MASSACHUSETTS LAWYER'S WEEKLY FEATURE STORY: RONALD C. KIDDBorn: March 12, 1943, Springfield, Massachusetts
Education: Boston University School of Law, 1970; Williams College, 1965
Massachusetts bar admission: 1970
Legal experience: Robinson Donovan, P.C. (1970-present)
Bar affiliations: Massachusetts Bar Association, Hampden County Bar Association (secretary, 1975-1977)
It could almost be mistaken for a children's toy, the way the computer-generated voice calmly delivers instructions:
"Apply pads to patient's bare chest ... Plug in pads connector next to flashing light. ... Analyzing heart rhythm. ... Do not touch the patient. ... Shock advised. ... Charging. ... Stay clear of patient. ... Deliver shock now. ... Shock delivered. ... Analyzing heart rhythm. ... Do not touch the patient. ... Analyzing heart rhythm. ... No shock advised. ... It is safe to touch the patient."
A toy it's certainly not. The small, lighter than many laptops machine is a defibrillator. And, if you're one of the estimated 360,000 Americans who suffer sudden cardiac arrest each year, it could save your life. But only if it's administered within a matter of minutes.
There was no defibrillator on board a United Airlines flight in October 1995 when Steven Somes' heart went into dysrhythmia and knocked him unconscious. Although a number of doctors were also on board the flight, nothing could be done. Somes was already dead when the plane made an emergency landing in Utah.
The Springfield law firm Robinson Donovan, P.C., which had done estate-planning work for Somes' family, didn't realize right away the potential lawsuit that was in front of them, says partner Ronald C. Kidd. That all changed after a story in the Chicago Tribune used the Somes case as an example of how the failure to have a defibrillator on an airplane can prove fatal.
The resulting federal suit wasn't the first brought against an airline for failing to have a defibrillator on board, Kidd says. There apparently had been one filed, and quietly settled, by a lawyer in Illinois more than a decade before. But the Somes suit was the one that made headlines nationwide, and caused industry practices to change.
"To have United announce two weeks after we started this suit that they were going to deploy defibrillators [on all its flights] was a pretty magic moment for us," says Kidd, noting that federal law will require defibrillators on all airlines by 2002.
Kidd's suit against United, which was settled in September for an undisclosed amount, was the biggest of his three-decade career, he says.
"We certainly devoted more lawyer power to this than any case I've seen in 30 years," he says.
A. One of the mistakes that people make is confuse heart attacks with sudden cardiac death or sudden cardiac arrest. The heart is in essence an electrical pump. It's charged by electricity. In sudden cardiac arrest the heart goes into dysrhythmia, which reduces its effectiveness as a pump. The only way to restore the rhythm is defibrillation. The machine that does that is a defibrillator. ... It in essence shocks the heart, depolarizes the heart, clears all the pathways ... If you're successful the heart begins to beat rhythmically again.
Q. How much training does it take to use one of these machines?
A. They say four hours. For most people, after 15 minutes you wonder what you're going to do for the next three hours and 45 minutes. ... The critical thing is that once somebody goes into sudden cardiac arrest, which may or may not be accompanied by a heart attack, you have essentially 10 minutes to defibrillate. And you lose about a 10 percent chance for each minute that passes. You have about four minutes before organ damage or brain damage starts. That's the purpose of CPR, which doesn't restart the heart, it just keeps the blood moving. ... One of the greatest difficulties I had in the case was that I think I knew more about sudden cardiac arrest and the treatment protocols for sudden cardiac arrest than the medical director of United Airlines. ... He had a very difficult deposition. He thought that CPR 30 minutes to the ground was an appropriate treatment protocol. That condemns the person to death.
Q. Presumably, one of the obstacles if this case had gone to trial would have been proving that Somes wouldn't have died if a defibrillator had been on the plane. Right?
A. Causation was going to be a difficult issue had we made it to trial. But I was not overly concerned about the causation situation because the statistics now [on surviving when defibrillated] are pretty good. Ironically, the safest possible place to go into cardiac arrest is a casino. The casinos all have [defibrillators]. The most recent study is that 70 percent of those folks who have sudden cardiac arrest in a casino survive. And the definition of survival is a rigorous one -- discharge from a hospital neurologically intact.
Q. Sometimes it takes a flight attendant 10 minutes just to get you a Coke. Would a flight attendant really have been able to do defibrillation in time?
A. The reverse argument is really the better argument, [that is that] the airline environment makes it a perfect place to have [a defibrillator] because you have no alternative, you're at 37,000 feet, you're 25 to 30 minutes to the ground -- best scenario. And these devices are designed to be used by lay responders. You don't need to have a doctor do it. But, most importantly, in the aircraft environment, you typically have very early recognition.
Q. There must be many other kinds of medical equipment that an airline could have on board. Obviously you can't have a full blown emergency room on every flight. Where do you draw the line?
A. That was one of the major arguments that we had to contend with, "You want to turn us into flying hospitals." The truth of the matter is that that's just not practical. But [sudden cardiac arrest] is the single leading cause of death in America. It's clearly the single leading cause of inflight death. ... The way we tried to deal with that was, "Look. There's finality to this. We know you can't deal with everything. But here's one you can deal with simply and you're going to save a number of lives."
Q. You got some favorable pretrial rulings in the case ...
A. Well, the case got bogged down initially. They filed a motion to dismiss alleging that the airline deregulation act in essence preempted state tort law. Since there wasn't any federal tort law, [they claimed that] Somes was without a remedy. Our position was that was not the intention of the Congress to preempt state tort remedies. Judge [Morris E.] Lasker ruled in our favor ... Thereafter they maybe had the benefit of the better side of Judge Lasker's rulings.
Q. Did they have an argument that because federal laws and regulations tell airlines in great detail how to operate their airplanes that, because United was in full compliance, it couldn't possibly be said that it did something wrong?
A. You put your finger on another very interesting issue. They argued that early in their motion and Judge Lasker found that position a little disingenuous. To the extent they did everything the [Federal Aviation Administration] required of them it was clear the FAA only set minimal standards and they were free to improve on those standards. We had examples of where they had done things above and beyond the minimum FAA emergency medical care. So, at a legal level, we weren't particularly concerned about that. On a factual, practical level with a jury we were very concerned about it. That was one of my great fears -- that a jury would say, "The FAA is looking over those people's shoulders. If the FAA didn't make them do it, how important could it have been?" I was very nervous about that.
Q. Can a flight attendant or anyone else who uses a defibrillator improperly get sued or is there some kind of immunity?
A. Most states [including Massachusetts] do have immunity for any individual who's taken the requisite training and who in good faith uses one of these units. In an aircraft situation, of course, who knows whose law applies. I tell people that about the only way you can hurt somebody with one of these things is if you drop it on them as you are rushing to get it to them. They only charge and shock in situations where the person's dead. You're starting on a dead person. It's really hard to hurt him more than that. The only way to go is up.
Q. Somebody might say: "People have these heart events all the time. It's an act of God. Why should the airline be blamed?"
A. That gets into the issue of duty. What is the duty? Interestingly, the origins of the flight attendants [is] that they were actually nurses in the early days of commercial flight. There's been a long history of undertaking the duty of medical care of your passengers in the air. We fell back on the notion that once you undertake a duty you have to discharge it in a non-negligent fashion.
Q. Suppose your client had been on a commuter rail train, or at Suffolk Downs or at the FleetCenter. Isn't there an argument to be made that any place where there are a lot of people congregating they ought to have these things?
A. That's a very good question. One of the things that was very difficult is the evolving standard of care. When is it negligence not to have a defibrillator available? I think, knowing that these emergencies are going to happen, if you have somewhere where large groups of people congregate, it is in this day and age wrong not to have the availability for prompt effective treatment of sudden cardiac arrest. ... I'm sort of astounded that lawyers haven't been more interested in this as an emerging area of liability.
Q. Airlines aren't exactly held in the highest regard by the public. Did you have that working in your favor if you got to a jury?
A. That was part of it. But also it's sort of like dentists. Everyone has a fear of being up there [in the air]. There's that sense that you have me up there and you are responsible for what happens up here. That was a factor that would have worked in our favor.
Q. What would you say to someone who said, "Here are those darn lawyers filing more lawsuits, driving up the cost of flying for the rest of us"?
A. All it is is 3 cents a ticket. That's all it is, 3 cents a ticket. ... What's interesting is that it's not so much the cost of the defibrillators [that bothers the airlines], it's the weight. Weight is everything on an airplane.
Q. Your case is subject to a confidentiality agreement. The Massachusetts Academy of Trial Attorneys has been making noise about making confidential settlements illegal. What do you think of the MATA's position?
A. I'd actually oppose that. The argument is, as I understand it, that [confidentiality agreements] don't allow the word to get out regarding defective products. The truth of the matter is that, once the suit is brought and there's the publicity attendant, the word gets out. And, looking at it from the perspective of individuals, the individual might be put through a trial unnecessarily if the defendant isn't going to resolve the thing because the resolution is made public.
Q. As somebody who's been at it for 30 years. What strikes you most about the way law practice is today and the way it was back in 1970?
A. Clearly there's less civility. And I think the technology [today] bumps up the number of difficult decisions you have to make. We're just doing more work and doing it faster and making more difficult decisions than you had to make when I started out. [Back then] you wrestled with something once a week or twice a week. Now it seems like you're wrestling with some major issue three or four times a day.
Q. Springfield is removed from the hustle and bustle of Boston. Is that a good thing or does it have a down side?
A. I just don't find that we're that much removed. Certain areas of the law are perhaps. I've felt for years that our litigation side is as strong as any litigation firm in the state -- very bright, very able lawyers. At least in litigation, you're doing pretty much do the same thing that they're doing [in Boston].
Q. Suppose a freshman in college said he was interested in law school but wasn't sure and wanted your advice. What would you say?
A. What I have said is "Get yourself a good undergraduate education and find yourself a nice job for a year or two as a paralegal in a law firm and get to see what people really do and if you'd like to do that. And if you'd like to do that, go to law school."
Q. You were in the Peace Corps in the 1960s before you went to law school. Are you still an idealist, or has the cold harsh world changed you?
A. I was a Kennedy kid then and I'm a Kennedy kid now. My partners think I'm a bleeding-heart liberal ... And I am.
© 2000 Lawyers Weekly Inc., All Rights Reserved.