Michael Marsh of Akerman, and Joseph Ortego of Nixon Peabody.

Here's how much Nixon Peabody partner Joseph Ortego and Akerman partner Michael Marsh believed that their client, aircraft manufacturer Daher-Socata Aerospace, makes a product that is safe.

With a test pilot, they got in a single-engine Socata TBM 850, went up to 6,000 feet, flew crookedly until the engine fuel cut off—and the plane's engine died.

Gulp.

That's what happened to Blaine McCaleb III and his wife Cynthia on October 5, 2014 when they crash-landed their plane on a high school football field near Fayetteville, Georgia. They were injured but survived, and sued Dahmer-Socata, alleging that the plane (which retails for about $4 million and is capable of making transatlantic flights) is defectively designed.

They sued on strict liability and negligence grounds, seeking more than $15 million (reduced from $30 million) for alleged physical injuries, including brain trauma and cognitive impairment.

But on Ortego and Marsh's flight recreating the circumstances of the crash, the pilot simply pushed a button and re-started the stalled engine. Which is what the two lawyers argued McCaleb could have done on his ill-fated flight.

After a three-week trial, a jury in Broward County, Florida on Nov. 16 agreed that pilot error caused the crash, and that the plane is safe and free of any defect.

For Daher-Socata, a French aircraft company that traces its roots to 1911, the case “wasn't about the money,” Ortego said. If the plane was deemed unsafe, it “could destroy the brand.”

The McCalebs also filed a separate suit against the Federal Aviation Administration in federal court in Atlanta. In that case, they alleged that the air traffic controller directed them to an airport about 10 miles away—too far for the plane to make it by gliding—rather than an airport 1.7 miles away and “almost directly in front of the aircraft,” they said.

That case settled last year for $650,000, according to Judgment Fund payment records.

But the Broward County judge ruled that that FAA suit could not be mentioned at trial.

That meant what could have been an easy scapegoat was off the table. Still, for Ortego and Marsh, casting blame on the air traffic controller wouldn't have helped their central mission anyway — “To defend the product,” Ortego said.  (He also noted that the plane is equipped with a screen that shows the pilot the exact location of all nearby airports. Presumably, McCaleb could have double-checked it for a closer spot to land.)

Ortego and Marsh—who both chair the diversity committees at their firms—faced off against formidable opposing counsel.

The McCalebs were represented by Katzman Lampert & Stoll, which specializes in air crash litigation and boasts of its lawyers who are also pilots. Last year, the firm (along with Nolan Law Group) won a $115.75 million verdict on behalf of three crew members killed in a cargo plane crash in Afghanistan.

Neither Ortego nor Marsh are pilots, but Ortego said they actually used that to their advantage. “I think one key to the case was not being an expert. It meant we were able to communicate to the jury in ways that made sense to them.”

The duo took a good cop-bad cop approach to the witnesses.

Experts figured prominently at trial, and Ortego said he “came down hard” on those who testified for the plaintiffs.

Marsh handled the fact witnesses, including the pilot and his wife, who was in the passenger seat of the plane when it hit the top of trees surrounding the football field, had its wing ripped off and underside damaged before it landed hard at 100 miles per hour.

A doctor specializing in internal medicine, Cynthia McCaleb allegedly suffered a traumatic brain injury and cognitive injuries as a result of the crash.

Marsh was deliberately “soft” when questioning her, Ortego said. “There was no need to beat her up” on the stand—and indeed, doing so could have been counter-productive.  “We did not attack these people.”

Instead, the defense relied on its own experts, including one who also investigated the Space Shuttle Columbia disaster. They also created an animation showing the jury exactly what happened with the plane's yaw damper and gravity-fed fuel system—and the 24 different alarms and bells and warnings alerting the pilot that there was a problem. Daher-Socata's CEO even took the stand to testify about the safety of the plane, which he said he personally flies.

It worked. After just over a day of deliberation, the jury found Daher-Socata was not liable on all counts.

Does the case make Ortego want to learn to fly? It's tempting, he admitted, but considering his skills as a driver, it might be ill-advised. “I know my limitations,” he said, laughing.

 

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