February 05, 2016 Articles

Discoverability of Airline Voluntary Safety Programs in Civil Litigation

By Michael S. Krzak

There are several voluntary programs that have been implemented and used by the U.S. Federal Aviation Administration (FAA) and the aviation industry in an effort to enhance aviation safety. Three of these major programs are (1) the Aviation Safety Action Program (ASAP); (2) the Flight Operational Quality Assurance (FOQA) Program; and (3) Line Operations Safety Assessment (LOSA). The FAA and the air transportation industry have used these programs as a means of addressing safety issues and identifying potential safety trends and hazards within a particular airline and the industry in general. However, being proactive and identifying risks is not enough. Coming up with and following through with measures to adequately address the risks that are revealed in such voluntary safety programs is the only way to ensure that safety is enhanced. Having a voluntary program in place but ignoring the findings does nothing to promote and enhance safety.

In the litigation setting, plaintiffs often need to prove the airline’s prior knowledge of safety issues that were ignored or were left uncorrected. To establish the airline’s knowledge and failure to take corrective action and prove that it was a factor in the cause of a crash that resulted in injuries or the death of loved ones, plaintiffs have sought the discovery of ASAP reports to better address liability and punitive damages issues. The defendant air carriers (and other interest groups through amicus briefs) have objected based on privilege and the potential negative, chilling effect on safety programs such as ASAP if the reports are used in litigation. The courts that have ruled on the issue have disagreed with that position and ordered that such voluntary safety programs are discoverable in litigation. Each of these programs is discussed below, as well as the reported decisions and recent legislation that further solidify that they are discoverable in civil litigation.

Aviation Safety Action Program
One of the tools available to the FAA is the ASAP. ASAP reports arose from voluntary programs initiated in 1996 by the FAA allowing airline employees to report safety-related incidents to an Event Review Committee (ERC), typically consisting of a representative of the airline, the airline pilots’ union, and the FAA. “United States Aviation Safety Data: Uses qnd Issues Related to Sanctions and Confidentiality,” 70 J. Air L. & Com. 83, 104 (Winter 2005). The FAA takes “no action” if the report is the only source of information. In re Air Crash at Lexington, 2008 U.S. Dist. LEXIS 3864, at *28–29 (E.D. Ky. Jan. 17, 2008). The FAA is limited to administrative action, a letter of correction, or a warning notice, if the report is not the only source. Id. In any event, the report cannot be used by the company for disciplinary action, although corrective action may be required. Id.

According to the FAA, the goal of the ASAP is to enhance aviation safety through the prevention of accidents and incidents. Its focus is to encourage voluntary reporting of safety issues and events that come to the attention of employees and certain certificate holders, so as to collect safety information that otherwise might not be obtainable and that can be useful in identifying trends and precursors to accidents. The ASAP encourages employees to voluntarily report safety issues even though they may involve an alleged regulatory violation (14 C.F.R.), providing a vehicle for the resolution of safety issues through corrective action as opposed to enforcement actions—where the data provided qualify. In other words, enforcement-related incentives have been designed into the program. An ASAP is based on a safety partnership that will include the FAA and the certificate holder, and may include any third party such as the employee’s labor organization. See FAA, Aviation Safety Action Program.

Flight Operational Quality Assurance
FOQA is another voluntary aviation program designed to improve aviation safety through the proactive collection and analysis of recorded digital flight data generated during aircraft operations. Flight operations quality assurance is a method of capturing, analyzing, and visualizing the data generated by an aircraft moving through the air from one point to another. FOQA programs provide more information about, and greater insight into, the total flight operations environment. FOQA data are unique because they can provide objective information that is not available through other methods. Using a FOQA program, operators can use the data to identify operational situations in which there is increased risk, allowing the operator to take early corrective action before that risk results in an incident or accident and to correct deficiencies in all areas of flight operations. Properly used, FOQA data can reduce or eliminate safety risks, as well as minimize deviations from regulations. Through access to de-identified aggregate FOQA data, the FAA can identify and analyze national trends and target resources to reduce operational risks in the National Airspace System (NAS), Air Traffic Control (ATC), flight operations, and airport operations. See FAA, Flight Operational Quality Assurance.

Based on the experiences of foreign air carriers, the results of several FAA sponsored studies, and input received from government/industry safety forums, the FAA concluded that wide implementation of FOQA programs could have significant potential to reduce air carrier accident rates below current levels.

Several airlines and air forces have initiated FOQA programs to collect, store, and analyze recorded flight data. The goal is to improve the organization’s or unit’s overall safety, increase maintenance effectiveness, and reduce operational costs. The value of FOQA programs is the early identification of adverse safety trends, which, if uncorrected, could lead to accidents. A key element in FOQA is the application of corrective action and follow-up to ensure that unsafe conditions are effectively remediated.

The FAA principal operations inspectors and air carrier inspectors have roles in monitoring continuing FOQA operations. FOQA must interface and be coordinated with the operator’s other safety programs, such as the ASAP, the Advanced Qualification Program, pilot reporting systems, and the Voluntary Disclosure Reporting Program.The FOQA program is another tool in the FAA’s and the operator’s overall operational risk assessment and prevention program. Being proactive in identifying risk coupled with coming up with and following through with measures to adequately address the risk enhances safety. Having a voluntary program in place but ignoring the findings does nothing.

Line Operations Safety Assessment
LOSA is another voluntary program. The program started as a joint effort between the FAA and university researchers to check the success of Crew Resource Management (CRM) use in the airline industry during the 1990s. See Air Force Safety Center, Proactive Aviation Safety, LOSA. The Air Mobility Command conducted its first LOSA in 2011, and the Air Force Safety Center promotes the assessments as a best practice for all major commands. Id.

LOSA is a non-punitive, unobtrusive, peer-to-peer cockpit observation program that collects safety-related flight data during normal operations in order to assess safety margins and improvement measures. Through peer observations, in strict non-jeopardy conditions, threats and errors are identified and managed before they lead to incidents and accidents. In a joint research and development effort, the FAA and Airline Business Partners recently extended LOSA to the aviation maintenance and ramp environments. Id.

The purpose behind LOSA is to provide leaders with early warnings of developing safety problems. The program works by selecting and training highly qualified pilots to ride on cockpit jump seats during routine flights to record the threats encountered by aircrew, the types of errors committed, and how the crews managed those threats and errors in order to maintain safety. How crews manage threats and errors provides excellent insights into training and organizational culture. LOSA observers also study CRM performance and perform a carefully structured interview to collect aircrew input for safety improvement. Id.

In LOSA, trained observers collect data about pilot behavior and actions during normal flight operations from seats on the flight deck. The monitoring by these trained observers results in the gathering of data that are intended to show pilot strategies for managing different situations. The audits are conducted under strict no-jeopardy conditions. In other words, flight crews are not held accountable for their actions and errors that are observed.

According to the FAA’s website, managing risks has become increasingly important in modern organizations. See FAA, Line Operations Safety Assessments. The aviation industry is maturing in its preference for proactive intervention over post-accident remediation. Systems such as the National Aeronautics and Space Administration’s Aviation Safety Reporting System and ASAP encourage air carrier and repair station employees to voluntarily report unsafe conditions. However, those systems are used reactively following adverse events. LOSA addresses aviation safety proactively.

The development and success of LOSA was based on 10 essential characteristics:

1. peer-to-peer observations during normal operations
2. anonymous, confidential, and non-punitive data collection
3. voluntary participation
4. trusted and trained observers
5. joint management/union sponsorship
6. systematic observation instrument based on Threat and Error Management (TEM)
7. secure data collection repository
8. data verification roundtables
9. data-derived targets for enhancement
10. feedback of results to the workforce

See id.

Benefits of using LOSA include systematically and scientifically identifying the strengths and weaknesses of normal operations, decreasing the frequency of undesirable events, assessing the quality and usability of procedures, detecting inappropriate techniques, identifying design issues with automation as evidenced through mode errors and aircrew use, and detecting normalization of deviance in the form of workarounds and shortcuts used by aircrew, air traffic controllers, and dispatchers. See Air Force Safety Center, Proactive Aviation Safety, LOSA, supra.

LOSA has also been extended to include activities relating to maintenance and on the ramp through the use of maintenance and ramp LOSA forms.

Aviation Safety Programs and Civil Litigation
In litigation, it is important for the plaintiff to prove that the airline had knowledge of safety-related issues that the airline chose to ignore or, in the alternative, permitted to go uncorrected. To establish such knowledge, or the failure to take appropriate action to correct the known danger that the plaintiffs allege was a factor in the cause of a crash, plaintiffs have sought the discovery of ASAP reports. This has been done for the dual purpose of establishing liability and punitive damages. The airlines and airline groups (through amicus briefs) have objected, claiming qualified privilege as well arguing that permitting discovery in civil litigation would have a potential negative, chilling effect on safety programs such as ASAP. The courts that have looked at the issue have disagreed with those objections.

For example, United States District Court for the Eastern District of Kentucky permitted the discovery of ASAP reports in the Comair Flight 5191 litigation (arising out of the crash of a Bombardier CRJ-100 on August 27, 2006, in Lexington, Kentucky). Comair’s arguments against producing the ASAP reports were based in part on In re Air Crash Near Cali, Colombia on December 20, 1995, 959 F. Supp. 1529 (S.D. Fla. 1997). In holding that the ASAP reports should be turned over, Judge Forester noted that no court in 11 years had found it appropriate to follow the Cali decision, in which the court fashioned a quasi-privilege applicable to ASAP reports. Judge Forester also noted that the 1997 Cali decision pre-dated by six years the FAA’s issuance of Order 8000.82, which made clear that the disclosure of ASAP information was governed by 14 C.F.R. part 193. See In re Air Crash at Lexington, Kentucky, 545 F. Supp. 2d 618 (E.D. Ky. 2008).

Furthermore, in In re Air Crash at Lexington, the court noted that, in appropriate circumstances, any documents produced could be subject to a protective order. See In re Air Crash at Lexington, 2008 U.S. Dist. LEXIS 3864 (E.D. Ky. Jan. 17, 2008). However, the court found that the plaintiffs had demonstrated a substantial need for disclosure of the ASAP reports. Id. In addition, the court ordered the defendant to make a corporate representative available for deposition regarding the reports. Id. at *53. It was the opinion of the magistrate judge that the defendant’s ASAP reports were not subject to a self-critical analysis privilege or any similar qualified privilege. Id. at *51.

Discovery of ASAP reports was also permitted in the Continental Connection Flight 3407 litigation (arising out of the crash of a Bombardier Dash 8-Q400 on February 12, 2009, near Clarence Center, New York). The court noted that privileges are disfavored as an impediment in the search for truth in the litigation process and should therefore not be lightly created or expansively construed. See In re Air Crash Near Clarence Center, New York on February 12, 2009, 2013 WL 6633075 (W.D.N.Y. Nov. 8, 2013). A judicially created privilege governing discovery of ASAP reports is unwarranted and should not be recognized. Id.

While the In re Air Crash at Lexington and In re Air Crash Near Clarence Center cases provide sound reasoning on the discoverability of the ASAP reports, the FAA Modernization and Reform Act of 2012 lends even further support.

The FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (Feb. 14, 2012), has a stated purpose to “improve aviation safety.” It contains language that prohibits an ASAP report from being produced by the FAA in response to a Freedom of Information Act request unless the ASAP report has been redacted to delete identifying information regarding the individual submitting the report. Id. § 310. The language of the statute does not contain any provision that would shield ASAP, FOQA, and LOSA reports from being subject to discovery or use in civil litigation. In fact, such language was specifically rejected by Congress and removed from the final bill that ultimately became law. Coupled with the case law cited above, the exclusion of this language from the statute should result in reduced efforts by airlines and their counsel to object to production of ASAP reports and similar voluntary safety programs in civil litigation.

Keywords: mass torts litigation, aviation safety, discovery, privilege, FAA Modernization and Reform Act of 2012

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