The Downing of Germanwings: Lufthansa's Responsibility

Lufthansa may yet, as it has signaled, release all the relevant documents, admit it's own responsibility, and pay generous compensation to the families of the victims. But if history is any guide this will not happen without a fight for full disclosure of the facts surrounding this horrific event.

Here are my insights from my experience in representing the families of Pan Am 103 who initiated the first lawsuit against Libya for the destruction of that aircraft; and in serving as co-counsel to the families of victims of suicide bombers against the Arab Bank which contended that foreign secrecy laws prevented full disclosure of its role.

It will likely come down to this: a settlement offer by Lufthansa, owner of its budget-flight spin-off, Germanwings; or an effort to avoid full liability by hiding behind foreign absolutist medical secrecy laws. If the latter course is pursued, Lufthansa would be betting on trumping US laws and policies on airline safety to avoid accountability to the families of the U.S. passengers aboard the doomed aircraft. Even if it is inclined to offer a settlement, the full amount of damages that it should be required to pay can never be determined unless all relevant documents are disclosed. Neither what it knew and when it knew it can be learned without full disclosure. In short, the full extent of compensatory damages and the likelihood of punitive damages were the case against Lufthansa to go to trial cannot be determined without full disclosure.

Latest news reports indicate that antipsychotic drugs were prescribed to the troubled young copilot of the Germanwings airplane which he purposefully crashed into the Alps, killing all 150 aboard. In the United States, the plaintiffs can subpoena records related to those prescriptions or treatments. That can in turn inform what Lufthansa knew or should have known about the pilot's medical condition.

Confidentiality laws in the United States are intended to protect patients, but not at the expense of endangering the lives of others. Thus, an American physician or psychologist is obligated to report to authorities if a patient presents a danger to self or others, especially where multiple lives are at risk. An airline is required to fully investigate any reports of suspected mental illness from wherever they emanate. And whether physician, psychologist, or airline have performed their duty is fully subject to discovery in a U.S. court of law. A desire to move on without dwelling on the details of a tragedy in fact exacerbates the tragedy.

For the families of the three American victims seeking accountability, it will be critical to discover medical records to determine whether a psychotic drug had been prescribed, when, and for what purpose. Although anti-psychotic drugs are often prescribed for major anxiety, mood stabilization and the like, there is the potential that the prescription was intended to manage a psychotic state, where one loses a sense of reality, and where one's vision of good and evil has become completely warped. Clearly, no one with a psychotic disorder should ever be allowed to get anywhere close to the insides of a cockpit. Nor, however, should access ever be given to any pilot requiring such drugs to treat depression.

But in Germany more stringent medical secrecy laws can impede getting to the details which are so important in moving beyond tragedy to accountability. Under its laws the duty to report danger is more attenuated than what is required in the United States. And after the event, the records of treatment remain largely immune from public scrutiny -- judicial or otherwise. But, while U.S. courts can not ordinarily demand German records protected by its secrecy laws, where Americans are involved and the company that may bear responsibility has engaged in commercial activity in the United States, new opportunities present themselves.

Assume that Lufthansa tries to block any efforts to obtain those medical records, claiming further release would violate Germany's medical secrecy laws. Would they prevail in a US suit brought by the families of the American victims?

A remarkably similar case on this point is scheduled to go to trial on July 11 in a federal courthouse in New York -- the case against The Arab Bank. Here, the Arab Bank sought to prevent disclosure of records of collusion in international terrorism by claiming that Jordanian bank secrecy laws would be violated were they to release pertinent records related to The Arab Bank's alleged involvement in supporting the terrorist activity of Hamas suicide bombers against Israeli nationals.

Last year the U.S. Supreme Court let stand a court of the appeals ruling that Jordan's secrecy laws do not prevail over accountability for US lives. Although the US State Department saw fit to intervene, arguing that allowing the case to go forward would prejudice US-Jordanian relations at a critical juncture in Middle East diplomacy, the courts rejected such considerations as paling against the need for accountability for terrorist related activities.

The lesson in the Arab Bank case is that bankers accused of having given money to suicide bombers cannot hide behind another country's bank secrecy laws to shield accountability for complicity in murder. Are a foreign countries medical secrecy laws to be treated differently? If so, the sanctity of medical records will trump the sanctity of all those lives that have now been extinguished.

Finally, it should be noted that although the downing of the Germanwings plane in the Alps does not bear the classic earmarks of a terrorist act, substantively it is the same -- innocent men women and children were targeted for mass murder. Even if the political motivation found in terrorist cases may have been lacking, the result was the same: death and destruction, and perhaps the intimidation of passengers inclined to travel on Lufthansa or it's spinoffs.

The point is that the failure at proper precautions with regard to a pilot bent for personal reasons on crashing an airplane and killing all aboard would have equally allowed for the downing of an aircraft by a pilot driven by terrorist motives. All the more reason that there can be no cutting corners on full and unfettered disclosure.