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Inevitably, plane crash leads to big settlements Families will seek millions from Clarence air tragedy

Losing a beloved family member in an airplane crash is a horrible way to become a millionaire.

But that is exactly what happens after many aviation disasters throughout the world, and legal experts say that it is likely to happen again to family members of people killed in the crash of Continental Connection Flight 3407 in Clarence Center.

Several survivors of those killed in the Feb. 12 crash already have hired attorneys to research the possibility of filing lawsuits on their behalf, according to members of the Buffalo legal community.

Others are sure to be contacted by lawyers in the future. Under federal law, attorneys cannot solicit business from families of the victims until 45 days after an accident.

"Ultimately, the overwhelming majority of the families do hire attorneys, and significant settlements are paid," said Peter Goelz, a former managing director of the National Transportation Safety Board. "The airline industry and its insurers are prepared for it. This is the way the system works."

Millions of dollars are paid to settle wrongful-death or negligence lawsuits after most commercial air crashes, aviation experts said.

While money can never replace a loved one, Marcia S. Sarkin of Amherst said she would have faced serious financial problems if she had not filed a lawsuit after her husband was killed in a 2004 plane crash.

"I had a mortgage and two kids to get through college," Sarkin said. "I know my husband would want us to be provided for."

A lawsuit was settled in behalf of Sarkin's family after Sarkin's husband, Dr. Richard T. Sarkin, a widely respected Buffalo pediatrician, died in a commercial plane crash in Missouri.

"None of these families ever asked for this," said Robert J. Schreck, attorney for the Sarkin family. "This is a horrible tragedy that will affect the rest of their lives, and the law gives them the right to seek financial compensation."

While it might sound mercenary to some, lawyers are already studying the Flight 3407 crash to assess how much money can be obtained for the families of victims.

New York City attorney Kenneth P. Nolan, whose law firm specializes in aviation disaster cases, said he would be surprised if any of the Flight 3407 families get less than $1 million.

Nolan's firm represented 37 families after the last major commercial airline crash in New York State. That crash, in Queens, took 265 lives in November 2001.

In that crash, an airliner that had just left John F. Kennedy International Airport plummeted into a neighborhood, destroying several homes. Federal investigators cited pilot error, inadequate pilot training and a problem with the airliner's rudder controls.

Nolan's law firm has teamed with Buffalo attorneys Terrence M. Connors and Lawrence J. Vilardo, and they have spoken with families of several people killed in the Clarence Center crash. The lawyers said they were contacted by the families.

Other heavy hitters in Buffalo's legal community -- including Paul J. Cambria, his partner James T. Scime and personal injury attorney Stephen R. Foley -- have already been retained by families from the crash.

"What quite often happens is that the victims contact their family lawyers," Goelz said. "And those lawyers sometimes bring in people from the major aviation law firms."

"I haven't hired a lawyer yet, but from what I'm learning about [the crash], there might well be grounds for litigation," said Roger Des Forges, whose wife, Alison, a human rights advocate, was among the victims. "Nothing can replace the lives that were lost. On the other hand, we need to learn lessons from this kind of thing. Changes in [aviation] procedures need to be made."

>'The worst nightmare'

Few people in Western New York have a better understanding of what the victims' families are going through than Marcia Sarkin.

In an interview with The Buffalo News, she recalled how her life changed forever when her phone rang early on the morning of Oct. 20, 2004.

"There's been an accident," were an airline official's first words to Sarkin.

"The shock of getting that call was like the worst nightmare of your life," Sarkin said.

Her husband and 12 other people were killed when a small twin-engine commercial turboprop plane struck some trees while attempting a landing in Kirksville, Mo.

An investigation by the National Transportation Safety Board determined that pilot fatigue -- the pilot and co-pilot had been flying almost constantly for more than 14 hours -- contributed to the crash. The safety board also said the pilots failed to follow established procedures for landing at night.

For weeks after the crash, a lawsuit was the furthest thing from Sarkin's mind. She said her main concern was taking care of her two shellshocked children -- Jessica, then 18, and Alex, then 16.

"Telling my two children that their father was in a plane crash was the hardest thing I've ever done in my entire life," Sarkin recalled.

After that, there were hundreds of details to be taken care of, all relating to the crash. She had to send her husband's dental records and samples of his DNA to investigators in Missouri who were trying to identify bodies.

She had to make memorial arrangements and get his remains sent back to Buffalo, a process that took months. She even had to look through a thick catalog of all the items found at the crash scene to determine if any belonged to her husband.

"That was horrible, it was inhumane, looking through that catalog," she said, but it did enable her to retrieve her husband's gold wristwatch, which was still ticking.
Sarkin said she is "not one for filing lawsuits." But as she learned more about the cause of the crash, she decided that she -- like the families of other victims of the Missouri crash -- would take legal action.

"More and more, I came to the conclusion that this was a preventable crash. These pilots were exhausted. They should not have been flying that plane that night," Sarkin said. "One of the reasons I filed the lawsuit was that I hoped it would force changes by the airlines, so other families wouldn't have to go through what we did."

>One-third to attorneys

The other reason was Sarkin's financial situation.

"Education is a very important priority in our family," she said. "Without the settlement, I would have had very narrow choices for sending our son and daughter through college."

Schreck, a close family friend, filed the lawsuit, which was settled before trial. Under the terms of the agreement, Schreck and Sarkin are not allowed to disclose the money that was paid, but Schreck said that it was enough to provide for all the family's financial needs.

Typically, air disaster lawsuits are filed against the airlines, the aircraft manufacturers or sometimes against companies that make specific parts of the aircraft. Most lawsuits are settled before trial, experts said.

"You file a lawsuit because it provides for the financial needs of the survivors, and also because it helps to improve safety in the aviation industry," Schreck said. "People criticize lawyers, but we act as watchdogs. . . . It's better for the flying public that the airlines and the airplane manufacturers know that lawyers are looking over their shoulders."

That's true, Goelz said, but there have been some situations in which personal-injury lawyers have been crude and overly aggressive while trying to get victims' families to sign up with them.

Big money is at stake -- sometimes hundreds of millions of dollars in wrongful-death suits related to one accident -- and some aviation law attorneys "can be particularly aggressive," Goelz said.

According to legal experts, personal-injury attorneys typically work on a contingency basis and receive one-third of their client's award or settlement. So if a case were settled for $3 million, $1 million would go to the attorney.

One attorney told The News that his firm accepts less than the usual one-third contingency fee in air disaster cases, but he wouldn't say how much.

"I co-chaired a study group that was looking at how families were treated," Goelz said. "We had some families tell us that they felt besieged by these attorneys. Some of them were approached right after the accident. Some were solicited every day at their homes."

After one plane crash, Goelz recalled, he took a busload of surviving family members to the site of the crash.

"We found that a representative of a law firm had hidden on the bus to approach these people," Goelz said. "We had her arrested."

Personal-injury lawyers in Western New York are generally "very respectful of victims" and do not engage in such conduct, said Christopher J. O'Brien, a personal-injury attorney from Amherst who teaches at the University at Buffalo Law School.

"When somebody is grieving after a plane crash, the last thing they need is cold calls from lawyers."

Goelz was one of the architects of the Aviation Disaster Family Assistance Act. That federal law, passed in 1996, made changes in the way surviving family members are treated by airlines, by the government and by lawyers after a plane crash.

The law established a new 45-day waiting period during which attorneys cannot approach the victims' families and attempt to recruit them as clients for litigation related to the crash.

For survivor families from Flight 3407, the last of those 45 days is March 29. After that, Goelz predicts, the families will be inundated with offers from lawyers.

"Until that time, the victims can contact a lawyer," Goelz said, "but the lawyer cannot contact them."

e-mail: dherbeck@buffnews.com

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