Jury selection will start Sept. 3 for the last of the lawsuits in the fatal crash of Continental Connection Flight 3407, more than three weeks after the previously scheduled start date.
The trial in the lawsuits filed by the family of Douglas C. Wielinski, who died after the plane crashed into his Clarence Center home five years ago, had been set to start Aug. 11 before State Supreme Court Justice Frederick J. Marshall. However, it was put off for a settlement conference and pretrial hearings on motions.
So far, no settlement has been reached, and the judge has issued decisions on many of the motions.
Marshall has scheduled a hearing for Aug. 27 on a defense motion to bar two medical experts from testifying for the plaintiffs about what caused the 61-year-old victim’s death.
The defendants – Colgan Air, which owned and operated the plane, as well as its parent, Pinnacle Airlines, and Continental Airlines, which contracted with Colgan – contend that Wielinski died instantly from multiple trauma when the plane crashed into his home, killing him and all 49 people aboard.
They cite the Erie County medical examiner’s autopsy report to back their contention.
The plaintiffs say Wielinski did not die immediately but survived the impact and experienced excruciating pain as the house burned.
The plaintiffs’ experts – Drs. Joseph L. Burton and William R. Anderson – analyzed Wielinski’s tissue samples from the autopsy and found fluid in the lungs, which they say indicates he was still alive after the crash.
The defendants’ medical expert, Dr. James R. Gill, disputed the fluid finding, because he said it was not mentioned in the medical examiner’s report and that no soot was found in Wielinski’s respiratory system.
The defendants contend that Burton and Anderson should not be allowed to testify because their opinions are not supported by the autopsy report.
The judge ordered the hearing on the two doctors’ opinions because he said their finding that Wielinski had edema in the lungs, when there is no such finding in the autopsy and when no irritant was found in the victim’s airways, represents “a departure from any accepted medical practice or methodology in forensic pathology following autopsy.” Such a departure requires a hearing.
Marshall ordered Burton and Anderson to supply their complete files in the case to the defendants’ attorneys by 3 p.m. today.
While he ordered a hearing on the opinions of the plaintiffs’ experts, he denied the plaintiffs’ request for a similar hearing on the opinions of the defendants’ medical expert. He said the plaintiffs had failed to prove that Gill’s findings were not based on accepted medical practice or methodology.
Marshall on Monday denied the defendants’ motion to hold a second deposition for Jill M. Hohl, who was in the house with her father, Douglas Wielinski, and her mother, Karen F. Wielinski, on the night of the crash.
Hohl and her mother escaped but suffered injuries and are seeking damages for their pain and suffering, as well as damages for Douglas Wielinski’s wrongful death and pain and suffering.
The defendants’ attorneys, who deposed Hohl earlier this year, want to ask her more questions about her medical treatment. The judge said they could ask questions at trial, stressing that it needs to get under way.