Authors: Stephen Greenleaf
“Yes. Essentially, that's it.”
“And Colonel Stapp proved that humans could withstand g forces of forty or more.”
“Yes.”
“Do other experiments confirm the capacity of humans to withstand high levels of impact?”
“It's not accurate to call them experiments, but various falls have been recorded that indicate we humans are extremely resilient. A Russian stewardess fell out of a plane at three thousand feet and survived. A Russian pilot supposedly fell from
twenty-nine
thousand feet and lived to tell the tale.”
“Some of the jurors might regard tales of Soviet exploits with some suspicion. How about Americans?”
“A navy parachute rigger jumped out at sixteen thousand feet and survived, even though his parachute never opened.”
Tollison's eyes oscillate in amazement. “So we can assume the FAA requires airline seats to be attached securely enough to withstand a pretty high degree of force. On the order of forty g's or so.”
Livingood shakes his head at the feigned naïveté. “I'm afraid you can't assume that at all.”
Tollison's frown is as broad as burlesque. “I don't understand.”
Ever the expert, Livingood assures himself that the jury is paying appropriate attention. “The Federal Aviation Regulations require seats in commercial aircraft to withstand forces of nine g's forward and one point five g's sideward.”
“Nine, did you say?”
“That's correct.”
“Even though humans can survive a force
five times
that great?”
“I'm afraid so.”
“Are you telling me people were killed in the SurfAir crash not by the sudden stop but by their seats breaking away and hurtling forward, with helpless passengers strapped to them, at the velocity of the plane as it struck the rocks?”
“Please
, Your Honor,” Hawley Chambers wails. “Argumentative, immaterial, leading, speculative, and absurd.”
Judge Powell seems to be smiling. “Sustained on more than one but less than all of those grounds. Control yourself, Mr. Tollison.”
Tollison bows his head. “Sorry, Your Honor,” he says, but continues to milk the moment. “I'm shocked, Mr. Livingood. But I suppose the explanation is that the nine-g requirement is difficult to meet.”
Wallowing in the jurors' fascination, Livingood shakes his head. “It's no big deal to make seat anchors stronger; the military does it all the time.”
“Please explain.”
“The air force requires its seats to withstand seventeen g's, and the navy requires forty.
Car
seats have to withstand more than twenty g's, and most cars crash at relatively slow speeds.”
“I see.” Tollison pauses for effect, though he knows the jury has understood every word. “You've testified that the H-11 touched down at approximately a hundred and forty miles an hour, then skidded along the ground and stopped abruptly when it struck the trees and rocks. What is your estimate of how fast the plane was traveling at that point?”
“I estimate just over one hundred miles per hour.”
“What g force would be exerted on the seats at that speed, assuming a stop of the type made by the H-11.”
“Between ten and fifteen. Give or take a couple.”
“Nothing the human body couldn't tolerate, according to Colonel Stapp's experiments.”
“Correct.”
“You also testified that during your observation of the wreckage, you saw several seats from the rear portion of the plane that had come loose from their anchors, causing the occupants to be thrown forward into the forward bulkhead. Causing them to endure a
second
crash, in other words.”
“Definitely.”
“The phenomenon of seat failure is not unique to the SurfAir crash, is it?”
“No. Forty percent of passenger injuries are caused by seat failure.”
“Is that fact well known in the industry?”
“Yes.”
“How?”
“In 1981 the FAA published a study of seventy-seven survivable crashes. In those cases, the seats failed eighty-four percent of the time; the overhead compartments failed seventy-eight percent of the time, and the galleys failed sixty-two percent of the time. The study is called âCabin Safety in Large Transport Aircraft.'”
“Yet the FAA still maintains only minimal standards of seat and cabin strength.”
Livingood nods. “In 1969 they tried to increase the seat requirement from nine to twenty g's, but they withdrew the proposal.”
“Why?”
Livingood hurries to beat the objection. “Pressure from the manufacturers. The metal benders figure if it's cheaper to kill you than fix it, they'd just as soon kill you.”
As his clients fume at his side, Chambers is volcanic. “Your Honor, I insist on a mistrial. Such statements are totally beyond the bounds of ⦠of
morality
, to say nothing of admissible evidence. I urge the court to end this farce immediately. Iâ”
Powell's voice is stern. “The motion for mistrial is denied, but your objection is sustained. The jury is instructed to disregard the answer. And I mean
completely
. The witness will cease such hyperbole immediately.”
For the first time Tollison regards his witness with admiration. Then, to hide his pleasure, he turns to check his notes. “When you arrived at the crash scene did you take any pictures, Mr. Livingood?” he asks after the tempers in the room have cooled.
“I videotaped the scene as best I could, given the conditions.”
“This was some two hours after the crash occurred?”
“Yes.”
“Do you have a copy of that tape with you?”
“I do.”
“You took the tape yourself?”
“With a Panasonic PV 30 VHS camera and an HGX cartridge, using available light.”
“Your Honor, I ask that Mr. Livingood be allowed to show his tape.”
Chambers advances on the bench. “Counsel's purpose is both clear and inappropriate, Your Honor. Tapes of the scene will be grossly prejudicial to my clients, of no probative value whatever. No one enjoys what happened that eveningâit was a tragedy of immense proportions. But nothing on that tape will add to the jury's ability to decide the issues of fact in this case. I urge that it be rejected.”
Judge Powell squints at his assailant. “I've previewed the evidence in my chambers, counsel, and I'm afraid you're overruled. Mr. Tollison may show his tape.”
As Chambers sputters to silence, the room darkens at a signal. A rear projection receiver Tollison appropriated from Hawthorne's cabin is rolled to a position from which it can be seen by all concerned. Tollison inserts the cartridge into the VCR.
The jury views in silence, except for a collective gasp at the glimpse of what appears to be a human torso burning like a yule log near the wreckage. Although Livingood assures them it is only a duffel bag, they remain stunned by the possibility. Moments later, a murmur of approval greets a priest as he leads a woman from the wreckage, and another issues as a fireman douses what everyone hopes is a rag doll with foam as white as milk. The remainder is expressionisticâscraps, ruin, litter, junkâlimitless and devastating. Tollison wonders whether anyone who sees it will ever fly again.
When the lights come on, the entire room is thankful.
“That's all I have, Your Honor. Thank you, Mr. Livingood.”
“Your witness, Mr. Chambers.”
Chambers is on his feet immediately. “Your Honor, at this point I move to strike the testimony in its entirety, for lack of a foundation for the conclusions offered and, more importantly, on the ground that it is immaterialâthere is no evidence Mr. Donahue had a problem with his seat or with any of the other aspects touched on by the witness.”
“Mr. Tollison?”
Tollison is sweating. Before the first witness has left the stand, Chambers has spotted the vulnerable portion of the case, a defect Tollison has sensed for weeks. He reacts as best he can, which for the moment is to feign indifference, to delay and hope Hawthorne can provide him with a witness who will shore up the proof of proximate cause.
“We can only do one thing at a time, Your Honor,” he argues, as though the rupture is nonexistent. “I know of no rule that allows Mr. Chambers to dictate our order of proof. If at the close of our case he believes it suffers from the defect he suggests, I'm sure he can frame the appropriate motion.”
The judge nods. “Ruling is reserved. Cross-examine, Mr. Chambers.”
Chambers abandons his colleagues and his clients and strides to a position directly opposite the witness. “You're getting paid for this, aren't you, Mr. Livingood?”
“Naturally.”
“What's your rate?”
“Two hundred dollars an hour for investigation; two fifty for court time.”
“How much more do you get if your side wins?”
“Not a penny.”
Chambers's brow decrees the denial preposterous. “You've testified in other crash cases, I believe you said.”
“Correct.”
“Isn't it true that in every one of those cases you have appeared for the plaintiff?”
“I believe so. Yes.”
“And on each of those occasions the person who hired you was a lawyer named Alec Hawthorne, right? The same man who engaged you to investigate the SurfAir crash?”
“Not
every
case has been for Mr. Hawthorne. But most.”
“Mr. Hawthorne represents
only
plaintiffs, does he not? Persons injured in plane crashes?”
“I believe so.”
“Mr. Hawthorne wouldn't use you if you didn't testify exactly the way he wanted you to, would he?”
Tollison interrupts. “Objectionâcalls for speculation.”
“Overruled. You may answer if you know it.”
“Mr. Hawthorne never tells me what he wants. He hires me to investigate, and I tell him what I believe happened.”
“You always come up with something helpful for him, though, don't you?”
Livingood preens with righteousness. “What I come up with is the truth.”
Chambers shakes his head. “Your
truth
always finds fault with the airline or the manufacturer, doesn't it?”
“It's true I seldom find your side of a crash case tenable, Mr. Chambers. If you want reasons, I would be happy to give them.”
“Move to strike, Your Honor.”
“I believe you asked for that one, counsel. Continue.”
Chambers regards the ceiling. “Let me put it this way, Mr. Livingood. What portion of your income last year was derived from services you performed for Alec Hawthorne?”
“I'm not sure. Sixty or seventy percent, probably.”
Chambers bows theatrically. “We'll let the
jury
decide how far you would be willing to stretch the truth to preserve the largess of a man whose entire career is devoted to suing airlines such as SurfAir. Let's move on. You've made various statements about what you believe happened during and after the crash of flight 617. Frankly, quite a few of them seem incredible. For example, you say the plane was going a hundred miles an hour when it hit the tree. But it's possible it was going faster, right?”
“Twenty miles an hour faster, at most. It's also possible it was going slower.”
“If it
was
going faster, the g forces exerted on the seat anchors would be greater than you estimated, would they not?”
“Some. Not much.”
“And if the angle of upslope at the point of touchdown was
less
than you calculated, then the speed at impact would have also been greater, right?”
“Right.”
In like manner, Chambers moves through the testimony with a fine-tooth comb, stretching calculations, undermining certitudes, casting doubt anywhere he can. But Livingood holds up, at least as far as Tollison can tell. What the jury thinks is far less clear.
At the end of the afternoon, Chambers folds his arms. “Isn't it true, Mr. Livingood, that as the videotape showed, you made your investigation of the crash site in the dark?”
“It was dusk. Yes. But fires were burning, and some of the rescue personnel had arc lights to help them search for bodies. Car lights were trained on the wreckage as well.”
“Dusk, and lots of smoke from the fires, right?”
“Yes.”
“Because of the flames, you couldn't actually enter the wreckage?”
“Correct.”
“How close to the bulkhead were you able to get?”
“Maybe twenty feet.”
“Yet through the fire and smoke at dusk you're able to tell us all about broken seats and storage compartments and everything else.”
Livingood's lips stretch in a smug retort. “I'm glad you brought that up; Mr. Tollison should have mentioned it, but he didn't. I not only examined the wreckage at the crash site, I examined it at the mock-up area some three weeks afterward. On that occasion I paid particular attention to the seats. By my calculation, eighty percent of the seats in the aft cabin, or tourist class, came loose during the crash. Both overhead compartments had broken off as well, which means much of the luggage in tourist class impacted against the bulkhead, too, pummeling those passengers
also
thrown to that location.”
Chambers reddens at the riposte and for the first time makes use of his assistant, who whispers an urgent tip. “Regardless of that, Mr. Livingood,” Chambers continues, “it's true, is it not, that at no time did you see the plaintiff in this case, Mr. Donahue, at the crash scene.”
“That's correct.”
“So you don't know whether his seat came loose or not.”
“Not specifically.”
“One last point. You mentioned, in your definition of a survivable accident, that for a crash to be survivable the passenger in question should have a means of egress from the wreckage. Isn't that your testimony?”
“Yes.”
“Isn't it true that the wing exits were rendered inoperative in the crash? Weren't those two doors so mangled they wouldn't open, so neither Mr. Donahue nor anyone else could use them?”