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"Small firm lawyer wins $70.5 million in 'textbook' products liability trial"

By: Sylvia Hsieh; Lawyers USA, April 10, 2012

A small firm lawyer representing two helicopter pilots has won a $70.5 million verdict against General Electric, the maker of the copter's twin engines.

 

The co-pilots were commanding a Sikorsky S-61 and shuttling firefighters in the middle of a forest blaze on the border of California and Oregon in 2008 when they crashed. Nine people died, including one of the pilots, in the deadliest firefighter aviation crash in U.S. History.

 

Winning attorney Gregory Anderson represented the surviving pilot, William Coultas, and the widow of the deceased pilot, Roarke Schwanenberg.

 

During a six-week trial that Anderson called a "textbook case for young lawyers to learn about what goes on in product liability," he dealt with missing helicopter parts, a messy government investigation and a hefty defense squad that papered the case with eight attempts to obtain summary judgment and 30 motions in limine.

 

"It was the most contentious trial I have ever seen," said Anderson, who said he has tried over 100 cases during his career as a partner in a 600-lawyer firm, a 60-lawyer firm and now as owner of the 8-lawyer firm AndersonGlenn in Ponte Vedra Beach, Fla.

 

At the center of the legal battle was whether a faulty fuel part caused the crash or the helicopter was simply carrying too much weight to be safe.

 

While the jury had to sort through mounds of technical evidence and learn the anatomy of the Sikorsky turbo shaft engine's filtration system, Anderson said the case came down to powerful testimony by three firefighters who survived the crash and a chain of emails within G.E. chronicling what they knew about the engine part.

 

Defense attorney Scott Brooksby declined to comment for this article, but G.E. spokesperson Rick Kennedy said the company will appeal.

 

Evacuation Mission

On Aug. 5, 2008, firefighters battled a blaze in the Shast-Trinity National Forest in the mountainous upper reaches of California near the Oregon border.

 

When thunderstorms and lightening threatened the efforts, helicopters were sent to evacuate the firefighters.

 

Schwanenberg and Coultas piloted three missions out of the forest. On the third trip, the helicopter crashed into the side of the mountain and burst into flames.

 

Coultas managed to escape through the cockpit window, Schwanenberg could not get free and was burned alive.

 

All the other individuals killed or injured in the tragedy settled their cases.

 

"There were a serious of e-mails warning that sooner or later the filtration system is not going to do its job at a critical time...G.E. had ongoing discussions with [helicopter maker] Sikorsky but they didn't do anything about it," said Anderson.

 

One of the internal G.E. e-mails was sent within 15 hours of the high-profile crash asking, "Where are we on the engine filtration issue?" and referencing the accident, according to Anderson.

 

His theory of faulty fuel filter system was that the helicopter took off, then experienced engine failure because the fuel control part did not take contaminants like metal debris out of the fuel, robbing the engine of power.

 

Anderson told the jury that the company used a different part in the military version of the same helicopter but did not want to change the part in its commercial copter because of money, pointing to one of the e-mails that said the company, "was not going to redesign a spare part for such little upside."

 

According to Anderson, the defense argued that the engines never failed, and the cause of the crash was that it was overloaded with too much weight for safe takeoff.

 

Under the defense theory, the helicopter never dipped or lost engine power.

 

"The NTSB investigated the case for three years and from their conclusion the engines were not only operating normally, but operating at maximum power. They were running as hard as they could," said Kennedy,the G.E. spokesperson after the trial.

 

But under federal law, an NTSB report cannot be admitted at trial and the jury did not see it.

 

Even if the report had been admitted, it might have been a double-edged sword.

 

According to Anderson, the NTSB's original report right after the accident discussed problems with the engine parts, but then the parts went missing, the report was taken off the agency's website and a final report written by the investigator's wife, who also worked for the NTSB, minimized problems with the fuel control parts and blamed the crash on excess weight.

 

Anderson said his most powerful proof was the testimony of young firefighters who had spent days sleeping in tents on the side of the mountain and witnessed the crash - some from inside the helicopter that went down.

 

"They all said the same thing. They said they got about 100 to 120 feet over the trees, they apparently lost power, they heard sounds from the engine and saw it come down quickly," Anderson recalled.

 

He said that the defense failed in its efforts to poke holes in their credibility by arguing that the helicopter never reached that altitude.

 

"They are smoke jumpers. They spent their lives working around trees. They know exactly how tall the trees were. The defenses never scored a point off any of them," Anderson said.

 

Courtroom drama

The grueling trial was also full of drama behind the scenes. In the first two weeks, three jurors suffered medical emergencies. One had a nervous breakdown right after viewing grisly photos of the wreckage, another had a stroke and a third succumbed to a diabetic seizure.

 

The following week, a fatal accident threatened more than just a delay.

 

While lifting boxes in court, Anderson pinched a nerve in his back. His wife and law partner, Jennifer, and daughter Caroline were visiting from their home in Florida to observe trial in Oregon.

 

Because of his back injury, Anderson delayed his cross examination of a defense witness by one day. Caroline wanted to watch her dad in action, so Anderson asked them to stay.

 

The next day, back in Florida, a shooter armed with an AK-47 walked onto Caroline's high school campus and killed two people, including the headmaster, a friend of Anderson.

 

"If I had not pulled my back, she would have been at school that day," Anderson said.

 

There was also some comedy.

 

During the jury deliberations, the trial judge twice caught the defense team with their ears pressed to the wall adjoining the deliberations room, according to Anderson.

 

She drew a line in front of the two entrances to the room telling defense lawyers they were not to go past the line, he said.

 

A mysterious observer in the courtroom who claimed his interest in the trial derived from flying helicopters in the Vietnam War then almost caused a mistrial by asking a juror when they were going to reach a verdict. The incident was repeated when a member of a television crew on the scene during the widely publicized trial asked another juror the same questions.

 

After deliberating for a week, the 12 jurors, who ranged in age from young adults in their 20s to retirees, voted unanimously to award a total of $70.5 million. The breakdown of damages was $28.5 million to Schwanenberg's widow Christine, $37.7 million to Coultas and $4.3 million to Coultas' wife for loss of consortium.

 

Three states, one choice of law

In what is literally a multi-million dollar question, the court will have to grapple with which of three possible states' laws- California, Massachusetts, or Oregon- applies to the verdict.

 

The accident took place in California, but G.E. is headquartered in Massachusetts, and the weight and power data for the helicopter were in the Oregon offices of Carson Helicopters.

 

The jury found that G.E.'s negligence and defective product caused the accident, finding G.E. 57 percent at fault, Sikorsky 20 percent liable and Carson Helicopters 23 percent to blame. Sikorsky settled on the first day of trial, and the judge dismissed Carson from the case.

 

Anderson will argue that based on the jury's finding, Massachusetts law shold apply because G.E.'s wrongful conduct - decisions about the engine and fuel parts- occurred there. He will argue that his clients should not be reduced for the comparitive negligence of nonparties (although under state law the total verdict will be offset by the settlements.)

 

Another reason that choice of law will be heavily contested in that part of the jury verdict included $27 million in noneconomic damages for Roarke Schwanenberg's pain and suffering before he died and for his widow Christine's pain and suffering.

 

G.E. is expected to ask the judge to apply Oregon law, specifically a state law cap on noneconomic damages for wrongful death that would cut the $27 million down to a mere $500,000.

 

Anderson will seek to apply the law of Massachusetts, or in the alternate California, neither of which caps such damages.

 

Plaintiff's Attorney: Gregory A. Anderson of AndersonGlenn in Ponte Vedra Beach, Fla.

 

Defense Attorney: Kevin Smith of Wiggin & Dana in New Haven, Conn.; Scott Brooksby of Brooksby Kaempf in Portland, Ore.

 

The case: Coultas v. General Electric Co.; March 27, 2012; Oregon Circuit Court, Multnomah County; Judge Kelly Skye

 

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