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Final 3407 Case Not as Simple as it Sounds

Buffalo, NY (WBEN) - On Wednesday, pre-trial hearings continued in the civil suit filed by the family of Doug Wielinski against Continental, Colgan and Pinnacle airlines. Wielinski died when flight 3407 crashed in to his home in February of 2009.

In a case like this cause of death seems obvious, but Judge Frederick Marshall heard hours of testimony debating what the exact cause was. Attorney Steve Boyd says it could all make a big difference in the trial's outcome.

"The battle here is not a question of did he die this way, or did he die that way," Boyd said. "It's did he die instantly, or did it take some period of time?"

Attorneys representing Wielinski are spending considerable time and money (Jonrika Malone, the doctor who performed Wielinski's autopsy and one of the witnesses called, stated that she was being paid $300 and hour for her testimony) to be able to raise the question whether or not Wielinski experienced pain and suffering before his death. If he did, it could result in a significantly larger amount of money awarded to the family.

In New York a wrongful death case fundamentally becomes two different lawsuits; wrongful death, and conscious pain and suffering.

"If (Wielinski) suffered, a jury can award damages to his estate for the amount of time that he suffered," Boyd said. "That suffering includes not just the physical pain that he felt, but the knowledge of impending death. That sort of pain is the kind of thing that the jury can put any number on."

Wielinski's family is looking to prove that Doug died of thermal injuries, essentially burning alive, rather than instantly by blunt force trauma. Different medical experts have expressed different opinions on the cause of death.

"If you think of the difference between this case and the other 3407 cases, with the plane coming down and however long it took to get down it's conscious pain and suffering because they're in that horrifying, terrible experience. In the case that's in front of the Supreme Court now, where the gentleman is at home and a plane crashes in to it, if he burned to death that's a horrific way to die, and the jury should be able to consider whether or not that happened."

In previous hearings, the airlines said they should not be held responsible because the crash was due to pilot error.

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