In a violent, unexpected and sudden death, loved ones left behind always cling to the idea that the end was providentially quick and painless.
But now that the funerals of Comair Flight 5191 victims are over and the lawsuits have begun, the abstraction of what happened in those last seconds before the plane incinerated becomes a concrete and important point of law.
In wrongful death suits, the amount of damages relates directly to the amount of conscious pain and suffering a person may have endured before he or she died.
The cause of death therefore becomes extremely crucial evidence. Someone knocked unconscious, it can be argued, suffered much less than someone who knew they were about to die, or who died a painful death by fire. Therefore, their families could get less money in settlements.
In the case of Flight 5191, this rule of law has triggered what some experts call an unusual twist in the proceedings. Some families are planning to hire private pathologists to perform second, independent autopsies, in addition to the ones performed by the state medical examiner’s office.
“It’s very unusual, I would say unprecedented,” said Arthur Alan Wolk, an aviation expert and attorney in Philadelphia.
Usually, an autopsy is clear about the cause of death. Expert witnesses can then argue about levels of awareness or pain consistent with the described injuries.
However, possibly because there’s been so much speculation about how exactly the Flight 5191 victims died, people want extra confirmation.
For example, the day of the crash, Fayette County Coroner Gary Ginn said the victims had died in the inferno after the plane crashed. The next day, he announced that most had actually died from blunt force trauma of the impact itself.
Ginn said Friday his first statement was based on his first look at the downed plane; his second statement occurred after talking to state medical examiner Tracey Corey, who had begun doing autopsies.
“I don’t think there’s anything confusing about that,” Ginn said.
The autopsies of the victims released by his office will be extremely detailed in various injuries and causes of death, based on standard autopsy reports done by Corey’s office. Autopsy reports will be released in six to eight weeks, Ginn has said.
Second autopsies would have to be done by forensic pathologists in private practice. They would look, for example, at whether there was smoke in the victims’ lungs, which would indicate they were still alive when the fire broke out.
However, former state medical examiner George Nichols said he is the only forensic pathologist in private practice in Kentucky, and he has already been hired as a consultant by Comair. He’s received at least six calls from families and attorneys from Flight 5191asking for either consultations or autopsies, he said, and he’s referred them to a forensic pathologist in Evansville, Ind.
Nichols said he didn’t yet know exactly what he would be doing for Comair.
“I assume I will be examining records and other materials to determine how these people died,” he said. “It’s important for the families, and it’s important for the attorneys and the courts.”
In most wrongful death cases, a lawyer would hire an independent forensic pathologist who would then interpret the results of an official autopsy.
“We all hope they did not suffer,” said Chicago aviation attorney David Rapoport. “But if there was horrible conscious pain and suffering, that can drive up the ultimate value of damages. It’s a natural that lawyers and families would try to build the most powerful pain and suffering case.”
Rapoport said pathologists can interpret data differently, but autopsies use a standardized procedure.
“There’s no reason to think superficial autopsies are being done,” he said. “Most of the time we use existing data.”
However, Ginn is not surprised that people would also choose to have an independent autopsy conducted.
“People know their loved ones will be buried or cremated,” he said. “If they want to look at something else specifically, it becomes very costly.”
Charles Curry, a lawyer representing the family of crash victim Tim Snoddy, said the family is planning a second, independent autopsy as a step before filing a wrongful death suit.
“It’s precautionary,” Curry said. “It’s always an argument, and we’re trying to be very careful.”
Robert Clifford, an attorney in Chicago who is representing the family of Rebecca Adams, said his client is not seeking an independent autopsy at this point. Clifford said he currently sees no reason to question the autopsy performed by the state medical examiner.
Other factors that will be taken into account in the lawsuits will be the earning power of the victim, and whether he or she left children behind.
Wolk believes the average award per family will range anywhere from $3 million to $6 million per victim.
However, settlements can vary greatly. In 1994, for example, the family of a CEO who died in a 1994 USAir crash in Pennsylvania received a $25 million settlement because he made more than $300,000 a year. Most cases are settled before they reach a courtroom, and most aviation cases move into federal court.
Total damages will vary according to state and federal laws. For example, Kentucky state law does not make a provision for “loss of companionship” for spouses -- for example, damages to a husband who has lost an older wife who might not have much earning power.
Rapoport represented the victim’s family in the last fatal air crash in Lexington, when a charter medical jet crashed across Versailles Road, killing the elderly woman patient inside. Rapoport got the case filed in Florida, where the jet company was based, and eventually secured $2.2. million for the family.
the tragedy of flight 5191