Comair disputes damages awarded to daughters of Flight 5191 crash victim

jhewlett@herald-leader.comFebruary 5, 2010 

Comair and the family of a man who died in the August 2006 crash of Comair Flight 5191 in Lexington are arguing over whether compensatory damages awarded by a jury for the crash victim's two daughters are too high.

In early January, shortly after a federal jury voted unanimously to award Jamie Hebert, widow of Flight 5191 passenger Bryan Keith Woodward, and her two daughters a total of $7.1 million, Comair asked the court for a new trial on the part of the case pertaining to the daughters or to lower the amounts awarded them in the December trial.

Jamie Hebert was awarded $3 million as the guardian of daughter Mattie Kay Hebert, who was 11 at the time of her father's death. Daughter Lauren Madison Hebert, who was 15 when the crash occurred, was awarded $2 million.

Woodward, 39, and 48 others died after the Comair regional jet took off from the wrong runway at Blue Grass Airport. Other lawsuits filed against Comair in connection with the crash settled out of court, leaving Jamie Hebert's case and a parallel case by Lauren Hebert as the only passenger claims left against the airline.

Comair contends the verdict and judgment in favor of Hebert's daughters was excessive; that the argument of the Heberts' legal counsel in the trial was "inflammatory and unduly prejudicial to Comair"; and that the testimony and exhibits of a mental health expert were not relevant and were "unduly prejudicial."

If a new trial on the question of damages for loss of parental consortium is denied, Comair wants the court to lower the total amount awarded to Mattie Hebert to no more than $600,000 and no more than $200,000 for Lauren Hebert, the airline said in documents filed in U.S. District Court in Lexington.

An attorney for Comair declined to comment; however, Christine Wever, the airline's manager of corporate communications, issued a statement saying, "In this case, we are asking the court to consider an award that is more consistent with damages awarded for children's loss of consortium in other, similar cases that have been settled in Kentucky courts."

Comair bases part of its argument on a Kentucky case in which two children — a 4-year-old and 1-day-old — were awarded a total of $6 million after losing their mother.

David Rapoport, an attorney for Woodward's family, maintains in a response to Comair's request, which he filed with the court in late January, that Comair is arguing in favor of a mathematical formula for calculating damages tied to duration of loss and not severity of loss. He said that the Hebert children's loss far exceeds the loss sustained by the two children in the other case.

Under state law, "loss of parental consortium damages may be recovered by a minor child in a wrongful death case from the time of the parent's death up until the minor's 18th birthday," according to a response filed by Rapoport.

Rapoport's response says it's "perfectly reasonable" for a jury to conclude that a 12- or 16-year-old child, "who has shared countless experiences and spent more time developing a bond with a parent, may sustain a much more severe loss than a 1-day-old child, who never had the opportunity to develop a deep personal relationship with either parent, or a 4-year-old child that has not shared as many experiences with the parent as an older child."

Comair, in a response filed Thursday, said it does not contend that a jury must follow a strict mathematical formula. But, the airline said, "the period of time for which damages can be allowed is a necessary and required factor to be considered by the jury."

Rapoport said Comair's arguments are without merit, and recounted testimony and evidence mentioned in the December trial in his response.

"The evidence overwhelmingly established that Bryan's death has had a devastating and profound impact on Lauren and Mattie Kay's lives," Rapoport's response says. The response says Lauren Hebert dropped out of high school and Mattie had to switch schools because of psychological and emotional issues brought on by their father's death. The response mentioned court testimony about Mattie often being irritable and angry and Lauren Hebert having difficulty falling asleep. Lauren Hebert testified during the trial that when her father died, Christmas died too, and expert testimony said that both children had chronic post-traumatic stress disorder and chronic depressive disorder because of their father's death, the response says.

Meanwhile, a date for a jury trial to decide whether Comair committed acts of gross negligence warranting punitive damages in the case involving Woodward's family has not been set.

Reach Jennifer Hewlett at (859) 231-3308 or 1-800-950-6397, Ext. 3308.

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