Opinion
CIVIL ACTION NO. 2:13-cv-00075-WCO
02-17-2016
Kirk Knous, as Executor of the Estates of James Judson, Jr., Deceased, and Elizabeth Ann Judson, Deceased; Dean Judson, Individually and as Survivor of James Judson Jr., Deceased, and Elizabeth Ann Judson, Deceased; and Lauren Judson, Individually and as Survivor of James Judson, Jr., Deceased, and Elizabeth Ann Judson, Deceased, Plaintiffs, v. United States of America, Defendant.
Bruce Andrew Lampert, David I. Katzman, John D. McClune, Patrick James Gallagher, Katzman Lampert & McClune, Troy, MI, E. Alan Armstrong, Alan Armstrong, Attorney at Law, Atlanta, GA, for Plaintiffs. Alan D. Mattioni, Colleen Conlin, Orla Margaret Brady, United States Department of Justice, Washington, DC, Darcy F. Coty, U.S. Attorneys Office, Atlanta, GA, for Defendant.
Bruce Andrew Lampert, David I. Katzman, John D. McClune, Patrick James Gallagher, Katzman Lampert & McClune, Troy, MI, E. Alan Armstrong, Alan Armstrong, Attorney at Law, Atlanta, GA, for Plaintiffs.
Alan D. Mattioni, Colleen Conlin, Orla Margaret Brady, United States Department of Justice, Washington, DC, Darcy F. Coty, U.S. Attorneys Office, Atlanta, GA, for Defendant.
ORDER
WILLIAM C. O'KELLEY, Senior United States District Judge
I. Introduction
This case arises from a plane crash that occurred near Rienza, Mississippi. On October 26, 2010, pilot James Judson and his wife, Elizabeth Judson, departed from Olive Branch Airport ("KOLV") in his Beechcraft B36TC Bonanza airplane federally registered as N8045Y. En route to DeKalb-Peachtree Airport ("PDK"), the couple approached a line of weather, and their plane ultimately broke apart in flight. The executor of decedents' estates and decedents' children filed the present action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et seq. , for alleged negligent weather reporting by an air traffic controller, Kenneth Dech, at Memphis Air Route Traffic Control Center ("Memphis Center"). After a period of discovery, this case was tried before the court in a bifurcated fashion in late September and October, 2015.
The B36TC Beechcraft Bonanza is a general aviation aircraft with a position g-load capacity of 4.4 and a negative g-load capacity of 1.76. (Sept. 22, Tr. at 112.) By safety regulations, aircraft must be manufactured to withstand one and a half times their designated load capacity. Id.
II. Findings of Fact
Pilot Judson's plane was equipped with two Garmin 430w XM radar devices. (Oct. 27, Tr. at 166–69, ECF No. 148.) These devices can give textual as well as graphical information on weather surrounding the plane. Id. at 169. Garmin's pilot guide cautions, however, that the device is "to be used for long-range planning purposes only. Due to inherent delays and relative age of the data that can be experienced, ... weather data cannot be used for short-range avoidance of weather." (Def.'s Ex. 102.) Information displayed on the Garmin screen can be delayed in "extreme" situations up to 15–20 minutes, although this is not a typical delay. (Pls.' Ex. 111; Oct. 27, Tr. at 170–71, 176.)
At approximately 14:05 (Z) on the morning of the accident, pilot Judson contacted Lockheed Martin Flight Service Station ("FSS") to file an instrument flight rule ("IFR") flight plan. During this conversation, he spoke with a Flight Service specialist. Pilot Judson's plan was to depart at "about 9:20 [local time, 14:20 (Z), that] morning." The specialist inquired as to whether pilot Judson would "require the latest adverse conditions for [his] route," to which he responded, "Uh no, I got the latest adverse condition—that's why we're getting out of here." After the specialist wished him a good flight, pilot Judson answered, "You got no way to cancel a DUATS uh flight plan for later in the day, do you?" The specialist confirmed that she could not cancel a DUATS plan but once again inquired of pilot Judson, "And you did say you did have the adverse conditions, right?" Pilot Judson responded, "I did." (Def.'s Ex. 1.)
In line with the topic of aviation, the court will discuss all times relevant to this action in Zulu (Z) time, also commonly known as Greenwich Mean Time (GMT) and Coordinated Universal Time (UTC), or as otherwise provided for consistency with the evidence.
Pilot Judson was a certified pilot with a current instrument rating certification. (Oct. 28, Tr. at 10.) There is some dispute as to pilot Judson's meaningful instrument time. It appears that Judson spent at least 40 hours total in instrument conditions. The defense contends that only 6.8 of these were actual conditions while the rest of them were simulated with a specialized hood that blocks a pilot's vision above the instruments. (See Oct. 27, Tr. at 159; Oct. 28, Tr. at 26–27.)
This flight plan was governed by regulations pertaining to a flight through instrument meteorological conditions ("IMC") as opposed to one governed by visual flight rules ("VFR"). Flying in IMC without reference to visual conditions requires a special pilot rating and additional training. (Oct. 28, Tr. at 9–10.)
DUATS is a "government-fund[ed] online service for getting a clear, accurate up-to-date weather briefing. And also for filing a flight plan." (Sept. 25, Tr. at 27; see also Oct. 27, Tr. at 202.) Plaintiffs' piloting expert, Captain Philip Ecklund, opined that Judson likely had the relevant weather information when he did his DUATS briefing, although it is not clear whether Judson filed on DUATS after the latest weather information was issued. Id. at 31.
At 13:55:00 (Z) that same morning, the National Weather Service's ("NWS") Aviation Weather Center had issued two Convective SIGMETs for the Memphis area and surrounding states, 24C being a larger formation to the west of Memphis moving northeasterly and 23C being a line of weather leading at about 40 miles to its east. (See Def.'s Ex. 68; Oct. 27, Tr. at 10.) These weather formations were described as "two parallel northeast to southwest line[s] of cumulus clouds extending from Tennessee through Alabama" with cloud tops reported up to 27,000 feet. (Pls.' Ex. 36, at 14, 37–38; Sept. 21, Tr. at 59–60, ECF No. 123.) At the time of takeoff, pilot Judson departed from KOLV between these two weather formations.
Plaintiffs' meteorological expert, Dr. Lee Edward Branscome, described convective SIGMETs as "significant meteorological information" that are basically "aviation weather advisor[ies]." (Sept. 21, Tr. at 23, 61.) Defendant's corresponding expert, Dr. Lee Ray Hoxit, described them as "advisor[ies] for significant convective activity that could be hazardous to aircraft." (Oct. 26, Tr. at 236; Oct. 27, Tr. at 9.) A flight services station is the entity within the air traffic system that provides weather briefings and would likely have had access to SIGMET data within seconds or minutes of its issuance. (Sept. 21, Tr. at 172; Oct. 27, Tr. at 53, 207–09.) SIGMET data constitutes both a "nowcast" for current weather and a "forecast" for two hours following its issuance. (Oct. 27, Tr. at 9–10.)
Convective SIGMETs are issued every hour at 55 minutes past the hour as well as when necessary for pilots who are checking onto a frequency. (Sept. 25, Tr. at 30, ECF No. 126; Oct. 27, Tr. at 207–08.) At 14:02 (Z), NWS issued a correction to forecast weather in the SIGMETs that would occur an hour after the time of the accident in this case. (Oct. 27, Tr. at 8–9; see Sept. 21, Tr. at 93, 160.) The first blanket broadcast on the D14 frequency of the two SIGMETs was at 14:24:28 (Z), although it appears that the Federal Aviation Administration ("FAA") may have also broadcast the information shortly before. (Def.'s Ex. 2; Sept. 21, Tr. at 161; Sept. 22, Tr. at 63, ECF No. 124; Oct. 27, Tr. at 52.) As filed, Judson's flight plan took him through weather associated with SIGMET 23C. (Sept. 25, Tr. at 64–65, 67.)
Next-Generation Radar ("NEXRAD") imagery is weather data created from several 360-degree radar sweeps at different elevations to measure precipitation intensity. (Sept. 21, Tr. at 30–31.) While precipitation can be a helpful predictor of other hazards, neither altitude nor turbulence is depicted in NEXRAD data. (Sept. 21, Tr. at 74, 85–86; Oct. 27, Tr. at 45.) Although at least one expert opined that "extreme precipitation results in extreme turbulence," there were no radio transmissions to suggest any aircraft in the relevant area that morning had experienced anything more than light turbulence. (See Sept. 22, Tr. at 102; Def.'s Ex. 2.) NEXRAD data, the source of both XM radar (like in the Garmin) and Weather and Radar Processor technology ("WARP"), takes four to five minutes to conduct radar scans that are then compiled and transmitted to display systems. (Oct. 28, Tr. at 141–42, ECF No. 149.)
WARP picks out three groups of reflectivity data divided by decibel intensity and displays them on the controller's screen in a distinguishable color scheme. (Sept. 21, Tr. at 38.)
Along with the above-discussed delays regarding XM radar, NEXRAD processing can result in 4–11 minutes of delay from actual radar scans to what is depicted on an air traffic controller's scope through a WARP display. Id. Since these systems are based on NEXRAD data, there is at least some delay in real-time precipitation for both. (Sept. 21, Tr. at 101.) NEXRAD data for 13:49 (Z) on the morning of the accident shows that the weather in question had already developed at least half an hour before Judson departed from KOLV. (Def.'s Ex. 209; Oct. 27, Tr. at 3–7.) In fact, the weather was present that morning in the areas surrounding Memphis some hours before Judson is believed to have arrived at the airport. (Def.'s Exs. 146, 209; Sept. 25, Tr. at 58–60, 63; Oct. 27, Tr. at 210–13.) Although the weather was described as "rapidly changing" and developing, the general character of SIGMET 23C remained largely unchanged that morning. (Sept. 21, Tr. at 61; Oct. 27, Tr. at 64.)
This was also the information that would be used by the Aviation Weather Center in Kansas City in deciding whether to issue the SIGMETs at 13:55 (Z).
Soon after departing from KOLV, pilot Judson (as N8045Y) made radio contact with Memphis Center while flying in Area 6, Sector 14 airspace. (Def.'s Ex. 22, ZME Airspace maps.) A controller at the Memphis Center, Kenneth Dech, held primary responsibility for assisting aircraft in Sector 14 that morning. At his or her desk, an air traffic controller has several screens with the possibility of displaying both WARP imagery and the underlying NEXRAD data side by side. (Sept. 11, Tr. at 198.) During the time relevant to this accident, Sector 14 became increasingly busy and complicated up to and until the point where pilot Judson sought his deviation. (Oct. 26, Tr. at 103, 153, ECF No. 147.)
The FAA transcript produced in this case reflects the conversation between Dech and the various aircraft entering and exiting his airspace, including N8045Y, during all times relevant to this action. At 14:26:07 (Z), controller Dech had a Cirrus aircraft (federally registered as N815SR) flying direct to PDK that sought to deviate into a pilot-described hole in the line of weather associated with SIGMET 23C. Controller Dech had informed the Cirrus aircraft at 14:25:46 (Z) that weather ahead was "an area of moderate heavy and extreme precipitation" extending from Jackson, Tennessee, to Greenwood, Mississippi. (Def.'s Ex. 2.) Controller Dech approved the deviation and told that pilot to advise the center if necessary. At 14:37:28 (Z), the Cirrus reported having successfully traversed the weather and returned to its course. Ten seconds later, pilot Judson verbally checked onto the R14 frequency and acknowledged with controller Dech his flight path to PDK. Based on information from another aircraft's report some minutes before, controller Dech then provided pilot Judson with a pilot report ("PIREP") that "tops ahead of you are estimated 17,000." Seeking to go over the weather, Judson immediately sought a flight level of 21,000 feet, to which controller Dech responded affirmatively with a temporary hold at 17,000 feet for traffic. (Def.'s Ex. 2; Oct. 26, Tr. at 81–85, 89–90.)
A PIREP is a report of actual weather conditions encountered by an aircraft in flight.
At 14:38:10 (Z), controller Dech informed Judson, "[A]s you approach that weather if you need to deviate advise center." (Def.'s Ex. 2 (emphasis added).) Controller Dech then solicited another PIREP from the same Cirrus aircraft that had just passed through the weather about ten minutes earlier and notified Judson to "listen up." The Cirrus's report explained in relevant part, "[W]e just had light turbulence and ah period of ah pretty heavy rain but only for about a minute we went through [a] little gap in it[,] it was yellow to green on our on board radar versus red on either side of it and it was fairly good" at an altitude of 9,000 feet. Id.
Estimates place the Cirrus aircraft anywhere between 25–40 miles ahead of pilot Judson and the Bonanza. (Sept. 21, Tr. at 225 (Mr. Cauble); Sept. 22, Tr. at 60 (Mr. Burgess); Oct. 26, Tr. at 134–35 (controller Dech).)
Plaintiffs' expert Dr. Branscome agreed in his testimony that the PIREP by the Cirrus was consistent with NEXRAD reading at the time. (Sept. 21, Tr. at 128.) This transmission also supports that pilot Judson understood the precipitation intensity of SIGMET 23C as he approached it.
Following up, controller Dech suggested that Judson may be fine at a lower altitude but also explained that he could "approve whatever [Judson wanted] to do." Id. Judson acknowledged the PIREP and responded, "[W]e'll get above this next layer we'll see what we see and ah we can get above it so we don't need to go through it so we'll tell you. " Id. (emphasis added). At 14:39:11 (Z), controller Dech affirmed receipt and had Judson amend his altitude once again for traffic—this time to 15,000 feet. Id.
Around this time, controller Dech was responsible for directing several other aircraft, and his sector was becoming increasingly complicated. (Oct. 26, Tr. at 91.) Dech described the air traffic that morning as non-routine and explained that, as a result, controllers were having to "figure things out on the fly." (Oct. 26, Tr. at 80.) Dech had several aircraft approaching other airports in his space, entering his space from other sectors, and circling in holding patterns around Memphis. See id. at 91–93. Additionally, controller Dech was working with an FAA flight check aircraft, which receives priority status for controller directives. Id. at 92. In dealing with all of these aircraft, controller Dech communicated with the pilots over the frequency and made numerous keyboard entries to receive and input aircraft information. (Def.'s Ex. 10; Oct. 26, Tr. at 43–44, 52, 61–72, 103–09.)
A holding pattern is a maneuver designed to keep an in-flight aircraft within a specified airspace until its intended route clears from weather or other aircraft. In this case, the aircraft in holding patterns were unable to land in Memphis due to the weather situation. (Oct. 26, Tr. at 93.)
A flight check aircraft's "primary assignment is to test and certify navigation aids and instrument procedures at airports." (Oct. 26, Tr. at 92.)
At 14:40:44 (Z), controller Dech cleared Judson to climb to 19,000 feet. Two minutes later, Judson reported breaking through cloud "tops" at 9,200 feet. In response, controller Dech issued another PIREP to Judson about "light rime icing at [17,000 feet] temperature minus two reported by a king air about ah one zero minutes ago." Judson answered, "[O]kay we'll throw the deicing system on." At 14:43:43 (Z), controller Dech once again amended Judson's altitude to 13,000 feet for traffic separation. Id. At this point, controller Dech was at his busiest thus far, and most of his attention was devoted to avoiding collisions between the various aircraft in his sector. (Oct. 26, Tr. at 103, 153.)
Controller Dech interpreted that breaking out on top at 9,200 meant Judson was in visual conditions. (Oct. 26, Tr. at 97–98.) There is no reason to doubt that pilot Judson's transmission that he had broken out on top of the clouds was as he stated. Moreover, cloud data from that time shows Judson was in an area of visibility after he reported being on top. (Def.'s Ex. 210; Oct. 27, Tr. at 17, 20, 74–76.)
Although no evidence suggests that icing contributed to this crash, there was some dispute at trial as to whether pilot Judson was permitted to ascend into these reported icing conditions despite his aircraft's not being approved to fly in "known" icing conditions. (See Oct. 27, Tr. at 219.)
At 14:46:52 (Z), pilot Judson requested a 15-degree deviation to the right. Controller Dech responded, "[Y]es sir left and right deviations are approved when able cleared on course ah resume own navigation when able direct [R]ome now and advise center." At 14:47:09 (Z), Judson confirmed, "[O]kay we're going to ... deviate fifteen right ... back on course we'll get direct [R]ome and we'll advise center ...." Then, at just before 14:50 (Z), controller Dech cleared Judson to climb and maintain his originally requested flight level of 21,000 feet. At 14:55:11 (Z), controller Dech requested a radio check by N8045Y several times until losing radar contact and determining that the aircraft had likely gone down. (Def.'s Ex. 2.)
At trial, defense expert Dr. Hoxit expressed an opinion that at 14:46:52 (Z) when pilot Judson sought to deviate, he could see the line of weather ahead of him. (Oct. 27, Tr. at 25–28.)
It was later determined that the Bonanza had come apart in flight and crashed near Rienzi, Mississippi. The plane wreckage spread 14–15 miles with all of the heavy pieces found relatively close to the location of the in-flight breakup and the lighter components swept further northeast by strong winds associated with the weather that day. (Pls.' Ex. 84; Sept. 22, Tr. at 103–04, 159.) Review of the flight path shows that Judson deviated more than his requested 15 degrees to compensate for crosswinds pushing against his airplane. (Sept. 21, Tr. at 205–06, 234.) It is difficult to discern exactly why pilot Judson decided to deviate, but it is clear that he had some reason and that it was most likely weather related. (See Sept. 22, Tr. at 147; Sept. 25, Tr. at 86–87, 89; Oct. 26. Tr. at 100–01.) The court finds that his deviation was likely meant to avoid a convective cell with tops at 30,000 feet in front of his flight path but that crosswinds at 55–60 knots made him deviate further into another cell. (Def.'s Ex. 211; Def.'s Ex. 236 (defining deviation as an "off course maneuver to avoid weather or turbulence"); see also Def.'s Ex. 154; Oct. 27, Tr. at 28, 30–31, 35, 220–22; Oct. 28, Tr. at 161.)
Plaintiffs' experts testified that strong updrafts in tall convective cells caused the plane to break apart in flight. (Sept. 21, Tr. at 65–66.) Dr. Lee Edward Branscome estimated there to be between 30–40 knot updrafts at the time of the in-flight breakup. (Sept. 11, Tr. at 146-48.) However, defense weather expert, Dr. Timothy Lang, explained that lightning begins at updrafts of around 20 knots and that the presence of 30–40 knot updrafts would have almost certainly produced lightning. (Oct. 27, Tr. at 96, 100–02.) Although the weather did develop into a thunderstorm later that morning, it is undisputed that no lightning occurred inside weather associated with SIGMET 23C until after the accident. (Sept. 21, Tr. at 86, 120; Sept. 22, Tr. at 43; Sept. 25, Tr. at 73–74; Oct. 27, Tr. at 62, 96.)
Plaintiffs' accident reconstruction expert, Colin Sommer, used Dr. Branscome's calculation of 30–40 knot updrafts to calculate whether these winds caused the Bonanza's structural overload in flight based on its designated load capacity. (Sept. 22, Tr. at 105, 114, 118, 120.) Despite his cited reliance on a particular book, Aerodynamics for Naval Aviators(1992), Mr. Sommer was unaware of a standardized calculation for gust loading available in the book and was unable to complete the calculation due to lack of familiarity with its variables. (Sept. 22, Tr. 27–61.) Defense counsel and experts successfully challenged Mr. Sommer on the standard weight of the Bonanza used in his calculations. (See also Oct. 27, Tr. at 115.)
While it was disputed if pilot Judson had relevant weather information prior to his departure, for at least four reasons the court finds that he did. (Sept. 25, Tr. at 33.) First, based on testimony of others present in Memphis that morning, pilot Judson likely witnessed the weather in a general sense passing over him at the hotel or on his way to the airport. (Sept. 25, Tr. at 118 (Lauren Judson's agreeing she had described that "there were dark clouds" and that "the weather looked horrible" that morning); Oct. 26, Tr. at 79 (controller Dech's identifying October 26, 2010, as a non-routine "weather day" on his drive to work).)
Second, based on the FFS transcript, pilot Judson turned down weather briefings twice—an action he would not likely have taken unless he already had the most current information for that morning. (Oct. 27, Tr. at 52–53.) It is clear from the transcript and pilot Judson's response to the briefer that he was aware of weather associated with SIGMET 24C. (Def.'s Ex. 1; Sept. 21, Tr. at 93.) Given that both SIGMETs were issued at the same time, knowledge of one allows the court to reasonably conclude that he had the other as well. (See Oct. 27, Tr. at 10.)
Third, as a matter of timing, pilot Judson was preparing for his flight and amending his flight plan after the SIGMETs were first issued at 13:55 (Z). Assuming he was even a minimally prudent pilot, the court finds that Judson would have been able to, and likely did, access information regarding the weather. (Sept. 25, Tr. at 57, 67–68; Oct. 27, Tr. at 168, 210.) As mentioned above, not only would this have been available in the airport but also in Judson's aircraft, which was, again, outfitted with two Garmin devices (with active subscriptions) capable of providing similar weather information. (Oct. 28, Tr. at 69.)
Fourth, once he had taken off, pilot Judson never appeared unfamiliar with "the weather" mentioned on the frequency and never inquired further as to its details. (Oct. 28, Tr. at 160.) The court can presume only that this is because he already had, and was required to have, that information. See FAA General Operating and Flight Rules, 14 C.F.R. § 91.103 (2015) ("Each pilot in command shall , before beginning a flight, become familiar with all available information concerning that flight ... [including, for] a flight under IFR [,] ... weather reports and forecasts." (emphasis added)).
III. Conclusions of Law
Sovereign immunity, unless waived, bars suit against the United States and its agencies. Dep't of Army v. Blue Fox, Inc. , 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). The Federal Tort Claims Act ("FTCA") is a "specific, congressional exception to the United States' sovereign immunity for tort claims, under which the government may be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government." Turner ex rel. Turner v. United States , 514 F.3d 1194, 1200 (11th Cir. 2008) (quotations and citations omitted). Under the FTCA, "the United States is liable for tortious conduct in the same manner and to the same extent as a private individual under like circumstances after applying the applicable law in the same jurisdiction." Id. at 1203 (quotation and citation omitted).
In its order dated August 20, 2015, the court found that Tennessee law applied to a conflict presented on the issue of comparative negligence. (Order, ECF No. 100.) At that time, the parties had yet to raise any conflict as to the law of damages, although the issue later surfaced at trial. However, as the court need not reach any such conflicting issues here, there is also no need to make the larger determination as to which state's law applies to damages or to this action generally.
As to the elements of negligence, all of the states at issue here—Tennessee, Georgia, and Mississippi—apply the same basic framework. As no true conflict exists, no choice-of-law determination is necessary.
To state a prima facie case for negligence, plaintiffs must demonstrate by a preponderance of the evidence (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or legal cause. See Galanti v. United States , 709 F.2d 706, 708–09 (11th Cir. 1983) ; Gulledge v. Shaw , 880 So.2d 288, 292–93 (Miss. 2004) ; Lett v. Collis Foods, Inc. , 60 S.W.3d 95, 99 (Tenn. Ct. App. 2001) (citing McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995) ). Negligence must be proven and is not presumed from the mere fact of an accident or injury. See Davis v. Sykes , 265 Ga.App. 375, 593 S.E.2d 859, 860–61 (2004) ; see also Kellner v. Budget Car & Truck Rental, Inc. , 359 F.3d 399, 403 (6th Cir. 2004) (citations omitted). "Once it is established that defendant owed a plaintiff a legal obligation to conform to a reasonable person standard of conduct ... the question becomes whether defendant failed to exercise reasonable care under the circumstances ." Kellner , 359 F.3d at 404 (discussing standard of conduct as "reasonable care in light of the apparent risk." (citing Pittman v. Upjohn Co. , 890 S.W.2d 425, 428 (Tenn. 1994) )); see also Dillon v. Greenbriar Digging Serv., Ltd. , 919 So.2d 172 (Miss. Ct. App. 2005) ("Negligence is defined as ‘failure to exercise reasonable care under the circumstances.’ " (citation omitted)).
Plaintiffs allege that controller Dech failed to provide required weather information to pilot Judson and that this constituted a substantial cause of the in-flight breakup of the Bonanza and its occupants' untimely deaths. In support of these allegations, plaintiffs point to a number of regulatory provisions and training materials promulgated by the FAA. Plaintiffs' basic theory is that controller Dech was required to provide weather "observed" on his scope to pilot Judson in order to comply with the standard of care for air traffic controllers. The weight of the evidence in these materials, however, suggests that there was no such strict requirement. See Air Traffic Control Manual, FAA Order No. JO 7110.65 (Oct. 27, 2015) [hereinafter ATCM]. Plaintiffs place emphasis on a portion of training materials that instruct controllers to communicate observed weather as opposed to weather reported by other aircraft within a certain proximity. This selected portion, however, ignores the larger context of these presentations as well as the regulatory standards governing air traffic controllers.
Plaintiffs point to a "Mandatory Briefing Item" memorandum that states in relevant part, "[r]egardless of whether or not controllers consider the displayed weather an accurate depiction they are required ... [i]n accordance with FAA H7110.65R, paragraph 2-6-4a ... [to] [i]ssue pertinent information on observed/ reported weather." (Pls.' Ex. 23 (emphasis added).)
Similarly, plaintiffs rely on a slide from an FAA quality control training presentation that encourages controllers to "[a]dvise the pilot of weather/precipitation intensity depicted on your [scope]." (Pls.' Ex. 49.) Just a few slides later, however, the presentation once again cites the larger standard of "observed/reported" weather from paragraph 2-6-4 as the actual "ATC Requirements" pertaining to weather services.
Under paragraph 2-1-1 of the ATCM, an air traffic controller's primary purpose is to prevent collisions between aircraft. (See Pls.' Ex. 23; Oct. 28, Tr. at 144-46.) An air traffic controller's "duty priority" is as follows:
(a) Give first priority to separating aircraft and issuing safety alerts as required in this order. Good judgment shall be used in prioritizing all other provisions of this order based on the requirements of the situation at hand ... (b) provide support to national security and homeland defense activities ... (c) provide additional services to the extent possible, contingent only upon higher priority duties and other factors including limitations of radar, volume of traffic, frequency congestion, and workload .
Paragraph 2-1-6 addresses the issue of "safety alerts." It states that air traffic controllers must "[i]ssue a safety alert to an aircraft if [they] are aware the aircraft is in a position/altitude which, in [the controller's] judgment, places it in unsafe proximity to terrain, obstructions, or other aircraft." Despite plaintiffs' arguments that weather constitutes an "obstruction," the court is not persuaded (and finds no law to support) that this provision applies to the present case. Obstruction's inclusion alongside "terrain" and "other aircraft" in the FAA order contradicts reading it to include weather as well. Accordingly, because weather is not an "obstruction," the court finds that controller Dech was not required to issue pilot Judson a safety alert under this provision. (See Sept. 22, Tr. at 55; Oct. 28, Tr. at 161–62.)
ATCM ¶ 2-1-2 (emphasis added); see also id. ¶ 2–1–1 ("The provision of additional services is not optional on the part of the controller, but rather is required when the work situation permits ." (emphasis added)). Thus, third on an air traffic controller's list is the duty to provide additional services. Even though this provision establishes a mandatory legal duty for a controller to provide these services, it also subordinates this duty to "higher priority" ones—including traffic separation—and partially excuses this duty when "other factors" are present, including a controller's workload not allowing him or her to provide such additional services. (Scott Dep. 41, ECF No. 68; Sept. 22, Tr. at 66 (Burgess).)
The "additional service" most at issue in this case is a controller's duty to "[i]ssue pertinent weather information on observed/reported weather." ATCM ¶ 2-4-6. Important here is the provision's use of a solidus or "slash" punctuation—a common substitute for the word "or"—to denote appropriate weather services. Hence, the provision reads that a controller must, unless requested otherwise by the pilot, issue information on either "observed or reported" weather. In this case, the court finds that controller Dech issued "reported" weather consistent with the proper provision of additional services on three separate occasions during his conversation with pilot Judson. (Def.'s Ex. 2.)
In support of a theory that only observed weather is sufficient to meet the standard of care, plaintiffs point to the "phraseology" comments of this provision, which include an instruction on distance and azimuth. ATCM ¶ 2-6-4. As testimony at trial suggested, however, this phraseology is merely an example of one accepted method to describe weather, particularly the type that would be observed on a controller's scope. (See Oct. 28, Tr. 180; see also Oct. 26, Tr. at 127, 157.) Moreover, as to whether a controller's conduct was prudent, the court agrees that providing a "meaningful" weather report (i.e., one that affirmatively benefits the pilot's judgment and awareness) is more important than meeting a recommended phraseology. (Oct. 28, Tr. at 21.)
As discussed at trial, PIREP phraseology is not included in this section as it would be impossible to anticipate all methods by which a pilot might report weather. (Oct. 28, Tr. at 155–56.)
While regulations establish only a floor for reasonable conduct by a controller, the court also finds that controller Dech acted reasonably under the circumstances. Controller Dech provided meaningful weather information to pilot Judson. Likewise, pilot Judson had, and was required to have, current SIGMET information before his departure. Under these circumstances, controller Dech's reading weather on his WARP display would have provided little, if any, new information to pilot Judson. On the other hand, pilot-reported weather information issued in this instance provided pilot Judson with real-time, detailed information from a similar aircraft on a similar route to PDK. (Oct. 28, Tr. at 163.) Instead of a general outlook on the weather, which pilot Judson already had prior to takeoff, Dech provided "pertinent" weather information by soliciting pilot reports from planes near the line of weather ahead. (Oct. 26, Tr. at 90.) The court finds that controller Dech's conduct was reasonable and did not violate his duties as an air traffic controller.
Plaintiffs further asserted that controller Dech should have provided observed weather at the point of pilot Judson's request for deviation. (Sept. 22, Tr. at 24.) Three factual circumstances prevent the court from agreeing with this conclusion.
First, at this time, controller Dech's workload had become such that he was unable to offer weather information any longer. A controller's workload is determined by not only the number of aircraft but also the complexity of the sector and the balancing of maneuvers between them. (Scott Dep. 25–26, ECF No. 68.) Kenneth Dech's supervisor, Wesley Scott, agreed (in hindsight) that he would have described the observed weather—but subject only to workload limitations. Id. at 108 ("I would have done it. But it depends on, like I said, my workload .... I did know Ken had a flight check aircraft. I think he was watching a couple other aircrafts ... in holding positions.").
Plaintiffs also claim that controller Dech violated an air traffic control duty to issue "vectors" for safety. ATCM ¶ 5-6-1. Plaintiffs' air traffic control expert, Peter Burgess, contended that Dech's issuing a vector for a left deviation would have been more appropriate in this case. However, evidence shows that this would have sent pilot Judson directly into another convective cell. (Sept. 22, Tr. at 26; Oct. 27, Tr. at 36–37.) Additionally, at the time of Judson's request, the only turbulence reported in the area was "light" turbulence from the Cirrus. (Oct. 26, Tr. at 102–03; Oct. 28, Tr. at 164–65.) The court declines to apply the vectoring provision because, based on the information he had available, controller Dech did not perceive any immediate safety issue. Even if the vectoring provision applied in this instance, it does so in the same capacity as other weather services generally—as an additional service subject to higher priority duties. The court has already ruled that controller Dech's workload did not require him to provide weather services at the point of pilot Judson's requested deviation. The same is true of vectoring.
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Second, the weather situation had not changed enough from the time of pilot Judson's departure to justify issuing additional weather information. Areas of extreme precipitation in the line of weather associated with SIGMET 23C existed at the time of its issuance and thereafter. (Def.'s Ex. 146.) These did not develop later in pilot Judson's flight. Thus, based on both information that the court finds he gathered before the flight and the PIREP issued by controller Dech, pilot Judson was aware of the type and character of weather he was approaching. The court concludes that it is unlikely he would have changed anything if briefed on observed weather from controller Dech's scope.
Third, satellite imagery from 14:45 (Z) shows pilot Judson's route at a 15-degree deviation going south of a major convective cell. This information, if seen by controller Dech on his scope, would not have given him any reason to question Judson's request as pilot in command and the only actual observer of the weather. (Sept. 21, Tr. at 242.) Since pilot Judson had the SIGMET 23C information prior to takeoff, and the court finds that he did, it is unlikely that repeating it at the time of his requested deviation would have sent him on a different path from the one he ended up taking and the one that resulted in this tragic accident.
Moreover, as a matter of causation, plaintiffs have not shown convincing evidence that weather in fact destroyed the plane. Plaintiffs' experts failed to show successfully that the weather pilot Judson encountered was responsible for the in-flight breakup as against the gust load capacity of the Bonanza. Thus, other factors—such as pilot error or mechanical defect—are possibly responsible for the accident. Plaintiffs ask the court to link controller Dech's not issuing observed weather with pilot Judson's encountering known weather conditions that were insufficient to break apart the plane. Plaintiffs have not met their burden by a preponderance of the evidence that controller Dech's weather reporting contributed to the accident.
While there was significant debate at trial about Judson's history and experience as a pilot—issues which cause the court great concern—they need not be reached at this time. Even without addressing pilot Judson's comparative fault, the court finds for defendant on the issues of duty, breach, and causation. And although the court previously ruled on a choice-of-law motion regarding the issue of comparative fault, it ultimately makes no difference here.
In sum, the court finds that plaintiffs have not shown by a preponderance of the evidence that controller Dech breached any duty he had to pilot Judson or that his instructions, or lack thereof, were a substantial cause of pilot Judson's contact with weather or his resulting in-flight breakup.
The clerk is DIRECTED to enter judgment in favor of the defendant.
IT IS SO ORDERED, this 17th day of February, 2016.