After a flurry of settlements the past two weeks, only eight lawsuits filed by the families of passengers remained Tuesday evening in the sprawling litigation over the Comair Flight 5191 crash.
Comair has settled 10 cases filed by families of crash victims since July 17. Overall, 39 cases had been settled as of Tuesday afternoon. Negotiations with plaintiffs are ongoing, airline spokeswoman Kate Marx said.
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“It is a real fluid situation,” plaintiffs attorney Joe Savage said of the settlements. “What is true right now might not be true in an hour.”
Despite the wave of settlements, Savage still anticipates a civil trial in U.S. District Court in Lexington on Monday. He said his clients — Homer and Diane Combs — and Comair are “pretty far apart.” Savage did not elaborate.
In August 2006, Flight 5191 crashed at Blue Grass Airport after taking off from the wrong runway. Forty-nine of 50 people on board died.
Forty-seven lawsuits have been filed against Comair after the crash.
Lawyers say last-minute settlements in aviation lawsuits, or any lawsuit for that matter, are common. It is rare for air crash lawsuits to go to trial, and even rarer for juries to decide whether to level punitive damages against an airline for a crash.
Whether the jury punishes Comair — and for how much — are the two big questions going into next week's trial, said aviation attorney David Rapoport, who is based in the Chicago area.
“I would be really surprised if this case does not go to trial,” he said.
In addition to the passenger lawsuits, families of two crew members who died in the crash, pilot Jeffrey Clay and flight attendant Kelly Heyer, sued the Federal Aviation Administration for understaffing the air traffic control tower the morning of the crash. First Captain James Polehinke, the only survivor, also sued the FAA.
The crew member lawsuits are to be tried on a later date.
Marx said Comair hopes to settle all claims.
“We're continuing to work diligently on resolutions outside the courtroom,” she said.
Comair has admitted fault in the accident. But it has also aggressively tried to pin part of the blame for the crash on the FAA and airport, which was undergoing a major runway construction project at the time of the crash.
A judge has dismissed Comair's claims against the airport board, ruling it was entitled to sovereign immunity. The airline, a subsidiary of Delta, is appealing the decision.
The federal government has defended the lawsuit and has not conceded any liability.
Nonetheless, Marx said Tuesday that Comair and the government are in “ongoing discussions regarding an agreement.”
“We have not allowed pending litigation to impede us from reaching agreements with the families,” Marx said.
Savage said lawsuits are still pending for the families and estates of six people: George C. Brunacini, the Combses, Erik Harris and Jonathan and Scarlett Parsley Hooker.
Comair counted eight lawsuits still pending, including one in Florida, Marx said.
Marx did not have the names of the plaintiffs involved in the pending lawsuits, but she said it is possible for more than one lawsuit to be filed for the same victim.
Plaintiff attorneys will present the cases of three “exemplar” victims at the Aug. 4 trial. Those cases will act as representatives for the remaining families, although the other families will have the right to pursue their own trials if they wish.
Jurors will have to decide how much, if any, responsibility the federal government shares for the crash.
They will determine how much in compensatory damages to assign for each family member and the estates. Damages for the estates will include the income the victim was expected to make in his or her lifetime.
The jury will decide whether to hit Comair with punitive damages for alleged gross negligence in failing to take actions that the plaintiffs say could have prevented the crash.
There are a variety of reasons why some families have held out, Rapoport said.
Sometimes families want to pursue a trial purely out of principle, he said. Other times there are genuine disagreements about what the lawsuit is worth, he said.
And sometimes there is a big fight over who is at fault.
“Its not a reflection of the plaintiffs left being greedy,” said Rapoport, who is not involved in the Flight 5191 litigation.