For the families of those killed in March 2015 when Andreas Lubitz committed suicide by flying an Airbus A320 into a French mountainside, the U.S. appears to be the best venue for the kind of robust damages they say may force the airline to change its medical-screening practices. Winning the case, however, may be tough.
German law precludes the kind of punitive awards available in America, not to mention the pretrial exchange of evidence known in U.S. courts as discovery. That’s why a New York law firm representing 80 families is focused on a Deutsche Lufthansa AG-owned flight training school in suburban Phoenix.
The families sued the school Wednesday in federal court in Phoenix. A similar complaint was filed March 29 in the same court by David Friday, an Australian whose wife and son were killed in the Germanwings crash, in which 150 passengers and crew members perished.
The first legal question in all of this: Will a U.S. judge find reason to litigate a German airline crash that occurred in France?
“Why should the case be in the U.S.? Lufthansa chose the U.S. for its flight-training program,” said Marc Moller, one of the families’ attorneys at Kreindler & Kreindler LLP in New York, a law firm known for litigating air disasters.
Moller said the school, Airline Training Center Arizona Inc., in Goodyear, Ariz., was a “gatekeeper” for Lubitz’s career as a commercial pilot and “had an obligation to investigate his medical history and his trustworthiness.” After doing so, Moller said, the school should have “then simply said politely to this kid, ‘I’m sorry, you simply can’t be a commercial airline pilot. We can’t take a chance, we can’t put passengers at risk.’”
A Lufthansa spokeswoman in New York, Christina Semmel, said: “Based on our information, we see no prospects of success for this course of action.”
Last month in their accident report (pdf) French authorities largely blamed medical-privacy laws—not Lufthansa—for allowing Lubitz to conceal his severe mental health problems from his employer.
Lubitz suspended the academic coursework of his pilot training in 2008 and was hospitalized for severe depression. In July 2009, he received a “special” medical certificate from German authorities to continue his training, but with the condition that it would be invalid if he had a recurrence of his depression, according to court papers. Lubitz began his training in Arizona in November 2010 and finished the following March.
Both lawsuits contend that Lubitz was a suicide risk due to his history of severe depression. The complaint filed Wednesday alleges that Lubitz displayed signs of “psychological abnormalities, reactive depression and personality disorders” during his time in Arizona and that the school had failed to disqualify him from further training.
David Katzman, an aviation attorney in Troy, Mich., at Katzman Lampert & McClune, said the suit has a respectable argument for jurisdiction in Arizona but will confront “a lot of interesting preliminary questions” about whether it can proceed.
“The question is the legal duty of the school to make a determination on the mental health of an applicant or of a student,” Katzman said, one a judge will likely decide early in the case. “Whether there was a breach of that duty is going to come down to the jury.” He said the plaintiffs could also potentially confront U.S. medical-privacy regulations related to how much information Lubitz would have been required to disclose.
The lawsuits attempt to argue a form of “educational negligence” by the school, which allowed Lubitz to become a pilot, said Howard Bushman, a trial lawyer with Harke Clasby & Bushman in Miami. “It’s novel,” he said of the litigation, adding that such cases have a spotty record of success, often because of the time between a person’s training and an accident.