Another Wacky Court Judgment

Aero-Views by Kevin R.C. "Hognose" O'Brien

• Read Part One

There were no entries in Weidner's logbook within sixty days of the crash, although he had been flying the plane regularly and appears to have just been irresponsible about maintaining the logbook. (Who expects strangers to be pawing through his logbook trying to figure out why he's dead?) The NTSB cautiously said this about that: "It could not be determined from the logbook records if the pilot met the FAA recency of experience requirements for instrument flight."

On the other hand, it can be determined that Weidner, who had completed an instrument rating some months before, had "17 hours of instrument flight time, 24 hours of simulated instrument flight time." Now, he would have had to have 40 hours of instrument flight (real or simulated) to get the rating. Having the rating says he had the skills to fly in instrument conditions -- even three approaches to going missed at minimums at three airports. But he was awfully green in IMC for a gotta-get-there trip into frontal weather with three helpless souls on board; his death in an arboreal carambolage is proof enough that he didn't have the skills his license said he did. Not that night, anyway.

I can well believe that there was stress in his voice. Being over your head in an aircraft is terrifying, and if you survive it, it's a great instructive experience; the emotional overburden sears it in your memory, makes sure you never forget it. But that's just it: like Donald Weidner, you don't necessarily survive it.

Weidner also had therapeutic levels of OTC medicines, including acetaminophen, ephedrine, and pseudoephedrine in his system. Ephedrine and pseudoephedrine must not be taken within 24 hours of flight, unless the pilot has undertaken a 24-hour ground test to ensure that there are no side effects (I bet most of you didn't know that. I didn't, but that's what FAA Aeromedical says). There's no indication that Weidner did or didn't take this test. One thing's for sure, these common OTC ingredients show up all too often in dead airmen. Nobody expects common items like Sudafed and Tylenol, advertised on TV, to affect his airmanship -- nobody but the aeromedical specialists that have studied these medications.

The pathological section of this NTSB report is terse, but in several others, the Board's physicians explain the problems with the ephedrines. Here's an example: "Pseudoephedrine is a common decongestant that is found in over-the-counter cold and allergy preparations.... Ephedrine is a stimulant, weight loss product, or decongestant in many nutritional supplements and is an asthma medication available over the counter in tablet form. Ephedrine has stimulant effects and large doses have been reported to result in excitation, trembling, insomnia, nervousness, palpitations, elevated heart rate, vertigo, headache, sweating, chest pain, abnormal heart rhythms, seizures, and death. Tolerance to some of these effects may occur with continuous use. Ephedrine is not typically sold in combination with pseudoephedrine in any cold preparations."

So... how do attorneys get from this tragic set of facts, to culpability of the FAA? Get there they did. District Judge Timothy Corrigan ruled that controllers were 65% responsible for the fatal crash, and Weidner 35%. Corrigan's bizarre ruling, which accepted the theory of the plaintiffs' attorneys, was that the controllers caused or contributed to Weidner's loss of orientation, by not giving him current weather.

The claim was, basically, that "the controllers did not keep him updated enough on weather conditions." But the weather wasn't changing. 

It was edge-of-minimums lousy at all three airports Weidner tried. And he began with the *current* ATIS at JAX. (The pilot himself told the approach controller that he had the current ATIS, Mike). If he wanted to confirm it, it was just a matter of punching a button -- his Cherokee Six was well equipped with modern radios. The controllers passed him pireps from the planes that made it in before him. They did what they could. They just couldn't get into the cockpit and fly the plane for him -- which is where he failed.

The FAA was probably targeted in this case, also, because the JAX controllers did not have a recording capability. They were in a second-class mobile tower during renovations to the main facility. This lack of a recording created some of the murky area so necessary to this illogical judgment.

Finally, the preposterous claim that Weidner crashed because he did not have the latest Kollsman setting was aired in open court. Evidence: a Sheriff's photograph of a barometer in a law enforcement office that was taken that night. To get Weidner from MDA (let alone from where he's supposed to be climbing out on the MAP) to impact, his altimeter would have had to be over 200 feet off, but that still doesn't answer for the radar track, which shows an out-of-control spiral up and then spiral down. And the barometric difference between ATIS Mike, which Weidner had at 1920:04, and ATIS Oscar, which was issued at 1940:07 within about a minute of Weidner's impact with earth, and which Weidner probably did not have, was trivial: 30.17 inches Hg on Mike, and 30.20 on Oscar. (An intermediate ATIS, which Weidner also probably did not have, also was 30.20). The difference between the displayed altitude at 30.17 and 30.20 is thirty feet -- not remotely enough to account for striking 75-foot tall trees, when MDA was 200 AGL. Unless, apparently, you're a judge.

You have to love this. An out-of-his-depth pilot kills himself and his passengers, and Loopy Lawsuit Lotto hands their relatives a winning card, putting the touch on the taxpayers for nearly ten million dollars. Was it attorneys and lawyers working to protect a member of the old-boy club? Was it simply confusion? Or that manipulation of technical law that has driven justice from the courts and made them a place of falsehood and randomness? We weren't there, and being a judge, Corrigan is accountable to no one this side of God. So we'll never know. But it wasn't justice.

Weidner seems to have been a decent fellow; he was well-liked by fellow lawyers, active in politics (Republican, if it matters), and several friends and relatives have commented on his love for flying. I bet we'd have liked him if we met him on the airfield. He probably was, generally speaking, a good pilot. Most pilots who crash are -- except for that *one* time. But he wasn't a victim of, as counsel would have you believe, careless or incompetent controllers. He was a victim of disorientation, which is a deadly biological phenomenon that lies in wait for any of us, and before that of bad aeronautical decision making -- in both cases, disorientation and ADM, his own. We don't have to disrespect the man to examine his actions that night and learn from them. But it's hard to have any respect for the Lewis Carroll experience that the courts have become.

One of the lawyers in the Weidner case hopes that this sets a precedent, he told a Jacksonville TV station. Of course he does; the lawyers' share of the take is likely to be from three point something to over four million dollars. And if we make a habit of taking the wrong lesson from mishaps, we'll certainly have more mishaps.

And who could possibly want that?

FMI: www.faa.gov, www.atra.org   www.overlawyered.com