Crash of Flight 5191

Protective order granted in Flight 5191 lawsuit

A Fayette judge granted a protective order yesterday barring destruction of evidence in the Comair Flight 5191 crash.

In another development yesterday, the Kentucky Bar Association said it is investigating complaints filed against trial lawyers in North Carolina and Texas.

The protective order, approved by Fayette Circuit Judge Pamela Goodwine, was filed by the estate of victim Rebecca L. Adams against Comair for the Aug. 27 crash, which killed 49 people.

Lawyers for the estate, administered by son Joshua Adams, said it was a routine motion filed in all aviation lawsuits to ensure that they obtain evidence from the National Transportation Safety Board investigation once it is complete.

The order “in no way interferes with the work of the government,” said aviation lawyer Robert Clifford of Chicago. “In fact it works in sync with what the National Transportation Safety Board will be reviewing. But it makes sure that when evidence can be made available to families and their experts and their lawyers, it will be made available.”

The lawsuit, filed last week, seeks unspecified damages.

Clifford said the lawsuit may later be expanded to include the Federal Aviation Administration, Blue Grass Airport and the designer of the cockpit management system as defendants.

Meanwhile, aviation lawyer David Katzman of Michigan said he will be filing a lawsuit in U.S. District Court in Lexington for the estate of crash victim Erik Harris. It would be at least the third Flight 5191 lawsuit.

Katzman said he will put the FAA on notice that it will be sued. Under federal law, plaintiffs must give the federal government six months’ notice, in most instances, before filing suit, Katzman said.

Katzman said he expected that all of the crash lawsuits will eventually be consolidated into one suit and moved to federal court, which has jurisdiction in lawsuits involving the FAA.

Clifford said Comair will probably try to consolidate the cases, but “whether they are successful in that remains for another day.”

A Lexington attorney for Comair, Ron Green, declined to comment. Airline officials have said they do not comment on pending litigation.

The complex litigation is likely to take several years and will involve several teams of lawyers on all sides.

“The first part is who did what wrong: liability,” Katzman said. “That is the determination of all of the parties’ fault, and what their percentage of fault may be. The next question is what is fair and reasonable and just compensation for the victims.”

Also yesterday, a North Carolina law firm that handles aviation litigation took down a Web site,, after the Kentucky Bar Association received a complaint about it.

The law firm that created it, Anderson Weber & Henry of Kernersville, N.C., said it was intended to help the relatives of crash victims find support and grief counseling. The site also contained a link to the firm’s Web site.

When asked if the 5191 families Web site was an advertisement, Anderson said, “That’s a tough call. I don’t think I thought of it as such.”

Three ads from law firms published by the Herald-Leader last week drew the ire of many Central Kentuckians. Anderson said his Web site does not compare to those ads.

“It was a sincere effort to provide a source of assistance, as opposed to pure solicitation like you have apparently seen from some of these other law firms,” Anderson said. “We think that the issue right now is grief and getting families in a position where they are stable, not rushing them to sign legal contracts and rushing to the courthouse to file lawsuits for publicity purposes.”

Bruce Davis, executive director of the Kentucky Bar Association, said the bar believes the Web site is an ad. He said it has been referred to the bar’s advertising commission for review.

Kentucky bar regulations require that attorneys submit copies of advertisements to the bar at the same time they are sent for publication, Davis said.

Anderson said he will cooperate with the bar and took down the site until the complaint is resolved.

Davis said yesterday that the state bar has also received complaints about a Texas law firm that sent letters to Lexington lawyers promising referral fees if they referred families to the firm.

Even though the letters, sent by The Kettles Law Firm of Dallas, were not sent directly to the relatives of crash victims -- unsolicited contact from lawyers is prohibited by federal law until 45 days after the crash -- the bar believes they were still advertisements, Davis said. A bar commission will review the letters.

The letters should have been sent to the bar for review, Davis said.

Lawyer Jon Kettles said that aviation litigation is a highly specialized field of law that few attorneys can handle. The letter, which he did not think was an advertisement, was sent only to local trial lawyers.

“Everyone agrees that people should have the best representation possible,” Kettles said.

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