Crash course in ethics

How accurate are airline crash investigations if the people conducting them have a financial stake in the outcome?

By Michael Alvear

Published December 6, 1999 5:00PM (EST)

An independent think tank will release a much-anticipated study Thursday, to assess the National Transportation Safety Board's ability to police itself. Considering the thousands of lives and billions of liability dollars at stake, the $400,000 study's recommendations are of great interest to airlines, aircraft manufacturers, pilots unions, victims' families -- anybody with a stake in the fairness and justice of air-crash investigations.

Controversy surrounds the NTSB's current method of investigating commercial air crashes. Experts in a given field, such as engineers, designers and psychologists, are invited to serve on fact-finding committees headed by NTSB investigators. These experts include employees of airlines, aircraft manufacturers and other suppliers. In other words, the people with the biggest potential financial liabilities in the crash are helping determine the cause of it.

The NTSB commands a rare level of respect among government agencies. Admired by both Democrats and Republicans, it has a golden international reputation for thoroughness, fairness and heroic achievement.

But potential conflicts of interest forced Jim Hall, the chairman of the National Transportation Safety Board, the government agency charged with investigating commercial air disasters, to commission a study by the highly-respected, non-partisan think-tank, RAND.

The study will delve into what many consider to be the NTSB's glaring weakness -- its insistence on using potential defendants as key information suppliers.

Defenders of the current "party system" say it creates a universal conflict-of-interest that, in the end, produces balanced findings. But critics counter that the agency does not exert enough authority over industry parties to disclose information that could implicate them in the cause of deadly accidents. Attorneys for victims families say the NTSB keeps a cozy relationship with the airline industry, one which unfairly excludes victim families' from the table.

The NTSB is no ordinary government agency filled with bureaucratic clock-watchers. It's a collection of brave men and women wearing bio-hazard suits at the scene of gruesome commercial air disasters. They often buckle at the knees in emotional torment at what they've witnessed.

The work they accomplish is remarkable. In the TWA Flight 800 crash, for example, they recovered over 95 percent of the 400,000 pound aircraft along with the remains of all 230 aboard who were killed. An amazing feat in and of itself, never mind that it was done from the bottom of the Atlantic Ocean.

By federal standards, the NTSB is a small agency. Of the 400 people on staff, 130 are devoted to the Office of Aviation Safety, the arm that investigates commercial air crashes. NTSB investigates over 2,000 air accidents, the overwhelming majority of which are "general aviation" events (private pilots flying a Cessna, for example).

In May, Cindy Lebow, director of the NTSB-commissioned RAND study presented some of its initial findings to Congress. She testified that NTSB personnel are overworked (52 hours per week compared to the industry average of 42 hours), undertrained (40 percent of the NTSB's most experienced employees reported they're not training at all) and underpaid (RAND's survey deemed NTSB's salary structure "not competitive.").

Boeing's role in the TWA Flight 800 investigation sparked much of the current controversy over the NTSB's party system. Over 18 groups were formed to examine everything from flight data recorders, medical forensics, and aircraft performance to cockpit voice recorders, air traffic control and airport security. Later, it was discovered that Boeing withheld a key study from the Flight 800 investigation. At issue was whether the air conditioning unit was built too close to the center fuel tank, creating flammable vapors. Boeing vigorously disputed this explosion theory and told the NTSB it did not have any studies proving or disproving it.

Not only was there a Boeing study showing potential vapor problems on 747s, company officials had openly discussed the report earlier this year in a conference about the safety of the military version of the 747. It took three years, the chairman of a Senate judiciary subcommittee, the GAO and a Freedom of Information Act filing to get Boeing to acknowledge and then release the study. Boeing claims there was a miscommunication between its commercial and military divisions.

"Manufacturers are defending their product even as they help in an investigation of that product," said Terry O'Reilly, an aviation attorney representing some of the pilots and victim families of the Flight 800 tragedy. "It's like getting an arsonist to help determine the cause of the fire."

Not everyone agrees with O'Reilly, but a lot of fence-sitters were pushed to his side once Boeing's actions were made public.

Party-system critics point to Boeing's conduct as an example of how compromised an NTSB investigation can get. They say the system is a set-up for unethical and possibly illegal behavior. When part of its investigation committee has to be investigated, critics say it's time for NTSB to change.

The party system was developed in the 1960s. The point was to leverage technical expertise in the most effective way possible. Why have a bloated bureaucracy when you could just "borrow" technical expertise? After all, who is going to know more about the design of an aircraft than its manufacturer?

The party system has served the NTSB well, according to Norm Manetta, the former congressman from California's Silicon Valley who had NTSB oversight as chairman of the aviation subcommittee from 1979-1991. "I can't recall a single instance where a party member was found to withhold information," he said. "By and large, the system itself keeps everyone open and honest." Manetta is referring to the fact that almost everyone in an NTSB "party" is compromised in some way. They're all afraid of the consequences of being found liable. The airlines, aircraft manufacturers, pilot unions and other groups all have a vested interest in deflecting blame.

It's this universal conflict-of-interest that Manetta says makes the party system work. "The parties on a team," he said, "have to convince the other parties on the team" which is headed by an NTSB investigator. "For every force that wants to steer the investigation one way," he said, "there are equal and opposite forces steering the other way."

Don't tell that to the victim families of United Airlines Flight 585. In 1991 the plane crashed in Colorado Springs, Colo., killing 25 people. The NTSB narrowed the cause down to two factors: the wind or the rudder mechanism. A funny thing happened during the course of Boeing and United's examination of the plane's rudder system: Key parts disappeared -- for months. They were discovered later at a United facility in San Francisco.

The NTSB felt it was an honest mistake. But then, Boeing and United discovered a 737 with rudder problems during a routine maintenance check and they didn't inform the NTSB until they had a chance to conduct tests. The NTSB publicly lambasted them for not being more forthcoming.

Though he bowed to political pressure in commissioning the RAND study, NTSB Chairman Jim Hall strongly believes in the party system. After all, party members assist in fact-finding only. The NTSB alone analyzes the facts and comes up with a conclusion. Last month, in a speech to the Airline Pilots Association, he said "The system works well, has a long history of cooperation, and creates a healthy tension among the parties, as it was designed to do."

As an example he pointed to Boeing's discovery, through its own testing, that there was indeed a flaw in the 737's rudder system, causing it to jam. Boeing came forward, presented its findings to NTSB investigators and it resulted in a redesign and retrofit at a cost well over $100 million.

Hall's faith in multi-national conglomerates to disclose damning findings without regard to the hundreds of millions of dollars in potential lawsuits strikes some as naive.

"Personally, I am happy to credit Boeing with a rare burst of honesty," said victims' family attorney O'Reilly, "but that begs the question. The public should not have to depend on the good faith of a defendant."

Maybe the public shouldn't, but the NTSB does. The agency bends over backwards to keep a collegial atmosphere between it and the manufacturers, airlines and suppliers it relies on.

The NTSB has subpoena power but it rarely uses it, emphasizing mutual trust and cooperation instead. That infuriates plaintiff attorneys like O'Reilly. "What worries me is Hall's pathetic tone," he said. "He needs to remember that he is in charge and that he doesn't have to beg for good faith. He can require it."

A balanced investigation, according to O'Reilly, means NTSB's party system should include experts hired by victims' family plaintiffs. Currently, NTSB's charter specifically prohibits victims' families or their representatives from being party members. Without a seat at the table, plaintiffs and their victim families feel the current system gives defendants a privileged position in future litigation.

RAND's Lebow disagrees. She fears a gold rush if plaintiff lawyers become part of the investigations. "It promotes a rush to sign up clients," she said. "It's not good public policy. Families inherently do not have technical expertise in how planes are built and run."

But Doug Herlihy, an air safety investigator in private practice, says RAND is dismissing the seriousness of the party system's conflict-of-interest. He should know. He's a former NTSB investigator who brought in party members as an operations group chairman.

"It's naive to think that good employees won't be protective of their company," he said. "Are they going to tell you the complete unadulterated truth about their aircraft? These people are defense-oriented," he added. "They are preparing for litigation while they serve as party members. The information they give and get at the parties gives them an advantage in litigation." When asked if he had ever experienced deliberate delays, shadings, or misleading statements on the part of party members, Herlihy was unequivocal: "All the time."

O'Reilly claims numerous examples of plaintiff-hired investigators who discovered evidence missed by NTSB party members. "Why should the NTSB listen to the defendants but not the plaintiffs?" he asks.

"Because the NTSB isn't charged with finding liability," answers Carl Vogt, NTSB's chairman from 1991-1994. "It's charged with finding out what happened." Vogt believes there's a difference between finding probable cause and assigning blame. "The words 'defendant' and 'plaintiff' are terms of liability," he said. "And the NTSB is not concerned with legal proceedings."

No matter how hard the NTSB tries to avoid the legal repercussions of its work, the fact remains that its report is critical to the outcome of legal proceedings -- the astronomical liability guarantees it. Experts believe the EgyptAir crash alone could cost the involved companies up to $600 million.

Congress forbade the use of the NTSB's "probable cause" statement in legal disputes. But attorneys can use everything else in the report to bolster their cases. "It's too inflammatory and prejudicial to the jury," said RAND's Lebow.

Everyone seems to agree on that point. Even plaintiff attorney O'Reilly. "There's an old saying in law circles," he said. "If you get the cop you get the verdict."

Whatever RAND's recommendations turn out to be, it's clear that the stakes of NTSB investigations will only get higher in the future. That's because, in an age of rapidly expanding technologies, the causes of airplane crashes will become more difficult to determine.

Mechanical and weather related failures are likely to diminish because government and industry are spending billions on safety measures. "There will be fewer major aviation accidents," Lebow testified to Congress last May, "but those that do occur will be far more complex."

This is because the most significant trend in aviation is the inter-connectedness of systems. Older planes are dominated by single-point, sensor-to-instrument systems. For instance, the control mechanism for a rudder is often connected to the cockpit by cable. It's easy to point to a severed cable in a crash investigation. But what if there is no cable? Rudders in modern aircraft will be operated by electrical signals.

"There are 30 million points of data in a major commercial aircraft," said Lebow. "Signals filter through systems. A glitch in one sector causes a glitch in another, sometimes making it impossible to determine what happened."

The highly integrated systems and extensive cross-linking of aircraft systems make it hard to isolate failure. Built-in redundancies, fault tolerance and fail-safe systems enhance reliability but don't necessarily provide permanent evidence of a "complex systems event." How many ways can a modern plane fail? NTSB has to count the ways. Even when there's no trace of what occurred.

The trend in aircraft capacity makes NTSB's work even more critical. The single worst event in aviation history was a runway collision between two 747s in the Canary Islands, killing 574 people. Today, an event of that magnitude can happen in a single plane. The "stretch" configurations of the new 747-400 series can carry 600 passengers. By increasing "packing density" (decreased leg room), aircraft manufacturers can avoid full re-certification of older planes and make them more productive. Some industry planners are contemplating 800 person transport jets.

Based on Lebow's testimony in the spring, it's clear that RAND will urge Congress to fund NTSB so it can be salary-competitive and training-savvy. As for the party system, Lebow has publicly taken a "mend it, don't end it" approach. The NTSB needs to broaden its resources, she maintains. "The fix isn't to end the party process but to reach out to other resources like the Air Force, NASA and academic institutions to lessen reliance on industry sources. The NTSB needs to create the best Rolodex in the business."

Economist John Kenneth Galbraith once observed that a government agency which starts with good intentions in generation one is entirely composed of industry insiders by generation three. Until the NTSB can figure out a way to decrease its reliance on companies with vested interests in the outcomes of investigations they help conduct, critics say it will never have the public's complete trust.

Michael Alvear

Michael Alvear is the author of "Men Are Pigs But We Love Bacon," a collection of his sex advice columns, to be published by Kensington Press in May. He lives in Atlanta.

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