The last of the more than 40 lawsuits filed in the fatal crash of Continental Connection Flight 3407 more than five years ago in Clarence Center may be nearing a settlement.
State Supreme Court Justice Frederick J. Marshall said Friday he will meet in his chambers Monday with attorneys for a settlement conference.
As a result, jury selection, which had been scheduled to start Monday, has been postponed, pending the outcome of the closed-door meeting.
The family of Douglas C. Wielinski, who was killed when the plane crashed into his home, has sued Colgan Air, which owned and operated the plane, as well as its parent, Pinnacle Airlines, and Continental Airlines, which contracted with Colgan.
The settlement talk came a day after the judge granted a defense motion to dismiss the Wielinskis’ claim for punitive damages stemming from the Feb. 12, 2009 crash, which also killed all 49 people on the twin-engine turboprop plane.
Marshall found that the conduct of the pilot, Marvin D. Renslow, and co-pilot, Rebecca L. Shaw, did not meet the requirements for punitive damages.
He noted that the defendants have conceded that Renslow and Shaw “violated one or more regulations during the course of the flight and that such conduct was negligent, as well as the proximate cause of the eventual crash and loss of life.”
“The tragic accident, however, was the result of pilot error,” he wrote. “It cannot be established that the crash of Flight 3407 was the result of any conduct by the defendants that manifested spite or malice, fraudulent or evil motive or a conscious and deliberate disregard of the interests of others, that such conduct may be deemed willful or wanton.”
The judge also found that both pilots and Colgan had complied with all relevant federal aviation regulations and training policies and procedures.
He said the flight crew was fully qualified to operate the Bombardier DHC-8 series 400 (Q400) the day of the crash and that both pilots had completed Colgan’s FAA-approved proficiency rating for the Q400 and the FAA-required operating experience with the appropriately approved check airman.
“Further, the record indicates that the flight was uneventful, with no suggestion that either pilot deviated from appropriate and safe conduct through their approach to Buffalo Niagara Airport,” he wrote.
Marshall noted that all appropriate check lists were completed, and the pilots were in the process of completing their final before-landing checklist when the stick shaker was activated, warning of a stall.
“Unfortunately, while it is conceded that the 3407 crew responded improperly to the stick shaker activation [and] acted in contravention of their training, as well as sound principles of piloting and airmanship, there is no evidence in this voluminous record to establish that their conduct and reaction to the stick shaker activation was willful and wanton, a required finding prior to the imposition of punitive damages,” he wrote.
The judge said the crew mistakenly set the landing speed for non-icing when it should have set it for icing on that wintry night.
“Thus, the activation of the stick shaker at a rate higher than that anticipated, and the crew’s improper response, proved to be the ultimate cause of this crash,” he said.
Marshall acknowledged “the enormity of this tragedy for this family and this community.”
”However, this court is also mindful of its strict obligation to follow the law, and as such, must grant defendants’ motion for partial summary judgment and dismiss plaintiffs’ claim for punitive damages as against all the defendants.”
The judge also granted a defense motion to hold two trials, instead of one, in front of the same jury.
The first will focus on the remaining claims for compensatory damages for Wielinski’s wrongful death and for his wife, Karen, and their daughters, Jill Hohl and Kimberly Lipiarz.
The second trial will be held immediately after the first.
Karen Wielinski and Hohl were in the home at the time of the crash and were injured. Lipiarz was not home but arrived shortly afterward.
More than 40 lawsuits were filed following the crash. All but the Wielinskis’ suits have been settled so far. The settlements are confidential but reportedly involved seven-figure amounts.
Debra A. Norton, one of the Wielinskis’ attorneys, told reporters last month outside the courtroom before a pretrial hearing that the family has been offered half of what the other victims’ families were offered to settle their lawsuits. She said the Wielinskis should receive three or four times what the others got.
She also said that disturbing information would be presented at the hearing about what happened to Douglas Wielinski that night, telling reporters that the 61-year-old victim suffered a torturous death.
Her statements led Neil A. Goldberg, Colgan’s attorney, on Monday to ask the judge for a gag order, which the judge issued, directing attorneys not to discuss the case with the media. He also asked the judge to move the trial to Chautauqua County.
Marshall reserved decision Friday after hearing arguments on the change-of-venue request.
But he said he would start jury selection here if the case goes to trial. He said the jury selection process should give him an indication whether Norton’s statements to the media have influenced potential jurors.
Despite a poll for the defense showing that 51 percent of 400 Erie County residents surveyed believe Colgan acted negligently and recklessly in the crash, Marshall said he was hopeful that “there are still people with open minds who can evaluate this case fairly and impartially.”
“We need 10 people – six jurors and four alternates,” he said. “I am fairly confident we can find 10 people” who will be fair and impartial.”