Authors: Stephen Greenleaf
When the objection is overruled, Tollison continues quickly. “Isn't it true, Mr. Stacy, that the fabrics used in airplane interiors are synthetics rather than natural fibers?”
“Most of them.”
“There's approximately a ton of plastic in the average airliner, right?”
“Just about.”
“When synthetics burn they create toxic gases, don't they?”
“Yes.”
“The accumulation of such gases creates a danger of synergism, does it not?”
“At times.”
“Can you tell the jury what synergism is?”
Stacy turns their way. “It's the combination of toxic gases from various sources to form a substance of even
higher
toxicity and the corresponding reduction in the oxygen level that results in the process.”
“Synergism is what happens when the interior of an airliner catches fire, is it not? The cabin becomes a gas chamber?”
“Not always, of course. But it's certainly possible.”
“Have you examined the pathologists' reports on the victims of the SurfAir crash?”
“Many of them, yes.”
“A significant number of those victims showed signs of toxic poisoning that are consistent with the existence of synergism, did they not?”
“Yes. Cyanide and carbon monoxide were present far in excess of toxic levels. Up to five micrograms per milliliter in the case of cyanide, which is toxic at a tenth of that.”
“Fine. Now, the other thing that frequently happens in a crash situation is flashover, correct?”
Stacy's smile is tolerant. “A lot of things happen in a crash, sir. Flashover is only one of them.”
“What is flashover?”
“Basically, it's a burst of fire at the ceiling of the aircraft from the ignition of gases that have collected there.”
“Flashover can cause burns and damage to the pulmonary system and a host of other medical problems, can it not?”
“I'm not a medical man, but those would seem to be the consequence of any fire.”
“A flashover is a particularly
intense
fire, though.”
“Yes. The temperature at the ceiling can exceed two thousand degrees.”
“In fact, flashover killed all three hundred people in the Saudi Arabian cargo fire in 1980, didn't it? Killed them even though the plane was on the ground when the fire started. Killed them before they could get the doors open and get out?”
“Objection,” Chambers thunders. “Irrelevant.”
“Overruled.”
“Mr. Stacy?”
“Yes. The Saudi fire was a particularly virulent example of flashover.”
“Did your examination of the SurfAir wreckage indicate flashover had occurred in the rear cabin following the crash?”
“Yes.”
Tollison pauses so the jury can catch up. “What are the padded portions of the seatsâthe cushionsâin the H-11 made from, Mr. Stacy?”
“They're made from urethane.”
“Did many of the seats catch fire in the crash?”
“Yes. Most of them.”
“When urethane burns, does it gives off gases?”
“Yes.”
“Name them.”
“Well, there's acrolein, hydrogen cyanide, carbon monoxide, sulphuric acid ⦔
“Phosgene?”
“That, too.”
“Phosgene is so toxic it's used in chemical-warfare weapons, is it not?”
“I wouldn't know.”
“Well, there's no question that each of those gases is toxic to humans, is there?”
“Yes they are, depending on the density.”
“And the
combination
of those gases is
highly
toxic?”
“Yes.”
“The cushions and cabin materials aren't the only things that give off toxic fumes in a cabin fire, are they?”
“No, many of the materials the passengers bring on board contribute as well. For example, a burning wool overcoat can emit enough cyanide to kill seven people.”
“Thank you. Let's get back to the seats. One answer to the toxic-emission problem would be to wrap the urethane cushion in fire-blocking material, isn't that so?”
“Yes.”
“Is such a material available?”
“Yes. Kevlar is one. There are others, including some that are fire-resistant and also self-extinguishing. NASA has developed a polymide material that is smokeless when it burns.”
“Did Hastings wrap the H-11 seat cushions in Kevlar or other fire-blocking material, Mr. Stacy?”
“No.”
“Even if they didn't use a fire block, they could have used an alternative to urethane for the cushions, could they not? An alternative that was less flammable?”
Stacy nods. “Du Pont makes a neoprene called Vonar that they've tried to sell for that purpose, I believe. Other brands, such as Celiox and Norfab, are available as well.”
“But Hastings didn't use them.”
“No.”
“And SurfAir didn't require them.”
“Apparently not.”
“I have no more questions, Your Honor.”
“Cross-examine, Mr. Chambers.”
Chambers advances on the witness like a panther. “Mr. Stacy, you examined the wreckage of flight 617 carefully, did you not?”
“Yes.”
“Did you find, as regards the interior of the aircraft, that federal regulations had been violated in any way?”
“I did not.”
“No violation that would contribute to a fire aboard the plane?”
“No.”
“In fact, did you see
anything
that did not conform to the custom and practice in the industry?”
“No.”
“Fine. It isn't true, is it, that the FAA has done nothing about the fire hazard aboard commercial airplanes?”
“No, it isn't. We made a rule requiring fire-blocking material to be incorporated in seat cushions just last year. The requirement went into effect this November. Also, we have noticed a rulemaking procedure for an increase in flammability standards, though they won't go into effect until next year.”
“So the impression of FAA inactivity that Mr. Tollison was trying to create is essentially incorrect?”
“Objection,” Tollison intones. “Argumentative.”
“Sustained.”
Chambers mutters to himself. “It's certainly true, isn't it, Mr. Stacy, that the various changes suggested by Mr. Tollison would cost a lot of money?”
“Certainly.”
“Which would raise the cost of travel to consumers?”
“I imagine so.”
“Most of the so-called improvements Mr. Tollison spoke about would also add weight to the plane, correct?”
“Yes. Some of them.”
“Which would create additional safety concerns, in terms of lift-off speeds and runway lengths and the like?”
“Well, that's not really myâ”
Chambers nods with satisfaction. “No more questions, Your Honor.”
“Mr. Tollison? Rebuttal?”
“Just briefly, Your Honor. None of the new regulations you mentioned applied to the H-11 that crashed with Mr. Donahue on board, did they?”
“No.”
“In fact, at the time the H-11 was built, there had been no upgrading of the flammability standards governing cabin furnishings in commercial aircraft since 1947, right?”
“I'm afraid so.”
“Knowing this, neither Hastings nor SurfAir took steps to improve the situation themselves.”
“No. Not that I could see from the mock-up.”
“Thank you.” Tollison pauses, then decides to pursue another point. “Since Mr. Chambers repeatedly deferred to the mighty FAA, I'd like to review that agency's regulatory process with you for a moment, if I may. The EAA is only just
now
requiring smoke detectors inside aircraft lavatories, is it not? Fifteen years after the NTSB recommended them?”
“Yes. We've issued a notice of rulemaking on that, so it should happen soon. We do move slowly at times, I admit.”
“Neither SurfAir nor Hastings
voluntarily
installed smoke detectors on the H-11, did they?”
“No.”
“The
French
require smoke detectors in all their planes, don't they?”
“I believe so. Yes.”
Tollison nods. “The FAA has required smoke detectors to be placed in the
cargo
bays of commercial planes for years, have they not?”
“I ⦠yes.”
“But not where the people are.”
“No.”
The audience murmurs, and Tollison waits for the fact to be absorbed. “You mentioned some new rules that are in the works, Mr. Stacy. The FAA also filed a notice of rulemaking to improve flammability standards and lessen the toxicity of cabin materials back in 1978, did it not?”
“Yes.”
“What happened?”
“We withdrew the notice.”
“So even though a rulemaking procedure has been filed, at this point there is no certainty that the new flammability standards will actually go into effect.”
“No, I suppose not.”
The audience rumbles again.
“The rear door fell off a DC-10 in a flight over Windsor, Canada, back in 1969, did it not, Mr. Stacy?”
“I believe so.”
“How long did it take for the FAA to require a correction in the design of those doors?”
“I'm not sure, Iâ”
“It took four years, didn't it?”
“I guess that's right.”
“In the meantime, a DC-10 crashed in Paris because a rear door fell off, and three hundred and forty people died.”
“Unfortunately, yes.”
“How long did it take after a pilot accidentally deployed the spoilers on an airborne DC-8 for the FAA to make spoiler locks mandatory?”
“Four years, I believe. There's a bit of a disaster-response mentality in the agency.”
“Let's look at midair collisions. The midair over the Grand Canyon in 1958 led to the establishment of the FAA in the first place, correct? So there has been concern about midair collisions for thirty years.”
“Yes.”
“And the government set out to come up with a technological means to avoid them.”
“That was one approach. Yes.”
“But by the time of the San Diego midair some twenty years later, there was
still
no collision-avoidance technology aboard commercial aircraft, even though the FAA had considered that its primary mission since 1958.”
“No, butâ”
“And the technology that has been available for yearsâthe so-called ACAS systemâis
still
not required in commercial aircraft, is it, even after the Aeromexico midair took almost a hundred lives in 1986?”
“No, but a rule has been proposed, andâ”
“Today
, sir. The system is still not required
today.”
“No it isn't.”
Puffed with satisfaction, Tollison glances back at Hawthorne. Blessed with an infinitesimal nod, he looks to the bench. “No more questions,” he announces, then strikes a formal pose. “This completes the liability phase of our evidence, Your Honor. Unless the court prefers otherwise, we will begin the damage portion tomorrow morning.”
Powell nods. “Court stands adjourned until nine
A
.
M
.”
Depleted by the day, Tollison is about to return to the table when he sees Brenda Farnsworth edging toward the door at the back of the room. He shoulders through the crowd and grabs her arm. “We need to talk.”
“No, we don't,” she hisses, and tries to wrench away.
“Just for a minute.”
She allows him to tug her out of the stream of traffic and onto a back pew.
“What is it?” she demands sullenly.
“I just want to know why you're torturing yourself like this. Carol's name isn't going to come up in this trial. No one's going to say bad things about her. Why don't you go home and forget about it? You've got some money now, so spend it. Fix up the house. Take a trip. Do something other than sit here day after day and rehash the crash.”
Her lips flatten. “You just want me to make it easier for you.”
He is genuinely baffled. “Easier to do what?”
“Tell lies.”
“About what? Laura isn't going to claim she and Jack were lovebirds. We threw that out.”
“It's not enough.”
He sighs. “I know you have a reason to be mad at her. Because of me, I mean. But that's over. And Laura's not asking for anything for herself out of this; the money will go to Jack. So why don't you justâ”
Brenda looks toward the table in the front. “I did a lot of reading after the crash, Keith. Law books, mostly. And I came across something about the âbut for' rule. Do you remember that one? It says you legally cause a thing to happen if âbut for' your act it wouldn't have occurred.”
Tollison closes his eyes. “So?”
“So âbut for' Jack Donahue, Carol would still be alive. He
killed
her, Keith. He made her go to LA, which means he put her on that plane, which means he
killed
her.”
“Carol got on that plane because she wanted to, Brenda.”
She shakes her head. “Men like Jack Donahue are
devils
âthey work on women their whole lives, study them like scientists until they learn how to make them see things that aren't there, believe things that are false, feel things they shouldn't feel.
You
read her diaryâJack swooped down on Carol and turned on the charm until she couldn't say no to him. And so she's dead. Well, I won't sit here and watch you convince that jury they should give Jack Donahue a
prize.”
“Jesus Christ, Brenda. Jack's a
basket
case. Even if his therapy works wonders, he'll suffer every day of his life. Don't you think that's enough?”
Her eyes beam her heartache toward his soul. “It hasn't been for me; why should it be for him?”
COMPENSATORY DAMAGESâPERSONAL
INJURY
If, under the court's instructions, you find that the plaintiff is entitled to a verdict against the defendants, or either of them, you must then award plaintiff damages in an amount that will reasonably compensate him for each of the following elements of claimed damage, provided that you find that such harm or loss was suffered by him and proximately caused by the act or omission upon which you base your finding of liability. The amount of such award shall include: