Judge Nixes Punitive Damages for Kentucky Comair Crash Family

February 4, 2011

The family of a Louisiana man killed in the August 2006 crash of a Comair regional jet in Lexington cannot pursue punitive damages from the airline after a federal judge found the company couldn’t be punished for what he called the “reprehensible conduct” of the pilots.

This week’s decision by U.S. District Judge Karl Forester reverses an earlier decision that would have allowed the family of Bryan Keith Woodward to ask a jury if Comair committed gross negligence in the crash of Comair 5191.

Woodward was aboard Comair 5191 when it crashed on Aug. 27, 2006 into a field near Blue Grass Airport, killing 49 people. Co-pilot James Polehinke survived.

The National Transportation Safety Board said investigators found that the pilots’ failed to notice clues that they were on the wrong runway. Acccording to the NTSB, investigators found that the general aviation strip was too short for a commercial plane to execute a proper takeoff.

Forester concluded that — under Kentucky’s wrongful death law — Woodward’s family wouldn’t be able to show “by clear and convincing evidence” that Comair authorized the pilots’ conduct.

Woodward’s family had already been awarded $7.1 million in compensatory damages and $750,000 for pain and suffering. The judge previously allowed the punitive damages claim to go forward, but several legal issues have delayed the trial.

“There have been many opportunities to settle this case for a premium over the $7.1 million compensatory damage award, but the Plaintiffs have chosen not to settle,” Forester wrote.

David Rapoport of Chicago, Ill., the attorney for Woodward’s family, wasn’t immediately available for comment.

“Since the day of the accident, Comair has consistently demonstrated our commitment to reaching fair settlements with the families,” Comair spokeswoman Christine Wever said.

Comair, an Erlanger, Ky.-based subsidiary of Delta Air Lines, Inc., could not have either authorized or anticipated the pilots’ “reprehensible conduct,” including conversations unrelated to getting the plane off the ground the day of the crash, Forester wrote. Forester, in his decision, found that Woodward’s family cannot show that Comair should have anticipated the pilots’ conduct that caused the crash.

“There is no evidence that Comair authorized the pilots to line up and attempt to take off from the wrong runway or that Comair ratified the conduct,” Forester wrote. “To the contrary, the overwhelming evidence is that the Flight 5191 pilots violated Comair training, procedures in Comair’s manuals .. and the required taxi briefing for the first flight of the day.”

Instead, Comair can show that the pilots were trained properly about cross-checking their location before trying to take off, Forester wrote. “That training includes checking to ensure that the aircraft is lined up on the correct runway and setting the heading bug to the runway heading,” the judge added.

Jury selection in a massive case against Comair was called off in 2008 when financial settlements were reached between Comair and all but two families of the 47 passengers who died. One of those settled a few weeks later, leaving only the Woodward case, filed by his wife, Jamie Hebert, and two daughters, Lauren Madison Hebert, 19, and Mattie-Kay Hebert, 15.

Woodward, 39, and his family lived near Lafayette, La., where he was an electrician who often worked on offshore oil rigs. He was on his way to Atlanta for a connecting flight when the plane crashed.

The amounts of all settlements reached with the other passenger families were kept confidential. There are still legal matters pending with the families of the two pilots, Jeffrey Clay, who died in the crash, and Polehinke.

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