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Aviation litigation -- no fear of flying

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How many legal practices offer the chance to explore professionally what you enjoy doing personally? Thankfully, a good part of our practice does. For those who love airplanes and flying, aviation litigation offers that opportunity.

Don Rushing (left) and Jim Huston

Morrison & Foerster's aviation team, seated, from left: Linda Lane, Bill O'Connor, Erin Bosman; middle row, from left: Joanna Herman, Ellen Nudelman, Kristina Swanson; top row, from left: Kimberley Conklin, Jim Huston, Don Rushing, Jessica Ederer, Joni Delucchi, Bill Janicki.

We both were trained to fly before law school. Jim Huston became a private pilot in college, then flew in the Navy as an F-14 back seater and TOPGUN graduate; Don Rushing learned to fly through the Air Force while at the Air Force Academy. Once aircraft carrier deployments and life in the military got old, we got restless and went to "Plan B" -- law school. As we entered private practice, we were blessed to be mentored by and work alongside Judge Rudi Brewster, a former Navy pilot and aviation litigator; Judge Jim Stiven, a former Marine who knew his way around air crash cases; and Denny Schoville, a former Army helicopter pilot. Over more than 25 years of practice, aviation litigation has allowed us to handle interesting, complex product liability cases in an area we have a passion for: airplanes and flying. We still fly around the neighborhood on weekends, but leave the real flying to others.

The Morrison & Foerster Aviation Team consists of a dozen lawyers and paralegals handling the defense of all manner of aviation cases on a national -- and sometimes international -- basis. The members of the group are very active in the U.S. aviation bar, a relatively small group of practitioners who generally get along well together. For example, Rushing serves as one of six members of the SMU Journal of Air Law & Commerce Board of Advisors, Huston and other members of our group have published articles in the journal and spoken at the annual SMU Air Law Symposium, the nation's leading aviation law meeting. And aviation law isn't an all male bastion; half of our lawyers are women.

We typically represent aviation manufacturers, airlines, operators and airports in lawsuits arising out of their operations. Much of the work comes through a handful of domestic and international aviation insurers, and interaction with the European insurance markets is commonplace. Perhaps the only drawback to the practice is that our cases tend to be filed in other jurisdictions. We don't get to see as much of San Diego courtrooms as we would like, and tend to spend more time riding in the back of airplanes than we would prefer, but the cases are challenging and varied. One day you might find yourself traipsing around the desert looking for aircraft wreckage to reconstruct an accident. The next day you might find yourself in a foreign court listening to a translation of the proceedings. Here are some of the things we're currently working on:

Military aviation accidents

Most lawyers correctly assume a member of the military can't sue our government for injuries suffered in the line of duty, but that doesn't mean there isn't product litigation that flows from military air crashes. We're currently defending a component manufacturer in the crash of an Apache helicopter near Tikrit, Iraq, in suits filed in Los Angeles. Cases like this bring home in personal terms the stories we read about in the paper each morning.

International air disasters

While domestic commercial air disasters are rare, that isn't as true internationally. We defended an airline involved in the Silk Air crash near Palembang, Indonesia, in multidistrict litigation pending in Seattle, and we are defending a component manufacturer in the Flash Airlines litigation pending in Bobigny, France, arising out of the crash of a Boeing 737 near Sharm El-Sheikh, Egypt. Sometimes, an airline doesn't belong in the case at all, and we're able to get the case dismissed, as we did in the Silk Air crash. Often the cases start out in the United States, but can be dismissed and sent packing to foreign jurisdictions on forum non conveniens motions, as happened in the Flash Airlines case. When they are, we follow the case and "instruct" foreign counsel on the handling of the matter.

General aviation accidents

More frequently, aviation litigation comes from the operation of smaller aircraft operated by private owners, air cargo operators or commuter airlines. Right now, we're defending a series of cases pending in Alaska, Utah, Idaho, Texas, Ohio, Illinois and Alabama and multidistricted in Kansas City. Our client is an airframe manufacturer. The common theme of the cases is accidents occurring in icing conditions. Sometimes, homebuilt aircraft are involved. We're defending the estate of a former TOPGUN pilot who crashed his homebuilt airplane into a house. The challenge there will be to find out how an experienced pilot of high-performance aircraft suddenly lost control of a small, simple aircraft. We also are defending a helicopter tour operator who lost one of their aircraft in a crash near the Grand Canyon under very unusual circumstances.

Airline operations claims

Sometimes we're called upon to defend airlines in claims arising from their operations. In the Post-9/11 era, these claims frequently arise out of security measures directed by the FAA or TSA. For example, we will take a case to trial in Las Vegas federal court this summer brought by a group of Egyptian passengers who were removed from a flight from Vancouver to Las Vegas after the plane was diverted to Reno -- a case of "air rage meets airline security." More frequently, claims come from the (ab)normal operation of the airline, such as in-flight depressurization events or accidents during flight or in the process of boarding or deplaning where passengers are injured. We just began a series of cases pending in Los Angeles Federal Court that resulted from a rapid depressurization of a commercial airliner in the state of Washington, and just concluded a case involving a personal injury claim by a passenger who was struck by an oxygen bottle during an overseas flight. Although the airlines are under immense economic pressure these days, their safety record is excellent. The challenge in this type of litigation is to sort out the accidents where liability should be assumed as a common carrier from those where others are at fault.

Airport operations claims

We also are retained from time to time by airport operators to defend claims by those injured in accidents on or near the airport. The most recent example is the unfortunate crash of a Cessna Citation at McClellan Palomar Airport in January of this year that claimed the lives of the two pilots and two passengers.

Aviation litigation is a stimulating and interesting way to practice law for those who love aircraft and have a curiosity about what makes them fly -- and sometimes abruptly stop flying. You get to be the investigator and figure out what happened, and if the case goes to trial, which they often do, you have the opportunity to square off against some of the most talented trial lawyers in the country to convince the jury your conclusions are right.


Rushing and Huston are part of Morrison & Foerster's Aviation Team.

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