Whitesides: New Mexico Needs to Catch Up to Other States

Editor’s Note: Well, there you have the argument in a nutshell: New Mexico has fallen behind Florida and Texas in the race to restrict the rights of passengers and their heirs to sue Virgin Galactic and other companies for injuries and deaths from spaceflights. If they don’t catch up, their $209 million investment could be for naught. And all this is happening even before the first SpaceShipTwo flight has taken off from Spaceport America.

Still, this controversy has shed a light on spaceflight informed consent laws, which have largely sailed through various state legislatures without much debate or discussion. I guess we can thank (or curse, depending upon one’s point of view) New Mexico’s trial lawyers for standing up to efforts to expand the state’s existing law to cover manufacturers and suppliers, and to weaken the already limited protections afforded injured or dead passengers and their heirs.

The basic aim of informed consent laws, to put it plainly, is to make sure that the companies will survive even if some of their passengers do not. Spaceflight is an inherently dangerous business, the argument goes. Companies could be sued out of existence without being protected from legal action except in cases of gross negligence and intentional harm. Death by lawsuits, if you will.

Trial lawyers say that these laws go too far in protecting corporations at the expense of the right of individuals to have their day in court. No single industry should be given such broad protections even if the activity involved is dangerous, they argue. And the serious of lawsuits will keep companies on their toes.

The informed consent regime leaves many questions. How will it actually work? These first-generation vehicles are new, so no one — including the manufacturers, suppliers and operators, who will understand the risks a lot better than the everyone else — will be able to say precisely how dangerous they are at the beginning. So, how informed will passengers be in dealing with such unquantifiable risks?

It seemed perfectly safe to put a school teacher on a space shuttle after 24 successful flights. It took all of 72 seconds to shatter that illusion on a frigid Florida morning. To the public, 24 flights sounded like a lot, enough to verify the safety of the system. But, in flight it is not a very large number. Especially for a vehicle as complex as the space shuttle.

In the aftermath of Challenger, investigators found that if it wasn’t the O-ring, some other flaw would have destroyed a shuttle some day. As one eventually did. The shuttle system was riddled with such traps. Will the same thing happen again with commercial space? Or will the vehicles be safer because they are simpler and put through a much more rigorous flight test regime?

People argue that commercial space companies will have an incentive to be safe because if they are not, they will go out of business. Fair enough. But, did NASA have any less of an incentive in protecting its crews because it was a government agency? Did NASA personnel somehow care less? Did they not likewise fear the consequences of a fatal accident to the astronauts, to the agency, to themselves? Was their dedication to the cause of space exploration any less than the employees at the commercial companies that are now following in their footsteps?

I don’t think so. It is largely forgotten now, but at the time of Challenger, NASA was under a lot of pressure to meet a flight schedule that was utterly unrealistic. They just didn’t know just how unrealistic it was yet. Will commercial or competitive pressures undermine safety in this new commercial industry? If they do, how does the law treat that?

In  other words, just how gross does gross negligence have to be for injured parties to successful sue? That will be a difficult question to answer until someone actually does it. The balance between plaintiff and defendant could be key. In Virgin Galactic, plaintiffs will be going up against a massive multinational company with deep legal resources. Will the injured parties be outgunned? Or do we assume they will be wealthy enough to press their case? And that their lawyers will be chomping at the bit to go after a company with such deep pockets?

Of course, not all companies will be as wealthy. The informed consent measures cover much smaller firms that lack the legal resources of Richard Branson. So, there are broader interests of an emerging and potentially lucrative industry to consider.

And not all spaceflight passengers will be millionauts and billionauts. Will they and their heirs be able to wage a long legal fight if they feel that gross negligence was involved?

Finally, there’s a disparity between the informed consent waivers and how some companies are marketing flights and selling tickets. There are no laws regulating what claims companies can make about the safety of their vehicles even as they are requiring clients to sign strict liability waivers that partially absolve them of liability. Will the sales pitches create a false sense of security, a feeling that the waivers are just a legal formality required to fly on systems that are fundamentally safe?

Informed consent laws represent a success story for the commercial space industry. They have now become the de facto standard, and they have now reached a level that New Mexico — a pioneer in the field, which committed to spending $209 million in taxpayers money on Spaceport America before an industry even existed, and passed an informed consent law before anyone else — risks being left behind because its law doesn’t go far enough in protecting companies.

Irony, thy name is Spaceport America.

There’s always a bit of a risk in getting exactly what one wants. It goes without saying that commercial space companies cannot afford the reputation of being unsafe. But, if they also develop the reputation of being both unsafe and legally untouchable due to overly strict informed consent laws, people will really start to hate them. They will become as popular as bankers. Or the railroad barons of old.

However, unlike those other two hated professions, people can avoid dealing with commercial space companies. There’s no pressing need for anyone to fly 100 kilometers up and return to the same spaceport they just left.

Early railroads and airlines provided valuable and faster point-to-point transportation for both passengers and cargo. These industries could grow and mature alongside existing systems, some of which were not a whole lot safer. Suborbital spaceflight providers do not have the same luxury, which makes them especially vulnerable to bad days.

Supporters of extending the informed consent law say that the legislation is cost free for New Mexico. If SpaceShipTwo crashes into your house, you can sue for damages. Or your survivors or landlord can if you don’t survive. And that’s true. But, not all costs can be measured in monetary terms.

New Mexico’s legislators are faced with a series of fundamentally moral questions involving life and death. Are these protections so necessary for the development of a vital new industry that they justify the curtailment of individual liberties? Or is this a race to the bottom where companies play states off each other to their own advantage? How much risk does one shift to passengers who have no control over the vehicles they ride in? Does protecting the need for taxpayers to get a return on their investment in Spaceport America trump other considerations?

These are not easy questions to answer. I don’t envy them their decision.