Introduction
On January 8, 2003, Air Midwest Flight 5481 crashed near Charlotte, North Carolina, killing all aboard. As in most commercial airlines cases, the individual families resolved their respective claims confidentially, and quietly moved on without further public comment until May 6, 2005 when, as a term of the settlement in Shepherd v. Air Midwest, et al., the president of Air Midwest publicly apologized to the families involved in that crash.

Client Commitment
In most aviation disasters, the surviving families experience the five stages of grief at varying rates. After the first stage - denial, the next stage, anger, usually follows. All surviving family members want implementation of corrective action so that no other family will have to experience a similar loss in the future.

Some surviving family members want revenge. Most at least want a full investigation, some a private audience, and a very, very few demand full accountability through either a public apology or trial. For some families this need for public acceptance of responsibility by trial or public statement rises to a level of determination above all else.

The Shepherds were such a family. They were missionaries, committed to values of acknowledgment of wrongdoing and contrition. They became dedicated to obtain both assurances of safety changes, a public announcement of these changes, acknowledgment of responsibility, and an apology for this disaster and death of their loved one. The family’s unfaltering commitment provided the impetus to overcome the many obstacles to obtain this result.

Defendants' Response 
Most defendants appear to be guided by the traditional legal thinking of their defense counsel and are averse to publishing any kind of apology, acknowledgment of fault, or other public statement. Their refusal to think “outside the box” is an impediment to helping families get through their loss, and it deprives the defendants of the opportunity to enhance their public image in the aftermath of tragedy. Airlines are public service providers. The reputation of their management for being truly customer oriented could be developed on this occasion.

Initially, defendants had a hard time accepting that our clients were committed to obtaining a public statement. It was not until the Shepherd family members took the position that they were unwilling to discuss compensation whatsoever until their safety concerns and public apology had been addressed satisfactorily, that the defendants conceded serious consideration to these issues.Once the breakthrough on the concept occurred, the “wording” of the defendants’ public statement became the next impediment. This again provided a ripe opportunity for both the airlines and its legal counsel to craft a meaningful statement. At the same time, there were concerns about impairing the defendants’ indemnity claims against other parties involved in the accident. Specifically, in our case, the manufacturer who wrote the maintenance manual, refused to participate at all in the settlement funding or the apology. This lack of participation was handled in the words of the apology itself, by the sentence:

Air Midwest and its maintenance provider, Vertex, acknowledge deficiencies, which together with the wording of the aircraft maintenance manuals, contributed to this accident.

In the end, the settlement’s public apology component expanded the services provided by defense counsel and, ultimately, we believe, enhanced the defendants’ public image and provided a very moving experience to all persons present. Of inestimable importance, the public apology and expressions of determination to put safety first gave a sense of solace and closure to the families that could not be achieved with money alone.

Judicial Approach
Similarly, the court was skeptical about the clients' need for a public statement. Trials are considered to be a search for the truth that results in the presentation of evidence, argument, deliberation, and ultimate verdict. A public apology hardly fits in the process. However, given the judicial emphasis and focus on alternative dispute resolution, the public apology should be taken into account.

This case was assigned by the district judge to a magistrate judge for mediation. The magistrate was, at the outset, likewise skeptical, and insisted on speaking directly with the clients to test their mettle. The magistrate even requested that he be permitted to speak to the clients without their counsel present.

The clients refused this request in accordance with their counsels' recommendation. However, the magistrate judge did “cross examine” them on the nature, extent, and dedication to their request for a public apology. Once the magistrate was convinced of their bona fides, that conviction was communicated to the defense and ultimately to the district judge.

The Negotiations
The parties participated in two formal mediation sessions. In the first session, a retired judge, and in the second session, the sitting magistrate judge, served as the appointed mediator. Both failed because neither the defense nor the mediator believed that a public apology was a genuinely material part of the negotiations.

The defense, initially, appeared to think that the demand was some sort of negotiation tactic cooked up by the plaintiffs’ counsel. It took time, patience and tenacity to convince everyone that the apology was the clients’ firm demand, without which the case could only be resolved by trial.

The threat of a trial is naturally enhanced if punitive damages are not ruled out, but the unavailability of punitive damages does not necessarily negate the threat. The defendants will always know there is the possibility of a runaway verdict and there will most certainly be further public exposure and attorneys fees.

In our case, punitive damages were still in the mix since there was no ruling to the contrary. Every member of our mock juries had awarded them. Incidentally, the importance of properly and professionally administered local mock trials cannot be overstated and they served a vital role in preserving our rights to pursue punitive damages and obtain a public apology.

Plaintiffs’ counsel made it clear from the inception of the public apology negotiations that the monetary settlement would not be reduced in exchange for the public apology. Plaintiffs insisted that they would not negotiate the settlement amount until defendants made a commitment in principle, to issue a public apology as a term of the settlement.

After the clients’ commitment to a public apology and their refusal to trade settlement money for it became clear, and the defense’s commitment to the apology was received, the negotiations concerning both the amount and the apology proceeded in parallel. The apology was negotiated through defense counsel while the amount was negotiated through a senior insurance adjuster. The clients initially suggested the wording and they had to approve all changes.

Judicial intervention in the negotiations was minimal, except that the magistrate (in his capacity as mediator) ensured that the negotiations were progressing at all times on both the apology and the amount. He always indicated that he stood ready and willing to reconvene the mediation if and when necessary to help resolve either issue. At the settlement approval hearing, the judge commented that he had learned from this case that the best way to accommodate settlement was to “get out of the way.”

Implementation
The Shepherds invited all the families of Flight 5481 to the apology ceremony. In order to make it a truly public event, but not have it turn into a media circus, they also invited one newspaper and one TV reporter to document the proceedings.

The Shepherds thoughtfully chose the location for the apology to take place at the crash memorial site at the Charlotte/Douglas International Airport. The actual accommodations for the event (chairs, canopy, flowers, public address equipment, etc.) was provided by an event planner chosen after conversations by our Los Angeles office with a number of qualified entities obtained from the Internet.

The Result
On May 6, 2005 in Charlotte, North Carolina, at about 11:00 a.m., the following dialogue occurred at the Memorial for the crash of Air Midwest Flight 5481.

The ceremony was attended by approximately 20 family members and friends of the 21 killed in the crash as well as Air Midwest President, Greg Stephens, Vertex Aerospace (now known as L3 Communications and previously as Raytheon Aerospace), and Baum Hedlund attorneys, Ron Goldman, Michael Baum, Paul Hedlund, and John Greaves... . A videographer and a photographer were hired to record the event along with the two reporters.

Initial comments before the public apology
Good morning ladies and gentlemen. My name is Ron Goldman. I am here with my partners, Michael Baum, Paul Hedlund, and John Greaves... . We are the heart of the aviation team that has been active for the Shepherds and the Coyners in this litigation. My role here today is I will be introducing the public apology and then I will have a few brief remarks after the public apology is completed. I want to acknowledge the presence of the Shepherds, the Coyners, and each of you that have come here today to share this experience.

As a material part of the settlement and the terms which were agreed upon, Pastor Douglas and Mrs. Shepherd required a public apology to be made. Air Midwest and Vertex, formerly known as Raytheon Aerospace and now known as L-3 Communications, have agreed to that condition and that=s what brings us here today. I am gratified to be able to tell you that Air Midwest and Vertex have taken the burden of the statement you are about to hear, with, we believe, a seriousness and sincerity of purpose. Accordingly and commendably they have designated the President of Air Midwest to come before you, and the general public, and deliver the public apology.

Apology by Air Midwest's President, Greg Stephens My name is Greg Stephens and I am here to offer a statement on behalf of Air Midwest and also of Vertex. We are here today to remember the victims of Flight 5481 and to offer our apologies, our condolences and sincere sympathy to the surviving family members of the passengers and crew who perished in the January 8, 2003 crash of Air Midwest Flight 5481. We are deeply saddened by your loss. The National Transportation Safety Board's investigation disclosed errors which caused and contributed to this tragic accident. We participated fully with the NTSB in the investigation and understand our roles leading up to the crash. Air Midwest and its maintenance provider, Vertex, acknowledge deficiencies, which together with the wording of the aircraft maintenance manuals, contributed to this accident. This tragedy has caused us to investigate rigorously our policies and guidelines regarding aircraft maintenance, operation and safety in general. We have taken substantial measures to prevent similar accidents and incidents in the future, so that your losses will not have been suffered in vain. We have also implemented or are implementing the applicable NTSB safety recommendations following this accident. We are truly sorry, and regret and apologize to everyone affected by this tragic event.

Closing Comments After Public Apology
by Attorney Ron Goldman
Last February I was returning from Philadelphia and I picked up a newspaper at the airport -- the Philadelphia Inquirer -- and I saw something that was rather poignant, and I think important for today, for it talked about a settlement that had occurred in a wrongful death case, and there is a little box here that says "Family Reaction," and the family reaction, even though they had received a substantial settlement, says “We wanted accountability, we wanted admission of responsibility for Jessie's death, apologies from all parties and open access to all documents. We received none of those things.”

Well, I thought that was something that heightens what I believe is a need that most people have. It is an expression of a quest for justice.

Justice means more than just an adequate settlement or verdict, even though the economic part is vital and an important part of the equation. But justice is given a fuller meaning when those responsible for contributing to the cause of a tragedy acknowledge their role, accept accountability and pledge to work harder to root out and correct both the mechanical deficiencies and any culture or attitude that may allow compromises with safety to go unchallenged. Justice is universal and it is timeless and it is a human need. While absolute justice, like perfection, is more of a goal than something that can be achieved absolutely.

Our quest for it should never be cynically thought of. To the contrary, it should be pursued with vigor and ardor and conviction, with honesty, with ethics and skill, and most importantly, with courage. For it takes more courage to seek justice than to seek vengeance. Aviation safety and justice owe a debt of gratitude to each of you. Not only those who are here, but each of you who wanted to be here. But we especially acknowledge Pastor Doug and Mrs. Shepherd for the fortitude and courage that they had and have to stand by their principles and their quest for a measure of justice to arise on behalf of all from this tragedy, to the end that no person aboard Flight 5481 shall have died in vain. It is their hope and ours that we have delivered here today for each of you, some measure of justice.

Source

Paul J. Hedlund and Ronald L. M. Goldman
Baum Hedlund Partners and Aviation Attorneys
Paul J. Hedlund is a senior partner and trial lawyer for the national law firm of Baum Hedlund. Mr. Hedlund has represented victims of wrongful death and personal injury for more than 30 years and is a member of the firm's aviation team, which has represented hundreds of victims in aviation disasters. Ronald L. M. Goldman is lead trial counsel and a senior partner at Baum Hedlund and also a member of the firm's aviation team. Mr. Goldman has been practicing law for more than 40 years. He is a Board Certified Civil Trial Advocate. At Pepperdine School of Law, as an adjunct Professor for 21 years, he developed and taught the course in Aviation Accident Law.

Published in Andrews Aviation Litigation Reporter, Volume 24, Issue 5 / April 2006 by Thomson West and ATLA-Association of Trial Lawyers of America Aviation Law Section Newsletter Vol. 13, No. 3, Spring 2006