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Recent Developments in Regional Air Carrier Litigation and the Carriers' Exposure to Punitive Damages Under Supreme Court Precedent Michel F

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Recent Developments in Regional Air Carrier Litigation and the Carriers' Exposure to Punitive Damages Under Supreme Court Precedent Michel F Journal of Air Law and Commerce Volume 75 | Issue 2 Article 2 2010 Recent Developments in Regional Air Carrier Litigation and the Carriers' Exposure to Punitive Damages under Supreme Court Precedent Michel F. Baumeister Dorothea M. Capone Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Michel F. Baumeister et al., Recent Developments in Regional Air Carrier Litigation and the Carriers' Exposure to Punitive Damages under Supreme Court Precedent, 75 J. Air L. & Com. 323 (2010) https://scholar.smu.edu/jalc/vol75/iss2/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. RECENT DEVELOPMENTS IN REGIONAL AIR CARRIER LITIGATION AND THE CARRIERS' EXPOSURE TO PUNITIVE DAMAGES UNDER SUPREME COURT PRECEDENT MICHEL F. BAUMEISTER* DOROTHEA M. CAPONE** I. INTRODUCTION carri- crashes involving domestic air S EVENers that OF resulted THE last in passengereight fatalities involved commuter or regional airlines.' Although the Federal Aviation Administra- tion (FAA) called for "a single level of safety across the aviation industry in 1997,"2 in reality, the operational differences be- * A renowned trial attorney for more than 35 years, Mitch Baumeister has concentrated his practice in the field of aviation accident and complex tort litigation. Mitch's career has been dedicated to helping air crash victims and their families receive proper and adequate compensation, as well as to making improvements in aviation safety. He has served as a leading member of the Plaintiffs Steering and Executive Committees formed in every major airline disaster in which the firm has represented victims and their families. Mitch was named a 2009 Trial Lawyer of the Year by the Public Justice Foundation for his work as a lead attorney in the deadly December 21, 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland in which more than $500 million was recovered from the airline's insurers and an unprecedented $2.7 billion dollars was paid by the Libyan government to the victim's families. ** Thea Capone, a partner in the firm, has been part of Baumeister & Samuels since its inception and has worked with Mitch Baumeister for 30 years. She has been involved in every major case handled by the firm. Thea is a member of the Southern Methodist University Air Law Symposium Board of Advisors. She also serves as the National CLE Program Coordinator, and is a member of the CLE Board for the Tort Trial & Insurance Practice Section of the ABA, as well as the past Chair for the Section's Aviation & Space Law Committee. Thea has worked as a member of the Planning Committees for several nationally recognized aviation programs and has judged a number of ABA Law Student Division competitions. 1 Andy Pasztor & Susan Carey, Commuter Airlines: Questions of Safety, WALL ST. J., Dec. 1, 2009, at Al. 2 Id. The Single Level of Safety FAA directive is also known as the "Commuter Rule." See Operating Requirements: Domestic, Flag, Supplemental, Commuter, 323 324 JOURNAL OF AIR LAW AND COMMERCE [75 tween the major carriers and those of the regional operators stand in stark contrast to that mandate.3 Safety-related incidents and deadly crashes, including many in which flight crews lost situational awareness, occur significantly more often at regional airlines flying turbo-propeller and smaller jet aircraft than at major air carriers flying largerjets.4 One reason for the discrep- ancy between regional and major air carriers is relatively simple but probably shocking to the uneducated flying public. Some of the most difficult flying is being done by regional airline pilots who often have the least amount of flying experience.' As re- cently as eight to nine years ago, regional carriers such as Pinna- cle Airlines required pilots to have at least 1,500 hours of flight time prior to being hired.' When the major carriers' demand for service grew and competition amongst regional airlines for that business increased, Pinnacle, like many other regional oper- ators, cut its requirements for new hires to 250 hours.' Other carriers sought to fill pilot voids by seeking out new hires from flight schools that are unaccredited or those that had a history of fines and infractions in connection with their training, and/ or record-keeping practices.' Another factor contributing to the disparities in safety-related crashes and incidents is the fact that regional air carriers operate shorter routes.' As a result, their pilots may be required to takeoff and land, the most diffi- cult parts of any flight, as many as six or eight times in a twenty- four hour period.1 0 Additionally, due to the typically short flight duration, regional pilots are often required to fly through diffi- and On-Demand Operations: Editorial and Other Changes, 62 Fed. Reg. 13248, 13248 (Mar. 19, 1997) (codified at 14 C.F.R. Part 119). This rule required all 14 C.F.R. Part 135 operators to transition to the safety standards set out in 14 C.F.R. Part 121 by Mar. 20, 1997. See id. 3 Pasztor & Carey, supra note 1. 4 Id.; see also Press Release, Nat'l Transp. Safety Bd., SV-09-13, Aviation Acci- dent Statistics for 2008, Show 'Mixed Picture' (Apr. 2, 2009), available at http:// www.ntsb.gov/pressrel/2009/090402b.html. 5 Pasztor & Carey, supra note 1. 6 Id. 7 Id. 8 Id. 9 Id. 10 See discussion infra, Part C.I., regarding the crash of Corporate Airlines Flight 5966. The flight crew operating that aircraft was originally scheduled for eight flights on the day of the crash. See NAT'L TRANsP. SAFErv BD., AIRCRAFT ACCIDENT REPORT, NTSB/AAR-06/01, PB2006-9104016 (2004), available at http:/ /www.ntsb.gov/Publictn/2006/AARO601.pdf. 2010] RECENT DEVELOPMENTS - AIR CARRIER 325 cult weather conditions unlike pilots flying larger jet aircraft who have the luxury of flying above rain, ice, or snow.1' Regional airline scheduling practices also impact the ability of pilots to safely operate their aircraft.12 Since these carriers typi- cally fly passengers from smaller regional airports' 3 to an air- line's hub location, many flights are set to depart in the pre- dawn hours to meet transfer connections and land back at the regional airports late at night after having connected through larger hub airports. Many regional pilots commute to duty ba- ses to report for work by first flying in from their homes, which are typically located hours away.' 4 Pilot fatigue leading to a lack of situational awareness has been cited as a contributing factor in many recent commuter airline crashes.' 5 Finally, regional air- lines compensate their pilots with a shockingly low rate of hourly pay, in some instances paying first officers sitting in the right seat of their planes less than $25,000 per year.'" It is pain- fully obvious that this level of compensation, which is somewhat equivalent to workers employed in the fast-food industry, does not permit pilots to maintain "crash pads" near their bases of operation, which was common practice during the 1970s, '80s, and '90s.17 While all of these are critical issues that the industry and governmental regulators must address, the real question is what precipitated these issues. The short answer, unfortunately, is economics.'" The Regional Airline Association-the business interest and lobbying arm of the commuter segment of the aviation indus- try-reports that the number of passengers flown by regional carriers increased from approximately 82 million in 2000 to 159 million in 2008,19 comprising more than 50% of all domestic 11Pasztor & Carey, supra note 1. 12 Dan Weikel, Are Pilots Flying Beyond Their Limits?, L.A. TIMES,Jan. 17, 2010, at B1. 13 Pasztor & Carey, supra note 1. 14 Weikel, supra note 12. 15 See Stephanie Chen, PilotFatigue is Like 'Havingtoo Much to Drink', CNN.com, May 15, 2009, http://www.cnn.com/2009/TRAVEL/05/15/pilot.fatigue.buffalo. crash/index.html. 16 See Pasztor & Carey, supra note 1. See also Joshua Rhett Miller, Low Pay One of Many Difficulties Facing Regional Pilots, Fox NEWS, May 13, 2009, http://foxnews. com/story/0,2933,520097,00.html. 17 See generally Steve Dennis, Crash Pads!, AIRLINERS.NET, Aug. 28, 2006, http:// www.airliners.net/aviation-articles/read.main?id=97. 18 See, e.g., Weikel, supra note 12. 19Regional Airline Association, 10-Year Industry Statistics, http://www.raa. org/portals/0/industrystats/trafficstatistics.png (last visited Apr. 9, 2010). 326 JOURNAL OF AIR LAW AND COMMERCE [75 airline flights.2 o As of July 2009, the regional airlines' fleet of aircraft included more than 2,400 turbo propeller and jet air- craft, carrying an average of 54 passengers per flight in 2008.21 These carriers service more than 650 U.S. airports, including 476 where only regional air service is available.2 2 The excep- tional growth in regional airlines over the last decade has arisen as the major air carriers sought out new ways of doing busi- 2 ness. ' By outsourcing flights to regional carriers, the major air- lines are able to substantially lower their operational costs. 2 4 The major carriers market and sell tickets under their own brand and generally retain the revenue received from ticket sales.25 To provide the actual flights, they enter into contracts with regional operators to service particular airports or routes, paying the regional operators for these services under the terms of contractual agreements. 26 While this type of operation may benefit the carriers, it has left the flying public seriously at risk.2 7 Discussed below are a number of air disasters involving re- gional carriers that have revealed the many deficiencies and fail- ures inherent under the current regime.28 20 See Regional Airline Association, RAA-Home, www.raa.org (last visited Apr.
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