving smoothly through the sky, leaving behind a red trail showing its altitude. The video then showed the plane hitting turbulence, rising and falling dramatically in real time - 28 seconds in all - leaving behind a red graph recording its sudden movements through the air. This was all done beside a scale graphic of the Statue of Liberty - a 151-foot landmark that would give the New York City jury a familiar reference point to show just how far the plaintiffs fell during the fiercest one-second plunge.
"We did this so the jury could see how fast and abruptly those altitude excursions occurred," says Rose. "We wanted to convey the idea that the plaintiffs were enjoying an uneventful flight and then, boom, the plane ran into the wall of thunderstorms."
While the plaintiffs' expert was explaining how those thunderstorms caused the planed to violently drop and rise, the plaintiffs' attorneys played the video. "The animation served as a very powerful, demonstrative aid that bolstered our expert's arguments," says Rose, adding that its cost - $10,000 - was worth it.
The Human Touch
Once they established that the turbulence wasn't "normal," Kriendler and Rose moved onto the second part of their strategy. They painted a picture, through the live testimony of eight plaintiffs, that the experience was perceived as life-threatening, causing them to suffer lasting emotional distress.
To drive this home, the attorneys asked the plaintiffs to describe what happened when the plane encountered the thunderstorms.
"Soda cans and heavy food carts were being strewn around the cabin," says Rose. "One passenger testified that a flight attendant was thrown up into the air like a rag doll. A mother talked about grabbing her child by the ankle while the child was in mid-air and holding onto her. Some described it as coming to grips with their maker. One man said he just wanted everyone to be quiet so he could die in peace."
Rose believes that "this was ultimately a human story that appealed to the jurors. It was clear that [the plaintiffs] all shared the common experience of thinking they were going to die."
Kreindler says the fact that three of the plaintiffs were children helped humanize the case even more.
"When you hear a mother not only describe her fear of death, but also her children screaming, 'Mommy, help me! Save me!' it makes for a compelling story," he says.
The defense, in turn, argued that the turbulence was just a scary episode that hadn't altered the plaintiffs' lives. To support this argument they noted that everyone still flew for business, pleasure, or both. In fact, some flew with the same frequency as they had before the incident - including 74-year-old Mimi Lewinger, the oldest plaintiff, who had been to St. Louis, Florida and France since the incident and was thinking about taking a trip to Israel.
Kreindler concedes that the plaintiffs continued to live their lives as they had before the incident. In fact, he intentionally made that clear through his direct examination of the plaintiffs.
"They all admitted [during trial] that they still fly," says Kreindler, noting that he believed establishing this before the defense did would strengthen their clients' credibility. "But we were arguing that this was an experience that has changed them for the worse - most of them really don't like to fly now, whereas before they used to look forward to it. And when a news story comes on TV and they remember their own horrifying experience, they're entitled to be compensated for the adverse ways it affected their lives."
To illustrate how the incident had negatively affected the plaintiffs' lives, Kreindler and Rose again relied on live testimony from the plaintiffs. For example, Lewinger testified that, despite counseling, she is still haunted by the screams of passengers - especially the children.
"We let each person tell their own story because this allowed the situation to become real and believable to the jury," says Kreindler.
To back up the claims of the eight plaintiffs who alleged they suffered from post-traumatic stress disorder, the attorneys called their psychologists to the stand.
"They described how their respective patients had suffered and I think the jury got a real appreciation of how the psyche can scar," says Rose. "The most important thing that came out was that in their descriptions of post-traumatic stress disorder, they all agreed that it affects different people differently and that it doesn't go away. It was important for the jury to understand that."
According to Rose, the fact that the jurors awarded large damages for past pain and suffering to all the plaintiffs - and to two of the three children for future pain and suffering - indicates that they believed the incident caused serious damage to their psyches.
Because three of the eight plaintiffs alleging post-traumatic stress had been to see their psychologists before the incident occurred, the plaintiffs' attorneys knew the defense would use that information to downplay the emotional damages of those plaintiffs. But Kreindler wasn't worried.
"I'm a big believer in bringing it all out on direct because it shows that the plaintiffs have nothing to hide. So I asked those [three] plaintiffs, 'Did you ever seek psychological help before this?' And they said, 'Yes' and explained why. One man, for example, went to see a shrink after his girlfriend died in a freak accident," says Kreindler. "But my argument was basically this: That fact that someone goes to a psychologist for help with adjusting to an event in life doesn't mean that the person didn't suffer from post-traumatic stress disorder."
As for the five plaintiffs who never saw a psychologist, Kreindler argued that fear of death was traumatic enough to merit compensation regardless of whether the person sought professional help.
The jury agreed with the plaintiffs' attorneys, returning a $2.2 million verdict against American Airlines. The smallest awards were for $150,000 each and went to three plaintiffs, none whom had seen a psychologist and all whom were wearing their seatbelts during the incident. The two largest ones - $215,000 each - included compensation for future emotional distress and went to two 11-year-old girls, both of whom had been diagnosed with post-traumatic stress disorder.
The award included physical damages of $15,000 for each passenger who had been wearing their seatbelt and $10,000 for those who hadn't.
During pre-trial negotiations, the plaintiffs' attorneys offered to settle for $40,000 to $100,000 per plaintiff. The defense counteroffer was for $4,000 to $20,000 per person.
Although he declined to comment on the trial, defense attorney Craft did say the defense "will be seeking to have the awards reduced or set aside on the grounds that they are excessive."
Upping the Ante in Turbulence Cases
Kreindler's firm has handled hundreds of airplane turbulence cases over the last 15 years and those that end in large verdicts or settlements typically involved plaintiffs who suffered severe physical injuries.
One reason for this is that many of these cases involve international flights, which are generally longer than domestic ones and therefore statistically more prone to encountering turbulence. These cases are governed by the Warsaw Convention which requires plaintiffs to have a physical injury in order to recover for emotional distress, Kreindler explains.
If a plaintiff brings a suit stemming from turbulence that occurs on a domestic flight, however, he may be able to recover for emotional injuries without being physically injured as long as he can show the defendant's negligence caused his damages.
Even so, Kreindler says that prior to Flight 58, his largest settlement for emotional damages in a turbulence case was $53,000. But settlements for those types of cases are more often in the $25,000 to $45,000 range, he says.
But Kreindler believes the Flight 58 verdict will give lawyers more bargaining power in similar lawsuits.
"It shows what a jury will do when really all you're talking about is a half-minute's worth of fear," says Kreindler. "This case does raise the bar - the verdict shows that even cases with just simple emotional distress have a significant value and airlines can't say, 'Gee, I'm sorry we screwed up and here's 1,000 free miles for your frequent flyer account. Now, for cases that would've previously been settled for $50,000, I'll be asking for at least $75,000."
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