Reality vs. Appearance of Reality - John C. Wunsch, P.C.
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Reality vs. Appearance of Reality

An attempted yet failed solution to a problem is not harmless. Particularly in the legal, social, or political realms, you have not only the initial problem, but you have a failed solution to the problem which adds complexity, an added variable, to that which previously existed. Now, those grappling with the problem in the future will have not only the same problem with which to contend, but will have to deal with the after-effects of a failed solution as well.

Small mistakes can ultimately lead to significantly larger, incorrect results––and what works in one context may not work in another. Reality versus the appearance of reality––this seemingly simple distinction creates complexity and ambiguity in a variety of contexts. The first task is to ascertain reality, not merely its appearance.

“This case arises from a helicopter crash which resulted in the death of pilot William Paton (Paton), husband of Jenny Paton. At the time of the accident, Paton was operating an Aerospatiale SA 315 B “Lama” helicopter for his employer, Four Corners. The helicopter was powered by an Artouste IIIB turbine engine, designed and manufactured by defendant Turbomeca. The Artouste IIIB is a constant-speed engine which maintains the same revolutions per minute (RPMs) during operational maneuvers by sensing deviations in RPMs and adjusting the amount of fuel delivered to the engine. This process produces additional heat, and if the engine temperature limits are exceeded, the engine will burn itself up.”

Reality is too easily oversimplified. We condense complexity, reduce depth, to permit generalization. What was behind the decision to create a constant-speed engine? What, if any, advantages were there to such a design? What drawbacks? Fuel is regulated automatically to keep the engine speed constant, apparently to avoid the risk of overheating, but perhaps there were other design purposes for this as well.

“At the time of the accident, Paton was using the helicopter to transport a compressor by long-line. Although this maneuver placed substantial demands on the engine, it was within the engine’s limits. Prior to the accident, this helicopter had been used extensively for this type of mission and, in fact, following the accident, was replaced by a similar aircraft. In the instant case, it is undisputed that the helicopter engine overheated, causing the aircraft to crash. The issue at trial was the cause of overheating.”

So, the battle was fought over––what caused the engine to overheat? That seems simple enough. Invariably, the manufacturer will argue “pilot error.” A design and/or manufacturing defect will be uppermost in the mind of those investigating the incident on behalf of the Estate.

“Turbomeca also participated in the investigation, conducting loose screw tests upon a similar engine and then transmitting the results to the NTSB and the Federal Aviation Administration (FAA). In its report, Turbomeca reviewed the same twenty-one prior loose screw incidents but concluded that the friction between the screw and the impeller was a minor anomaly which had no effect on the correct operation of the engine. Turbomeca had previously issued Service Bulletin TU133, labelled “URGENT,” which outlined a modification procedure to “improve locking of front labyrinth fastening screws on diffuser cover.” The company recommended that the modification be performed as soon as possible on both the production line and when repairing engines. The modification consisted of “staking” the screw heads to the surrounding metal, and was performed on the subject engine in 1979 at Turbomeca’s factory in France. During Turbomeca’s final testing of the engine in question, the engine “seized” during rundown. This seizure was the subject of a second report by Turbomeca which was never provided to the NTSB, the FAA, or Four Corners.”

A second report was generated, but was never turned over to the NTSB. Is the “seizing” of an engine the same as overheating? Are the two caused by the same mechanism? Friction between a loose labyrinth fastening screw and the impeller––but how could this lead to overheating of the engine?

“Plaintiffs proceeded to trial on strict liability in tort and negligence theories. They asserted that the helicopter engine failed when a loose labyrinth housing screw backed out of position and contacted the rear face of the compressor impeller. They claimed that this contact reduced the engine’s RPMs, causing additional amounts of fuel to be injected into the engine. The additional fuel produced an increase in temperature beyond the engine’s limits, resulting in the engine’s destruction. Turbomeca asserted that the loose labyrinth screw could not have caused the engine failure. Turbomeca presented evidence that when a helicopter is required to hover and place a load in a confined area, a collective pitch change results, increasing the engine’s temperature, over which the pilot has control. Turbomeca argued that in the instant case, the pilot’s demands on the aircraft, namely pulling up too much on the collective pitch control, caused the engine to overheat and ultimately fail. Although Turbomeca’s accident reconstructionist opined that no mechanical failure caused the accident, he nevertheless conceded that if there had been a mechanical problem, his theory on pilot error would not be appropriate. The jury found Turbomeca liable under strict liability only. The district court entered judgment on the jury’s verdict, including interest and costs, in favor of Paton in the amount of $959,926.20 and in favor of Four Corners in the amount of $306,204.37.”

The explanation––the friction of the loose screw reduced the engine’s RPMs, causing additional amounts of fuel to be injected into engine, causing in turn an increase in temperature. But how to establish that a screw was actually loose in this particular accident? Fortunately, there was a post-accident inspection that identified this.

“The National Transportation Safety Board (NTSB) investigated the accident at the scene, during engine dismantling, and at Turbomeca’s facility in France. The NTSB discovered that a loose labyrinth screw had backed out of position and contacted the compressor impeller. In its report, the NTSB noted that an abnormal squeal, caused by the screw rubbing the diffuser-holder plate, had been witnessed prior to the crash of the aircraft. The NTSB’s report also documented twenty-one previously reported instances where, during the course of engine repair or maintenance, it was discovered that the labyrinth screw had rubbed the impeller. In each instance, the engine was removed either because of abnormal noise which occurred during engine rundown, later discovered to be the screeching of the screw on the impeller, or because of a slightly slower rundown time.”

Reality is defined by Webster as “the world or the state of things as they actually exist, as opposed to an idealistic or notional idea of them.” Proving what actually exists––this starts not with a theory, but with facts, physical facts which all can agree actually exist. Photos document facts as do eyewitness statements. There are physical objects––instruments, chemicals, items, materials. Then there are physical laws, such as the law of conservation of energy. (“The total energy of an isolated system is constant; energy can be transformed from one form to another, but can be neither created nor destroyed.”) In every lawsuit, we’re required to prove theories through facts–-no wonder there’s often a disconnect. Facts do not necessarily conform to a predetermined theory.

Reality vs. appearance of reality. Each side will stake out their own theory––a loose screw causing a decrease in RPMs versus a pilot’s pulling too much on the pitch control. There are any number of reasons why the Estate in this case was successful. (1) The discovery by the NTSB of a loose screw during the post-accident inspection. (2) The presence of an eyewitness to the crash who heard an “abnormal squeal,” suggestive of a loose screw rubbing against the diffuser-holder plate. (3) The history of numerous prior instances where labyrinth screws had become loose and rubbed against the impeller. (4) Overheating of the engine as being identified as the cause of the crash, rather than some other cause. Etc.

An attempted yet failed solution to a problem is not harmless–-our theory of liability must comport with reality, not merely its appearance. Failed cases are typically the result of a disconnect between facts and theory. Reality, in most cases, is our first and last “problem.” Simply put, we should become capable––extraordinarily capable––of establishing the reality of things. Theories are too generalized, too indistinct, and can often lead us astray. Proving reality––perhaps it’s best to think of theory as nothing more than a series of organized facts. At least in that way, there’s not the slightest doubt as to the primacy of facts––and the importance of ascertaining reality rather than its mere appearance.

Soc. And when men are deceived and their notions are at variance with realities, it is clear that the error slips in through resemblances?

Phaedr. Yes, that is the way.

Soc. Then he who would be a master of the art must understand the real nature of everything; or he will never know either how to make the gradual departure from truth into the opposite of truth which is effected by the help of resemblances, or how to avoid it?

Phaedr. He will not. (Plato, Phaedrus).

All quotations from Four Corners Helicopters, Inc. vs. Turbomeca, S.A., 979 F.2d 1434 (10th Cir. 1992)

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