Widows lose appeal over pilot deaths on 'unreasonably dangerous' destroyer
By ANDREW DYER | The San Diego Union-Tribune | Published: August 16, 2018
SAN DIEGO, Calif. (Tribune News Service) — An appeal in a lawsuit filed by the widows of two Navy pilots killed in a 2013 accident was dismissed by a three-judge panel last week, the latest blow in a three-year legal fight that began shortly after the Navy partially blamed bad judgment and flawed ship design.
The pilots, Lt. Cmdr. Landon L. Jones and Chief Warrant Officer 3 Jonathan S. Gibson, were lost at sea after landing their MH-60 helicopter aboard the destroyer William P. Lawrence during operations in the Red Sea. They were attached to Helicopter Sea Combat Squadron 6 at Naval Air Station North Island.
The captain of the USS Lawrence, Cmdr. Jana Vavasseur, was found by a Navy investigation to have exercised poor judgment pushing the ship hard in rough seas, making it roll and causing a wave to wash over the flight deck.
The wave struck the helicopter while Jones and Gibson were still in it. The tail section came apart and the aircraft broke free of the chains that secured it to the deck. It then slid, out of control, across the deck and into the sea.
The Navy said there were “known” issues with the flight decks of Arleigh-Burke class destroyers in that their close proximity to the ocean’s surface increased the likelihood of water washing over them. A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower court’s decision to dismiss the case in a ruling filed Aug. 9.
The case hinged upon the Feres doctrine, a legal precedent that prevents military members and their families from holding the government liable for incidents that occur during military operations.
Brian Lawler, the San Diego-based attorney for the plaintiffs, Theresa Jones and Christina Gibson, said the 68-year-old Feres decision was “anachronistic.”
“It’s been too broadly interpreted,” he said.
Lawler said the lawsuit was really about a defective product — Arleigh Burke-class destroyers.
“The Arleigh Burke destroyer is unreasonably dangerous and the Navy has known this for 30 years,” he said. “If the Navy were Ford Motor Company and the destroyers were Pintos, they’d have to change them.”
The Navy offered no comment on the case Wednesday. In a brief submitted to the appeals court, officials argued that Feres was correctly applied to the case.
“The appeal involves the deaths of two Navy helicopter pilots...engaged in military operations in the Middle East,” it said. “As such, the district court’s ruling applied well-settled law under the Feres doctrine.”
The circuit panel agreed in its ruling, but expressed reservations about the liberal application of Feres. It would be, they said, up to Congress or the Supreme Court to change it, however.
Lawler said he planned on petitioning the 9th Circuit to re-hear the appeal, and, if unsuccessful, that he’d petition the U.S. Supreme Court.
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