Judge postpones Comair Flight 5191 trial

judge's concerns delay punitive case

shopkins@herald-leader.comJanuary 14, 2011 

A federal judge postponed Thursday a civil trial that had been set to begin next month to decide whether Comair owes tens of millions of dollars in punitive damages to the widow of a victim in the August 2006 Lexington plane crash.

U.S. Senior Judge Karl S. Forester said he was postponing the trial to resolve a conflict regarding one of the daughters of the Flight 5191 crash victim, Bryan Keith Woodward.

Forester expressed concern Thursday about who was responsible for making decisions for daughter Mattie Kay Hebert.

Woodward's widow, Jamie Hebert, and her two daughters were awarded $7.1 million in compensatory damages from Comair in December 2009.

Hebert was awarded $3 million as the guardian of 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.

The family decided to seek punitive damages for alleged gross negligence that caused the crash.

Flight 5191 crashed on Aug. 27, 2006, after taking off from the wrong runway at Blue Grass Airport. Forty-nine of the 50 people on board died. Other lawsuits filed against Comair in connection with the crash were 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.

Forester did not set a new date for the jury trial, which had been scheduled to begin Feb. 1.

In addition to postponing the trial, Forester said he would rule within 10 days on a renewed motion by Comair for summary judgment.

The airline had filed a motion for summary judgment in June 2008, but the request was denied last May.

In December, Comair filed a renewed motion for summary judgment, saying that punitive damages cannot be awarded, in part, because the case does not meet the requirements of state law.

Comair's motion says that under state law, a plaintiff must meet two requirements to receive punitive damages from an employer: gross negligence by clear and convincing evidence, and that "the employer anticipated the employee's conduct and authorized or ratified the conduct."

Comair attorneys said in the motion that there was no evidence of reckless or willful indifference and that the airline did not "authorize, ratify or anticipate" the conduct of the crew.

The motion, filed in U.S. District Court in Lexington, also noted that during a June 22 pretrial conference, Forester said, "the question of punitive damages is very iffy, I think." The judge said, according to Comair's motion, that there was "a very real question" about whether punitive damages should be rendered.

David Rapoport, an attorney for Woodward's family, said there was no need to consider the airline's new motion because the law has not changed and that summary judgment motions filed before the trial "are disruptive and normally not allowed."

The judge said Rapoport had "done a good job arguing" why the issue should not be revisited. But Forester decided to review the issue.

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