PHILADELPHIA – A federal judge has denied Sikorsky Aircraft its attempt to dismiss wrongful death litigation from the families of six members of the Canadian Armed Forces, who were killed in a helicopter crash off the coast of Greece, allegedly due to a defective design in the helicopter’s flight system.
The suit was brought on July 10, 2023 in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiffs are:
• Joanne Cousins (on behalf of the Estate of Matthew Cousins and on behalf of his DOHSA beneficiaries) of Harbour, Nova Scotia, Canada;
• Tanya Cowbrough (on behalf of the Estate of Abbigail Cowbrough and on behalf of her DOHSA beneficiaries) of Halifax, Nova Scotia, Canada;
• Kyle Hagen (on behalf of the Estate of Kevin Hagen and on behalf of his DOHSA beneficiaries) of Victoria, British Columbia, Canada;
• Amanda MacDonald (on behalf of the Estate of Brenden Ian MacDonald and on behalf of his DOHSA beneficiaries) of Eastern Passage, Nova Scotia, Canada;
• Kathryn Bowen (on behalf of the Estate of Maxime Miron-Morin and on behalf of his DOHSA beneficiaries) of Halifax, Nova Scotia, Canada; and
• Michael Custance (on behalf of the Estate of Matthew Pyke and on behalf of his DOHSA beneficiaries) of Valley, Nova Scotia, Canada.
The defendants are:
• Sikorsky Aircraft Corporation and Sikorsky International Operations, Inc., both of Stratford, Conn.,
• Helicopter Support, Inc. of Trumbull, Conn.
According to the plaintiffs, Sikorsky, a subsidiary of Lockheed Martin, failed to identify a design flaw in the CH-148 maritime helicopter, which caused the electronic flight system to assume control of the aircraft and crash it into the Ionian Sea on April 29, 2020.
“Reflecting a corporate indifference to safety that placed profits first, the Sikorsky defendants – in the face of missed deadlines and financial penalties – cut corners to rush the CH-148 into service,” the suit said.
Master Cpl. Matthew Cousins, Sub-Lt. Abbigail Cowbrough, Capt. Kevin Hagen, Capt. Brenden MacDonald, Capt. Maxime Miron-Morin and Sub-Lt. Matthew Pyke all perished in the crash.
The plaintiffs brought their suit in a Pennsylvania federal court, where the Sikorsky CH-148 helicopters were manufactured and tested at a now-closed facility in Coatesville.
When Canada’s Department of National Defense was looking to secure a new military helicopter fleet in the 1990’s, Sikorsky attempted to secure their business by offering an electronic flight control system – despite the fact that such a system had never before been utilized in a military helicopter and it had never been certified by the Federal Aviation Administration, the suit said.
According to the lawsuit, Sikorsky analyzed the flight data from the April 2020 crash and determined the electronic flight control system would overtake manual control of the helicopter when pilots were making “significant pedal and cyclic inputs” while operating in autopilot mode, as the decedents were on the day of the crash.
Specifically, the decedents were performing a low-altitude maneuver commonly used during rescue or combat and believed they would be able to override the electronic flight control system without disabling it, if necessary.
But that was not to be, and the suit alleged that Sikorsky violated industry standards and practices by failing to create a warning system for such an event and failing to design the flight director, so that it would automatically disengage if the pilots went beyond what the company tested for.
“The Sikorsky defendants were aware or should have been aware of the potential catastrophic consequences of an unsafe design, of inaccurate product information, and/or inaccurate or inadequate flight instructions for their CH-148 helicopter,” the suit stated.
“Despite their awareness of the consequences of their actions, the Sikorsky defendants marketed a helicopter which they knew was unsafe, they deliberately misrepresented the capacity and operational characteristics of their CH-148s, they ignored field experience that documented the unsafe condition of their product and they provided inaccurate and dangerous instructions to the owners and pilots of CH-148 helicopters. The Sikorsky defendants have prioritized their sales and profits over the safety of the passengers and pilots of their CH-148 helicopters.”
For 12 counts of survival under Pennsylvania state law and wrongful death under the federal Death on the High Seas Act, the plaintiffs are seeking compensatory and punitive damages against each of the defendants, jointly and severally, in an amount greater than $75,000, together with delay damages, interest, costs of suit and such other relief that the Court deems just.
On Sept. 8, 2023, Sikorsky motioned to dismiss the case, based on an argument of forum non conveniens, or improper venue.
“Plaintiffs’ attempt to characterize this case as a simple products liability action with a meaningful connection to the Commonwealth of Pennsylvania is inaccurate, misleading, and a misrepresentation of the facts at hand. The accident helicopter, a Sikorsky CH-148, was a military helicopter designed by, for, and in collaboration with, the Canadian Department of National Defence, for its exclusive use and ownership. Given its intended use as the Canadian Air Force’s Maritime Helicopter, the Canadian Department of National Defence and its various divisions were closely involved in every aspect of the helicopter’s design, testing, and certification. The circumstances of the accident itself – which occurred during NATO military exercises off the coast of Greece – further reveal the foreign connections at hand. Indeed, the present suit’s only connection to Pennsylvania is the installation of a ‘Block 2 Upgrade’ onto the helicopter, which was designed and manufactured outside of Pennsylvania, and the flight testing of the accident aircraft prior to its return to Canada, both of which occurred at a now-closed facility in Coatesville. Such limited connection pales in comparison to the deep ties this case holds not only to Canada, but to the Canadian government itself, revealing that venue is significantly more appropriate there. This is especially so since the Canadian military continues to be the sole operator of the CH-148 helicopter,” the motion stated.
“Therefore, Sikorsky’s motion should be granted pursuant to the doctrine of forum non conveniens. First, there can be no question that Canada presents an adequate alternative forum to entertain this suit. Second, plaintiffs – who are all Canadian citizens and represent decedents who were Canadian military service members – are entitled to limited, if any, deference in their choice of forum. Finally, a balancing of the various interests at play reveals that the relevant Canadian interests far outweigh plaintiffs’ interests and reasons for litigating this case in the United States, including specifically Pennsylvania. Sikorsky respectfully requests that this Court grant its motion to dismiss for forum non conveniens.”
UPDATE
More than one year later, on Sept. 30, U.S. District Court for the Eastern District of Pennsylvania Judge Timothy J. Savage denied the defense’s dismissal motion.
“Here, the most significant liability evidence is in the United States, including evidence of the design and manufacture of the EFCS system and the CH-148 helicopter. Although Sikorsky’s facilities in different states played a part, essential activities took place at its Coatesville plant. The Coatesville facility was touted as the ‘home of the CH-148.’ Plaintiffs contend that the connection to the Eastern District of Pennsylvania is ‘critical’ because ‘the defective product was completed here and distributed into the stream of commerce from the Eastern District.’ They emphasize that Sikorsky upgraded the helicopter’s software and structural systems at the Coatesville facility. That work took two years. That plaintiffs’ counsel’s office is located in the forum is usually discounted in considering the deference to be given to plaintiffs’ choice of forum,” Savage said.
“However, the choice is entitled to more deference where relevant evidence and the defendant are in the forum. In that case, the plaintiffs’ choice of forum is driven by consideration of convenience, increasing the deference given the foreign plaintiffs. In summary, the foreign plaintiffs’ choice is not entitled to a strong presumption of convenience. Nevertheless, because the defendant has a connection to the plaintiffs’ chosen forum and the plaintiffs have demonstrated that their choice was based on convenience, their choice deserves more deference than is typically given a foreign plaintiff. Therefore, we shall accord the foreign plaintiffs’ choice of forum less deference than is given to a domestic plaintiff and more than is usually given a foreign plaintiff.”
Savage then analyzed factors of public versus private interest, in order to make his final determination that the case should remain in Pennsylvania.
“This case involves complex technical and military issues. However, Pennsylvania has a significant relationship to this litigation. The alleged defective helicopter was upgraded and tested in Coatesville, Pennsylvania for two years before being deemed operational by the Canadian military. Therefore, it would not be unfair or a burden for the citizens of Pennsylvania to determine whether a corporation that placed the helicopter into the stream of commerce from here is liable,” Savage stated.
“The difficulties Sikorsky raises do not override the plaintiffs’ choice of forum that is based on access to evidence critical to the claims. The difficulties will not result in oppression and vexation to Sikorsky out of all proportion to the plaintiffs’ convenience. Therefore, we shall deny the motion to dismiss this action on forum non conveniens grounds.”
The plaintiffs are represented by Stephen E. Raynes, Martin K. Brigham and Daniel Bencivenga of Raynes & Lawn, in Philadelphia.
The defendants are represented by John C. McMeekin II of Rawle & Henderson in Philadelphia, plus Ralph V. Pagano of Fitzpatrick Hunt & Pagano, in New York, N.Y.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-02629
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com