Unusual Attitudes: “Expert Witnessing” Adventures

** Illustration by Chris Gall**

A lawyer called recently and asked for some help with an aviation-related case. I think he probably inherited it, being the most junior associate in his law firm. When it became apparent that this was a pretty complex issue, and knowing what it costs to consult with a lawyer for longer than two nanoseconds, I quoted him my “dual” rate. With the meter running, we resumed the conversation.

Actually, I’m not much of an expert at anything aeronautical, except maybe flying airplanes with tailwheels — not to include Beech 18s and Rod McClendon’s Howard DGA. Actually, no pilot in history has enjoyed consistent wedded bliss with either of these confounded, cantankerous and wonderful machines. But I guess I know as much as anybody about evaluating aeronauts. In 1970 the FAA OK’d me as an examiner for my Part 141 flying school, and 10 years later I joined the dark side, where I honed those skills for nearly three decades. In the agency it was a potpourri of initial CFIs, 709 re-exams, medical flight tests, Part 121 and 135 proficiency and competency checks, and type ratings in DC-3s (plain-Janes and turbines), SA-227s and an occasional Lodestar. There were single- and multiengine seaplanes we flew off the Ohio River and, especially in the ’90s, an amazing number of goofy but fun hot air balloon rides. (Expect balloonists’ letters, Robert, on the heels of the skydivers’.) Having emerged relatively intact back into the real world, I’m still at it with assorted practical tests and a little DC-3 check airman work.

I miss giving DC-3 initial type ratings, but I dropped out of the EAA’s NDPER (National Designated Pilot Examiner) “club” about a year ago. It didn’t seem worth the annual trek to Oshkosh for a mandatory meeting in mid-January, because DC-3 activity had so drastically fallen off. Several years ago, the FAA dropped the annual proficiency checks for DC-3 drivers — no, you can’t legally fly a Goon solo under any part of the FARs I know about, but since the original Douglas type certification data sheet calls it a single-pilot airplane, the FAA agreed they weren’t required. Those 61.58 checks were the bread and butter for an examiner; in this economy, with the going rate for a full type rating around $10,000, people weren’t exactly standing in line for PIC type ratings in DC-3s.

Then things picked up and I began getting type ride requests, but when I asked Verne Jobst at EAA for reinstatement, he turned me down, saying the group felt I “wasn’t needed.” I think they were happy to be rid of the mouthy br--, uh, vocal lady, who hated meetings that rehash the same stuff and are held in the middle of Wisconsin in the middle of winter. If only I were as thick-skinned as I pretend to be — but I’m not. Being turned down by my peers (and heroes) hurt. But, hey, that’s life, and if you’re lucky enough to have been through Catholic grade school, you offer it up for the poor souls in purgatory. Note to God: Knock it off; I’ve sprung my fair share of suffering souls.

Nor am I an expert on aviation law; I usually have no idea what “61.this” or “135.that” means without looking it up. With FAA regulations, you’re dealing with something called “14 CFR,” supplemented with Orders and a body of significant interpretations. So I occasionally get calls from attorneys unfamiliar with administrative law or FAA processes and even an occasional request to testify as an “expert witness.” If I’m not certain I’m on firm ground and passionate about the action, the answer is no. These litigations aren’t fun and involve courtrooms with judges and juries trying to decide who did what to whom, who owes compensation and how much. Mostly, I’m just uncomfortable testifying against any pilot in the hot seat for unintentionally screwing up. It’s that stuff about “casting the first stone” and “there but for the grace of God...”

My introduction to “expert witnessing” happened a few years back, when a man prominent in aviation circles spoke at a CFI meeting in southern Ohio. A longtime pilot, he’d retired after a lengthy career heading the flight department at a large university. And, as a founding member of the National Association of Flight Instructors, he was happy to talk to this large group of CFIs concerned about liability. (We all know that if you let yourself chew on the possibilities, you’ll just hang it up and stay on the ground, only to eventually be sued by a disgruntled employee or a houseguest who trips on your front porch steps.)

Anyway, I guess because his son was an attorney who dealt with aviation-law cases, the speaker had considerable experience serving as an expert witness. He described a case where he’d testified in support of an insurance company and aircraft and, in splendid stentorian tones (effective with panels of jurors who don’t know an Airbus from an Airknocker), he described the pilot’s “careless” attitude and the grossly “reckless” actions leading to the crash of a Glasair. My ears perked up because, although the accident happened in another part of the country, it involved a local airplane; I’d watched it being built and had known the pilot forever. And, friend or not, I was professionally and morally certain he was anything but dumb, careless or reckless. The accident and liability involved some hotly disputed design issues, which I don’t think were ever resolved.

At home that night, a Google search revealed that our speaker had carved out a lucrative retirement serving as a kind of career aviation expert witness. His opinions consistently supported the claims of parties seeking damages from pilots or aircraft operators and they consistently assigned blame to the pilot involved. Until then, I'd rather naively assumed most aviators would testify as experts only in defense of a fellow pilot embroiled in some ugly legal action.


But, several years later, I surprised myself by agreeing to testify as an expert in an accident case, one where nobody was injured but a Cessna 172 was badly bent. I am, after all, more expert than most at screwing up landings.

It seems a student pilot and the 172 bounded down the runway, headed off through the weeds, crossed a ditch, and then she lost control. The flight school had sued for damages when the student pilot refused to pay the deductible on the hull insurance despite having signed a rental agreement with that requirement. She claimed the insurance paperwork was obscure, that it hadn’t been fully explained and was presented in a hurry-up-and-sign-this-thing-before-you-solo scenario. That, however, was another issue. In this action, she was suing the school for malfeasance — for providing substandard, inadequate instruction.

Actually, I admired this widowed lady of a certain age for doggedly sticking with flying lessons long after most people would have given up. She had, several times, discussed her concerns with different instructors throughout the year and a half of training. The consensus: “Yes, you’re taking longer than most students — much longer — but there is progress, and you’ll succeed if you persevere.” And she did. Somewhere north of 60 hours, she soloed, made several more solo flights, and then launched into dual and solo cross-countries. Significantly, she’d also soloed at another school in another area of the country, where she often traveled.

I wasn’t going to get involved in the case until I learned that her lawyer had engaged his own expert — a quasi-aviation professional whose opinions and motivations I didn’t much respect. In his professional, expert opinion, the school was at fault in this accident because its instruction wasn’t up to FAA standards. I knew it was a well-run, long-established school, and it provided the ground and flight training for the aviation degree program at a local college. The school attracted students from all over, had an excellent reputation and a good record. After talking to her instructors and poring through logbooks and training records, I agreed to testify, convinced that the “poor instruction” claim was an attempt to avoid paying what, justifiably, the student owed for the damaged airplane. Who’s to say if my testimony had any bearing on the jury’s decision, but that’s what they decided too. (Well, shucks, I am a pretty awesome expert.)

Sure, justice was served but, you know, I still felt uncomfortable about testifying against another pilot. If they’d stuck with the insurance issue — that she didn’t understand what she was signing — there may have been a case and I would have stayed out of it. But Jiminy Cricket, that (sometimes annoying) little guy who sits on your shoulder kept whispering in my ear that defending this school and its instructors was the right thing to do.

OK, out-experting the other expert was pretty sweet too.

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Martha Lunken is a lifelong pilot, former FAA inspector and defrocked pilot examiner. She flies a Cessna 180 and anything with a tailwheel, from Cubs to DC-3s.

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