Brett Van Bortel wanted to go to court to punish the people responsible for his wife's death. But a flip of a coin changes everything.
By BILL ADAIR
© St. Petersburg Times, published November 6, 1999
Joan Van Bortel lost her life when USAir Flight 427 crashed outside Pittsburgh. Two years ago, the airline's insurance company offered her husband $2-million.
That's how much her life was worth, the company was saying.
Brett Van Bortel didn't hesitate when he heard the offer: "See you in court," he said.
Relatives of most of the 132 people who were killed in the crash settled their cases, but Brett and a few others held out. He vowed to take his case to trial, to publicly embarrass USAir and Boeing, the manufacturer of the plane.
With the trial scheduled to begin this week in Cook County Circuit Court in Chicago, the lawyers held marathon talks to settle the last five cases, including Brett's.
The meetings were filled with jockeying and gamesmanship, with Brett's lawyers promising to bring a full-sized tail of a Boeing 737 to the courthouse steps. It would have USAir's red, white and blue logo on the side, which would make for a powerful image on the evening news.
Brett's lawyer called him Tuesday evening with the companies' final offer. Brett didn't know what to do. He still wanted to put them through a painful trial. Then again, he wanted to use the money to start a scholarship foundation in Joan's name.
His decision came down to a flip of a coin.
The crash of USAir Flight 427 was the subject of a series called "28 Seconds" that the St. Petersburg Times published in April. It recounted Brett's ordeal from the moment he heard about the crash in September 1994 until the National Transportation Safety Board finished its investigation last March.
The NTSB blamed the crash on a sudden twist of the plane's rudder, which made the Boeing 737 roll out of the sky. The safety board didn't have conclusive evidence, but it said the malfunction of a hydraulic valve probably made the rudder move the opposite direction from the way the pilots intended.
Boeing says there is no proof the valve malfunctioned but has since redesigned all 737 valves so they cannot reverse.
The lawsuit Brett filed against USAir and Boeing said he had "sustained pecuniary loss and damage, including loss of society and companionship, love and affection, as a result of (Joan's) death."
In the eyes of Cook County Circuit Court, the value of Joan's life would be based on cold-hearted economics -- how much she could be expected to earn in her lifetime, minus how much she would spend -- plus an additional amount for the loss of Joan's love and companionship.
In the fall of 1997, USAir's insurance company offered Brett $2-million, but Boeing almost certainly was involved. The companies do not publicly discuss their legal matters, and they would not comment for this story, but they typically arrange to share the cost of settlements.
Most plane crash lawsuits are settled before trial. Some families worry about the uncertainty of what a jury might do, so they appreciate the certainty that comes with a settlement. The airlines and manufacturers want to avoid the cost and bad publicity that comes with a trial.
USAir's insurance company told Mike Demetrio, Brett's lawyer, that $2-million was a reasonable offer because that's what the company had paid other people in similar circumstances.
Brett rejected it.
To calculate the value of Joan's life, USAir's lawyers required that Brett and many of his friends and family members give lengthy depositions. The USAir lawyer asked them about Joan's career, health, the strength of Brett and Joan's marriage. They even asked Brett about their sex life.
The goal was to calculate Joan's earning potential, to estimate how long she would live and if their marriage would last.
Both sides hired economists and accountants to estimate her projected earnings, the cost to Brett to hire someone else to perform Joan's household chores, and the amount Joan likely would have spent each year on clothes, food, etc.
There wasn't much agreement. The economist hired by Brett's team estimated his total economic loss at $1.6-million to $1.8-million. An accountant hired by USAir estimated the loss at $1.4-million, while an economist hired by Boeing came in at $833,000.
The parties disagreed about how long until Joan would have retired. The economist hired by Brett's firm assumed 25.8 years, USAir assumed 23.9 years.
Brett's economist came up with a higher cost for the value of Joan's household chores. This year, for example, Brett's economist estimated those chores were worth $10,974. USAir's estimate was $9,993.
A year ago, Brett made a counter-offer to USAir and Boeing, asking for $5-million.
Demetrio said the offer reflected the high $1.8-million estimate from his economist, plus a sizable amount for Brett's "loss of society," the legal term for the loss of love and companionship when a spouse dies. There also was a "significant premium" to account for the long delay since the 1994 crash.
But USAir and Boeing couldn't respond because the companies were too busy fighting each other about who should pay.
At some depositions, the Boeing and USAir lawyers were "screaming at each other at the top of their lungs," Demetrio said. "It was like watching my third-grader on the playground."
In February, Boeing and USAir lawyers floated the possibility of a $3-million settlement, but Brett said it was too low. They were headed for trial.
There were five cases left in Cook County, including Brett's. They were scheduled to be tried together. As the Nov. 3 trial neared, Demetrio and the other plaintiff lawyers put together powerful exhibits to sway the jury and create public relations problems for Boeing and USAir.
The biggest exhibit was the 3-story-tall 737 rudder, accurately painted in the USAir colors. It presented USAir and Boeing lawyers with the potential for a PR nightmare: a demonstration of a rudder reversal in the plaza outside the Cook County courthouse -- one of the busiest spots in downtown Chicago.
Demetrio and the other plaintiff lawyers had another powerful tool: a 4-foot-long replica of a USAir 737 with a removable top. Demetrio was going to lift the top off and show jurors the inside the plane. He planned to say: "This was where Joan Van Bortel was sitting."
Negotiations began Monday, two days before the trial was supposed to start. By Tuesday evening, USAir and Boeing offered to pay Brett $6-million. It was double their last offer and $1-million more than Brett's request a year earlier.
Demetrio called his client. "We think it's a good offer," he said.
"Do I have time to think about this?" Brett asked.
Demetrio said he needed an answer that night.
Brett had wanted a trial to publicly embarrass Boeing and USAir and force them to be more compassionate in the future. He felt Boeing was largely responsible for the crash because the company knew about the rudder problem after a similar crash three years earlier in Colorado Springs. Brett also blamed USAir for allowing the plane to have dirty hydraulic fluid, which contributed to the crash.
On the other hand, Brett wanted to start a foundation named after Joan to pay for scholarships for young women who attended the University of Iowa, where he and Joan met. If he went to trial, it was a roll of the dice. He might get less money from a jury and he might not see the money for years because of appeals.
Time was of the essence. Joan's father died recently, and her mother was getting older. Brett wanted Joan's mother to know the foundation was going to be a reality. So he called her. Should he take the settlement?
She said she was comfortable with him making the decision.
Brett thought about it. Fate put Joan on Flight 427, so it might as well be fate that decides what he should do.
He decided to a flip a coin. Maybe God or Joan's hand would decide which way it landed.
It was a 1987 quarter, which seemed appropriate because that was the year they started dating. Heads he would go to trial. Tails he would settle.
When he flipped it, he was sure it would come up heads.
He took a long walk and called Demetrio from his cell phone. Brett wants to write a book about his experiences to help families deal with future crashes, so he wanted to make sure: Would there be a gag order that would prevent him from writing or talking about the crash?
There would be no gag order, Demetrio assured him. Brett was free to talk.
"Let's end it," Brett said.
The four other plaintiffs also settled, for amounts ranging from $5.5-million to $25.2-million. That big award was for a passenger who owned a manufacturing company in Pittsburgh, which meant he had a much greater earnings potential.
The experience left Brett feeling empty.
"I thought it would make me feel better about her dying, that I got some vengeance. It doesn't."
You can read the St. Petersburg Times' special four-part series 28 Seconds, The Mystery of USAir Flight 427, at the Times' Web site: http://www.sptimes.com/28-seconds/index.html
-- You can reach Bill Adair at firstname.lastname@example.org