A wrongful death lawsuit filed by family of a man killed when Continental Airlines Connection Flight 3407 crashed into his home began last week, and will feature important expert witness testimony regarding how much the deceased suffered between the accident and his death. Flight 3407 crashed on February 12, 2009 into a house in Clarence Center, New York killing all 49 passengers and Douglas C. Wielinksi, who occupied the Clarence Center residence. Five years after the accident, only Mr. Wielinski’s case remains unsettled, and family members will turn to medical expert witnesses in an effort to prove they are due substantial damages for the victim’s pain and suffering after the crash.

Plaintiffs Allege Victim Was Alive After Plane Crash

Family of Mr. Wielinski filed a wrongful death lawsuit against Continental Airlines and Colgan Air, which owned and operated the plane, seeking compensatory damages for the 61-year-old’s wrongful death and pain and suffering. The timing of Mr. Wielinski’s death is important to the lawsuit because if family members can prove that he was alive between the time that Flight 3407 crashed and the time the resulting fire would have proven fatal, then they are entitled to significantly more damages for pain and suffering. The legal system has long recognized that even fleeting moments between an accident and death can warrant pain and suffering damages to wrongful death plaintiffs if the victim likely suffered pain or fear before succumbing to injuries.

In the case of Mr. Wielinksi, plaintiffs from his surviving family prepared three forensic expert witnesses to argue that the condition of the deceased’s body indicated he was not killed immediately as the airlines allege. The three doctors are all experts in forensic pathology:

• Dr. Jonrika Malone:  Dr. Malone, who conducted Wielinksi’s autopsy when she was with the Erie County Medical Examiner’s Office in 2009, noted that he had suffered multiple blunt force trauma to his chest and ribs, which led to his death. However, Dr. Malone, now a forensic pathology consultant in Alabama, agreed to testify on behalf of the Wielinski’s that the noted trauma did not kill Douglas or render him unconscious. Based on skull fragmentation, Dr. Malone argues that Wielinski was alive after the crash and burned to death by the resulting fire – causing him to suffer significant pain.
• Dr. William R. Anderson: Dr. Anderson is a forensic pathologist and former medical examiner with over 6,000 autopsies under his belt, and he was hired by the Wielinski’s to conduct a medical review in order to testify that in his expert opinion Douglas was alive after 3407 crashed.  Although Dr. Anderson could not tell how long Wielinski lived after the crash due to a lack of toxicology results, he prepared testimony to say that the fluid in Wielinski’s lungs indicates that his heart was beating while his house burned. Anderson supported his opinion by pointing out that there is no evidence to suggest that Wielinski was instantly killed by the plane because his injuries were not indicative of severe enough trauma.
• Dr. Joseph L Burton: Dr. Burton is another forensic medical expert who examined Wielinski’s cause of death and determined that tissue of his lungs indicated they were filled with fluid – indicating that Douglas was alive and breathing for a period of time between 3407’s crash and his death.

All three of the Wielinski family expert witnesses were approved by New York State Supreme Court Justice Frederick Marshall, and will be allowed to testify during the wrongful death trial.

Airlines Counter with Forensic Expert Witness

Continental Airlines and Colgan Air have hired Dr. James R. Gill as a medical expert witness to testify in support of Wielinski’s autopsy which lists his death as immediate. Dr. Gill disputed the finding that Wielinski’s lungs were filled with fluid because the condition was not noted in the autopsy report, and there was no evidence of soot in his respiratory system – which is a common symptom among victims of fire. Dr. Gill agrees with the medical examiner’s report of Wielinski’s death, and has prepared expert medical testimony that Douglas died immediately from blunt force trauma when 3407 crashed.

Attorneys for the Wielinski’s unsuccessfully tried to keep Gill from testifying by arguing he had not based his analysis on scientific methods, but Judge Marshall allowed the defense to present Gill by saying the jury could decide which party’s expert has a better supported position. The trial began last week.