Midair Collision Civil Suit Moves to Brazilian Courts

By Kirby J. Harrison

July 8, 2008
Accidents

Wrongful-death suits brought on behalf of family members of passengers and crew killed in the 2006 midair involving a Legacy business jet and a Brazilian Gol Airlines Boeing 737 were dismissed last Thursday by New York District Court judge Brian Cogan based on his opinion that the Brazilian courts are a more appropriate venue. Among the defendants are 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.

The crash of the Gol airliner following the midair killed all 154 passengers and crew aboard the Boeing. The initial lawsuit on behalf of those whose families died in the crash was filed in November 2006.

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. ExcelAire 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; they also agreed to appear for videotaped or transcribed depositions taken in the U.S., and to provide evidence in response to interrogatory requests by the Brazilian courts.

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