Extreme injuries result in extreme verdict: Glasair RG Super 11S, N333HK, accident occurred September 03, 2010 near Lake Elmo Airport (21D), Minnesota

Mark Kedrowski, front, was severely injured in a plane crash in 2010. He and his legal team, from left, Cortney LeNeave, Stephen Watters and Thomas Fuller, procured a $27.7 million verdict from a Ramsey County jury.

A fuel pump like the one involved in a 2010 plane crash was used as evidence in the trial in Ramsey County.

Lying in a field of soybeans near the Lake Elmo airport with his face, head and legs crushed, pilot Mark Kedrowski told first responders that his airplane’s fuel pump had failed. That wasn’t a dying declaration, but it felt like one at the time.

After more than 50 surgeries and a four-week trial in Ramsey County, Kedrowski and his attorneys secured a $27.7 million verdict against Lycoming Engines and Kelly Aerospace Power Systems. Lycoming designed and sold the fuel pump and outsourced its labor and assembly to Kelly Aerospace, which assembled the fuel pump according to Lycoming designs and instructions. Lycoming is liable for the entire verdict under Minnesota product liability law and because it was in a joint enterprise with Kelly Aerospace. Kelly is in bankruptcy and was treated as a non-party tortfeasor.

Kedrowski spent four weeks in a coma and four more weeks sedated at Regions Hospital, and lost 20 percent of his brain and his left leg below the knee. He has been in and out of the hospital since the crash on September 3, 2010, encountering repeated infections and difficulty with his prosthesis. (See below for Verdict By the Numbers.)

His legal team is “amazing,” Kedrowski said. He was represented by Stephen Watters of the Stephen Watters law firm and Cortney LeNeave and Thomas Fuller of Hunegs, LeNeave & Kras. They called each other, and their client, “tenacious.”

Lycoming was represented by Dan Haws and J.P. Gatto of the HKM law firm. Haws made the following statement on behalf of the company: “Lycoming Engines, a division of Avco Corp., is disappointed with the verdict and notes that the case remains in litigation and that post-trial motions are being scheduled. Lycoming Engines will continue to review all of its legal options going forward in order to defend its product. However, Lycoming Engines does not feel further comment is appropriate in light of ongoing legal proceedings.”

Flying half the world

The plaintiff brought the case under design defect and manufacturing and inspection defect theories. Although the attorneys maintained that there was a history of prior defects that were substantially similar to the defects that caused the crash, that didn’t come in because Ramsey County District Court Judge John H. Guthmann found the evidence of similarity or a pattern to be insufficient, Watters said.

The jury found the fuel pump unreasonably dangerous because of a manufacturing defect, that Kelly was negligent in manufacturing the pump, that Lycoming was negligent in testing or inspecting the pump and that Kedrowski was not negligent.

Put simply, the pump failed to deliver enough fuel to the engine so the Glasair II RG single engine plane lost power right after takeoff as it began to climb. The valves did not give enough flow pressure to the fuel, LeNeave said.

Four years of investigation and three years of litigation, albeit overlapping, ensued. There were 18 separate inspections of the airplane by experts all over the country.

Lycoming had a lot at stake. According to its website, Lycoming built its first aircraft engine in 1929 — 23 years after the Wright brothers got their first patent in 1906. Also according to its website, half the world flies with Lycoming and “we build every engine as if we are going to fly it ourselves.”

Sanctionable conduct

According to the plaintiff’s attorneys, discovery was like pulling teeth. Guthmann did enter a sanctions order in August 2014 which ultimately cost defendant Lycoming $338,891.25 in attorney fees, expert witness fees and a $20,000 sanction payable to the court.

The documents that the plaintiff did receive just didn’t match up, LeNeave said. He believes the defendants made only a cursory search and then said they produced everything. Some documents came in late in what he called an obvious effort to gain an advantage, and some appeared after a punitive damage motion, he said. Additionally, he said, “most of these engineers have their own little files,” he added.

Lycoming’s discovery responses were “far short of reasonable,” said Guthmann, although he did not find the company willful or in bad faith. But the company and its lawyers failed to hold employees accountable for the document production or refresh prior searches, the judge said.

“Dumping thousands of documents on a party following the close of discovery and after the deadline to file dispositive motions is simply unacceptable when, as here, the documents were readily identifiable by asking the right employees the right questions or by using databases well-known to Lycoming and its employees. Lycoming’s conduct comes on top of countless assurance prior to the discovery deadline that it fully complied with all of its discovery obligations. These representations were obviously not true,” Guthmann wrote.

Although plaintiff’s counsel were not always perfect, the judge added, the court’s remedy was based on Lycoming’s history of recalcitrance.

Ultimately two of the assembly workers who built the pump testified that it should have been rejected, he said. According to LeNeave, the company has bad equipment, bad testing and sporadic testing. Assembly of the plane was outsourced to various companies so that bad equipment wasn’t spotted, LeNeave said. “The pieces they used to make valves were the bad equipment,” he said.

Additionally, Watters said, the trial exposed some problems with the industry. When small planes crash, the National Transportation Safety Board tends to blame the pilot, Watters said. The NTSB issued a report on this crash based on the FAA and didn’t investigate, he added.

By the Numbers

• Past pain and suffering, disfigurement, embarrassment and emotional distress — $10 million
• Past medical expenses — $2 million
• Past loss of earnings — $1 million
• Future pain and suffering, disfigurement, embarrassment and emotional distress — $6 million
• Future medical expenses — $5.4 milion
• Loss of future earning capacity — $3.3 million

Original article can be found here: http://minnlawyer.com

NTSB Identification: CEN10FA519
14 CFR Part 91: General Aviation
Accident occurred Friday, September 03, 2010 in Lake Elmo, MN
Probable Cause Approval Date: 06/13/2011
Aircraft: KWECH GLASAIR RG SUPER 11S, registration: N333HK
Injuries: 1 Serious.

NTSB investigators either traveled in support of this investigation or conducted a significant amount of investigative work without any travel, and used data obtained from various sources to prepare this aircraft accident report.

The pilot was departing in his experimental amateur-built airplane on a personal cross country flight. Witnesses in the area of the accident reported they observed the low-flying yellow airplane climb over a tree line, pass over the roadway they were on, encounter wind, and then bank. The airplane subsequently descended during the turn and impacted terrain in a field about 1/2 mile north of the departure runway, where it sustained substantial damage to its fuselage. The recorded wind was 19 knots gusting to 28 knots. The pilot sustained serious injuries and indicated that he did not recall anything regarding the accident flight. A postaccident examination of the wreckage revealed no evidence of mechanical malfunctions or anomalies with the airframe or engine.

The National Transportation Safety Board determines the probable cause(s) of this accident as follows:
The pilot's failure to maintain control of the airplane during takeoff with gusty wind conditions, which resulted in a collision with terrain.

HISTORY OF FLIGHT

On September 3, 2010, about 1605 central daylight time, an experimental amateur-built Kwech GLASAIR RG SUPER 11S airplane, N333HK, piloted by a private pilot, sustained substantial damage on impact with terrain during initial climbout from runway 32 (2,850 feet by 75 feet, asphalt) at Lake Elmo Airport (21D), near Lake Elmo, Minnesota. The personal flight was operating under 14 Code of Federal Regulations Part 91. Visual meteorological conditions prevailed at the time of the accident. An instrument flight rules flight plan was on file and was activated. The pilot sustained serious injuries. The flight was originating from 21D at the time of the accident, and was destined for the Pine River Regional Airport, near Pine River, Minnesota.

Witnesses in the area of the accident reported to Washington County Sheriff’s Office representatives that they observed the low-flying yellow airplane. According to the witnesses, the airplane climbed over a tree line, passed over Manning Avenue, encountered wind, and banked. The airplane subsequently descended during the turn and impacted terrain in a field south of 40th Street and east of Manning Avenue.

A Federal Aviation Administration (FAA) Inspector interviewed the pilot in a physical rehabilitation center. The pilot indicated that he did not recall anything regarding the accident flight.

PERSONNEL INFORMATION

The 39-year-old pilot held a FAA private pilot certificate with airplane single engine land and instrument ratings. The pilot held a third-class medical certificate issued to him on February 1, 2010, without limitations. An endorsement in his logbook showed that he completed a flight review on March 2, 2009 and that he completed an instrument competency check on September 3, 2009. The last entry in the pilot's logbook was dated December 18, 2009, and his total recorded flight time was 446.9 hours. A family member supplied a list of flights that the pilot was reported to have taken between January 6 and August 15, 2010.

AIRCRAFT INFORMATION

N333HK was an experimental amateur-built Kwech GLASAIR RG SUPER 11S, single-engine, low-wing, retractable tri-cycle landing gear, two-place airplane, with serial number 2313. A Lycoming IO-360-B1E engine, rated at 205-horsepower, with serial number L-11581-51A, custom built by DeMars Aero LTD, powered the airplane. 

Maintenance records for the airplane were requested and were not located.

METEOROLOGICAL INFORMATION

At 1553, the recorded weather at the St. Paul Downtown Airport / Holman Field, near St Paul, Minnesota, about 240 degrees and 10 miles from the accident site, was: Wind 300 degrees at 19 knots gusting to 28 knots, visibility 10 statute miles, sky condition broken 3,400 feet, overcast 4,300 feet, temperature 16 degrees C, dew point 9 degrees C, altimeter 29.94 inches of mercury.


WRECKAGE AND IMPACT INFORMATION

The airplane wreckage came to rest in a field about one half mile north of the departure runway. Pictures of the wreckage path showed that the propeller separated from the engine and the engine separated from the fuselage. The propeller and engine were found in the northwest portion of the debris field and the airframe in the southeast portion of the debris field. The propeller had chordwise abrasion and leading edge nicks on its blades. The fuselage exhibited deformation and crushing consistent with substantial damage. FAA Inspectors examined the wreckage and did not find any pre-impact anomalies.

TESTS AND RESEARCH

The engine was recovered and sent to a local fixed base operator for a test run. Damaged parts that included a cracked oil sump, a magneto with a broken flange, a fuel injector line, and damaged ignition leads were replaced with exemplar parts. The engine was installed in a test cell and it was observed by the National Transportation Safety Board Investigator In Charge to be operational during the test run. The damaged magneto was mounted on a lathe and it produced spark when the lathe rotated.