BNA Product Safety & Liability Reporter

Christopher Brown

BNA,Inc

1/01/2001

1. LOUIS-A Missouri jury Jan. 16 awarded $4 million to the family of the late Missouri Gov. Mel Carnahan (D) against the maker of vacuum pumps that powered flight instruments on the plane that crashed October 2000 (Carnahan v. Parker Hannifin Corp., Mo. Cir. Ct., No. 00-CV-230733, verdict 1/16/04).

Carnahan was killed in the crash along with his son Randy Carnahan, the pilot of the plane, and a campaign aide, Chris Sifford, while traveling in the evening in poor weather to a campaign stop in southeastern Missouri. At the time of the crash, Carnahan was in a hard fought campaign for the U.S. Senate against then Sen. John Ashcroft (R).

The family claimed that the crash occurred because two vacuum pumps malfunctioned, leading to the failure of flight instruments that were critical to Randy Carnahan’s ability to fly the plane in poor weather. The family also charged that the maker of the pumps, Parker Hannifin Corp., had long known that its pumps were subject to catastrophic failure, but kept selling them until shortly before the Carnahan crash.

Parker Hannifin claimed that its vacuum pumps were not at fault, citing evidence from a report on the accident by the National Transportation and Safety Board suggesting that the vacuum pumps were operating at the time of the crash. The company said that the crash occurred because the pilot became disoriented in the darkness and poor weather. Also contributing to the crash was the failure of a critical flight instrument, the attitude indicator, which would have helped prevent the pilot from becoming disoriented if it had been working properly.

The jury awarded the family $3 million for the death of Gov. Carnahan, and $1 million for the death of Randy Carnahan. After offsets for settlements between the family and other defendants, including the maker of the attitude indicator, Parker Hannifin will pay around $2.5 million, the company said in a statement.

NTSB Investigation

The family attorney, Gary Robb of Kansas City, told BNA Feb. 4 that the “critical challenge” of the case was overcoming the results of the NTSB investigation, with its conclusion that the vacuum pumps had been working at the time of the accident.

“Normally that kind of evidence is insurmountable,” he said. “And the defendants pointed to it at every occasion.”

To counter the NTSB study, Robb said he used the testimony of experts who examined the physical evidence left at the scene and who were able to provide the basis for a “powerful circumstantial case” that the vacuum pumps had not in fact been working.

Robb also said the jury’s verdict completely absolved Randy Carnahan of responsibility for the crash, and indicated that the issue of offsets had not yet been fully litigated.

In its statement, Parker Hannifin said, “The verdict was returned despite the facts presented in court – including those from an 18-month, exhaustive investigation by the National Transportation Safety Board…and its conclusion that Parker’s pumps were working on Carnahan’s plane.”

The statement also noted that the jury awarded the family $4 million after the family had asked for more than $100 million in damages.

Calling the jury’s decision a “compromise verdict,” Parker Hannifin’s attorney Mitchell Kallet told BNA Feb. 3 that the NTSB study proved less compelling in court than might have been expected at first glance because the conclusions of an NTSB study are not admissible in court.

“We were able to bring in the factual findings of the NTSB, but not the conclusion that the pumps were working,” he said. “We had to make that argument on the basis of our own experts.”

A lawsuit against Parker Hannifin filed by Sifford’s family is pending, Kallet said.

The Accident

According to the lawsuit, the accident happened as the Carnahans and Sifford were traveling in the evening in poor weather from the St. Louis area to New Madrid, Mo., about 145 miles south of St. Louis.

Shortly after take-off, Randy Carnahan reported to air-traffic controllers that he was having problems with the primary attitude indicator, an instrument that shows the position of the aircraft relative to the horizon and which is especially important to the control of the plane in conditions of poor visibility.

Over the next 10 minutes, Randy Carnahan requested permission to change course to Jefferson City, Mo., located around 100 miles west of St. Louis, and continued to report instrument problems. At around 7:32 p.m., the plane was lost from the radar screens.

Despite the conclusions of the NTSB study, the physical evidence left behind at the crash scene clearly supported the claim that the crash occurred because of the failure of the vacuum pumps, which led to the failure of the attitude indicator, Robb said.

Robb said there was no one “smoking gun” piece of evidence that pointed to vacuum-pump failure, but rather a constellation of physical evidence and inferences from the evidence that pointed to such a failure.

More than 50 witnesses were called in the case, and thousands of exhibits were presented, he said.

In the lawsuit, the plaintiffs argued that Parker Hannifin’s vacuum pumps had a long history of failing, and that numerous fatalities were attributable to such failures.

And Parker Hannifin was well aware of the problems with the pumps, as was evidenced by a 1986 service letter from the company to owners and dealers indicating that the pumps could fail without warning, they alleged.

But that service letter was “inadequate and insufficient on its face” because it failed to explain where the problem lay or how to fix it, the lawsuit said. And the company also made a conscious decision not to recall or retrofit the pumps, and continued selling them.

Further, the company withheld from the Federal Aviation Administration critical information about the reliability and failure rate of the pumps, the lawsuit said. And the company also tried to get the FAA to make backup pump systems mandatory on the plane, which the plaintiffs dismissed as little more than an attempt by the company to double the size of its market.

Plaintiffs Identity Design Flaws

In the lawsuit, the family also identified a number of design defects in the Parker Hannifin pumps. These included the use of overly brittle material for the pumps’ shafts and vanes; lack of a failure-warning system; use of an improper brazing process to join metal parts in the pumps; and a design that allowed abnormal loading and excessive wear on some parts.

The pumps also were not designed to allow an inspection that would detect wear and predict impending failures, the lawsuit said.

The plaintiffs brought claims of strict liability/defective design, strict liability/failure to warn, negligent design, negligent failure to warn, and also sought punitive damages.

Among the plaintiffs was Carnahan’s wife Jean Carnahan, who stepped into the Senate race in place of her husband, and who defeated Ashcroft that November. Ashcroft went on to become U.S. Attorney General.

Sen. Jean Carnahan was then required to stand for re-election in November 2002, when she was defeated by James Talent (R).

Robb is a member with Robb & Robb in Kansas City.

Kallet is senior counsel with Kern & Wooley in Hartford, Conn.