NEARLY THREE YEARS LATER


Monday, July 30, 2001 Back The Halifax Herald Limited

Swissair lawsuits slowly working through the courts

 

 
By Lois Legge / Staff Reporter

Almost three years after a Swissair jet crash killed 229 people off Nova Scotia, relatives' lawsuits against the airliner are still working their way through the courts.

While many European plaintiffs have settled with the airline company and manufacturers on compensatory damages, mediation continues for American relatives and some cases may end up at trial.

New York lawyer Mitch Baumeister, who represents about 22 relatives of the victims, says the timeline on the cases isn't unusual for a crash of this scope.

All 229 people aboard the Boeing MD-11, flying from New York to Geneva, died when the jet plunged into St. Margarets Bay on Sept. 2, 1998.

Mr. Baumeister was a lawyer for families killed in the 1988 Pan Am Flight 103 crash after the plane exploded over Lockerbie, Scotland, killing 270 people. But no lawsuits were settled in that case until 1995, he said.

He also represents families of the July 1996 crash of TWA 800 that exploded minutes into a flight from New York to Paris, falling in pieces to the Atlantic Ocean and killing all 230 people aboard. Lawyers are just in the middle of settling many of those cases, he said, "so Swissair in that sense is probably average."

Mr. Baumeister said of the 22 clients he's represented, eight to 10 are European citizens. They've all settled with Swissair, Boeing (which merged with the plane's manufacturer McDonnell Douglas before the crash) and the manufacturers of a controversial inflight entertainment system, he said.

About 25 per cent of the American relatives he represents have settled too, while discovery, mediations or arbitrations are ongoing for others.

"I believe some additional cases will settle, and some cases will have damage trials in the next year or so," said Mr. Baumeister, of the New York law firm Baumeister and Samuels.

Lee Kreindler, of the New York law firm Kreindler and Kreindler, chief counsel in the Lockerbie and TWA lawsuits, has the largest caseload of the roughly 200 relatives who've sued in the Swissair case.

He says about three-quarters of his 82 clients have settled, including most, "if not all," the European clients.

A Federal Court judge's decision to delay ruling on Swissair's bid to have those cases transferred back to Europe was a turning point for the non-American relatives, says Mr. Baumeister.

If they didn't settle, they risked having their cases heard in Europe, where damage awards have traditionally been smaller.

"The judge created an environment for negotiations in the foreign cases by holding the decision over our heads," Mr. Baumeister said.

All the cases have been centralized under Chief Judge James Giles of the U.S. Federal Court in Philadelphia, although it isn't a group lawsuit. Compensatory damages are being assessed on an individual basis, taking into account the survivors' financial dependency upon the relative who died, and loss of the decedent's care, comfort and companionship.

Mr. Baumeister said the judge has taken punitive damages off the table to date. The plaintiffs' lawyers have been denied discovery on the type of information - such as technical and maintenance records - they need to move forward.

The judge has also forbidden the parties from revealing the individual settlement amounts and Mr. Baumeister said he couldn't provide an average of the sums granted so far.

Mr. Kreindler, who helped win the record $550 million US for 97 families of relatives killed in the Pan Am crash, has previously predicted the Swissair lawsuits could top that amount.

In the meantime, Mr. Baumeister says he's keenly interested in the Transportation Safety Board of Canada's final report into the Flight 111 crash. The board has said that report isn't likely to be delivered until next year.

Under American law, such agencies' conclusions about what caused a crash can't be used in court. But Mr. Baumeister said lawyers can still tap into factual information they gather, using it as a starting point to discover whether companies knew about but failed to address safety problems.

Crash investigators have honed in on the jet's wiring after finding scorched pieces of the plane's general purpose Kapton wiring and wires from the inflight entertainment system. But they still haven't determined if the wires sparked the fire in the ceiling of the cockpit or were burned by fire from another source.

"It (the report) may have an impact absolutely because there are some lawyers like myself who believe the airline system is about more than simply writing families a cheque," Mr. Baumeister said.

"We have the additional responsibility of trying to make, for the families' sake, some changes in aviation safety through the litigation system.

"So I believe that the wiring problems of the MD-11 and the inflight entertainment system wiring hookup is a very serious problem . . . and is something that we are still asking the judge to let us go forward on to determine whether or not there is any punitive damages here.

"But unfortunately the judge has cut off our efforts to do that."

He said the relatives who have settled can't pursue punitive lawsuits, which would likely be primarily against manufacturers.

Both Mr. Baumeister and Mr. Kreindler said their clients understand the length of time that has passed without a final report.

"I think they view the activities of the investigators as being a careful, sincere effort to get to the bottom of it," Mr. Kreindler said.

Mr. Baumeister said the families he represents "universally praise" the board's efforts.

He added that as a pilot himself for the past 40 years and someone who's worked with many investigative agencies throughout the world on crashes, he commends the board for "first-rate" work.

"(Lead investigator) Vic Gerden has done a sensational job in getting safety information out into the public arena and trying to make changes regardless of what the ultimate conclusion is, if there is one," he said.

Despite repeated requests last week, Swissair didn't provide information on the total number of lawsuits settled.

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