In the wake of a midair collision over the Potomac River near Reagan National Airport Wednesday, aviation attorneys are emphasizing litigation as a means to enforce accountability and prevent future deaths.
An American Airlines Bombardier jet, which was carrying 64 people, and a U.S. Army Black Hawk Sikorsky helicopter carrying three soldiers collided shortly before 9 p.m. Wednesday. The regional jet was arriving from Wichita, Kansas, American Airlines stated.
Early news reports indicate no survivors.
Robert A. Clifford—founder of Clifford Law Offices and lead counsel in litigation against Boeing in the 2019 Ethiopian airlines flight 302 crash— said litigating to put an end to this type of disaster is imperative.
“When they don’t put skin in the game, how do you force them to put skin in the game?” he asked.
Aviation lawyer Steve Marks has represented victims in major air disasters, including Indonesia’s 2018 Lion Air, which killed 189 people, followed by Ethiopian Airlines crash lawsuits. He stressed the importance of itigation to hold responsible parties accountable.
“Very often, the National Transportation Safety Board does not release information publicly,” Marks said. “It’s often difficult to get the actual transcripts, but in the last couple of Boeing crashes, the foreign governments did, in fact, release the transcripts. The US government has generally not been as open with that kind of information. My strong belief is that it’s not going to be a single actor. I think for something like this to happen, a lot of people have to do a lot of careless things.”
He pointed to cases where lawsuits forced the aviation industry to improve safety measures.
“Boeing initially blamed pilot error,” Marks recalled, referring to the SilkAir Flight 185 crash in 1997. “But a Los Angeles court later put the blame on a tiny part in the rudder.”
That ruling, he said, led to industry-wide changes, costing $4 billion but ultimately improving air travel safety.
Marks, who is also a pilot, emphasized the importance of black box data in determining what went wrong in the moments before the collision, which will help in litigating that case down the line. He also theorized whether the aircraft’s Traffic Collision Avoidance Systems were functioning properly.
“It’s quite curious to me,” Marks said. “This isn’t the first time it’s happened. I represented all the Russian families in the DHL air crash that occurred over German airspace where I sued Honeywell, the Traffic Collision Avoidance System manufacturer, because they used old technology, which had a delay in the TCAS system of seven seconds when there were products that had instantaneous readouts. In other words, the pilots were getting information that was seven seconds stale. So, the pilots were reacting against one another.”
Clifford, meanwhile, called for action.
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“The families will want answers; the flying public deserves answers,” Clifford said. “There is much unknown now, but answers will become available as the black boxes have been retrieved. Given this situation and previous close calls, it is necessary for the FAA to immediately suspend all helicopter flights in the area of Reagan National Airport until this investigation is complete and any and all NTSB recommendations are acted upon,” Clifford said. “I’ll tell you something flashed through my mind this morning. Do you think for one minute that the head of American Airlines would be so upfront and out there right now, but for what went on with [the lawsuits surrounding] Boeing’s [Dennis] Muilenburg?”
Clifford referred to American Airlines CEO Robert Isom’s Thursday morning press conference with reporters, compared to Boeing CEO Muilenburg’s alleged silence, which led to his dismissal amid the airline’s admission of guilt after criminal fraud conspiracy charges.
“Boeing kind of had their heads in the sand until the media started its kicking around. The families went nuts. That’s the kind of nudge that you need at times. That’s one of the positives of litigation because, without it, there’s no penalty. When you eliminate punitive damages, it’s just a cost of doing business to pay off the families in litigation.”
On his air traffic advice, Clifford wanted to be clear, “I think right now there ought to be an avoidance, more than a grounding. I’m not calling for the grounding of the helicopters. I’m calling for an avoidance. … Keep them out of that airspace, you know, preventative, control of that airspace. And they can do that.”
David Bianchi, a plaintiffs’ lawyer and aviation litigator with Stewart Tilghman Fox Bianchi & Cain, highlighted the legal complexities of midair collisions.
“In many cases, the lawyers have to go out as quickly as possible, hire investigators and try to interview witnesses and gather up evidence, Bianchi said. “But in something like this, because of the fact that it’s a plane crash, the federal government is doing the work for you. It will take time to get their reports, but you will eventually get all the details. But in the meantime, the fact that the reports won’t be available for a long time will not dissuade lawyers from filing lawsuits over this, sooner rather than later.”
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Bianchi contrasted this case with the lengthy litigation surrounding the Ethiopian Airlines crash, noting that clear liability targets in a mid-air collision could speed up legal proceedings. “Here you have a mid-air collision. So you know who the target defendants are. It’s either the American Airlines, the federal government via the helicopter, or Air Traffic Control.”
Incredible Rare
Ben Widlanski, a partner at Kozyak Tropin & Throckmorton and active in aviation litigation, emphasized the importance of a thorough investigation before jumping into litigation.
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“It might happen fast. You could legitimately see people suing in the next couple of weeks. That’s one of the problems; they don’t know what they’re suing about.” He also pointed out the unique complications of the case. “As you know, it’s incredibly rare for there to be a commercial crash on American soil. The involvement of a military asset is going to heighten the complication in this matter exponentially.”
Among the victims were American and Russian figure skaters, their coaches, and family members who had been returning from a training camp in Wichita. U.S. Figure Skating and Russian state media have confirmed their tragic losses.
As investigators continue their search for answers, the legal and regulatory aftermath will likely shape aviation safety policies for years to come.