Toxic Cabin Air Litigation Continues to Recirculate Through the Courts by David J

Toxic Cabin Air Litigation Continues to Recirculate Through the Courts By David J. Harrington and Justin M. Schmidt he April 1, 2010, decision to control cabin pressure, ventilation, and temperature. by an Australian appeals These systems use bleed air from the aircraft’s engines Tcourt in East West Airlines or auxiliary power unit (APU). The APU is a relatively Ltd. v. Turner has gained attention small turbine engine normally located in the aircraft within the airline industry and the tail that provides electrical and pneumatic power to aviation legal community because run the heating, cooling, and ventilation systems prior it is the first court worldwide to uphold a damages to starting the engines. “Bleed” air is compressed (and award for health problems resulting from exposure therefore hot) air that is bled off the engines, cooled, to contaminated cabin air.1 The amount of damages and continuously distributed throughout the cabin awarded to the flight attendant in Turner (approxi- to maintain cabin pressurization. Bleed air is mixed mately US$129,000) was relatively small in comparison with recirculated cabin air generally at a 50/50 ratio to damages that have been awarded in other toxic in order to decrease the amount of air bled off the exposure cases, such as asbestos exposure. The signifi- engines. By limiting the amount of bleed air taken in, cance of the Turner decision lies not in the amount of engine and fuel efficiency are increased. However, damages awarded, but in the court’s factual determina- because the recirculated cabin air was originally bleed tion that toxic particles in the cabin air from vaporized air, all cabin air was at one point “bleed” air. engine oil caused long-term adverse health effects. Bleed air should pose no risk of toxic contamination Prior to Turner, plaintiffs in toxic cabin air cases had because the air is drawn from the engines’ compres- been unable to establish a connection between toxic sion section before fuel is added and burned in the cabin air exposure and long-term health effects suffi- combustion chamber. However, faulty engine seals cient to satisfy a court or jury. or overfilled fluid reservoirs can cause engine fluids The possibility of fumes entering an aircraft’s pas- (e.g., engine oil, hydraulic fluid, or fuel) to leak into senger cabin through “bleed” air from the engines is the compression section where the hot compressed not a new phenomenon––such incidences are com- air vaporizes the fluid, causing fumes to mix with the monly called “fume events.” What is new is the possi- bleed air. Standard aircraft air-conditioning systems are bility that, in light of Turner, more courts could begin equipped with high-efficiency particulate air (HEPA) fil- awarding monetary damages for health problems that ters capable of removing dust, bacteria, and viruses but a number of neurologists, researchers, crew members, are incapable of removing engine fluid fumes. Fume and now passengers claim are caused by exposure events are often described as having a gray, white, or to toxins in the cabin air. Airline crew members and blue haze with a foul odor similar to dirty socks. passengers have filed a handful of recent lawsuits in U.S. courts against airlines, aircraft manufacturers, and Toxicity and health effects aircraft component manufacturers, claiming they have Among the chemical compounds that researchers suffered detrimental health effects from exposure to have focused on in examining potential links between toxic cabin air. contaminated cabin air and adverse health effects is This article will address common factual and legal tricresyl phosphate (TCP), which is added to jet engine issues in recent toxic cabin air cases, including the lubricants as an anti-wear agent. TCP is an organophos- Turner decision, the application of the Montreal phate, and, like a number of these esters of phosphoric Convention and U.S. federal and state law to toxic acid, is a neurotoxin. According to one research report, cabin air litigation, possible solutions for reducing all U.S. engine oil manufacturers confirmed that their fume events, and recent legislation concerning cabin products contained between 1 and 5 percent TCP. air contaminants. Researchers are trying to determine whether TCP is responsible for causing what some scientists Aircraft air-conditioning systems David J. Harrington is a partner with Condon & Forsyth LLP in Nearly all commercial aircraft are equipped with New York City. Justin M. Schmidt is an associate at Condon & air-conditioning and pressurization systems designed Forsyth LLP. Published in The Air & Space Lawyer, Volume 23, Number 2, 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. have described as Aerotoxic Syndrome. Aerotoxic passengers’ clothing. Syndrome is not an officially recognized medical diag- Another reason for the lack of consensus concern- nosis, but symptoms claimed to be associated with the ing the presence of toxins in cabin air is the “com- syndrome include blurred vision; headaches; nausea; plexity of the variables” involved in the monitoring coughing; dizziness; vomiting; eye, nose, and throat process, including engine type, type of engine fluid irritation; and loss of memory, balance, and conscious- used, engine maintenance, bleed air system design, ness. These symptoms resemble those associated with air-conditioning system design, type and amount of exposure to certain organophosphates. Dr. Mackenzie any contaminants, and ambient levels of the same.10 Ross, a clinical neuropsychologist at the University When this myriad of variables is combined with College London who has led studies on toxic cabin human variables such as potential underreporting of air, estimates that Aerotoxic Syndrome may affect as fume events, underreporting of symptoms by passen- many as 200,000 passengers per year.2 gers, misdiagnosis of symptoms from toxic exposure, A 2007 study conducted by the U.K. Committee and individual reactions to different types and combi- on Toxicology (COT)3 analyzed data from several nations of toxins, it is not surprising that studies have hundred fume events submitted by the British Airline produced conflicting results regarding the presence of Pilots Association (BALPA) and the Civil Aviation toxins and associated health problems. Authority (CAA). The results of the study were incon- clusive. The COT report stated that “[i]t was not pos- Toxic cabin air litigation sible on the basis of the available evidence . to con- Toxic cabin air claims represent a very small per- clude that there is a causal association between cabin centage of the aviation tort cases currently filed, but the air exposures (either general or following incidents) number of toxic cabin air claims filed represents only a and ill-health in commercial aircraft crews.”4 However, fraction of reported fume events. The number of claims the COT report acknowledged that “an association could rise in the near future as the public becomes was plausible” in a number of incidents based on the more aware of this issue, as more research and testing timing of the fume event and the onset of the health are conducted, and especially if more courts or juries symptoms.5 Association or not, the report advised that begin awarding damages for health problems resulting “it would be prudent to take appropriate action to from exposure to contaminated cabin air. prevent” air contamination incidents.6 As previously mentioned, the New South Wales Several researchers and academics published a Court of Appeal’s decision in Turner11 is the first time joint critique of the COT report, arguing that the COT a court anywhere in the world has upheld damages has close financial ties to the aviation industry, that it for adverse health effects resulting from exposure to ignored and misrepresented data, and that the report contaminated cabin air (the lower court in Turner was designed to minimize the possibility of identify- was the first court anywhere to award such damages). ing any problems.7 The critique emphasized the COT Prior to this decision, plaintiffs in toxic cabin air cases report’s estimate that fume events were reported by worldwide had been unable to prove that their expo- pilots in one in every 100 flights and confirmed by sure to a fume event caused long-term health effects. maintenance in one in every 2,000 flights (these fig- Plaintiffs most likely will examine the Turner decision ures would convert to 289 reported and 14 confirmed for guidance on proving causation. fume events on U.S. flights daily). The critique sug- In 1992, flight attendant Joanne Turner was aboard gested that the actual number of fume events is much a BAe 146 regional jet that departed from Sydney when higher due to pilot underreporting. The FAA recorded a fume event occurred during descent into Brisbane, over 900 fume events between 1999 and 2008, but Australia. The BAe 146 was operated by her employer airline unions have stated that the figures may be low and defendant, the defunct East West Airlines. The due to underreporting.8 fume event lasted approximately 20 minutes, during Numerous cabin air studies, resulting in a wide which time “a thick cloud of smoke” entered the cabin. range of conclusions, have examined whether fume Turner immediately experienced coughing, a burning events expose flight crew and passengers to danger- throat, sore eyes, headache, and, later, a persistent ous levels of TCP or other toxins, such as carbon cough. Her symptoms did not cause her to miss any monoxide.9 One reason for the lack of consensus time from work and her cessation of employment in is the inability to easily monitor toxin exposure in 2002 was not related to her symptoms.

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