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Brazil: Indemnity Specialist Comments on Disaster Crash

George Hatcher

1/09/2009 – 09:47 – São Paulo – Consultant and strategist who
works with world-renowned lawyers, George Hatcher speaks on
the question of the indemnities to the relatives of the
victims of the accidents with flights JJ 3054, of the TAM,
and AF447, of Air France, analyzes the inquiries to determine
the causes of the accidents and–as a non-lawyer–guides the
families in the search for their rights.

First, I believe that it is important to understand the first
step that must after be taken by the victim families after an
accident like the Airbus A330 of the Air France, that killed
228 people on June 1.

First find a law office that has the necessary experience in
aviation. Contracting an American lawyer does not mean,
necessarily that the family is taking the case to be judged
in the United States. In the case of the Air France, it is
very early for saying where the litigation will be. If the
family contracts a firm that has the experience and is
situated in the United States, it will have an advantage when
the negotiations with the insurance companies occur. The last
place that the insurance company wants to go with the
litigation is the United States. Historically, our judges
tend to be sympathetic and generous with families of victims
of air accidents.

It is impossible to put a dollar value on the life of a human
being, however, at some point, just such an estimated value
must be given. An experienced lawyer will be able to do this,
based on standard factors such as profession, age,
dependents, and other characteristics. For example, a subject
that in Brazil does not function very well, but in the United
States is a recurring matter is the question of “pain and
suffering”. Thus, the defense has these two matters to work,
that is, the outstanding financial loss for the victim to his
or her family and pain and suffering that the victim had
knowing that those would be the last minutes or seconds of
his or her life.

The family does not contract a US firm to try the case the
United States. The family contracts them because they wants
the optimum lawyer and the best firm at its disposal to
represent its interest in any place in the world.

It is common knowledge that the law
firms you consult for represented 77 TAM air crash families.
How are those cases proceeding and what do you think of the
decision issued by the Federal Judge Marcia G. Cooke, who
decided for the forum non conveniens, regardless the partial
agreement already signed with TAM and the huge amount of
discovery already made by plaintiffs’ lawyers? Is there a
possibility to revert this decision?

– George Hatcher: The accident occurred on July 17, 2007. In
August and September 2008, settlement offers from the
insurance carriers of TAM were presented to the families; the
partial settlement with the 77 families exceeded 120 million
dollars. In a Florida Federal Court, Judge Marcia G Cook
granted the motion of Forum Non Conveniens on the
remaining cases against Airbus, Goodrich and IAE. This means
that instead of going to trial on March 2010, the case is
being prepared for an appeal. The decision to send it back to
Brazil will have to wait until the conclusion of the appeal.
We believe that during the appeals process, the negotiations
with the defendants may result in settlements for the
families. This decision is interesting to the Court of
Appeals because the Judge decided against the family of an
American citizen, who is one of our clients; and that
interest provides a strong motivation for the defendants to
settle.

The Federal Courts, together with the
Public Prosecutor’s Office and other consumer defense groups
will be working in an operational option to compensate
beneficiaries of Flight 447 of Air France. Their goal is to
speed up agreements between relatives and insurers. The
procedures will be similar to those handled by the
Compensation Chamber in TAM case, which settled with 92% of
the families that looked for the chamber, within a period of
16 months. Would that be the best solution?

– George Hatcher: – By doing that, the family will be forced
to settle for less money than the case could really be worth,
considering they would be represented by a lawyer. After a
“compensation chamber” type situation, if investigators find
later evidence of failures on the part of manufacturers that
could have contributed to the tragedy which it is
likely that the long investigation will turn up–the
chamber decision would hinder the family in future attempts
to sue anyone else in the case. In other words, whatever they
accept from the Compensation Chamber is all they will get
from all parties found guilty.

The families’ association for the
Flight 447 filed a complaint in the Federal Prosecutor’s
Office asking Brazilian authorities to take part in Air
France accident investigations. The families are also
considering looking for ANAC’s help. Are these initiatives
really necessary? What would be the best path right
now?

– George Hatcher: It is good for the families to join
together and politically push for prosecution of responsible
parties, but having the deceased’s name involved in a lawsuit
in Brazil can be complicated. It could help the defendants in
an American Court, in the case of a motion for Forum Non
Conveniens
. The defendants could argue that the family
had already filed a civil action in Brazil and that the
proper forum should be Brazil, not United States.

You had been to Brazil 3 times now to
meet some families. How many families already retained you,
and how are their lawsuits proceeding? What are the chances
of favorable litigation in American courts for Air France
case?

– George Hatcher – I cannot disclose how many families we
have signed, but I can say that we have over 10 families. As
I said before, it’s too soon to know if this case will go to
the United States. There’s still a lot to do before the
lawyers can say for sure. The most important thing now is for
each family to secure proper representation by a law firm
expert in aviation tragedies.

“If the black boxes are never found,
experts will reconstruct the events and come up with an
explanation of what really happened in this air crash.”

France announced the discontinuation of the second phase of
searching for the black boxes, and then announced this week
that they will begin the third search phase. Considering the
difficulty of locating such devices, what are the options to
better understand what happened? What tools can be used to
discover evidence of failure in the aircraft and its parts?
How long can such an investigation can take without the
black-boxes?

– George Hatcher: The black box from the Yemenia Air crash
was recently discovered in the Indian Ocean. That crash
occurred shortly after this Air France tragedy. It is too
soon to give up the search. However, if the black boxes are
never found, experts will reconstruct the events and come up
with an explanation of what really happened in this air
crash. Nowadays, such experts have access to countless tools
to do things we can’t even imagine. There’s really no way to
put a timetable on the length of time the investigation will
take.

The family of a flight attendant who
died in AF 447 announced they will file a complaint asking
for the indictment of Air France. They are convinced that the
company is accountable for failure to provide a safe working
environment. With regards to the crew, what measures can be
taken to find justice in the courts?

George Hatcher: – The French Government has their own rules
for handling workers rights and compensation issues. However,
families should fight together and push politically to change
anything they believe contributed to this crash and the
killing of their loved ones.

Have you planned the next Brazil trip
to deal with the cases involving the accident with Air France
Flight 447?

– George Hatcher: Our next visit to Brazil will be the next
week, when we will go also meet with some of the families of
the victims and with the lawyers who represent who them in
the country. | Jessi Kovatch