Graeber viewed Brenner as a weak manager who let the group’s meetings drift into pointless discussions. Instead of staying focused on the pilots, the group would go off on tangents about wake turbulence and servo valves and then someone would say they should stick to the facts and the conversation would abruptly end. Brenner seemed unwilling to take charge and keep the group focused. “Malcolm is supposedly the best human factors guy [the safety board has] got, which is a sad statement,” Graeber said.
But Brenner felt he had to give everyone a chance to air his or her opinion. He knew they were at the edge of what could be proved scientifically, but he wanted to consider every possibility. To address Boeing’s questions, he enlisted a pathologist to study the broken rudder pedals and try to determine if the pilots were pushing left or right at impact. (The doctor concluded left, but that was later called into question because he was not a metallurgist.) He and other group members tracked down further training records to determine if Emmett and Germano had aerobatic experience (none of any significance) and interviewed two Southwest Airlines 737 pilots to see whether they had used the rudder when they encountered a sudden roll in March. (The pilots did, but one pushed right, the other left.) Brenner’s group also reviewed medical records for the USAir pilots to see if they had been treated for any problems that might affect their behavior in the cockpit. (They had not, although Germano had gotten allergy shots to treat his runny nose and postnasal drip.)
When it was all added up, Brenner’s team had lots of evidence but nothing close to a conclusion. The pilots had little aerobatic experience, but they should not have needed any special training to recover from wake turbulence. Some clues suggested that they had pushed the pedals, but they could have done that right before impact. Ultimately the team was stymied. On June 6, 1995, Brenner’s group approved this statement: “There is no way we can conclude for certain that the crew did or did not put in rudder input.”
14. DECEDENT
In the eyes of the Cook County Circuit Court, the value of Joan’s life would be determined primarily by coldhearted economics—how long she would have lived, how much she would have earned in her lifetime, and how much she would have spent. To calculate that number, economists would use life expectancy tables, details about Joan’s health, estimates of her career earnings, and Brett’s account of her household chores.
Brett’s lawyers would make an initial settlement proposal to USAir’s insurance company, based on prior cases and Joan’s earnings. But if the company balked at that number—and that was usually what happened—his law firm would hire an economist to do a more scholarly report based on the interrogatories and depositions about Joan.
In previous crashes, airlines and their insurers had occasionally delved into the private lives of crash victims by hiring private detectives to question neighbors and coworkers of the victim. Airlines called it the search for truth, so they could pay a fair price for a claim. In one famous 1986 case, Delta Air Lines fought for the right to mention in court that a passenger was gay. The airline said the man’s sexuality was relevant because of the possibility that he might have gotten AIDS and therefore would have had a shorter life. In other cases, airlines have dredged up information about victims’ marital infidelities, drug addictions, and alcohol abuse. But only rarely did airlines hire private detectives. Usually the important details about a victim emerged from interrogatories and depositions.
Awards in plane crash cases averaged $2 million, but they could be much higher for people in high-paying jobs with a long career ahead of them. A planeload of young doctors would be a lot more expensive than a plane full of sixty-year-old grocery-store cashiers. The family of a $300,000-per-year surgeon won a $7.4 million verdict after a 1992 USAir crash. The family of Rodney Culver, a running back with the San Diego Chargers who was killed in the 1996 ValuJet crash, received $28 million.
USAir’s chief counsel for the Flight 427 cases was a brash Washington attorney named Mark Dombroff Although Boeing had its own team of lawyers from a prominent Seattle firm, Dombroff and a Chicago law firm had taken the lead for settling the cases. Boeing and USAir never revealed how they had agreed to divide up the liability, but it was clear that Dombroff and the insurance company Associated Aviation Underwriters were speaking for both USAir and Boeing.
Brett’s first legal skirmish with USAir and Boeing had been about the venue for the case. Dombroff removed the case to federal court in Chicago so it would be transferred to federal court in Pittsburgh, which was likely to be more favorable for USAir. But Brett’s lawyers managed to get the case back to Chicago because they had shrewdly listed Gerald Fox as one of the defendants. Fox was the USAir maintenance chief at O’Hare who had the gurgling-sound conversation with Germano. That gave the case a toehold in Chicago and helped convince a federal judge to keep it in Cook County Circuit Court.
In the file folder for Brett’s lawsuit, Case No. 94 L 12916, Joan was referred to as “DECEDENT.” USAir’s first step in determining the size of the award was to send Brett an interrogatory, a series of broad questions about Joan’s lifestyle, education, career, and income. It would give Dombroff and the insurance company an overview of Joan’s life so they could begin settlement discussions.
State complete details concerning DECEDENT’S employment history, including military service. Include in your description the title, position or rank of each job held, the name and business address of the person or entity employing DECEDENT at each job, the dates each employment began and ended, the type of work involved in each job, the name of the immediate supervisor for each job, the salary, wages, sources and total yearly compensation (including fringe benefits) received for each job, and the date and reason any employment was terminated.
Brett replied that Joan had been a waitress at J.C.’s Cafe in Iowa City, Iowa, while she attended college, earning minimum wage plus tips; she was assistant manager of a restaurant in Vail, Colorado, at $10 per hour; and then she took the job with Akzo Nobel Chemical, where she earned $46,000 per year plus a bonus. For her reason for leaving Akzo, Brett and his lawyers wrote: “Self-explanatory.” There was no need to write “killed in plane crash.”
Fully describe DECEDENT’S health for the ten (10) years prior to death. Include in your description any injury, illness, diseases, or condition suffered by DECEDENT and, for each injury, illness, disease or condition suffered, describe how any effect was manifested… identify all health care providers of any kind… and set forth the reasons for said consultation and/or treatment. Also state whether DECEDENT was ever refused life or disability insurance.
Brett and his lawyer said Joan was in excellent health, that her only significant problem in the past ten years had been a kidney infection. She had regular exams with her doctor and gynecologist and routine visits with her dentist. She had never been refused life or disability insurance.
Describe DECEDENT’S eating, smoking and alcoholic intake habits and state whether DECEDENT, at the time of his/her death or at any time during the ten (10) years prior to that date, took any medication (narcotic or otherwise) or other type of drug, whether DECEDENT ever participated in Alcoholics Anonymous or any similar 12-step or self-help group, the identity of such medication, drugs or groups and the reasons for same.
“Decedent’s eating habits were normal,” Brett and the lawyers wrote. “Plaintiff’s decedent consumed alcohol only socially and did not smoke. Plaintiff’s decedent did not take any medications (with exception to an occasional aspirin for an ailment), narcotic or otherwise, on a regular basis in the ten (10) years prior to her death. Plaintiff’s decedent did not participate in any self-help group.”