Wrongful Death Claims Settled Over Plane Crashing Into Home

FORT LAUDERDALE, Fla. (CN) – A settlement has been finalized in a case stemming from a 2014 Maryland plane crash in which a private jet barreled into a family’s home, killing a mother, her newborn and her 3-year-old child.

Kenneth Gemmell’s wrongful death lawsuit over the loss of almost his entire family came to an end Dec. 13 in Broward County, Fla. court after a settlement was reached in the roughly year-and-a-half-long  litigation.

“[Mr. Gemmell] is pleased the lawsuit is behind him. But the pain of losing his wife and his two infant children stays with him and his daughter every day,” his attorney, Douglas Latto of Speiser Krause, told Courthouse News.

“There’s no closure when you lose your wife and kids,” he said.

Latto confirmed that the case was resolved but declined to discuss the settlement sum, citing a confidentiality clause.

The original pleadings were filed by Gemmell’s Florida counsel, Ricardo Martinez-Cid at Podhurst Orseck, in Broward County in May 2016, prior to pro hac vice admission of Speiser Krause in the Florida court.

The defendants in the litigation were Embraer, the maker of the jet, the estate of the pilot Michael Rosenberg, who also perished in the crash, and his company Health Decisions Inc., which was purportedly using the jet to fly to the Washington, D.C., area for business.

Sage Aviation LLC, a company associated with Rosenberg, was likewise named as a defendant, as the registered owner of the plane.

Court records indicate the settlement contains provisions for an annuity for Gemmell’s surviving daughter, who was in school at the time of the crash.

The December 2014 accident is believed to have resulted from the plane’s falling into an aerodynamic stall in icy conditions on its approach to Montgomery County Airpark, a small public airport near Gaithersburg, Maryland.

Gemmell’s wife Marie was on maternity leave from her job at First Potomac Realty Trust, caring for her newborn Devin and three-year-old Cole, when the Phenom 100 plane crashed into their home, roughly three-quarters of a mile from the runway, according to court documents.

Gemmell’s lawsuit alleged Rosenberg, a 66-year-old doctor, pilot and clinical research company chief, was responsible for the tragic accident, as he approached the runway too slowly and neglected to address in-flight ice buildup on the plane.

The complaint included manufacturer liability counts, alleging that Embraer’s plane design had a deficient stall warning system and lacked ice-detection  features.

A National Transportation Safety Board investigation concluded in June 2016 that Rosenberg approached the runway 30 knots below the correct speed.

Though he had used the plane’s deicing system for about two minutes shortly after takeoff for the roughly hour-long flight, he allegedly did not reactivate it prior to the landing approach.

This led to “ice accumulation, an aerodynamic stall at a higher airspeed than would occur without ice accumulation, and the occurrence of the stall before the aural stall warning sounded or the stick pusher activated,” the NTSB found.

The NTSB concluded that pilots of planes like the Phenom 100 “would benefit from a system that provides automatic alerting when the ice protection systems should be activated,” particularly “when conducting single-pilot operations.”

The estates of two passengers who died in the crash — Chijioke Ogbuka and David Hartman — have active lawsuits in Broward County against Embraer, Sage Aviation and Rosenberg’s estate.

As it did in the Gemmell litigation, Embraer in these pending cases preliminarily asserted a boilerplate “state of the art” defense under Florida Chapter 768 statutes, arguing that the plane was properly equipped with up-to-date technology at the time of its manufacture in 2009.

Court records show that Rosenberg’s widow, Alicia Paladin, has a claim against Embraer pending as well. Her lawsuit echoes some of the allegations presented in the Gemmell case: that Embraer’s plane design for the Phenom 100 lacked an alert system to notify pilots when ice is accumulating on the wings.

“Even though the first ten production models of the Phenom were manufactured with an optical ice advisory ice sensor, Embraer abandoned that safety feature,” the lawsuit filed by the pilot’s widow alleges.

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