Houston lawyer Ronald D. Krist is so closely aligned with NASA disaster lawsuits that his Web site includes a photograph of a space shuttle, glass gavel and lawbooks. Nevertheless, Krist says it is too early to go to court in the shuttle Columbia disaster.
Krist has been getting phone calls from attorneys representing some of the survivors of the Columbia tragedy, but he has advised them to wait. "It would be reckless or foolhardy for anyone to file a lawsuit," Krist said.
The official NASA investigation usually provides the litigation road map, Krist said -- and that won't be done for months, at least. Those probes helped him win settlements for the family of Virgil I. "Gus" Grissom, the Apollo 1 astronaut who died in a launch pad fire in 1967, as well as for the families of three astronauts who died in the 1986 Challenger disaster.
Depending on the outcome of the investigation, there will still be plenty of room for litigation under the right circumstances, despite limits by the U.S. Supreme Court that have been placed on lawsuits against government contractors.
In fact, both Krist and Philip A. Lacovara, who argued the precedent-setting Supreme Court case on behalf of United Technologies, say they still envision lawsuits against the contractors under the existing court law.
The precedent arose out of a lawsuit filed by the heirs of Marine Lt. David A. Boyle, a helicopter co-pilot who survived the crash of his CH-53D helicopter off the Virginia coast but drowned after the escape hatch failed to open.
A bitterly divided high court ruled 5 to 4 that United Technologies could not be sued because it had followed reasonably specific guidelines of a government design and therefore was entitled to the same immunities as the government.
The court, in an opinion written by Antonin Scalia, established a three-part test for suing a government contractor. First, did the United States approve reasonably precise specifications? Second, did the equipment conform to those specifications? And finally, did the contractor fail to inform the government of any danger in the use of the equipment known to the supplier, but not to the government?
That still leaves open the avenue of a manufacturing flaw, such as, for example, one of the 10 kinds of foam covering the external tank of the shuttle being flawed, or Lockheed Martin workers who sprayed it onto the tank not spraying enough, or using the wrong adhesive, or making some other error. If that flawed foam then blew off during launch and damaged the shuttle's heat-insulating tiles, and that in turn is blamed for the disintegration of the Columbia over Texas, then the company responsible for the flaw could be held liable.
"If it is a manufacturing defect, Boyle doesn't apply," said Lacovara, a former Washingtonian and deputy Watergate prosecutor now at Mayer, Brown, Rowe & Maw LLP in New York. "The defense only applies where the government made the decision about the feature that allegedly caused the accident. If the manufacturer fails to manufacture the product in accordance with the government's approved plans or specifications, that action is not covered by the defense."
Nevertheless, the Boyle decision is still considered a major hurdle for claimants in such cases. Dissenting Justice William Brennan wrote that the majority's opinion in Boyle was "breathtakingly sweeping." It would have nixed, for instance, the lawsuit Krist filed on behalf of three shuttle Challenger families against Morton Thiokol, if the case hadn't settled prior to the Supreme Court ruling, for more than $23 million.
"The injustice [of the majority opinion] will extend far beyond the facts of this case," Brennan wrote. "It applies not only to military equipment like the CH-53D helicopter, but (so far as I can tell) to any made-to-order gadget . . . from NASA's Challenger space shuttle to the Postal Service's old mail cars."
And now, perhaps, to the Columbia space shuttle.
The Boyle decision places higher stakes on the findings of the Columbia investigation. If it is NASA's faulty design, the family will have to settle for official compensation. If there was a manufacturer's error, then the calculation changes.
The NASA investigation, Krist said, "might quite frankly reveal that if there was any fault attendant, it was the government's. If that's the case, then it is the rub of the grain."
A Paper Trail Tussle
A nasty little exchange has emerged out of the Thrift Savings Plan lawsuit filed by Roger Mehle, the former executive director of the Federal Retirement Thrift Investment Board.
You'll remember that last time we told you about the lawsuit filed by Mehle against new members of the thrift investment board, which oversees the $100 billion in investments of 3 million government employees and others in the Thrift Savings Plan.
(Attention government workers: This internecine little fight is all about your hard-earned investments.) Mehle, a former Treasury Department official who also was appointed by President Reagan to serve on the first thrift investment board, has accused the Bush administration of trying to jettison a pending fraud lawsuit against a well-connected computer contractor.
The new Bush-appointed board has said it doesn't like a pending lawsuit against American Management Systems, at least in part because the suit was filed without the permission of the Justice Department. Mehle brought that suit when he was executive director after AMS did not deliver a promised new computer system for investors to get up-to-date account information.
Now, Mehle is accusing the board's holdover general counsel, Elizabeth S. Woodruff, of wanting to erase evidence of her involvement from the AMS lawsuit as well. Woodruff has written Mehle asking him to seal two paragraphs from his lawsuit in which he says that Woodruff helped draw up the legal papers in the litigation against AMS. In the letter, Woodruff calls the references to her involvement "factually inaccurate" and says revealing her counsel is a breach of attorney-client privilege.
In an equally testy reply, Mehle refused to seal the documents. "Your seeming attempt now to conceal or deny the positions that you presented to the trial and appellate courts in Mehle v. American Management Systems is troubling and merits further inquiry," Mehle wrote.
He further notified Woodruff that he plans to call her as a witness to prove that she was "singularly instrumental in surreptitiously promoting and facilitating" the "unlawful ouster" of attorney James B. Petrick, who was hired to be executive director by the outgoing Clinton-appointed board and then forced to resign by the new Bush-appointed board.
Woodruff, through spokesman Thomas J. Trabucco, declined to comment. The letters can be found on Mehle's Web site (www.mehlelaw.com).
Furthermore . . .
Stephen A. Riddick, the Northern Virginia managing partner of the dot-bomb firm Brobeck, Phleger & Harrison LLP, along with colleagues Jason T. Simon, Stephen J. Bolin and Daniel Lee, have landed at Greenberg Traurig LLP's corporate and securities practice in the District. . . . Wilmer, Cutler & Pickering snagged Bradford M. Berry, former deputy chief of the Federal Communications Commission's enforcement bureau. . . . Piper Rudnick LLP hired lobbyist Roger Levy of Citigroup.
Hearsay launches unofficial investigations every other week in Washington Business. Send your evidence to firstname.lastname@example.org.