Los Angeles jury still out on plane crash verdict
By DAVE DANFORTH Daily Press Staff Writer
The trial in the case of a chartered jet which crashed in Aspen, Colorado in March 2001 pits a plaintiffs’ Santa Monica law firm against a specialized Dallas firm with experience in aviation mishaps. It is lubricated, for both sides, by the promise — or threat — of punitive damages.
But for the lure of big money, the case likely wouldn’t have probed the details of the incident, in which a Gulfstream III jet carrying 15 party-goers from LA to Aspen crashed in a fireball after becoming lost in its final seconds in temporarily blinding snow.
Because of an opportunity in California law, the largest money award in the wrongful death case revolves around one question everybody would just as soon ignore: Whether death came instantly to those on the plane, or if there was a split second between the time the jet’s left wing clipped the ground and the two jet-lengths it traveled at 177 miles per hour before exploding.
However, the lawyers don’t agree on that time frame. It is 1.08 seconds if you believe Santa Monica lawyers Brian Panish and Kevin Boyle, and.7 seconds if you follow the calculations of Marty Rose. Rose, of Rose Walker LLP, represents Avjet, the charter firm which operated the jet.
The split-second theory is critical. California law doesn’t allow punitive damages in wrongful death cases unless there is a “survivor’s action,” or theoretical damages or injury which occurred before death. Nine of the 12 jurors hearing the case also would have to agree that Avjet acted with “malice and oppression” to award exemplary damages in the case.
The families of 11 other passengers on the plane accepted settlements before trial. But two families pressed further, including the parents of Fox 11 researcher Marissa Witham, who was killed in the crash. Both her father and brother were pilots for Continental Airlines. Witham used to work for CityTV, Santa Monica’s independent news channel 16.
Panish, representing the Withams, portrayed Avjet as reckless. The company put customer service before safety, he argued. The company didn’t adequately check the backgrounds of the pilots before hiring them, created an atmosphere in which they put themselves under pressure to beat the Aspen landing curfew, and allowed the pilots to be pressured into a fatal approach into a swirling, potentially blinding, snow storm, the lawsuit alleges.
“The trial proved Continental General placed profits above safety,” — proclaimed the law firm of Greene, Broillet, Panish & Wheeler in celebrating its victory
The argument is familiar for Panish. He represented a 28-year-old woman rendered a quadriplegic by a 1996 tire tread-separation on her way from Los Angeles to Las Vegas. The case, against Continental General Tire, produced a $55.32 million jury award in April 2001 and was later settled.
Panish also represents families involved in the January 2000 crash of Alaska Airlines flight 261, an MD-83 which plunged into the Pacific off Point Mugu, Calif. after a tail-stabilizer failure. He was pitted for a time against Rose, the defense attorney in the Avjet case, until Rose’s client got out of the case.
Panish, who claims the National Law Journal’s designation of one of the top 10 U.S. trial lawyers in 2001, also is involved in the 2000 Taiwan crash of a Singapore Airlines plane, as well as the mishap which killed the singer Aaliyah.
His partner, Kevin Boyle, represents the grandmother of two brothers killed in the Aspen crash. He argued the split-second theory to the jury Friday in Superior Court in downtown Los Angeles.
“The evidence showed that this was a wild ride, not a mere bump,” he said of the moment after the plane’s left wing clipped the ground as pilots desperately tried to power up and start a missed approach procedure after losing sight of the Aspen runway.
Rose, to believe Panish, is a Texas sharp-shooter whose specialty involves traveling around the country defending aviation firms in the types of cases Panish and Boyle bring. Indeed, Rose’s law firm boasts a mantle as “trial lawyers for business people.” In one wrongful death aviation case, his firm’s offer of $2 million at mediation was turned down by a plaintiff demanding $7 million. The case settled for $1 million on the eve of trial, according to the history of Rose’s firm.
Rose has argued that Avjet is no where near the rogue outfit portrayed by Panish and Boyle in the case. The mishap was a “terrible tragedy” and Avjet admits liability, Rose notes.
“Experienced people err in judgment, but it’s still an accident,” Rose argued, adding that pilots Bob Frisbie and Peter Kowalczyk didn’t intend to hurt anyone.
If jurors don’t conclude that they need to punish Avjet, they can compromise by awarding high compensatory damages. Panish asked for $3,500 per day for the remaining life expectancy that each Witham parent will be without their daughter, or a total of about $14 million. Boyle asked another $5 million for his client, the Mexican grandmother of crash victims Jose and Joseph Aguilar.
Rose suggested a total of $2 million at his closing argument. The jury is deliberating this week in the case.
Originally published in the Santa Monica Daily Press print edition on July 1, 2003. Read the original PDF.