Score one for the defense
I thought this image was appropriate for the story I’m about to tell in this post as well as the time of year. As I near completion of a first draft of the manuscript, I am taking another look at the trial that was held in May of 1983. I have written about that trial in several other posts on this site. Recently, however, I obtained the complete transcripts of the four week trial. In reviewing the transcripts, I came across an interesting debate over whether or not a particular book should be allowed into evidence. This excerpt from the book has a surprise ending, so hang in there. It’s worth the wait.
The last person called to the witness stand on day two of the trial was James Bailey, Hvass’s second technical expert. Bailey was a pilot who also had previously worked at Honeywell, a Minneapolis based Fortune 100 company. Like Hvass’s first technical expert, Robert Masmussen, Bailey had an impressive background as a test pilot for Honeywell. Before Honeywell, Bailey had served as a Corsair pilot in the Pacific during WWII. As a military pilot, Bailey worked alongside pilots like Frank Borman, Tom Stafford, and Neil Armstrong.
Bailey’s role in the trial was to criticize the flight crew for not taking appropriate action in controlling an easily controllable situation. He was also there to explain basic aerodynamic terms and concepts, starting with an explanation of how the ailerons, elevators, and rudder work In controlling an aircraft. It was flying 101, but it was necessary for the jurors to understand those basics before the more complex aspects of the upset were introduced. Day two ended with Bailey still on the stand talking about stalls, high speed buffet, and the coffin corner.
When Bailey resumed the stand on day three of the trial, the topic moved on to what Bailey would have done if faced with the same situation as the flight crew. A summary of the many mistakes the crew had made, according to Bailey, was that Captain Gibson should not have applied rudder, he should not have pulled back on the yoke, and he should have reacted sooner.
In Hvass’s preparation for the trial, he could not find anything in any of the TWA training manuals or the 727 flight manuals that addressed the exact situation Hoot had been faced with on April 4, 1979. He couldn’t point to a specific procedure that had Hoot followed might have prevented the upset. He did, however, find information in an aviation book about flying large jets that he believed was pertinent. So Hvass decided to introduce this book into the trial by way of Jim Bailey. His efforts, however, were thwarted by a very smart opposing attorney. Hvass brought up the book while questioning pilot Bailey.
Hvass: Let me interrupt you for a second. Prior to coming here to testify you reviewed with materials supplied by Boeing, ALPA, NTSB, is that correct?
Bailey: Yes, that’s correct.
Hvass: Did you also read a book entitled Handling the Big Jets by D. P. Davies?
Bailey: Yes, I read the book.
Hvass: Did you recognize this book as an authority in the field of handling large jet aircraft?
Bailey: It’s a very fine book. I did discuss this book with a number of other people, airline people, and they will support that opinion.(Testimony of James Bailey May 12, 13 1983. P298.)
Hvass then moved on to the topic of what the crew should and shouldn’t have done but soon circled back around to the Davies book.
Hvass: In connection with your testimony you said that you had read Handling the Big Jets by Mr. Davies.
Hvass: The date on this book is — this is the third edition, 1971, and Your Honor, at this time, pursuant to rule 803.18, Rules of Evidence, I’d like to read two excerpts from the book, read them to the jury.
The Court: Any objection?
Mark: I object.
The Court: It’s overruled. You may proceed.
Hvass: Thank you, Your Honor.
Mark: Would you like me to make a record?
The Court: Yes, I would. Would you gentlemen approach the bench please, and young lady?
(The following discussion was had out of hearing of the jury.)
Mark: Your honor, he has not established that this is an authoritative document. Even Mr. Hvass’s witness’s answer to the question whether or not you recognize this being an authority, he said it’s a fine book.
The Court: That’s correct in fact, and if you want to re-ask that question that’s fine. I took that as synonymous with an affirmative response, but I understand your point that it has — has to recognize this as an authority, and you can re-ask the question, and do you want to be heard on what the situation is if he doesn’t feel it’s an authority?
Mark: Let me further add, Your Honor, this is not the best evidence, and if the Court so desires I’d be glad to inquire further of the witness for further foundation for another objection, this is not a flight handbook. This is not a book published either by TWA or Boeing and is not a recognized authority in connection with the operation of the 727 aircraft.
Hvass: Your Honor, the TWA flight crew newsletter sait it was valuable information for both the novice and experienced jet flyer.
Mark: If it is helpful, Your Honor, the author of the book has disclaimed, indicating that he believes these are his own personal opinions, and there is certainly going to be a degree or non-agreement amongst various pilot experts. It’s not authoritative, Your Honor.
The Court: What’s helpful to me are the expert’s opinions, not necessarily the opinions of the attorneys, but if this witness expert called by the plaintiff says it’s authoritative in the field under 803.18, in my opinion he can read it, but I think you ought to repeat the question to him as a condition precedent to proceeding in this fashion, and we will note your continuing objection to this. Thank you.
(End of discussion out of hearing of Jury)
Hvass: Mr. Bailey, is this book an authority in the field of flying jet aircraft?
Bailey: I would consider it to be that, yes.
Hvass: Your Honor, I would like to read from Plaintiffs’ Exhibit no 30. Page 151, which begins, “Controllability, apart from stability, high Mach numbers can reduce controllability about all axes. Reference has been made earlier to some of these cases. Let us just summarize then briefly…”(Testimony of James Bailey May 12, 13 1983. P298-306.)
Hvass went on to read various sections from the Davies book, and then followed that up with questions to Bailey asking for his opinion on whether or not he agreed on what was just read. To those in attendance, it appeared as though Hvass had scored a minor victory.
Boeing attorney Boyd Ratchye also took advantage of the judge’s ruling concerning the Davies book. He mentioned the book near the end of his cross examination of Bailey.
Ratchye: …I have one more matter to cover, and it’s in again this Davies book, and I just want to inquire — you have indicated this is an authoritative text in the field.
Bailey: Yes, that’s correct.
Ratchye: I want to read to the jury and then inquire of you on some material on page 170, Use of Flaps at High Altitude.
Mark: Your Honor, again I would object to the usage of this material.
The Court: I will treat that as continuing, but he may proceed.(Testimony of James Bailey May 12, 13 1983. P346.)
Ratchye then read a section from the book that really didn’t apply to the case at hand. The section he read dealt with flap overspeeds and the use of flaps in holding patterns. Ratchye was trying to draw inference to the fact that use of flaps above the limitations set forth by the aircraft manufacturer were prohibited.
For all the debate about whether or not the Davies book should or should not be allowed into evidence, and the apparent damage to TWA and the crew by the judge allowing it, in the end it didn’t matter thanks to some quick thinking by Don Mark. In one brilliant move during his recross examination of Bailey he undid hours of damaging testimony in one fell swoop.
Mark: All right, sir. First of all, with respect to this book, Handling the Big Jets, everybody’s had an opportunity to read here, so with your permission I will do the same. There is a preface to the book, is there not?
Mark: You are familiar with that, are you?
Bailey: I think there is an acknowledgment and a few other things in there.
Mark: All right. He thanks his wife and so forth, as they usually do.
Mark: But then there is a preface after that, right?
Mark: Beginning on — well, page is not numbered, but it’s the preface to the first edition, and it states as follows: “I am anxious that this book should be received in the way in which it is offered, that is purely as an expression of my personal opinions. It is not an official ruling on the subject but is based on my experience of a variety of jet transports and includes the advice of many pilots specially qualified on specific subjects and the advice of engineering specialists. I am the first to admit that there are probably errors of fact in this book. I can only ask those who identify them to forgive me and let me know the truth as they see it. In some of the more contentious areas one of my biggest difficulties was to get two experts to agree on a particular point, and it was amusing to find myself acting as umpire in a field in which I was completely unqualified.”(Testimony of James Bailey May 12, 13 1983. P351.)