Crash of Flight 5191

Lawyers disagree on crash suit strategies

A rift is developing among lawyers representing the families of victims of the Comair crash over how the case should be handled. The dispute is essentially about money -- both the lawyers’ fees and the amount paid to families.

The attorneys disagree about who should be held accountable and how the cases should be organized.

So far, only a handful of the families of passengers who died in the Aug. 27 crash have filed suit. Eventually, the case will involve multiple plaintiffs -- the estates and surviving family members of the 47 passengers -- possibly multiple defendants and the many lawyers who represent all the parties.

Two weeks ago, attorneys representing the family of Christina Anderson asked a federal judge to appoint a steering committee to direct the litigation.

Such committees are common in lawsuits that involve multiple parties, but some local attorneys say forming a committee this early, when so few lawsuits have been filed, is an attempt by large, national firms to take control of the case and, ultimately, earn more fees.

That concern led a group of about 20 lawyers, mostly from Lexington and the state, to meet twice last week to coordinate their strategy.

Lexington lawyer Lee Kessinger, who is part of the group, is afraid that if out-of-state law firms are put in charge, they will try to blame not only Comair but also the airport board and the Federal Aviation Administration.

As he sees it, the case is one of simple liability: “At this point, Comair had the plane on the wrong runway,” said Kessinger, who is representing the estate of Betty Young.

Creating a case against the airport board, which could be immune, and the FAA will be expensive. It’s also unnecessary, and his client doesn’t want to pay for it, Kessinger said.

Twice since the accident, a San Francisco firm that specializes in airplane crash lawsuits has flown a British expert on runways and airports to Lexington. It took money to acquire that expertise, said Robert Lieff, a member of the firm representing Anderson.

Kessinger is afraid that the cost of foreign experts will eventually become an expense to his client, and that bringing them from outside the country isn’t necessary. “You do need experts in this case, but you certainly don’t need experts in all these other areas when liability is so clear,” he said.

As Kessinger sees it, the moves by the larger firms are marketing ploys to attract clients when attorneys are forbidden from contacting the victim’s families directly. “It’s designed to build up a sense of very complicated litigation, therefore you really need out-of-state attorneys,” Kessinger said.

Lieff and Joe Savage, the Lexington attorney working with the San Francisco firm, said they are bringing in high-profile experts to find every responsible entity so they can best represent the clients they already have. It could be expensive, but expenses can be pooled, Savage said.

“I want to spend the money that it takes,” he said. “I want to find out who’s responsible and I want to make sure it doesn’t happen again.”

By going after more entities than just Comair, the plaintiffs will get more money, Lieff said.

“The families or the people suing are most likely to get the fair recovery by asserting their claims against as many entities that may have fault as possible,” he said.

The groups also disagree about the need for a steering committee. Attorneys who serve on the committee earn fees not just from their clients, but from plaintiffs in the case whom they do not directly represent. They also lead the litigation, deciding which parties to go after and which experts to use.

Kessinger and other attorneys said they don’t need a steering committee and can organize without one, saving their clients money.

But Savage, who filed the motion, said a steering committee is essential.

“The judge will have to appoint a committee to basically take some type of control of this litigation,” Savage said. “Otherwise, it will just be chaos.”

In the last 15 years, complex cases such as the Comair case have been organized more quickly than in the past, said Mary Davis, a professor at the University of Kentucky College of Law. They have also become more complex and the procedure for dealing with them more sophisticated.

Those who advocate for early organization see it as a way to create a more efficient case and to make sure that all plaintiffs are compensated, Davis said. Those who don’t prefer early organization may want to see how a case develops and then organize, she said. Both strategies are valid, she said.

The formation of a steering committee -- if one is formed, and when -- depends on Karl Forester, the judge handling the lawsuits. He did not rule on Savage’s motion last week. The next hearing in the cases is scheduled for November, and it is unclear whether the judge will address the issue then.

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