U.S. judge dismisses wrongful death suit in Brazilian midair

 - July 30, 2008, 6:44 AM

Wrongful-death suits brought on behalf of family members of passengers and crew killed in the 2006 midair between an Embraer Legacy and a Brazilian Gol 737 airliner were dismissed on July 3 by U.S District Court Judge Brian Cogan, based on his determination that the Brazilian courts are a more appropriate venue. The midair killed all 154 passengers and crew aboard the Boeing, but all aboard the business jet survived. The initial lawsuit on behalf of those who died in the crash was filed in November 2006.

Defendants in the civil suits include Honeywell, which provided the avionics for the Legacy; the aircraft operator, Long Island-based charter and aircraft management provider ExcelAire; and pilots Joseph Lepore and Jan Paladino, who were in control of the Legacy at the time of the accident.

In making his decision, Cogan observed, “On the whole, this court’s inability to compel testimony or evidence from potentially unwilling witnesses located in Brazil, compared to the Brazilian courts’ likely access to all the evidences, weighs in favor of dismissal.”

While the pilots have agreed to provide testimony to Brazilian courts, Brazilian air traffic controllers and other Brazilian entities might choose to provide no evidence at all to a U.S. court, explained Cogan.

The decision also took into consideration an agreement by all defendants to consent to the jurisdiction of the Brazilian courts with regard to the civil actions, with certain exceptions. Excel-Aire agreed to all conditions except the toll of any applicable statute of limitations. The Legacy pilots agreed to the domestication of any Brazilian judgment against them, and have agreed to appear for videotaped or transcribed depositions taken in the U.S., as well as to provide evidence in response to interrogatory requests by the Brazilian courts.

Criminal Trial in Brazil
Meanwhile, a Brazilian judge has determined that the separate criminal case in Brazil against Lepore and Paladino, as well as four Brazilian air traffic controllers involved in the accident, will be held there in federal court. The case had been stalled over the question of whether the controllers, who are civilians but who function within an ATC system operated by the military, should face trial in a military or civilian court. Three of the controllers have been charged with negligence. The fourth faces the much more serious charge of extreme recklessness with regard to endangering an aircraft.

Lepore and Paladino, who safely landed their damaged Legacy, face charges under the Brazilian criminal code that they unintentionally endangered an aircraft through negligence by somehow disengaging the transponder.

Investigators at Cenipa, the Brazilian equivalent of the NTSB, have stated that an inspection of the Legacy’s avionics subsequent to the accident showed that the transponder was in working order but not operating at the time of the collision.

Both pilots have already given investigators from Cenipa some 20 hours of testimony at the NTSB offices in Washington, D.C.

The defense attorney for Lepore and Paladino, Joel Weiss of the New York-based law firm of Farrell Fitz, said the pair will answer further questions from Brazilian legal authorities as they are submitted through the U.S. Justice Department, the proper channel for such procedures.