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1. HELIOS AIR BOEING 737 CRASH NEAR ATHENS, GREECE This case involves a two-hour story, much publicized "ghost flight" where Greek Air Force jets were scrambled to find out why the flight approaching from Cyprus did not respond to air traffic control. It was determined that the flight was level at 34,000 feet and apparently everyone inside was either incapacitated or dead. Further investigation has disclosed that in all probability the aircraft left Larnarca Airport at Cyprus and failed to pressurize at all. Also, a warning horn designed to alert the flight crew to the pressure problems was a multi-purpose horn and apparently the crew tried to troubleshoot something else. The accident occurred on August 14, 2005. When the aircraft, while circling near Athens on autopilot with the incapacitated crew, it finally ran out of gas and crashed into a mountainside, despite some heroic efforts of a flight attendant to attempt to recover the airplane. Sterns and Walker have been brought into this case by a prominent Athens aviation firm to review the potential of a product liability case against the Boeing Company of the United States. It appears that the 737 is designed so that an inadvertent missing of the pressurization control switch on checklist by a crew member can, in and of itself, lead to a catastrophe of this type. When a modern jet airplane takes off without pressurizing, everybody aboard including the flight crew and passengers will become incapacitated at something between 15,000 and 20,000 feet. There is no "fail safe" or default to "pressure" mode. Also, it is believed that the design of the aircraft is subject to criticism inasmuch as while the passengers' supplemental oxygen masks will drop automatically in the passenger cabin as the pressure changes, the flight crew must be alert enough to remember to retrieve theirs from behind the seat and put it on. It might be very difficult given the other problems a flight crew under these circumstances might be facing. The case will test the airworthiness of the Boeing design for pressure and for oxygen dispensing, and it can be expected that Boeing will attempt to keep the case out of the United States courts by asserting "Forum Non Conveniens." Sterns & Walker are working not only with the Greek lawyers, but with Cypriot lawyers and have already been retained by a substantial base of clients and are looking further into the matter. We have already obtained some substantial settlements for a number of the victims' families, even though the case was dismissed forum non conveniens from the federal court in Chicago. Negotiations followed in London and Athens. 2. BALTIC SEA COPTERLINE SIKORSKY S76 CRASH, AUGUST 10, 2005 What was supposed to be a routine shuttle helicopter flight operated by the Estonian company, Copterline, from Tallinn, Estonia to Helsinki, Finland, turned into a disaster a few miles off the Estonian coast. Traveling level at about 2000 feet, the Sikorsky S76 helicopter all of a sudden went into a series of uncontrollable maneuvers and gyrations, eventuating with it hitting the water, the cabin was still intact, although the tail had broken off. Another disaster ensued, however, in that the floats did not function properly; the helicopter immediately turned over and sank in approximately 165 feet of 42 degree Baltic Sea water. Subsequent autopsies showed that all aboard died by virtue of drowning, as opposed to impact. A joint investigation undertaken by the Estonian authorities in cooperation with the United States National Transportation Safety Board has revealed, as documented in a special report issued by the NTSB, in that a servo must have malfunctioned causing the helicopter to go out of control. The servo was a self-contained mechanism with the use of hydraulic fluid drives the control services and rotor blades of the helicopter. If the servo malfunctions, the machine is essentially uncontrollable. It is believed that this defect is traceable directly to Sikorsky's manufacturing and quality control practices, in that flakes of material were found in the servo which could have blocked oil ports and caused the malfunction. Additionally, the question of why the floats did not deploy is being investigated further. Sterns & Walker is working on this case in conjunction with the prominent Helsinki Law Firm of Asianajotoimisto Tölö & Aganimov Oy and have been retained by a majority of the Finnish families involved. They are also in consultation with an Estonian law firm representing the four Estonian victims. There were two American victims on board. Sterns & Walker have been consulted by and are in talks with the private counsel for those families. At this point, it is not clear whether litigation will be required or whether the matter can be resolved by direct negotiation with Sikorsky and Copterline. Negotiations are ongoing and a number of these cases have already been settled for substantial sums. 3. FLASH AIR BOEING 737 CRASH, RED SEA, EGYPT, JANUARY 3, 2004 Sterns & Walker are pleased to announce that in a joint venture with Bowles & Verna, we successfully negotiated a very favorable settlement with a number of potential American defendants for all of the 13 Egyptian families aboard this aircraft. The flight took off from the Red Sea resort of Sharm El Sheikh en route to Cairo and then to Paris. In addition to the Egyptian crew, the plane carried approximately 148 French tourists returning from Holiday. Unfortunately, the French cases represented by other law firms, were dismissed on the basis of Forum Non Conveniens motion by the District Judge of the Central District of California. The Judge dismissing the cases noted that the French had already filed a suit for the same damages albeit against non-American defendants in the French courts and ruled that the matter more appropriately should be heard in France. The Egyptian cases, represented by Sterns & Walker and Bowles & Verna, however, avoided this ruling and their settlements were completed and have been paid. The exact cause of this accident is still in dispute but is suspected that there was a aileron malfunction due to a software component problem, apparently to which the crew did not react promptly or properly. Potential American defendants, in addition to Boeing, included the Honeywell Company, manufacture of the autopilot; Parker Hannifin, manufacture of the aileron servo control valves and ILFC, a Los Angles based company which owned and leased the aircraft to Flash Air. 4. AIR TRAFFIC CONTROL CASES Sterns & Walker recently successfully concluded settlements in several air traffic control cases where allegations have been made that negligent instructions were given to en route pilots with respect to altitude and obstructions and/or inadequate weather briefings were furnished. The most recent case which the firm has been asked to become involved is a crash of a very prominent plastic surgeon from Santa Barbara who, along with two passengers, impacted a ridge line, approximately 17 miles northeast of Santa Barbara at night. The flight was attempting to return to Santa Barbara from Bakersfield. Air Traffic Control tapes reveal that the pilot had asked for a flight filing from ATC and had asked for clouded weather information ahead of him, but apparently that was not provided as requested. Sterns & Walker is looking into this matter at this time and are preparing an administrative claim to be filed against the United States in order that documents and witness testimony can be obtained. It would appear preliminarily that the aircraft had descended to an altitude that would have put it on a most certain impact course with high terrain ahead, but given no indication of that by the ATC facility. This matter was settled on a very favorable basis with the defendant United States at mediation. 5. ROBINSON R22 HELICOPTERS The Robinson R22 Helicopters is a small two-person helicopter, very popular model and is manufactured and distributed worldwide by the Robinson Helicopter Company in southern California. There have been a number of reported crashes, however, around the world of the Robinson R22, and considerable litigation has now ensued in various courts in California. Robinson is vigorously trying to fend these cases off with Forum Non Conveniens motions. Its track record to date has been some won, some lost. There seems to be a compelling reason for the United States courts to keep these cases, inasmuch as it seems clear there is at least one, if not two or more fleet wide defects allegedly existing in these aircrafts. In the case in question in which Sterns & Walker have been retained, a Robinson 22 on a routine power line patrol flight in Israel threw one of the main rotor blades. Investigation by the Israeli authorities determined that the cause was a serious fatigue break and in all probability traceable to original manufacturer or quality control at Robinson. Sterns & Walker were retained by the family of the pilot who was also a qualified El Al line pilot who was flying the power line patrol as a second job. A case was also brought on behalf of the observer who was killed in the crash by another law firm. In that case, the Los Angeles County Superior Court (State) ruled against the observer on the initial Forum Non Conveniens ruling which is now under reconsideration. Sterns & Walker are assessing the various options open to them in order to maintain forum for the pilot's family in the United States to get them to look more closely into the Robinson problems. In addition to the above, Sterns & Walker were involved in a joint venture with Stewarts Law of London in representing the family of a couple killed in a Robinson R44 crash near Malacca, Spain. This case is in the process of being settled on very favorable terms for the family. 6. SIKORSKY S61 CARGO HELICOPTER CASE This matter has just resulted in a successful settlement in favor of a 35-year old Oregon resident and first officer who was severely burned when the S61 helicopter operated by his Oregon employer, crashed at a logging operation in northern California. A serious fire ensued which destroyed a lot of the evidence making it difficult to reconstruct exactly what happened. Sterns & Walker brought into the case, by a Portland firm, presented a theory that one engine had caught fire in flight due to a crack in the manifold, that traceable to a problem in the general electric construction of manifolds. This in turn shut down that engine forcing an overload to the sole remaining engine. In that circumstance, the clutch of the sole remaining engine "spit out," or disengaged, that is cutting power from the engine to the rotor. Under these circumstances, the rotor was unpowered and the helicopter was not able to autorotate and the crash ensued. The contentions were hotly disputed by General Electric and Sikorsky, who manufactured the helicopter and the drive train. There was a history, however, of other "spit out" incidents involving the same Sikorsky components. This matter was resolved in a mediation with a substantial recovery for the First Officer. 7. HUSAIN V. OLYMPIC AIRWAYS The Law Offices of
Sterns & Walker on behalf of Rubina Husain and her family of The
case attracted nationwide attention for being the first ever to hold an
airline liable for the ill effects of second hand smoke, when
the airline refused, after repeated requests,
to move Mrs. Husain's asthmatic husband
from his seat directly in front of the smoking section. The Supreme
Court held that the behavior of Olympic Airways, contrary to airline
industry standards, was covered as an "accident" under the The Supreme Court decision is a landmark on the issue
of protection of passengers traveling on international airlines. 8. SAS - MILAN LINATE CRASH, OCTOBER, 2001 Sterns & Walker, in association with the commercial litigation firm of Bowles and Verna (see, also, our joint website airlinelawyers.com). We have been brought in to advise potential clients in Scandinavia and Italy about potential rights against the Cessna Aircraft Company in Wichita, Kansas and its parent corporation, Textron, International, for claims arising out of a runway collision at Milan Linate Airport on October 8, 2001. An SAS Aircraft, bound from Linate for Copenhagen, struck a Cessna citation during take-off roll. The citation had come onto the runway in foggy conditions directly in the path of the Cessna. Initial reports focused the blame on the air traffic and control system and lack of ground radar at Linate. Further investigation, however, done by Sterns & Walker, in conjunction with a Miami litigation firm, suggested that the Cessna deliberately failed to follow the taxi pattern and tried to cut into the runway. This was because it was a sales demonstration flight, and they were anxious to get it off before the weather minimums closed in. The prospective buyer was a wealthy olive oil entrepreneur of northern Italy. Cessna may well be held on a theory of extended economic activity and being thus responsible for the flight and the accident. There will be complex problems involving the Warsaw Convention choice, choice of law, Forum Non Conveniens and other matters. SAS will not be able to sued in the United States in this matter inasmuch as Article 28 of the Warsaw Convention limits the available venues all aboard. There was one American passenger, a Marriott International executive, temporary resident in Copenhagen. Lawyers for the parents of that passenger are also arranging for representation by Sterns and Walker. Unfortunately, after having set this case for trial with two representative damage cases and the issue of Cessna's liability to be determined, the federal court in Miami, just three weeks before scheduled trial reversed itself and decided that it was going to grant a Forum Non Conveniens dismissal as against all of the European plaintiffs. The court did retain jurisdiction over the one American case represented by Sterns & Walker, but stayed that case pending resolution of some Italian law issues by the Italian courts. The future of the case at this point remains unclear, especially whether or not Cessna can be successfully pursued in the Italian courts notwithstanding its alleged "consent" to do that. The decision of the trial judge to dismiss all of the cases was reversed on appeal after a joint effort by Sterns & Walker, Bowles & Verna, and our Miami colleagues, the Podhurst, Orseck Law Firm. The case was sent back to the district court with directions to reconsider the matter. The Judge sent up the American case, King v. Cessna, for trial but again undertook to dismiss all of the European claims. We believe that his order is equally flawed this time as it was last, and another appeal is being taken to reinstate the European cases. 9. SINGAPORE AIRLINES 006 CRASH AT TAIWAN Update as of 2005: The clients in this matter, represented by Sterns & Walker have successfully concluded their cases by settlement, and the matter has now been disposed of, except for certain Taiwanese clients represented by other firms, whose cases were dismissed by the court on the basis of Forum Non Conveniens and must pursue their cases in Taiwan. This accident occurred in a developing typhoon at the Chiang Kai-Shek International Airport in Taiwan. Singapore 006, intended for Los Angeles, a Boeing 747-400 aircraft, mistakenly attempted to take off on a runway containing construction equipment. The ensuing collision with that equipment caused the plane to break up and catch fire, resulting in a number of deaths and serious injuries, although some people escaped physically unscathed. There was a great deal of media activity by Singapore Airlines directly following the case, including apologies from the head of the company and a strong attempt to assure the families and victims that Singapore would act to compensate them promptly. There were prominent stories placed of Singapore's "intention" to pay $400,000 U.S. per casein which someone was killed. Sterns & Walker have been brought into this matter, and our investigation reveals that while indeed some such offers have been made to passengers with American U.S. destination tickets, this has not been necessarily the case with all of the victims, particularly those from Southeast Asia and Australia. Substantially lower amounts were suggested in those cases. This is undoubtedly because Singapore realized that those with American based tickets can make the claim against Singapore Airlines in the U.S. courts, which has significant differences with respect to potential damages (see a detailed analysis of jurisdiction and venue issues under the Warsaw Convention). The liability in the Singapore case was not at issue as to Warsaw passengers, since the responsibility of the airline is triggered by the happening of an "Accident", as defined by the United States Supreme Court, whether or not that accident is a result of airline negligence. As to the non-Warsaw cases, however (a Taiwan-L.A.-Taiwan ticket, for instance), the passengers would have the burden of proof of establishing Singapore's liability. For a detailed analysis of the probable non-applicability of the Warsaw Convention to Taiwan tickets and an analysis of when Warsaw applies, i.e., when the passenger is in "International Transportation" (see the Warsaw Convention page for more information). Most recently, arguments were held on the issue of "Star Alliance," as to whether or not it could be held as a "carrier" under Article 17 of the Warsaw Convention. This would confer jurisdiction on the court in Los Angeles over a number of other cases that did not have U.S. tickets or a U.S. destination. Just recently, however, the court has ruled that "Star Alliance" could not be considered a "carrier" for these purposes. It remains to be seen whether in future cases, involving actual code sharing, the Court will revisit this issue. 10. MARSH HARBOR, BAHAMAS ("AALIYAH) CRASH This case has also now been successfully resolved by settlement as to the clients represented by Sterns & Walker. This is another one of the tragic series of crashes involving either unlicensed or underinsured, or otherwise risky "charter" flights that unsuspecting agents, promoters and production companies enlist to move valuable show business personnel around. In this case, occurring on August 25, 2001 near Marsh Harbor in the Bahamas, a seriously overloaded and out of balance Cessna attempting to fly the recording star Aaliyah and her party back from a video, MTV-type shooting, faltered and crashed on take off, killing all aboard. Subsequent investigations disclosed that there were all sorts of deficiencies, including serious questions about the competency and licensing of the pilot, the airworthiness of the aircraft and the financial responsibility and integrity of the alleged charter company. An FBI investigation ensued. Law firms, including Sterns & Walker who are involved for the families, are actively attempting to reconstruct the circumstances under which this particular "charter" service was located and hired. As is often the case with this type of crash, the actual operator of the aircraft appears to be the uninsured or seriously under insured, but there should be substantial responsibility in the promoters and operators of the tour. Other similar tragedies in the past, many of which were handled by Sterns & Walker, again where celebrities and/or executives were killed in ill-thought out and unsupervised "charter" operations include: Buddy Holly; Patsy Cline; Jim Croce; Ricky Nelson; Lynard Skynard; Reba McIntyre band; golfer Tony Lema; and the American Resources crash in Argentina. 11. ALASKA AIRLINES FLIGHT 261 - JANUARY 31, 2000 This case has now been settled for the families of the flight crew represented by Sterns & Walker. It is our understanding also that the entire matter has now been resolved by multiple settlements following the ruling of U.S. District Court Judge Charles Breyer, and that the Boeing Company could not be held liable for punitive damages. In this case, a McDonnell-Douglas MD-83, operating as Alaska Flight 261, was en route from Puerto Vallarta, Mexico, destination San Francisco. The crew encountered serious horizontal stabilizer control problems near Los Angeles. The crew apparently thought they had the problem under control, but then faced renewed problems and took the aircraft out over the water to attempt to deal with the issue, at which time total control was lost. Investigation now makes it pretty clear that there was a failure of what is called the jackscrew mechanism, which is responsible for holding the flying horizontal tail and stabilizer and the proper attitude. When the jackscrew is gone, the aircraft can be forced into an uncontrollable nose down pitch. The flight data recorder and cockpit voice recorder indicate that the crew labored mightily to keep the aircraft under control and to save it, but the aerodynamic forces from the failed horizontal stabilizer were too great. Eighty-three people died. Sterns & Walker were brought into this case on behalf of the families of the flight crew, captains Ted Thompson and Bill Tansky. While they were in the course and scope of their employment for Alaska Airlines, exception to the workers' compensation rules may exist in this case, which will allow the families to claim against Alaska. In addition, product liability claims are made by the families against Boeing, the designers of the jackscrew, and the suppliers of the jackscrew lubricant, which was apparently inappropriate for this mechanism. 12. EGYPT AIR 990 On October 31, 1999, a Boeing 767-300ER, operating as Egypt Air Flight 990, en route L.A.-JFK-Cairo, disappeared off the radar screens approximately 60 miles out from the United States' coast over the North Atlantic Ocean. Investigation and radar trackings from military installations were able to reconstruct essentially the flight pattern. The aircraft departed control flight from about 33,000 feet, went essentially straight down for over three miles, then came back up again about a mile and then finally plunged back into the sea. Much effort went in to attempt to retrieve critical pieces of wreckage, as well as the flight data and cockpit voice recorders. Serious controversy erupted very quickly upon obtaining the cockpit voice recorder. There were initial reports leaked to the press that a backup co-pilot's voice was heard on the recorder to having said words indicating that he was trying to make his peace with Allah because he was doing some terrible thing, etc. As it turns out, there were serious differences taken by many with this interpretation as to what the co-pilot actually said, and the Egyptian authorities insist that it was only a common Muslim expression consistent with a crew attempting to deal with some kind of unexpected problem in control of the airplane. From this cockpit voice recorder report, however, plus the other somewhat difficult to explain movements of the aircraft and control inputs, a "suicide" theory has developed, which continues to live on in the media as an "urban myth," even though the NTSB had never officially suggested this as a cause up until its final report, which is ambiguous. The Egyptian authorities contend that there was a mechanical defect in the aircraft which would explain its sudden departure from controlled flight. Cases filed in this matter were consolidated before United States Federal Judge Kenneth Block of the Southern District of New York. Egypt Air attorneys announced that Egypt Air would "not contest liability" as to United States Article 28 passengers (see our Archives page for a detailed discussion of this issue), but no such concession was made as to either the non Article 28 (Egyptian tickets) or the crew. Apparently, as to them, the litigation remains pending. Cases have also been filed against the Boeing Company, and Egypt Air has indicated its intention to claim against the Boeing Company for a defect in the airplane, which it did, but in the Egyptian courts. Sterns & Walker were brought into this case on behalf of the Egyptian flight crew and some of the cabin crew as well. They are not Warsaw passengers, and therefore do not have the benefit of Egypt Air's "concession". It is an interesting note, however, that the "concession" is nothing more than would have been required of Egypt Air anyway, since it is signatory to the new IATA Accords, which essentially provides for a no limit liability on the airline in the event of an "accident". (See our Archives page, IATA Accords, for a complete list of airlines who have signed) Investigation and litigation continued in an attempt to establish whether or not there is a defect in the 767 control or auto pilot system which would account for this sudden departure from controlled flight and precipitous dive into the Atlantic Ocean. Once the "suicide" theory is taken out of the case, there seems no other logical explanation. There are also a great number of reasons why this is probably not a "suicide" situation, and it is further interesting to note that Boeing has raised this defense once before in the unexplained departure of one of its planes from controlled flight - in the Silk Air accident in Indonesia in 1997; stories were also circulated that the pilot had "committed suicide" in diving the airplane straight down from 20,000 feet. This is the same airplane, however, that had a number of mechanical and control difficulties documented in the past. There are no comparable 767 incidents known to us at this time, although there was a serious 767 mechanical malfunction in the Lauda Air accident over Thailand in 1991, which literally dropped it right out of the sky, so the question remains in this case as to whether or not there is a Lauda Revisited? issue or not. Even though most all of the passenger cases have now been resolved by settlement, this case continues in the federal court in New York in that Boeing has a cross-complaint against the estate of the back-up co-pilot, El Batouty. Sterns & Walker, along with Bowles & Verna represented the family of El Batouty in obtaining a settlement for them as plaintiffs, and stayed in the case for the defense of El Batouty in the event that Boeing elects to pursue this. At the present time, the case is not set for trial. The Egyptian case continues, with Boeing contesting jurisdiction over it. 13. AIR PHILIPPINES FLIGHT 541 CRASH This case is covered as to its significance and impact at another point in our website. (See ___________________) 14. UNITED AIRLINES MIDAIR TURBULENCE CASES On September 29, 1997, a United Airline 747 en route from Japan to Honolulu, and carrying primarily Japanese visitors for a holiday, encountered severe wind shear type turbulence at high altitude. The plane dropped suddenly and precipitously and a number of people were seriously injured and one killed. All the injuries occurred when passengers were thrown out of their seats and against the roof. There is disputes whether or not the seat belt sign was on or off and/or whether the passengers should have been warned ahead of time if the turbulence to be encountered. Preliminary evidence makes very clear that at least there was no warning in Japanese. United Airlines previously waived the liability limits of the Warsaw Convention, discussed above, and therefore will be responsible for all damages up to $100,000 Special Drawing Rights, and for damages thereafter subject to the Article 28 defense. Sterns & Walker represent a number of Japanese families in this matter. Since United Airlines is domiciled in the United States, the Japanese families were able to bring their claims in the United States. These cases were pending, but unfortunately, on motion of United Airlines, the United States District Court for the Northern District of California entered an order dismissing these cases on the basis of "Forum Non Conveniens." This matter is covered elsewhere in our website under the name of Hosaka v. United Airlines, which points out the importance of the reversal of the Forum Non Conveniens dismissal which was obtained on appeal. Following the decision of the Ninth Circuit and the refusal of the United States Supreme Court to hear this case, all of the cases were resolved by settlement with United insurers on favorable terms to the claimants. 15. U.S. EMBASSY BOMBINGS: KENYA AND TANZANIA Update: December 2005. The State Department finally acted on the claims and has denied them, claiming that there was no "proof of negligence" on the part of the United States as with respect to these bombings. The District Court in Washington, D.C. had previously dismissed the cases, not on the merits, but holding that the cause of action had arisen overseas, thus, the federal court of the United States had no jurisdiction. These two rulings leave the claimants in somewhat of a legal limbo: they have no right as such to sue the United States based on the State Department's denial of their administrative claims, and they have already been adjudicated that the Federal Tort Claims Act does not apply. Sterns & Walker intend to go back to the State Department to pursue other remedies to force the State Department to consider these claims under the Foreign Claims Act, which does not require proof of negligence of the United States. Even though six plus years have gone by, and neither the United States or the State Department, Defense Department or Congress show any inclination to do anything for these unfortunate first victims of terrorism, we will continue to try and accomplish something for them, oil or not. August 1998; Sterns & Walker have been asked to look into the possibility of recovering damages for the innocent victims of these Bombings through various claims procedures that have been set up by the United States Government, including the Federal Tort Claims Act. Several trips have been made to East Africa in order to interview witnesses and prospective clients, and a substantial number of claims were filed on their behalf with the United States authorities in Washington D.C. Unfortunately, negotiations with the State Department did not continue underway because the United States challenged the Kenya claims in the United States District Court in Washington, D.C. on two basis. The first was that because this claim "arose in a foreign country", it could not be cognizable under the United States Federal Tort Claims Act; secondly, wherever the claim might have arisen, that the actions of the United States officials were protected by the "discretionary function" defense of the Federal Tort Claims Act. All these motions were heard before Judge Kollar-Kotelly in the United States District Court for the District of Columbia. There was intense interest at this time also in the ongoing trial of the alleged perpetrators of the bombings in New York, as evidence is coming out in that trial which bears directly on the extent of knowledge of the United States of the threat and whether or not the United States will end up being liable. Even though the direct cause of the extensive damage was of course the terrorist act of the bombers, there have been several reports and an official investigation that show a significant lack of security and preparedness on the part of the United States. Additionally, the embassy's were located in a very busy high density part of town and there had been a number of prior threats. Under the circumstances, Sterns & Walker believes that there may well be a basis of compensation to the victims from the United States Government, whether or not there is formal legal responsibility. The creation of the Victim's Fund of September 11, 2001 by the U.S. Government to compensate the U.S. victims of 9/11, has made the issue of no compensation for the Kenyan's even more difficult. Most recently, the United States District Court Judge in Washington, D.C. dismissed some of these cases which had been filed under the Federal Tort Claims Act. Dismissal was based on the fact that the claims involved those which "arose in a foreign country," and thus the Court had no jurisdiction under that Act. The Judge denied the plaintiffs any right to further discovery, other than five depositions of fairly high level state department personnel. Plaintiffs argued that the actual persons with knowledge of alleged negligent conduct occurring in the Washington, D.C. area as opposed to overseas in Kenya or Tanzania, was withheld from them. The Court disagreed. The plaintiffs are considering whether or not an appeal is appropriate. Meanwhile, administrative claims continue to be pending with the State Department. These claims are filed under the Foreign Claims Act, and are wholly independent of any claim under the Federal Tort Claims Act. The Court would have no jurisdiction in any event in a Foreign Claims Act case, which are decided administratively. Another interesting aspect of this case is the enlargement of the September 11, 2001 Victims Compensation Fund and now potentially include the American Victims in the Kenya and Tanzania Bombings. It is reported that there are movements underway to attempt to include the victims of the destroyer Cole bombing, as well as the Oklahoma City victims. As yet, however, nothing is being done for the Kenya and Tanzania victims so far as the Congress is concerned. Stay tuned. 16. HMO, BENEFIT PLAN, EMPLOYMENT AND WORKPLACE ISSUES Harassment and a hostile work environment constitute illegal discrimination under both state and federal law. Wrongful termination cases may still be pursued, although limited by recent court decisions that allow an employer, under some circumstances, to age discriminate for "economic" considerations, and also limit the areas of recoverable damages. American with Disabilities Act (ADA) cases also can be meritorious, even though limited somewhat by a recent U.S. Supreme Court ruling. Employee benefit and HMO issues have been much in the news with the legislation recently moved through congress. The "right to sue" issue comes about from a U.S. Supreme Court decision several years ago, which held that employer funded ERISA plans, since congress has preempted the field without providing for a court remedy, there was none. Non ERISA plans are still open to civil claims for abuse, especially in the area of situations where the HMO displaces the medical judgment for its own because of economic considerations. Sterns & Walker handle matters for aggrieved employees in all of these areas. |
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