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Lawyer claimed crash victims shared blame

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Lawyer claimed 5191 victims shared blame

Defense by co-pilot to be withdrawn

By Brandon Ortiz


Posted on Fri, Jan. 25, 2008

A lawyer for the first officer of Comair Flight 5191 has asserted a novel, and controversial, defense in 21 lawsuits filed against him: that the 47 passengers of the doomed flight share the blame for their deaths.

In response to questions from a plaintiff's lawyer, James Polehinke's lawyer asserted that the passengers killed in the Aug. 27, 2006, crash should have known that Blue Grass Airport was dangerous because of considerable media coverage of a massive runway construction project there. They should have known the air traffic control tower was understaffed, that airports in Louisville and Northern Kentucky are safer and that taking off in the dark is dangerous, wrote William E. Johnson, a well-known attorney from Frankfort.

On Thursday Johnson said he'd be withdrawing that defense. But the families of the passengers had already learned of the assertion, and their attorneys were flabbergasted that Polehinke's defense team would even attempt the argument.

Attorney David Royse, who represents two families, said it amounts to a blame-the-victim strategy. Polehinke had asserted "contributory negligence" -- legalese for saying the other party is also at fault and contributed to their injuries.

"We find it ironic and disingenuous that he would suggest the passengers are now at fault when he was the pilot and he had all this information," Royse said.

Michigan trial lawyer David Katzman, who has been involved in numerous aviation lawsuits around the country, including the Comair litigation, said he's never seen a pilot raise that defense.

"It was the most surprising affirmative defense I've ever seen," Katzman said.

Lawyers for Polehinke had claimed contributory negligence since they responded to the first suit filed against him in November 2006, Johnson said. But they did not provide details of what they meant until Johnson answered interrogatories -- written questions --from Royse earlier this month.

Johnson called it "old news."

He said attorneys had to respond to the lawsuit before they knew all the facts, and before they could even speak with Polehinke. Any defense that is not raised early in the lawsuit is considered waived.

"After we looked into it more, we found that is not a proper defense," Johnson said.

The response has not been filed in U.S. District Court in Lexington. It was served on Royse, who had asked Polehinke to provide each fact he believes in good faith supports his claim.

Johnson said he told Royse on Wednesday that he'd be withdrawing that defense.

"I see evidently Mr. Royse has tried to make something out of it when he finds out we're going to withdraw it," Johnson said.

Through the years, Johnson, 75, has represented several political figures and high-profile criminal defendants, including Shane Ragland, Melbourne Mills and Ron Berry.

He said Polehinke, the flight's only survivor, "is a person who is not in the world's best shape." But Johnson did not directly respond to questions about whether Polehinke agreed that passengers shared blame.

"What he is going to say is what we say, and we're going to say that we're withdrawing that defense," Johnson said. "I can't put it any straighter to you."

Royse said contributory negligence is an outdated legal defense.

It was once an absolute defense, meaning a plaintiff could not recover anything if he was even slightly at fault. In the late 1980s the Kentucky Supreme Court replaced it with "comparative negligence," under which a jury can assign a percentage of fault to each party.

Flight 5191 crashed after it took off in the pre-dawn darkness from the wrong runway, which was far too short for the 50-seat regional jet. After an investigation, the National Transportation Safety Board found that the probable cause of the crash was pilot error.

The board said Capt. Jeffrey Clay and Polehinke failed to confirm their position on the runway, ignored cues that they were in the wrong place and violated "sterile cockpit" procedures with too much chat.

Wyn Morris's father, Leslie, a lawyer, died in the crash. Wyn Morris said the legal wrangling since the crash has become such "a freak show" that Polehinke's claim doesn't surprise him.

"It's been an insane experience," Morris said. "The whole process just seems so carnival-like. You almost get a laugh ... Not to be disrespectful to anybody, but it seems like a thousand kinds of madness. So really this is just one more."

Comair has accepted responsibility in the crash, though it has also said the airport and Federal Aviation Administration share blame. It has not pointed at passengers.

Comair spokeswoman Kate Marx declined to comment Thursday, other than to note that Polehinke has his own defense team.

"It would be inappropriate for me to comment on another defendant's legal case," Marx said.

A lawyer for the Blue Grass Airport board, however, did not hold back.

"The notion that Flight 5191 passengers somehow share blame for their deaths is offensive," lawyer Tom Halbleib said. "The airport board sympathizes with those families who found the assertion outrageous."

What it said

Lawyers for Flight 5191 co-pilot James Polehinke have asserted contributory negligence -- legalese for the other party shares blame -- as a defense to lawsuits against him for more than a year. A plaintiff's attorney asked Polehinke's lawyers to explain why he is making that claim. Lawyer William E. Johnson responded on Jan. 4:

INTERROGATORY NO. 1: Describe in detail each fact of which you or your counsel are aware or believe in good faith you are likely to establish in support of the allegations set forth in the Fourth Affirmative Defense (contributory negligence) in your Answer.

ANSWER: The decedent should have been aware of the dangerous conditions at the Bluegrass Airport on the morning of August 27, 2006, in that there had been considerable media coverage about the necessity of improving runway conditions at the airport. In addition it was well known that construction was ongoing at the airport which contributed to the dangerous condition existing at the airport, including the likelihood of the construction project leading to confusion about the appropriate runway for takeoffs and landings. Further, it was well known through media publications that the tower was understaffed by the FAA. The airports located in Jefferson and Boone Counties, Kentucky are in close proximity and known to be much safer for use. The defendant (sic) was aware that the take off would occur during hours of darkness thereby increasing the dangerous condition.

Full story here...

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