Colgan Air says Douglas C. Wielinski died instantly from multiple blunt-force trauma after Continental Connection Flight 3407 crashed into his Clarence Center home, killing him and all 49 people on the plane.
But Wielinski’s family says he survived the impact and experienced excruciating pain before he died from the heat as the house burned.
A pathologist hired by the family who examined the autopsy and other evidence said the heat was comparable to being put into an oven.
The dispute over how Wielinski died came out Tuesday during a pretrial hearing on the Wielinski family’s lawsuits against the airlines in the case.
State Supreme Court Justice Frederick J. Marshall reserved decision on Colgan Air’s motion to dismiss the family’s claim for Wielinski’s pain and suffering after the crash.
Colgan’s motion said the autopsy found that the 61-year-old victim died instantly after the plane crashed at about 10:15 p.m. Feb. 12, 2009.
The judge also reserved decision on Colgan’s motion to dismiss the family’s claim for the pre-impact terror that the family alleges Wielinski, his wife, Karen, and their daughter Jill Hohl, who were all in the house, suffered just before the crash. He also put off a decision on Continental Airlines’ motion to dismiss it from the litigation, contending that it was not responsible for the operation of the flight or the hiring, training and supervision of the pilots.
Federal investigators blamed the crash on pilot error.
One of the family’s attorneys rejected Continental’s contention that it was not responsible for the flight.
“When my clients climbed out of the wreckage of their home, they saw the Continental logo on the plane’s tail,” Philipp L. Rimmler said, noting that the image is forever implanted in their minds.
Karen Wielinski and Hohl, who survived the crash, were in the courtroom, during arguments on Continental’s motion, along with another daughter, Kimberly Lipiarz, who was not home at the time of the crash but arrived shortly afterward.
They left the courtroom just before arguments on Colgan’s motions. One of the family’s attorneys said the issues in those motions were too emotionally painful for the family to listen to.
The lawsuits were originally filed against Colgan Air; Pinnacle Airlines, Colgan’s parent company; Continental Airlines, which contracted with Colgan; and FlightSafety International, a flight school based at New York’s LaGuardia Airport, which trained the pilot, Marvin D. Renslow, and co-pilot, Rebecca L. Shaw.
FlightSafety International, which like The Buffalo News is a Berkshire Hathaway company, was dropped as a defendant in the suits as a result of a stipulation among all the parties.
One of the suits seeks compensatory and punitive damages for Wielinski’s wrongful death, while the others seek compensatory and punitive damages for his wife and their daughters. The case is scheduled for a jury trial Aug. 11.
It is the last of the more than 40 lawsuits arising from the crash and offers the last chance for a public airing in court of what happened that night.
While the terms of settlements have been confidential, Debra A. Norton, an attorney for the Wielinskis, told reporters outside the courtroom Tuesday that the family has been offered half of what the other victims’ families were offered to settle their suits. She said the Wielinskis should receive three or four times what the others got.
In moving to dismiss the claim for the victim’s pain and suffering after the crash, Colgan attorney Neil A. Goldberg said the autopsy found that nearly all his ribs were broken, parts of his skull were missing and his sternum was crushed.
He said the pathologist for the Wielinski family was not involved in the autopsy, and he disputed what he described as the pathologist’s assertion that the skull fragmentation was caused by the heat from the crash.
Brian R. Hogan, an attorney for the family, said the pathologist, Dr. Joseph L. Burton, former chief medical examiner for metro Atlanta for more than 22 years, found that the impact did not kill Wielinski but that the heat from the fire did.
Hogan said the victim could have survived the injuries he suffered if he had received immediate medical attention, but he did not get that attention because of the intense fire.
Goldberg said the claim for pre-crash terror should be dismissed because Karen Wielinski, who was in the family room watching television just before the crash, and Hohl, who was in a bedroom upstairs watching television, heard a loud noise but did not know that a plane was about to crash into their home. He said the same can be assumed for Douglas Wielinski.
He said neither of the women got up to look outside, tried to flee or received any warning.
He said the claim was based on the findings of a psychologist who the attorney said relied on hearsay and statements from FBI investigators.
Hogan said Hohl testified that she sat up in bed when she heard the noise and realized it was a plane. He said the psychologist found that Douglas Wielinski would have suffered the same terror.
He said the two women are afraid of loud noises and low-flying planes as a result of what they went through that night.
Oliver K. Beiersdorf, Continental’s attorney, said the airline, which has merged with the parent of United Airlines, should be dismissed from the litigation because Colgan Air, not Continental, was responsible for the operation of Flight 3407 and the hiring, training and supervision of the pilots.
He said that since the airline has no supervision or control over the subcontractor, it cannot be held liable.
Beiersdorf told the judge that Colgan and Continental each had its own safety inspector and that the Continental inspector had no right to interfere with Colgan’s operation.
He said Continental had contracted with Colgan, which was a federally certified air carrier. He said that the tickets stated that Flight 3407 was operated by Colgan Air and that the Wielinskis have no claim against Continental because they were not on the flight and had not purchased tickets.
Rimmler, the Wielinski family attorney, said, “We wouldn’t be here today if not for Continental. The only reason Flight 3407 flew that day was solely because Continental scheduled the flight. For Continental to claim no responsibility flies in the face of fact.”
He said Continental set the schedule for when and where the plane flew and sold the tickets. Under federal rules, he said, the operator is the one that causes the flight to be flown.
“Continental was the operator,” Rimmler said, “and was required to make sure that the plane was not operated in an unsafe manner.”