Lawsuit filed by families of 160th SOAR pilots killed in crash revived in Federal court
An appeals court said that a suit brought by the estates of two pilots who died in a 2011 crash should proceed to federal district court.
A lawsuit brought by families of two 160th Special Operations Aviation Regiment pilots who died in a 2011 helicopter crash has been revived in Federal court.
On Tuesday, the Second Circuit Court of Appeals said that a suit brought by the estates of Army Chief Warrant Officer Steven B. Redd and Captain John D. Hortman should proceed. The suit had been dismissed by a lower court on technical legal grounds that did not address the issues raised about the helicopter.
Redd and Hortman died on Aug. 8, 2011 when their MH-6M “Little Bird” helicopter suffered a fuel system failure and crashed near Fort Benning, Georgia, which is now Fort Moore. The Second Circuit sent the case, which names the MH-6M’s engine makers but not the Army as defendants, back to the U.S. federal district court of Connecticut.
The families are seeking monetary damages which would be decided by a jury. The Little Bird’s mechanical issues at the heart of the case, the lawsuit says, were fixed by the Army across the 160th fleet two years after the crash.
“It’s the concept that we have been fighting for, for a long time and that is that our military members deserve the best equipment available,” Timothy Loranger, a Marine veteran, and lawyer representing Redd’s family told Task & Purpose. “We can’t ask our military members to take on unreasonable risk.”
The family’s of the two elite helicopter pilots argue that the soldiers died due to the manufacturer’s negligence and that the companies knew the helicopter was defective.
The companies, Goodrich Pump and Engine Controls Systems Inc. and Rolls-Royce Corp., argue that the issues with the fuel system were a result of a conflict between state and federal aircraft regulation, which dictated conflicting rules for their maintenance. The companies also argued that they were protected from the family’s lawsuit by military contractor immunity.
Requests for comment sent to lawyers representing Goodrich and Rolls Royce were not returned.
On the day of the crash, Redd and Hortman were flying the Little Bird during a training exercise at Fort Benning.
The Little Bird is a unique aircraft in Army aviation. Flown only by the 160th, the tiny helicopter weighs just over 1,500 lbs, about half that of a Honda Civic and less than one-tenth the weight of the 160th’s highly modified MH-60L and MH-60K Black Hawks and MH-60L Direct Action Penetrator helicopters. The Little Bird’s two pilots sit inside its small cockpit while up to four soldiers sit on its exterior seats or a small platform. Its tiny size and maneuverability allows it to deliver assault teams into tight spots like the top of buildings.
Redd was a highly experienced 160th pilot with 14 deployments to Iraq and three to Afghanistan by the middle of 2011, according to the lawsuit. Hortman was a relatively new 160th pilot who had flown in combat in Iraq.
As Redd and Hortman flew their Little Bird at Fort Benning, they made two passes over the training area. During the second, they announced over the radio that they needed to land immediately.
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Investigators determined that as they flew, the Little Bird’s Full Authority Digital Electronic Control, or FADEC, which controls fuel flow to the engine, detected an anomaly called a step count. The system disabled its normal automatic operation mode and switched to a “fixed” mode which continues fuel flow to the engine at a fixed level and signals an emergency to the pilots.
When that occurs, pilots are supposed to switch from fixed to manual mode and pilot the helicopter while using a lever to regulate the fuel flow.
The switchover from normal to “fixed” and then to manual mode, the families claim in their lawsuit, can interrupt fuel flow to the engine for six seconds, causing a power reduction likely to be fatal if the helicopter is flying at a low altitude, as 160th missions usually are, the families say.
The flight lead watched the aircraft descend at an altitude of about 100 feet and make a slight right turn before the helicopter hit treetops and nose-dived into the ground.
In their lawsuit, the families cite helicopter experts who claim the FADEC-cause power loss that Redd and Hortman suffered could not have been recovered by any pilot, regardless of skill or action.
The soldier’s estates allege that the fatal crash resulted from defective FADEC design and manufacturing. They say a key sensor in the FADEC, known as a potentiometer, and the engine’s maintenance manual were defective, which caused their failure.
Two weeks before the crash, the families say, the same helicopter had a FADEC issue, but engineers did not check the potentiometer because the manual’s troubleshooting steps didn’t indicate to do so. As a result, the helicopter was put back into service.
Worse, the lawsuit contends, the companies had already made widespread fixes to the FADEC systems in the civilian versions of the MH-6, the OH-6 Cayuse.
In 2004 the National Transportation Safety Board recommended modifications to the FADEC systems after several accidents were linked to the technology’s failures. Rolls-Royce offered free upgrades to their civilian customers years before the crash, according to court documents.
“The free upgrade was not offered to the military, however, and the military did not have funds to pay for it,” according to Loranger’s appeal documents. The companies offered a different software upgrade to fix the problem.
The Army installed that software fix to the 160th’s MH-6 fleet within two years of the crash, the lawsuit says, by a software update. “This solution took only minutes to install, and there was no technical reason it would not have been implemented earlier,” Loranger argued.
The companies’ counter argument was that the family’s state law claims were barred by conflict preemption which means that the manufacturer can’t comply with both federal and state law because they contradict each other. If they meet federal standards, they said, that should be enough.
Loranger said the battle between federal and state regulations will not be part of the case moving forward since the appeal court panel disagreed.
The court said that Congress’s removal of military aircrafts from the Federal Aviation Act’s scope indicates the aircraft regulations were not ruled by the FAA. “Rather, Congress intended for the Department of Defense to have autonomy over their own aircrafts,” the Second Circuit Court of Appeals panel wrote.
“Aside from any issues of preemption by the military contractor defense, the family members offered sufficient evidence under Georgia law for their strict liability manufacturing defect claim to survive summary judgment,” Eunice Lee, a circuit judge wrote, sending the case back to the federal court.
The defense companies also argued military contractor defense, which comes from a case, Boyle v. United Technologies. Corp., and states that the manufacturer is not liable if they designed the aircraft using federal specifications – in this case an Army contract and that they warned the government of any known dangers.
Goodrich, one of the defense contractors, argued that the Army was “heavily involved in all phases of the FADEC’s design and development,” and that the Army “was aware of the risks of its chosen configuration” for the FADEC.
That defense only applies to design, but Loranger argues that a particular component of the aircraft was manufactured negligently.
“A part was manufactured that was not manufactured to specifications, meaning it had a defect in the way that it was assembled or put together. It could be a material, defective metal, using, you know, it just wasn’t put together correctly,” Loranger said.
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