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Unless a contractor is found to be at fault, the relatives may have to turn to public opinion.
February 5, 2003
WASHINGTON -- The Columbia investigation carries high stakes for the astronauts' families, whose ability to recover financial damages will first hinge on who -- if anyone -- is to blame for the disaster, aviation attorneys say.
If contractors can't be faulted, the families' best case may be in the court of public opinion, since most cannot sue the government.
"The bottom line is, it's an uphill road from a legal perspective," said Mark Dombroff, a former Justice Department aviation attorney who now represents airlines and others involved in air-crash lawsuits.
Unless the investigation finds fault with one or more contractors, most of the victims' families would probably receive only federal employee compensation funds, said Ronald Krist, a Houston attorney who represented several astronauts' families who settled with a contractor over the 1986 Challenger disaster.
"If the government did something wrong, they're exempt (from lawsuits), period," Krist said. Federal law shields the government from lawsuits if employees die while on duty; six of the seven Columbia astronauts were federal employees.
In the Challenger disaster, the families of six of the seven astronauts sought compensation from contractor Morton Thiokol, which made the defective rockets blamed for the shuttle's explosion. Only the families of two nongovernment employees, teacher Christa McAuliffe and Hughes Aircraft employee Gregory Jarvis, could sue the government.
The U.S. government did cover parts of settlements reached with four Challenger families, including those of Jarvis, McAuliffe and two astronauts who worked for the federal government.
The settlement terms remain secret, but published reports at the time said the families shared more than $7.7-million, with Morton Thiokol paying 60 percent and the federal government 40 percent. The possibility that the company might have accused the government of ignoring Thiokol safety warnings was a factor.
Public opinion also played a role in the settlements, said John Adler, a Chicago attorney who represented Thiokol in the negotiations.
The government and Thiokol both wanted to see the cases resolved amicably with the families, and anyone sued over the Columbia disaster probably would too, Adler said.
"I suspect if there is a suspect part, whoever manufactured that part would be anxious to see that the cases were resolved without litigation, if possible," he said. "Whether they have a defense or not doesn't prevent the bad publicity that attends the litigation."
Thiokol decided to settle even before a whistle-blower said he had warned the company about the structural flaws, Adler said. The company admitted no fault in its settlements.
A 1988 Supreme Court ruling issued in litigation over a Marine helicopter crash could make it more difficult for victims' families to sue any contractors blamed for Columbia's breakup, Adler and other attorneys said.
In that case, Boyle vs. United Technologies, the court ruled that contractors could not be held liable if they followed the government's instructions and didn't withhold any information from the government.
That ruling makes public opinion perhaps the most important ally of the astronauts' families in any litigation, said former Justice attorney Dombroff, who defended helicopter manufacturer United Technologies in the helicopter crash case.
Congress can always step in to help the astronauts' families, Dombroff said. The Sept. 11, 2001, attacks are one example of the court of public opinion; while there was no legal basis for government liability, Congress created a victims compensation fund.
The best legal course for the Columbia families is to wait for the results of the investigation, Dombroff and other aviation attorneys said. They have several months, at minimum, to decide whether to sue, Dombroff said.
The cost of any litigation could wind up coming back to taxpayers. NASA was gathering information Tuesday on whether it had indemnified -- taken on the cost of liability -- for any of its shuttle contractors. If it did, taxpayers could wind up paying any damages awarded as a result of lawsuits against the contractors.