Confidential
Settlement – $5,420,000Judge
Court
Mobile Circuit, AL
Attorneys
Plaintiff
Roger W. Clark
(Signature Resolution)
Defendant
Matthew H. Haberkorn
(Law Office of Matthew H. Haberkorn)
Michael L. Kelly
(Kirtland & Packard LLP)
Experts
Plaintiff
R.T. Southin
(technical)
Richard McSwain
(technical)
Richard G. Snyder
(technical)
Michael W. Griffith
(technical)
Donald Sommers
(technical)
Jack Lipscomb
(technical)
Facts
This report contains 3 combined cases which all arose out of the crash of a small aircraft near Sidney, in New South Wales, Australia on December 22, 1990. The cases were filed together on December 14, 1992, in the Circuit Court of Mobile County, Alabama. The cases were consolidated for purposes of discovery and were scheduled for trial on April 3, 1995. The aircraft, manufactured by Defendants, was participating in a search and rescue mission for another small aircraft that had gone down the previous day. The subject aircraft had 2 pilots and 4 observers on board. The engine failed in-flight, and the plane made a forced landing in heavily timbered terrain called "Tiger Country." The 4 people in the first 2 rows of seats were killed. The 2 passengers in the back survived, but with serious injuries. The Plaintiffs in this lawsuit were the 2 surviving passengers (back row of seats) and the parents of a deceased passenger who had occupied the left middle seat. It was determined post-accident that a connecting rod bolt had broken causing the connecting rod to puncture the crankcase. The ruptured crankcase caused a complete loss of engine oil, and the engine seized from oil starvation. This aircraft had provided shoulder harnesses for the front 2 pilot seats, but had not installed shoulder harnesses for the rear 4 seats. One Defendant had manufactured the engine in 1982, and another Defendant had fitted the engine new to the airframe in 1982. The completed aircraft was exported to Australia where it flew until the date of the accident. The aircraft had been flown for approximately 2,000 hours before the engine was overhauled in 1988 by an aviation repair shop located in Bundaberg, Australia. The repair shop certified that it had overhauled the engine in accordance with one of the Defendant manufacturers' published overhaul instructions. The aircraft was then operated for approximately another 700 hours after the overhaul until the accident on December 22, 1990.
Settlement Discussions
Defendants contend that, before mediation Plaintiffs demanded $40,000,000 and one Defendant (of 2) offered approximately $1,100,000; after 2 days of mediation, this settlement was reached.
Specials in Evidence
$141,921 (surviving female) $36,111 (surviving male) $108,755 (surviving female), $93,189 (surviving male) $1,700,000 (surviving female), $587,510 (surviving male) $31,907 (surviving female), $47,095 (surviving male)
Injuries
The surviving female passenger was a 22-year-old real estate salesperson and sustained the following injuries: Fracture and dislocation of L5-S1 resulting in lower level paraplegia; she was hospitalized for several months and underwent exploratory laminectomy; her cauda equina had been displaced from the spinal canal and the conus medullaris was avulsed requiring open reduction internal fixation; she also underwent an exploratory laparatomy, received physiotherapy (ongoing), underwent psychotherapy (ongoing), and will require periodic treatment of spinal and urological specialists as well as periodic hospitalizations to treat complications from her paraplegia. Plaintiff male passenger was an 18-year-old high school graduate and sustained the following injuries: Lower internal injuries causing the loss of a substantial portion of his large and small intestines through abdominal surgery; facial fractures requiring multiple surgeries; he was hospitalized for several weeks and underwent surgery to his lumbar spine that included internal fixation of a steel rod; future treatment is expected to include psychiatric counseling and pain control guidance. The third passenger was also an 18-year-old high school graduate and died; under the law of New South Wales, Plaintiff parents are not able to claim wrongful death, only a claim for emotional shock, i.e., an abnormal grief reaction, due to the death of their daughter.
Other Information
The specials in evidence are calculated in Australian dollars; a recent quote sets the exchange rate at approximately $1.35 Australian to $1.00 United States; all Plaintiffs are nationals and residents of Australia. Since the law of New South Wales does not recognize wrongful death claims, past or future loss of earnings for the female passenger decedent is irrelevant to the claim. Alabama is a lex loci state and would apply the law of New South Wales on all substantive issues of liability and damages; Alabama laws on procedures and remedies would be applicable. The categories of damages recoverable for personal injury (called "heads of damages" in Australian terminology) were similar, if not identical, to those typically allowed in the United States. New South Wales had also abolished consortium claims, although it was debatable whether the surviving 22-year-old female's spouse's consortium claim could have survived as a remedy under the law of Alabama.
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