When a Plane Goes Down

Over the next 18 months, Congress will be considering reauthorization of the National Transportation Safety Board. Originally conceived in 1966 to identify probable causes of transportation accidents, the NTSB needs changing. Revisions should include the authority to identify and correct safety deficiencies of aircraft.

Passage last year of the Aviation Disaster Family Assistance Act named the NTSB as the lead agency for notifying families in an airline disaster. But does this detract from its original mandate-to investigate and find causes for transportation accidents? Is this technical organization really qualified to handle such emotional assistance and professional counseling needs?

Perhaps most disturbing in other recent federal legislation is a 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 part "with sufficient information for the party to receive a fair trial" and that the additional portions are "necessary" to ensure a fair trial. The court can also limit the dissemination of such recordings to the judicial proceedings. Imagine spectators at trial being ushered in and out of the courtroom every time a reference to the sealed portions is made.

This represents yet another hurdle for plaintiffs in aviation disaster cases, for it is difficult to imagine putting together all of the facts without this critical piece of evidence. No matter how embarrassing, 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, 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 NTSB's return of the evidence to the carrier and a court-ordered disclosure. Is this one-sided advantage a productive way to promote early resolution of litigation?

Another outgrowth of the legislation is 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, the National Transportation Safety Board as well as individuals who have lost a family member in various recent airline crashes.

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

For example, the report recommends that a statutory ban of lawyers contacting any family members be extended to 45 days from 30 days. But even that type of deterrent is not strong enough to thwart some of the over-zealous in the legal profession.

The report also asks the media to respect the privacy of the grieving. Too many times family members are forced 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.

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 the NTSB investigatory process is not to determine legal fault but instead is to determine causation so that the incident doesn't repeat itself.

Currently, while the NTSB 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 participation, its goal to be an independent, impartial investigating body would be enhanced and would carry more credence.

___________________________ The writer is an aviation and transportation lawyer.