September 17, 1997 Legal Eagles

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by	James Gleick
	This article was first published in THE NEW YORK TIMES MAGAZINE (14-Sep-97) and appears here by permission of the author. Copyright © 1997 James Gleick.

About the Author ... James Gleick is the author of Chaos: Making a New Science (Viking Penguin, 1987) and Genius: The Life and Science of Richard Feynman (Pantheon, 1992). Both books were National Book Award nominees for nonfiction in the United States and have been widely translated abroad. A native of New York, Gleick graduated from Harvard College in 1976 and worked for ten years as an editor and reporter for The New York Times. In 1989-90 he was the McGraw Distinguished Lecturer at Princeton University. He collaborated with the photographer Eliot Porter on Nature's Chaos (Viking Penguin, 1990) and with developers at Autodesk on Chaos: The Software. In 1993 he and Uday Ivatury founded The Pipeline, a New York City-based Internet service that pioneered the first full-featured graphical user interface for Internet access from Windows and Macintosh computers. He served as the Pipeline's chairman and chief executive officer until its acquisition by PSINet in February 1995. Gleick now writes Fast Forward, a monthly column on technology and the future, for the New York Times Magazine. He lives in New York with his wife and their son and is at work on another book. You can find more articles by Jim on his web site, Around.com.

Jessica Dubroff died 21 months ago as a very young passenger in the left seat of a Cessna airplane. The pilot, in the right seat, took off in a driving rainstorm, in the thin air of an unfamiliar high-altitude airport, with the fuel-air mixture improperly set and the plane carrying almost a hundred pounds over its certified weight limit. Without ever reaching a safe airspeed, he made a climbing right turn into likely wind shear, lost control of the plane, and plunged into the ground. He, Jessica and Jessica's father, in the back seat, were all killed instantly.

The official accident investigation found no evidence of any problem with the plane or its engine. Still, a group of Jessica's surviving relatives has now sued Cessna and Avco, the companies that built them 20 years earlier — along with the pilot, the owner of the plane, and 100 "Does," or defendants to be named later. In some other universe, this might seem strange. In ours, it's almost inevitable.

In the annals of aircraft litigation, the Dubroff case is almost ordinary. It is distinguished mainly by the confused frenzy in the American press before and after the accident: reporters saying and writing that Jessica was a "pilot," that she "piloted" the plane, and that she was trying to set a "record" as the youngest pilot to fly across the country. There is no such record; no 7-year-old can pilot a plane, legally or factually. The actual pilot was a 52-year-old stockbroker named Joseph M. Reid — mystified by the willing self-hypnosis of so many writers and television commentators. He had told his wife that the event was simply a matter of "flying cross country with a 7-year-old sitting next to you and the parents paying for it."

Jessica had learned to handle the controls of a Cessna Cardinal under limited circumstances, but this is a small part of the set of skills required to fly. She was not at the controls when she died; it was Reid whose wrists, feet and ankles were shattered on impact. She was not capable of making the required preflight calculations of weight and balance and density altitude, and Reid himself apparently neglected to perform these or ignored the results. Fully fueled, the aircraft was 96 pounds overweight even for a takeoff at sea level, where he was accustomed to flying. The airport at Cheyenne, Wyo., had a field elevation of 6,156 feet. Corrected for the barometric pressure, temperature and humidity at the time of the fatal flight, the apparent altitude from the point of view of aerodynamics was even higher: 6,670 feet, meaning that the Cessna would climb slowly at best, and its stall speed would be precariously high.

It was Reid, too, handling the aircraft's radio communications, who failed to check the automated weather briefing before taxiing to runway 30. He made many other basic mistakes, driven by the pressures of media attention, the National Transportation Safety Board speculated. In his rush to proceed into the rain and turbulent wind, he did not even pause for a standard engine run-up and pre-takeoff check. At that point, he probably should have applied carburetor heat to prevent a buildup of ice and certainly should have leaned the fuel mixture for best high-altitude takeoff power, but he did neither.

The rain was pouring down as he took off — rolling on the runway even before clearance came from the tower — and then, close to stall speed, he entered a turn, which would cause a further momentary loss of lift. At this point only a gust of wind or a misjudged pull on the yoke would be needed to trigger the stall-spin that followed.

The plane and its engine had performed as designed through more than 3,000 hours of flight. Even an attorney for the surviving Dubroffs, Michael S. Danko of O'Reilly & Collins in Menlo Park, Calif., doesn't really expect to collect damages from Cessna or Avco. "The thrust of the case is Joe Reid's flying," he says. He hopes to collect from Reid's insurance policy. Yet the law makes it not only possible but obligatory for a plaintiff's lawyer to sue everyone in sight, especially manufacturers with deep pockets.

In the light aviation business, the consequences over the last two decades have been devastating. The manufacture of single-engine aircraft in the United States fell from more than 13,000 in 1977 to fewer than 500 in 1994. Cessna withdrew from the business for a full decade; another major manufacturer, Piper, was bankrupted. Liability litigation is not a bad thing in itself — it has been a force for safety and responsibility. It is possible to describe in a few words a legal system that would discourage frivolous lawsuits while still encouraging worthy plaintiffs to recover damages from negligent defendants: Losers pay winners' legal costs.

In the meantime, the most perverse victim of routine air-crash litigation has been aviation technology itself. Major manufacturers have a strong disincentive to experiment with new materials and radical aerodynamic designs. The few single-engine planes rolling out of American factories this year are little changed from their 20- or 30-old counterparts — less changed than the typical bicycle. Small-scale aviation has thus become one of the peculiar corners of applied science-along with some kinds of biotechnology, pharmaceuticals, pesticides, birth control — where the ever-present threat of litigation suppresses the good along with the bad.

Yet there is genuine technological ferment in the trenches of modern aviation: it has moved from industrial laboratories to home workshops. As the landscape of factory-manufactured small aircraft has diminished, a new homebuilt industry has thrived: planes with bizarre-looking wing and tail configurations, planes made of lightweight carbon fiber and Kevlar instead of metal, planes that fly faster, with more aerodynamic stability and less thirst for fuel than their traditional counterparts.

And when one of these ingenious oddities crashes, there is generally no one to sue but a tinkerer in a garage.