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Remaining Flight 3407 cases are finally headed to trial

One by one, the wrongful death claims are being settled.

So are the disputes over who can and cannot testify.

Even the complicated bankruptcy case that stood in the way is over.

More than four years after the tragedy of Flight 3407, the question of who’s to blame for the deaths of 50 people is finally ready to go to a jury.

A trial is still months away – jury selection begins March 4 – but for the first time there’s a feeling among lawyers in the case that the victims’ families will finally have their proverbial day in court.

“The trial date can’t come soon enough,” said Terrence M. Connors, a lawyer for several families.

The civil suits against Colgan Air and Continental Airlines date back almost as far as the crash on Feb. 12, 2009, and there have been times when a trial seemed distant.

The case is old enough that Colgan has been in and out of bankruptcy, changed its name, moved its headquarters and become a subsidiary of Delta Airlines.

The regional carrier now operates under the banner of Endeavor Airlines with 181 jets and 1,000 flights a day.

Even more important, the case is far enough along that most of the lawsuits blaming the crash on pilot error have been settled.

At last count, 39 of the original 47 federal suits had been resolved, with many of them resulting in seven-figure settlements by the airlines.

But for those who have not settled, the prospect of a trial early next year is gratifying.

“For nearly five years, the families have endured a painful wait to hear the airlines explain why they lost their loved ones,” Connors said.

For some families, the opportunity to confront Colgan and Continental in a federal courtroom is appealing.

From Day One, they have argued that Colgan’s pilots were poorly trained and that the airline forced them to fly despite fatigue and illness.

The big breakthrough came in April when a federal bankruptcy judge in Manhattan approved a reorganization plan for Colgan’s parent company and cleared the way for the court case to resume.

That in turn led Chief U.S. District Judge William M. Skretny to schedule a trial date and address several outstanding motions by both sides.

His rulings included a decision allowing two men critical of Colgan’s operations before and after the accident to be questioned by lawyers for the families. Colgan had tried to block Christopher Monteleon, a retired FAA flight inspector, and Nicholas Sabatini, an airline consultant, from being deposed.

Not all of the courts’ rulings have gone against the airlines.

In June, State Supreme Court Justice Frederick J. Marshall ruled that a federal standard of care will apply in the five wrongful-death suits being heard in state court.

The families argued that New York’s much-broader negligence standard of care should govern the state cases, but Marshall found that federal aviation law and regulations exclusively govern pilot training and testing and ruled in favor of Colgan.

Colgan and Continental declined to comment on the judge’s decision but lawyers for the families downplayed its significance in terms of potential damage awards.

In their eyes, the judge’s decision does not alter in any way the legal rationale for substantial punitive damages against the airlines.

“Punitive damages are a way a lesson is taught to the industry, a lesson is taught to the airlines,” said James T. Scime, a lawyer for the families. “It’s another way to effect change.”

With the start of the federal court trial only five months away, the two sides are deeply involved in depositions and document review.

At this point, the families’ lawyers are focusing more on Continental’s role in the crash. Colgan owned the twin-engine turboprop that crashed in Clarence Center, but the plane was flying under the Continental Connection banner.

Scime said evidence in the case will show that Continental played a huge role in Colgan’s daily operations.

“They can’t hide behind the fact that the pilot and co-pilot were Colgan employees,” Scime said. “We have always felt Continental’s conduct played a role in the series of events that led up to this tragedy.”

Continental, which has since merged with United Airlines, contracted with Colgan to operate Flight 3407, but Connors says its role in running the smaller airline went beyond that of a normal contractor.

“We have always maintained that Continental shares liability for this catastrophe,” he said. “Their name and logo are plastered all over the plane, they sell the tickets, they control the seats. Passengers assume they’re getting Continental planes and pilots, but they’re not.”

If there is a trial, as most now expect, the families are expected to base much of their case on emails, documents and testimony suggesting the pilot, Capt. Marvin D. Renslow, was not properly trained.

The emails, for example, indicate that Renslow’s supervisors at Colgan raised doubts about his training and qualifications just six months before the crash of Flight 3407.

In addition, an investigation by the National Transportation Safety Board identified pilot error as the cause of the accident.

The board concluded that Renslow responded improperly to a stall warning that night and in a way that indicated he was startled and confused, and that his improper response caused the fatal crash.