Does the Criminalization of Tort Inhibit Safety Investigation?
Thank you, Dan, for the kind words and giving me the chance to join you here. With the recent news that BP has agreed to plead guilty to 14 criminal counts, including manslaughter, and pay to DOJ more than $4 billion to resolve all criminal charges stemming from the 2010 Deepwater Horizon blowout, I have been thinking much about an issue I haven’t thought much about since my days in practice as an aviation litigation attorney, namely the criminalization of what traditionally had been treated as simply tortious. Excluding, of course, criminal investigations of intentional terrorist activity such as in the wake of Pan Am 103 and activity on 9/11, criminal investigations and prosecutions of transportation accidents were actually few and far between until we saw an uptick beginning in the early to mid-1990s beginning with the crash of Air-Inter flight 148 in Strasbourg, France, ValueJet flight 592 and then the Concorde crash in 2000. More recently, a criminal investigation has been launched into the April 2012 crash of a 737 outside of Islamabad. I and many of my former colleagues and former FAA Chief Counsel, Ken Quinn, see here, have grave concerns about the negative impact that criminalization of tortious activity has on the ability of safety agencies both inside and outside the aviation arena to comprehensively investigate the cause of the accident and improve the safety of the activity that led to the harm (i.e., air safety, oil drilling safety) and prevent future incidents. In practice, when criminal prosecution became a real possibility we saw the immediate “lawyering up” of key employees with potentially important safety-related information and the resultant non-cooperation or diminished cooperation in the safety investigation for fear of criminal prosecution. How do we prevent the next Deepwater Horizon blowout if employees won’t talk to the safety investigators?