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Clifford's Notes, Chicago Lawyer, 07/01/2009
By Robert A. Clifford

Three days of public hearings.  Twenty witnesses testifying.  Excruciating facts emerge for the families who lost loved ones in the crash of Continental Connection Flight 3407.  A nation mourns the deaths once again as mistakes, oversights, carelessness, and poorly designed and implemented systems were recounted by those responsible for the Feb. 12 crash near Buffalo, N.Y.

What should have been a routine Newark-to-Buffalo transfer in weather that is typical for the Northeast in February instead became an out-of-control disaster as the aircraft pitched up, rolled rapidly from one side to the other, then entered a steep, descending turn and crashed into a house, killing everyone on board and one more person in the house.

The National Transportation Safety Board public hearings in May revealed the story of a tragedy that could have been avoided:

Inexperienced, poorly trained, and fatigued pilots;

Startling low pay and lack of company sleeping quarters that contributed to crew members habitually jump-seating on overnight cross-country commutes to get to their bases in time;

Lack of monitoring by the airlines to enforce duty time and rest regulations;

Failure to install previously recommended low airspeed alerter systems that would give pilots greater aural and visual warning;

Failure to implement NTSB recommendations to disconnect the autopilot when flying in icing conditions on a de-ice-boot-equipped airplane;

Erroneous tailplane stall recovery information in the flight manual;

Violations of sterile cockpit rule when undivided attention was required during an approach to land in icing conditions;

Lack of enforcing industry-standard safety programs.  The list goes on and on.

Although Federal Aviation Administration officials have studied many of these issues over the past several years, they did not act.  Further, the “one level of safety” that the FAA claims to have established between regional and major air carriers clearly is not true.

Colgan Air – its management, its airplanes, and its pilots – is a low-budget, entry-level operation compared to Continental Airlines, the major airline whose livery is deceivingly painted on the side of the Colgan plane.

When a passenger buys a ticket on Continental Airlines, he or she probably doesn’t know Colgan Air is operating the flight, and, even if that were known, there is no practical way to question the relative safety to the two airlines, the standard of training they require of their crews, or the safety equipment on-board the aircraft.

Passengers shouldn’t have to worry about these issues – they should be assured of getting safely from point A to point B.

It is clear that a number of entities failed the passengers on that flight.

And although the hearings assembled many decision makers for the safety of passengers, it actually raised many more questions.  “I don’t know,” someone else “is in charge of that,” or it’s “something we are going to start doing” – answers given by Colgan and FAA staff at the NTSB hearing – just doesn’t cut it.  With lawsuits pending, discovery and cross-examination will uncover a great deal more.

Family members deserve the whole story.  And as they wait up to a year for the report and recommendations of the NTSB in this crash, this painful journey demonstrates that family members can make a difference.

U.S. Senators Olympia Snowe (R-Maine) and Barbara Boxer (D-Calif.) Have vowed to garner bipartisan support for legislative amendments that focus on initiatives I proposed in letters sent to the NTSB and FAA on behalf of the families of the victims who I represent.

These initiatives ask these agencies to look more carefully into why low airspeed alerters recommended by the NTSB and the industry, and installed on many modern jet airplanes, were not installed on the Bombardier Dash 8-Q400 that was involved in this crash.  At this writing, the Senate Aviation Subcommittee is scheduled to hold hearings June 10 and 17 in Washington, D.C.

Experts have said that the installation of low airspeed alerter systems, which provide aural and visual warnings when pilots slow below specified safe speeds – such as maneuvering and approach speeds – and are found on jets such as the Boeing 777 and Airbus models, would have prevented this tragedy.

Under NTSB questioning as to why the accident airplane didn’t have this type of system, the answer was simply that it was decided not to install one during the design and manufacturing process at Bombardier.

Are families of those killed on Flight 3407 angry?  You bet, and rightfully so.

Is the flying public fearful of getting on regional airplanes with their lesser pilots and safety systems?

That refrain certainly is being heard from coast to coast, especially in light of the fact that the nation’s regional airlines are accounting for nearly half of the country’s flights and a quarter of its passengers.  The results of this investigation and the changes that may result won’t bring back the loved ones of Flight 3407, but they may help assure that their deaths were not in vain.

ATTORNEYS

Robert A. Clifford