Aviation Officials Say Kentucky Ruling Could Jeopardize Safety Reporting

February 22, 2008

A judge’s controversial ruling in a Kentucky plane crash liability case has sparked concern across the aviation industry about the long-term survival of a popular program that allows air travel workers to privately report safety violations.

U.S. District Judge Karl Forester, who is handling several lawsuits stemming from the August 2006 crash in Kentucky that killed 49 people, ruled this week that the confidential reports can be admitted into evidence.

The decision was a blow to Comair, the airline being sued, as well as Southwest Airlines, a national pilots union and the Federal Aviation Administration – all of which filed briefs arguing that the confidential reporting system could be undermined if its information is allowed at trial.

Capt. John Prater, president of the Air Line Pilots Association, which represents Comair and 42 other airlines, said he would ask Congress to get involved to protect the Aviation Safety Action Program. It was created to allows pilots, flight attendants, air traffic controllers, mechanics and others to report problems without being identified, then pass that information on to FAA to identify trends.

Prater said he knew of no other time an ASAP report has been used in a liability case.

“This has the potential of destroying the program nationwide,” Prater said of the ruling. “That would be a travesty because these programs have made America’s skies safer.”

Forester, whose ruling Tuesday upheld a similar one in the case last month by a U.S. magistrate judge, said Comair’s argument “brings to mind cymbals banging together very loudly, foretelling the destruction of the ASAP program and unsafe skies for the public.” He said if the reports are supposed to be off limits in lawsuits, Congress or the FAA needs to change the regulations.

Southwest Airlines defended its rival in the friend of the court brief.

“Quite simply, if airline industry personnel know that filing an ASAP report has the potential to embroil them in civil litigation, they will be much less likely to report potential safety problems,” Southwest’s attorneys wrote.

Comair spokeswoman Kate Marx said the airline would continue to participate in the ASAP program despite the ruling but was exploring legal options. FAA spokeswoman Laura Brown said the agency had supported Comair in its effort to keep the information private.

Marx said she didn’t know what specific information from the database was being targeted in the case, and lawyers for the families didn’t immediately return calls Wednesday seeking comment.

Comair 5191 crashed the morning of Aug. 27, 2006, after trying to take off from a Lexington, Ky., general aviation runway that was too short. The plane clipped a perimeter fence and trees before crashing on a farm less than a mile from the airport, killing 49 of the 50 people on board.

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