Friday, February 12, 2016

Deadly Plane Crash Results in $5.4M Judgment Against United States: Beech V35B Bonanza, N6658R and Piper PA28, N23SC, fatal accident occurred on May 28, 2012 in Warrenton, Virginia

James Michael "Mike" Duncan

Paul Gardella

A federal judge in Virginia has issued a $5.4 million judgment against the U.S. government after finding that an air traffic controller was negligent for a deadly midair crash involving three experienced pilots, including the former chief medical officer of the U.S. National Transportation Safety Board.

Thursday’s judgment awarded damages to the widow of an FAA-certified flight instructor, who was conducting a flight training review of the NTSB official, James Duncan, when both were killed in the 2012 crash. The pilot of the other plane, Thomas Proven, who is an accident investigator for the FAA, survived.

“It’s one of the cases that continue to show you’ve got to be diligent as an air traffic controller because you really do have other people’s lives in your hands,” said Jim Beasley, managing member of The Beasley Firm in Philadelphia, who represented Joyce Gardella.

Lawyers from the Justice Department and the U.S. attorney’s office in the Eastern District of Virginia defended the air traffic controller in the case. Calls to both offices weren’t returned.

Gardella’s husband, Paul Gardella, the passenger in a Beechcraft V35B Bonanza, and Duncan, the pilot, took off from Warrenton-Fauquier Airport in Warrenton, Virginia. Proven was heading to that airport in a Piper PA-28 Cherokee.

The air traffic controller, Shane Keenley, received a conflict alert involving the two aircraft but, determining that both were still 500 feet apart, did not warn the pilots.

In 2014, the Transportation Safety Board of Canada, which investigated the crash due to the involvement of NTSB and FAA officials, concluded that the pilots had failed to see each other.

Joyce Gardella sued last year under Virginia’s Wrongful Death Act claiming the U.S. government was liable under the Federal Tort Claims Act. DOJ lawyers argued that her husband should have seen the other aircraft.

U.S. District Judge Liam O’Grady, who conducted a bench trial in November, disagreed.

“Mr. Keenley did not use his best judgment when he decided that issuing a safety alert was not necessary in this case,” O’Grady of the Eastern District of Virginia wrote.

O’Grady also concluded that Gardella’s own negligence did not contribute to his death—an important ruling that allowed his wife to get one of the highest damages amounts in a Virginia plane crash against the U.S. 
government, Beasley said

“The law in Virginia is very tough,” he said. “If you’re even remotely contributory negligent, that’s a bar to your recovery. That’s one reason why the government pushed so hard to claim contributory negligence.”

Damages included $1.2 million in lost income and $2.3 million in emotional damages to Gardella’s wife, plus $500,000 to each of his three adult children.

Proven, who sued last year for $250,000 in injuries and loss of his plane, settled with the U.S. government on Sept. 17.


Accident occurred Monday, May 28, 2012 in Sumerduck, VA
Aircraft: BEECH V35B, registration: N6658R
Injuries: 2 Fatal,1 Serious.

NTSB Identification: ERA12RA367B 
Accident occurred Monday, May 28, 2012 in Sumerduck, VA
Aircraft: PIPER PA-28-140, registration: N23SC
Injuries: 2 Fatal,1 Serious.

This is preliminary information, subject to change, and may contain errors. The foreign authority was the source of this information.

On May 28, 2012, about 1604 eastern daylight time, a Beech V35B, N6658R, and a Piper PA-28-140, N23SC, collided in flight in the vicinity of Sumerduck, Virginia. The Beech was destroyed, and the pilot and flight instructor were fatally injured; the Piper was substantially damaged, and the pilot was seriously injured. Neither of the local flights was operating on a flight plan, and both were being conducted under the provisions of 14 Code of Federal Regulations Part 91. Day visual meteorological conditions prevailed. The Beech departed Warrenton-Fauquier Airport, Warrenton, Virginia, on a flight review for the private pilot, and the Piper departed Culpeper Regional Airport, Culpeper, Virginia, on a personal flight.

The pilot/owner of the Beech was an employee of the NTSB, and the pilot/owner of the Piper was an employee of the Federal Aviation Administration (FAA). Under the provisions of Annex 13 to the Convention on International Civil Aviation and by mutual agreement, the United States delegated the accident investigation to the government of Canada. The NTSB designated an accredited representative to the investigation on behalf of the United States, and the FAA designated an advisor to the accredited representative.

The investigation is being conducted by the Transportation Safety Board of Canada under its statutes. Further information may be obtained from:

Transportation Safety Board of Canada
Place du Centre
200 Promenade du Portage, 4th Floor
Gatineau, Quebec
K1A 1K8

Tel: 1 (800) 387-3557
Fax: 1 (819) 997-2239

Occurrence Number: A12H0001

This report is for informational purposes only, and only contains information released by or provided to the government of Canada.

Aviation Investigation Report A12H0001:

Mid-air collision
between Beechcraft V35B, N6658R
and Piper PA-28-140, N23SC
Warrenton, Virginia, 6 nm S
28 May 2012


The Beechcraft V35B Bonanza (registration N6658R, serial number D-103232) was in a shallow climb, heading southbound, in the vicinity of Warrenton, Virginia. The aircraft was operated under visual flight rules for the purposes of a biennial flight review. The Piper PA-28-140 (registration N23SC, serial number 28-21217) was in level flight, also under visual flight rules, and was heading in a southeasterly direction. At 1604:45 Eastern Daylight Time, the aircraft collided approximately 1800 feet above sea level. The Beechcraft broke up in flight, and the pilot and flight instructor were fatally injured. There was a post-impact fire at the Beechcraft accident site. The pilot of the Piper, who was the sole occupant of the aircraft, conducted a forced landing in a pasture, approximately 6 nautical miles south of the Warrenton-Fauquier Airport. The pilot sustained injuries, which required examination at a local hospital.

The Piper was registered to a Federal Aviation Administration (FAA) employee, and the Beechcraft was registered to a National Transportation Safety Board (NTSB) employee. Given the unique circumstances surrounding the ownership and operation of the accident aircraft, the United States, as the State of Occurrence, represented by the NTSB, and Canada, represented by the Transportation Safety Board (TSB), respectively requested and accepted delegation of the accident investigation, in accordance with paragraph 5.1 of Annex 13 to the Convention on International Civil Aviation (International Civil Aviation Organization).

Factual information

History of the flight

The pilot of the Beechcraft V35B Bonanza arrived at Warrenton-Fauquier Airport (KHWY) at 1515 Footnote 1 to pick up an instructor in order to complete a flight review.  Footnote 2 With the certified flight instructor on board, the Beechcraft departed at 1545, headed south, and climbed to 3000 feet above sea level (asl). No enroute air traffic services were requested by the pilots of the Beechcraft, nor were they required to do so in the airspace in which they were operating. The recorded radar data indicated that the Beechcraft was transmitting on transponder code 1200.  Footnote 3

At 1555, the northbound Beechcraft was 13 nautical miles (nm) south of the Culpeper Regional Airport (KCJR) at 3000 feet asl. At this time, the Piper PA-28-140 departed KCJR under visual flight rules (VFR) and was climbing eastward. At 1600, the Beechcraft started a descent (Figure 1). As the Beechcraft descended, their closest point of approach was 600 feet vertical and 0.9 nm lateral.

It is not known if either pilot saw the other aircraft, or if the 2 aircraft were on the same radio frequency.

Investigator in Charge John Lee and three other investigators from the Transportation Safety Board of Canada will conduct a probe and write a report about May 28, 2012 mid-air collision over Sumerduck in Fauquier County, Virginia. "Over the next few days, we'll be looking at the man, the machine and the environment," Lee said, giving a general description of the "field investigation." Because the accident involved private planes, flown by pilots employed by the Federal Aviation Administration and the National Transportation Safety Board, the heads of those agencies requested outside investigators.

Transportation Safety Board of Canada Inspector in Charge John Lee conducts a press conference at the Hampton Inn in Warrenton.


 Two Transportation Safety Board of Canada investigators examining the wreckage from the Beechcraft BE-35. On May 28, 2012, at approximately 1621, a Piper PA-28 and a Beechcraft BE-35 collided in flight just over 6 miles from Warrenton-Fauquier Airport in Sumerduck, VA. After the collision, the Piper PA-28 crash landed in a field and the BE-35 crashed vertically in a lightly wooded area. The sole occupant of the Piper PA-28 survived, but the two occupants of the BE-35 were fatally injured

 The crashed Piper PA-28. On May 28, 2012

Plane crash site in Fauquier County. 

Piper PA-28-140, N23SC

Investigator Brad Vardy inspects the Piper PA-28 that collided with another plane near Sumerduck.

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