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US businesses attack musician’s lawsuit against airline

A National Symphony Orchestra bassoonist who is suing two airlines for failing to make the ‘necessary accommodation’ for his instruments has been attacked by a coalition of businesses determined to protect themselves against such lawsuits. There is plenty of vexatious litigation going on, to be sure, in many walks of American life, but in this case an honest musician appears to be acting on a principle that affects the entire profession.(See, most recently, here.)

Before you read the press release, here’s Lewis talking about his instrument.

ATRA Condemns NSO Musicians’s Lawsuit against Airlines
FOR IMMEDIATE RELEASE                                               CONTACT:
Darren McKinney (202) 682-0084

ATRA CONDEMNS NSO MUSICIAN’S LAWSUIT AGAINST AIRLINES

Plaintiff’s Interview with Washington Post Undermines His Claim

WASHINGTON, D.C., August 2, 2012 – Citing a report yesterday by the Blog of
LegalTimes (BLT), the American Tort Reform Association today condemned the
“shameless” slip-and-fall lawsuit that a National Symphony Orchestra
musician has filed against two airlines.

According to the BLT, “Lewis Lipnick, a celebrated bassoon and contrabassoon
player with the [NSO], is suing United Air Lines, Inc., and Lufthansa,
claiming he suffered a bad fall after the airlines failed to make necessary
accommodations for him and his instrument.”

Filed Tuesday in U.S. District Court for the District of Columbia, Lipnick’s
lawsuit alleges he was on his way home from Germany in September 2010 after
traveling there to buy a new instrument similar to a contrabassoon.  Though
he’d gone to the expense of buying a separate ticket for the 70-pound
instrument, he apparently was unwilling to check two additional bags he also
sought to carry on the plane.

When a ticket agent allegedly told him he couldn’t use an elevator to access
the boarding area, Lipnick claims he was forced to struggle with his
carry-on bags and the bulky instrument on an escalator, and that’s when he
says he “sustained serious injuries, including injuries to his neck, back,
and left arm, and severe mental and emotional injuries” [emphasis added].

“Yet within a few weeks of his alleged escalator fall and ‘severe’
injuries,” observed ATRA director of communications Darren McKinney, “Mr.
Lipnick had recovered sufficiently to perform superbly with the orchestra
and provide the Washington Post with an altogether upbeat interview about
his trip to Germany to purchase his instrument, never breathing a word of
his heroic suffering for the sake of his art.”

McKinney noted particularly the following text from The Post story on
Lipnick by staff writer Anne Midgette: “Even with the expense of traveling
to Germany, renting a car and buying two business-class tickets for the
return flight so his new instrument could travel in its own seat, [Lipnick]
considers it money well spent.”

“Surely if Mr. Lipnick had been suffering severe injuries when Ms. Midgette
interviewed him, her story would have made at least a passing reference to
those injuries and the commitment to his craft that such injuries would
imply,” McKinney continued.  “But there was no mention of injuries, severe
or otherwise, and that leads reasonable people to believe that, like his
double-reed instrument, Mr. Lipnick’s lawsuit is full of hot air.

“At the time of Mr. Lipnick’s alleged fall, he was nearing 64-years of age.
But knowing that he’d be carrying his new 70-pound instrument, he
nonetheless opted not to check his additional luggage.  And now he
shamelessly seeks to blame the airlines for his poor judgment.  Talk about
blowing a sour note.”

-ATRA-

The American Tort Reform Association, based in Washington, D.C., is the only
national organization dedicated exclusively to tort and liability reform
through public education and the enactment of legislation.  Its members
include nonprofit organizations and small and large companies, as well as
trade, business and professional associations from the state and national
level.

Here is a response from Mr Lipnick’s legal team.

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Comments

  1. I am afraid to say, as this article stands at the moment and with no current explanation for the refusal of Mr Lipnick to check in his other two bags (which seem in this case not to be instruments but just bags), then I find myself sympathising less with him and slightly more with the airline. If there were more detail to this story, such as what the other bags he refused to check in were and if it really was true that he was not allowed to use an elevator by a ticket agent, it would be easier to draw a fair conclusion. However, as it stands at the moment, this article clearly puts Mr Lipnick’s case at some disadvantage. What is the real truth here?

    • another orchestra musician says:

      I second KCR, above.

      One has to wonder why Mr. Lipnick chose to lug a heavy, bulky contrabassoon case through airport terminals and into a business-class aircraft cabin instead of allowing the manufacturer to ship it via freight.

      • G. McDaniel says:

        By airline standards, a single passenger is allowed to carry on two items, so why does it matter if Mr. Lipnick “refused” to check either of them? He had already gone the proper route of purchasing an additional seat for the instrument that he acquired, so he technically had even less reason to check his other two bags, no matter the fragility of their contents. Moreover, Mr. Lipnick clearly chose to take the contrabassoon through airport terminals and into a business-class aircraft cabin because it is THE ONLY way to ensure the instrument’s absolute safety during transport.

        On the flip side, no, we don’t really know the extent of his injuries apparently sustained during a fall due to certain refusal. Nonetheless, the entire topic of airlines creating appropriate space for instruments that must be carried on is becoming a larger issue by the day. Even when all the appropriate steps are taken, such as Mr. Lipnick’s, airlines still seem to find a reason to stir the pot.

        • another orchestra musician says:

          Disagree a bit here, GMcD. Safer, for the instrument and its owner alike, would have been to have this notably heavy and bulky instrument shipped. Not in the aircraft baggage compartment, of course, but as freight, having previously been disassembled into sections and packed deeply embedded in foam, in multiple cartons. Thousands of delicate, bulky items are shipped safely in this manner every day.

          I am not a bassoonist, but I have on a number of occasions handled contrabassoons in their cases. One can easily hurt one’s self lifting the thing; drop it from more than a couple of inches, and the instrument inside will likely sustain damage. I would never dream of bringing a contrabassoon into the passenger cabin of a normal commercial flight. Many orchestral instruments can, and should be accommodated in a passenger cabin; some, such as contrabass, harp, large percussion, tuba, contrabassoon, etc., are inappropriate there.

          Other than in aircraft leased by symphony orchestras on tour, I have never encountered a contrabassoon in the passenger cabin of an airplane.

          • William Safford says:

            I am a bassoonist and contrabassoonist.

            You have it all backwards. The safest way to transport that Contraforte was exactly the way Lew did, by booking a seat for it.

            It is more hazardous for the instrument to be shipped as freight than to book a seat for it. Instruments are often damaged in shipment, even when well packed, and sometimes they are lost. (Shipping as airplane cargo is even more hazardous.)

            Furthermore, there is the issue of timing. Will an overseas freight shipment arrive at the same time that he does? In addition, any additional time that the instrument spends in transit is time that it is unavailable to him for work.

            Other than for the bocal and end pin, most contrabassoons cannot be disassembled by the player. The charge for a repairman to disassemble and reassemble a regular contrabassoon is over $1,000; the cost for a Contraforte is probably higher. There are few repairmen who are qualified to disassemble and reassemble a contrabassoon, and fewer still for the Contraforte. Such a disassembly renders the instrument inoperable until reassembled. Disassembly and reassembly, as part of an overhaul of the instrument, is routinely done only once every ten to twenty years.

            Depending on the current Euro/dollar exchange rate, the cost of a Contraforte is in the $35-40,000 range.

            It is entirely understandable that Lew would want to protect his instrument by booking an additional seat for it on the airplane.

            Best that I can tell, the issue is not in how Lew transported his instrument; the issue is how he was treated by the airline.

          • another orchestra musician says:

            US$1000 to re-assemble a contrabassoon that had been partially disassembled at the factory?

            At a bench rate of US$80/hour, that would imply 12 hours of work to slip the sections back together, tighten the clamps holding the sections together, and re-attach perhaps 10 keys and their linkages that had been unscrewed prior to transport because they overlap sections. There might also be braces to re-attach, depending upon how completely the sections had been disassembled.

            US$150 would be a more accurate figure.

            Re-assembling a partially disassembled, factory new instrument is absolutely not comparable to overhauling an instrument that has seen a decade’s service. And the greater Washington, DC area most assuredly has technicians qualified to perform such work.

            Technicians who, it bears noting here, earn their living, in part, from repairing damage accidentally inflicted upon musical instruments by their owners.

            Damage does sometimes occur during shipment of a musical instrument, but this is in almost every instance a consequence of having transported an instrument contained within its case. Few normal carrying cases offer an instrument optimal protection against mechanical shock, as their design normally must prioritise easy portability. When an instrument is removed from its case, disassembled into lightweight sections, and correctly packed, the likelihood of damage is very remote.

          • William Safford says:

            You still have it all backwards, and are betraying your ignorance on this topic. Being ignorant about the intricacies of contrabassoon design and repair is understandable; pretending to know something about it, when you don’t, is not.

            The issue is how Lew was treated by the airline. The rest is a distraction.

            As for the distraction:

            “US$1000 to re-assemble a contrabassoon that had been partially disassembled at the factory?”

            Yes, $1000 is a typical charge to disassemble and reassemble a contrabassoon, with the service that is part and parcel of the process. (It might be less or more, depending on who is doing the job and the needs of the instrument in question.) There is far more to this process than merely unscrewing a couple screws and separating or joining a few joints. The instrument has to be completely dismantled, including the removal of most or all of the keywork. The reassembly process involves not only just screwing parts together, but reinstallation and readjustment of all the mechanisms, making sure that all the pads seat and seal properly, and all the keywork functions properly, smoothly, and silently. Mechanisms that were in proper alignment and adjustment before disassembly must be meticulously realigned and readjusted upon reassembly.

            Contrabassoons are not designed to be disassembled casually.

            The Contraforte is a particularly intricate instrument, with many additional keys, pads, rods, and linkages vs. a standard contrabassoon.

            “Re-assembling a partially disassembled, factory new instrument is absolutely not comparable to overhauling an instrument that has seen a decade’s service.”

            Who says that the instrument was “partially disassembled?” You claim facts not in evidence.

            “And the greater Washington, DC area most assuredly has technicians qualified to perform such work.”

            In all likelihood, no repairman in the Washington area has yet disassembled and reassembled a Contraforte. It’s possible that no repairman in the U.S. has done so. They’re just not that old yet.

            I know contrabassoonists in major orchestras. I do not know a single one who has his or her contrabassoon dismantled for transit.

            The reality is that the best way to transport a contrabassoon, short of the massive and deeply-padded shipping crates used by the likes of the NY Philharmonic, is exactly the way Lew did.

            The issue at hand is, and remains, how he was treated by the airline.

    • William Safford says:

      There is more to the story than that one-sided attempt to sway public opinion against the actual injured party.

      I do not speak for Lew. However, it’s easy enough to read between the lines.

      For example, Lew is criticized for carrying on two bags in addition to his Contraforte. The press release’s author, a Mr. McKinney, fails to highlight the fact that, by buying two tickets, Lew *paid* for the right to do so: two passengers (Lew and his Contraforte), which works out to one bag per passenger. We all know the risks of checking any luggage, so it is perfectly understandable why someone would want to keep his baggage with him. (I flew to a wedding last month. Several of the attendees were stuck without their luggage, courtesy of the airlines failing to deliver the checked luggage until days later.)

      Another example: it says that Lew performed “superbly” with the orchestra after the incident. That’s a nice compliment, but the flip side is this: what is his alternative? He is a professional musician. He has to play to have a job and to create his art. His alternatives are to go out on disability or resign. What level of pain was, and is, he experiencing as he performs? How will his injuries affect his future ability to keep his job?

      Another example: what did they not say about that escalator incident?

      Another example: the author of the press release criticizes Lew for the fact that Anne Midgette did not mention this incident. This suggests that Lew has some sort of journalistic control over her and what she can or cannot include in her articles. I bet that both of them would be surprised to learn about this.

      Any way you look at it, it is obvious whence the “hot air” is emanating.

      • Er, nothing is said about Lew’s “right” to carry two extra bags; you’re making assumptions.
        The press release is commenting that it was surely rather daft of Mr. Lew to insist on carrying two extra bags if he felt the contra was likely to be too heavy to move. He being a contra player, he is surely used to moving the beast, and would know the effects of carrying it up and down stairs, trekking through large airports, and so on. If he chose to act this way, whose fault but his the injuries he claims are sustained?

        • William Safford says:

          The author of the press release is making assumptions; I’m highlighting them.

          Who is at fault for the injuries? Well, that’s what courts of law are for: to determine such issues of fact.

          Note, however, that the raison d’être for the organization that released the press release is to *impede* the ability of people to have their cases heard in court.

          Food for thought.

  2. Alex Klein says:

    So there is a statement showing the airline’s side of things. It would be interesting to hear from Mr. Lipnick or someone who could state his arguments for him. Perhaps there are other factors not mentioned here, which would bring ore equality to any foregone conclusion.

    • Did he ask that someone from the airline or a baggage handler assist him?

      If so, was no one available, or if so, did they refuse?

    • William Safford says:

      That’s a very reasonable thought. I’m sure that Lew’s side of the story will come out in court. My guess: Lew’s attorney will discourage discussing his side of the story outside of court.

  3. I second what Mr. Klein wrote. This is nothing but a reprint of a press release opposed to Lipnick’s lawsuit. Given the tone and general condescension, it’s likely there’s a good chance that Lipnick may win, and ATRA is scare of that possibility. We should know what Lipnick’s own terms of the lawsuit are and what he is suing over, and not take it on faith from an ATRA “director of communications,” i.e., a PR flack. Also, McKinney sent out the statement, and quotes himself in it. To whom was he speaking when he quoted himself? Isn’t the entire statement a McKinney quotation, since he wrote it?

  4. Art makes a good point:

    “Did he ask that someone from the airline or a baggage handler assist him?
    If so, was no one available, or if so, did they refuse?”

    Skycaps are legion here in U.S. and, routinely carry disabled passengers to their gates gratis. Whether or not they would be allowed to carry customer baggage through security directly to the gate I don’t know, but see no reason why, and perhaps that should be investigated. II did google “are luggage carts allowed beyond gate security” the ones I found said no but one, Sea-Tac said carts were available beyond security. A moote point as it i stated Lewis was not allowed to use the elevator (so I wonder how they get the disabled to the gate). Having traveled many times from The U.S. to and from Europe I known that there is assistance to carry disabled passengers, but again (since the majority of people carry their own carry ons) I’m not sure about carry on assistance. I do know that carts are available and usually free.
    It seems he did buy a seat for his instrument (which is very big) and was entitled to carry 2 additional bags, but chose or was forced to carry them himself and that was his decision for good or bad.

    Tort reform here in the U.S. is VERY unlikely. Having the most lawyers in the world (not the myth of 70%) , but still the most.

    http://wiki.answers.com/Q/What_country_in_the_world_has_most_lawyers_per_capita

    A Congress that is made up of 43% of members who are lawyers (60% of the senate and 37.7% of the house), surrounded by a wall of corporate lobbyists, and who basically prostitute themselves to the highest bidder AND do nothing. I see little hope. It’s the purchased influence of corporate America that rules the roost today.

    Finally, I’m sure I’m going to step on some toes here so forgive me, couldn’t Mr. Lipnick’s suit be part of the problem? The overall plague of nuisance that fills U.S. courts today?

    What does an orchestra do today when they travel by air? I can understand valuable violins and cellos and most of the winds and brass are perhaps not a problem, and. I guessing, that a plane is chartered for perhaps a 100-110 piece orchestra, leaving plenty additional space for instruments. Is this just a problem for small ensembles and individuals? Would an individual timpanist or harp player want to bring the instrument aboard, or are they not affected by traveling in the cargo compartment? Hopefully, those players who know can educate we listeners who know little or nothing of logistics of moving a large symphony orchestra.

    • another orchestra musician says:

      Traveling symphony orchestras commonly provide robustly built flight cases for the musicians’ instruments, sheet music, accessories and concert clothing. Musicians playing the smaller instruments frequently choose to carry these as hand luggage, in order to have them accessible for practice when in their hotel rooms. Percussionists, contrabass players, cellists, contrabassoonists and the like are sometimes allowed entry to the concert hall, prior to the beginning of any scheduled orchestra rehearsal or concert, in order that they might have the opportunity to practice individually.

      The instrument flight cases are sometimes packed into shipping containers for subsequent handling, but more commonly are loaded loosely into lorries or aircraft cargo holds; their contents are accessible to the musicians only at the performance venue. The musicians are seldom contractually required to lift particularly heavy or bulky instruments themselves, this being the task of the stage hands.

      Orchestras that lease an aircraft in exclusivity for the duration of a tour are sometimes at liberty to load their instruments, contained in flight cases or not, loosely into the passenger cabin. It has been the practice of some orchestras to provide multiple seats, in coach, per musician when flying on normal commercial flights – this, however, in addition to providing separate transport for the instruments.

      Contrabassoon, being heavy and fragile, is invariably is given a flight case of its own. Its flight case is usually carried by two stage hands simultaneously. The contrabassoonist accesses his instrument, when touring, only at the performance venue.

  5. Important post. Still reading, in between other readings and tasks, but I note a typo Norm. I’m assuming “businesses determined to protest themselves…” should read “…to protect themselves…”.

  6. Right. Done the video. What a neat instrument. And he can pinch some spare parts from unsuspecting cyclists attending his performances: very handy!

  7. I object to the biased headline. “Oppose” even “Strongly oppose” would’ve been appropriate.

    Art

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