Family Members Deserve More

A commercial airliner crashes in an Indiana field. All 68 people aboard are killed.

Families must be notified of the tragic news. Some are left messages on their telephone answering machines. Others who call the airlines anxiously awaiting the worse are put on hold by the airlines for 20 minutes, only to be told no information is available. Within hours, personal injury attorneys from across the country try to obtain passenger lists to solicit potential cases.

After the disaster is cleaned up, a private burial service is held in a nearly remote area. Families and loved ones are never told. Personal effects recovered at the scene are never returned. How much more grief can these families endure?

These events actually occurred following the crash of American Airlines Flight 4184 in Roselawn, Ind., on Halloween night, 1994. As one of the lead counsel of the consolidated cases in federal court, I heard these stories over and over again.

Those in other air crash disasters have experienced similar treatment. It led to the formation earlier this year of the Task Force on Assistance to Families of Aviation Disasters, made up of representatives of various airlines, the Department of Transportation and the National Transportation Safety Board, as well as individuals who have lost a family member in an airline crash.

And just a few weeks ago, Transportation Secretary Rodney Slater released a report of the Task that is to serve as a blueprint on how to better treat family members in times of such disasters. More than 60 recommendations were made.

For example, the report recommends that a statutory ban on lawyers contacting any family members be extended 45 days from 30 days. I would have argued for even stronger measures. The report goes on to ask the media to respect the privacy of the grieving.

Too many times I have heard of family members unable to cope with the television crews camped out at curbside, with reporters knocking on their doors in the middle of the night, with being photographed at religious gatherings when trying to grieve in private.

The report also calls for a protocol being established for the return of personal effects.

On the heels of this report comes the formation of a national committee composed of aviation attorneys to try to set some self-guidelines and prod the profession to fall in step. Part of this committee's agenda is to facilitate family members' involvement in the federal government's investigation right from the start.

And why shouldn't they be involved? The ultimate goal of everyone is not so much to find fault as to determine causation so that the incident doesn't repeat itself. Currently, while the National Transportation Safety Board conducts its investigation, which could take years, family members are forced to sit on the sidelines and await the results before any information can be obtained.

If the NTSB employed more of an outreach program of public awareness, its goal to be an independent, impartial investigating body would carry more credence.

With the passage last year of the Aviation Disaster Family Assistance Act, the NTSB was named as the lead agency for notifying families in an airline disaster, with Congress increasing the agency's annual budget of $42.2 million by 8 percent to fund this new task. But does this detract from the agency's original mandate - to investigate and find causes for transportation accidents? Is this technical organization really qualified to handle such emotion assistance and professional counseling needs?

But perhaps most disturbing in the new federal legislation is the section dealing with "Use of Cockpit Voice Recorder Recordings and Transcription in Judicial Proceedings".

Parties are not allowed to discover recordings or transcripts of the crucial cockpit voice recorder or its transcription following an accident unless the NTSB makes it available to the public. This blanket prohibition comes as a direct result of the lobbying efforts of the Airline Pilots Association following embarrassing conversations in the cockpit prior to some accidents.

The restriction's only exception allows for an in-camera review by a court and a judicial finding that the public portions already released do not provide the party "with sufficient information for the party to receive a fair trial" and the addition portions are "necessary" to ensure a fair trial. The court can also limit the dissemination of such recordings to the judicial proceedings. Imagine spectators being ushered in and out of the courtroom at trial every time a reference to the sealed portions are made.

This represents yet another hurdle for plaintiffs in aviation disaster cases, for it is difficult to imagine putting all of the facts together without this critical piece of evidence. No matter how embarrassing, don't victims' families, indeed the public, have a right to know the full story of what happened? Why should the air carrier be allowed to argue for selective disclosure not based on cause or safety concerns, but on emotional or personal concerns?

It is also noteworthy that only the air carrier and its representatives are allowed unrestricted access to the cockpit voice recording in the time period between the return to the carrier by the NTSB and a court-ordered disclosure. Is this a productive way to promote early resolution of litigation?

Perhaps changing the NTSB's systemic perspective of identifying the most probably cause to identifying safety deficiencies of the aircraft would solve some of the discrepancies and inconsistencies between the air carrier and the passenger, treating them as equals and not as immediate adversaries.