U/A and Dr. Dao (2017)

The complaint by agent Long (link in prior post) is notable for several items relative to this discussion. Some of the allegations:

Agent Long was an LEO who was called in by other security officers.

Long did not receive training on the use of force continuum or how to deal with airline passengers.

Dr. Dao attempted to shake his arm free from Long’s grasp and after succeeding lost his balance and then fell.

United should have reasonably anticipated that calling the police would require the use of physical force.

United admitted that it was at fault and that the agents were not.

These are of course allegations which I don’t believe have yet been adjudicated. There is also reference to several exhibits, including the admission by United, which would be particularly interesting in the context of this discussion.
 
The article linked by the OP and the other news article I previously linked also contain some interesting statements pertinent to the discussion of use of force. From the first :

“Oscar Munoz, the CEO of United Airlines, said he felt "shame" when he saw the video.

"This will never happen again," Munoz told ABC News' "Good Morning America" in an interview three days after the incident. "We are not going to put a law enforcement official onto a plane to take them off … to remove a booked, paid, seated passenger. We can't do that."

Could be just PR back-tracking I suppose - or a genuine feeling recognizing UA had done something wrong.
 
Looking through the Wikipedia article on this for the exhibits referred to in the Long complaint. Didn’t find them but found this regarding the legal authority to remove Dr. Dao:

While United has asserted a right to remove passengers after boarding, none of the reasons for doing so specified in the airline's contract of carriage applied in this situation.[153] One attorney pointedly stated United "had absolutely no right to remove that man from the airplane"[154] and described the incident as "assault and battery."[152]
 
Yes, Wikipedia is only a starting point for a source and initial references. Thanks for checking that out source.

I think the DoT did investigate and conclude that UA had followed the regulations. I don’t think that the question of the actual legality of his removal has been investigated.

Next up would be the allegation that UA admitted it was at fault (would be the exhibit to the Long complaint) and that the officers were not.

The allegation that UA should have expected the use of violence when calling the police will presumably be adjudicated if the case proceeds.
 
Larry in TN said:
The DoT, who wrote and enforces 14 CFR 250, never intended, nor enforced, any such limitation. Such a limitation would undermine one of the intents of the rule which was to establish a policy that would be applied consistently and couldn't be gamed by some passengers as the expense of others.
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Well this could get into a sticky area that I have had to deal with. The courts don’t automatically assume the regulatory agency is correct, so the work in Long’s case may be determinative.

Have there been any prior regulatory rulings regarding this issue of whether the rule applies after boarding but before closing the door?

I don’t see how saying that once the passengers are on you can’t legally deplane them over a contract dispute would necessarily be inconsistent with the principles of fairness. There might be existing rulings to that effect though.

Strikes me, from a limited understanding, that this may simply be unresolved regulatory territory. Such gaps almost always exist.

And I don’t see that any of the regulations provide a legal basis for forced deplanement in these circumstances. They are mute on that point.
 
dmspilot said:
The quoted sentence apparently was written by an overzealous wiki author, as the cited source is from a newspaper article that interviewed a Boston attorney who used words like United "seems" and "may have" violated its contract.
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Reviewing all 3 references cited in the Wikipedia article on this issue I am left with the impression that the summary in Wikipedia was reasonable (it is almost a verbatim quote from reference 152) and that there is a serious legal question whether UA was legally within their rights to deplane Dr. Dao. They cite 3 separate attorneys (Wolk, Banzhaf, Tarricone). Consider:

Ref 152. https://www.philly.com/philly/colum...-Airlines-right-is-wrong-for-passengers-.html

'...but United had no right to remove Dao, says aviation law expert Arthur Wolk, a Center City attorney who read the 45-page “contract of carriage.”

Wolk says Dao “absolutely” had the right to the seat, and this was not a case of “overbooking,” he says, because all the passengers had seats. What happened to Dao was “assault and battery,” he says.'

'"Is there any question that Dao is going to sue? John Banzhaf, a professor at the George Washington University Law School, agrees with Wolk’s analysis. He says United is “citing the wrong federal rule to justify its illegal request to force a passenger already boarded and seated to disembark.”"'

Ref 153. http://www.bostonherald.com/news/lo...aces_rough_landing_in_court_if_passenger_sues

"United Airlines — embroiled in controversy after it forcibly removed a doctor from an overbooked flight — could be in for a legal beatdown if the passenger takes the beleaguered carrier to court, according to legal experts.

“I think they are going to have a serious legal issue on their hands,” said Anthony Tarricone, a Boston attorney who has handled cases involving aircraft accidents and disasters. “United might say they didn’t hurt him, and that it was security, but United set that situation in motion.”'

Should Dao, 69, choose to take United to court, he could come away victorious, according to Tarricone, who reviewed the airliner’s terms and conditions for its contract of carriage before speaking to the Herald.

He said United may have violated the contract when they attempted to remove Dao after he had already boarded the plane. Tarricone said the airline may have been relying on language that allows them to prevent someone from boarding when they called on authorities to remove him from the plane.

“I think they not only breached the contract, but they could also be facing a viable tort claim for allowing excessive force to remove a passenger when they had no right to,” he said.

Tarricone added that United can remove passengers from a plane under its terms, but “none of those seem to apply here.”

Ref 154. http://philadelphia.cbslocal.com/2017/04/11/aviation-attorney-on-united/

Aviation attorney Arthur Wolk says he read all 45 pages of United’s Contract of Carriage and he believes the airline violated its own contract.

“I want to assure United Airlines they had absolutely no right to remove that man from the airplane. Absolutely no right to forcibly remove him from an airplane. They’re in trouble.”

"According to Wolk, airlines can deny you a seat, but once you’re on board that’s a different story."
 
Well, I believe Chevron deference applies to cases arising from regulatory matters.

However, I see nothing in the regulation permitting them to physically remove him from the flight.

Are you maintaining the regulations permitted them to physically remove him from the flight? Did the DoT adjudicate that?

I think the only thing that would really have decided this would have been the lawsuit. But UA short circuited that by settling. Indeed it is possible that the exhibits in the Long case may be the settlement agreement. They may be sealed.

Long alleges in the complaint that UA has admitted that they could have reasonably anticipated violence would arise and that it was not the LEOs responsibility. If that is true, it is certainly important in terms of the issues here and would seem to place responsibility, by their own admission, squarely in UAs lap.

I think the next step would have to be to read the DoT decision and investigation as well as the contract for carriage.
We know that at least 3 attorneys, not party to the lawsuit, were of the opinion that UA violated its contract for carriage, but I presume that was prior to the DoT decision.

I don’t think taking with the DoT is likely to be informative, but if you have links to the investigation/decision that might be useful. I agree no reason to repeat the summary of it - I have read all the posts here.
 
Larry in TN said:
It would allow a passenger at the top of the list for being IDBd to "jump the line", so to speak, by boarding the flight early. It would, in affect, change the priority order from that established under 14 CFR 250 to first-come, first-served.
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If all the passengers have already been boarded, doesn’t this only become an issue when UA decided to place their employees essentially at the bottom of the list to be IDBd after everyone else was boarded? Does the regulation even deal with that? I didn’t see that in there.
[/QUOTE]
 
Palmpilot said:
Citing a court case before it's been decided is premature.

Attorneys disagree. In every court case, there's at least one attorney arguing for each side. I'd be interested in knowing what percentage of aviation attorneys agree with those three. Otherwise, it's just anecdotal evidence.
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I think this is a bit stronger than that. The complaint (have you read the pertinent parts?, points 44 and 45) alleges that an exhibit shows that UA admitted in writing that it should have known this would require the use of physical force and that UA was responsible.

It would take a very foolish attorney (and there are some) to put that in the complaint and refer to it in an exhibit if it doesn’t pretty much say that.

I would say reasonably good evidence that UA agreed to those things. Some chance it could be false, but not a lot.

In terms of attorney opinions, well, are there any reports of attorneys who would opine the opposite? Of the extant sample, 100% say UA was not on the right side of the law, but that is a biased sample :emoji6:
 
The letter from the DOT indicates a limited scope of investigation over 1 month confined to whether UA violated any existing regulations. Mostly whether people were chosen properly and if there was any discrimination by race (which was one of Dao’s expressed concerns).

It actually noted that “We are, however, unable to determine whether United followed the requirement in the Department's oversales rule to involuntarily bump passengers only if an insufficient number of volunteers come forward.” which would go to the point of UA exhausting other available more peaceful remedies.

It also does not exonerate or clear UA explicitly in any other way, specifically, whether the carriage contract was violated or if there is any authority to forcibly remove someone. They do not report reviewing the carriage contract at all.
 
Palmpilot said:
You seem to have a lot more time to devote to this than I do.
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I like to try and figure out the truth if possible. Habit from being a scientist I guess.

I also, perhaps unfortunately, have experience with differences between regulatory, criminal and civil law that can bite people, so this caught my eye. Practice reading regulations and legal opinions probably also makes it go a bit faster.

Of course I have to limit the number of items I read more deeply on or the time would get out of control. I think I mentioned I have an ongoing project regarding the whole MMR/autism scare and that has definitely consumed some time and will go on for a while yet!
 
Palmpilot said:
Every court case has at least one attorney arguing on one side, and another attorney arguing on the opposite side.

Three attorneys is not a statistically significant sample.
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Honestly I don’t think this is a particularly good reason to reject the 3 extant opinions.

Unclear exactly how to cast this as a statistical problem, but in general, 3 samples, if one has variation, can be used in hypothesis testing. In this case, they all agree so there is no variation. But the best estimate of the average if one has 3 samples is the mean of those 3 samples.

Dr. Dao’s lawsuit never got close to trial. UA settled soon after the demand to preserve evidence was sent. That strongly suggests that UAs lawyers also thought they were in trouble and would lose. So we don’t even know if UA had any lawyers that thought they could win. May have simply been a PR move but we just don’t know.

So really we have no data here to suggest any lawyers thought UA was in the right.

But of course looking at the actual regulations or statutes or decisions and the facts is better than debating second hand opinions if one really wants to get to the bottom of something.

It does take more time and effort though. But the DOT letter is just two pages. 14 CFR 250 isn’t very long or complicated. The 3 references cited in the Wikipedia article were just a few pages. Have a look if you are interested and have some time.
 
Palmpilot said:
Are you sure you're a scientist? :rolleyes1:

I'm sure that there are a lot more than three aviation attorneys in the U.S. We don't know what percentage of them would agree with these three, because three attorneys are not a statistically valid representation of all the aviation attorneys in the U.S.

A good scientist recognizes when it's necessary to say "we don't know."
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They also don’t engage in logical fallacies like the ad hominem attack. It is not only invalid as an argument, it is rude, particularly in a public forum.
 
Palmpilot said:
I'm sure that there are a lot more than three aviation attorneys in the U.S. We don't know what percentage of them would agree with these three, because three attorneys are not a statistically valid representation of all the aviation attorneys in the U.S.
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All right, taking that remark seriously, two points:

Is there any data extant in this discussion or elsewhere to suggest there are ANY aviation attorneys who would argue that UA was legally in the right?

There was no case argued in court or in motions by UA. Thus the observation that in any case there are attorneys arguing both sides is not particularly relevant. So far as we know, there were NO such attorneys willing to argue UAs case in court. They are at this point imaginary beings like unicorns.

If such existed, that would give rise to some statistical variation in the observations and then one could run a hypothesis test, yes, even on a sample size of 3. For example, go to http://rddr.io and enter “t.test(1.95,2.05,2.1))”. It provides a valid and significant statistical p-value for that case. The theory of hypothesis testing does not provide any basis for the broad assertion that a sample size of 3 is not a valid sample. Please provide a reference for that assertion. The validity of the sample depends on a lot of factors, including the level of variation in the sample.

But AS I NOTED, it is unclear how one would even properly cast this as a statistical problem with this dataset.

The question arose because of the assertion that a validly conducted opinion poll of aviation attorneys would be convincing. That is fair enough as a statement of what would be persuasive to the speaker, but then raises the question, why demand that standard of evidence?

What evidence, other than the non-existant, larger opinion poll would be convincing? I suggested it might be best to examine the actual exhibits in the Long case, the regulations, and the contract for carriage, to try and see, as a more direct assessment.

But I gather that would take too much time and effort. Fair enough, then perhaps best to just acknowledge that and that one simply doesn’t have the time or energy to fill in that gap in knowledge.

But perhaps what is really meant here is that we don’t really know how this would turn out in court if adjudicated. That is true and I believe has been one of my points. I don’t even really understand , and I don’t believe it has been presented here, what the legal basis for UAs actions were. The available evidence strongly suggests UA may have violated their carriage contract though I also suspect they had a valid grounds under trespass law to ask Dr. Dao to get off the plane.
 
Just happened to re-read this part today. From the letter describing the DOT investigation:

“It is undisputed that United sought volunteers willing to give up their seats for compensation several times and that one passenger offered to give up her seat for compensation following the initial request from a United agent for Drs. David and Teresa Dao to deplane the aircraft. There is conflicting information regarding whether United then offered Drs. David and Teresa Dao the opportunity for one of them to continue separately on Flight 3411.”

So it is not clear that even after UA was informed they would have one more seat available they could offer to get Dr. Dao to his destination that they made it available. Wow.
 
PeterNSteinmetz said:
I think this is a bit stronger than that. The complaint (have you read the pertinent parts?, points 44 and 45) alleges that an exhibit shows that UA admitted in writing that it should have known this would require the use of physical force and that UA was responsible.

It would take a very foolish attorney (and there are some) to put that in the complaint and refer to it in an exhibit if it doesn’t pretty much say that.

I would say reasonably good evidence that UA agreed to those things. Some chance it could be false, but not a lot.
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Following up on this necro thread based on further research. I have obtained the documents from the Long vs Chicago and UA case in Cook County. The item in the docket which said it was the exhibits referred to in the complaint does not contain the exhibits, but rather a voluntary dismissal with leave to refile. I spoke once with Long's attorney, who said they were going to refile but this has not been done since April of 2019.

I visited the Cook County Clerk's office a few weeks ago and had them search the physical files for these exhibits. It turns out the exhibits were never filed, despite being referenced in the complaint (which is sort of weird the court allowed this to continue in any way.)

I have subsequently tried contacting the plaintiff's attorney again, but received no response. The office address listed for that attorney is an apartment north of Chicago.

So there it stands. Perhaps the attorney did make some groundless claims of what was in the UA settlements or perhaps they reached an out of court settlement with a gag clause. I can't think of any further way to get those alleged statements from UA at this point.
 
Palmpilot said:
You're certainly digging further into this than the average SGOTI. Any particular reason?
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Of course you know that I am not the average SGOTI :emoji846:

Basically just curious about this case given the amount of past discussion. I thought the alleged admissions would be quite informative. Disappointing they can’t be tracked down.
 
Lindberg said:
For a scientist, you're awfully credulous. But my years of dealing with the law and lawyers lead me to conclude that the Duck Rule likely applies here.
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Actually, people have noted this more generally, often in the context of examining psychics and so on. That generally scientists are not used to their experiments and lab equipment lying to them.

Interesting that with more experience dealing with lawyers, you would think it more likely the lawyer was just making the alleged statements in the exhibits up. If caught doing that, wouldn't it be some kind of contempt of court and a bar violation?

I guess we'll never really know unless we can figure out a way to get the Dao settlement with UA.
 
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