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The families of three U.S. Air Force officers who died when their helicopter slammed into a mountain in Afghanistan have filed suit against the manufacturer, alleging that Sikorsky knew about an electronic flaw that led to the crash. On Nov. 23, 2003, the Sikorsky MH-53M Pave Low was loaded with special operations forces hunting Taliban and al Qaeda fighters as part of Operation Mountain Resolve. On their third mission, the helicopter encountered mechanical problems causing both engines to go out. Five service members were killed and seven were injured. On July 13, three of the families of the fallen servicemen, members of the Hurlburt Field, Fla., 20th Special Operations Squadron, filed suit in U.S. District Court in Miami. The suit against Stratford, Conn.-based Sikorsky and its parent company, United Technologies Corp., claims that defective design and faulty instructions for the $40 million Sikorsky MH-53M Pave Low caused both engines to fail. Sikorsky faces similar suits filed last week in U.S. District Court in Hartford, Conn. Those suits allege that engine failure caused the 2003 crash of a Sikorsky MH-53E Sea Dragon in Italy, killing four U.S. Navy personnel. Robert Parks, a partner at Haggard Parks Haggard & Lewis in Coral Gables, is representing the families in the Miami suit, along with Fort Walton solo practitioner Georgia Thomas and Patrick Ford, a partner at Ford Dean Sharp & Mallard in Miami. The suit alleges that when one of the helicopter engines failed, the crew needed to jettison weight to keep flying. But an electrical failure prevented the airmen from ejecting auxiliary fuel tanks. The second engine eventually gave out while the aircraft was 150 to 200 feet off the ground. After landing on a riverbank, the chopper struck an embankment. The craft rolled over and burst into flames. According to the suit, a combination of high altitude, the helicopter’s weight with only one working engine, and its inability to cast off the auxiliary fuel tanks caused the helicopter’s second engine to fail and led to the crash. The suit alleges that Sikorsky should have known that the electrical problem and subsequent engine failure could happen, and that the instructions for operating the helicopter were faulty. But Parks acknowledges that the plaintiffs face tough battle in showing that the helicopter’s design was defective. That’s because government defense contractors enjoy immunity under certain circumstances, and it also may prove difficult for the plaintiffs to penetrate the secrecy surrounding military equipment and operations. In the 1988 Supreme Court case Boyle v. United Technologies Corp., justices limited the circumstances under which a government defense contractor can be held liable for defects in military equipment. “Since this is a vehicle which is being used in a war environment, a lot of the stuff is classified, so it’s hard to do pre-suit investigation on this aircraft,” Parks said. “We ran into some opposition.” Still, he was able to get enough to justify the lawsuit, but he needs more information, which he hopes to obtain during discovery. Sikorsky has not yet filed an answer to the complaint. Sikorsky spokesman Ed Steadham declined to comment on the pending litigation. The plaintiffs are the families of Maj. Steven Plumhoff and Technical Sgts. William Kerwood and Howard Walters. MAINLY FOR SPECIAL OPS The MH-53M Pave Low, which can carry up to three-dozen people, is used primarily for special operations. The U.S. military has about 30 of the helicopters. The earliest model of the chopper was used in Vietnam in 1967. Since then 50,000 helicopters have been used by Air Force Special Operations Squadrons to gather intelligence. John Pike, a military analyst and founder of GlobalSecurity.org, said that the MH-53M Pave Low was a good choice for use in Afghanistan, since the country is rugged and devoid of any significant transportation infrastructure. But, he said, helicopters have not done well there. “Afghanistan has not been kind to helicopters,” Pike said. “It’s mountainous, and helicopters don’t like to fly at a high altitude. It’s hot and dusty, and helicopters don’t like heat and dust.” Pike said under those less than favorable circumstances, helicopters were more likely to have problems and crash. But he said Sikorsky had a good reputation for safety with its helicopters. Pike said that any analysis of problems for that type of Sikorsky helicopter would be difficult, since so few are in operation. “With that small of a population you just can’t do any statistical analysis,” he said. “They normally fly and they occasionally crash.” KNEW ABOUT PROBLEMS? The suit alleges that the instructions and manuals for the helicopter told operators to check the voltage — but not the current — going to the jettison system. In addition, the suit says, Sikorsky failed to provide a redundant method for dropping the fuel tanks in the event of an electrical failure in the jettison system. Parks said that there is evidence that Sikorsky knew about the fuel tank problem before the crash in Afghanistan. Alleged defective design, however, is not enough to pierce the immunity granted to government defense contractors, because as long as the military approved the design and specifications of the craft, the private contractor is immune from liability. To hold the contractor accountable, the plaintiff must prove that the contractor knew of a problem with a system and failed to warn the military. The complexity of what the plaintiff must prove makes cases against government contractors expensive, time-consuming and difficult, said Michael R. Sherwin, an attorney at New York-based aviation specialty firm Kreindler & Kreindler. Sherwin represents the families in the Connecticut cases against Sikorsky. In the discovery phase of the litigation, the plaintiff’s investigation “is critical,” Sherwin said. “You have to find documentation that there were previous mishaps, or a string of mishaps.” MILITARY SECRECY In addition to government reports, accident investigations and the contractors’ documents, the plaintiffs often attempt to get reports from the contractors’ technical representatives. But the government’s interest in protecting classified secrets often clashes with the plaintiffs’ push for discovery, since the documents sought could reveal capabilities and flaws in U.S. military equipment that could benefit enemies. “They are legitimate concerns,” Sherwin said. “But they can be balanced in a proper and fair manner.” Sherwin said that when issues of national security come into play, the judge typically will review the documents to make sure the need is legitimate. If the judge is satisfied, the involved attorneys need security clearance to view any classified documents and information. Parks said he already has faced resistance from Sikorsky in getting information on the crash and expects to encounter more. “It’s an interesting case,” he said. “These wartime situations always are. This is a little bit more than the hazards-of-war situation. That’s what makes it particularly tragic. This should never have happened.”

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