By MATT CHANDLER
Buffalo Law Journal

It was nearly one year ago that Colgan Air Flight 3407 fell from the sky on its approach to Buffalo Niagara International Airport, crashing in Clarence Center and killing 50 people. For the families of those who perished, the search for answers has been slow and frustrating.

The National Transportation Safety Board has yet to release its final report on the crash, and with nearly three dozen lawsuits filed, the legal process is still in the early stages.

There is hope that once the NTSB does release its report, the civil cases will gain momentum. Hugh Russ III, a partner with Hodgson Russ LLP, is the plaintiffs' liaison in the case and also represents several families who lost loved ones on Flight 3407.

Though it may seem that not much has happened since the Feb. 12 crash, Russ says progress is being made on the legal front.

"It took us a little bit longer procedurally and logistically to get going in 2009 than I thought it would, but I think things are starting to move quickly in 2010," Russ said. "The judge has set an ambitious schedule for discovery, so I think 2010 is going to be very busy. The way it's set up now is that all discovery and pretrial proceedings will be managed out of Buffalo. It is currently contemplated that the cases filed in places like New Jersey, Texas, Florida would return there for trial, each in its original forum."

Russ still believes the cases are a long way from either trial or settlement, with Hon. William Skretny - the federal judge overseeing all of the cases under a multidistrict litigation (MDL) order - recently ordering that the civil cases first be heard by four court-appointed mediators in an attempt to secure early resolution.

"Generally speaking, in the mediation program, the attorneys and the parties meet with the mediators for a two-hour obligatory meeting," Skretny said. "Then it's up to the attorneys, the parties and the mediator to determine whether or not they will go forward beyond that initial session and to decide what's in the best interest of the case."

He ordered that the mandatory mediation sessions with federal mediators Richard Griffin, Mary Helenbrook, Douglas Coppola and Krista Gottlieb take place before June 17.

Russ, meanwhile, said he wonders whether it is premature to hold mediation before discovery is completed in the case.

Joe Williams, a spokesman for Pinnacle Airlines Corp., the parent company of Colgan Air Inc., said the airline has long been an advocate of mediation to settle disputes.

"Colgan is pleased that Judge Skretny has now entered an alternative-dispute-resolution order," Williams said. "Colgan looks forward to engaging in the mediation process so that the families can receive fair and just compensation."

The next significant event in the case is just weeks away.

"The NTSB has announced it is going to have what it calls its ‘sunshine hearing' on Feb. 2. And typically a final report is not issued, though I am told at this one they plan to issue a final report," Russ said. "We all expect that the final report is going to be extremely critical of Colgan, and so I would think the issuance of that report would give Colgan further incentive to settle."

Adding to the incentive, he said, is the fact that, should the cases go to trial, plaintiffs' attorneys will be seeking large punitive damages against the four companies named in the suits - Pinnacle, Colgan, Continental Airlines Inc. and Bombardier Aviation Services - that would not be covered by insurance.

"The leverage (for plaintiffs) and the fear is some level of exposure to Colgan and to Continental that is not insured," Russ said.

Colgan disagrees.

"We do not believe this is a punitive-damages case," Williams said. "Colgan complied with all applicable rules promulgated by the FAA in place on the night of the accident, adequately trained the crew and checked to ensure the crew was properly trained."

As for the progress of the cases, Russ credits Skretny with moving the cases forward. And while he believes Colgan will ramp up efforts for settlements after Feb. 2, Russ said there is much work to be done before any settlements can be reached.

"In my mind, the critical issue is not liability. We have a pretty good idea of what happened and why it happened," he said. "The critical issue will be punitive damages and whether Colgan and Continental will be held liable for punitive damages based upon their corporate culture, their conduct and their widespread failures in training and preparation of their pilots. A lot of the discovery will be designed to bolster the punitive side of the case, and if we can make out a fairly strong claim, that is what will force Colgan to settle."

While no cases have been settled yet, Colgan confirmed that settlement talks have taken place with some families.

Russ said the discovery process is under way, and though he expects it to take most of 2010, he believes it will expose a troubling pattern of behavior within Colgan Air that extends far beyond two undertrained pilots who made a series of fatal errors in-flight.

"The focus of the litigation is going to shift (after the NTSB issues its report) from what happened in the plane to what happened in the boardroom," Russ said. "A lot of the discovery that we will be doing in 2010 will be to find out exactly what Colgan's culture was, how involved was Continental and what kinds of decisions were being made at the management level in terms of preparation of the pilots."

Colgan also disputes the claims by victims' families that Captain Marvin Renslow and First Officer Rebecca Shaw were inadequately trained for the circumstances they faced the night of the crash.

"Both (pilots) had experience in icing conditions. Nevertheless, some changes have been made to improve our training programs," Williams said. "Based on the sterile-cockpit violations in the CVR (cockpit voice recorder) transcript, Colgan initiated a program in which every captain was observed in the cockpit by a check airman to ensure compliance with standard operating procedures."

Robin Tolsma, whose husband, Darren, died on Flight 3407, disagrees, saying the blame for the crash lies squarely with the airline.

"Colgan is trying to throw Rebecca Shaw under the bus by saying that she was sick," Tolsma said. "She had sniffles and sneezes, and that doesn't bring down an aircraft. They didn't train her properly. They trained her and Marvin Renslow to be enhanced passengers, not pilots."