Comair ruling threat to safety, says RAA

 - April 1, 2008, 11:58 AM

A U.S. District Court’s ruling requiring Comair to release confidential employee filings into evidence in the dozens of civil lawsuits stemming from the Aug. 27, 2006 crash of a Bombardier CRJ in Lexington, Ky., threatens the integrity of one of the FAA’s most important safety mandates, according to the Regional Airline Association. Comair last month handed over the reports, filed under the FAA’s Aviation Safety Action Program (ASAP), after lawyers for the plaintiffs filed a motion to force the airline to admit that lax safety practices contributed to the crash.

The RAA filed an amicus curiae brief with the U.S. District Court for eastern Kentucky in support of Comair’s previous motion to overturn the ruling. “The central objective of ASAP is to ‘encourage air carrier employees to voluntarily report safety information that may be critical to identifying potential precursors to accidents,’” the RAA wrote in its brief. “It is this reliance on the voluntary nature of ASAP submissions that is critical to the program’s success.”

Nevertheless, the District Court judge who ruled on the case, Karl Forester, upheld a magistrate judge’s ruling in January that ordered Comair to hand over the documents. Forester said that although Congress exempts the reports from disclosure under the Freedom of Information Act, it does not protect them from court-ordered discovery. He also noted that a court order would ensure that they didn’t enter the public domain through the press or other means.

The plaintiffs asked that the sanction against Comair include an acknowledgement that a failure by the airline to address “serious safety problems” and that its lack of action constituted “a gross and wanton disregard for safety” and a “substantial factor” in the crash of Flight 5191. The accident killed 49 people.

Scheduled to go to trial on August 4, the lawsuit seeks punitive damages based on claims of Comair’s prior knowledge of runway incursions and other operational problems at Lexington Blue Grass Airport and elsewhere. As of March 3 the plaintiffs’ steering committee had taken nine depositions without the benefit of the requested ASAP reports, including from Comair’s director of safety, its flight safety specialist and its chief pilot. At the time the court had scheduled seven more depositions for last month.

“It is obviously Comair’s intention to stifle production of these undisputedly relevant documents until after the trial, or until such time as they cannot be effectively used against Comair,” lawyers for the plaintiffs charged in a brief before the airline released the reports.

Of course, the industry at large argues a far broader point: that airlines and pilots would no longer volunteer potentially damaging information if they feared the prospect of litigation. Following the lead of the RAA, the Air Line Pilots Association, the Air Transport Association and Southwest Airlines each filed friend-of-the-court briefs supporting Comair’s position.

“The public’s interest in achieving the highest degree of aviation safety and reflected in statutes and FAA policies supporting ASAP confidentiality far outweighs the limited value of producing ASAP information in civil litigation,” said the RAA. “There is a genuine risk of a meaningful and irreparable chill from the compelled disclosure of ASAP materials in connection with the pending litigation.”