United Airlines May Get the Burden|of Proof in Sept. 11 Negligence Trial

     MANHATTAN (CN) – United Airlines and its security consultant Huntleigh USA may assume the burden of proof in the only remaining wrongful death lawsuit stemming from the Sept. 11 attacks, a federal judge ruled.
     Mary Bavis, whose 31-year-old son, Mark, died on United Airlines Flight 175, has not accepted a settlement, months away from her November trial date.
     Ninety-five other wrongful death suits stemming from the attacks have been settled for a reported $500 million.
     “Defendants acknowledge that the events of September 11, 2001, were tragic, but deny that they were negligent,” U.S. District Judge Alvin Hellerstein wrote in his Sept. 7 Order and Opinion Regulating Burdens of Proof and Issues for Jury Instructions.
     As the parties wrap up their pre-trial motions, Hellerstein ruled on whether Bavis may pursue state law claims, and where the burden of proof should fall at trial.
     The order states that the Supremacy Clause of the Constitution settled the first question, booting state claims in favor of federal law.
     Hellerstein did not decide where the burden of proof would fall at trial, but he indicated that it may not rest – as conventionally expected – with the plaintiff.
     “Where a defendant has superior access to knowledge of relevant facts, courts may shift a burden to the defendant, by permitting the plaintiff to make an initial showing and obtain the benefit of a presumption,” the order states. “Courts should not do so lightly, but should consider whether particular circumstances warrant such burden-shifting.”
     The judge appears to believe this is such a case.
     “Defendants are in the best position to show what they did and why they did it,” the order states. “It is appropriate to require defendants to assume the burden to come forward with this evidence. If defendants succeed, plaintiff will have the ultimate burden of proving some overall failure of due care, if due care is shown to be the standard. If defendants’ substantial compliance with regulations and procedures is shown to be a defense, defendants will have that ultimate burden of persuasion, as well as of coming forward with sufficient evidence.”
     Nevertheless, Judge Hellerstein continued: “I defer this question to later proceedings.”
     He said he would decide what categories of damages Bavis can recover in a separate order.
     The New York Times reported that Hellerstein indicated in a recent hearing that he would grant damages for the “21 minutes of terror” Mark Bavis suffered before the flight crashed.
     “My thinking is tending toward allowing terror damages,” Hellerstein said, according to the Times.
     He also said the case would revolve around how the attackers boarded the airplane, according to the Times.
     “I don’t know how the terrorists got through,” he said, the Times reported. “I don’t know how the weapons got through. And I don’t know if negligence is the only explanation.”
     The next court date is Sept. 19; trial is slated for Nov. 7.

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